Novotny v. Novotny

Decision Date29 December 1983
Docket NumberNo. 01-83-0333-CV,01-83-0333-CV
Citation665 S.W.2d 171
PartiesDebra Lynn NOVOTNY, Appellant, v. Joseph Patrick NOVOTNY, Appellee. (1st Dist.)
CourtTexas Court of Appeals

Diane Richards, Houston, for appellant.

Donald E. Kee, Houston, for guardian ad litem, Donald R. Royall.

Van E. Wittner, Houston, for appellee.

Before JACK SMITH, BULLOCK and COHEN, JJ.

OPINION

JACK SMITH, Justice.

The primary issue in this divorce case is whether a final judgment had been rendered where the trial court had adopted a Master's report, but prior to entry of a formal divorce decree, the husband died. After several hearings, the trial court concluded that the divorce had been granted and entered a formal decree on that basis. The appellant wife raises nine points of error on appeal.

The record shows that the trial judge referred all issues to a Master pursuant to Rule 171 of the Tex.R.Civ.P. On May 19, 1982, the parties appeared before the Master and announced that this was an agreed divorce proceeding. The Master heard evidence and made a written report to the judge on that same date, and copies of the Master's report were furnished to all parties. On May 24, 1982, no written objections having been filed to the Master's report, the judge "adopted, confirmed and ordered" the Master's report. On June 14, 1982, Mr. Novotny died from a gunshot wound inflicted by Mrs. Novotny. Thereafter Mrs. Novotny filed a motion to dismiss the suit, and the administrator of Mr. Novotny's estate and the guardian ad litem representing the couple's children filed motions to enter judgment on the Master's report. After several evidentiary hearings the trial judge entered a final judgment granting a divorce on March 24, 1983.

The final divorce decree tracks the findings of the Master's report with the exception of two items. These two items were that an injunction was to issue as per decree and thirteen items of personal property, awarded to Mrs. Novotny, referred to but not itemized in the Master's Report, would be listed in the decree. All issues pertaining to the divorce were decided in the Master's Report and adopted by the court.

In her point of error number one, the appellant urges that the trial court erred in signing and entering the divorce decree after the death of one of the parties to the suit. She argues that the death of one of the parties abates a divorce action, and cites the recent Supreme Court case of Whatley v. Bacon, 649 S.W.2d 297 (Tex.1983) as authority for her position. Whatley is distinguishable from the instant case in that a final hearing had not been held to determine the issues involved in the case. In Whatley, we note that the Supreme Court cited Garrison v. Texas Commerce Bank, 560 S.W.2d 451 (Tex.Civ.App.--Houston [1st Dist.] 1977, writ ref'd n.r.e.) as authority for the proposition that "death of a party abates a divorce action ...". In Garrison, Chief Justice Coleman stated as follows:

It is well settled that a cause of action for a divorce is purely personal and that the cause of action for a divorce terminates on the death of either spouse prior to the rendition granting a divorce. (emphasis added)

In the instant case, as heretofore stated, the suit was set for trial and referred by the trial judge to a Master. The Master heard the proceeding on an agreed basis, made his findings, and five days later, no objections having been received to the Master's report, the trial judge "adopted, confirmed and ordered" the Master's report approved.

When issues are referred to and heard by a Master under Rule 171, the Master's report is conclusive on the issues considered by the Master in the absence of a proper objection. Cameron v. Cameron, 601 S.W.2d 814 (Tex.Civ.App.--Dallas 1980, no writ). A party dissatisfied with the report has the burden to make specific objections before the report is adopted by the court. Cameron, supra. No objections to the Master's report were filed by either party to this cause of action prior to its adoption by the court.

The next consideration is whether the adoption of a Master's report by a court is tantamount to a rendition of judgment by the court. A rendition of judgment is the pronouncement by the court of its conclusions and decision upon the matters submitted to it for adjudication. Such conclusions and decisions may be oral or written, and judgment is rendered when the decision is officially announced either orally in open court or by a memorandum filed by the clerk of the court. Comet Aluminum Co., Inc. v. Dibrell, 450 S.W.2d 56 (Tex.1970); Dunn v. Dunn, 439 S.W.2d 830 (Tex.1969).

The principle that a memorandum, dispositive of all issues in a case, is a valid rendition of judgment is predicated upon the supportive principle that the entry of a trial judgment is only a ministerial act. In this connection, the memorandum is analogous to an oral pronouncement of judgment by the court. See and compare Ex parte Olivares, 662 S.W.2d 594 (Tex.1983); Dunn v. Dunn, supra; Williams v. Wyrick, 151 Tex. 40, 245 S.W.2d 961 (1952). Thus, a written judgment signed by the trial judge is not a prerequisite to finality of a judgment. Texas State Board of Examiners In Optometry v. Lane, 337 S.W.2d 801 (Tex.Civ.App.--Fort Worth 1960, writ ref'd). Accordingly, we conclude that the death of one of the parties does not abate a divorce action where a prior court order disposing of all issues has been rendered. The appellant's first point of error is overruled.

The appellant's eighth point of error is somewhat analogous to her first point of error in that the appellant alleges that the issues became moot when Mr. Novotny died. A case may become moot on appeal and in such an event the case should be dismissed. However, in the instant case the property rights of the parties would be significantly affected depending upon whether the marriage had been terminated by divorce decree or by death. In the instant case the proceeds of certain employment benefits and an insurance policy would go to the appellant if the marriage was terminated by death. On the other hand, these proceeds would go to other parties if the marriage was terminated by divorce decree. Under these circumstances we conclude that the trial court was correct in...

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    ...Inc. v. Avery Mays Constr. Co., 690 S.W.2d 333, 334 (Tex.App.--Dallas 1985, writ ref'd n.r.e.); Novotny v. Novotny, 665 S.W.2d 171, 173 (Tex.App.--Houston [1st Dist.] 1984, writ dism'd). Because we do not reach this issue, we do not pass on the question of whether an objection is required.4......
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