Bloom v. Bloom

• Decision Date: 27 November 1996
• Docket Number: No. 04-95-00906-CV,04-95-00906-CV
• Citation: 935 S.W.2d 942
• Parties: Melissa Ann BLOOM, Appellant, v. Dennis Lee BLOOM, Appellee.
• Court: Texas Court of Appeals

Page 942

935 S.W.2d 942

Melissa Ann BLOOM, Appellant, v. Dennis Lee BLOOM, Appellee.

No. 04-95-00906-CV.

Court of Appeals of Texas San Antonio.

Nov. 27, 1996.

Sue T. Bentch, Supervising Attorney, Lisa A. Rodriguez, Student Attorney, St. Mary's Civil Justice Clinic, San Antonio, for appellant.

Ramiro Estrada, Jr., San Antonio, for appellee.

Before LPEZ, GREEN and DUNCAN, JJ.

OPINION

DUNCAN, Justice.

Melissa Ann Bloom appeals by writ of error from the default judgment taken against her by Dennis Lee Bloom in their divorce proceeding. We dismiss Melissa's first five points of error, which complain that the trial court did not acquire personal jurisdiction over her, because she has accepted substantial benefits under the judgment she now attacks. As to her sixth and seventh points of error, which complain of the absence of subject matter jurisdiction, we affirm.

I. FACTUAL BACKGROUND

On May 25, 1994, Dennis filed a petition for divorce from Melissa Ann Bloom. Soon thereafter, Melissa and the couple's son moved to Pennsylvania. On April 7, 1995, Dennis obtained a default Final Decree of Divorce. In the decree, the community property and debts were divided, Melissa and Dennis were made joint managing conservators of their child, and Dennis was ordered to pay child support of $300 per month--twenty percent of his net monthly earnings of $1490. The decree also recites that, although "duly cited," Melissa "failed to appear and wholly made default." This statement appears to have been based upon the Sheriff's Return, which bears the notation "MELISSA A. BLOOM" in the top left-hand corner, as well as the docket number of the divorce proceeding; recites that personal service was made at the residence of the person to be served, 622 Shade Lane, Windber, Pennsylvania 15963, ¹ on the person on February 23, 1995 at 10:00 a.m. The return is signed by Arthur K. Oleskey, Deputy Sheriff of Somerset County, Pennsylvania and notarized by Judith Lee Henderson, a notary in Somerset County, Pennsylvania. The return further states that Deputy Sheriff Oleskey "ma[de] known to such person the contents thereof."

On October 6, 1995, Melissa filed her "Special Appearance and Petition for Writ of Error," which alleges that the trial court acquired neither personal jurisdiction over her nor subject matter jurisdiction over the division of the community estate, custody, visitation, and support of the couple's minor child. Melissa's petition asked "that [the] judgment complained of (the 'Final Decree of Divorce') be vacated, and that this case be dismissed or, alternatively, remanded for hearing on [her] special appearance." Both parties filed briefs in this court on the issues raised in Melissa's petition, and the case was set for submission without oral argument.

After the case was submitted on briefs, Dennis filed a motion to dismiss Melissa's appeal on the ground that she has accepted substantial benefits under the divorce decree, including her share of their community property, relief from certain community debts, and the ordered child support payments, and is thereby estopped from prosecuting her appeal. Dennis' motion is supported by his affidavit, which is dated September 19, 1996, and states:

I am the Appellee in Cause No. 04-95-00906, styled Melissa Ann Bloom, Appellant, v. Dennis Lee Bloom, Appellee, in the Fourth Court of Appeals of Texas. Prior to my filing the petition for divorce in this action, my wife, Melissa Ann Bloom, and I discussed in detail the issues relating to our divorce, which included the division of community property and debts, and conservatorship of our son, Taylor. After lengthy discussions and negotiations, we reached an oral agreement on all the issues incident to our divorce. The agreement included a resolution to the issues of conservatorship, child support, and the division of all community property and the payment of all community debts.

My wife had decided to move with our son to Pennsylvania immediately, rather than waiting for our divorce to become final. She advised me to have my attorney send her the Final Decree of Divorce which was to include the terms of our agreement. She stated that she would sign it upon receipt and mail it back to my attorney.

It was agreed that she would leave for Pennsylvania and would send for the furniture and other property designated as hers in accordance with our agreement. I even agreed to help load the furniture on to a U-Haul and send it to her whenever she was ready for it. She moved to Pennsylvania, and, when she called for the furniture, I personally loaded the furniture on to the truck and sent it to her as stated above. I ended up paying the charges of transporting the furniture to her, although this was not part of our agreement.

From the time my wife left for Pennsylvania I made regular child support payments of $300.00 per month, pursuant to our agreement. As of this date, I have been paying child support to her for over two years without missing a payment. I made these payments to her in good faith and in accordance with our agreement incident to the divorce. Melissa has accepted every payment made to her and has never returned or refused any of these payments. From time to time Melissa also sends me medical bills incurred on behalf of my son requesting payment of one-half (1/2) of the total bill. Each time I have received such a bill I would immediately remit payment of one-half (1/2) of the charges.

All the terms of our agreement are contained in the Final Decree of Divorce, which is the subject of this appeal. Melissa has never refused to accept any of the benefits she has received pursuant to the terms of our agreement. However, Melissa has failed to comply and refuses to comply with any of the terms which would be to my benefit. I have not seen my son in nearly two years because Melissa refuses to allow me to exercise my court-ordered visiting privileges. On two separate occasions, with Melissa's knowledge, I traveled to Pennsylvania for the purpose of exercising my visitation privileges with my son. Both times she refused to allow me to see my son. Yet she has never returned or refused to accept any of the child support payments she has received over the last two years. She continues to accept the benefits she derives from the terms of the Decree of Divorce, but refuses to comply with any of the terms which are not to her benefit.

I have read the above and foregoing affidavit, and every statement contained therein is within my personal knowledge and true and correct.

Melissa responded to Dennis' motion and requested that we strike Dennis' motion as untimely or, alternatively, deny it. Melissa has not, however, denied actual notice of the divorce proceeding or controverted the facts recited in Dennis' affidavit.

II. REQUISITES FOR PETITION FOR WRIT OF ERROR

"[T]o be entitled to reversal by writ of error, a party who did not participate at trial has six months in which to show error on the face of the record." Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.1994). In this case, the parties agree Melissa did not participate at trial, and she filed her petition within six months of the date the judgment was signed. The only element in contention is whether error is apparent on the face of the record. To make this determination, we consider all papers on file in the appeal, including the statement of facts. DSC Fin. Corp. v. Moffitt, 815 S.W.2d 551 (Tex.1991).

III. PERSONAL JURISDICTION

In her first five points of error, Melissa argues that the trial court never acquired personal jurisdiction over her because service was deficient in several respects, and she is not amenable to suit in Texas. We do not reach the merits of these points, however, because Dennis' motion to dismiss is dispositive as to personal jurisdiction.

As noted above, Dennis' motion is based upon the acceptance-of-benefits doctrine, which is well-settled in Texas. The Texas Supreme Court summarized the doctrine as follows:

A litigant cannot treat a judgment as both right and wrong, and if he has voluntarily accepted the benefits of a judgment, he cannot afterward prosecute an appeal therefrom. That is the general rule which appears to be universally recognized. It was announced by this court in the early case of Matlow v. Cox, 25 Tex. 578. The rule is based on the principle of estoppel. It, however, is subject to the exception that " * * * where the reversal of a judgment cannot possibly affect an appellant's right to the benefit secured under a judgment, then an appeal may be taken, * * *.".... Numerous authorities, approaching the exception from a slightly different angle, define it, in effect, in this language: Where an appellant accepts only that which appellee concedes, or is bound to concede, to be due him under the judgment he is not estopped to prosecute an appeal which involves only his right to a further recovery. .... The exception is narrow.

Carle v. Carle, 149 Tex. 469, 472, 234 S.W.2d 1002, 1004 (1950) (citations omitted). If the doctrine applies, the appeal is rendered moot, and the proper disposition is dismissal. City of Mesquite v. Rawlins, 399 S.W.2d 162, 164 (Tex.Civ.App.--Tyler 1966, writ ref'd n.r.e.); see also Aycock v. Pannill, 853 S.W.2d 161, 165 (Tex.App.--Eastland 1993, writ denied).

It is also well-established in Texas that the acceptance-of-benefits doctrine applies in equitable bill of review proceedings, as well as direct appeals. See, e.g., Newman v. Link, 889 S.W.2d 288, 289 (Tex.1994) (bill of review), Carle, 234 S.W.2d at 1003 (direct appeal); Swearingen v. Swearingen, 487 S.W.2d 784, 788 (Tex.Civ.App.--San Antonio 1972, writ dism'd) (bill of review). However, no court has expressly held the doctrine applies in a writ of error proceeding grounded upon defective service. Melissa thus argues that the doctrine does not apply in this proceeding. She also argues that Dennis' motion is untimely, his affidavit may not...