Rogers v. Rogers

• Decision Date: 04 January 1978
• Docket Number: No. B-6798,B-6798
• Citation: 561 S.W.2d 172
• Parties: Frank Odis ROGERS, Petitioner, v. Teri Lyn ROGERS, Respondent.
• Court: Texas Supreme Court

Page 172

561 S.W.2d 172

Frank Odis ROGERS, Petitioner,

v. Teri Lyn ROGERS, Respondent.

No. B-6798.

Supreme Court of Texas.

Jan. 4, 1978.

Sudderth, Woodley & Dudley, Keith Woodley, Comanche, for petitioner.

Darrell E. Haynes, Brownwood, for respondent.

CHADICK, Justice.

The District Court of Mills County rendered a default judgment granting Mrs. Teri Lyn Rogers a divorce from her husband, Frank Odis Rogers. The judgment contained an order appointing Mrs. Rogers managing conservator of the couple's infant son and made other orders appropriate to a suit affecting the parent-child relationship. After becoming aware of the judgment Mr. Rogers, by writ of error, brought the case to the Court of Civil Appeals for review. The record brought forward did not contain a Statement of Facts. The official court reporter did not attend and report the trial court's proceedings. Mr. Rogers made no effort to secure a Statement of Facts from any source other than the official court reporter.

The sole ground for reversal in the Court of Civil Appeals was Mr. Rogers' inability to obtain a Statement of Facts. That Court affirmed the judgment, concluding that Tex.Rev.Civ.Stat.Ann. art. 2324 did not impose a duty on the official court reporter to record the testimony in this case, absent a request to do so. No request was made by either party. 549 S.W.2d 471.

This Court has jurisdiction because the holding of the Court of Civil Appeals conflicts with Smith v. Smith, 544 S.W.2d 121 (Tex.1976). Tex.Rev.Civ.Stat.Ann. arts. 1728, 1821. In Smith a new trial was ordered when failure to obtain a Statement of Facts in a writ of error appeal resulted from no fault of the appealing party. For a conflict to exist between the decision of a Court of Civil Appeals and a prior decision of the Supreme Court the ruling of the Court of Civil Appeals "must be so far upon the same state of facts that decision of one case is necessarily conclusive of the decision in the other." Gulf, Colorado & Sante Fe Railway Co. v. Hamilton, 126 Tex. 542, 89 S.W.2d 208 (1936); Garitty v. Rainey, 112 Tex. 369, 247 S.W. 825 (1923); 15 Tex.Jur.2d, Courts, § 32.

Smith v. Smith, supra, was a suit for divorce and child custody. The petitioner filed responsive pleadings to his wife's suit but did not appear personally or by counsel at the hearing on the merits. Judgment was entered granting the wife a divorce and awarding her custody of a minor child. The record disclosed that the court reporter did not attend the trial and was unable to furnish petitioner a Statement of Facts and that the trial judge had no independent memory of the facts and would not undertake to prepare a statement.

The procedural posture of this case and Smith differs only in that Rogers did not timely file responsive pleadings. The factual difference in the cases is that the record in this appeal does not show whether or not the trial judge could recall the facts adduced in the trial. Otherwise the procedural and factual circumstances of the two cases correspond in detail. It may also be noted that the record here presents no question of failure to object to the absence of the reporter or waiver of his presence at the trial as Rogers was not present in person or by counsel and could do neither.

The procedural difference in the cases is of no significance as it pertains to the scope of default and not to the fact that default occurred. The factual difference also is without materiality or significance as, prior to Smith, this Court approved a holding that diligence in obtaining a Statement of Facts in a default judgment case did not require the appealing party to exhaust the provisions of Tex.R.Civ.P. 377(d). An appellant is not required to undertake to agree with an adversary upon the facts adduced at the trial or to rely upon the unaided memory of the trial judge who...