I respectfully dissent and would affirm the trial court's judgment.
Whether the tort action based on sexual abuse, brought by the mother (as next friend of her minor daughter) against the mother's former husband, from whom she was divorced some eight months previously, is so logically related or necessarily referable to issues in the prior suit for divorce, and thus barred by "res judicata" principles, is the dispositive question before us. See Pennington v. Pennington, 195 S.W.2d 677 (Tex.Civ.App. — Texarkana 1946, no writ); cf.Green v. Doakes, 593 S.W.2d 762 (Tex.Civ.App. — Houston [1st Dist.] 1979, no writ).
In her affidavit, the mother/appellant stated that she knew of the alleged child molestation at the time the consent decree was entered into, and had decided to file the subject tort claim even before signing the divorce decree.
But there is not a single allegation of sexual abuse in either her pleadings or in the provisions of the divorce decree. Custody of the minor daughter was an issue before the trial court, and was awarded to the mother by mutual consent. The sound public policy underlying the principle of "res judicata" is, of course, to expedite justice by putting an end to litigation and establishing the finality of judgments. To that end, "res judicata" bars relitigation *Page 364 not only of all issues constituting a cause of action or defense, but also those "connected" issues that, with the use of diligence, might have been so tried and determined. See Abbott Laboratories v. Gravis, 470 S.W.2d 639 (Tex. 1971). I recognize that, nominally, the wife is a party in the tort claim only in a representative capacity, but in actuality she is the party bringing the suit, and I view the "identity of the parties" question as one of substance, not form.
It seems to me that the tort claim, with the use of diligence, might have been litigated by the parties "in the interest of K______ E______ F______" as an appropriate, if not necessary, part of the divorce action. The mother could have included such allegations in her divorce pleadings and aguardian ad litem would have been immediately appointed torepresent the child. But she carefully chose to avoid this course and bring the suit for damages in her own name as next friend in subsequent litigation. I am not convinced that this claim, and the testimony necessarily to be elicited in support thereof, will be in the child's best interest.
What also persuades me to write this dissent are two observations:
(1) The husband stated in his affidavit — which was not contradicted — that he had agreed to records of his wife's deposition being destroyed six months after the consent decree was signed only upon the representation of her lawyer that the deposition notes would be destroyed "if the case was settled." He claims that now, after his wife's deposition notes have in fact been destroyed, he has no way of using his wife's prior deposition to refute her charges of sexual abuse, and attached an affidavit of the court reporter who took the deposition, and excerpts therefrom, as supporting documents; and
(2) the consent divorce decree specifically provided that all relief sought in the cause, and not expressly granted, is denied. I recognize that there was no tort claim for damages in the mother's suit for divorce, but in the context of a "res judicata" defense, the presence of such a provision is at least relevant for our adjudication. It certainly suggests that all disputed issues are finally settled, as well as those that could have, and should have, been litigated. See Benson v.Wanda Petroleum, 468 S.W.2d 361 (Tex. 1971).
The possibilities of abuse in such post-divorce tort proceedings that the majority opinion opens up are nothing less than horrendous. In my view, the equities of this appeal, considered in its entirety, call for invoking the doctrine of "res judicata" and a consequent affirmation of the trial court's judgment.