Stanley v. Stanley

294 S.W.2d 132, 1956 Tex. App. LEXIS 1805

• Court: Court of Appeals of Texas
• Decided: September 24, 1956
• Docket: 6610
• Status: Published

Opinions

PITTS, Chief Justice.

This majority opinion has been prepared for announcement in lieu of a minority opinion. This appeal is from a judgment rendered in a case filed by appellant, Mary Hare Stanley, against appel-lee, Theodore Hawkins Stanley, seeking a divorce and an adjudication of property rights between the parties. No children were born to.the marriage. The case was tried to the court without a jury and judgment was rendered granting appellant a divorce and dividing the property between the parties by awarding appellant approximately two-thirds of the property, except for the sum of $6,711.37 which was separately traced into the home hereinafter mentioned and which the trial court awarded to the appellant as her separate property, and by awarding to appellee approximately one-third, after deducting the sum of-$6,-711.37 from the total value of the property as appellant’s separate property. Appellant perfected an appeal to this court but complains here only about the division of the property. No complaint is here made by either party about the issue of divorce.

In her points presented appellant charges in effect that the trial court erred in finding and concluding that appellant had forfeited her right' to her separate estate owned by her before her marriage to appellee; that the trial court erred in applying the doctrine of co-mingling of property in this case and in concluding that the property in question, except for the sum of $6,711.37, was community property between the parties and that appellant was charged with the burden of proof in establishing her rights, if any, to any separate property she claimed; that the trial court abused its discretion in adjudicating the rights of the parties in connection with the property awards; that the trial court erred in finding that appellee did not, by his acts, consent, acquiescence and conduct, give to appellant as her separate estate all of the income, rents and revenues, increases and earnings, realized from her separate property during the marriage of the parties; that the trial court erred in its failure to find that appellee was indebted to the separate estate of appellant by reason of loans made to him.by- appellant out of her separate estate; and in effect that the evidence did not support, the material findings of the trial court.

Appellee joins issue with appellant on the assignme'nts presented and ' likewise files cross assignments complaining because the trial court found and concluded that the sum of $6,711.37 was'separate funds of appellant’s and because it failed to chargé against any separate estate found to belong to appellant the sum of $4,500 .advanced by the community estate to appellant to pay her income taxes before the marriage of the parties. ' '

In its judgment the trial court described the property here involved and at the request of appellant made and filed separately its. findings of fact and conclusions of law, which support the judgment. In its judgment it listed the properties and their agreed values as follows:

“In Possession of T. H. Stanley Values

Cowboy Cafe, Canyon, Texas $ 9,350.00 Equity in 1955 Chevrolet Station Wagon 611.86

In possession of Mary Hare Stanley

Southern Finance Company 10,198.20 Cash in Bank. 807.91

Cashier’s Check at First Na-

tional Bank, Amarillo, Texas 5,114.09

Cash in Mrs. Stanley’s posses-

sion 1,000.00

Home at 1511 Austin, Amaril-

lo, T exas 26,300.00

Cash in Deposit box at First

National Bank, Amarillo,

Texas, 37,500.00

1952 Cadillac Automobile .1,450.00

Traveler’s Checks and Cash 400.00

Cash, Moriey Orders and Trav- '

eler’s Checks , 3,600.00

Total Value " $96,332.06.”

After deducting the value of appellant’s separate property in the sum of $6,711.37 from the total value of the said sum, property of the value of $89,620.69 remains, which latter sum the trial court found and concluded to be community property between the parties and awarded appellant property of the valué of $59,738.80 and ap-pellee' property of the value of $29,881.89, finding in support thereof that such a division was fair and equitable: The only real estate shown is the “Home at 1511 Austin, Amarillo, Texas,” valued at $26,300, which among other propérty was awarded to appellant. Appellee was awarded the Cowboy Cafe at Canyon, Texas, valued at $9,350 and all equity of the value of $611.86 in the 1955 Chevrolet Station Wagon, together with cash in the sum of $19,920.03, and appellant was awarded the remainder of the property. Appellee voluntarily placed in the registry of the trial court a special warranty deed in favor of appellant to the Amarillo home located at 1511 Austin Avenue, valued at $26,300 and appellant has placed in the registry of the trial court a cashier’s check in the sum of $19,920.03, both placed there subject to order as a result of a final judgment in this case.

The record reveals that the parties were married from August 17, 1949, until on or about September 17, 1954. The trial court found that during the marriage their properties had earned $84,044.63, which earnings were found to be community property and were mixed and co-mingled with appellant’s separate property, except for the sum of $6,711.37, by placing it all together during their marriage in various bank accounts, in a safety deposit box and by investing it in the various business enterprizes herein mentioned and by withdrawing therefrom and adding thereto large sums at various times without keeping any kind of a record separating the funds much of the time; that because of the mixing and co-mingling of the community property of the parties, during the marriage, with appellant’s separate property owned by her before her marriage, her separate property has lost its identity and cannot be traced or identified, except for the $6,711.37. previously herein shown, either by herself or by a certified public accountant who had been employed by appellant for a number of years and was familiar with her accounts and her business operations and who testified for her at the trial; and that the parties by their acts and conduct really treated the purchases of their various properties as community property without specifying that any certain item was the separate property of either spouse. The trial court found further that there was no competent evidence or testimony to support appellant’s claims that ap-pellee had given to her the earnings during their marriage or that such were given to her by reason of appellee’s acts, consent, acquiescence or conduct, or by reason of estoppel. The court further found that appellant was about 25 years older than ap-pellee and was in failing health and because of these and other disparaties shown she was entitled to more than half of the community property owned by the parties (the record reveals that the appellant1 was about 65 and appellee was about 40 years of age at the time of the trial).

On a certified question in the case of Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21, 23, in discussing the power vested by statute in the trial court, Judge Greenwood, speaking for the Supreme Court, said:

“The court pronouncing a decree of divorce is invested with wide discretion in disposing of any and all property of the parties, separate or community, and * * * its action, in the exercise of such discretion, should be corrected on appeal only where an abuse of discretion is shown in that the disposition made of some property is manifestly unjust and unfair.”

The Hedtke case was followed by Clark v. Clark, Tex.Civ.App., 35 S.W.2d 189, writ dismissed; Housewright v. Housewright, Tex.Civ.App., 41 S.W.2d 1071, writ refused; Scannell v. Scannell, Tex.Civ.App., 117 S.W.2d 538; Hamm v. Hamm, Tex.Civ.App., 159 S.W.2d 183; Hendrick v. Hendrick, Tex.Civ.App., 222 S.W.2d 281, and numerous other cases.

In a divorce action, the trial court shall decree and order a division of the estate of the parties in such a way as it may deem just and right, having due regard for the-rights of the parties. Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002. In doing so, the trial court may take into considera^ tion the difference in ages of the parties or any other disparity between the earning powers of- the parties, the business opportunities, capacities and abilities and is not required to divide the property equally. Venezia v. Venezia, Tex.Civ.App., 227 S.W. 2d 881 and the many other authorities there cited.

It is presumed that all of the property which the husband and wife possess at the dissolution of marriage is community property and the burden to show otherwise is upon the party who alleges to the contrary. Earnest v. Earnest, Tex.Civ.App., 223 S.W.2d 681. Such a rule applies to realty acquired during marriage as well as to personal property. Rippy v. Rippy, Tex. Civ.App., 49 S.W.2d 494. The presumption of the community character' of the property acquired by either spouse during marriage is very strong, and can be overcome only by clear and convincing proof that it belongs to one or the-other of them, and the burden of proving its separate character is always upon him. who asserts it. Skinner v. Skinner, Tex.Civ.App., 202 S.W.2d 318; Harkness v. McQueen, Tex.Civ.App., 232 S.W.2d 629. The fact that at the time of the marriage one spouse had much property and the other had nothing and that during the marriage relation the parties decreased in fortune, will not rebut the presumptions herein mentioned, unless the purchase money or consideration for the property is explicitly traced to the separate property of the spouse having the original ownership of the “much property” previously mentioned. Rippy v. Rippy, supra.

With reference to the co-mingling of funds by the husband and wife while married to each other:

“The law in Texas is to the effect that where separate and community property are so intermixed that the separate property loses its identity and cannot accurately be traced, the co-mingled fund, and property acquired therewith, becomes community property. Stated in another way, where a husband or wife permits his or her separate property to become so co-mingled with community property that it cannot be identified, the separate property co-mingled becomes community property. • See Tex.Jur., 10 Yr.Supp. Vol. 5, Sec. 67a, p. 59S; Hudspeth v. Hudspeth, Tex.Civ.App., 198 S.W.2d 768; Coggin v. Coggin; Tex.Civ.App., 204 S.W.2d 47; Gorman v. Gorman, Tex.Civ.App., 180 S.W.2d 470; Moore v. Moore, Tex. Civ.App., 192 S.W.2d 929; Rippy v. Rippy, Tex.Civ.App., 49 S.W.2d 494; McGarraugh v. McGarraugh, Tex.Civ. App., 177 S.W.2d 296; Walker-Smith Co. v. Coker, Tex.Civ.App., 176 S.W.2d 1002.” Odie v. Odie, Tex.Civ.App., 272 S.W.2d 381, 383.

The record before us reveals that at the time of her marriage to appellee appellant owned certain properties consisting in part of interests in loan companies identified as Southern Brokerage Company, Local Finance Company,, Plains Finance Company and Texas Management Company, and had a bank account and maintained a safety deposit box at her bank. After her marriage to appellee, appellant and her employees continued to manage her property and she kept her bank account and maintained her safety deposit box, during which time the earnings .or proceeds from her properties amounted to $84,044.66. The record also reveals that during appellant’s ’marriage to appellee the status of the property changed to that previously herein listed, during which time she drew monies from one or more of the said loan companies and placed them in either the safety deposit box, her bank account or in other companies or investments and did thereafter take money out of the safety deposit box or her checking account in the bank or one or more of the business enterprises and interchange the said funds between the said businesses, bank account and safety deposit box, thus mixing all of the said monies together with the earnings and profits in the sum of $84,044.66 realized during marriage.

Under the rules of law cited, appellant was charged with the burden of tracing and proving her separate funds before such could be awarded to her. This she failed to do, except for the $6,711.37 awarded to her as her separate property. •On the contrary, she testified in effect that she could not trace the various monies from the safety deposit box, the bank account or business investments being often transferred from one to the other. She. also testified that, she had some of the property before marriage and acquired some of it while she was married to appellee, but she claimed ownership of all of it “because I made every dime of it myself.” She seemed to think the property was all hers regardless of the law governing the co-mingling of separate funds with community property. The testimony reveals that no record was kept of money transferred from the safety deposit box or from one account or business to another except for notations made on two envelopes from May 20, 1948, to June 7, 1951, and none was kept thereafter. The notations kept on the envelopes constituted a crude sort of method that could be explained or partially explained only by appellant. The record reveals that monies in various amounts were placed and withdrawn from the safety deposit box at various times during the marriage. At one time there was approximately $64,000 in the safety deposit box and large amounts were placed in and withdrawn therefrom at various times. There was cash in the sum of $37,500 in the said box at the time of the trial.

Appellant’s accountant, Elmer M. Likes, testified that he did not audit the funds kept in the safety deposit box but he had to take the statement of someone else of the various amounts kept therein. He further testified that the safety deposit box was used as a “grab-all” sort of a place to put money in and take it out at various times. The witness, Likes, further testified that he was a certified public accountant and had been working for appellant at various times since September, 1947; that he had recently checked and audited her business affairs but upon cross examination concerning the property previously herein listed he could not trace the source of the money on hand and was unable to testify that any of the property listed wás purchased by money that appellant had before her marriage to appellee. He several times testified concerning these various items; when asked where the money came from that purchased them, he answered to the effect that he did not know. No other witness made an attempt to trace the separate funds' of appellant, except for the $6,,711.37 previously herein mentioned, and there was no evidence of any nature tracing such funds or identifying them.

Appellant charges that the evidence was insufficient to support the trial court’s findings. To test the sufficiency of the evidence to determine if it will support the, trial court’s findings we must give credence only to the evidence and circumstances favorable to the findings and disregard all evidence and circumstances to the contrary. , It is,likewise the rule that the findings of the trial judge where, there is no jury wilknot be disturbed by an appellate court where there is some evidence of. probative force to support the findings, even though the evidence may be conflicting and the Court of Civil Appeals might have reached a different conclusion. It is a well settled rule that the trial court’s findings of fact will be upheld unless they are manifestly erroneous and they will be overruled only when they are without any evidence of probative force to support them or where they are so against the great weight and preponderance of the evidence as to • be manifestly wrong. Boston Ins. Co. v. Rainwater, Tex.Civ.App., 197 S.W.2d 118 and othér authorities there cited; Kelly v. Ap-plewhite, Tex.Civ.App., 231 S.W.2d 974; Banks v. Collins, 152 Tex. 265, 257 S.W. 2d 97.

. We find no proof, or at any rate none of probative force, showing or tending to show that appellee gave to appellant the property earnings here involved during their marriage either directly or by his acts, conduct or acquiescence, or that any loans were made to appellee by appellant. Neither do we find where the trial court forfeited appellant’s rights to her separate property either by judgment, conclusion- or a finding of fact. The trial court merely found and concluded that appellant co-mingled her separate property with community property and failed to discharge the burd'en-.of proof in tracing and keéping separate any, property she may have had when she was married to appellee, except for the $6,711.3-7.

Applying the rules of law to the facts presented here, it is our opinion that there is sufficient evidence to support the material findings made by the trial court. It is our opinion further that appellee’s cross assignments of error should all be overruled.

The appellate courts of this State will presume, upon the appeal of any case, that the judgment appealed from is correct unless the contrary is made to appear affirmatively from a proper record of the proceedings had in the trial below. Smothers v. Gawlik, Tex.Civ.App., 214 S.W. 2d 894; 3 Tex.Jur. 424, Secs. 302 and 303; Bennett v. Jackson, Tex.Civ.App., 172 S.W. 2d 395; Erback v. Donald, Tex.Civ.App., 170 S.W.2d 289. In attempting to show affirmatively that an error exists as reflected by the record, appellant must be guided by the rules of law and of equity applicable to the record produced. In our opinion appellant has failed to show any reversible error committed by the trial court.

The statement of facts is ujjduly voluminous, containing many argumentative statements made by counsel and. other statements made by the trial court, making some portions of the record confusing. However, applying the rules of law herein cited to a careful examination of the record, we believe the trial court did not abuse its discretion and its judgment should be affirmed. Appellant’s points to 'the contrary are all overruled and -the judgment of the trial court is affirmed.