Delaney v. Delaney

562 S.W.2d 494, 1978 Tex. App. LEXIS 2881

• Court: Court of Appeals of Texas
• Decided: January 18, 1978
• Docket: 1724
• Status: Published

Opinions

COULSON, Justice.

This is a limited appeal by the wife from a decree of divorce in which error is urged in the property division, the amount awarded as attorneys’ fees, and the amount set for child support. We reverse and remand the property division and affirm the remainder of the decree.

Carolyn Ann Delaney (Mrs. Delaney or Appellant) sued George Jerome Delaney (Mr. Delaney or Appellee) for divorce. Mr. Delaney answered with a general denial and cross acted for divorce. Following trial to the court, Mrs. Delaney was granted a divorce and custody of the children. Mr. Delaney was granted visitation rights and ordered to pay $750 monthly as child support and $2,500 as attorneys’ fees. The court also divided the community property.

As part of the property division, the trial court ordered the Delaneys’ community property homestead sold and the proceeds from the sale applied to the extin-guishment of a variety of community debts, including a number of general unsecured debts. We sustain Mrs. Delaney’s attack on the decree to the extent that the proceeds from the sale of the homestead are ordered to be applied to discharge the general unsecured debts of the marriage, as such order violates the exempt status afforded homesteads and the proceeds from their sale. Franks v. Franks, 138 S.W. 1110 (Tex.Civ.App.—Austin 1911, writ ref’d).

A divorce court may order partition of a community homestead, including partition by sale. Trigg v. Trigg, 18 S.W. 313, 317 (Tex.Sup.1891). It may not, however, order the proceeds of such a sale applied toward general debts. Klein v. Klein, 370 S.W .2d 769 (Tex.Civ.App.—Eastland 1963, no writ). Such an order permits general creditors to look to property previously beyond their reach, and violates the statutory protection afforded the proceeds from the sale of a homestead. Tex.Rev.Civ.Stat.Ann. art. 3834 (1966).

We sustain point of error six and remand the property division to the trial court.

The homestead was the chief asset of the community and the distribution of the proceeds from its sale was central to the property division order. Our holding that such proceeds may not be ordered applied to general debts upsets the property division scheme of the trial court, and will require the development of a new scheme. Because of this, we do not reach appellant’s points of error one, two, three, four, five, seven, eight, and nine, all of which complain of aspects of the property division.

Although we do not rule on the matter, for the guidance of the trial court on remand we note, with respect to point of error nine, that the award of attorneys' fees in a divorce suit rests within the sound discretion of the trial court. E. g., Wallace v. Briggs, 162 Tex. 485, 348 S.W.2d 523 (1961). Although opinion evidence offered as to what would be a reasonable fee should be considered by the judge, he is not bound by it, ’and he may resort to his own experience and observations in such matters. Hodges v. Hodges, 207 S.W.2d 943 (Tex.Civ.App.—Fort Worth 1948, no writ); Moore v. Moore, 192 S.W.2d 929 (Tex.Civ.App.—Fort Worth 1946, no writ); 3 O. Speer, Marital Rights in Texas § 886 at 320 (4th ed. 1961). During the trial several of Mrs. Delaney’s lawyers testified that the reasonable value of their own and each other’s legal work was $10,500.00. While the trial court may not arbitrarily ignore such testimony, it is not bound by it. The judge may properly consider his own observations and experience in conjunction with the witnesses’ opinions.

Appellant’s final point of error argues that child support in the amount of $750.00 per month is inadequate. We find no abuse of discretion in setting support at that amount and overrule appellant’s point of error on it.

Affirmed in part and reversed and remanded in part.