Mea v. Mea

464 S.W.2d 201, 1971 Tex. App. LEXIS 2451

• Court: Court of Appeals of Texas
• Decided: January 21, 1971
• Docket: 516, 533
• Status: Published

Opinions

DUNAGAN, Chief Justice.

The appeals in both causes originate from a divorce suit. The suit was originated by the filing of a petition by the appellant, Joseph Mea, against the appellee, Doris Mea, for a divorce in the Court of Domestic Relations in and for Smith County, Texas. The appellant in his petition alleges “(t)hat, during the marriage of plaintiff and defendant, they acquired certain community property, all of which can be amicably partitioned between the parties.” He prayed for judgment dissolving the bonds of matrimony between the plaintiff and defendant and for all other and further relief to which he may be entitled, either in law or in equity. Subsequently appellee filed her counter-suit for divorce alleging that she and the appellant had acquired certain community property during the marriage and sought a fair and equitable disposition of such community property. She also alleged that she had no separate property or income and no means of paying her attorneys for their services to her in this suit. No children were born to this marriage.

The appeal in cause No. 516 is from an interlocutory order of the court appointing a receiver.

The appeal in cause No. 533 is from a judgment of the court disposing of the case on its merits. In the last mentioned judgment the trial judge denied appellant a divorce but granted appellee a divorce on her counter-suit, and in its judgment made ap-pellee a money award of $90,000.00 with a separate lien upon certain properties to secure the payment of said money award and continued all temporary orders including the order of receivership pending final disposition of any appeal. Appellant timely perfected his appeal to this court in each of the causes. Both appeals were consolidated in this court for purposes of appeal pursuant to the joint motions of the parties therefor.

Appellant is not appealing from that portion of the judgment of the trial court awarding the divorce to appellee, but makes this appeal only as respects the receivership order and the division of the property made by the trial court in its final judgment.

The appellant’s complaint in his second point of error is: “The trial court erred and abused its discretion in failing to make and file additional and amended findings of facts as requested by appellant.” The case was tried before the court without a jury. The record reflects that the court made and filed findings of fact and conclusions of law pursuant to appellant’s request therefore. Thereafter appellant timely made and filed his request for additional findings of fact and conclusions of law to which the court failed to respond. Appellant timely filed a written objection to the court’s failure to so respond to his request and filed his written bill of exception No. 1. Appellant here urges that the failure of the trial court to make and file the additional findings of fact and conclusions of law constitutes error and an abuse of discretion of the trial court.

The trial court approved appellant’s bill of exception No. 1 with the following qualification: “Requested additional findings were evidentiary and not ultimate facts or conclusions.” The record contains no exception or objection to the qualification made by the judge. The bill with the qualification was by appellant accepted as true and correct in the trial court and filed by him therein. Under the settled law of this state when appellant excepted and filed the bill of exception as qualified by the trial court, he became bound by such qualification, and it will be presumed that the qual-. ification was made with the consent and approval of appellant. The qualification becomes a part of the bill itself and is controlling as to the facts stated therein. We, therefore, must accept the same as true. Craddock v. Humble Oil & Refining Co., 234 S.W.2d 137, 141 (Tex.Civ.App., Ft. Worth, 1950, writ ref., n. r. e.); Kirkland v. Texas and Pacific Railway Company, 372 S.W.2d 367 (Tex.Civ.App., El Paso, 1963, writ ref., n. r. e.); Hall v. Texas Department of Public Safety, 413 S.W.2d 470 (Tex.Civ.App., Austin, 1967, n. w. h.); 4 Tex. Jur.2d, p. 47, sec. 517; Rule 372, Texas Rules of Civil Procedure, secs, (i) and (j). Duenkel v. Amarillo Bank & Trust Co., 222 S.W. 670 (Tex.Civ.App., Amarillo, 1920, writ ref.); Republic Underwriters v. Howard, 69 S.W.2d 584, 592 (Tex.Civ.App., Eastland, 1934, writ dism.); Lowrimore v. Sanders, 129 Tex. 563, 103 S.W.2d 739 (Tex.Sup., 1937).

In preparation of findings of fact and conclusions of law in cases tried by the court without a jury, the trial judge is required to find only ultimate, controlling issues of fact raised by pleadings and tendered by evidence, and is not required, even upon timely request, to make findings on issues of fact that are only evidentiary and incidental in nature. Cowling v. Colligan, 307 S.W.2d 841 (Tex.Civ.App., Waco, 1957, reformed and affirmed by the Supreme Court, 158 Tex. 458, 312 S.W.2d 943; Wade v. Taylor, 228 S.W.2d 922 (Tex.Civ.App., Amarillo, 1949, n. w. h.); Moore v. Campbell, 254 S.W.2d 1018, 1024 (Tex.Civ.App., Austin, 1953, writ ref., n. r. e.).

Also under our Rules of Civil Procedure where there is a conflict between provisions of a bill of exception and statement of fact, those in the bill control. Rule 372 (k), T.R.C.P.; Johnson v. Allen, 285 S.W.2d 771, 777 (Tex.Civ.App., Eastland, 1956, n. w. h.; Aguilera v. Reynolds Well Service, Inc., 234 S.W.2d 282 (Tex.Civ.App., San Antonio, 1950, writ ref.).

Nevertheless in our opinion the trial court did make all the necessary findings of ultimate issues upon which the case was determined. A full and complete statement of facts is before this court and no prejudice could be said to have accrued to appellant. Dillingham v. Dillingham, 434 S.W.2d 459, 462 (Tex.Civ.App., Ft. Worth, 1968, writ dism.).

Appellant by his points of error three, four and five contends that the trial court abused its discretion in the division of the property and by placing a special lien against all the property owned and/or claimed by appellant.

The court in its judgment pursuant to a stipulation entered in open court awarded to appellee Doris Mea certain items of furniture and other personal property owned by her prior to this marriage. In respect to the disposition of the other property involved, which forms the basis of this appeal, the judgment provides:

“IT IS FURTHER ORDERED, ADJUDGED and DECREED by the Court that Cross-Plaintiff, DORIS MEA, do have and recover of and from the Cross-Defendant, JOSEPH MEA, the sum of NINETY THOUSAND AND NO/100 ($90,000.00) DOLLARS, together with six per cent (6%) interest per annum thereon from date of Judgment until paid, and for all costs of suit, which sum the Court in the exercise of its discretion pursuant to the laws of the State of Texas finds to be just, right, fair and equitable without regard to whether the property so divided is community, separate, or mixed, taking into consideration all of the evidence in the record, including but not limited to the cause of the parties’ inability to live together as husband and wife, the benefits DORIS MEA would have derived from the estate or through a continuance of the marriage, disparity in earning powers of the parties, business opportunities, capacities and abilities, and the relative conditions of the parties, their obligations, ages and the relative size of their separate and community estates.”

The appellant contends that the portion of the judgment awarding to appellee the sum of $90,000.00 is manifestly unjust to him.

Omitting the formal parts, the court’s findings of fact are as follows:

“1. During the marriage of JOSEPH P. MEA and DORIS MEA, Joseph P. Mea was guilty of excesses, cruel treatment and outrages towards Doris Mea.

“2. During this marriage JOSEPH P. MEA was in full control of the company, MEA INTEREST, INC. of Texas, and the company, MEA INTEREST, INC. of New Jersey by virtue of the fact that he owned the only voting stock in such companies. Prior to the marriage and during the marriage of JOSEPH P. MEA and DORIS MEA, Joseph P. Mea made all of the decisions regarding corporate matters, including disbursements of funds, without consulting any other officer or director. By virtue of such control of the corporations, it is the finding of this Court that all of the income of such corporations was under his control and/or subject to his appointment as shown by the evidence.

“3. JOSEPH P. MEA owns substantial separate property.

“4. DORIS MEA owns no separate property other than that mentioned in the Judgment.

5. JOSEPH P. MEA’s earning capacity is very impressive, and by conventional standard he has the ability to make and earn large sums of money.

“6. By comparison DORIS MEA has a small earning capacity.

“7. JOSEPH P. MEA’s business opportunities are prospectively lucrative.

“8. DORIS MEA has no business opportunities.

“9. DORIS MEA was not at fault in the break-up of the marriage.

“10. DORIS MEA could have reasonably anticipated and expected to gain great financial benefits as a result of the continuation of this marriage.

“11. The business abilities of the respective parties are widely divergent in that JOSEPH P. MEA is involved in several companies that gross large sums of money each year, and DORIS MEA’s ability is limited to working as a clerk or secretary for weekly or monthly wages.

“12. The length of the marriage, the relative ages and health of each of the parties was also considered in arriving at a proper, just and equitable property division.

“13. The net worth of the parties without regard as to whether the property comprising such net worth is community, separate or mixed, is substantial.

“14. The attorneys for DORIS MEA have earned a very substantial fee. This is also taken into account in the division of the property owned, claimed and/or controlled by the parties. The services by said attorneys under the circumstances in this case were a necessity to the said Doris Mea.

“15. The Court finds that the Judgment heretofore rendered, reference being made here to such Judgment for the purpose of incorporating the same herein, awarding NINETY THOUSAND AND NO/100 ($90,000.00) DOLLARS to DORIS MEA, is fair, equitable and just without regards to whether the property so divided be separate, community or mixed.

“16. Any finding of fact herein which is more properly a conclusion of law shall be deemed to be a conclusion of law.”

The court concluded as a matter of law that “A fair, just and equitable division of the property belonging to, claimed or controlled by the parties without regard to whether such property is community, separate or mixed, is accomplished by awarding a Judgment for NINETY THOUSAND AND NO/100 ($90,000.00) DOLLARS to DORIS MEA, payable in eight (8) annual installments of TEN THOUSAND AND NO/100 ($10,000.00) DOLLARS each after the initial installment of $10,000.00, with interest on such installments to be due and payable at the time of such installment i. e. the 24th day of June each year until such Judgment together with the interest accruing thereon is paid in full; together with the items of property stipulated between the parties to be the separate property of DORIS MEA; with JOSEPH P. MEA to receive all other properties owned, held, claimed or controlled by either of the parties; and for each party to pay his or her own attorneys for services rendered to him or her respectively from the property awarded to each of them in the Judgment on file herein.”

There is evidence in the record that the value of the total properties, separate and community, owned by the parties is $1,098,-045.00; that the value of that portion of the property acquired during the marriage is $313,845.00.

In this State the law is well established that in the division of property in suits for divorce our courts are vested with wide discretionary powers. White v. White, 380 S.W.2d 672 (Tex.Civ.App., Tyler, 1964, writ ref., n. r. e.). Also in the absence of abuse of such discretion, the trial court may divide the property, separate or community, in such a way as will seem right, just and proper to the court. Roye v. Roye, 404 S.W.2d 92, 96 (Tex.Civ.App., Tyler, 1966, n. w. h.); Dobbs v. Dobbs, 449 S.W.2d 119 (Tex.Civ.App., Tyler, 1969, n. w. h.); Hearn v. Hearn, 449 S.W.2d 141, 145 (Tex.Civ.App., Tyler, 1969, n. w. h.).

Dillingham v. Dillingham, supra, is a case analogous to the fact situation before us in the instant case. In that case there was allegedly separate property involved in a corporation similar to the allegations in the case at bar. The court there made a division of the property and actually divided the corporate property equally between the appellant and appellee. The trial court in its findings of fact and conclusions of law made the following finding:

“ ‘ * * * I find also that the division of property between the parties herein as set out in the Judgment on file herein is equitable and just without regard to whether the property so divided is community, separate or mixed.’ ”

In response to this finding and in upholding the trial court’s discretion for the property awarded, the Court of Civil Appeals stated:

“It is true that the trial court did not agree with appellant’s contention that the corporate property actually constituted the separate property of appellant, but it was made plain that the court intended appellee to have what was awarded to her whether or not he was mistaken as to its character.”

The trial court in the exercise of its discretion, in dividing the property in a divorce suit, may take into consideration any disparity between the earning powers, the business opportunities, capacity and ability of the parties, fault in breaking up the marriage, and the benefits the innocent spouse would have received from a continuation of the marriage. Roye v. Roye, supra; Pickitt v. Pickitt, 401 S.W.2d 846 (Tex.Civ.App., Tyler, 1966, n. w. h.); Middlesworth v. Middlesworth, 380 S.W.2d 790 (Tex.Civ.App., Forth Worth, 1964, n. w. h.).

The appellant also complains of that portion of the judgment which fixed “a special lien upon the property, real and personal, hereinafter set aside to the Cross-Defendant, JOSEPH MEA, as his separate property for the payment of said sums; * * * ."

The trial court was vested with the authority to fix an equitable lien on appellant’s separate property to secure the payment of the money judgment to appellee. Mozisek v. Mozisek, 365 S.W.2d 669 (Tex.Civ.App., Ft. Worth, 1963, writ dism.) The lien fixed to secure said sum of money awarded to the appellee is not void for failure to describe the appellant’s property on which it was imposed, since identification of the property is a matter of proof in whatever equitable proceedings may be instituted for the enforcement of the lien. Hursey v. Hursey, 165 S.W.2d 761, 765 (Tex.Civ.App., Dallas, 1942, writ dism.); Smith v. Smith, 187 S.W.2d 116 (Tex.Civ.App., Ft. Worth, 1945, n. w. h.); 20 Tex. Jur.2d, p. 581, sec. 252.

In applying these well established rules of law to the record before us, we would not be justified in saying that the trial court abused its discretion in the adjudication of the property rights of the parties. Appellant’s second, third, fourth and fifth points are overruled.

The Court by its final judgment continued the order granting the receivership until final disposition of the controversies between the parties in the event of an appeal.

In view of our disposition of this case, appellant’s first point of error complaining of the trial court’s order appointing a receiver becomes moot; therefore, the appeal in cause No. 516 is dismissed.

The trial court’s final judgment is affirmed.