Campbell v. Campbell

• Decision Date: 21 November 1962
• Docket Number: No. 11035,11035
• Citation: 362 S.W.2d 904,3 A.L.R.3d 1206
• Parties: Doris M. CAMPBELL, Appellant, v. William E. CAMPBELL, Jr., Appellee.
• Court: Texas Court of Appeals

Page 904

362 S.W.2d 904

3 A.L.R.3d 1206

Doris M. CAMPBELL, Appellant, v. William E. CAMPBELL, Jr., Appellee.

No. 11035.

Court of Civil Appeals of Texas, Austin.

Nov. 21, 1962.

Rehearing Denied Dec. 12, 1962.

John P. Koons, Dallas, for appellant.

Shields, Jones & Whittington, Dallas, for appellee.

HUGHES, Justice.

This is a suit for divorce brought by Doris M. Campbell, appellant, against William E. Campbell, Jr., in which the Trial Court sustained, 'Defendant's Plea to the Jurisdiction and Motion to Quash' and dismissed appellant's suit without a trial on the merits. In this, we believe the Court erred.

It is the contention of appellee that there was a valid subsisting judgment of divorce between the parties rendered January 2, 1958, ¹ in the Domestic Relations Court of Dallas County, in Cause No. 57474 and that such judgment, there being no allegations by appellant of a marriage to appellee subsequent to January 2, 1958, destroys the jurisdiction of the Court in this case and is res adjudicata of the issue of divorce pleaded by appellant herein.

It is our opinion that this judgment of January 2, 1958, was vacated by a valid order ² of the Court rendering it and that, in any event, appellee is estopped to attack the validity of such order. With respect to such judgment and order, the record shows:

On January 27, 1958, William E. Campbell, Jr., filed, in his own handwriting, a motion for a new trial. This motion was never formally acted upon.

On June 5, 1958, a joint motion was filed on behalf of the parties, plaintiff and defendant, to vacate such judgment. We copy such motion:

'Come now the Plaintiff, Doris M. Campbell, and the Defendant, William E. Campbell, Jr., in the above styled and numbered cause, and file this their joint motion to vacate judgment heretofore entered in this cause, and in support thereof would respectfully show as follows:

'I.

'That heretofore, to-wit, on or about the 2nd day of January, 1958, this court granted judgment of divorce unto plaintiff, Doris M. Campbell, together with other relief, in particular approving a community property settlement entered into between plaintiff and defendant, which agreement was dated 14th November, 1957; that copy of the judgment subsequently entered is hereunto attached as Exhibit 'A'.

'II.

'That your plaintiff and defendant would show that both are desirous of re-entering their status of previous matrimony as well as all incidentals thereto, including the ownership of property on the basis of ownership prior to the granting of the above divorce; that by virtue of certain religious complications, as well as financial entanglements, and for the benefit of all concerned, the best interests of justice would be sustained if the judgment heretofore rendered were set aside.

III.

'That sufficient cause exists for the vacating of said judgment.

'WHEREFORE, PREMISES CONSIDERED, plaintiff and defendant jointly pray that judgment heretofore granted herein be set aside in all things, including the division of property as per property settlement approved; and that judgment be entered dismissing this cause; that costs be assessed against the defendant and that these parties go jointly hither without day.'

We also copy the Court's order granting the foregoing motion:

'WHEREAS, on this the 12 day of June, 1958, came on to be heard the joint motion of the Plaintiff and Defendant to vacate the judgment of divorce heretofore entered by this Court on the 2nd day of January, 1958, and entered in the minutes of this Court on the 20th day of January, 1958, together with their motion to nullify and void the property settlement previously entered into by and between the Plaintiff and Defendant on the 14th day of November, 1957, as approved and made a part of the judgment of divorce entered in this Court;

'And the Court being of the opinion that although thirty (30) days had expired since the rendition of said judgment and since the filing of Defendant's Motion for new trial, that under the law sufficient cause exists for the vacation of the orders above referred to.

'ACCORDINGLY, IT IS ORDERED, ADJUDGED AND DECREED that the judgment of divorce rendered by this Court on the 2nd day of January, 1958 and entered on the Minutes of this Court on the 20th day of January, 1958, divorcing the Plaintiff, DORIS M. CAMPBELL, from WILLIAM E. CAMPBELL, JR., be and the same is hereby set aside for all purposes, and the property settlement as approved by this Court and referred to in said judgment of divorce is likewise set aside and held for naught, so that the Plaintiff and Defendant are of this day and have been husband and wife, and their property rights exist the same as though no property settlement had ever been adjudicated by this Court.

'Further, on joint motion of the Plaintiff and Defendant, to after vacating this judgment have this cause dismissed, the same is hereby dismissed without prejudice to either Plaintiff or Defendant, at Defendant's cost.

'For all of which, let execution issue.

'Signed this 12 day of June, 1958.

's/ Beth Wright

Judge, Domestic Relations

Court of Dallas County, Texas'

The present suit was originally filed November 26, 1958. It was dismissed for want of prosecution June 26, 1960. Motion to re-instate the suit was filed by plaintiff October 17, 1960, which recited that defendant agreed to such re-instatement. This motion was granted October 17, 1960, the Court finding that defendant agreed to such re-instatement.

Appellee filed an original answer herein on August 15, 1961. This answer was formal.

On September 8, 1961, appellee filed an amended answer in which he plead 'Defendant admits that the parties have been married approximately 14 years. * * *'

By a second Amended Answer, appellee pleaded:

'Pleading further, if the same be necessary, Defendant would show the Court that he has made every effort since the separation of the parties in 1957 to effect a reconciliation with his wife and to save his home and family, and still desires to do so. That in spite of these efforts, the Plaintiff, while at all times leading him to believe that he would be permitted to return to his home, has refused to permit him to return. That in an attempt to effect such reconciliation, the Defendant has taken his wife and son on numerous trips to Colorado, Disneyland in California, Las Vegas, Nevada, Washington, D. C., Hot Springs, Arkansas, Miami, Florida and Nassau, and other places. In addition, he has purchased many articles for her, including a 1961 Cadillac automobile, diamond wristwatch, evening sweater, movie camera, new furniture and decorations in living-room, dining-room, master bed-room, den and breakfast-room.'

Appellant's current pleading, filed February 9, 1962, alleges that she and appellee were married February 22, 1947, when she was eighteen years of age and her husband was 28 years of age; that they have one son, now 12 years of age. She alleged a continuance of the marriage since its occurrence. Referring to the prior divorce suit she alleged that 'upon the promise that he (appellee) would immediately return home and that each would for a period of six months attempt to salvage their marriage, plaintiff did agree to the setting aside of the judgment; that in accordance therewith, the defendant did write unto the plaintiff a letter, substantiating their intent and incorporating the matters recited above therein.'

On March 5, 1962, appellee filed his plea of res adjudicata and, for the first time, took the position that 'the parties are not married in compliance with the statutes of the State of Texas.'

The record also discloses that in January, 1958, when the divorce judgment in the prior cause was rendered the parties made a settlement of their property rights by an agreement containing six typewritten pages and an attached exhibit containing thirtyseven pages 'more or less.'

In Slattery v. Uvalde Rock Asphalt Co. the Beaumont Court of Civil Appeals, with outright approval by the supreme Court, held, 'it is our conclusion that, on agreement of the parties, the court, at a subsequent term, may vacate a judgment and reinstate the cause on its docket as a pending action.' 140 S.W.2d 987, writ. ref. (1940).

This case was decided before the effective date of our present Rules of Civil Procedure, September 1, 1941. ³ Rule 329b, subd. 5, of these rules provides, in part: 'After the expiration of thirty (30) days from the date the judgment is rendered or motion for new trial overruled, the judgment cannot be set aside except by bill of review for sufficient cause, filed within the time allowed by law.'

It is our opinion that this rule did not bring about a change in the law previously existing so as to render the opinion in Slattery, supra, obsolete or inapplicable. The basis for this conclusion is to be found in Ridley v. McCallum, Dist. Judge, 139 Tex. 540, 163 S.W.2d 833 (1942).

This case involved facts arising before the new rules became effective. The Court there was concerned with the effect of an order of the District Court setting aside a judgment rendered at a previous term on the motion of one of the parties to the suit. We quote from that opinion:

'The power of the court over its judgment having ceased with the end of the term, the proceeding below on the motion must stand on the same footing as a collateral attack upon a judgment. * * *

'Our conclusion is that the default judgment of November 6, 1940, against Dallas Cartage Company is a final judgment, valid on its face and on the face of the record. From this it follows that the trial court was wanting in power to set it aside at a subsequent term of the court, either upon the motion of respondents, above copied, or upon its own motion. Its validity may be challenged in no other way than by a suit in equity in the nature of a bill of review.'

This case construed Sec. 30 of Art. 2092, Vernon's Ann.Civ.St., which contained language identical with the...