Carter v. Burleson, 191

• Court: Texas Civil Court of Appeals
• Writing for the Court: TUNKS
• Citation: Carter v. Burleson, 439 S.W.2d 381 (Tex. Ct. App. 1969)
• Decision Date: 19 February 1969
• Docket Number: No. 191,191
• Parties: Mary Francis CARTER, Appellant, v. Vada M. BURLESON, Individually and as Independent Executrix of the Estate of Jeff W. Burleson, Deceased, Appellee. . Houston (14th Dist.)

Page 381

439 S.W.2d 381

Mary Francis CARTER, Appellant, v. Vada M. BURLESON, Individually and as Independent Executrix of the Estate of Jeff W. Burleson, Deceased Appellee.

No. 191.

Court of Civil Appeals of Texas Houston (14th Dist.).

Feb. 19, 1969.

Rehearing Denied March 19, 1969.

Charles R. Vickery, Jr., D. Graham Moore, Vickery & McConnell, Houston, for appellant.

Wm. H. Scott, Houston, for appellee.

TUNKS, Chief Justice.

This litigation began as a suit in Harris County, Texas, wherein Jeff Burleson sought a divorce from his wife, Mary Chambless Burleson. After Jeff Burleson's suit was filed, his wife filed suit for divorce against him in the 8th Judicial District Court of Clark County, Nevada. On May 18, 1966, while the Harris County case was still pending, the Nevada court rendered judgment granting Mary Chambless Burleson a divorce. Thereafter she filed an answer in the Harris County case alleging the Nevada decree as a defense to Jeff Burleson's suit for divorce. She also filed a cross-action seeking partition of the community property. That case proceeded to trial in the Court of Domestic Relations No. 3 of Harris County, Texas, before a jury, in January, 1967. At the conclusion of the evidence, the husband took a non-suit as to his suit for divorce, leaving the wife's cross-action the only matter to be tried. The jury found that the wife had not been a bona fide resident of Nevada for six weeks before filing suit for divorce there. Upon that finding the trial court denied the wife a partition of the community, rendered judgment decreeing that the marriage continued and allowed the wife attorney's fees in the amount of $2,500.00. The wife appealed to this Court. In the case of Burleson v. Burleson, Tex.Civ.App., 419 S.W.2d 412, we held that the Nevada decree effectively terminated the marriage on May 18, 1966, affirmed the wife's recovery of attorney's fees and remanded the case to the trial court for a trial of the issues as to the partition of the jointly owned property.

After the first trial of this case, Jeff Burleson died. His will, designating his mother, Mrs. Vada Burleson, independent executrix, was admitted to Probate in Scurry County, Texas. By agreement of the attorneys the court signed an order substituting the mother, in her representative capacity, as party plaintiff. Actually, at the time this order was signed, the plaintiff's suit had been dismissed by Jeff Burleson. However, the parties agreed that Mrs. Vada Burleson, in her representative capacity, was effectively made a party to the wife's cross-action for partition of the jointly owned property.

Also after the first trial Mary Burleson remarried and her name became Mary Francis Carter.

The cross-action for the partition of the jointly owned property was tried before the court. The trial court rendered judgment dividing what he found to be the community assets as of May 18, 1966, the date of the Nevada court's decree terminating the marriage . From that judgment, Mary Carter perfected appeal. Her points of error are directed at the trial court's ruling as to three items of property. One, the court awarded to the executrix a cause of action for alienation of affections which was the subject matter of a law suit filed by Jeff Burleson during the marriage. Two, the court deducted the judgment for the $2,500 attorney's fees recovered by the wife from the jointly owned property rather than charging it all to the husband's share. Three, the court awarded to the wife one-half of the interest which it found, as a fact, had accrued on May 18, 1966, on three savings accounts, owned by the community, but gave her no part of the interest earned by the accounts after that date.

The appellee, Mrs. Vada Burleson, has not presented any cross points of error as to the trial court's treatment of any item of property, but her brief contains what is called 'Statement of Appellee's Point of Fundamental Error.' This point is directed to that language of the trial court's judgment which decrees that the cross-plaintiff, Mrs. Carter, recover from the cross-defendant, Mrs. Vada Buleson, Individually and as temporary executrix, that portion of the jointly owned property awarded to cross-plaintiff.

The trial court's order substituting Mrs. Vada Burleson as a party to the lawsuit clearly substitutes her only in her representative capacity as independent executrix of the estate of Jeff Burleson. After she was so substituted, the cross-plaintiff filed an amended pleading in which she named as cross-defendant, 'Vada Burleson, individually and as independent executrix of the estate of Jeff W. Burleson, deceased.' The trial court's judgment decree that cross-plaintiff recover from Vada Burleson, individually and in her representative capacity, certain specific items of property as well as a money judgment for about $16,000.00 representing cross-plaintiff's share of jointly owned cash, of which Mrs. Burleson had control in her representative capacity.

The record shows that Mrs. Vada Burleson was never served with citation after the filing of the amended cross-action wherein she was named, individually, as cross-defendant. The record further shows that Mrs. Vada Burleson never executed any waiver of citation. The trial court's judgment, however, recites that the case came on for trial 'when came the Cross-Defendant, Vada M. Burleson, individually and as independent executrix of the estate of Jeff W. Burleson, deceased, and announced ready for trial * * *.' The judgment was approved as to form by Mrs. Vada Burleson's attorney.

Rule 120, Texas Rules of Civil Procedure, provides that 'The defendant may, in person, or by attorney, or by his duly authorized agent, enter an appearance in open court.' The appellee, in her brief, contends that the trial court never acquired jurisdiction over her in her indvidual capacity so that the judgment against her in that individual capacity is fundamental error. However, the pleadings name her in her individual capacity as cross-defendant and the trial court's judgment recites that she, in her individual capacity, appeared and announced ready for trial. There is nothing in the record before us except the protestations in the appellee's brief that shows that Mrs. Vada Burleson did not, in fact, so appear and announce ready as indicated by the trial court's judgment. We are thus bound by the recitations therein. McDonald v . Debco Corp. of Texas, 350...