Ralston v. Ralston

• Decision Date: 27 January 1972
• Docket Number: No. 7324,7324
• Citation: 476 S.W.2d 775
• Parties: Edna Dell Morgan RALSTON, Appellant, v. Norman Clark RALSTON, Appellee.
• Court: Texas Court of Appeals

Page 775

476 S.W.2d 775

Edna Dell Morgan RALSTON, Appellant, v. Norman Clark RALSTON, Appellee.

No. 7324.

Court of Civil Appeals of Texas,

Beaumont.

Jan. 27, 1972.

Robert K. Sutton, Charles Ben Howell, Dallas, for appellant.

Passman, Jones, Stewart, Andrews & Company, Dallas, for appellee.

KEITH, Justice.

This appeal was transferred to our court by an order of the Supreme Court equalizing the dockets of the several courts of civil appeal.

Understating the confused nature of the case, the appellant wife says in the opening paragraph of her original brief:

'This is an appeal from a temporary injunction awarded to a former husband against his ex-wife in a bill of review action where the former husband seeks to set aside a judgment in favor of the ex-wife granting to her both a divorce and a bill of review regarding a previous divorce. Needless to say, the circumstances are somewhat unusual.'

These unusual circumstances require a somewhat lengthy statement of the chronological course of this litigation through the courts. The parties had been married for many years and had acquired considerable community property but their marital life had not been smooth. In February 1968, the husband filed suit for divorce against the wife--suit being filed in Domestic Relations Court No. 2. A judgment was entered in this suit on June 5, 1968, and the decree approved a property settlement agreement. Thereafter, on December 28, 1968, the parties remarried.

In September 1970, husband filed another divorce suit, this time in Domestic Relations Court No. 3, but no final judgment has yet been entered in this cause. While this suit was pending in Court No . 3, the wife, on March 26, 1971, filed suit in Court No. 2 in the nature of a bill of review to set aside the first divorce decree and property settlement entered in 1968. She also sought a divorce to void the remarriage. The husband did not file a formal written answer in Court No. 2 in response to the wife's bill of review petition and a default judgment was entered against the husband. This default judgment set aside the prior judgment entered in 1968, including the property settlement, decreed all of the property owned by the parties to be community property and awarded each an undivided interest therein. The default judgment also granted wife a divorce dissolving the December 1968 marriage, awarded her custody of the minor children and required husband to support the children.

After this judgment (assuming its validity) had become final by operation of law, and on August 6, 1971, husband filed a suit in Court No. 2 in the nature of a bill of review seeking to set aside the default judgment entered in favor of the wife. Husband procured the issuance of a temporary restraining order in his action which was extended from time to time until a temporary injunction order was entered on September 9, 1971. The wife has appealed from the order granting the temporary injunction.

While the appeal was pending upon the docket of this court, husband moved for summary judgment in his bill of review proceeding and the trial court granted a partial summary judgment by an order entered December 31, 1971. Without stating the details of this order, it is sufficient to say that the trial court set aside the default judgment theretofore entered in favor of the wife granting her bill of review which, in turn, had overturned the 1968 decree.

This order of December 31, 1971, also contained a provision setting aside and holding for naught the order granting the temporary injunction which is attacked upon this appeal.

The order of December 31, 1971, contained several other adjudications, including one reading as follows:

'IT IS YET FURTHER ORDERED that the Temporary Orders heretofore entered in Cause No. 70--9863--DR/3 be and they are hereby reaffirmed without the necessity of hearing . . .'

The reference was to orders theretofore entered in the husband's 1970 action pending in Court No. 2.

Immediately after the entry of the order of December 31, 1971, setting aside the prior order granting the temporary injunction (the precise order which we then had pending), husband filed a motion to dismiss the appeal on the ground that the same was moot.

At such time, the cause was set upon our docket for submission and oral argument in Dallas for January 11, 1972, and we carried the appellee's motion to dismiss along with the case without taking any action thereon. When the case was reached for submission on January 11, 1972, appellant tendered for filing a lengthy supplemental transcript showing the developments in the case since the entry of the order from which the appeal was taken, an answer to the motion to dismiss, a supplemental brief, and a lengthy affidavit of appellant's counsel. It was also shown that appellant had perfected an appeal to the Court of Civil Appeals in Dallas from the order appointing a receiver but had not taken any steps to appeal from the order which resurrected the prior injunctions entered in 1970.

By another order entered on December 31, 1971, the trial court appointed a receiver 'to inventory, appraise, take charge of and administer, protect and preserve such properties (of the parties).' The appointment of the receiver was ordered 'to remain in full force and effect until further Order of this Court.'

Appellant promptly gave notice of appeal to the Court of Civil Appeals in and for the Fifth Supreme Judicial District, at Dallas, from the order...