Northcutt v. Jarrett

• Decision Date: 25 July 1979
• Docket Number: No. 8985,8985
• Citation: 585 S.W.2d 874
• Parties: Pat L. NORTHCUTT, Appellant, v. Mary Lou JARRETT, Appellee.
• Court: Texas Court of Appeals

Page 874

585 S.W.2d 874

Pat L. NORTHCUTT, Appellant, v. Mary Lou JARRETT, Appellee.

No. 8985.

Court of Civil Appeals of Texas, Amarillo.

July 25, 1979.

Rehearing Denied Aug. 29, 1979.

Bowers, Cotten & Harland, Forrest Bowers, Lubbock, for appellant.

Galey & Cummings, Charles E. Galey, Lubbock, for appellee.

REYNOLDS, Chief Justice.

Mary Lou Northcutt Jarrett was successful in her trial court bill of review proceeding to set aside the property settlement portion of a prior divorce judgment and to secure a substantial redivision of community property. Because of the failure to submit for the jury's determination, over ex-husband Pat L. Northcutt's objection, the issue of the lack of Mrs. Jarrett's fault or negligence, she waived a finding on an element of proof essential to her bill of review. Reversed and rendered.

The judgment underlying this bill of review proceeding was rendered 29 November 1971 upon the petition of Pat L. Northcutt and the waiver of process executed by Mary Lou Northcutt in Cause No. 1983 in the 110th Judicial District Court of Briscoe County. The judgment decreed the dissolution of the marriage of Mr. and Mrs. Northcutt, fixed the custody of and support for their minor children, and specifically approved and incorporated their agreed property settlement.

Mary Lou Northcutt's waiver of process, the basis for the judgment's recitation that she waived issuance and service of citation, was dated the same day Pat L. Northcutt's petition for divorce and related relief was filed. Although Mary Lou Northcutt was not present for the pronouncement of judgment, it is undisputed in the testimony of Pat L. Northcutt that shortly after the judgment was rendered, he told Mary Lou Northcutt they were not married any longer, and she responded, "Good."

Mary Lou Northcutt Jarrett's bill of review petition was filed in May of 1973. Her objective was to attack the property settlement portion of the prior judgment without seeking to vacate either the decree of divorce itself or the other portions of the judgment. Originally, she alleged that the agreed property settlement is unfair, unreasonable and inequitable, and that her agreement thereto was obtained through the fraud and wrongful acts of Northcutt unmixed with any fault or negligence on her part. At the jury trial and after a large part of the evidence had been presented, Mrs. Jarrett tendered a trial amendment. By the amendment, she plead that her waiver of citation in the divorce proceeding had been executed and acknowledged prior to the filing of the divorce petition and that, therefore, the court was without jurisdiction to enter judgment confirming and incorporating the agreed property settlement. Even though she plead the court's lack of jurisdiction to enter the judgment, she prayed only that the property settlement portion of the judgment be declared void. ¹

The trial court allowed the trial amendment over Northcutt's objection and claim of surprise. However, Northcutt did not ask for a continuance and, in fact, obliquely declined a continuance offered by the trial court. Furthermore, he stipulated that the waiver of process actually was signed prior to the filing of the divorce petition. Under these circumstances, there was no abuse of discretion by, and Northcutt is in no position to claim error on the part of, the trial court in allowing the trial amendment.

After receiving the jury's answers to the special issues submitted, the trial court, conducting a separate bench hearing to ascertain the nature and extent of property, rendered judgment setting aside the agreed property settlement portion of the prior judgment and substituting a substantial redivision of the community property. Northcutt has appealed, complaining of error in the charge to the jury and in vacating the agreed property settlement portion of the judgment for a redivision of the community property. He does not, however, attack the property redivision itself.

Because Tex.Rev.Civ.Stat.Ann. art 2224 (Vernon 1971) is specific that no waiver of process shall be made until after suit is brought, the waiver of process executed by Mrs. Jarrett before the institution of the divorce suit did not subject her to the jurisdiction of the trial court in that cause. Nevertheless, the trial court had jurisdiction over the subject matters of the cause and, additionally, the court had jurisdictional power to determine the validity and effectiveness of the waiver and to render the judgment of divorce and for related relief. Accordingly, since the time for questioning the validity of any part of that judgment by appeal or writ of error had passed, the only means by which Mrs. Jarrett could challenge the validity of the judgment, whose invalidity is not disclosed by the papers on file, is by way of a bill of review. Deen v. Kirk, 508 S.W.2d 70, 71-72 (Tex.1974).

The three usual elements of a bill of review which must be pleaded and proved are (1) a meritorious defense to the cause of action, (2) which the movant was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence on the part of the movant. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998 (1950). But this general rule does not govern the disposition of all bill of review cases, Petro-Chemical Transport, Inc. v. Carroll, 514 S.W.2d 240, 244 (Tex.1974), and the second requirement of Hagedorn has been qualified. Baker v. Goldsmith, 582 S.W.2d 404, 407 (Tex.1979). In the event the bill-of-review movant was not subject to the jurisdiction of the court rendering the prior judgment for lack of proper process, the movant is relieved from the burden of pleading and proving the second element of Hagedorn; i. e., that the movant was prevented from making a meritorious defense by the fraud, accident or wrongful act of the opposite party. Accord, Texas Industries, Inc. v. Sanchez, 525 S.W.2d 870, 871 (Tex.1975).

The bill-of-review movant's burden of proving a meritorious defense to the original cause of action is discharged when the movant produces proof from which the court determines, as a matter of law, that the defense is not conclusively barred and that the movant will prevail on retrial if no evidence to the contrary is offered. Baker v. Goldsmith, supra, at 409. Mrs. Jarrett's prima facie proof of a meritorious defense met this test. ²

Thus, given the posture of the cause at the point of jury submission, Mrs. Jarrett's remaining bill-of-review burden, before the jury reached the determination whether Northcutt had proved the elements of his original cause of action, was to persuade the jury by a preponderance of the evidence that she was without fault or negligence in the rendition of the prior judgment, Baker v. Goldsmith, supra, at 409, or in permitting the judgment to become final. Petro-Chemical Transport, Inc. v. Carroll, supra, at 246; Baker v. Goldsmith, supra, at 410 (concurring opinion); 4 R. McDonald, Texas Civil Practice § 18.29 (rev. 1971). Accord, McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 710 (1961).

Although Northcutt objected to the court's charge, the question of Mrs. Jarrett's lack of fault or negligence was not submitted to the jury. She did not request submission of the issue and made no objection to its omission. Consequently, she failed to discharge her burden of proof, unless it can be said, as Mrs. Jarrett contends, that the requirement of showing no negligence has been eliminated, or her lack of negligence was established as a matter of law, or that the court, in rendering the bill-of-review judgment, could be deemed to have found there was no fault or negligence on her part.

Despite the latest and consistent pronouncements of the Supreme Court that negation of negligence is a burden to be discharged by the bill-of-review movant, Mrs. Jarrett proposes that Hanks v. Rosser, 378 S.W.2d 31 (Tex.1964), and Deen v. Deen, 530 S.W.2d 913 (Tex.Civ.App. Fort Worth 1975, no writ), eliminated the requirement of showing no negligence. We view the writings of the Supreme Court touching the holdings of these two cases to be to the contrary.

Following Hanks v. Rosser, supra, the Supreme Court wrote in Gracey v. West, 422 S.W.2d 913, 915-16 (Tex.1968):

The Rosser case modified the (Hagedorn ) rule to the extent that where an officer of the court gives wrong information which prevents the filing of a motion for new trial by the losing party, the movant in a bill of review is excused from complying with requirement (2) above (that the defendant was prevented from making his meritorious defense by fraud, accident or wrongful act of the opposite party). Otherwise, the rule of Hagedorn was approved (emphasis added).

In Deen v. Deen, supra, the papers on file evidenced that the defendant-wife's waiver of service of citation and voluntary appearance was executed one day before the divorce suit was filed. Stating that the judgment rendered thereon "is demonstrably void 'on the face of the record' for want of jurisdiction of the person of the defendant against whom the prior judgment was rendered," the court of civil appeals held that in a direct attack on the judgment, the defendant was not required "to show anything other than that the judgment was void." Furthermore, the court said that defendant who had not been served with citation "could not have been negligent . . . because she was under no duty to do anything to prevent the void judgment, and after it was rendered she had no duty to prevent a purported finality." 530 S.W.2d at 915-17.

During the Deen appeal, the appellee-husband died and no application for writ of error was made to the Supreme Court. However, when the intermediate appellant court subsequently expressed the same rationale I. e., setting aside the prior default judgment was compelled when it was established that the prior judgment was void for want of due process or jurisdiction over necessary parties as one of the...