Perusse v. Perusse, 5826

• Decision Date: 27 April 1966
• Docket Number: No. 5826,5826
• Citation: 402 S.W.2d 931
• Parties: Roland I. PERUSSE, Appellant, v. Patricia Godley PERUSSE, Appellee. . El Paso
• Court: Texas Court of Appeals

Page 931

402 S.W.2d 931

Roland I. PERUSSE, Appellant, v. Patricia Godley PERUSSE, Appellee.

No. 5826.

Court of Civil Appeals of Texas El Paso.

April 27, 1966.

Rehearing Denied May 18, 1966.

Irion & Rash, El Paso, for appellant.

Collins, Langford, Pine & Woodard and John A. Langford, El Paso, for appellee.

FRASER, Chief Justice.

This is an appeal from an order of the District Court of El Paso County, Texas granting and sustaining a plea in abatement. The question before this court is whether or not the appellant, Roland I . Perusse, is entitled to a trial in the District Court below to seek and obtain a divorce from the appellee, Patricia Godley Perusse .

The appellant is a resident of El Paso County, Texas, and is employed as a professor of political science at Texas Western College. He and the appellee were married on February 19, 1944, in Bayside, New York. There were three children born of the marriage, only two of whom are subject to the jurisdiction of the Texas court because of their age. Nancy Jean Perusse is a female child, now ten years of age, and Dawn Louise Perusse is a female child, now fourteen years of age. On September 3, 1964, in the State of Maryland, the parties voluntarily agreed to separate as husband and wife. Pursuant to this agreement, the appellant had the custody and control of Nancy and the appellee of Dawn.

Subsequently, appellant filed his original petition in the court below on July 6, 1965. Therein he sought a divorce from appellee pursuant to the provisions of Art. 4629(1), Vernon's Ann.Tex.St., as well as custody of Nancy. Non-resident citation was issued by the clerk of the court on July 23, 1965, and service was obtained on the appellee in Maryland on August 9, 1965. On July 22, 1965 the appellee instituted a divorce proceeding in the Circuit Court for Montgomery County, Maryland, sitting as a Court of Equity. This action sought a divorce 'a mensa et thoro' pursuant to the provisions of Art. 16, section 25 of the Annotated Code of Maryland 1957, and also prayed for the custody of Dawn. The appellee filed her plea in abatement on or about September 3, 1965, and sought to have the Texas divorce proceeding abated because of the alleged Maryland divorce proceeding.

Thereafter, appellant Perusse filed an amended original petition in the court below on September 8, 1965, which amplified his original petition by also seeking custody of Dawn. Non-resident citation was subsequently issued and served on the appellee in Maryland. Thereafter, the appellee filed an amended petition in the Maryland court on September 20, 1965, also seeking custody of both minor children.

On November 2, 1965, appellee filed an 'Amended Plea in Abatement' in the court below, which proceeded to a hearing on November 10, 1965. Therein, the trial court ordered that this cause be abated, 'provided that the Court is furnished with an authenticated copy of the amended or other pleadings wherein an absolute divorce is prayed for in the cause now pending in the State of Maryland, wherein the Defendant is Plaintiff and the Plaintiff herein is Defendant; and it is further Ordered that no order sustaining said Plea should be entered of record until such time as said authenticated copy is furnished to the Court.'

The record does not show that the proof required above by the court's order was ever furnished. Appellant then filed his 'Motion for Rehearing' asking that the plea in abatement be denied or modified by the court so that it would be final in nature, rather than interlocutory. The court heard this motion for rehearing on December 10th. We think it advisable to include some of the wording of the first 'Order' of the trial court with reference to the plea in abatement. The court stated as follows:

'IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that said Plea in Abatement be, and is hereby sustained, provided that the Court is furnished with an authenticated copy of the amended or other pleadings wherein an absolute divorce is prayed for in the cause now pending in the State of Maryland, wherein the Defendant is Plaintiff and the Plaintiff is Defendant; and it is FURTHER ORDERED that no order sustaining said Plea should be entered of record until such time as said authenticated copy is furnished to the Court.'

This is the last paragraph of the Order and is dated November 10, 1965 and signed by the trial judge. After this order was entered, plaintiff Roland I. Perusse filed his motion for rehearing, and on December 10, 1965 the trial court issued another order in which he stated that the motion (presumably the motion for rehearing) should be granted. The court then goes on to say that it is ordered, adjudged and decreed that the plea in abatement heretofore filed herein on behalf of the defendant, Patricia Godley Perusse, 'is hereby in all things granted'; and that the cause pending in El Paso County 'is hereby abated' pending outcome of the divorce action between the same parties in Montgomery County, Maryland, in cause numbered 30,292.

We shall treat appellant's four points together, for the sake of clarity and brevity. These points generally complain of the court's action because appellant's original suit for divorce was filed before any suit was filed in Maryland; that the two actions, one in Texas and the other in Maryland, are not the same in nature or in the relief prayed for; and lastly, that appellant, by filing his amended petition in September, 1965, complied with the residential requirements for this type of action. We believe that appellant's position and his points of error must be sustained for the following reasons.

The record shows that at the time appellant filed his amended petition, which complied then with the residential requirements for a divorce suit in Texas, the appellee had filed for a divorce 'a mensa et thoro' in Maryland which, according to the references in the record here, is actually, viewed from a Texas standpoint, a legal separation and not an absolute divorce. For example, neither party can re-marry, and for other purposes, such as adultery, both parties are considered to be still married. Therefore, the plea in abatement filed attempted to abate a suit in Texas which was for a complete and final divorce, on the basis that a suit for legal separation had been filed in Maryland. It has long been held that a cause may be abated only where both actions or causes of action are the same and ask for the same relief. 1 C.J.S. Abatement and Revival § 40; 1 Tex.Jur.2d, Abatement and Revival, § 34; Payton v. Hurst Eye, Ear, Nose & Throat Hosp. & Clinic (Tex.Civ.App.), 318 S.W .2d 726 (reh. den.); Hatten v. City of Houston (Tex.Civ.App.), 373 S .W.2d 525 (err. ref., n.r.e.). A full and complete divorce comparable to that sought by appellant in Texas is described by the Maryland laws as a divorce 'a vinculo matrimonii'. It is clear, therefore, that at the time the court here heard the matters involved, and issued its two orders, that the appellee in the Maryland court had not filed or asked for anything more than a 'bed and board' legal separation. This, in our opinion, would not suffice to abate the complete divorce decree asked for by appellant. This matter is well set out in 31 A.L.R.2d 442, which states the following at page 447:

'On the other hand, the pendency of action between the same parties for separation on the ground of abandonment and nonsupport was held not to bar an action for absolute divorce in Hall v. Hall (1912) 150 AppDiv 688, 135 NYS 741. The decision was rested on the ground, among others, that 'the two actions are brought on different grounds for different...