In the Matter of The Marriage of Bart Dalton And Carol Dalton.

• Decision Date: 30 June 2011
• Docket Number: No. 12–10–00293–CV.,12–10–00293–CV.
• Citation: In the Matter of The Marriage of Bart Dalton And Carol Dalton., 348 S.W.3d 290 (Tex. App. 2011)
• Parties: In the Matter of the MARRIAGE of Bart DALTON and Carol Dalton.
• Court: Texas Court of Appeals

348 S.W.3d 290

In the Matter of the MARRIAGE of Bart DALTON and Carol Dalton.

No. 12–10–00293–CV.

Court of Appeals of Texas, Tyler.

June 30, 2011.

Jimmy L. Verner, Verner & Brumley, P.C., Dallas, for Appellant.Kaye M. Alderman, Robert T. Cain, Jr., Zeleskey, Cornelius, Hallmark, Roper & Hicks, PLLC, Lufkin, for Appellee.Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.

OPINION

SAM GRIFFITH, Justice.

This is an agreed interlocutory appeal pursuant to Texas Civil Practices and Remedies Code, Section 51.014(d). Bart Dalton, Appellant and Cross–Appellee, complains of three rulings by the trial court, and Carol Dalton, Appellee and Cross–Appellant, complains of one ruling by cross-appeal. Bart presents three issues, and Carol presents one cross-issue. We reverse and render in part, and remand in part.

BACKGROUND

Bart and Carol were married on August 6, 1988, and are the parents of three children. In 2002, Bart and Carol were residents of Oklahoma when Bart and a business partner borrowed money from the Bank of Oklahoma to purchase a business. In 2005, the Bank of Oklahoma obtained a judgment in replevin and in personam against Bart, Bart's business partner, and the business. In order to protect their assets, Carol filed for divorce from Bart in 2005 in the district court of Rogers County, Oklahoma. She later amended her petition to request a decree of separate maintenance.

On December 18, 2006, the district court of Rogers County, Oklahoma, filed an agreed order of separate maintenance (“OSM”). The parties agreed that the OSM settled their claims concerning child custody, child support, property division, debt division, spousal support, attorney's fees, and costs. Carol was granted custody of the children subject to a visitation plan allowing Bart supervised visitation with the children on alternating weekends and holidays. Bart agreed to pay child support in the amount of $2,189.75 per month, ninety-five percent of the day care costs and health-related expenses not covered by insurance, and maintain medical insurance for the children.

In the property division, Carol received her personal property, the residence in Oklahoma, a Honda van, a Cessna airplane, all of the couple's interest in a musical instrument company, all checking, savings, and retirement accounts in her name, one-half of Bart's 401(k) plan, one-half of Bart's profit sharing plan, and all of Bart's Southwest Airlines stock options. Bart received all of his personal property, a Dodge van, and a Bayliner boat. Further, Bart agreed to pay all debt associated with the marital home and incurred by the parties before November 2006. He also agreed to pay support alimony to Carol in the amount of $1,309,014.00 at the rate of $6,060.25 per month. Finally, Bart agreed that all marital property not listed in the OSM would be awarded to Carol.

After the parties signed the OSM, they continued to live together in Oklahoma. In June 2008, the parties separated and Carol moved to Nacogdoches County, Texas, in August 2008. Later, Bart also moved to Nacogdoches County. In December 2008, Bart filed for divorce in Nacogdoches County, and Carol filed an answer and counterpetition for divorce. Carol also filed a notice of filing of foreign judgment and filed a certified copy of the OSM with the County Court at Law of Nacogdoches. Bart filed a motion to vacate and nullify the filing of the OSM. In response, Carol filed a motion for summary judgment, alleging that she was entitled to summary judgment as a matter of law because the OSM is a properly authenticated and final foreign judgment. As such, Carol alleged that the trial court was compelled to give full faith and credit to the OSM. Bart disagreed, alleging that the OSM was void under Oklahoma law because the Rogers County district court lacked jurisdiction. The trial court found that the Oklahoma OSM was void, was not final, and was not subject to full faith and credit. Therefore, the trial court denied Carol's motion for summary judgment.

Carol filed a second motion for summary judgment, alleging that she was entitled to summary judgment as a matter of law because the OSM was a valid and enforceable partition and exchange agreement under Texas law, and an enforceable marital contract under Oklahoma law. Bart disagreed. The trial court found that Bart did not prove the statutory defenses to enforcement of a partition and exchange agreement, that the OSM was a valid, unambiguous, and enforceable partition and exchange agreement, and that the parties were entitled to a judgment on that agreement. Therefore, the trial court granted Carol's second motion for summary judgment.

Bart filed a motion to determine choice of law, for reconsideration of the partial summary judgment, and for partial summary judgment. Carol filed a motion to strike Bart's motion and a motion for clarification. The trial court signed an order on Bart's motion for reconsideration of the partial summary judgment, again granting Carol's second motion for summary judgment. The trial court also found that its previous order was a final and appealable judgment disposing of all the parties' claims subject only to issues regarding the right to, and character of, property not specifically listed in the OSM, and the granting of a divorce by the trial court. The trial court also denied Bart's motion to determine choice of law.

After finding that both of Carol's motions for summary judgment involved controlling questions of law and that an immediate appeal may materially advance the ultimate termination of the litigation, the trial court signed an agreed order granting an interlocutory appeal of four of its orders as follows: (1) the order denying Carol's first motion for summary judgment; (2) the order granting Carol's second motion for summary judgment; (3) the order on Bart's motion for reconsideration of the partial summary judgment; (4) and the order denying Bart's motion to determine choice of law. This appeal followed.

ISSUES PRESENTED

Bart complains of the order granting Carol's second motion for summary judgment, the order denying his motion for reconsideration, and the order denying his motion to determine choice of law. In one cross-issue, Carol challenges the order denying her first motion for summary judgment. Carol's cross-issue is dispositive. Therefore, we need not address Bart's issues. See TEX.R.APP. P. 47.1.

STANDARD OF REVIEW

In reviewing a traditional motion for summary judgment,¹ we apply the standards established in Nixon v. Mr. Property Management Company, 690 S.W.2d 546, 548–49 (Tex.1985), which are (1) the movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. See id. at 548–49. For a party to prevail on a motion for summary judgment, he must conclusively establish the absence of any genuine question of material fact and that he is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c). A movant must either negate at least one essential element of the nonmovant's cause of action, or prove all essential elements of an affirmative defense. See Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995); see also MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.1986). Since the burden of proof is on the movant, and all doubts about the existence of a genuine issue of material fact are resolved against the movant, we must view the evidence and its reasonable inferences in the light most favorable to the nonmovant. See Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). We are not required to ascertain the credibility of affiants or to determine the weight of evidence in the affidavits, depositions, exhibits, and other summary judgment proof. See Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 932 (1952). The only question is whether or not an issue of material fact is presented. See TEX.R. CIV. P. 166a(c).

Once the movant has established a right to summary judgment, the nonmovant has the burden to respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. See, e.g., City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex.1979). All theories in support of or in opposition to a motion for summary judgment must be presented in writing to the trial court. See TEX.R. CIV. P. 166a(c).

FULL FAITH AND CREDIT

In her cross-issue, Carol argues that the trial court erred in denying her first motion for summary judgment. More specifically, she asserts that she is entitled to summary judgment as a matter of law because the OSM was a properly authenticated foreign judgment, and was a final order with respect to the parties' property. Therefore, she contends, the trial court was required to give full faith and credit to the OSM.

Applicable Law—Full Faith and Credit

According to the United States Constitution, “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” U.S. CONST. art. IV, § 1. A properly proven foreign judgment must be recognized and given effect coextensive with that to which it is entitled in the rendering state. See Bard v. Charles R. Myers Ins. Agency, Inc., 839 S.W.2d 791, 794 (Tex.1992) (citing Barber v. Barber, 323 U.S. 77, 79, 65 S.Ct. 137, 138, 89 L.Ed. 82 (1944)). The Full Faith and Credit Clause requires that a valid judgment from one state be enforced in other states regardless of the...