John R. Armstrong, appellant, appeals from a post-judgment order he contends *Page 46 improperly modified a divorce decree agreed to by the parties subsequent to a contested trial.
We reverse and render.
Claire H. Armstrong, appellee, filed her first amended petition for divorce from appellant November 1, 1985. One ground for divorce was an alleged assault against her by appellant. Appellee sought no damages, exemplary or otherwise, for personal injuries. Trial was held in March of 1986. On June 10, 1986, the trial judge made docket entries reflecting her decision as to property division and noted the personal injury claim was dismissed without prejudice. The statute of limitations on that claim ran July 16, 1986. The divorce decree which was finally entered December 31, 1986, contained several substantial changes from the original decree, and was approved as to form and substance by both parties. Appellee's personal injury claim was expressly dismissed without prejudice in the December decree.
On January 30, 1987, appellee filed a motion for new trial on the dismissed cause of action or motion to reinstate the dismissed cause. After a hearing, the personal injury action was severed from the divorce and a new trial on the personal injury action only granted February 23, 1987, with an order to that effect being signed March 13, 1987. Appellant filed a motion for rehearing which was finally overruled by order of June 19, 1987. It is this final order of which Appellant now complains.
In his sole point of error, John urges that the trial court erred in modifying the judgment since Claire, having accepted the benefits of the judgment, was estopped from seeking a modification of that judgment. In two subpoints, John argues that the court erred in severing and granting a new trial on the personal injury action, because the personal injury action was not severable without unfairness to the parties; and that the trial court erred in characterizing its order as a clarification, because it changed the legal effect of the order.
We reverse the trial court's order granting a partial new trial on the personal injury action only and severing that action from the divorce, and render judgment in accordance with the original decree as otherwise modified by the trial court. We do so because we find that the trial court's granting of a partial new trial and then a severance with respect to the personal injury action was not fair and not just in this instance in view of the significant change of position of the parties in reliance on the agreed judgment which had been approved by the court, a judgment which included a dismissal of the personal injury action after the statute of limitations had run.
At the outset, we must consider Claire's claim that the order appealed from is not an appealable order. Claire argues that the order is interlocutory in nature. In reality, the order gives finality to the divorce judgment which it modifies, leaving no further matters to be determined with respect to those issues before the court in this cause. See Allen v.Allen, 717 S.W.2d 311 (Tex. 1986). We overrule Claire's motion to dismiss the appeal, because we find that the order appealed from is not an interlocutory order.
In her divorce petition, Claire alleged, as a fault ground for divorce, an assault by John which caused her personal injury. The petition asked the court to consider her injuries and award her a disproportionate share of the property to be divided, in part because of her physical condition as a result of the assault. She did not request damages for the assault. Upon trial to the court in the divorce action, the court granted the divorce, made a disposition of the property, and wrote in her docket sheet that the petitioner's "cause of action for personal injury is dismissed without prejudice." The trial court rendered this judgment on June 10, 1986.
The parties negotiated certain changes to the decree as rendered by the trial court, and, on December 31, 1986, another judge, sitting for the trial judge in this court, signed the divorce decree. The decree provided that Claire's cause of action was dismissed without prejudice. The decree was approved as to both form and substance by counsel for both parties. *Page 47
Claire alleged that the assault occurred on July 16, 1984. The two-year statute of limitations expired between the time the trial judge rendered its decision and the time the judge signed the agreed decree of divorce. See TEX.CIV.PRAC. REM. CODE ANN. sec. 16.003 (Vernon 1986).
Part of the changes made to the decree as rendered by the judge in the agreed decree was an acceleration of payments that John was to make to Claire. John paid Claire, in accordance with that decree, a substantial amount of cash, in excess of $200,000.
After John had paid her substantial sums in performance of the agreed decree, Claire filed a motion seeking reinstatement of her personal injury action or, alternatively, a partial new trial as to that issue only. The trial court granted a partial new trial on the personal injury claim only. At a subsequent hearing, the trial court rendered its last order, severing the personal injury action in what it called a clarifying order, and making certain modifications in the original divorce decree.
We must determine whether or not the trial court abused its discretion in granting Claire a partial new trial on the issue of the personal injury claim and severing that claim from the divorce action.
Rule 320 of the Texas Rules of Civil Procedure provides for a partial new trial when "such part is clearly separable without unfairness to the parties." TEX.R.CIV.P. 320. Rule 41 of the Rules of Civil Procedure provides for severance of causes "on such terms as are just." TEX.R.CIV.P. 41. We find that the trial court's granting of a partial new trial and then a severance with respect to the personal injury action was not fair and not just in this instance in view of the significant change of position of the parties in reliance on the agreed judgment which had been approved by the court, a judgment which included a dismissal of the personal injury action after the statute of limitations had run. We sustain the sole point of error.
We reverse the trial court's orders granting a partial new trial on the personal injury action only and severing that action from the divorce and render judgment in accordance with the original decree, as otherwise modified by the trial court.
FARRIS, J., dissents.