Svensen v. Svensen

629 S.W.2d 97, 1981 Tex. App. LEXIS 4698

• Court: Court of Appeals of Texas
• Decided: December 14, 1981
• Docket: 20753
• Status: Published

Opinions

STOREY, Justice.

This appeal is from a trial court’s order dismissing an action for divorce on the ground that the petitioner had not, at the time of filing suit or at the time of hearing of respondent’s plea in abatement, satisfied the residency requirements of Tex.Fam. Code Ann. § 3.21 (Vernon 1975). We reverse and remand.

The parties stipulated that the husband established his residency in Dallas County on March 2, 1980, and that prior to that time, they maintained their residence in Irvine, California. The husband filed suit for divorce against his wife on June 4,1980, about three months after establishing residence in Texas. The wife answered by special appearance under Tex.R.Civ.P. 120a alleging that the court lacked jurisdiction of her person and property because (1) she was not amenable to process under Tex.Fam. Code Ann. § 3.26 and (2) the husband had not satisfied the residency requirements of Tex.Fam.Code Ann. § 3.21. She prayed the court to order that her “person and property are not amenable to process issued by the courts of this state.”

On August 28, 1980, about 5 days before the six-month residency requirement of § 3.21 had been met, a hearing was held on the wife’s special appearance. Judgment was entered denying the wife’s special appearance under § 3.26, sustaining the special appearance under § 3.21, and dismissing the husband’s petition.

Upon completion of the residency requirement, the husband, by timely motion for new trial, offered an amended petition claiming satisfaction of the statutory residence requirement. The court overruled the motion, refusing to reinstate the suit. The husband contests the action of the trial court in dismissing rather than in abating the suit.

The wife is mistaken in couching her complaint as to the non-fulfillment of the residency requirement in terms of jurisdiction. The residency requirement is not jurisdictional, but goes to the qualifications that must be met before a court may grant a divorce. E.g., Aucutt v. Aucutt, 122 Tex. 518, 62 S.W.2d 77 (1933); Skubal v. Skubai, 584 S.W.2d 45 (Tex.Civ.App.—San Antonio 1979, writ dism’d). Hence, a petition that fails to allege the completion of the residency requirement may be attacked by plea in abatement as premature. Therwhanger v. Therwhanger, 175 S.W.2d 704 (Tex.Civ.App.—Eastland 1943, no writ). Cf. Tinnin v. Weatherford, Dallam 590 (1844), and Note, 14 Texas L.Rev. 414 (1936) (distinction between pleas in bar and in abatement). Here, it appears that the trial court treated the second ground of the wife’s plea to the jurisdiction as a plea in abatement. Our question, therefore, is whether a case may be dismissed upon the sustaining of a plea in abatement.

The Amarillo court has held that in a worker’s compensation case the proper remedy in sustaining a plea in abatement is not to dismiss but to retain the case on the docket, so that when the impediment to prosecution of the suit is removed it may be revived. Texas Employers Insurance Association v. Baeza, 584 S.W.2d 317, 321 (Tex.Civ.App.—Amarillo 1979, no writ). We cannot discern why there should be any difference between the remedies to be applied in sustaining a plea in abatement in a worker’s compensation case and in a divorce case. We approve of the court’s reasoning on this point in Baeza, and hold that here the court erred in dismissing the suit upon sustaining the plea in abatement rather than retaining it suspended upon the docket. Because the trial court erred in dismissing the suit rather than holding it suspended on the docket, it was error to refuse to reinstate the case on motion for new trial when amended pleadings had been filed alleging, consistent with the earlier stipulation as to residency, that the residency requirement had been satisfied.

Reversed and remanded for reinstatement and trial on the merits.

GUITTARD, C. J., dissenting.