Andes v. Cagle

• Decision Date: 26 May 1971
• Docket Number: No. 473,473
• Parties: John H. ANDES, Appellant, v. Carole Andes CAGLE et al., Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 513

468 S.W.2d 513

John H. ANDES, Appellant, v. Carole Andes CAGLE et al., Appellees.

No. 473.

Court of Civil Appeals of Texas,

Houston (14th Dist.).

May 26, 1971.

Rehearing Denied June 16, 1971.

William Dickson, Dickson & Associates, Houston, for appellant.

Decatur J. Holcombe, Underwood & Holcombe, J. E. Tatum, David A. Gibson and J. E. Tatum, Houston, for appellees.

SAM D. JOHNSON, Justice.

John N. Andes, the appellant, instituted this suit for the restitution of shares of certain stock against the appellees, Carole Andes Cagle, Harry W. Cagle and Investors Diversified Services, Inc. The pertinent facts relative to a marriage, divorce and the ownership of property must be set forth in order to understand the contentions of the parties.

The appellant, John N. Andes, and the appellee, Carole Andes Cagle, were married in 1955, and divorced in December of 1961. One son, Rob Roy Andes, was born to this marriage. In February, 1960, John Andes and Carole Andes Cagle paid $8,000 to the appellee, Investors Diversified Services, Inc., for shares of stock acquired under two separate accounts. Both accounts listed John Andes as the shareholder and Carole A. Andes as a joint tenant. The account designated number '014' contained in excess of 660 shares in the Variable Payment Fund, Inc.; the account designated number '023' contained in excess of 238 shares in Investors Stock Fund, Inc. The appellant alleged that these accounts were purchased with funds from his separate property, that the divorce decree made no determination regarding the accounts and that the appellees, without the knowledge or consent of the appellant, effectively deprived him of his stock in the accounts. The trial of this case was to a jury in the District Court of Harris County, Texas, in August, 1970. After the appellant rested his case, the trial court granted the appellees' motion for instructed verdict and entered judgment that the appellant take nothing. The appellant, John Andes, perfects this appeal.

Carole Andes Cagle was married to Floyd Neageli before she married Andes. Two children were born of this marriage. Neageli died in 1952 and left insurance policies for the benefit of Carole Andes Cagle and the two minor children. Carole Andes Cagle testified that at the time of her marriage to Andes she had certain monies. She received insurance payments for the benefit of her two children during the first years of marriage to Andes. Carole Andes Cagle testified that she withdrew the funds from her childrens' savings account and deposited such funds in a joint account. Carole Andes Cagle also worked periodically as a secretary while married to Andes .

John Andes, at the time of his marriage to Carole Andes Cagle, owned approximately $20,000. Sixteen thousand dollars was invested in a house, which was sold subsequent to the marriage. The monies received from the sale of this house were used in a series of transactions involving the buying and selling of at least five properties. It was Andes' position that he and Carole Andes Cagle ultimately purchased the '023' and '014' accounts with funds received from the sale of properties which had been purchased with his separate property.

On November 12, 1960, Carole Andes Cagle signed John Andes' name and her own name on forms authorizing the transfer of the '014' account into three accounts, 034, 044 and 054. She testified that such transfer was for the benefit of her three minor children (two by Naegeli and one by Andes) and in such transfer Carole A. Andes' name was listed as 'custodian' for the children. On December 19, 1960, John Andes returned the confirmation of the transfer of the '014' account to Investors Diversified Services, Inc., and made inquiry with reference to the change of names on the account. In August, 1961, Carole Andes Cagle authorized the sale of the shares of stock in the childrens' 034, 044 and 054 accounts and Investors Diversified Services, Inc., sent checks to Carole Andes Cagle for these accounts in the amounts of $2,067.14, $1,241.12 and $2,067.14. Carole Andes Cagle deposited these checks in her separate bank account and later withdrew these funds from the bank and invested them in the Cagle Construction Company. She testified that she thereafter withdrew the funds from the construction company and used them for living expenses.

The 023 account was transferred by John Andes and Carole A. Andes on May 11, 1961 into an 063 account in the name of Carole A. Andes, as trustee for John Andes. Andes testified that he recognized his signature on the application for transfer of the 023 account into the 063 account. The 063 account was then pledged to a bank as collateral for a home improvement loan. John Andes admitted signing a letter dated June 30, 1961, requesting Investors Stock Fund, Inc. to issue a certificate in Investors Stock Fund in Carole A. Andes' name and requesting it be sent to a local bank on account of a loan made with the bank and secured by the stock. On October 6, 1961, a letter bearing the signatures of John Andes and Carole A. Andes authorized and instructed the bank to sell the shares of Investors Stock Fund that the bank was holding as collateral on the note. The bank was instructed to deposit the full amount from the sale in a checking account and deduct from the account the amount necessary to pay off the principal and interest on the note. Carole Andes Cagle testified that the excess from the sale of this stock was deposited in John Andes' separate bank account. All of the foregoing applications, exchanges, sales and transfers were made before the divorce of John Andes and Carole A. Andes.

In November, 1961, John Andes and Carole Andes Cagle entered into an extensive property settlement which partitioned the house in Houston, furniture, an automobile, property owned in California, an interest owned in a New Jersey trust, a promissory note payable to the parties jointly, retirement funds, pension plans and pension and retirement trust plans. The settlement agreement provided that 'the partie...