Garrison v. Texas Commerce Bank

• Decision Date: 17 November 1977
• Docket Number: No. 16943,16943
• Court: Texas Court of Appeals
• Parties: Barnett Wade GARRISON, Appellant, v. TEXAS COMMERCE BANK, Appellee. (1st Dist.)

Page 451

560 S.W.2d 451

Barnett Wade GARRISON, Appellant,

v. TEXAS COMMERCE BANK, Appellee.

No. 16943.

Court of Civil Appeals of Texas, Houston (1st Dist.).

Nov. 17, 1977.

Rehearing Denied Dec. 15, 1977.

Schleider & Ewing, Ben H. Schleider, Jr., Harry G. Dippel, Paul S. Francis, Houston, for appellant.

Liddell, Sapp, Zivley & Brown, Willis Witt, R. Bruce LaBoon, John L. Hopwood, Houston, for appellee Texas Commerce Bank National Association, Temporary Admin. of the Estate of Candace Mossler, Deceased.

Lackshin & Nathan, Herbert N. Lackshin, Bernus Wm. Fischman, and A. R. Schwartz of counsel, of Houston, for appellees Rita Johnson Wilder and Norman Johnson.

John H. Holloway, Houston, for appellees Daniel Mossler and Christopher Mossler.

COLEMAN, Chief Justice.

Barnett Wade Garrison appeals an order dismissing his contest to the probate of the purported last will and testament of Candace Mossler, Deceased, on the ground that he was not a "interested person" as required by the probate laws of the State of Texas. Mr. Garrison contends that he was a surviving spouse of Candace Mossler Garrison, therefore a person interested in the estate as provided by Section 3(r) Tex.Prob.Code Ann.

The evidence reflects that on the 3rd day of December, 1975 an order was entered in the Court of Domestic Relations No. 2 of Harris County, Texas, in Cause No. 974,099 entitled In the Matter of the Marriage of Candace Mossler Garrison and Barnett Garrison. This order recites that the cause came on to be heard on the 21st day of October, 1975, and that on the 30th day of October, 1975, the court being of the opinion that the "material allegations in petitioners original petition for divorce . . . have been proved by full and satisfactory evidence . . . it finds that a divorce should be granted to the petitioner, and the petitioner's name be changed and restored to Candace Mossler." The court then recited in the order that a Master in Chancery had been appointed and that the property rights of the parties "are not determined at this time, but this court retains jurisdiction of the property rights" of such parties until finally determined at a future date. Finally the court "Ordered, Adjudged and Decreed that an order be, and the same is hereby entered, that the bonds of matrimony between the petitioner Candace Mossler Garrison and the respondent Barnett Garrison be and they are hereby dissolved, and a divorce is granted to petitioner Candace Mossler Garrison . . . It is further Ordered, Adjudged and Decreed that the property rights of the parties herein are not determined at this time, but this court retains jurisdiction of the property rights of the parties until the entry of a final decree of divorce in this cause." (italics added).

In an order subsequently entered requiring Candace Mossler Garrison to provide security for costs the court stated:

"It is further Ordered that the requirement that Petitioner provide security for costs under this order shall not be construed as an adjudication of ultimate liability for costs, it being the intention of the court to make a determination of ultimate liability for cost at the time of entry of the final judgment herein."

On October 26, 1976 before the hearings of the Master in Chancery were concluded Candace Mossler Garrison died. Subsequently a will and codicil was presented for probate and a contest was filed by Barnett Garrison. The temporary administrator filed a motion in limine requesting that Barnett Garrison be required to show that he was a person interested in the estate as contemplated by law and that in the absence of such proof his contest to the probate of the will be dismissed.

The probate court entered an order sustaining the motion in limine and dismissing the contest which recited:

"After being fully apprised, the Court finds that Contestant, Barnett Wade Garrison, was divorced from the Deceased, Candace Mossler, by a decree of divorce rendered orally by The Honorable Herman Mead, Presiding Judge of the Court of Domestic Relations Number Two of Harris County, Texas, on the Third day of October, 1975, and formally entered by written decree on the Third day of December, 1975."

It is well settled that a cause of action for a divorce is purely personal and that the cause of action for a divorce terminates on the death of either spouse prior to the rendition of a judgment granting a divorce. Ex Parte Cahill, 286 S.W.2d 210 (Tex.Civ.App. Beaumont 1955, no writ history); 1 Tex.Jur.2d, Abatement & Revival § 105; 24 Am.Jur.2d, Divorce & Separation § 182.

A judgment to be final must dispose of all issues and parties in the case. Northeast Independent School District v. Aldridge, 400 S.W.2d 893 (1966); Hargrove v. Insurance Inv. Corporation, 142 Tex. 111, 176 S.W.2d 744 (1944).

Rule 41, Tex.R.Civ.P. authorizes a trial court to sever claims against a party in a law suit and to proceed with each claim separately. A severance divides a lawsuit into two or more independent causes, each of which terminates in a separate, final and enforceable judgment.

Rule 174, Tex.R.Civ.P. authorizes the trial court in the furtherance of convenience and to avoid prejudice to order a separate trial of any claim or issue. The separate trial results in an interlocutory order determining the claim or issue so tried, but there is only one final judgment entered after all claims and issues involved in the suit have been tried. An issue that is tried separately under Rule 174 need not constitute a complete lawsuit in itself. Severance is possible only where the suit involves two or more separate and distinct causes of action. Each of the causes in which the action is severed must be such that the same might properly be tried and determined if it were the only claim in controversy. The severable cause of action may be tried separately under the provisions of rule 174, but an issue that might properly be the subject of a separate trial is not necessarily severable. Kansas University Endowment Association v. King, 162 Tex. 599, 350 S.W.2d 11 (1961).

Tex.Family Code Ann. § 3.63 (1974) provides:

"In a decree of divorce or annulment the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage."

The language of the family code quoted above is mandatory. It has been held that the trial court is not authorized to sever the question of the manner in which the estate of the parties is to be divided between them from the cause of action for divorce. Angerstein v. Angerstein, 389 S.W.2d 519 (Tex.Civ.App. Corpus Christi 1965, no writ history). The severance of the property issues from the cause of action for divorce would constitute error on the part of the trial court. Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299 (1960).

In Webb v. Jorns, 488 S.W.2d 407 (Tex.1972) the court said ". . . The order of October 28, 1970, dismissing the hospital was an interlocutory order, because it did not dispose of all parties and issues in the pending suit. Since the trial court did not sever the cause against the hospital from the rest of the case, the interlocutory judgment did not become a final judgment until it was merged into the final judgment which the court rendered on January 18, 1971, disposing of the whole case. . . . "

The judgment entered in the Court of Domestic Relations No. 2 on December 3, 1975, did not purport to sever the divorce action from the property issues. On the contrary the court clearly stated that he retained jurisdiction "of the property rights of the parties until the entry of a final decree of divorce in this cause." Since the court did not specifically sever the issue of property rights from the issue of divorce, we will not presume that the court intended such an action since such a severance would have constituted error.

It is settled that a trial court has power to set aside an interlocutory judgment at any time prior to the entry of a final judgment. Texas Crushed Stone Company v. Weeks, 390 S.W.2d 846 (Tex.Civ.App. Austin 1965, writ ref'd n.r.e.).

It is clear from the order entered by the Court of Domestic Relations that the trial court intended to render a judgment dividing the community property at a later time and thereafter to enter the final judgment in the cause. The trial court must be considered to have ordered a separate trial under Rule 174(b). The order entered was an interlocutory judgment.

In those jurisdictions where interlocutory judgments of divorce are required or authorized it is a general rule that after the entry of the interlocutory judgment or decree, the status of the proceeding is that of a pending action and it abates on the death of either party before the final decree is granted. In the absence of specific statutory authority a final judgment of divorce cannot thereafter be rendered. 24 Am.Jur.2d, Divorce & Separation § 435, p. 559.

This rule has been applied by the courts of the State of Texas. In Kinney v. Tri-State Telephone Co., 222 S.W. 227 (Tex.Comm'n App. Section B 1920, jdgmt. adopted) the court had under consideration a case in which an interlocutory decree of divorce had been entered by the Superior Court of the State of California, County of Los Angeles. In accordance with the law of California at that time a final divorce decree could not be entered until the period of one year from the entry of the interlocutory decree had expired. Under the California law it was necessary that a motion for final judgment be presented after the expiration of the one year period. Some two years after the entry of the interlocutory judgment the plaintiff in the divorce suit died. After his death a motion to make the judgment of divorce final was presented in the court of California and was granted. Thereafter, Nellie Kinney, the defendant in the divorce action, claimed certain death benefits as the wife of H. B. Kinney....