Burleson v. Burleson

• Decision Date: 04 October 1967
• Docket Number: No. 21,21
• Parties: Mary Chambless BURLESON, Appellant, v. Jeff W. BURLESON, Appellee. . Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 412

419 S.W.2d 412

Mary Chambless BURLESON, Appellant, v. Jeff W. BURLESON, Appellee.

No. 21.

Court of Civil Appeals of Texas.

Houston (14th Dist.).

Oct. 4, 1967.

Rehearing Denied Oct. 25, 1967.

Huggins, Vickery & McConnell and Charles R. Vickery, Jr., Houston, for appellant.

Fred Much and William H. Scott, Jr., Houston, for appellee.

TUNKS, Chief Justice.

This case began when appellee filed suit in the 133rd District Court of Harris County, Texas on January 24, 1966. In that suit he, as plaintiff, sought a judgment for divorce against the appellant, as defendant, and sought a judgment for partition of the community property.

The appellant, as defendant, answered that suit on February 8, 1966 filing a general denial.

On April 25, 1966, while this litigation was still pending, the appellant filed suit in the 8th Judicial District Court of Clark County, Nevada, seeking divorce as plaintiff in that Nevada suit. In that petition she, the appellant, alleged that she had been a bona fide resident of the State of Nevada for a period of six weeks before filing such suit. She did not seek a partition of the community property.

Appellee was, while he was within the State of Texas, served with citation in the Nevada case on April 28, 1966.

On May 18, 1966, judgment was entered in the Nevada case granting the appellant a divorce against the appellee. In that Nevada judgment the Nevada court specifically found and recited that the appellant had been a bona fide resident of the State of Nevada for a period of six weeks before filing such suit.

Appellee was notified immediately by letter of the divorce having been granted in the Nevada case.

At no time did the appellee make an appearance in the Nevada case.

At a later date the appellant as defendant in the Harris County case filed an amended answer and cross action. In such pleadings the appellant alleged the fact of the Nevada divorce decree as a defensive pleading to appellee's petition for divorce. Appellant likewise sought affirmative relief based upon the Nevada decree in the nature of a partition of the community property as between herself and appellee and further affirmative relief to the effect that there be an adjudication of the validity of the Nevada divorce.

Subsequently, the case was transferred to the Court of Domestic Relations No. 3 of Harris County, Texas.

On January 3, 1967, when the case was called for trial on its merits, appellee filed an answer to the cross action theretofore filed by appellant. In that pleading by appellee, for the first time challenged the jurisdiction of the Nevada court and the validity of the decree of that court and sought an adjudication by the Harris County Court of Domestic Relations No. 3 to the effect that the decree of the Nevada court was void. Appellee's attack on the Nevada decree was an allegation that appellant's sworn pleading and testimony (in the Nevada case) to the effect that she had been a resident of that state for 6 weeks before filing the suit were false and, therefore, the Nevada court was without jurisdiction.

As the trial began the appellee was seeking a divorce from appellant, was seeking a partition of the community property and was seeking an adjudication as to the invalidity of the Nevada decree.

As the trial began the appellant was resisting appellee's suit for divorce with a defensive allegation to the effect that the Nevada decree had already effected a divorce. The appellant likewise, was seeking affirmative relief in that she sought a partition of the community property of the two parties and sought a declaratory judgment to the effect that the Nevada decree was valid and that she was actually divorced as of May 18, 1966 by the Nevada court.

At the conclusion of testimony appellee took a non-suit, insofar as he sought a recovery of a divorce from appellant, without prejudice to the affirmative relief sought by him concerning the adjudication as to the invalidity of the divorce procured by appellant through the Nevada court, and without prejudice to the affirmative relief sought by appellant as to the adjudication of the validity of the Nevada decree and the partition of the community property.

The case was submitted to the jury on special issues by which jury found first that the appellant was not a resident of the State of Nevada for six weeks preceding the commencement of her Nevada divorce action and also found that the reasonable necessary attorney's fees incurred by the appellant was in the sum of $2,500.00.

Other findings made by the jury related to certain specific items of property and are not relevant to this appeal.

Based upon that verdict the trial court entered a judgment declaring the Nevada decree to be ineffective and finding that the appellant and appellee were still husband and wife. Since appellee had taken a nonsuit as to his cause of action for divorce, the decree made no disposition of the community property of the two parties.

The judgment of the trial court also awarded to appellant a judgment against appellee in the amount of $2,500.00 as attorney's fees. From an order overruling appellant's motion for a new trial, appellant has duly perfected her appeal to this court.

In the trial court, appellant, pursuant to Rule 184a, Texas Rules of Civil Procedure, duly requested the trial court to take judicial notice of certain laws of the State of Nevada including the following:

'Nevada Rules of Civil Procedure 60(b) provides:

'(b) Mistakes; Inadvertence; Excusable Neglect; Fraud, etc.--On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) fraud, misrepresentation or other misconduct of an adverse party which would have theretofore justified a court in sustaining a collateral attack upon the judgment; (3) the judgment is void; or, (4) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that an injunction should have prospective application. The motion shall be made within a reasonable time, and for reasons (1) and (2) not more than six months after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action."

Appellant's points of error are to the effect that the trial court erred in concluding, pursuant to the jury's verdict, that the Nevada court never acquired jurisdiction in the divorce case filed in that state by appellant and that the trial court erred in holding that the decree of divorce from the Nevada court was void so that the two parties were still husband and wife.

There are some basic legal principles about which the parties do not here differ. It is elementary that the Texas courts under Article 4, Section 1 of the Constitution of the United States and statutes enacted pursuant thereto, are obliged to give full faith and credit to validly entered judgments in the Nevada courts.

It is equally elementary that despite the provisions of the full faith and credit clause, the Texas courts may examine the facts to determine whether or not the Nevada court did in fact have jurisdiction to enter the decree of which full faith and credit is sought. Williams v. State of North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, Callicoatte v. Callicoatte, Tex.Civ.App., 324 S .W.2d 81, Ref. n.r.e.

It is to be noted from the above recitation of the sequence of the proceedings in this litigation that at no time did appellee challenge the validity of the Nevada decree until he filed his answer to appellant's cross action on January 3, 1967. That was more than six months after the date of the Nevada decree.

The question is, then, does the above quoted Rule 60(b) of the Nevada Rules of Civil Procedure bar a Texas court's hearing a challenge to the jurisdiction of the Nevada court in which the decree of May 18, 1966 was granted when the challenge was filed more than 6 months later?

The appellant concedes that the evidence in this case is such as to support the jury's finding to the effect that appellant was not a resident of the State of Nevada for a period of six weeks before she filed her suit in that state. However, appellant contends, and we agree with such contention, that there likewise is evidence which would have supported a jury's findings to the effect that she was, in...