McWilliams v. McWilliams, 1280

• Decision Date: 10 December 1975
• Docket Number: No. 1280,1280
• Citation: 531 S.W.2d 392
• Parties: Edward C. McWILLIAMS, Appellant, v. Ollie R. McWILLIAMS, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 392

531 S.W.2d 392

Edward C. McWILLIAMS, Appellant, v. Ollie R. McWILLIAMS, Appellee.

No. 1280.

Court of Civil Appeals of Texas,

Houston (14th Dist.).

Dec. 10, 1975.

Sam Dawkins, Jr., Eastham & Meyer, Houston, for appellant.

Charles H. Waters, Jr., Liddell, Sapp, Zivley & Brown, Houston, for appellee.

TUNKS, Chief Justice.

This appeal arose out of a suit brought by appellant Edward C. McWilliams against his former wife, appellee Ollie R. McWilliams, to recover the amount of payments made by appellant on encumbrances on a farm awarded to appellee in their divorce. The parties were divorced by a decree announced on September 30, 1970 and signed by the trial judge on November 28, 1970. Mr. McWilliams appealed the divorce decree and posted a supersedeas bond. The decree was affirmed by the court of civil appeals, writ of error to the supreme court was denied, and motion for rehearing on the application for the writ of error was denied on September 13, 1971.

As part of the judgment for divorce, Mrs. McWilliams was awarded a farm in Fort Bend County 'subject to all indebtedness and encumbrances against the said property for which the Petitioner (Mrs. McWilliams) shall hold the Respondent harmless for any and all liability and expenses incurred on account of the said indebtedness.' During the pendency of his appeal from the divorce decree, appellant retained possession of the farm and made mortgage payments on November 23, 1970 and June 11, 1971 in amounts totaling $14,941.73. He alleges that during the time he retained possession of the farm, he accounted to appellee for all related income and expenses and derived no benefit from his use or occupancy of the property.

After writ of error was denied by the supreme court, appellant surrendered the farm to appellee and brought this action against her to recover the amount of the mortgage payments he made between the date the divorce decree was announced and the date it became final, in the sense that it was not further appealable, by virtue of denial of writ of error. Appellee did not controvert appellant's assertions that he made the payments, or the amount of the payments, or that he had accounted to appellee for all income from the property. Her answer set out defenses of res judicata, sutatute of limitations, and an allegation that since the divorce judgment had not become final until writ of error was denied, appellant was not entitled to reimbursement for mortgage payments he made prior to that date. The district court granted summary judgment for appellee on the basis of this latter defense, for the reason that '(s)aid decree, therefore, did not vest title in the real property described therein, in Ollie R. McWilliams, nor did it exonerate Edward C. McWilliams from liability for payments on said real property, until September 31, 1971.' Appellant asserts on this appeal that the trial court erred as a matter of law in finding the divorce decree was effective only as of the date writ of error was denied.

The term 'final judgment' applies differently in different contexts. A judgment is 'final' for purpose of appellate jurisdiction if it disposes of all issues and parties in a case. North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.Sup.1966). The term 'final judgment' is also...