Baker v. Baker

104 S.W.2d 531, 1936 Tex. App. LEXIS 1794

• Court: Court of Appeals of Texas
• Decided: June 3, 1936
• Docket: No. 9870.
• Status: Published

Opinions

SMITH, Chief Justice.

In this cause Helen M. Baker was given .a decree of divorce from her husband, Millard F. Baker, as she had prayed for. There was no appeal from that decree, but appellant is complaining, in this appeal, of the judgment adjudicating the property rights 'between her and her husband. The trial' court found all the property to be community property, and divided it equally between the parties. The cause was tried before a jury, but at the conclusion of the testimony, the trial judge, at the instance •of appellee, discharged the jury and rendered judgment dividing the property as indicated.

The appeal is controlled by the contention ■of appellant that as there was evidence raising the issue of whether the property involved constituted community property, or the separate property of the wife, the trial judge erred in taking that issue from the jury, and determining it himself. We are • of the opinion that the court did err in that action.

There -was evidence tending strongly to show that appellant was possessed of a substantial sum in cash at the time of her marriage to appellee; that from time to time thereafter, and during coverture, she received other moneys and securities in a sum, together with the amount she had on hand at the time of her marriage, aggregating approximately $20,000; that said .amounts, when paid to appellant, were deposited in a joint account of appellant and .appellee, with the express agreement between the two, that all said sums, although ■ deposited in the joint account, should be and remain the separate property of appellant; ■that from time to time cash was withdrawn 'by the parties from said account and invest•ed in realty and securities, title to which, '.by agreement, • was placed in the name-of appellee, with the express agreement between the parties .that such realty and securities should be and remain the separate property of appellant. The parties ever afterwards so treated it.

Now, while it is true the general rule is that property acquired by either spouse during coverture is presumed to be community property, yet, such presumption is rebuttable, and if it be made to appear, by parol or otherwise, that it was the intention of the parties at the time the property was acquired that the same should be and remain the separate estate of either spouse, that intention will be given effect, as between the two. 23 Tex.Jur. c. 8, p. 1SS et seq., and authorities there cited.

The question of whether that intention existed in this case, was one of fact, which appellant was entitled to have submitted to the jury, and we conclude the court erred in withholding it from the jury. The question is important, since the court concluded, as a fact, that the property involved belonged to the community estate, and not to appellant’s separate estate, and divided it equally between the spouses upon that theory. It will be presumed that if the jury had found that the parties intended the property to be the separate property of appellant, or that title thereto was put in the name of appellee in trust for appellant, the trial judge would have made a different adjudication between the parties.

It is a familiar rule, of course, as contended by appellee, that the trial judge may in his discretion apportion the property involved between the parties as he deems best, without regard to jury findings, which are advisory only. But that discretion .does not extend to the issues of fact from which the character of the estate is determinable. In jury cases those issues must be submitted to the jury, and the court erred in not submitting them in this case.

There being no appeal from the decree granting the divorce, the judgment thereon will be affirmed, but in all other respects the judgment is reversed and the cause remanded.