Stubbs v. Stubbs

• Decision Date: 27 February 1985
• Docket Number: No. C-3127,C-3127
• Parties: Bernald Ross STUBBS, Petitioner, v. Ruth Yvonne STUBBS, Respondent.
• Court: Texas Supreme Court

Page 643

685 S.W.2d 643

Bernald Ross STUBBS, Petitioner, v. Ruth Yvonne STUBBS, Respondent.

No. C-3127.

Supreme Court of Texas.

Feb. 27, 1985.

Robertson, Railsback & Shoultz, William V. Dorsaneo, III and Stephen W. Shoultz, Dallas, for petitioner.

James J. Hartnett, Dallas, for respondent.

HILL, Chief Justice.

The question presented for our consideration is whether Ruth Stubbs has met the criteria enabling her to proceed by writ of error review in the court of appeals more than five months after judgment. Ruth Stubbs sought review by writ of error to the court of appeals from the divorce decree granting a divorce to her husband, Dr. Bernald Ross Stubbs. The court of appeals denied a motion by Dr. Stubbs to dismiss the petition for writ of error. 654 S.W.2d 838. In a separate opinion, the court of appeals reversed and remanded those portions of the trial court's judgment adjudicating the property division and child support and it affirmed the judgment in all other respects. 671 S.W.2d 70. We affirm the judgments of the court of appeals.

On September 30, 1982, Bernald and Ruth Stubbs signed an agreement incident to divorce prepared by Bernald's attorney. The agreement provided for the division of marital property and for the conservatorship and support of the Stubbs' minor child. Ruth Stubbs also signed a waiver of citation. She did not waive the making of a statement of facts. The next day, Dr. Stubbs appeared with his attorney before the trial court. No record was made of the trial court proceedings. The trial judge rendered a decree of divorce reciting that the court heard the evidence and argument of counsel in the case and incorporating the parties' agreement. The decree also recites that Ruth Stubbs did not appear in person or by an attorney. Ruth Stubbs petitioned for writ of error review of the court's decision concerning the division of marital property and the payment of child support. She did not raise conservatorship issues.

The four elements necessary for a review by writ of error are: (1) the petition must be brought within six months of the date of judgment; (2) by a party to the suit; (3) who did not participate in the trial; and (4) error must be apparent from the face of the record. Brown v. McLennan County Children's Protective Services, 627 S.W.2d 390, 392 (Tex.1982). It is undisputed that Ruth Stubbs timely petitioned for writ of error review and that she was a party to the suit. The issues presented here are whether she participated in the trial and whether error appears on the face of the record. We first consider Ruth Stubbs' participation.

Article 2249a, section 1, Tex.Rev.Civ.Stat.Ann., now rule 360(2), Tex.R.Civ.P., provided:

No party who participates either in person or by his attorney in the actual trial of the case in the trial court shall be entitled to review by the Court of Civil Appeals through means of writ of error.

[Emphasis added.] Dr. Stubbs contends that Ruth Stubbs participated in the trial within the meaning of article 2249a by signing the waiver of citation and the agreement incident to divorce.

We defined "actual trial" in Lawyers Lloyds of Texas v. Webb, 137 Tex. 107, 152 S.W.2d 1096, 1097 (1941) as ordinarily understood to be the hearing in open court, leading up to the rendition of judgment, on the questions of law and fact. We noted that article 2249a should be liberally construed in favor of the right to appeal. The courts have recognized that the extent of participation in the actual trial of the case disqualifying a party under article 2249a is a matter of degree. For example, taking part in all steps of summary judgment proceeding except appearance at hearing on the motion for summary judgment, Norman v. Dallas Cowboys Football Club, 665 S.W.2d 137 (Tex.App.--Dallas 1983, no writ); Thacker v. Thacker, 496 S.W.2d 201 (Tex.Civ.App.--Amarillo 1973, writ dism'd), or confession of judgment by attorney of record, Lewis v. Beaver, 588 S.W.2d 685 (Tex.Civ.App.--Houston [14th Dist.] 1979, writ ref'd n.r.e.), constitutes participation. Filing an answer, Phillips Petroleum Co. v. Bivins, 423 S.W.2d 340 (Tex.Civ.App.--Amarillo 1967, writ ref'd n.r.e.), or a motion for new trial, Lawyers Lloyds, is not participation.

We hold that signing the waiver of citation and the divorce agreement were not sufficient acts of participation to preclude Ruth Stubbs from obtaining writ of error review. We approve the court of appeals' holding in Blankinship v. Blankinship, 572 S.W.2d 807 (Tex.Civ.App.--Houston [14th Dist.] 1978, no writ), relied upon by Dr. Stubbs. We believe that case is distinguishable, however. Johnny Blankinship, who was denied writ of error review of a divorce judgment against him, not only waived citation; he expressly waived the making of a statement of facts, and he signed the judgment prior to its entry by the trial court.

We next consider the fourth element necessary for writ of error review--whether there is error apparent from the face of the record. The papers on file in the case do not contain a statement of facts. The official court reporter was unable to furnish Ruth Stubbs a record of the proceedings at trial. Ruth Stubbs contends that Texas Family Code section 11.14(d) required the court to make a record of the trial proceedings and that in this case the absence from the record of a statement of facts constitutes error on the face of the record. We agree.

Texas Family Code section 11.14(d) requires that a record be made in all suits affecting the parent-child...