Stecklein v. Stecklein, 14957

• Decision Date: 21 April 1971
• Docket Number: No. 14957,14957
• Parties: Frank C. STECKLEIN, Appellant, v. Kathleen M. STECKLEIN, Appellee.
• Court: Texas Court of Appeals

Page 421

466 S.W.2d 421

Frank C. STECKLEIN, Appellant, v. Kathleen M. STECKLEIN, Appellee.

No. 14957.

Court of Civil Appeals of Texas San Antonio.

April 21, 1971.

Dobbins, Howard & Harris, San Miguel, Porter, Madalinski, Mayo & Lee, San Antonio, for appellant.

BARROW, Chief Justice.

Appellant-husband has perfected this appeal from a judgment denying him a divorce from appellee-wife. The question presented is whether the trial court erred in holding that a prior judgment of January 8, 1970, denying husband a divorce was res judicata as to all transactions occurring between husband and wife before this date, although the statutory ground of insupportability urged by husband herein was not available to him at such time. No reply brief has been filed by appellee.

Appellant and appellee were married in 1949 and have two children, both of whom are over 18 years of age. Since 1967, this marriage has been severely torn by litigation if by no other cause. A judgment was entered on August 23, 1967, whereby the wife took a non-suit and husband's petition for divorce was denied. On November 20, 1967, judgment was entered in another cause denying his petition for divorce. He took a non-suit in another cause on January 16, 1969. He subsequently secured a divorce in Juarez, Mexico, on January 18, 1969, and is now living with another woman as husband and wife. Apparently, the validity of the Mexican divorce is questioned in that in the fall of 1969, husband filed another suit for divorce against appellee wherein he urged the statutory ground of mental cruelty.

In the meantime, Title I of the Family Code, Acts 1969, 61st Legislature, Chapter 888, was approved June 14, 1969, effective January 1, 1970, V.T.C.A. Section 3.01 thereof created a new ground for divorce, to wit: insupportability. This section provides in part that a divorce may be decreed without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation. Section 10 of said Act provides in part that in does not affect proceedings that were Begun before its effective date (January 1, 1970).

After January 1, 1970, husband sought to amend his pending petition for divorce so as to include the newly created ground of insupportability. The trial court expressly found that this ground for divorce was not applicable under the provisions of the Family Code and refused to consider same . No appeal was perfected from the denial of such divorce petition on January 8, 1970. Instead, husband filed the present action on January 22, 1970, where he alleged that the marriage had become insupportable as defined in Section 3.01, supra. At the trial of this cause, the court sustained wife's plea of res judicata and refused to permit husband to offer any evidence as to any transactions between the parties which occurred prior to January 8, 1970. Husband showed by bill of exception that the parties had no contact whatsoever subsequent to this date and perfected this appeal from the court's action in sustaining wife's plea of res judicata.

It is established that in order for a judgment in one suit to bar the bringing of a subsequent suit, there must be: identity in the thing sued for; identity of the cause of action; identity of persons and ...