Dessommes v. Dessommes
| Decision Date | 22 December 1970 |
| Docket Number | No. 4944,4944 |
| Citation | 461 S.W.2d 525 |
| Parties | Julia K. DESSOMMES, Appellant, v. Lawrence F. DESSOMMES et al., Appellees. |
| Court | Texas Court of Appeals |
John R. Bryant, Dallas, for appellant.
Bader, Wilson, Menaker & Cox, Marvin Menaker, Thompson, Coe, Cousins, Irons & Porter, R. B. Cousins, Golden, Burrow, Potts & Boeckman, Hawkins Golden, Dallas, for appellees.
Plaintiff sued her former husband, his employer and the insurance companies which funded the employer's pension or retirement plan to which the husband had contributed. Plaintiff and her husband were divorced in February, 1963. A declaratory judgment was sought determining the rights of plaintiff and her divorced husband in the pension plan.
The husband filed a 'plea in bar' asserting that the wife's rights, title and interest in the plan and fund had been adjudicated in the divorce decree and pleaded res judicata thereby. He pleaded that more than four years had elapsed since the divorce decree, and plaintiff's cause of action was barred by limitation. Alternatively, he pleaded res judicata as the result of a 1968 order wherein plaintiff's claim she was a tenant in common of the property in question was denied.
The insurance companies filed bills of interpleader.
Plaintiff filed a motion that the husband's plea be considered as a motion for summary judgment, and the court did so, rendering summary judgment that plaintiff take nothing.
The judgment is erroneous, in our opinion, and it is reversed.
The parties stipulate that the exhibits which reflect the facts material to decision were agreed upon and considered by agreement as a part of the motion for summary judgment.
The final divorce decree rendered in February, 1963, while disposing of some property, made no specific reference to the fund in controversy, but ordered that each party 'keep the property now in possession of such party as their own separate property and estate, subject to any indebtedness that might be against it'.
There is nothing in the record to indicate that the fund in question was 'in the possession' of either the husband or the wife, or that it was not held by the employer and the insurance companies. There is no suggestion in the record it was not community property. Consequently, the divorce decree having made no disposition of the property, . Ex parte Williams (1960), 160 Tex. 314, 330 S.W.2d 605, syl. 2.
The divorce decree did not operate as a bar to the present action. Busby v. Busby (Tex.Sup.1970), 457 S.W.2d 551, 554, syl. 3; Kirberg v. Worrell (Tex.Com.App.1932) 44 S.W.2d 940. See Cline v. Cline (Tex.Civ.App., 1959, writ ref. n.r.e.), 323 S.W.2d 276.
Five days after the date of the divorce decree the wife, through new counsel, filed a motion for new trial alleging as grounds that she...
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...set in operation the statute of limitations against the action for declaratory relief.") (cleaned up); see also, e.g., Dessommes v. Dessommes , 461 S.W.2d 525, 527 (Tex.App.--Waco 1970, no writ).B. Standard of ReviewAppellate courts review declaratory judgments under the same standards as o......
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Yeo v. Yeo
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Dessommes v. Dessommes, 18237
...to an interest in the retirement benefits. A summary judgment for defendants on this ground was reversed on a former appeal. Dessommes v. Dessommes, 461 S.W.2d 525 (Tex.Civ.App.--Waco 1970, no writ). On that appeal the Waco Court of Civil Appeals There is nothing in the record to indicate t......