Austin v. Austin

I dissent.

Appellant's point two is that the judgment of divorce is supported by no evidence. There is no point attacking the factual sufficiency of the evidence to support the divorce judgment. The majority reverses the judgment in response to the "no evidence" point. In considering a "no evidence" point, the reviewing court must reject all evidence contrary to the judgment and consider only the facts and circumstances which tend to support that judgment. Renfro Drug Co. v. Lewis, 149 Tex. 507,235 S.W.2d 609 (1950).

As petitioner in the district court, it was Mrs. Austin's burden to establish grounds for divorce. She discharged that burden by obtaining a stipulation of facts.

As set out in the majority's opinion, counsel for the parties stipulated in open court and of record as to what the testimony of Mrs. Austin would have been, had she been present. Tex.R.Civ.P. 11 (1979). A stipulation to what the testimony of an absent witness would be, has been held proper in this state since 1853. Lee v. Wharton, 11 Tex. 61 (1853); Miers v. Housing Authority of City of Dallas, 266 S.W.2d 487 (Tex.Civ.App. 1954, no writ); Stell v. State, 496 S.W.2d 623 (Tex.Cr.App. 1973). Such a stipulation is in the nature of a judicial admission and is binding on the parties to the stipulation. Reasoner v. State, 463 S.W.2d 55 (Tex.Civ.App. 1971, writ ref'd n. r. e.). The stipulation, as a formal judicial admission, dispenses with the necessity for proof. II McCormick Ray, Texas Law of Evidence, § 1127 (2d ed. 1956).

Viewing the evidence most favorably to the judgment, Renfro Drug Co. v. Lewis, supra, it is obvious that the stipulation established the grounds for divorce. The stipulation, as a formal judicial admission, dispensed with the necessity for Mrs. Austin's production of evidence in support of her grounds for divorce. In brief, the stipulation was a complete substitute for proof in support of the divorce.

To avoid what it regards as a wrong result in this particular case, the majority has held that the stipulation should be given no effect in law. Were the stipulation given no effect, then indeed there would be no evidence in support of the divorce judgment.

Appellant was represented at trial by counsel and he, through counsel, entered the stipulation. So long as the attorney-client relationship endures, with its corresponding legal effect of principal and agent, the acts of the attorney must necessarily bind the client. Dow Chemical Company v. Benton, 163 Tex. 477, 357 S.W.2d 565 (1962). There is no suggestion in this record that appellant's counsel was not authorized to stipulate the grounds for divorce. Accordingly, authority must be presumed. Dunman v. Hartwell, 9 Tex. 495 (1853).

Every trial attorney is familiar with the practice of eliminating by stipulation undisputed questions of fact during the course of a trial. Such stipulations are viewed favorably by the courts. Porter v. Holt, 73 Tex. 447, 11 S.W. 494 (1889). Orderly administration of justice requires that trial courts observe stipulations made in open court and recorded in the statement of facts. Sone v. Braunig, 469 S.W.2d 605 (Tex.Civ.App. 1971, writ ref'd n.r.e.). Likewise, appellate courts are bound to recognize and honor subsisting stipulations. New v. First National Bank of Midland, 476 S.W.2d 121 (Tex.Civ.App. 1971, writ ref'd n.r.e.).

The trial court, for cause and in the exercise of sound discretion, May set aside a stipulation when such action may be taken without prejudice to either party. A stipulation should not be set aside at the instance of either party, when the party invoking such action has obtained an advantage under it, or when the withdrawal of the stipulation will place the opposite party in a worse position than if the stipulation had never been made. Porter v. Holt, supra.

That the district court in this case indicated to counsel that it wished to hear from appellant respecting the stipulation does not demonstrate, as speculated by the majority, " . . . that the trial judge was uneasy with the stipulation . . . " Instead, the district court in making the request of counsel was following a practice long familiar to the bench and bar. In addition, the statement of facts shows that appellee's counsel had planned to call appellant before the court made the request of counsel.

Appellant, when called to testify, corrected the stipulation in only one respect, that being the date of the party's marriage. None of appellant's other responses conflicted with or contradicted the stipulation.

The law allows the trial court, upon proper showing, to set aside a stipulation when such action may be taken without prejudice to either party. Porter v. Holt, supra. Because there was no motion by appellant or by the court Sua sponte to set aside the stipulation, it is hardly necessary to observe that there was no proof to have supported the motion, had one been filed. The significant fact in this regard, however, is that the district court Did not order the stipulation set aside. The request of the district court to hear from appellant respecting the stipulation cannot be transformed by the majority's fancy into an order by the court setting aside counsels' stipulation. Because the district court did not order the stipulation withdrawn, it stands subsisting and unchallenged. As such, it is obligatory for this Court to recognize the stipulation as a complete substitute for proof in support of the partys' divorce and, accordingly, to overrule the "no evidence" point.

The "no evidence" point should be overruled for still another reason. Appellant's challenge to the efficacy of the stipulation must have been asserted first in district court by motion or objection. Had the district court sustained the objection or motion to withdraw the stipulation, appellee would have had an opportunity to prove up grounds for divorce in a different manner. As it were, appellee learned of appellant's challenge to the stipulation for the first time three years after trial when appellant filed his brief in this Court. By not moving to withdraw the stipulation in district court, appellant waived any complaint with respect to the stipulation.