In the Matter of Marriage of Cobb, No. 10-05-00436-CV (Tex. App. 1/17/2007)

• Decision Date: 17 January 2007
• Docket Number: No. 10-05-00436-CV.,10-05-00436-CV.
• Parties: IN THE MATTER OF THE MARRIAGE OF GERALD WAYNE COBB AND ETTA LAVON COBB.
• Court: Texas Court of Appeals

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IN THE MATTER OF THE MARRIAGE OF GERALD WAYNE COBB AND ETTA LAVON COBB.

No. 10-05-00436-CV.

Court of Appeals of Texas, Tenth District, Waco.

Opinion delivered and filed January 17, 2007.

Appeal fromthe 413th District Court, Johnson County, Texas, Trial Court No. D200405031.

Affirmed.

Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.

MEMORANDUM OPINION

TOM GRAY, Chief Justice.

Etta Cobb petitioned for divorce from Gerald Cobb. The trial court rendered a divorce decree on the Cobbs' mediated agreed settlement. Gerald appeals. We affirm.

In Gerald's second issue, he contends that the trial court lacked subject-matter jurisdiction. In Gerald's first issue, he contends that the trial court erred in overruling Gerald's motion for new trial, which was premised upon the lack of subject-matter jurisdiction. In both cases, Gerald argues that at the time of his alleged marriage to Etta he was married to G. L. C., and thus that jurisdiction was lacking.

An appellant husband's "claim that the [divorce] decree is void because he was not yet divorced from his first wife and could therefore not be married to [appellee, his putative second wife,] is not a jurisdictional deficiency; rather it is a defense that should have been argued to the court during a trial on the merits." Narvaez v. Maldonado, 127 S.W.3d 313, 317 (Tex. App.-Austin 2004, no pet.); see Tex. Fam. Code Ann. §§ 1.102, 6.001-6.003, 6.301, 6.402 (Vernon 1998).

Gerald does not establish that the trial court lacked subject-matter jurisdiction.¹ Accordingly, the trial court did not err in overruling Gerald's motion for new trial. We overrule Gerald's issues.

Having overruled Gerald's issues, we affirm.

1. We, moreover, have considered sua sponte our jurisdiction on other grounds. See M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004) (per curiam); Krumnow v. Krumnow, 174 S.W.3d 820, 825 (Tex. App.-Waco 2005, pet. denied); Kosse Nat'l Bank v. Derden, 36 S.W.2d 295, 296 (Tex. Civ. App.-Waco 1931, no writ). In particular, we have considered whether Gerald's putative wife G. L. C. is an indispensable party such that her absence would deprive the trial court of jurisdiction and render the judgment void. See TEX. R. CIV. P. 39; TEX. FAM. CODE ANN. § 6.408 (Vernon 1998).

The 1973 "amendments to the Texas Rules of Civil Procedure changed our approach in dealing with a defect of parties from one which emphasized jurisdiction to an approach based solely upon pragmatic considerations." Cox v. Johnson, 638 S.W.2d 867, 868 (Tex. 1982) (per curiam) (citing Cooper v. Tex. Gulf Indus., Inc., 513 S.W.2d 200, 203 (Tex. 1974)); see TEX. R. CIV. P. 39. "A failure to join `indispensable' parties does not render a judgment void" now. Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985) (orig. proceeding) (per curiam) (citing Cooper, 513 S.W.2d at 204); see Brooks v. Northglen Ass'n, 141 S.W.3d 158, 162 (Tex. 2004) (interests in real property). "Under our present rule, `[i]t would be rare indeed if there were a person whose presence was so indispensable in the sense that his absence deprives the court of jurisdiction to adjudicate between the parties already joined.'" Cox at 868 (quoting Cooper, 513 S.W.2d at 204) (alteration in Cox); accord Browning at 363; but see, e.g., Gilmer Indep. Sch. Dist. v. Dorfman, 156 S.W.3d 586, 588-89 (Tex. App.-Tyler 2003, no pet.) (failure to join State in constitutional challenge to taxation statute deprives court of jurisdiction); Apr. Sound Mgmt. Corp. v. Concerned Prop. Owners for Apr. Sound, Inc., 153 S.W.3d 519, 526 (Tex. App.-Amarillo 2004, no pet.) (failure to join affected property owners). "The amended rule includes practical considerations within the rule itself, including the extent to which an absent party may be prejudiced, the extent to which protective provisions may be made in the judgment, and whether in equity and good conscience the action should proceed or be dismissed." Cooper, 513 S.W.2d at 204; see TEX. R. CIV. P. 39. Fundamental error, too, is now considered "a discredited doctrine." In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003) (quoting Cox at 868). "Fundamental error survives today in those rare instances in which the record shows the court lacked jurisdiction or that the public interest is directly and adversely affected as that interest is declared in the statutes or the Constitution of Texas." In re C.O.S., 988 S.W.2d 760, 765 (Tex. 1999) (juvenile adjudication) (quoting Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982) (per curiam)).

Familial rights, however, are basic, different in kind from, and greater than, property rights. See Santosky v. Kramer, 455 U.S. 745, 758-59 (1982); Loving v. Virginia, 388 U.S. 1, 12 (1967); Boddie v. Connecticut, 401 U.S. 371, 383 (1971); In re J.F.C., 96 S.W.3d 256, 273 (Tex. 2002); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re S.A.P., 169 S.W.3d 685, 695 (Tex. App.-Waco 2005, no pet.); In re A.P., 42 S.W.3d 248, 255 (Tex. App.-Waco 2001, no pet.). If there is any case in which a party is indispensable, it might seem to be one in which the court adjudicates the party's marital relationship.

Even under the former Rules of Civil Procedure, though, a putative spouse was not considered an indispensable party in a divorce suit. See Holmes v. Jackson, 200 S.W.2d 276, 279-80 (Tex. Civ. App.-Waco 1947, no writ). The Texas Supreme Court, too, has not found fundamental error even in cases involving the parent-child relationship. See In re K.A.F., 160 S.W.3d 923, 928 (Tex.), cert. denied sub nom. Carroll v. Faucheux, 126 S. Ct. 483 (2005); B.L.D., 113 S.W.3d at 350-51; J.F.C., 96 S.W.3d at 262-63, 275; Tex....