Friday, June 8, 2007
Res Judicata Did Not Bar Former Spouse's Post-divorce Partition Suit
Former wife prevails in suit for post-divorce division of property; gets 50% share in retirement money not addressed in decree
Ezirike v. Ezirike (Tex.App.- Houston [1st Dist.] May 17, 2007)(Alcala)(retirement plan)
Former wife successfully sued to partition retirement funds not addressed by divorce decree. Court of Appeals affirms, finding that the 401K and retirement plan were community property not divided by the final decree of divorce. The court further holds that the parties' Rule 11 settlement agreement regarding child support overpayment and arrears did not constitute a property settlement agreement, and thus did not constrain the trial's court discretion to divide the parties' property. Unremarkably, the court also holds that a docket sheet entry does not control and cannot contradict the date shown on the judgment, and that denial of the husband's motion for summary judgment may not be appealed where, as here, it was followed by a trial on the merits. The ex-husband had unsuccessfully sought dismissal of the wife's partition action on the basis of res judicata and collateral estoppel.
Legal lingo: family law, divorce, suit for post-divorce division of community property, retirement benefits, claim preclusion, res judicata, collateral estoppel, prior judgment