Morrison v. Rathmell, 12-81-0052-CV
| Decision Date | 24 February 1983 |
| Docket Number | No. 12-81-0052-CV,12-81-0052-CV |
| Citation | 650 S.W.2d 145 |
| Parties | Mary Ann Rathmell MORRISON, Appellant, v. John A. RATHMELL, Appellee. |
| Court | Texas Court of Appeals |
Tom Alexander, Don Fogel, Butler, Binion, Rice, Cook & Knapp, John F. Nichols, Nichols & Murray, Houston, for appellant.
Kenneth M. Morris, Morris, Campbell & Seikel, Houston, for appellee.
This is an appeal from a summary judgment rendered against appellant Mary Ann Morrison (Morrison) on her first amended bill of review filed to vacate a decree of divorce and partition of the community properties of Morrison and her ex-husband, appellee herein John A. Rathmell (Rathmell), which property division was based on a property settlement agreement executed by the parties and incorporated into the decree of divorce. Morrison was petitioner in said divorce action and Rathmell was respondent. The decree by its provisions appointed Morrison as managing conservator of the three children of the marriage then under the age of eighteen years. A fourth child had attained eighteen years of age before the divorce case was heard by the trial court. Rathmell was appointed possessory conservator with certain rights of access to the children, and was ordered to pay child support in the amount of $600.00 per child each month. Rathmell's motion for summary judgment sets forth the following grounds in Paragraphs 5 and 6 thereof, to-wit:
5.
The Petition avers that Respondent misrepresented to Petitioner the value of the business consisting of the shares of stock in Rathmell and Co. and John Rathmell & Company, Inc. that were awarded to Respondent.
The Petition does not aver that any property belonging to the community estate of the parties was not disclosed or was not divided by the Court through adoption of the SETTLEMENT AGREEMENT.
The Petition merely alleges that Petitioner was not aware of the true value of the shares and that Respondent made false statements to her concerning the value of the shares.
The Petition only alleges fraud of an intrinsic nature that is not grounds for a bill of review as a matter of law. Therefore, Respondent is entitled to summary judgment.
6.
None of the four (4) children of the marriage have been joined as parties in this case. None of the children of the marriage have been served with process in this case.
The relief prayed for by Petitioner in the Petition, if granted, would affect the rights of the children under Paragraph 4 of Section II of the SETTLEMENT AGREEMENT. Therefore, the children are necessary parties to this case.
The present case constitutes a collateral attack on the DECREE OF DIVORCE in Cause No. 1,019,623 since necessary parties have not been served and made parties to this case. The Petition does not allege that the Court was without jurisdiction to enter the DECREE OF DIVORCE in Cause No. 1,019,623. Therefore, Respondent is entitled to a summary judgment in this collateral attack on the DECREE OF DIVORCE in Cause No. 1,019,623.
On September 22, 1980, the trial court conducted a hearing on Rathmell's motion for summary judgment, granted the motion and signed the judgment on November 10, 1980, which judgment recited it was based on "... all the pleadings, briefs and depositions filed or presented to the court in this case on or before September 22, 1980...." The motion was also orally argued by counsel. Morrison's motion for rehearing was denied by the trial court and this appeal resulted.
Morrison presents only one point of error: "The trial court erred in granting summary judgment against petitioner." Our examination of the accompanying statements and arguments contained in Morrison's brief under this general point makes it clear that Morrison contends the summary judgment is not supported by either of the two specific grounds on which it was founded, i.e., (1) Morrison's pleadings do not allege an essential element of equitable bill of review, "extrinsic fraud," but alleges facts showing only "intrinsic fraud," and (2) that failure to join the four children of the marriage of the parties to the bill of review action renders the attack on the divorce decree collateral.
Thus, the summary judgment sought and rendered as to the first ground was a judgment on pleadings and must stand or fall on the allegations set forth in Morrison's First Amended Bill of Review. In testing such pleadings we assume the truth of the factual allegations made. Rogowicz v. Taylor and Gray, Inc., 498 S.W.2d 352 (Tex.Civ.App.--Tyler 1973, writ ref'd n.r.e.).
A brief discussion of these allegations and the summary judgment evidence is necessary to an understanding of this opinion, so we summarize the factual allegations in Morrison's pleadings as well as the material facts established by the summary judgment evidence.
Morrison and Rathmell were divorced after a twenty-year marriage, during which time Rathmell was engaged in the insurance business in Houston, Texas. Morrison never worked actively in the business and knew little about its operations. Sometime during the marriage Rathmell formed two corporations to engage in the business of selling insurance, John Rathmell & Company, Inc., and Rathmell & Company (Rathmell companies). During the time period in which the property settlement was being negotiated by both of the parties, as well as their respective counsel, Rathmell had confidentially estimated to David Hales, president of Hales & Associates, Inc. of Chicago, Illinois, that Rathmell companies had a market value of $2,584,000 in June 1975. Hales & Associates, Inc. was a firm engaged in the business of consulting with corporate executives to improve and develop corporate growth of their corporations and representing national clients in acquiring or merging with other businesses in the insurance field. The Rathmell companies were in fact later sold for "... over $5,000,000...." It is alleged that the prior decree was obtained by fraudulent misrepresentations of Rathmell that the Rathmell companies were worth only $797,950 as of May 31, 1975. When Morrison met privately with Rathmell before the divorce decree was signed, Rathmell stated that the $797,950 value of Rathmell companies would not be re-examined, that he would not agree to an appraisal of the business which Morrison requested and that if Morrison got any part of the Rathmell companies he (Rathmell) would leave, walk across the street and open up a new business. Rathmell forced a property settlement of the parties' properties on the basis of the $797,950 value given by him of the Rathmell companies.
The summary judgment evidence in this case includes the depositions of Morrison, Rathmell, David Hales and Michael J. Starshack and the exhibits accompanying same, as well as the exhibits attached to the motion for summary judgment. Rather than detailing the testimony produced by the depositions, we summarize the pertinent portions thereof.
It is undisputed that the parties were married for almost twenty years when the divorce decree was signed on October 1, 1975, and that four children were born as issue of such marriage. Morrison as petitioner filed a divorce action in March 1975 with the assistance of counsel. Both parties were represented by able counsel. Between the dates of March 19, 1975, and October 1, 1975, the parties engaged in a series of discussions relating to the division of their substantial community property assets. The evidence shows that Rathmell had been in the insurance business in Houston for many years and that he conducted his insurance business at the time of the initiation of the divorce suit through two corporations, Rathmell & Company and John A. Rathmell Company, Inc. (Rathmell companies). Sometime prior to September 29, 1975 (the date Rathmell signed the property settlement agreement), Rathmell had shown his wife a schedule of the values of his business. The first draft shown Morrison was written in longhand in pencil. Morrison examined this document and returned it to Rathmell in his lawyer's office. Later an identical schedule of values, apparently typed out by Rathmell's attorney, was furnished to Morrison's attorney and on the schedule the Rathmell companies were valued at $797,950. Morrison again met privately with Rathmell and asked for an appraisal of the Rathmell companies. Rathmell refused to agree to an appraisal and informed Morrison that the insurance companies were worthless without his presence and services, and that if she received any stock in the companies he would abandon the corporations and establish a new business. Rathmell also told Morrison that if she would forget about getting the properties appraised and accept the proposed settlement he would support the children through college.
David Hales (Hales) testified by deposition that his company, Hales & Associates, Inc., was in the business of appraising the value of insurance agencies, consultation with corporate officers and active in the merger-acquisition business. Hales stated that his firm had several large public insurance brokers who in May 1975 were looking for insurance agencies to acquire by merger. Hales testified that two of such clients were Rollins, Burdick and Hunter (R.B.H.) and Fred S. James Company (James), and that one of his associates, Bob Berry, called on Rathmell in May 1975 to determine whether or not Rathmell companies were suitable candidates for merger with clients of Hales & Associates, Inc. Hales testified that sometime in June 1975 he had a telephone conversation with Rathmell who told Hales that he (Rathmell) estimated the value of the Rathmell companies to be $2,584,000. In January 1976 Hales received a letter from Rathmell inquiring about a merger of his companies with R.B.H. and that such a negotiation between Rathmell companies and R.B.H. continued until about September 30, 1976, when the discussion between the...
To continue reading
Request your trial
-
Montgomery v. Kennedy
...children have filed a Motion for Rehearing and now urge that we should grant the motion and follow the holding in Morrison v. Rathmell, 650 S.W.2d 145 (Tex.App.--Tyler, 1983). We conclude that decision is not applicable to the facts in this case, and the Motion for Rehearing is In the Morri......
-
Rathmell v. Morrison
...summary judgment on the bill of review; however, that judgment was reversed by the Tyler Court of Appeals. Morrison v. Rathmell, 650 S.W.2d 145 (Tex.App.--Tyler 1983, writ dism'd). On remand the trial of the cause was bifurcated. The first portion, tried to a jury in November 1984, was to d......
-
Gaglione v. Rivas
...grounds of fraud, but we do not reach the issue of fraud based on Appellant's choice of pleading. See, e.g., Morrison v. Rathmell, 650 S.W.2d 145 (Tex. App.—Tyler 1983, writ dism'd) (holding that genuine issue of material fact as to whether wife was induced to agree to property settlement a......
-
Sanchez v. Sanchez
...of June 2, 2010, and substitute this opinion and judgment in their stead so that we may more fully address Morrison v. Rathmell, 650 S.W.2d 145 (Tex. App. Tyler 1983, writ dism'd), which Maria relies upon as her "main case."Background Maria and Mario Sanchez formed several music companies d......