stating that, after death of one party to divorce action, “the trial court was without jurisdiction to issue any orders based on the underlying divorce action”
How later courts described this case
- stating that, after death of one party to divorce action, “the trial court was without jurisdiction to issue any orders based on the underlying divorce action”
Written by the judges who cited it.
The opinion
LEVY, Justice,
dissenting.
I must reluctantly dissent because of the extraordinary facts of this case and the risks necessarily involved.
Ordinarily, as the majority opinion holds, the death of a party automatically abates the pending divorce action and associated issues of child custody and property rights. Whatley v. Bacon, 649 S.W.2d 297, 299 (Tex.1983); Rodriguez v. McFall, 658 S.W.2d 150 (Tex.1983). But this is a far from ordinary case — the relator is accused of murdering the mother of the child, and he is now asking for custody.
Furthermore, in neither Whatley nor Rodriguez was a temporary order entered, while both parties to the divorce proceeding were alive, divesting the father of custody as was accomplished in the case at bar. The entry of such an order, combined with the paramount factor of more-than-theoretical possibility of severe hazard to the child, justifies the treatment of the custody issue as a severed and independent cause of action, over which the trial court should still maintain jurisdiction. A child becomes a ward of the court when it is brought before the court for any purpose. See Ex parte Brown, 382 S.W.2d 97, 99 (Tex.1964); Benavides v. Garcia, 687 S.W.2d 397, 399 (Tex.App.—San Antonio 1985); Pollock v. Dowell, 583 S.W.2d 886, 888 (Tex.Civ.App.—Dallas, 1979).
I would deny the application for a writ of mandamus.