Deen v. Deen, 17553
| Decision Date | 21 June 1974 |
| Docket Number | No. 17553,17553 |
| Citation | 511 S.W.2d 612 |
| Court | Texas Court of Appeals |
| Parties | Betty L. DEEN, Appellant, v. F. Edgar DEEN, Jr., Appellee. |
C. Coit Mock, Fort Worth, for appellant.
Fillmore, Lambert, Farabee & Purtle and Clyde Fillmore, Wichita Falls, for appellee.
F. Edgar Deen, Jr. obtained a decree of divorce from Betty L. Deen . A little less than six months later, in the same court, such wife filed Bill of Review suit by which she sought to have the divorce set aside.
Following a hearing the trial court entered its order dismissing the wife's Bill of Review suit, upon statement that the action was one sustaining motion therefor by the husband.
A chronological statement is deemed advisable:
Cause No. 94, 536--B (Divorce)
June 21, 1973--'Waiver' and 'Property Settlement Agreement' signed
June 22, 1973--Petition for divorce filed
August 22, 1973--Judgment for divorce
September 21, 1973--Judgment became final
December 13, 1973--Judgment (purportedly) vacated by trial court decree
December 12, 1973--Service of 'Citation for Personal Service' on defendant wife.
December 3, 1973--Petition filed. (No cross-action for divorce sought.)
December 3, 1973--Service of 'Citation for Personal Service' on defendant husband
January 2, 1974--Answer praying 'that Plaintiff take nothing by this suit, that it be dismissed', etc.
January 3, 1974--Order of dismissal of Bill of Review suit. Recitation: 'On this the 3rd day of January, 1974, came on to be considered the motion of F. Edgar Deen, Jr. to dismiss the above entitled and numbered cause . . .' followed by Order, Judgment, and Decree that the cause be dismissed.
NOTE: No Findings of Fact or Conclusions of Law requested or filed .
From a record, approved by the attorneys as the statement of facts, it appears that during the course of the hearing before the court on January 3, 1974, trial judge did not at first know that the husband had prayed for the dismissal of the Bill of Review suit. Indicated, therefore, was that the judge thought the parties had announced ready on the merits of the Bill of Review suit. The judgment recites that the hearing was on the husband's motion to dismiss the Bill of Review suit and says nothing concerning the intent that the judgment be upon the merits of the wife's want of entitlement, by trial, to have vacation of the judgment in Cause No. 94,536--B and furthermore a 'take nothing' decree in her behalf, i.e., judgment for the wife that her husband was not entitled to any relief upon his suit for divorce.
Upon the record made--if permissible to treat the judgment as made upon the merits of the wife's Bill of Review suit--she would have undoubtedly been entitled to exactly that judgment by the trial court. This is not permissible in view of the construction we must make of the order of dismissal.
Were we able to treat the judgment as having been made upon the merits of the wife's Bill of Review suit we could not only reverse the judgment of dismissal but could render the correct judgment that the husband 'take nothing' upon his petition for divorce for had such actually been the trial the right of the husband to divorce as well as the wife's right to have the prior divorce decree vacated would have been included in the suit. McDonald, Texas Civil Practice, p. 335, 'New Trial', Sec. 18.29, ; 22 Tex.Jur.2d, p. 576, 'Equity', Sec. 33 '(Bills of review) Trial'; 34 Tex.Jur.2d, p. 155, 'Judgments', Sec. 254, 'Nature and extent of inquiry and relief; Single proceeding'. It is exactly this that the wife seeks.
Of course, had the trial court, in a proper exercise of discretion, decided to divide the case so that there may be trial of a plaintiff's right to have vacation of a former judgment, leaving to be tried thereafter--and in the event of the vacation of the judgment--a trial of the issue of whether the same or different judgment upon trial (or retrial) of the merits, there would not be the requisite final adjudication from which appeal might be perfected until after such deferred trial (or retrial) had been held, in the event the initial decision made necessary the additional trial. See 34 Tex.Jur.2d, p. 155, 'Judgments', Sec. 254, 'Nature and extent of inquiry and relief; Single proceeding'.
The judgment which dismissed the wife's Bill of Review suit was a judgment which would be final and appealable. Construably the order of dismissal should be treated as action which obviated necessity to rule upon the merits of the husband's right to divorce.
The record indisputably reflected (indeed it is admitted) that at time of the entry of...
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Deen v. Deen
...the court. Antecedent history relative to events in the case appears by opinions: Deen v. Kirk, 508 S.W.2d 70 (Tex.Sup.1974); Deen v. Deen, 511 S.W.2d 612 (Fort Worth, Tex.Civ.App., 1974, no writ history). Note by the prior opinion of this Court that an order dismissing the wife's suit to s......