Walton v. Johnson

• Decision Date: 23 June 1994
• Docket Number: No. 12-92-00297-CV,12-92-00297-CV
• Citation: 879 S.W.2d 942
• Parties: Martha Jane WALTON, Appellant, v. Jack Vernon JOHNSON, Appellee.
• Court: Texas Court of Appeals

Page 942

879 S.W.2d 942

Martha Jane WALTON, Appellant, v. Jack Vernon JOHNSON, Appellee.

No. 12-92-00297-CV.

Court of Appeals of Texas,

Tyler.

June 23, 1994.

Rehearing Denied July 28, 1994.

Kenneth R. Barron, Tyler, for appellant.

Samuel M. George, Tyler, for appellee.

Before RAMEY, C.J., and BILL BASS and HOLCOMB, JJ.

RAMEY, Chief Justice.

This is an appeal from a summary judgment. Appellee Jack Vernon Johnson ("Johnson") brought this action against his ex-wife, Appellant Martha Jane Walton ("Walton"), to divide certain properties not specifically divided in the divorce decree terminating their marriage. After considering motions for summary judgment filed by both parties, the trial court found the contested bank accounts to have been community property and divided them; the remaining contested property, certain oil and gas interests, were found to have been the separate property of Walton. We will reverse the summary judgment with respect to the bank accounts, remanding such claims for further proceedings, and will affirm it with respect to the oil and gas properties.

Johnson and Walton were married in 1966. In 1990, Walton filed for divorce, and, on June 5, 1990, the trial court entered a decree of divorce. At the time of such decree, Walton owned, in her own name, the following:

1) Money on account at financial institutions ("the bank accounts"), ¹ and

2) Five oil and gas interests (the "mineral estates").

These disputed properties were nowhere mentioned in the original divorce proceedings, nor in the divorce decree entered June 5, 1990.

The present action for post-divorce partition of these properties was filed by Johnson on October 15, 1990 as authorized by TEX.FAM.CODE ANN. § 3.90 (Vernon 1875). Walton answered that these properties were inherited from her father, and thus were her separate property, not subject to division on divorce. After discovery, both parties filed motions for summary judgment. The trial court resolved the whole action by summary judgment, dividing the bank accounts evenly between the parties and awarding the mineral estates entirely to Walton. Walton filed the present appeal, complaining of the division of the bank accounts only, and Johnson cross-appealed, assigning error in the trial court's failure to partition the subject mineral interests.

Walton brings two points of error with respect to the judgment dividing the bank accounts, arguing that Johnson failed to prove the elements of his cause of action as a matter of law and that he failed to establish the absence of a material factual dispute.

In evaluating a summary judgment motion an appellate court must, first, determine whether the summary judgment motion and supporting proof establish the necessary facts and apply the relevant law so as to entitle the movant to judgment as a matter of law. Carter v. Charles, 853 S.W.2d 667, 670 (Tex.App.--Houston [14th Dist.] 1993, no writ). If the motion and supporting evidence make the requisite showing, the judgment can then be upheld only if the non-movant's response fails to raise a genuine issue of material fact precluding the summary judgment. Ibid.

Johnson's motion for summary judgment rests entirely on the doctrines of res judicata and collateral estoppel. He asserts that the original decree of divorce characterized all the parties' property at that time as community property, and that the equal division of such property made in the divorce decree should, by virtue of the presumption in favor of community property, preclude Walton from asserting its separate character here.

Collateral estoppel, or issue preclusion, bars the re-litigation of factual issues when

1) the relevant contested facts were fully and fairly litigated in the prior action,

2) such facts were essential to the judgment in the first action, and

3) the parties were adversaries in the first action.

El Paso Natural Gas Co. v. Berryman, 858 S.W.2d 362, 364 (Tex.1993). Collateral estoppel is not applicable here because the status of the disputed properties was never litigated in the divorce proceedings and was not essential to the judgment in the first action.

Res judicata, or claim preclusion, is a broader, judicially-determined plea, barring the retrial of claims pertaining to a cause of action which has been finally adjudicated. Coalition of Cities v. PUC, 798 S.W.2d 560, 562-63 (Tex.1990). It has traditionally operated to preclude the assertion of claims when, in the second suit, there is an identity of parties, issues, subject matter, relief sought, and causes of action with respect to the prior action. Wright v. Wright, 710 S.W.2d 162, 164 (Tex.App.--San Antonio 1986, writ ref'd, n.r.e.). The preclusive effect of res judicata is broader than that of collateral estoppel because the prior judgment bars not only the assertion of claims explicitly litigated in the prior suit, but also claims arising out of the same subject matter which could have been litigated in the first suit. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 630 (Tex.1992).

Despite this wider applicability of the doctrine of res judicata, it does not apply to this action, since the issues and subject matter of this action, and the issues and subject matter considered by the divorce court, are not identical. A court, upon the dissolution of a marriage, is authorized to divide the "estate of the parties." Section 3.63, TEX.FAM.CODE ANN. The "estate" which the court is authorized to divide is the community estate; the court may not divide separately-owned property or transfer title of such property from one spouse to the other. Eggemeyer v. Eggemeyer, 554 S.W.2d 137 (Tex.1977). This restriction applies to personal as well as to real property. Cameron v. Cameron, 641 S.W.2d 210, 213 (Tex.1982). Walton's separate property was not included in the community estate presented to the divorce court for division; the subject matter of the claims made here is entirely distinct from and independent of the subject matter disputed in the divorce. Johnson is correct in asserting that the claims involved here might have been raised in the divorce action. But the application of res judicata requires more, that claims that could have been raised must also have arisen out of the same subject matter. Barr v. Resolution Trust Co., 837 S.W.2d at 630-31. The doctrine of res judicata is therefore inapplicable. ²

More importantly, Johnson's position--that Walton's prior failure to establish that the disputed properties were her separate property requires now that they be adjudged community property--would impermissibly effect the divestiture of Walton's separate property, in violation of the prohibition in the TEXAS CONSTITUTION against depriving a citizen of her property "except by the due course of the law of the land." TEX. CONST. art. I, § 19. The Eggemeyer case makes quite clear that one's right to own property, including one's separate property, is "fundamental, natural, inherent, inalienable, not derived from the legislature and as preexisting even constitutions." Eggemeyer, 554 S.W.2d at 140. Johnson's proposed application of the doctrine of res judicata would deprive Walton of part of her separate property without notice of such claim or a hearing on the merits, the touchstones of "due course of law." See Nelson v. Clements, 831 S.W.2d 587, 591 (Tex.App.--Austin 1992, writ denied).

Second, the separate character of property acquired during marriage by "gift, devise, or descent" is constitutional in nature. TEX. CONST. art. XVI, § 15. "The nature of property is fixed by the Texas Constitution, and not by what is 'just and right'." Eggemeyer, 554 S.W.2d at 140. The legislature has no power...