Carmen K. GARZA, Appellant, v. Simon T. GARZA, Appellee, 666 S.W.2d 205

OPINION TIJERINA, Justice. This is an appeal from an order enforcing a final decree of divorce. Appellant had . previously challenged the divorce decree by direct appeal, however, this court affirmed the judgment on a certificate. The record was not timely filed. See Garza v. Garza, 608 S.W.2d 260 (Tex.Civ.App. — San Antonio 1980, writ dism’d). The trial court granted appellee’s motion for enforcement of judgment which is the basis for the appeal. The decree of divorce was entered following a hearing before the trial court. As part of the decree, the property of the parties was divided as required by TEX.

FAM.CODE ANN. § 3.63 (Vernon 1975). Simon Garza was divested of the real property at 8122 and 8106 Hausman Road, Be-xar County, Texas, and the property was awarded to Carmen Keever de Garza as her sole and separate property, subject to the payment of the balance due on the note secured thereby and subject to an “option” granted to Mr.

Garza “to buy this item of real property ... for the sum of One Hundred Eleven Thousand Six Hundred and No/100 Dollars ($111,600.00) and the assumption of the debt thereon, which ... must be exercised within ninety (90) days after the entry of [the decree]....” If the “option” was not exercised within the time period, the award of the property to Mrs. Garza was to be complete and final. On September 3, 1980, Mr. Garza, through his attorney of record, filed with the trial court, a “Notice of Exercise of Option,” with a copy served on Mrs. Garza through her attorney of record. On March 31, 1981, Mr.

Garza filed a motion to enforce judgment in an attempt to compel Mrs. Garza to convey the Haus-man Road property to him. Following a hearing on the matter, the trial court entered an order enforcing judgment, requiring Carmen to execute all instruments necessary to effect the conveyance. Appellant’s initial point of error alleges the trial court erred in finding in its order of enforcement that Mr. Garza had a valid and binding option to purchase the real property on Hausman Road. Appellant argues the invalidity of the option based on a lack of authority of the trial court to so divide the property.

TEX.FAM.CODE § 3.63 (Vernon Supp. 1982-1983) provides that: (

a) In a decree of divorce ... the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party ... This

section gives the trial court the power and the duty to divide the estate of the parties. The trial court may divide the property, separate and community, in such a manner that may seem just and right and proper to the court. Brooks v. Brooks, 561 S.W.2d 949, 951-52 (Tex.Civ.App. — Tyler 1978, no writ); Hensley v. Hensley, 496 S.W.2d 929, 931 (Tex.Civ.App. — El Paso 1973, no writ). Texas courts have interpreted § 3.63 as giving the trial court broad discretion in distributing the property of the parties to a divorce action. Bell v. Bell, 513 S.W.2d 20, 22 (Tex.1974); Campbell v.

Campbell, 554 S.W.2d 10, 11-12 (Tex.Civ.App. — Fort Worth 1977, no writ); Wetzel v. Wetzel, 514 S.W.2d 283, 285 (Tex.Civ.App. — San Antonio 1974, no writ). The specific and principle issue of the case at bar concerns the option, granted by the court, that appellee-husband could purchase the real property on Hausman Road.

The relevant and pertinent part of the final judgment and decree of divorce provides as follows: It is therefore ordered, adjudged and decreed that the following properties be and the same are hereby set aside and awarded to the respondent, Carmen Keever de Garza, as her sole and separate property, subject to the further orders of this court with respect thereto as set forth hereinbelow. 3. The real property at 8122 and 8106 Hausman Road (legal description omitted). The award of this item of real property to respondent is made to her subject to an option hereby granted to petitioner, Simon T.

Garza, to buy this item of real property from respondent, Carmen Keever de Garza, for the sum of one hundred eleven thousand six hundred and no/100ths dollars ($111,600.00) and the assumption of the debt thereon, which option must be exercised within ninety (90) days after the entry of judgment, if such option is not exercised within that period of time, the award of this item of real property to respondent, Carmen Keever de Garza, shall be complete and final.

Appellant contends that the trial court did not have authority to delegate to the husband the right to decide who would receive the property on Hausman Road. We do not agree, for such is not the true import of the divorce decree. The final judgment and decree of divorce is not included in this record but we have a copy attached as an exhibit which indicates that it was rendered and filed June 6, 1980. On September 3, 1980, appellee filed with the trial court the “notice of exercise of option,” with a copy served on appellant through her attorney of record.

The record reflects that the trial before the court, without jury, started February 11, 1980, and all parties were present and represented by their respective attorneys; appellant as the original petitioner took a non-suit with respect to her action for divorce, but the trial continued and the original petitioner became respondent. On June 2, 1980, the trial judge wrote to the attorneys stating he would render judgment along the lines previously proposed, with minor changes. The court did not consider a previous letter from appellant objecting to a part of the judgment.

The final judgment rendered on June 6, 1980, was approved as to form by the attorneys for both parties. Appellant’s motion for a new trial was not timely filed and overruled. This Court, in Garza v. Garza, supra, stated: We cannot accept appellant’s theory that her letter to the judge can be considered as a motion for a new trial. While that letter makes manifest appellant’s dissatisfaction with the judgment which the trial judge had announced he proposed to enter, it does not pray that such judgment be set aside or that the case be retried. 608 S.W.2d at 261-62.

Additionally, the trial judge’s letter to the attorneys of record saying that he would render judgment along the lines previously proposed can only mean that there was an agreement as to the division of community property. The district court, therefore, in the exercise of its jurisdiction and pursuant to the agreement by the attorneys of record, resolved all the questions concerning vested community property rights including the option in question. The prior judgment is not subject to collateral attack under these circumstances. See Ex parte Sutherland, 526 S.W.2d 536, 539 (Tex.1975).

Thus, we conclude that the point of error constituted a collateral attack on the original divorce decree, which is not permitted. See Ex parte Burson, 615 S.W.2d 192, 194 (Tex.1981). An erroneous judgment is not void. If the trial court erred, the error was of substantive law and could only be remedied by direct attack on the judgment. Williams v. Williams, 620 S.W.2d 748 (Tex.Civ.App. — Dallas 1981, writ ref’d n.r.e.). Hodges, Collateral Attacks on Judgments 41 TEXAS L.REV. 499-521 (1963).

Appellant would have us interpret the “option” according to contract principles, which would be the correct procedure if the decree was an agreed judgment. Ex parte Jones, 163 Tex. 513, 358 S.W.2d 370 (1962). But, this is not an agreed judgment and in accordance with the established rule will be read as a whole and the use of particular words or phrases are not conclusive. Constance v. Constance, 544 S.W.2d 659 (Tex.1976). The notice sent to the trial court and appellant’s attorney was sufficient. The' tender of funds necessary was a prerequisite to a transfer of title and not for exercising the option.

In making a division of property in a divorce proceeding, the trial judge is given wide discretion which will not be disturbed on review unless there is a clear showing of abuse. Murff v. Murff, 615 S.W.2d 696, 698 (Tex.1981); Young v. Young, 609 S.W.2d 758, 762 (Tex.1980); McKnight v. McKnight, 543 S.W.2d 863, 866 (Tex.1976); Cockerham v. Cockerham, 527 S.W.2d 162, 173 (Tex.1975). See generally, McKnight, Husband & Wife, 37 SW. L.J. 65, 93-97 (1983). An appellate court will indulge every reasonable presumption in favor of a proper exercise of discretion of the trial court in dividing the property of the parties.

Van Dyke v. Van Dyke, 624 S.W.2d 800, 802 (Tex.Civ.App. — Houston [14th Dist.] 1981, no writ); Price v. Price, 591 S.W.2d 601, 605 (Tex.Civ.App. — Tyler 1979, no writ). Division of' community property by the trial court is not disturbed on appeal unless it appears from the record that division was clearly the result of an abuse of discretion. Mogford v. Mogford, 616 S.W.2d 936, 944 (Tex.Civ.App. — San Antonio 1981, writ ref’d n.r.e.); See Marriage of Higley, 575 S.W.2d 432, 435 (Tex.Civ.App. — Amarillo 1978, no writ). We find no abuse of discretion in the division of the Garza property and in the option given Mr.

Garza. Appellant herein previously filed an appeal from the judgment rendered by the Bexar County District Court in the divorce case. We take judicial notice that this court affirmed the trial court’s judgment. Garza v. Garza, supra; See also TEX.R. CIV.P. 387. The Supreme Court in Victory v.

State, 138 Tex. 285, 158 S.W.2d 760 (1942), addressed this issue and stated: “It is the established law of this State that courts may take notice of their own records and a former judgment may be held to be conclusive in a subsequent action when the record shows a judgment rendered in a case involving the same subject matter between the same or practically the same parties, even though no plea of res judica-ta was interposed in the subsequent suit.” 158 S.W.2d at 763. The instant case involves the same parties and the same subject matter.

An appellate court may go to its prior decisions for the law that is applicable to or determinative of the question of law under review. Victory v. State, 158 S.W.2d at 763. The validity of the option having been sustained by this court, we may take judicial notice of that decision as “being applicable to and determinative of the question of law under review.” See Victory v. State, 158 S.W.2d at 763.

Under the rule of res judicata, a judgment is a final adjudication, not only of matters actually determined, but also of all other matters which the parties might litigate in the cause, and which they might have had decided. Freeman v. McAninch, 87 Tex. 132, 27 S.W. 97, 99 (1894); Valley Oil Co. v. City of Garland, 499 S.W.2d 333, 335 (Tex.Civ.App.— Dallas 1973, no writ). More recently, the Supreme Court in Texas Water Rights Commission v.

Crow Iron Works, 582 S.W.2d 768 (Tex.1979), stated: The doctrine of res judicata states that a cause of action once finally determined, without appeal, between the parties, on the merits, by a competent tribunal, cannot afterwards be litigated by new proceedings either before the same or any other tribunal. The scope of res judica-ta is not limited to matters actually litigated.

The judgment in the first suit precludes a second action by the parties and their privies not only on matters actually litigated, but also on causes of action or defenses which arise out of the same subject matter and which might have been litigated in the first suit. 582 S.W.2d at 771-72 (and cases cited therein). All the requirements of res ju-dicata have been shown in this cause. We therefore conclude that the judgment in the divorce case is res judicata on the issue of the option given to Mr. Garza.

The desirability of stable decisions and economy of court time, policy considerations underlying the doctrine of res judicata, require this holding. See Texas Water Rights Commission v. Crow Iron Works, 582 S.W.2d at 772; see Steakley & Howell, Ruminations on Res Judicata, 28 SW.L.J. 355, 358-9 (1974). Further justification requires this holding. In affirming the trial court judgment in the previous appeal, this appellate court, in effect, certified that the trial court had jurisdiction, that its judgment was final as to all matters determined and also as to every matter which the parties might have litigated.

See Garlington v. Wasson, 279 S.W.2d 668, 677 (Tex.Civ.App. —Eastland 1955, writ ref d n.r.e.), cert. denied, 352 U.S. 979, 77 S.Ct. 38, 1 L.Ed.2d 364 (1957). In the case at bar, appellant on appeal from an order for the enforcement of the judgment seeks to relitigate the same issues involving the same subject matter. An appellate court may protect its judgment against the maintenance of an appeal by a party against whom it had previously rendered a judgment. See Long v. Martin, 116 Tex. 135, 287 S.W. 494, 495 (1926).

The Supreme Court has stated, “[W]e conceive it to be the duty, as well as the right, of the appellate court to exercise its original jurisdiction to enforce its judgment.” City of Dallas v. Dixon, 365 S.W.2d 919, 923 (Tex.1963). We, therefore, hold that appellant has failed to show an abuse of discretion by the trial court, that this appeal constitutes an impermissible collateral attack on the judgment, and further that the appeal is barred by res judi-cata. We overrule appellant’s first point of error. We have reviewed and considered appellant’s other points of error and find no reversible error.

In consideration of this, our holding in regard to appellant’s first point of error is dispositive of the remaining points of error. The judgment is affirmed.