Busby v. Busby

• Decision Date: 29 January 1969
• Docket Number: No. 11653,11653
• Parties: Mary Lou BUSBY, Appellant, v. Earl E. BUSBY, Appellee. . Austin
• Court: Texas Court of Appeals

Page 687

439 S.W.2d 687

Mary Lou BUSBY, Appellant, v. Earl E. BUSBY, Appellee.

No. 11653.

Court of Civil Appeals of Texas.

Austin.

Jan. 29, 1969.

Appellee's Rehearing Denied March 26, 1969.

Appellant's Rehearing Granted March 26, 1969.

Appellee's Third Motion for Rehearing Denied April 16, 1969.

Mitchell, Gilbert & McLean, Phillip W. Gilbert, Charles E. Johanson, Austin, for appellant.

Jones, Blakeslee, Minton, Burton & Fitzgerald, Charles R. Burton, Austin, for appellee.

PHILLIPS, Chief Justice.

This suit was brought by a former wife against her former husband for one-half of certain Air Force retirement benefits which had become due the husband but which had not been included in the division of the property at the time of the divorce.

The trial was to the court sitting without a jury and at the conclusion thereof, judgment was entered that the wife take nothing by her suit. The trial court filed findings of fact and conclusions of law and the wife has duly perfected her appeal to this Court.

We reverse and render.

I.

The appellant wife is before this Court on three points of error, the first being that of the court in rendering judgment against her because her cause of action for a division of her husband's Air Force retirement benefits was not barred under the doctrine of res judicata by the judgment in Cause No. 117,417, Mary Lou Busby v. Earl E. Busby in the 126 District Court of Travis County, Texas; the error of the court in its conclusion of law to the effect that the wife's undivided one-half interest in appellee husband's retirement benefits could no longer be asserted because she had failed to request a division of such benefits in her prior divorce action; the error of the court in its conclusion of law to the effect that the appellant wife's cause of action for her undivided interest in her former husband's retirement benefits was barred under the doctrine of res judicata by the judgment in her prior divorce action, since that prior judgment had not awarded any interest in such benefits to either party.

We sustain these points.

Briefly summarized, the trial court's findings of fact were to the effect that the defendant had joined the Air Force on September 14, 1942; that he had married the plaintiff on March 1, 1946; that the parties remained married until June 25, 1963, at which time they were divorced by judgment of the 126th Judicial District Court of Travis County, Texas, in Cause No. 117,417; that at that time the defendant had completed more than twenty years and six months of active service with the United States Air Force, vesting him with the right to retirement at a monthly pay rate for the remainder of his life based upon his permanent rank of Major and 21 years of service; that the parties had not entered into any agreement regarding their property rights in the retirement benefits prior to their divorce; and that the divorce judgment had listed certain properties acquired by the plaintiff and defendant during their marriage, and, with the exception of the homestead, had ordered the division of the items of property so listed, but that the divorce judgment had not listed the retirement benefits of the defendant.

The trial court's conclusions of law were to the effect that the defendant's retirement benefits were the community property of the plaintiff and the defendant; that the court which had decreed their divorce had jurisdiction to partition and apportion those benefits between the plaintiff and the defendant; but that the prior judgment of divorce, which had partitioned certain other properties, made the plaintiff's cause of action a matter res judicata.

The divorce decree reads, in part, as follows:

'The Court further finds that plaintiff and defendant acquired out of community funds, during their said marriage, the following real and personal property:

A house and lot located at 4703 Round Up Trail, Austin, Travis County, in which home plaintiff and defendant have an equity;

Household furniture and effects located in said home;

A 1957 Mercury automobile;

A 1956 Rambler automobile; and

Funds on deposit

And it is hereby ORDERED, ADJUDGED and DECREED by the Court that the house located at 4703 Round Up Trail, Austin, Travis County, Texas, be, and the same is hereby set aside for the use and benefit of plaintiff and the minor child until the minor child shall attain the age of twenty-one years; and that all payments made on said home at 4703 Round Up Trail, Austin, Travis County, Texas, on the mortgage of said home, and all taxes, insurance and repairs to the home, hereafter made by the plaintiff, Mary Lou Busby, are to be applied to plaintiff's separate interest in said real property; and

It is further ORDERED, ADJUDGED and DECREED by the Court that the household furniture and effects and the 1957 Mercury automobile shall be, and the same are hereby awarded to plaintiff, Mary Lou Busby, as her separate property; and

It is further ORDERED, ADJUDGED and DECREED by the Court that the 1956 Rambler automobile shall be and same is hereby awarded to the defendant, Earl E. Busby.

The Court further ORDERS that all bank accounts as of this date are to be divided equally between plaintiff and defendant.'

The appellee contends that the court having partitioned the property in the divorce decree, mentioned above, the matter is res judicata and cannot be reopened, citing Ogletree v. Crates, 363 S.W.2d 431 (Tex.1963). Ogletree is not a divorce case; however, Ladd v. Ladd, 402 S.W.2d 940 (Tex.Civ.App. Amarillo 1966, writ ref'd n.r.e.) and Foster v. Foster, 366 S.W.2d 680 (Tex.Civ.App. Amarillo 1963, writ dism'd) both cited by appellee, are divorce cases wherein the Courts refused to allow litigants in former divorce actions to bring alleged community property into litigation that had not been included in the former divorce decrees. In each of these latter cases the Court...