Roberts v. Roberts , 193 S.W.2d 707 ( 1945 )

With all due respect to our Supreme Court, bowing in submission to the higher authority, I respectfully register a different conclusion in this appeal. The Supreme Court's decision (192 S.W.2d 774), is now the law in this case only because the Supreme Court said it was the law. I still adhere to my views hereinbefore stated; and further register discord on the doctrine of res judicata as an element in determining this appeal.

There can be no doubt that a judgment may be binding under the doctrine of res Judicata against one who is a party to the action, or who was present in court when the judgment was entered, or who had knowledge of the judgment. The premise for that doctrine is not present in this case. If the trial court had jurisdiction of the divorce case, had entered judgment for the divorce, and, at the same time, decreed attorney's fees to the wife, or denied attorney's fees to the wife, then, certainly, a judgment would be res judicata to any similar suit brought by her or her attorney for attorney's fees. But where divorce is refused or dismissed because of lack of statutory authority to render judgment, regardless ofthe cause, leaving the parties to the action still man and wife, the trial court was without jurisdiction to render judgment for the wife against her husband.

The right to render the judgment is the question submitted for proper adjudication in this suit. Certainly a dismissal of a divorce suit and a denial of attorney's fees because of the dismissal, does not litigate the fee, and would not be res judicata to a subsequent suit by either the wife or her attorney. The divorce was the jurisdictional issue; the attorney's fee an incidental contingent action. Ex parte Scott, 133 Tex. 1,123 S.W.2d 306, 313.

In Burguieres v. Farrell, 126 Tex. 209, 87 S.W.2d 463, a divorce was granted to the wife, with settlement of property rights (1931), and four days after the divorce was granted, the wife married Burguieres. In 1933 (two years thereafter), Mrs. Burguieres, joined by her husband, filed suit in equity in form of plea of review to set aside the judgment only as to settlement of property rights between herself and her former husband. By the proceedings, Mrs. Burguieres did not seek to set aside the former judgment for divorce. In the district Court judgment resulted denying Mrs. Burguieres any relief. On appeal, the judgment of the district court was affirmed by the Fort Worth Court of Civil Appeals. Mrs. Burguieres applied to the Supreme Court for writ of error; the application was dismissed, the Supreme Court holding that it was without jurisdiction to grant the writ, as the rights of the parties were involved in the divorce suit. The divorce suit was the primary action on which the claim for property rights was based.

In Celli v. Sanderson, Tex. Civ. App. 207 S.W. 179, property rights were involved in a divorce action. The appeal, as here, was only as to the property rights. The Galveston Court of Civil Appeals, in a divided opinion, affirmed the lower court. Application was made to the Supreme Court for writ of error; the writ was refused, with notation on the court's docket: "Dismissed for want of jurisdiction on authority of Kellett v. Kellett, 94 Tex. 206, 59 S.W. 809." In the Kellett case the suit was for divorce and for the determination of rights of property of the respective parties. In that case the Supreme Court dismissed the application for writ of error, saying [94 Tex. 206, 59 S.W. 810], "The words (in the statute) `all cases of * * * divorce' are as comprehensive as language can be made, and if this be a divorce case our jurisdiction is excluded. That it is such we think there can be no doubt. Though it involves rights of property, it is none the less a divorce case. The action is for the dissolution of the bonds of matrimony existing between the parties. Incidental thereto is the determination of the rights ofproperty held in the name of either or both of them." (Italics mine.)

So, in the case at bar there is no question but that the divorce was the sole primary cause of action between the spouses, and that the claim of the wife for attorney's fees was incidental. Without the divorce suit, undoubtedly the incidental claim for attorney's fees could not be litigated. Therefore, with the decree of dismissal of the divorce suit, the claim for attorney's fee could not be allowed as an independent action. The attorney's fee was contingent solely on the granting of the divorce.

In Peek v. Berry, Tex.Sup., 184 S.W.2d 272, 274, 156 A.L.R. 949, a judgment of dismissal was entered for failure to comply with the statutory rule for costs, and a similar suit was subsequently filed. The Supreme Court said: "We are of the opinion the doctrine of res adjudicata has no application in this case. A judgment of dismissal for failure to comply with the rule for costs is not ground for the plea of res adjudicata to a similar suit thereafter filed, since the dismissal onthis ground does not adjudicate the rights of the parties. Qualls v. Fowler, Tex. Civ. App. 186 S.W. 256, writ refused. Neither is the doctrine applicable ordinarily by reason of the mere sustaining of general or special exceptions to the petition. Kuehn v. Keuhn, Tex.Com.App., 242 S.W. 719; Schreff v. Missouri Pac. R. Co., 81 Tex. 471,17 S.W. 39, 26 Am. St. Rep. 828. A ruling sustaining a demurrer or exception is merely an interlocutory order and decides nothing but the sufficiency of the pleadings. Hill v. Nolan, Tex. Civ. App. 147 S.W. 365." (Italics mine.)

So, here, the trial court had no authority to grant the divorce because of plaintiff's lack of time as a resident of the State and County. When the suit was dismissed, the wife and husband remained a marital union, at liberty to become reconciled and thereafter live together. It is the undoubted policy of our laws to encourage reconciliation and discourage divorce, and to abhor separation of marital spouses (for any cause), particularly that which is calculated to prevent reconciliation. Though the husband is separated from, and not living with his wife, nevertheless he is her husband; and during coverture he is sole custodian and manager of community property and community rights. Only where the husband has abandoned the wife, or is prevented from exercising his dominant marital rights, is the wife recognized as the head of the family, and able to maintain a suit in her own behalf.

In this case the wife contested the right of her husband to divorce, and was successful in the trial; thus content to remain the subservient member of the union. Then, how could it be said that public policy of this State would be, under such circumstances, any less than if they had in fact effected a reconciliation. Clearly, the monetary judgment in favor of the wife for attorney's fees against her undivorced husband would be calculated to prevent or delay reconciliation, and "promotive of divorce." If public policy would be a bar to the wife's suit for attorney's fees because of reconciliation, it would be equally a bar where the divorce suit was dismissed at the instance of the wife. Public policy is as much a potent factor in the action of the trial court in dismissing the divorce suit for cause, thus allowing reconciliation of the parties, as if the record showed that they had perfected the reconciliation. The Supreme Court, in answer to the certified question, related [192 S.W.2d 777]; "We have no reconciliation, no resumption of marital relations. * * * What they did certainly was not `promotive of divorce.'" If that be true (the record is silent), then certainly what they did was "promotive" of reconciliation, which could reasonably be expected. Courts should not "promote divorces" by placing a barrier to reconciliation.

I adhere to my former conclusion; the opinion of Justice Brewster, for the Supreme Court, to the contrary notwithstanding.