Pavlas v. Pavlas, 16922
| Decision Date | 10 May 1968 |
| Docket Number | No. 16922,16922 |
| Citation | 428 S.W.2d 880 |
| Parties | Joe PAVLAS, Appellant, v. Ruby Mae PAVLAS, Appellee. . Fort Worth |
| Court | Texas Court of Appeals |
Jimmy P. Horany, Archer City, for appellant.
W. E. Fitzgerald, Wichita Falls, for appellee.
On May 12, 1967, Joe Pavlas filed suit in the District Court of Archer County praying for a divorce from Ruby Mae Pavlas and for division of community property.
Plaintiff's petition alleged the parties were married in June, 1965, and continued to live together until May 25, 1966, when, by reason of cruel treatment inflicted on plaintiff by defendant, they separated and 'have not lived together since that time'; that defendant within a short time after marriage commenced a course of unkind, harsh and tyrannical conduct toward plaintiff which continued until their separation, 'and still continues.'
The defendant answered with a plea of res judicata and filed a certified copy of a judgment rendered by the 78th District Court, Wichita County, on January 4, 1967, styled Joe Pavlas v. Ruby Mae Pavlas, wherein the court, after 'hearing the testimony in said cause is of the opinion that it is wholly insufficient to authorize judgment for divorce,' entered judgment for defendant.
In the instant case the judgment recites that after hearing 'Defendant's exceptions to the Plaintiff's petition and cause of action, * * * it is the opinion of the Court * * * the law is for the Defendant, and it is therefore considered by the Court that the Defendant go hence without day * * *.'
The judgment was dated September 11, 1967.
On the same day, towit, September 11, plaintiff was refused permission by the Court to file an amended petition.
The record does not show whether the judgment, or the order refusing the filing of the amended petition, was acted upon first by the Court.
The first two paragraphs of the rejected amended petition complain of conduct of defendant which occurred Prior to the January 4, 1967 divorce judgment.
The proposed amended petition alleged other acts of cruelty which began prior to the January 4 judgment and which continued to the filing of the second divorce suit, and allegations of separate acts of misconduct which occurred after the January 4 judgment. All the allegations of conduct after January 4 are the same or similar acts complained of in the first divorce suit.
The plaintiff contends the court erred in (1) refusing to allow the amended petition to be filed, (2) sustaining defendant's amended answer as an exception to plaintiff's petition and cause of action, (3) overruling plaintiff's exceptions to defendant's answer and first amended answer, (4) refusing plaintiff the opportunity to submit evidence, and in sustaining defendant's defense of res judicata, and (5) overruling plaintiff's motion for new trial.
It is apparent from the record that the court, though referring to defendant's exceptions, was in reality acting on defendant's plea of res judicata. Point 2 will therefore be considered with point 4.
A judgment denying a divorce is not res judicata as to a cause of action arising thereafter. Spoon v. Spoon, 139 S.W.2d 162 (Tex.Civ.App., 1940, writ dism.).
However, where parties have had the opportunity of litigating certain issues and a final judgment is entered...
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...not collaterally attack the judgment. Davis v. First National Bank of Waco, 139 Tex. 36, 41, 161 S.W.2d 467, 144 A.L.R. 1; Pavlas v. Pavlas, 428 S.W.2d 880, 881 (Tex.Civ.App.); Goldberg v. Goldberg, 425 S.W.2d 830, 831 (Tex.Civ.App.); 34 Tex.Jur.2d, Judgments, § The existence of the Connect......
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...635; First National Life Ins. Co. v. Herring, CCA (Null), 318 S.W.2d 119; Dyche v. Simmons, CCA (NRE), 264 S.W.2d 208; Pavlas v. Pavlas, CCA (NWH), 428 S.W.2d 880. The foregoing is applicable to the tendered trial amendment. Further, defendant did not move for continuance on the ground that......
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Estate of Menifee v. Barrett, 9719
...of such acts. (Emphasis added.) The trial court has wide discretion in allowing or denying the filing of amended pleadings. Pavlas v. Pavlas, 428 S.W.2d 880 (Tex.Civ.App.--Fort Worth 1968, no writ). However, by the terms of Rule 63, the trial court abuses its discretion by denying leave to ......
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Stecklein v. Stecklein, 14957
...the express language of the Act, this ground was not available to appellant in his prior suit filed before January 1, 1970. In Pavlas v. Pavlas, 428 S.W.2d 880 (Tex.Civ.App.--Fort Worth 1968, no writ), it was recognized that a judgment denying a divorce is not res judicata as to a cause of ......