CASTLEBERRY v. CASTLEBERRY

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Docket Number

No. 7512.

Attorney(S)

Harris Harris, of Austin, Seale Thompson, of Nacogdoches, Lee R. Stroud, of Kaufman, Howard H. Dailey and R.W. Castleberry, both of Dallas, for plaintiff in error. James A. King, of Austin, for defendant in error.

Judges

MR. JUDGE GERMAN delivered the opinion of the Commission of Appeals, Section A.

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Smart Summary

Factual and Procedural Background

In 1935, the district court granted Martha Anne Castleberry a divorce and incorporated the parties’ agreement awarding custody of their minor child to R.W. Castleberry. [1]

At a later term, the court entered a purported “Reformed Judgment” eliminating the prior custody provisions, awarding custody to Martha Anne Castleberry, and ordering R.W. Castleberry to pay monthly child support. The record showed that no petition, motion, or application had been filed and that the judgment was entered by default without notice to R.W. Castleberry. [2]

R.W. Castleberry moved to vacate the judgment, asserting lack of notice and lack of supporting pleadings. The motion was overruled, and the Court of Civil Appeals affirmed. The Supreme Court adopted the Commission of Appeals’ opinion and reversed both lower courts. [3][4][5]

Legal Issues Presented

Whether a default judgment is valid without a record showing the defendant’s appearance or proper service of citation. [6][3]
Whether a later custody action requires a written pleading setting out facts sufficient to invoke the court’s jurisdiction. [7][8]
Whether the certified trial-court transcript was presumed complete and sufficient to establish that no such pleading had been filed. [9][8]

Arguments of the Parties

R.W. Castleberry’s Arguments

The purported reformed judgment was invalid because it was entered without any notice to him. [3]
The judgment was invalid because no petition, motion, or application had been filed to support it. [3]

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Flynt v. City of Kingsville	A default judgment must be supported by a record showing the defendant’s appearance or due service of citation, independently of the judgment’s recitals.	The Court applied this rule because the purported reformed judgment was entered by default and the record did not show notice or service. [3]
Wyss v. Bookman, (Com. App.) 235 S.W. 567	The clerk is presumed to have performed the duty of preparing a complete and accurate transcript when the certificate so states.	The Court relied on this principle in presuming that the certified transcript contained the complete record and that no supporting pleading had been filed. [8]
Bomar v. Munn, 158 S.W. 1186	The opinion cites the case in support of the presumption that a clerk’s certification accurately describes a complete transcript.	The Court used the cited authority to support its conclusion that the transcript was complete. [8]
Palmer v. Spandenberg, 49 Texas Civ. App. 331[ 49 Tex. Civ. App. 331], 108 S.W. 477	The opinion cites the case in support of the same transcript-completeness presumption.	The Court relied on the cited authority in determining that the certified transcript should be treated as complete. [8]

Court's Reasoning and Analysis

The Court first determined that the purported judgment was entered by default. A default judgment must show, independently of its own recitals, either the defendant’s appearance or proper service of citation. Because the record did not establish either, the judgment was a nullity. [3]

The Court next treated the later custody proceeding as an independent suit, even though it concerned custody awarded in the original divorce case. Such a proceeding could not be maintained without a written petition alleging facts sufficient to invoke the court’s jurisdiction. [8]

The certified transcript stated that it contained all proceedings and orders in the cause. Under the applicable statutory duties of the clerk, the Court presumed the transcript complete and therefore concluded that no petition, motion, or application had been filed. The opposing party could have demonstrated incompleteness and supplied a complete transcript or sought dismissal, but the record did not show that this occurred. [8]

Holding and Implications

REVERSED AND SET ASIDE. The Supreme Court reversed the judgments of the district court and Court of Civil Appeals and rendered judgment setting aside and holding for naught the purported November 23, 1935, reformed custody decree. [10]

The direct effect was to invalidate the later custody and support provisions. The opinion identifies no broader implications beyond applying the requirements of notice, proper pleading, and a complete certified transcript to this judgment. [3][8][10]

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R.W. CASTLEBERRY v. MARTHA ANNE CASTLEBERRY.

1. — Judgment by Default — Appearance.

Independent of recitals therein a judgment by default must show an appearance by defendant or due service of citation upon him in the absence of which the judgment is a nullity.

2. — Divorce — Custody of Child — Pleading — Jurisdiction — Courts.

An action concerning the custody of a child, subsequent to a decree of divorce, brought at a later term of court or in another court, is an independent suit which cannot be maintained without the filing of a written petition setting up facts sufficient to invoke the jurisdiction of the court.

3. — Transcript — Clerks — Appeal and Error.

It being the duty of the clerk of the trial court to furnish to the party applying for same a full and correct copy of all the proceedings had in the cause in his court with his certificate verifying the correctness of same and stating whether it be all the proceedings had or those agreed upon by the parties, and his certificate shows that it is a transcript of all the proceedings in said cause, it will be presumed that the clerk has performed his duty. If the transcript be incomplete, appellee may show that fact and either file a complete transcript or have the appeal dismissed.

MR. JUDGE GERMAN delivered the opinion of the Commission of Appeals, Section A.

On April 6, 1935, in Cause No. 53993 on the docket of the 98th Judicial District Court of Travis County, of which Judge J.D. Moore was Presiding Judge, a decree of divorce was entered in favor of Martha Anne Castleberry and against R.W. Castleberry. This judgment incorporated a written agreement of the parties by which the custody of Anne Elizabeth Castleberry, a child of tender years, was given to R.W. Castleberry; there being a declaration in the judgment that this was to the best interest of the child. Said judgment became final.

On November 23, 1935, and at a succeeding term of said court, with Judge W.F. Robertson presiding, what is designated a "Reformed Judgment" was entered in said cause. This so-called reformed judgment completely wiped out all provisions of the judgment of April 6, 1935, with respect to the custody of the child, and in lieu thereof awarded custody of said child to Martha Anne Castleberry, and in addition decreed that R.W. Castleberry should pay into the registry of the court the sum of $30.00 per month for the maintenance and support of said child until she should reach the age of fifteen years. While said purported judgment recites that application of plaintiff Martha Anne Castleberry for reformation of said judgment came on for hearing, and that defendant R.W. Castleberry had notice, yet, so far as disclosed by the record, no petition, motion, or application was ever filed, and defendant was not given any notice whatever. Furthermore, said purported judgment shows on its face that it was entered by default.

Within a few days after the entry of said purported decree plaintiff in error R.W. Castleberry filed motion to vacate or set aside same. Thereafter he filed several amendments of said motion, which are referred to in the opinion of the Court of Civil Appeals. First and last, said motion had as its prime purpose the setting aside and expunging from the record the purported judgment of November 23, 1935. The two principal grounds urged touching its invalidity were that it was entered without any notice whatever to plaintiff in error, and was entered without any pleading being filed upon which it could be based. The motion, as amended, was finally overruled on May 6, 1937, and notice of appeal was given. The order overruling same recites that it was taken up and acted upon in the absence of the plaintiff in error. 1 Appeal by writ of error to the Court of Civil Appeals resulted in the judgment of November 23, 1935, being affirmed. 120 S.W.2d 468. It seems to us almost too clear for argument that the purported decree of November 23, 1935, was a nullity. In the first place, on appeal from a default judgment the record must show an appearance by defendant or due service of citation, independent of recitals in the judgment. Flynt v. City of Kingsville, 125 Tex. 510, 82 S.W.2d 934, and the great array of authorities there cited.

2, 3 In the next place, while an action may be brought at a later term of court, or even in another court, concerning the custody of a child, yet such action is regarded as an independent suit, and undoubtedly cannot be brought without the filing of a petition in writing setting up facts sufficient to invoke the jurisdiction of the court. The record in this case fails to show that any petition, motion or application was filed to form the basis of the purported reformed judgment of November 23, 1935, but on the contrary negatives the idea that one was filed. Article 2278 of the Revised Statutes of 1925 makes it the duty of the clerk to deliver to the party applying therefor a transcript of the record, which shall, except in certain cases, "contain a full and correct copy of all the proceedings had in the cause." This case does not fall within any exceptions. Articles 2282 provides that the clerk shall certify to the correctness of the transcript, and shall state whether the same be a transcript of all the proceedings in the cause, or a transcript agreed upon by the parties. The certificate of the district clerk to the transcript in this case shows that it is a "true and correct transcript of all proceedings had and orders entered" in this cause. It is certainly to be presumed that the clerk did his duty, that his certificate is correct, and that the transcript contains a complete record of the cause, as the certificate recites. Wyss v. Bookman, (Com. App.) 235 S.W. 567; Bomar v. Munn, 158 S.W. 1186; Palmer v. Spandenberg, 49 Texas Civ. App. 331[ 49 Tex. Civ. App. 331], 108 S.W. 477. If the transcript had not been complete, defendant in error had ample opportunity to show this and either file a complete transcript or get the appeal dismissed.

The judgments of the Court of Civil Appeals and of the district court are reversed, and judgment is here rendered setting aside and holding for naught the purported decree of November 23, 1935.

Opinion adopted by the Supreme Court January 24, 1940.

Rehearing overruled February 14, 1940.