Matthews v. Houtchens, 18046

• Decision Date: 18 January 1979
• Docket Number: No. 18046,18046
• Citation: 576 S.W.2d 880
• Parties: Harley O. MATTHEWS, Appellant, v. Barbara Matthews HOUTCHENS, Appellee.
• Court: Texas Court of Appeals

Page 880

576 S.W.2d 880

Harley O. MATTHEWS, Appellant, v. Barbara Matthews HOUTCHENS, Appellee.

No. 18046.

Court of Civil Appeals of Texas, Fort Worth.

Jan. 18, 1979.

Sparkman & Brian, and Roy T. Sparkman, Wichita Falls, for appellant.

Clayton S. Kramer, Wichita Falls, for appellee.

OPINION

MASSEY, Chief Justice.

This is an appeal by a defendant against whom all the summary relief requested by plaintiff was granted. The case involves partition of retirement benefits of defendant military retiree, not considered at time of the parties' divorce on December 6, 1965 by a certain divorce decree (in Cause No. 77,048-B in a different District Court of the same county). The divorce was granted at a time prior to that on which the retirement benefits began to be received though after approximately 12/20Ths of their total had accrued (in view of defendant's later completion of twenty years military service).

The trial court rendered summary judgment in the form of In rem decree as applied to retirement benefits to accrue after date of March 3rd, 1978, date of the judgment. The trial court preserved the cause of action of plaintiff against defendant for the retirement benefits received prior to March 3rd, 1978, by severance of her cause of action therefor from her cause of action adjudicated upon rights to receive a portion of defendant's benefits to accrue in the future. See Tex.R.Civ.P. 174, "Consolidation; Separate Trials". That cause, as severed, pends for trial.

We affirm the judgment.

The parties, plaintiff and defendant, were formerly husband and wife, having married on February 6, 1954, a time when defendant Harley O. Matthews resided in Arizona and was in military service (from April 16, 1952). They were divorced, after eleven years, by decree dated December 6, 1965. Slightly less than seven years thereafter, on September 1, 1972, the defendant retired from military service. Service in the military by defendant was continuous, being slightly in excess of twenty years.

The parties resided in Arizona until 1959; from 1959 to 1963 defendant was stationed in Alaska; and from the latter part of July in 1963 to time of the 1965 divorce he was stationed in Texas. The parties' separation took place the latter part of 1964; it was approximately one year thereafter they were divorced. A judgment of divorce was granted upon petition of the husband in a suit wherein the wife, though served with citation, wholly failed to appear. The divorce decree granted custody of the two children of the parties to the wife, with amounts for support of each child assessed against their father, the defendant in this action. The only mention made of property in the decree of divorce was the recitation of the final paragraph of the judgment, viz: "The parties hereto are not possessed of any community property subject to division of the Court."

No part of the record displays the petition upon which the parties' divorce was granted; nor is anything shown relative to the evidence adduced in support of the petition.

The form or action presented on appeal is not that of a case for bill of review. The action, simply stated, is to adjudicate that which should have been adjudicated as part of the divorce proceedings but was not considered and disposed of at that time. The recitations of plaintiff's petition are in the form of those for partition of property rights in the defendant's military retirement benefits under the claim of rights of co-tenancy. Pleading and trial on the motion for summary judgment were without regard for those rights possessed by a divorce court upon granting decree of divorce, i. e., the right and duty of a court trying a divorce case is to apportion the property of the parties under principles of equity, i. e., in a manner which would seem just and fair under all the circumstances. Our holding is that by the form of action from the judgment in which there has been the appeal none of the equitable matters mentioned could have been material in any event; that proper disposition was as of a case at law by co-tenants for partition.

We know from the evidence to be considered upon a hearing for summary judgment that at time of the parties' divorce there existed community property in the form of defendant's contingent and conditional expectancy of entitlement, eventually, to military retirement benefits; and we furthermore know from the judgment granting the defendant a divorce that the divorce court did not take such into consideration upon rendition of its decree. Therefore, such property rights persisted, for an In rem adjudication, upon plaintiff's suit.

We consider the law settled that because the parties' community interest in the retirement benefits were not in fact a part of the adjudication of the divorce court the matter of equitable apportionment ceased to be a matter of concern. Equitable considerations would not have thereafter mattered (save upon a re-entry into the same case as by proceedings in a bill of review case). What the apportionment might have been if made by the divorce court is of no importance. After divorce, if it develops that there was community property concealed or not adjudicated pursuant to the divorce proceedings, the former husband and wife become co-tenants or joint owners of the property just as if they had never been married; and they would own undivided interests in the property like unto the relation of tenants in common, subject to all the rules and regulations strangers bear to each other where they are in that relation. Taylor v. Catalon, 140 Tex. 38, 166 S.W.2d 102 (1942); Kirkwood v. Domnan, 80 Tex. 645, 16 S.W. 428 (1891); Novy v. Novy, 231 S.W.2d 780 (Tex.Civ.App. Austin 1950, writ dism'd); Wade v. Wade, 295 S.W.2d 939 (Tex.Civ.App. San Antonio 1956, no writ). This principle of law was recognized, without having been stated, in Herring v. Blakeley, 385 S.W.2d 843, 848 (Tex.1965) where there were directions to the trial court concerning the judgment it should render following remand of the cause.

In the case before us, where the summary judgment was granted to a movant in position of plaintiff, there is no suggestion in the record that no part of the retirement benefits was community property. Consequently, the divorce decree having made no disposition of the property, the law did not vest any title thereto in either the husband or the wife. Rather did the failure to take into consideration the retirement benefits upon entry of the divorce decree convert the retirement benefits into property belonging to them in the capacity of co-tenants. Furthermore, because of that want of adjudication as part of the divorce judgment the subsequently instituted partition suit of the plaintiff was not subject to defendant's plea of Res judicata ; there could not have been error by the trial court in overruling the defendant's motion for summary judgment on the theory that the divorce judgment recitation, "(t)he parties hereto are not possessed of any community property subject to division of the Court", constituted an erroneous adjudication (from which the divorced wife could have appealed) that the retirement benefits were the husband's separate property.

By the recitation of the divorce judgment we hold there was express declaration by the divorce court that its power of disposition of community property of the parties divorced was not exercised because there was no such property, clearly the statement of an erroneous legal conclusion but in no sense even implying an adjudication or even a finding or conclusion upon the facts. Dessommes v. Dessommes, 461 S.W.2d 525 (Tex.Civ.App. Waco 1970, no writ); Dessommes v. Dessommes, 505 S.W.2d 673, 676 (Tex.Civ.App. Dallas 1973, writ ref'd n. r. e.).

If the trial of a divorce case might involve controversy between the parties upon any property it should be...