Keller v. Keller, 1829-7525.

• Decision Date: 12 June 1940
• Docket Number: No. 1829-7525.,1829-7525.
• Citation: 141 S.W.2d 308
• Parties: KELLER v. KELLER
• Court: Texas Supreme Court

Page 308

141 S.W.2d 308

KELLER v. KELLER

No. 1829-7525.

Commission of Appeals of Texas, Section B.

June 12, 1940.

Error to Court of Civil Appeals of First Supreme Judicial District.

Action by Mrs. Jessie P. Keller against Hugh R. Keller, her former husband, to recover her interest in certain items of community property. The Court of Civil Appeals reversed in part and affirmed in part a judgment denying plaintiff any recovery, 122 S.W.2d 270, and plaintiff brings error.

Judgment of the Court of Civil Appeals reversed in part, and judgment directed to be entered in accordance with opinion, and in other respects judgment affirmed.

Baker, Botts, Andrews & Wharton and J. C. Hutcheson, III, all of Houston, for plaintiff in error.

Williams, Lee, Sears & Kennerly and George D. Sears, all of Houston, for defendant in error.

TAYLOR, Commissioner.

This suit was filed by Mrs. Jessie P. Keller against her former husband, Hugh R. Keller, to recover her interest in certain items of community property which she alleges were not partitioned or awarded to either party in a property settlement made upon the granting of Mrs. Keller's petition for divorce about two years before the filing of the present action. The trial court before whom the case was tried without a jury denied plaintiff any recovery, and, in addition, corrected and supplemented the divorce judgment in the manner hereinafter stated.

The Court of Civil Appeals reversed the judgment of the trial court and allowed plaintiff recovery of one-half of one of the items sued for as having been omitted from the settlement, but in other respects, except as to costs of the trial court, affirmed the judgment. 122 S.W.2d 270, 271.

The background of plaintiff's suit, and the grounds upon which it was based, are clearly stated by the Court of Civil Appeals as follows:

"In contemplation of divorce appellant and appellee entered into an agreement dividing specified items of community property, and setting aside to appellant her separate property, on November 16, 1933. This agreement was incorporated in the divorce decree which was rendered on December 22, 1933. The agreement has no general or residuary clause awarding to either party any property not therein included. The following three items of property were not, eo nomine, included in the settlement, nor in the decree embodying the settlement, and appellant alleged that they were community property, and that she and appellee remained the owners of such property after their divorce, unaffected by the settlement agreement and decree.

"First Item: An indebtedness of $21,000 owing to appellee at the time of such settlement by the Cooper-Keller Oil Company, which was paid to appellee in full, five days after the divorce decree.

"Second Item: An item of $20,000 owing to appellee by the Cooper-Keller Oil Company as salary for the year 1933, and which was paid to him in full about the end of 1934.

"Third Item: 50 shares of the capital stock of the Cooper-Keller Oil Company, of the value of $46,250. * * *

"As to the fifty shares of stock, appellant concedes that it was the intention of the parties that it should have gone to appellee by the terms of the agreement, for she knew that one-half of the shares of the capital stock was the community property of herself and appellee, but by a mutual mistake it was supposed that the capital stock consisted of 100 shares, whereas, in reality, it consisted of 200 shares, so that in apportioning the stock in the corporation to appellee the parties should have described it as 100 shares, instead of 50 shares, as they in fact did. She concedes that this error should have been corrected by reforming the settlement agreement, except that she asserts appellee has cut himself off from the right to this equitable remedy, by having deceived her with respect to items No. 1 and No. 2. She claims, therefore, that as to the remaining 50 shares of stock, that she must be decreed an interest therein, or receive reparation therefor, in consequence of appellee having no right to have the settlement agreement reformed to carry into effect the mutual understanding that appellee should have all the stock in Cooper-Keller Company."

This Court is in accord with the holding of the Court of Civil Appeals with respect to the first item, which is, briefly, that Mr. Keller, during the period of the marital partnership, made the $21,000 advancement in question to the corporation, and that the marital partners were entitled to share it equally upon payment by the corporation. See the portions of the opinions of the Court of Civil Appeals dealing with that item on original hearing, 122 S. W.2d at page 272 and on rehearing, 122 S.W.2d at page 274, column 1.

We are in accord also with the court's holding with respect to the third item sued for by Mrs. Keller.

That it was intended by the parties in their property settlement that Mr. Keller was to receive all of the stock owned by the community estate in the corporation (Cooper-Keller Oil Co.) is not questioned by Mrs. Keller. Nor is it questioned by her that there was an error in describing in the settlement contract the interest he was acquiring in the corporation, as 50 rather than 100 shares of the capital stock of the corporation, as appears from the following stipulation made by counsel for Mrs. Keller upon the trial of the present case: "It is stipulated and agreed that at the time of the execution of the settlement contract, both of the parties thought that fifty shares of stock in the Cooper-Keller Oil Company was all of the stock in the company owned by the community, and that fifty shares represented one-half of the stock of the company."

The settlement contract, which is incorporated in the divorce judgment, provides that, "if there are any errors in the description of the property (covered by the contract), or if the property is not fully or completely described, such errors may be corrected and such description supplemented."

In view of what has been stated it is clear the trial court did not err in correcting and supplementing, in the present judgment, the description of the interest acquired by Mr. Keller, so as to describe correctly the interest both parties intended he should receive. The Court of Civil Appeals correctly affirmed the trial court's action in denying Mrs. Keller recovery of any portion of the capital stock of the corporation.

We are not in accord with the holding of the Court of Civil Appeals with respect to item No. 2, supra, referred to as an indebtedness by the corporation to Mr. Keller for salary for the year 1933. It was the assignment complaining of error on the part of the court in holding that the $20,000 item was not salary, upon which the writ was granted.

It should be borne in mind at the outset of the discussion of this holding that this is not a suit for division between the parties of the properties which they owned at the time of making the contract in contemplation of divorce. The parties themselves did that by an agreement which they incorporated in the decree entered in the divorce action....