Petrovich v. Vautrain

730 S.W.2d 857, 1987 Tex. App. LEXIS 7537
CourtCourt of Appeals of Texas
DecidedMay 14, 1987
DocketNo. 2-85-295-CV
StatusPublished
Cited by2 cases

This text of 730 S.W.2d 857 (Petrovich v. Vautrain) 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
Petrovich v. Vautrain, 730 S.W.2d 857, 1987 Tex. App. LEXIS 7537 (Tex. Ct. App. 1987).

Opinion

OPINION

FENDER, Chief Justice.

This is a second appeal in a divorce case originally filed in March of 1980. On February 3, 1983, this court remanded the cause to the trial court to determine the distribution of certain community assets not considered at the first trial. The case is again appealed with error claimed that “piecemeal division” of the community property is erroneous and that this Court’s determination of a specific effective “date of divorce” (in the first opinion) is in error. We are also confronted with the assertion of an intervening attorney that his claim for attorney’s fees should not have been severed from the main cause.

We affirm.

In order to set the stage for a proper determination of the legal principles involved, a calendar of critical events is in order. For ease of expression, the original litigants will be referred to as wife and husband. Husband had and currently has only one attorney, Warren W. Shipman, III. Wife has had a total of six attorneys, to wit: Jerry J. Loftin, Sterling W. Steves, Robert T. Stites, R. Stephen McNally, George J. Petrovich, Jr. (intervenor) and Holly Crampton (current attorney of record). Reference, where necessary, will be made to wife’s attorneys by last name.

March 18, 1980 — Original petition filed by wife, Loftin as attorney.
March 26, 1980 — Original answer and cross-action for divorce by husband.
January 1, 1981 — Motion to withdraw as attorney by Loftin.
January 9, 1981 — Steves substituted as counsel for wife.
January 20, 1981 — Trial on the merits.
May 29, 1981 — First oral pronouncement of divorce and property division.
June 10, 1981 — Motion by Stites to be substituted as counsel for wife.
June 11, 1981 — Motion by Steves to withdraw.
June 16, 1981 — Steves allowed to withdraw and Stites substituted.
July 6, 1981 — First written judgment signed.
September 17, 1981 — Partial new trial granted.
November 2,1981 — Partial new trial conducted.
November 19, 1981 — Second oral pronouncement of divorce and property settlement, giving May 29, 1981, as date of divorce.
December 31, 1981 — Motion to withdraw by Stites. No action at that time.
January 7, 1982 — Hearing on motion for judgment with McNally as co-counsel to Stites.
January 14, 1982 — Second written judgment signed. Stites allowed to withdraw.
January 19, 1982 — Petrovich hired.
February 2, 1982 — Petrovich files motion for new trial. No further mention of McNally, and the record does not reflect he was ever substituted as wife’s attorney of record.
March 31, 1982 — Third written judgment signed. Appeal follows.
February 3, 1983 — Opinion and judgment of this court issued, remanding for further hearings. Vautrain v. Vautrain, 646 S.W.2d 309 (Tex.App. — Fort Worth 1983, writ dism’d).
March 20,1984 — Wife files pro se motion to substitute Crampton for Petrovich.
April 13, 1984 — Petrovich files motion to withdraw as counsel. Court carries both motions pending certain services to be rendered by Petrovich.
[859]*859April 25, 1984 — Petrovich released as counsel.
April 26, 1984 — Petrovich intervenes to collect fees as attorney for wife.
August 30, 1984 — Wife files motion to sever Petrovich’s intervention from case.
November 16, 1984 — Judgment orally pronounced affirming divorce and dividing property. Separate trial granted as to Petrovich.
November 25, 1985 — Final judgment signed. Severance ordered. Wife and intervenor appeal (following motion for new trial by wife).

In our earlier disposition (hereinafter simply referred to as Vautrain I) we established certain criteria for the second trial:

1. The granting of a partial new trial on September 17, 1981, negated the divorce granted on May 29, 1981, and reinstated the marital status.
2. The correct date of the granting of the divorce was November 19, 1981, the date of the oral pronouncement following the partial new trial.
3. The trial court was directed to take evidence on community property acquired between May 29, 1981 (the cutoff date used by the trial court) and November 19, 1981 (the date established by this court).
4. The trial court was instructed that the subjects of divorce, child custody, and division of assets as they existed and were disposed of up to May 29, 1981, were not to be re-litigated.
5. This court declined to review and decide whether the property division was fair and just, reserving such question for later review, if necessary.

In appraising the merits of the instant cause, we have reviewed the file in Vau-train I and find that neither party attacked the validity vel non of the divorce.

Our record in this appeal consists of the transcript furnished by the clerk of the trial court, a partial statement of facts limited to Petrovich’s intervention, and the oral pronouncement of judgment on November 16, 1984.

We will first take up the two points of error urged by wife:

1. The piecemeal division of the community property as ordered by the Court of Appeals in Vautrain I violated Texas law as enunciated by the Texas Supreme Court in Jacobs v. Jacobs.
2. The trial court erred in declaring that the parties were divorced on November 19, 1981 for purposes of the division of community property.

In wife’s presentation of the first point, consisting of less than two pages of her brief, she simply summarizes the holding of Jacobs v. Jacobs, 687 S.W.2d 731 (Tex.1985), and a following case1 as mandating the property division upon remand and retrial to encompass the entire community estate, and concludes that she is entitled to a new trial on the entire property division question. This position is untenable for several reasons. In the first place, the record before us does not indicate that the claimed error has been raised at any time prior to appeal. The point, as presented, borders on fatal lack of specificity, but we will surmise it seeks to aver that this court, or the trial court, or both, committed error which resulted in the trial court, upon remand, leaving its original division of the property existing on May 29, 1981 undisturbed, while considering only, and dividing only, any property which existed on the date of divorce (November 19, 1981) which had not been disposed of originally, and then entering a cumulative decree consisting of both divisions.

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730 S.W.2d 857, 1987 Tex. App. LEXIS 7537, Counsel Stack Legal Research, https://law.counselstack.com/opinion/petrovich-v-vautrain-texapp-1987.