Bagby v. Bagby, 5666.

• Citation: 186 S.W.2d 702
• Decision Date: 26 February 1945
• Docket Number: No. 5666.,5666.
• Court: Court of Appeals of Texas
• Parties: BAGBY v. BAGBY.

186 S.W.2d 702

BAGBY v. BAGBY.

No. 5666.

Court of Civil Appeals of Texas. Amarillo.

February 26, 1945.

Appeal from District Court, Donley County; A. S. Moss, Judge.

Suit for divorce by Dalene Bagby against George Bagby, wherein the defendant filed a cross-action for divorce. Judgment for the plaintiff, and the defendant appeals.

Judgment affirmed.

W. T. Link, of Clarendon, for appellant.

Bert King and Arch Dawson, both of Wichita Falls, and J. R. Porter, of Clarendon, for appellee.

PITTS, Chief Justice.

Appellee, Dalene Bagby, sued appellant, George Bagby, for a divorce, property settlement, and attorney fees. Appellant answered with a general denial, a cross-action for a divorce, a request for the partition of the community property, and the setting aside of his separate property and filed an inventory of community and separate property. The trial court temporarily enjoined appellant from encumbering the property or disposing of any of it but authorized him to continue to conduct his agricultural, livestock and insurance businesses. The trial court also appointed an auditor to audit the accounts and vouchers and list the property belonging to the parties and report fully on receipts and disbursements to the court, and a full report of the same was filed by the auditor.

The case was tried on October 5, 1944, to a jury which found appellee entitled to a divorce, $1300 to be a reasonable attorneys' fee for appellee and that the reasonable cash market value of the community property was $25,544.17. The jury made further findings which we do not consider material to this appeal.

The trial court overruled appellant's motion for judgment and entered a judgment on October 26, 1944, granting appellee a divorce, awarding her one of the automobiles, as well as the household and kitchen furniture, and charged against appellee's interest in the community property the sum of $2,000 for the household and kitchen furniture as a fair value of the said furniture, gave appellee the right to occupy as a homestead the place located in Clarendon, Texas, for a period of fifteen years, unless she should sooner remarry, and required her to pay all taxes and keep the property insured during her occupancy of it. The trial court awarded the remainder of the community property to appellant and directed him to pay appellee the sum of $13,118.02 in money for her interest in that part of the community property awarded to appellant. The judgment also directed appellant to pay appellee an additional sum of $1,300 as a reasonable attorney fee for the attorneys who represented her at the trial of the case, and dissolved the injunction previously granted and denied any and all rights not therein expressly granted.

Appellant filed a motion for a new trial, which motion was overruled by the trial court, and an appeal was perfected to this court by appellant on the property adjustment and attorneys' fee only, and he executed a supersedeas bond. Appellant did not appeal from the trial court's order granting appellee a divorce and makes no complaint about that part of the trial court's judgment and that issue is not before this court.

Appellee has presented to this court some cross-assignments which we do not consider it necessary to pass on in view of the disposition we are making of this appeal.

Appellant complains that it was fundamental error for the trial court to award to appellee the use of the homestead for fifteen years unless she sooner remarried and to award to her the household and kitchen furniture because there were no pleadings and no jury findings to support either award and he further complains that it was fundamental error for the trial court to award appellee a money judgment for more than $12,772.09, or one-half of $25,544.17, which sum the jury found to be the value of the community property.

Among other pleadings, appellee alleged that considerable property had been accumulated by her and appellant during their marriage, but that she was not fully informed about the amounts and values of such property except for the household and kitchen furniture and two automobiles, a Packard and a Chevrolet; that she had been told about the home and the farms which she listed and about other property, a part of which she believed to be appellant's separate property; that she did have a community interest in certain livestock, insurance policies, insurance business, improvements placed on the farms, crops grown during the years 1943 and 1944, and other valuable property about which she had never been fully informed, but about all of which appellant was fully informed. She asked that appellant be required to make a full disclosure of all the property and that she be awarded whatever she was entitled to under the rules of law and equity in such cases, together with a reasonable attorneys' fee.

Appellant answered with a general denial but alleged that in a proposed property settlement he had agreed to give appellee in case a divorce was granted "the Packard automobile, the household and kitchen furniture, and the home place, both the lot and house thereon situate in Clarendon, Texas." Appellant filed inventories showing the community property, as well as his separate property, making them a part of his pleadings, and prayed for the approval of his alleged property settlement and, in the alternative, for an equal division of the community property.

We believe appellee's pleadings support the trial court's judgment about which appellant complains. But it is a well-established rule in this state that facts pleaded by the adverse party are available to either party in support of a cause of action or judgment. Shaw, Banking Com'r, v. Borchers, Tex.Com.App., 46 S.W.2d 967; American Nat. Bank of Wichita Falls et al. v. Haggerton, Tex.Civ.App., 250 S.W. 279, and authorities there cited. It is likewise a well-settled rule that, under the provisions of article 4638, the trial court has authority to construe the pleadings of the parties in a division of property in a divorce case more liberally than in other civil cases. Fain v. Fain, Tex.Civ.App., 6 S.W.2d 403; Caywood v. Caywood, Tex. Civ.App., 290 S.W. 889, and authorities there cited. For these reasons we believe the pleadings support that part of the judgment about which appellant complains if appellee's pleadings alone are insufficient and we therefore overrule appellant's complaints about the insufficiency of the pleadings.

The record reveals that the parties were married on May 23, 1937, when appellant was 37 years of age and appellee was 23 years of age; that they separated on or about May 14, 1943; that no children were born to the marriage; that appellee was a school teacher at the time of the marriage and had no separate property other than her personal effects; that appellant owned as his separate property at the time of the marriage the home they occupied during their married life in Clarendon, Texas of the value of $6,000; a farm of 300 acres in Donley County of the value of $6,750; a farm of 210.7 acres in Donley County of the value of $7,875, on which $5,500 of the purchase price was paid by the parties during their marriage; one-half interest in a farm of 200 acres in Fannin County, Texas and a one-half interest in 250 acres of timbered land in Red River County, Texas, which interests in the latter two tracts were inherited; and that he owned certain personal property. The record discloses that considerable improvements were placed on the Donley County farms during the marriage of the parties. The record also reveals that appellant engaged in a very profitable life insurance business during the marriage. The auditor's report shows that his life insurance commissions during the marriage amounted to $55,446.46. The record further reveals that a part of the community estate consisted of 110 shares of stock in the United Fidelity Life Insurance Company of the value of $3,512, of war bonds of the value of $1,387.50, and that there was an accrued cash value of $1,458 on appellant's life insurance policies during the marriage.

The record in the case is quite voluminous. The auditor's report covers 28 pages, listing all of the separate and community properties, as well as all receipts and disbursements during the marriage. Appellant filed four lengthly inventories showing the net value of the community estate to have been $22,843.17 on June 8, 1943, to have been $20,838.68 on February 21, 1944, to have been $18,754.12 on June 28, 1944, and to have been $16,444.39 on September 28, 1944. From the variations found in the several inventories filed by appellant, and from his own testimony given at the trial at length, covering 163 pages in the statement of facts, it is evident that he could not determine very satisfactorily the values of some of the items composing the community estate belonging to himself and appellee. Then certainly, it must have been difficult for the jury and the trial court to determine very accurately the values of some of the property composing the community estate.

The jury made a finding as to the reasonable cash market value of the community property but it made no finding as to how the property should be divided and it was not asked to make such a finding. Appellant contends that it was within the province of the jury to make a division of the property between the parties; that its findings would have bound the trial court, and that the trial court committed fundamental error in proceeding to make what it considered an equitable disposition of the property and to determine the rights of the parties in making such a division without support so to do from the verdict of the jury and that it was fundamental error for the trial court to award appellee more than one-half of the value of the community property as found by the jury.

Such contentions made by appellant are not supported by the general rules of the law in Texas. Article 4638, Revised Civil ...