Sutherland v. Sutherland
Decision Date | 10 January 1978 |
Docket Number | No. 8507,8507 |
Citation | 560 S.W.2d 531 |
Parties | Vernon D. SUTHERLAND and Barbara Ann Sutherland, Appellants, v. Hazel Joyce SUTHERLAND, Appellee. |
Court | Texas Court of Appeals |
Charles H. Robertson, Johannes, Robertson & Wilkinson, Dallas, for appellants.
W. Lawrence Evans, Sherman, for appellee.
This is a suit brought under the Texas Uniform Declaratory Judgment Act seeking to vacate, annul, or hold void a portion of a divorce decree. Vernon D. Sutherland, appellant (plaintiff), brought suit against appellee (defendant), Hazel Joyce Sutherland, appellant's former wife, alleging that the trial court did not have power to treat future Fleet Reserve Retainer pay as property subject to partition under the previously entered divorce decree. Appellant requested the court to set aside or enjoin enforcement of those portions of the divorce decree which had awarded appellee one-half of the retainer pay and which had further ordered and directed appellant to pay to appellee one-half of all sums of retainer pay received by him after August 31, 1971. Appellant's present wife, Barbara Ann Sutherland, appellant (intervenor), filed a petition in intervention seeking to set aside or enjoin enforcement of the same sections of the judgment, but only as to retainer payments and sums received by her husband after January 20, 1972, the date of her marriage to Mr. Sutherland.
Trial was had without a jury and judgment was entered in favor of appellee, Hazel Joyce Sutherland. Appellant, Vernon D. Sutherland, has perfected his appeal and submits seventeen points of error for our consideration. His wife, Barbara Ann Sutherland, has perfected her appeal and submits nineteen points of error for our consideration.
When this case was originally tried in the District Court of Fannin County, Mr. Sutherland gave notice of appeal, but did not perfect his appeal from the divorce decree and the judgment awarding appellee one-half of all Fleet Reserve payments became final. When Mr. Sutherland failed to deposit one-half of the retainer payments into the registry of the court as ordered, the trial court held him in contempt. He then attempted to collaterally attack the judgment in this Court and in the Texas Supreme Court by writ of habeas corpus. Ex Parte Sutherland, 515 S.W.2d 137 (Tex.Civ.App. Texarkana 1974, writ dism'd); Ex Parte Sutherland, 526 S.W.2d 536 (Tex.1975).
Mr. Sutherland contended in the habeas corpus proceeding that the order in the divorce decree commanding him to pay the retainer payments was not enforceable by contempt proceedings because (1) the payments were not community property but were his earnings and therefore his separate property; (2) the divorce decree was, in effect, one for alimony which was void because it was beyond the power of the court and against the public policy of this state; and, (3) the order was merely a judgment for debt which could not be enforced by contempt.
This Court concluded that in a habeas corpus proceeding, the vested nature of Mr. Sutherland's retainer pay as a community asset was not open to question because the trial court's divorce decree had become final, and even if erroneous, it could not be collaterally attacked in a habeas corpus proceeding. We held that it was not sufficient to show that the order was erroneous. The Supreme Court in Ex Parte Sutherland, supra, held that the original divorce decree was not subject to collateral attack under the circumstances of this case...
To continue reading
Request your trial-
Sutherland v. Sutherland
...even if deemed a bill of review, would be barred by the four-year statute of limitations. Tex.Rev.Civ.Stat.Ann. art. 5529. Sutherland v. Sutherland, 560 S.W.2d 531 (Tex. Civ.App.—Texarkana 1978, writ ref'd n.r. e.). Barbara was also precluded by the doctrine of res judicata from collaterall......
-
Segrest v. Segrest
...not a remedy available to him to set aside the final decree of divorce rendered in 1974. Sutherland v. Sutherland, 560 S.W.2d 531, 533 (Tex.Civ.App.--Texarkana 1978, writ ref'd n.r.e.). Being a final, unappealed and valid judgment, Mr. Segrest's suit for declaratory judgment constitutes bot......
-
Wagner v. D'LORM
...jurisdiction to use declaration to construe substantive provisions of land-partition judgment); Sutherland v. Sutherland, 560 S.W.2d 531, 533 (Tex.Civ. App.-Texarkana 1978, writ ref'd n.r.e.) (no jurisdiction to construe relative rights and duties of parties with respect to provisions of fi......
-
Lawrence v. Lawrence, 06-95-00048-CV
...the four-year statute of limitations, TEX.CIV.PRAC. & REM.CODE ANN. § 16.051 (Vernon 1986); Sutherland v. Sutherland, 560 S.W.2d 531, 533 (Tex.Civ.App.--Texarkana 1978, writ ref'd n.r.e.). As for the tolling of the statute due to fraud, a cause of action generally accrues when facts come in......
-
Chapter 8-10 Declaratory Judgment
...no pet. h.).[418] Dallas Cty. Tax Collector v. Andolina, 303 S.W.3d 926, 930 (Tex. App.—Dallas 2010, no pet.); Sutherland v. Sutherland, 560 S.W.2d 531, 533 (Tex. Civ. App.—Texarkana 1978, writ ref'd n.r.e.); Cohen v. Cohen, 632 S.W.2d 172, 173 (Tex. App.—Waco 1982, no writ).[419] Tex. Civ.......