Carver v. Huff , 1955 Tex. App. LEXIS 2133 ( 1955 )

NORTHCUTT, Justice.

This majority opinion has been prepared for announcement in lieu of a minority opinion. This was a Bill of Review filed by Sylvia Huff Carver and her husband, Tom Carver, appellants against Robert Lee (Bob) Huff, appellee, praying that the Bill of Review be.granted and that the judgment rendered in the same cause on December 1, 1952 insofar as it pertained to the approval of the property settlement between the parties be set aside; that said original cause be reopened and the court hear evidence as to the character, kind and value of the various community properties, real, personal, or mixed, belonging to said community estate as of December 1, 1952 or thereafter as well as to the nature, kind and character of the various monies, stocks, bonds, choses in action and other claims owned, held or possessed or in any manner vested in either the plaintiff or the defendant at said time and belonging to said community estate and that a fair division thereof be decreed in accordance with the facts as may be determined between the plaintiff and the defendant in said cause.

On December 1, 1952, judgment was entered in Cause No. 21,132 in the 72nd District Court of Lubbock County, Texas, granting Robert Lee Huff, appellee herein, a divorce from Sylvia Huff and granting Mr. Huff the custody of their three children and confirming the property settlement as theretofore made and entered into by and between Mr. and Mrs. Huff. In this Bill of Review, the only portion of said judgment that Mrs. Sylvia Huff Carver sought to have changed was the property settlement.

After hearing was had upon said Bill of Review, the trial court entered its judgment that Sylvia Huff Carver and husband, Tom Carver, take nothing by said petition for Bill of Review and from such judgment appellants perfected this appeal. The trial court prepared and filed its findings of fact and conclusions of law at the request of appellant and no exceptions were filed to such findings and conclusions.

Appellants present their appeal upon four points of error. The first two points of error were treated as group assignments. It is contended by these assignments that error was committed because the property settlement agreement in question was grossly unfair, unjust and inequitable; that all of the evidence offered upon trial of the petition for Bill of Review showed conclusively that such contract so approved and confirmed by the judgment of December 1, 1952 was grossly unfair, unjust and inequitable and that the plaintiff having failed to offer any substantial proof upon the trial of the divorce case that the property settlement contract was fair; that the trial court erred in denying the petitioner, Sylvia Huff Carver, any relief by her petition for a Bill •of Review.

Sylvia Huff Carver, without a single suggestion from anyone and without being influenced by anyone, selected and employed her attorneys to represent her in a divorce and in all matters concerning the original divorce suit filed by Bob Huff and all matters concerning her property settlement. It is undisputed that she was in communication with her attorneys at all times from the time before the divorce suit was filed until after the property settlement was made and entered into and was approved by the court in the divorce suit. She knew when the divorce trial was had and could have been present if she so desired. Her attorney of her own selection was present at the divorce trial and she and her attorney both knew that said property settlement was approved by the trial court and thereby let the trial court know by their silence that they approved such property settlement and in no manner raised any question as to the property settlement. They did not make a motion for a new trial but permitted said judgment to become a final judgment.

In the hearing on this Bill of Review, the trial court found, and we think correctly so, that the property settlement between Robert Lee Huff and Sylvia Huff was an unequal division of the community property and gave to Robert Lee Huff substantially more than one-half of the community property. But an inequitable settlement of the property alone is not sufficient to obtain a new trial after a judgment has become final. It is stated by the Comm. of Apps. in the case of Harding v. W. L. Pearson & Co., 48 S.W.2d 964, 965:

“(1) The rule is well established in this state that to obtain a new trial after the expiration of the term something more than that injustice has been done must be shown. It must appear: (1) That the former judgment was not caused by any negligence on him who seeks to set it aside, but that diligence was used to prevent it; (2) that he had a good defense to the action, which he was prevented from making by fraud, accident, or the acts of the op*posing party, wholly unmixed with any fault or negligence of his own; (3) that there is good cause to believe that a different result will be obtained by a new trial; and (4) the pleadings and issues of the former suit, and its result, must be set forth distinctly and clearly. It has also been established that bills seeking relief from final judgment, solemnly rendered in the due and ordinary course of the administration of justice by courts of competent jurisdiction, are always watched by courts of equity with extreme jealousy, and the grounds on which interference will be allowed are narrow and restricted. Johnson v. Templeton, 60 Tex. 238; Nevins v. McKee, 61 Tex. 412; Sharp v. Schmidt, 62 Tex. 263; Humphrey v. Harrell, Tex.Com.App., 29 S.W.2d 963; Empire Gas & Fuel Co. v. Noble, Tex.Com.App., 36 S.W.2d 451.”

Approving the Harding case, the Supreme Court in the case of Crouch v. McGaw, 134 Tex. 633, 138 S.W.2d 94, 96, stated:

“(1-6) A suit instituted for the purpose of setting a judgment aside and to retry the cause is an equitable proceeding, and the grounds on which such suit may be instituted are narrow and restricted. To obtain a new trial after the expiration of the term, something more than injustice must be shown. For a full statement of the essential requirements that must appear before a judgment may be set aside, we cite: Harding v. W. L. Pearson & Co., Tex. Com.App., 48 S.W.2d 964, and cases cited therein; Humphrey v. Harrell, Tex.Com.App., 29 S.W.2d 963; 25 Tex. Jur. p. 585, § 185. Respondents’ petition falls far short of meeting the requirements for a bill of review.”

The Supreme Court again affirmed the same rule in the case of Kelly v. Wright, Tex., 188 S.W.2d 983, at page 986 where it is stated:

“No rule of law is better settled than the one that a court of equity will not set aside a final judgment in a former action when the failure to have a full and fair presentation of the case therein resulted from the negligence, inadvertence or mistake either of the party seeking the relief or his counsel. Brownson v. Reynolds, 77 Tex. 254, 13 S.W. 986; Johnson v. Templeton, 60 Tex. 238; Smith v. Ferrell, Tex.Com. App., 44 S.W.2d 962; Harding v. W. L. Pearson & Co., Tex.Com.App., 48 S.W.2d 964; Reynolds v. Volunteer State Life Ins. Co., Tex.Civ.App., 80 S.W.2d 1087, writ refused; Brannen v. City of Houston, Tex.Civ.App., 153 S.W.2d 676, writ refused.”

There is ample evidence in this case to sustain the findings of fact by the trial court that appellant cooperated with appellee in the original divorce suit. It was the appellant that was anxious to secure a divorce and it was appellant that married the very day the divorce was granted. The undisputed record is that she and her counsel had the contract of settlement and went over the same together alone. She acknowledged in said agreement that she had full and complete access to all the records, bank accounts, bank settlements and all records whatsoever pertaining to appellee’s business over a period of the past ten years and that she was fully cognizant and aware of all the assets belonging to said estate and long after said divorce decree became final, she accepted money as provided for in said agreement. Schnautz v. Stelfox, Tex.Civ.App., 235 S.W.2d 473. She signed a waiver and entered her appearance in the divorce suit long after the contract was signed by her and knowing the same would be approved by the court. She later signed a supplemental agreement. She with her attorneys signed and approved the judgment in the divorce case which confirmed the property settlement. After the contract was drawn up, it was delivered to appellants’ attorneys and appellant and her attorney went over the contract and no one was present but appellant and her attorneys. Mr. Huff was not present nor anyone representing him. Appellant’s attorney testified he explained to Mrs. Huff the meaning of the agreement, and he felt, and knew that she did also, that there was more property than that and that they both agreed that they knew there was more and that Mr. Croslin, one of appellant’s attorneys, was very much , upset about it or so expressed himself that way that it was not an equitable agreement. Mr. Pharr further testified he and his law partner wanted to look further in the matter of her interest in the settlement but she prevented them from doing so. Glass v. Glass, Tex.Civ.App., 199 S.W.2d 678, writ dismissed. We are of the opinion and so hold there was sufficient evidence to support the findings of the trial court that the appellant was negligent in not presenting her objections at the divorce trial as to the agreement if she had any; that she was not prevented from presenting her defense as to this agreement by fraud, accident or the acts of the opposing party. It is a well settled rule that a trial court findings of fact will be upheld unless they are manifestly erroneous and will be overruled only when they are without any evidence to support them or when they are so against the great weight and preponderance of the evidence as to be manifestly wrong. Boston Ins. Co. v. Rainwater, Tex.Civ.App., 197 S.W.2d 118 and cases there cited. Appellants’ first and second assignments of error will be overruled.

By appellants’ points of error three and four, she complains that the property settlement agreement in question was illegal and void because it was entered into between the parties for the primary purpose of inducing the appellee to file a suit for divorce so that appellant could marry Tom Carver and, therefore, the property settlement was void. The trial court found that Sylvia Huff was not induced to execute the settlement agreement and to approve the judgment because of her fear of Robert Lee Huff but she was motivated in doing so by her desire to obtain a divorce so that she could marry Tom Carver whom she did marry on the same day the divorce was granted. Under the undisputed record in this case, appellant had already left appellee and employed her attorneys to file a divorce action against appellee and they were living apart prior to entering into said contract. Since they were living apart and in contemplation of an immediate divorce, as in this case, and the appellant had employed her attorneys to file a suit for divorce, they may validly make a contract settling their respective property rights and there would not necessarily be fraud. Since appellant voluntarily appeared and submitted to the jurisdiction of the court and a divorce was granted to appellee and relying upon that divorce and getting married on the same day and the court finding upon sufficient evidence there was no fraud on the part of appellee but that appellant was motivated by her desire to obtain a divorce so that she could marry Tom Carver, then appellant could not attack the property settlement as being illegal and void as presented by her points three and four. Moor v. Moor, Tex. Civ.App., 63 S.W. 347. Appellants’ third and fourth assignments of error are overruled.

Judgment of the trial court is affirmed.