Motion for New Trial to Dissolve a Divorce Decree After Husband's Death
In Blain v. Broussard, 99 S.W.2d 993 (Tex. Civ. App. - Beaumont 1936, no writ), the trial court orally granted a divorce on September 4th.
On September 10th, the husband died.
The wife then filed a motion for new trial which was granted by the trial court on September 19th.
On appeal, the court held that the trial court's order granting a motion for new trial after the death of the husband was void because the trial court no longer had personal jurisdiction over him. Blain, 99 S.W.2d at 995-97.
In Blain, the reason given by the wife in wishing to have the divorce from her deceased ex-husband set aside was that "she no longer desired to prosecute this suit." Blain, 99 S.W.2d at 994.
The Beaumont court of civil appeals determined that an order attempting to vacate the rendered divorce decree was void because the court no longer had personal jurisdiction over the husband. Blain, 99 S.W.2d at 996.
At the time a new trial is granted, the court must have jurisdiction both over the parties and the subject matter to the same extent as when the original judgment was entered. Blain, 99 S.W.2d at 995.
Thus, if a trial court grants a motion for new trial to dissolve a divorce decree after one of the parties to the decree has died, it is "guilty of proceeding in the matter ex parte . . . " Blain, 99 S.W.2d at 996.
Furthermore, the trial court lacks personal jurisdiction over both parties, so its order is void; Blain, 99 S.W.2d at 995; see American Gen. Life & Cas. Co. v. Vandewater, 907 S.W.2d 491, 492 (Tex. 1995).