Glasscock v. Citizens Nat. Bank, 1018

• Decision Date: 09 June 1977
• Docket Number: No. 1018,1018
• Parties: Mary Jane GLASSCOCK, Appellant, v. CITIZENS NATIONAL BANK et al., Appellees.
• Court: Texas Court of Appeals

Page 411

553 S.W.2d 411

Mary Jane GLASSCOCK, Appellant, v. CITIZENS NATIONAL BANK et al., Appellees.

No. 1018.

Court of Civil Appeals of Texas, Tyler.

June 9, 1977.

Rehearing Denied July 7, 1977.

C. H. Gilmer, Rocksprings, for appellant.

Patrick J. Pape, San Antonio, for appellees.

McKAY, Justice.

This case arises out of a suit by appellees, Citizens National Bank of San Antonio and Jess McNeel, against Thomas F. Glasscock (Glasscock) seeking to set aside a deed from Thomas F. Glasscock to his wife, Mary Jane Glasscock, appellant, covering his interest in the community in lands in Edwards County, Texas, alleging such conveyance to have been for the purpose of hindering, delaying and defrauding appellees. Appellant's answer alleged, among other things, such suit constituted a collateral attack on a prior judgment of the 63rd District Court of Edwards County, Texas, divorcing appellant from Glasscock and approving the property settlement made between them. The trial court granted judgment on the jury verdict for appellees, declaring the said conveyance void.

Appellant brings two points of error, the second being subdivided into two parts. Point one complains that the trial court erred in overruling appellant's "plea to the court for an instructed verdict showing this suit to be a collateral attack upon the prior valid, final judgment of such Court." Point two complains that the trial court erred in overruling appellant's motion for new trial "(a) for plaintiffs' failure to make lessees in possession of the property in question parties to such suit, they being necessary and indispensable parties; (b) because of irreconcilable conflict in the jury answers to Special Issues Nos. 4 and 5." ¹ With these in mind we will examine the facts.

On December 15, 1973, Glasscock executed a warranty deed conveying his interest in and to approximately 3,270 acres of land which was community property to appellant. The consideration recited in this conveyance was "in settlement and reimbursement of advances to me by Mary Jane Glasscock, my wife, from her separate property and estate." No mention was made in the deed of an anticipated divorce between Glasscock and appellant. On May 8, 1974, appellant filed her petition for divorce with the 63rd District Court of Edwards County the same court as in this cause, alleging, among other things, that she continued to live with Glasscock as his wife until on or about February 25, 1974, on which date they separated. On June 21, 1974, Glasscock executed a waiver of citation and the same was filed in the cause on July 18, 1974. On July 18, 1974, appellant, in person and by and through her attorney appeared before the court and was granted a decree of divorce which was signed and entered on October 1, 1974. This decree recited "that the property settlement heretofore effected between the parties be, and the same is hereby approved . . ."; however, no written property settlement agreement was attached to the decree or introduced into evidence in the present case. In fact, the record reveals that both appellant and Glasscock testified that other than the deed in question no formal property agreement or settlement was reached between the parties. Appellees were not parties to this divorce suit.

On August 27, 1974, appellees recovered judgments totalling $32,951.12 plus interest, attorney's fees and court costs against Glasscock. Appellees recorded abstracts of these judgments in Edwards County and had writs of execution issued on the judgments and delivered to the sheriff who returned the same nulla bona on November 4, 1974, the date of the filing of the present suit.

Appellant contends by her first point that the decree of divorce approving the property settlement between Glasscock and appellant is a final, valid judgment, conclusive on appellees, and that the present suit amounts to no more than a collateral attack on such judgment. We disagree. The doctrines of res judicata and collateral estoppel only apply to parties to the prior suit and their privies. Benson v. Wanda Petroleum Co., 468 S.W.2d 361, 363 (Tex.1971); Swilley v. McCain, 374 S.W.2d 871, 874 (Tex.1964). Privity connotes those who are in law so connected with a party to the judgment as to have such an identity of interest that the party to the judgment represented the same legal right. Benson v. Wanda Petroleum Co., supra. Appellees, who at the time of the divorce decree were unsecured, nonjudgment creditors of Glasscock, were not parties to the divorce suit and were not so connected with Glasscock as to have such an identity of interest that Glasscock represented the same legal right; in fact, being in a debtor-creditor relationship Glasscock represented a right adverse to appellees. Moreover, it appears that appellees could not be bound by the divorce decree since the court in a divorce action has no power to disturb the rights which creditors lawfully have against the parties or to award the property to the creditor's prejudice. Broadway Drug Store of Galveston v. Trowbridge, 435 S.W.2d 268, 270 (Tex.Civ.App.-Houston (14th Dist.) 1968, no writ); Swinford v. Allied Finance Company of Casa View, 424 S.W.2d 298, 301 (Tex.Civ.App.-Dallas 1968, writ dism'd); 3 Speer's Marital Rights in Texas, Sec. 840, pp. 200-201; Texas Family Law, Simpkins (Speer's 5th Ed.) Sec. 5:71, p. 368. Finally, we do not believe appellees would be bound by a property settlement not specified or identified in the divorce decree. We hold that the present suit is not a collateral attack on the prior divorce decree. Point one is overruled.

Appellant's point two(a) complains that the trial court erred in overruling appellant's motion for new trial because of the absence of lessees in possession of the property in question as parti...