Strange v. Strange, 17120

• Decision Date: 10 July 1970
• Docket Number: No. 17120,17120
• Citation: 464 S.W.2d 216
• Parties: Matthew Douglas STRANGE, Appellant, v. Linda STRANGE, Appellee.
• Court: Texas Court of Appeals

Page 216

464 S.W.2d 216

Matthew Douglas STRANGE, Appellant, v. Linda STRANGE, Appellee.

No. 17120.

Court of Civil Appeals of Texas Fort Worth.

July 10, 1970.

Supplemental Opinion July 21, 1970.

Rehearing Denied Sept. 18, 1970.

Schenk & Wesbrooks, and Perry Wesbrooks, Wichita Falls, for appellant.

Martin & Richie, and Howard L. Martin, Wichita Falls, for appellee .

OPINION

PER CURIAM.

The appeal is by a defendant from a judgment granting divorce, apportionment of property, and placement of the custody of the minor child of the parties in the plaintiff. The plaintiff was Linda Strange. The defendant/appellant was her husband, Matthew Douglas Strange.

Appearance in the case as originally filed was made by the defendant under provisions of Texas Rules of Civil Procedure 120, 'Entering Appearance'. By an agreed order of the court the duties attendant to the temporary custody of the parties' minor child was directed to be discharged by the plaintiff wife. In other words, custody of such child, pending a hearing on the merits, was granted to the mother.

Thereafter the parties reconciled and for a period of a very few days resumed relations as husband and wife. Within a week the parties separated. The husband took the minor child and left for parts unknown, admittedly outside the State of Texas. There was no non-suit and there was no dismissal order.

After having thus departed the defendant filed an instrument denominated, 'Defendant's Special Appearance', purporting to be filed under the provisions of T.R.C.P. 120a, 'Special Appearance', for the purpose of objecting to the jurisdiction of the court. Therein the defendant alleged the reconciliation of the parties, as aforementioned, and asserted, 'That when such reconciliation occurred, such reconciliation ended the litigation in the above numbered and entitled cause as a matter of law.'

On November 6, 1969, pursuant to or immediately prior to the trial of the case on the merits, of which the defendant's attorney had notice, the court entered an order which recited that the defendant's 'plea to the jurisdiction' of the court was overruled. On the same day the plaintiff had filed her Second Amended Original Petition, of which the defendant apparently had no notice. (One and one-half months earlier the plaintiff had filed the first of her amended original petitions, in response to which the defendant plead under the theory that he was making a 'special appearance'.) At the conclusion of the trial a judgment was rendered purporting to dispose of the case on its merits.

At the time of this hearing the defendant did not appear, either in person or by attorney. In its judgment the court stated that it had concluded 'that this Court does have jurisdiction of the person of the defendant, Matthew Douglas Strange, of the minor child, Shannon Strange, and of the subject matter of this suit.' The judgment proceeded to adjudicate all facets of the divorce suit, including custody of the parties' minor child.

On the appeal it is stated in behalf of the defendant that 'This appeal to this Honorable Court of Civil Appeals is undertaken expressly subject to Appellant's Special Appearance and pleas to the jurisdiction of the Court.'

Defendant's points of error include attacks upon the jurisdiction of the trial court in regard to the person of the minor child of the parties, in regard to the person of the defendant, in regard to jurisdictional power to make a decree of any kind relative to divorce, apportionment of property contingent upon the granting of a divorce, and/or to custody of the minor child of the parties, etc. His points also present an attack upon the evidence and the findings and conclusions on the part of the court made thereon, qualification of the plaintiff to prosecute her action for divorce without waiting 60 days from the date of her petition (considered as either her first or second amended original petition therefor) and present other alleged errors.

The plaintiff/appellee has filed a Motion to Dismiss the Appeal. We have concluded that her motion is justified and should be granted subject to the condition that the defendant/appellant be afforded opportunity to remove that barrier to our consideration of his appeal which he has himself created.

However, since it might be of some value in future cases we take occasion to point out that whatever question might exist relative to the trial court's jurisdiction in other respects it had attached and was never relinquished as applied to the custody of the minor child of the parties. This Court has had occasion to make deliberate inquiry into the law in that respect. See McClendon v. McClendon, 289 S.W.2d 640 (Fort Worth Tex.Civ.App., 1956, no writ hist.). There could be no profitable application by defendant of his theory that under Jones v. Jones, 128 Tex. 309, 97 S.W.2d 949 (1936) (answering certified questions) his reconciliation with the plaintiff had eliminated her original divorce case. Nothing in Jones v. Jones contradicts any holding we made in McClendon v. McClendon relative to the continuation of the custodial jurisdiction of a trial court over a minor child, once obtained and not specifically relinquished.

There may be some merit in the points of error which the defendant desires to present on his appeal, but he admittedly presents himself to this appellate court with what might be termed 'unclean hands', in that he withholds from the trial court, and likewise from the person designated by the court as its agent, custody of the person of the minor child of the parties. In so doing he has flaunted the order of the trial court contrary to principles of justice and to public policy. 4 Am.Jur.2d, p. 734, 'Appeal and Error', Sec. 239, 'Failure to obey trial court order'.

Relative to the matter of propriety of the dismissal of an appeal because of disobedience of an order of a trial court, see the cases annotated in 49 A.L.R.2d 1425, 1429, under the Annotation: 'Dismissal of appeal for appellant's failure to obey court order'. See also 163 A.L.R. 1319, Annotation: 'Jurisdiction of trial or appellate court in respect of custody of children pending appeal from order or decree in divorce suit'. There is no doubt of our right to dismiss the appeal because of the appellant's disobedience of the order of the trial court. Hays v. Brandon, 245 S.W.2d 381 (Fort Worth Tex.Civ.App., 1951, no writ hist.), discussing Burckhalter v. Conyer, 7 S.W.2d 73, by the Texas Commission of Appeals.

However, we prefer to encourage proper action on the part of the defendant/appellant, and although recognizing that there is no obligation on our part to be thus lenient we have determined to afford the defendant an opportunity to restore himself to the civilized community as a law-abiding member thereof and to abandon his attempt to live 'outside the law'.

In a sense influenced and guided by the action of the court in ...