Schecter v. Schecter

579 S.W.2d 502, 1978 Tex. App. LEXIS 4133
CourtCourt of Appeals of Texas
DecidedJanuary 12, 1978
Docket19656
StatusPublished
Cited by3 cases

This text of 579 S.W.2d 502 (Schecter v. Schecter) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schecter v. Schecter, 579 S.W.2d 502, 1978 Tex. App. LEXIS 4133 (Tex. Ct. App. 1978).

Opinion

ROBERTSON, Justice.

This is an appeal from the trial court’s division of property in a divorce action. Naomi Schecter, appellee, filed a petition for divorce against Leonard Schecter, appellant, and asked for a division of the community estate. Trial was to the court which granted a divorce, divided the property pursuant to Tex.Family Code Ann. § 3.63 (Vernon 1975), and made findings of fact and conclusions of law. We hold that the court did not abuse its discretion in dividing the estate, and accordingly, affirm.

In terms of specific assets, the court divided the community estate as follows:

Awarded to Wife
Asset Value
50 shares Leesona Corp. stock $ 852.04
100 shares Tracor Corp. stock 1,148.66
81.9 shares American General Bond Fund stock 1,902.27
Real estate checking account at Northpark National Bank 1,150.44
Personal and savings accounts at Northpark National Bank 1,262.70
Warren Way property 1 8,000.00
Phoenix Mutual Life Insurance Policy 2 unknown
Keough Retirement Plan 10,000.00
TOTAL $24,316.11
Awarded to Husband
Asset Value
Optometry business equipment unknown
Savings accounts at United National Bank and Richardson Savings & Loan $ 8,000.00
Savings and checking account at Mercantile National Bank 998.39
Phoenix Mutual Life Insurance policy 3 unknown
Keough Retirement Plan 10,000.00
Certificate of Deposit 10,000.00
TOTAL $28,998.39

The primary question on this appeal is whether the trial court abused its discretion in making the above property division. The standard of review is whether the property division is so manifestly unjust as to amount to an abuse of discretion. Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299, 303 (1960); Cockerham v. Cockerham, 527 S.W.2d 162, 173 (Tex.1975); Goetz v. Goetz, 567 S.W.2d 892, 894 (Tex.Civ.App.—Dallas 1978, no writ). An unequal division of assets does not by itself establish an abuse of discretion. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923). Indeed, the figures indicate that appellant received a larger share of the community estate than appel-lee.

*505 Appellant first contends that the trial court erred in finding that all of the following was appellee’s separate property: certain bank accounts in Casa Linda Bank and Republic National Bank; the interest from appellee’s separate certificates of deposit; and dividends from appellee’s separate stock. The record shows that the bank accounts were business accounts used in connection with a retail dress shop, the “Vogue”, which was appellee’s separate property. While it appears that the profits from this business would be community property, we cannot say that the failure to segregate these profits is an abuse of discretion. Since the trial court concluded that the estate of the parties has been divided in a manner that is fair, just, and equitable, the fact that it may have erred in holding that certain property is separate rather than community will not necessarily result in reversal. See Muns v. Muns, 567 S.W.2d 563, 567 (Tex.Civ.App.—Dallas 1978, no writ); Cooper v. Cooper, 513 S.W.2d 229, 233 (Tex.Civ.App.—Houston [1st Dist.] 1974, no writ). Also, the trial court concluded as a matter of law that “if it had mistakenly labeled property as separate property that was community property, that such property should be community property and it is just and right that such property should be set aside to such individual as his or her separate property.” 4 The same principles apply to the award of interest and dividends, which appear to be community property. Viewing the property settlement as a whole, we cannot say that the trial court committed an abuse of discretion.

Appellant next complains of the trial court’s failure to charge appellee’s separate estate for air conditioning improvements and monthly mortgage payments made on appellee’s home. He argues that these improvements and payments were made with community funds and that the community estate is entitled to reimbursement. Although this may be correct, the record reflects that appellee spent considerable amounts of her separate funds improving the community estate. Under the circumstances, we cannot say that the failure to grant reimbursement was an abuse of discretion by the trial court.

Appellant also raises a no evidence point with respect to the trial court’s granting appellee’s separate estate a right of reimbursement for funds used for the benefit of the community. In considering a no evidence point, we must view the evidence in the light most favorable to the court’s findings and disregard all evidence to the contrary. If there is any evidence of probative force to support the court’s findings, we are bound by these findings. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). We are of the opinion that there is evidence sufficient to support the trial court’s grant of reimbursement. The record contains testimony and exhibits dealing with the specific transfer and use of appel-lee’s separate funds to benefit the community estate. Thus, we cannot substitute our judgment for that of the trial court.

We next address the appellant’s contention that the appellee failed to prove that the inventory of the “Vogue” was her separate property since she did not properly trace the inventory from the beginning to the end of the marriage. Thus, he argues that the property is community and that the court erred in failing to divide it. Appellant cites Jones v. Epperson, 69 Tex. 586, 7 S.W. 488 (1889); Middlebrook v. Zapp, 73 Tex. 29, 10 S.W. 732 (1889), and Hardee v. Vincent, 136 Tex. 99, 147 S.W.2d 1072, 1074 (1941) in support of his contention. These cases are all distinguishable. All three cases involved creditors levying on property that was claimed to be separate property as opposed to community.

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Cite This Page — Counsel Stack

Bluebook (online)
579 S.W.2d 502, 1978 Tex. App. LEXIS 4133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schecter-v-schecter-texapp-1978.