Ingram v. Ingram, 16350

• Decision Date: 29 May 1964
• Docket Number: No. 16350,16350
• Citation: 380 S.W.2d 666
• Parties: A. C. INGRAM, Appellant, v. Linda INGRAM, Appellee.
• Court: Texas Court of Appeals

Page 666

380 S.W.2d 666

A. C. INGRAM, Appellant, v. Linda INGRAM, Appellee.

No. 16350.

Court of Civil Appeals of Texas, Dallas.

May 29, 1964.

Rehearing Denied June 26, 1964.

Andress, Woodgate, Richards & Condos, Wm. Andress, Jr., Dallas, for appellant.

Nance & Caston, Sherman, for appellee.

WILLIAMS, Justice.

Action for divorce and child support. Linda Ingram sued A. C. Ingram in the 15th District Court of Grayson County, Texas seeking a divorce, custody of the child born of the marriage, and reasonable child support payments. Following a non-jury trial the district judge granted plaintiff's prayer for relief and defendant appeals. The record presented to us reflects no reversible error and the judgment of the trial court is affirmed.

FACTS

Appellant and appellee, residents of Dallas County, were married in Rockwall County, Texas on June 13, 1961. On December 16, 1961 a child was born to appellee. Appellee moved to Grayson County in January 1962 and has resided in such county continuously since that date. On March 19, 1962 appellee filed her original petition in the 15th District Court of Grayson County, seeking divorce, custody of the minor child, and child support payments. On March 29, 1962 appellant filed his original answer in the 15th District Court of Grayson County. In Paragraph 1 of this answer appellant asserted that the court did not have jurisdiction of the case because appellee had not resided in Grayson County for more than six months next preceding the filing of the petition. Subject to this 'Plea to the Jurisdiction' appellant denied that he and appellee were ever legally married and further denied that he was the father of the child. Appellant's 'Plea to the Jurisdiction' was never called to the attention of the trial court and was never ruled upon. On March 29, 1962 appellant filed his original petition, being Suit No. 62,748-Juv. in the Juvenile Court of Dallas County, Texas, styled A. C. Ingram v. Linda Rodriguez Ingram, in which he asked that the marriage between him and appellee herein be annulled because of alleged fraudulent representations on the part of appellee. In the alternative, he asked for a decree of divorce against appellee. On May 10, 1963 appellee filed her first amended original petition in the Grayson County suit in which she alleges the same statutory residential allegations and the same grounds for divorce, as in her original petition. On June 8, 1963 appellant filed his first amended original answer in the Grayson County suit. In Paragraph 1 of this amended answer he alleges that the Grayson County District Court does not have jurisdiction of this suit because appellee had not resided in Grayson County for more than six months prior to filing the suit. In Paragraph 2 he alleges, for the first time, that appellee's suit in the District Court of Grayson County should be dismissed and not considered because of the pending suit in Dallas County. Subject to these 'Pleas to the Jurisdiction' appellant again denied the marriage and denied that he was the father of the child. The case came on for trial on August 20, 1963 and judgment was rendered on August 26, 1963.

OPINION

Appellant inveighs against the judgment in six points of error. By this first four points of error, which we will consider together, he contends that the District Court of Grayson County should have sustained his motion to dismiss appellee's cause of action because (1) appellee had not lived in Grayson County for six months preceding the filing of her original petition on March 19, 1962 and (2) the Juvenile Court of Dallas County, Texas had acquired prior authority to determine the validity of the marriage between the parties and to grant a divorce.

Appellee objects to our consideration of appellant's first four points of error on the ground that appellant has not complied with Rule 325, Texas Rules of Civil Procedure by filing a motion for new trial complaining of the errors now assigned. We cannot agree with appellee. Rule 325, T.R.C.P. does provide that rulings of the court on preliminary motions would be considered as acquiesced in, unless complained of in motion for new trial. The rule further specifically provides that nothing in Rule 324, T.R.C.P. (providing inter alia, that a motion for new trial is not essential in a non-jury case) shall render a motion for new trial unnecessary in the instances mentioned in Rule 325, T.R.C.P. However, it is our opinion that Rule 325, T.R.C.P. has application to matters not otherwise shown by the record.

Our court, in Harmon v. City of Dallas, Tex.Civ.App., 229 S.W.2d 825, said:

'Furthermore, and along with appellant's assertion that his cause of action was dismissed without opportunity for amendment, it is nowhere evident in the record that the matter was ever called to attention of the trial court. While a motion for a new trial is not a prerequisite to an appeal from a trial to the court, Rule 324, T.R.C.P., yet if the appealing party desires to complain in the trial or appellate court of anything not apparent of record, unless through the filing of a motion for a new trial, then it is essential that such motion be filed. Rule 325, T.R.C.P.; Vol. 8, T.B.J., p. 15.' (Emphasis added.)

Accord: First Nat'l Life Ins. Co. v. Herring, Tex.Civ.App., 318 S.W.2d 119.

In the case before us appellant did bring the matter to the trial court's attention and did receive a hearing and a ruling on such motion, all of which is recited in the judgment and exception noted. Accordingly, we hold that Rule 325, T.R.C.P. has no application under the facts here presented.

Appellant's contention concerning the lack of authority of the District Court of Grayson County to hear appellee's divorce case because she had not lived in Grayson County for more than six months prior to filing her suit is without merit. While it is true that at the time appellee filed her original petition on March 19, 1962 she had only been living in Grayson County for a little over two months, yet it is likewise true that at the time appellee filed her first amended original petition on May 10, 1963 and at the time the court heard this case on August 20, 1963 appellee had lived in Grayson County for more than the required period of time.

Appellant candidly concedes that the question here presented is not jurisdictional but relates to the statutory qualifications of a litigant to maintain a suit for divorce. See. 8, Art. 5 of the Constitution of Texas, Vernon's Ann.St. provides that: 'The District Court shall have original jurisdiction * * * of all cases of divorce, * * *.' Art. 4631, Vernon's Ann.Civ.Ct. provides that no suit for divorce shall be maintained in the courts of this state unless the petitioner for such divorce shall at the time of exhibiting his or her petition, be an actual bona fide inhabitant of this state for a period of twelve months, and shall have resided in the county where the suit is filed for six months next preceding the filing of the same. Our Supreme Court, in Aucutt v. Aucutt, 122 Tex. 518, 62 S.W.2d 77, 89 A.L.R. 1198, held that the constitutional jurisdiction of district courts to hear divorce cases could not be taken away by legislative enactment. The court said that Art. 4631, V.A.C.S. was not a jurisdictional statute at all, but merely a statute prescribing the qualifications of the plaintiff in divorce cases. It is unnecessary to cite the numerous cases which have consistently followed this opinion to this date.

Having acquired jurisdiction of the parties and the subject matter of this litigation by the filing of the original petition and defendant's answer, the District Court of Grayson County had the power and authority to hear and determine defendant's motion, contained in his original petition, to dismiss plaintiff's suit for lack of the necessary qualifications. However, appellant at no time ever brought this matter to the attention of the court and secured a ruling thereon. Appellant thereby waived any rights he may have to dismiss appellee's suit as originally filed.

It is undisputed that the decree in this case was granted upon appellee's first amended original petition which was filed more than a year after appellee had moved to Grayson County. Her amended petition contained nothing new as to grounds for divorce. The case was heard more than sixty days after the filing of the amended petition which satisfied the statutory waiting period.

A similar situation was presented to the court in Myers v. Myers, Tex.Civ.App., 210 S.W.2d 832. In that case the wife filed her original petition in Dallas County seeking a divorce but at that time had not lived in Dallas quite six months. She later filed her amended petition after she had satisfied the statutory residential requirement. The court sustained the husband's motion to dismiss and in the Court of Civil Appeals, in reversing such action, the court said:

'Thus it would seem that the required inhabitancy must exist at the time of exhibiting the petition, and that residence in the county of the suit must be for a period of six months next preceding the filing of the pleading. However, as in this case, where an amended petition is filed, the question may arise as to whether the requirements must be satisfied at the time of filing the original petition. In our earlier cases it was held that the filing of an amended petition setting up a new ground for divorce must be considered as the institution of the suit rather than the filing of the original, although where the amended petition, as in this case, is merely a...