Novotny v. Novotny

665 S.W.2d 171, 1983 Tex. App. LEXIS 5635
CourtCourt of Appeals of Texas
DecidedDecember 29, 1983
Docket01-83-0333-CV
StatusPublished
Cited by25 cases

This text of 665 S.W.2d 171 (Novotny v. Novotny) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Novotny v. Novotny, 665 S.W.2d 171, 1983 Tex. App. LEXIS 5635 (Tex. Ct. App. 1983).

Opinion

OPINION

JACK SMITH, Justice.

The primary issue in this divorce case is whether a final judgment had been rendered where the trial court had adopted a Master’s report, but prior to entry of a formal divorce decree, the husband died. After several hearings, the trial court concluded that the divorce had been granted and entered a formal decree on that basis. The appellant wife raises nine points of error on appeal.

The record shows that the trial judge referred all issues to a Master pursuant to Rule 171 of the Tex.R.Civ.P. On May 19, 1982, the parties appeared before the Master and announced that this was an agreed divorce proceeding. The Master heard evidence and made a written report to the judge on that same date, and copies of the Master's report were furnished to all parties. On May 24, 1982, no written objections having been filed to the Master’s report, the judge “adopted, confirmed and ordered” the Master’s report. On June 14, 1982, Mr. Novotny died from a gunshot *173 wound inflicted by Mrs. Novotny. Thereafter Mrs. Novotny filed a motion to dismiss the suit, and the administrator of Mr. Novotny’s estate and the guardian ad litem representing the couple’s children filed motions to enter judgment on the Master’s report. After several evidentiary hearings the trial judge entered a final judgment granting a divorce on March 24, 1983.

The final divorce decree tracks the findings of the Master’s report with the exception of two items. These two items were that an injunction was to issue as per decree and thirteen items of personal property, awarded to Mrs. Novotny, referred to but not itemized in the Master’s Report, would be listed in the decree. All issues pertaining to the divorce were decided in the Master’s Report and adopted by the court.

In her point of error number one, the appellant urges that the trial court erred in signing and entering the divorce decree after the death of one of the parties to the suit. She argues that the death of one of the parties abates a divorce action, and cites the recent Supreme Court case of Whatley v. Bacon, 649 S.W.2d 297 (Tex.1988) as authority for her position. What-ley is distinguishable from the instant case in that a final hearing had not been held to determine the issues involved in the case. In Whatley, we note that the Supreme Court cited Garrison v. Texas Commerce Bank, 560 S.W.2d 451 (Tex.Civ.App.— Houston [1st Dist.] 1977, writ ref’d n.r.e.) as authority for the proposition that “death of a party abates a divorce action ...”. In Garrison, Chief Justice Coleman stated as follows:

It is well settled that a cause of action for a divorce is purely personal and that the cause of action for a divorce terminates on the death of either spouse prior to the rendition granting a divorce. (emphasis added)

In the instant case, as heretofore stated, the suit was set for trial and referred by the trial judge to a Master. The Master heard the proceeding on an agreed basis, made his findings, and five days later, no objections having been received to the Master’s report, the trial judge “adopted, confirmed and ordered” the Master’s report approved.

When issues are referred to and heard by a Master under Rule 171,. the Master’s report is conclusive on the issues considered by the Master in the absence of a proper objection. Cameron v. Cameron, 601 S.W.2d 814 (Tex.Civ.App.—Dallas 1980, no writ). A party dissatisfied with the report has the burden to make specific objections before the report is adopted by the court. Cameron, supra. No objections to the Master’s report were filed by either party to this cause of action prior to its adoption by the court.

The next consideration is whether the adoption of a Master’s report by a court is tantamount to a rendition of judgment by the court. A rendition of judgment is the pronouncement by the court of its conclusions and decision upon the matters submitted to it for adjudication. Such conclusions and decisions may be oral or written, and judgment is rendered when the decision is officially announced either orally in open court or by a memorandum filed by the clerk of the court. Comet Aluminum Co., Inc. v. Dibrell, 450 S.W.2d 56 (Tex.1970); Dunn v. Dunn, 439 S.W.2d 830 (Tex.1969).

The principle that a memorandum, dispositive of all issues in a case, is a valid rendition of judgment is predicated upon the supportive principle that the entry of a trial judgment is only a ministerial act. In this connection, the memorandum is analogous to an oral pronouncement of judgment by the court. See and compare Ex parte Olivares, 662 S.W.2d 594 (Tex.1983); Dunn v. Dunn, supra; Williams v. Wyrick, 151 Tex. 40, 245 S.W.2d 961 (1952). Thus, a written judgment signed by the trial judge is not a prerequisite to finality of a judgment. Texas State Board of Examiners In Optometry v. Lane, 337 S.W.2d 801 (Tex.Civ.App.—Fort Worth 1960, writ ref’d). Accordingly, we conclude that the death of one of the parties does *174 not abate a divorce action where a prior court order disposing of all issues has been rendered. The appellant’s first point of error is overruled.

The appellant’s eighth point of error is somewhat analogous to her first point of error in that the appellant alleges that the issues became moot when Mr. No-votny died. A case may become moot on appeal and in such an event the case should be dismissed. However, in the instant case the property rights of the parties would be significantly affected depending upon whether the marriage had been terminated by divorce decree or by death. In the instant case the proceeds of certain employment benefits and an insurance policy would go to the appellant if the marriage was terminated by death. On the other hand, these proceeds would go to other parties if the marriage was terminated by divorce decree. Under these circumstances we conclude that the trial court was correct in holding that the issues in this case were not moot and in refusing to dismiss the case. Dunn v. Dunn, supra. The appellant’s eighth point of error is overruled.

In points of error two, three, and four, the appellant contends that the trial court erred because it has not been affirmatively shown that the decree was an agreed judgment or that the agreement had been completed, but to the contrary, that the divorce had been repudiated by both of the parties. The record does not support these contentions. The Master’s report was signed on May 19, 1982, and adopted by the court on May 24, 1982.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Terry Lee Bizzle v. Eve Lynn Baker
Court of Appeals of Texas, 2022
Lesikar v. Moon
237 S.W.3d 361 (Court of Appeals of Texas, 2007)
Palomino v. Palomino
960 S.W.2d 899 (Court of Appeals of Texas, 1998)
Robles v. Robles
965 S.W.2d 605 (Court of Appeals of Texas, 1998)
Dohrn v. Delgado
941 S.W.2d 244 (Court of Appeals of Texas, 1996)
Peggy D. Parham v. Roland Carrol Parham
Court of Appeals of Texas, 1995
Nichols v. Nichols
907 S.W.2d 6 (Court of Appeals of Texas, 1995)
Olson v. Commission for Lawyer Discipline
901 S.W.2d 520 (Court of Appeals of Texas, 1995)
Turner v. Ward Ex Rel. Turner
910 S.W.2d 500 (Court of Appeals of Texas, 1994)
Stein v. Stein
868 S.W.2d 902 (Court of Appeals of Texas, 1994)
Republic Insurance Co. v. Davis
856 S.W.2d 158 (Texas Supreme Court, 1993)
Young v. Young
854 S.W.2d 698 (Court of Appeals of Texas, 1993)
Owens-Corning Fiberglas Corp. v. Caldwell
807 S.W.2d 413 (Court of Appeals of Texas, 1991)
State v. MacIas
791 S.W.2d 325 (Court of Appeals of Texas, 1990)
Martin v. Martin
797 S.W.2d 347 (Court of Appeals of Texas, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
665 S.W.2d 171, 1983 Tex. App. LEXIS 5635, Counsel Stack Legal Research, https://law.counselstack.com/opinion/novotny-v-novotny-texapp-1983.