Stacy v. Stacy

• Decision Date: 20 April 1972
• Docket Number: No. 5133,5133
• Citation: 480 S.W.2d 479
• Parties: Albert Clyde STACY, Appellant, v. Carolyn Doris STACY, Appellee.
• Court: Texas Court of Appeals

Page 479

480 S.W.2d 479

Albert Clyde STACY, Appellant, v. Carolyn Doris STACY, Appellee.

No. 5133.

Court of Civil Appeals of Texas Waco.

April 20, 1972.

Rehearing Denied May 25, 1972.

C. O. McMillan, Sam Cleveland, Stephenville, for appellant.

Bob L. Thomas, Waco, for appellee.

OPINION

James, Justice.

This is a divorce case. Mr. and Mrs. Stacy were married in 1967, and thereafter made their home in Erath County, Texas, at least until January 5, 1971. The record shows that at said last-named date, Mrs. Stacy permanently separated from her husband because of his abusive conduct towards her; whereupon she took their two-year old daughter and went to the home of Mrs. Stacy's parents in McLennan County, Texas, and they thereafter made their home with Mrs . Stacy's parents; that she took with her some items of household property and personal effects, and in addition thereto, she rented some storage space in McLennan County and stored some of her furniture; that she changed her mailing address to McLennan County, and engaged in some self-employed work in McLennan County; that between January 1971 and June 1971 she at all times intended that her home be in McLennan County; however, she never told Mr. Stacy that she was separating from him at all, and the first time he knew of this was when he was served with citation in her first suit for divorce in June 1971, as more particularly hereinafter discussed; that between said January and June, she and the child would make temporary trips or visits to Erath County but at no time did she sleep with Mr. Stacy; that between January and June on trips back and forth she continued to bring personal and household property from Erath County to McLennan County; that in June 1971, she hired a lawyer from Marlin, Texas, to file a suit for divorce. The Marlin lawyer filed the suit in Erath County, and citation was served upon Mr. Stacy. This was Mr. Stacy's first knowledge that she was separating from him. Mr. Stacy was a truck driver who apparently made long hauls and who was away from home several days at a time, and this accounts for the fact that he probably did not know between January and June 1971, that Mrs. Stacy had quit him in January and had changed her residence from Erath County to McLennan County, Texas.

When Mrs. Stacy learned that her divorce suit had been filed in Erath County, she 'fell out' with the Marlin lawyer and discharged him, and hired a lawyer from Waco, Texas, to be her lawyer.

Mrs. Stacy's new lawyer prepared a motion to dismiss the Erath County suit and sent it to the District Clerk of Erath County and a copy of an order of dismissal with the Judge's name signed to it was returned to the Marlin lawyer. At about this same time, to-wit, on August 13, 1971, her attorney filed a divorce suit for Mrs. Stacy in McLennan County, (from which this appeal is prosecuted) pursuant to which a citation was served on Mr. Stacy on September 30, 1971, and the citation, together with attached copy of Mrs. Stacy's petition, was delivered to Mr. Stacy's attorney of Stephenville, Texas, not later than October 2, 1971. Mr. Stacy's attorney did not at any time file any answer or make any appearance in the McLennan County case until after the entry of judgment in the McLennan County case. The transcript shows two judgments of divorce entered by the McLennan County Court, apparently identical except that one is dated October 25, 1971, and the other is dated October 27, 1971. The record does not reflect any reason why there are two judgments entered, and since no question is raised in this regard, we will assume the last one entered is the trial court's judgment.

Meanwhile, back in Erath County on August 25, 1971, (subsequent to the order of dismissal above referred to) Mr. Stacy's lawyer filed a cross-action for him, pursuant to which Mrs. Stacy was served with citation. Her lawyer filed a pleading called a special appearance challenging the jurisdiction of the Erath County Court, with copies furnished to Mr. Stacy's counsel. The District Judge of Erath County set a hearing on the special appearance plea for October 21, 1971, and then her lawyer called the District Judge by long distance telephone and requested that the hearing be postponed one week, until October 28, 1971, in order to enable him, Mrs. Stacy's lawyer, to attend the County Judges' Convention to be held in San Antonio, Texas. This request was granted. Mrs. Stacy's lawyer did attend the County Judges' Convention, but also during that same week, to-wit, on October 25, 1971, he went into the McLennan County District Court with his client, presented testimony, and obtained a default judgment in which a divorce was granted, as well as containing provisions for child custody, visitations and support, and disposition of community property. The testimony supporting the default judgment was not recorded.

Appellant-Defendant Mr. Stacy filed a motion for new trial in the McLennan County case on November 2, 1971, in which he moved the court to set aside the default judgment, grant a new trial and dismiss the case, and in which he reviews most of the background facts and then in paragraph six (6) he alleges the basis for his motion for new trial in the following language:

'The basis for the motion to set aside such judgment is that the said Carolyn Doris Stacy did not have the residential requirements of six-months' residence in McLennan County at the time of presentation of her case to the court and further, under the circumstances, the presentation of such case to the court at such time constitutes...