Barnard v. Kuldell

• Decision Date: 14 September 1961
• Docket Number: No. 13794,13794
• Citation: 349 S.W.2d 313
• Parties: Mrs. Priscilla Goodrich BARNARD et vir, Appellant, v. Robert C. KULDELL, Appellee.
• Court: Texas Court of Appeals

Page 313

349 S.W.2d 313

Mrs. Priscilla Goodrich BARNARD et vir, Appellant, v.Robert C. KULDELL, Appellee.

No. 13794.

Court of Civil Appeals of Texas, Houston.

Sept. 14, 1961.

Richard B. Miller, Thomas E. Berry and Robert J. Piro, Houston (Baker, Botts, Andrews & Shepherd, Houston, of counsel), for appellant.

Warren P. Cunningham, Jr., Houston, for appellee.

WERLEIN, Justice.

Appellant appeals from an order of the trial court granting a summary judgment against her on her bill of review brought to set aside that part of the judgment partitioning the community property in the divorce suit styled Priscilla Kuldell v. Robert C. Kuldell, No. 440,177 on the docket of the 61st Judicial District Court.No evidence was presented on the hearing for summary judgment.The court's order is based solely upon the pleadings of the parties and arguments of counsel.

Appellant contends that the trial court erred in granting appellee's motion for summary judgment because the pleadings raised genuine issues as to material facts.

Appellant's first amended original petition, upon which the hearing was had, was not verified.There is authority for the proposition that a bill of review is invalid if it is not verified.Warne v. Jackson, Tex.Civ.App.1925, 273 S.W. 315;Patrucio v. Selkirk, Tex.Civ.App., 160 S.W. 635, writ ref.;Wiggins v. Standard Acc. Ins.Co., Tex.Civ.App., 61 S.W.2d 579, writ ref.;McDonald, Texas Civil Practice, Vol. 4, Sec. 18.27, p. 1491.We prefer, however, not to rest our decision upon such holding, but upon the ground that appellant's pleading is inadequate as a matter of law.Pleadings may be so faulty upon their face as to justify the rendition of a summary judgment.Brownson v. New, Tex.Civ.App., 259 S.W.2d 277, writ dism., and authorities cited therein.

Appellant alleged in substance that appellee furnished an inventory of the community property of the parties in the divorce suit showing certain items of property numbered 1 to 10, inclusive; that appellant, relying upon such inventory, entered into a property settlement agreement with appellee on August 5, 1954; that about December, 1957 the Internal Revenue Service of the United States served appellant with a notice of a proposed deficiency in her income tax on income received by the parties prior to the date of the divorce, October 5, 1954; that the contention of the Revenue Office was that the community income for the period in question amounted to some $48,000 in excess of all proper business deductions, whereas the separate returns made by appellant and appellee after the divorce showed that the income was $32,000 in excess of all proper business deductions; that the Internal Revenue Office disallowed certain business deductions in the amount of some $16,000, thereby increasing the community income by such amount to a total of approximately $48,000.

Since it is alleged that income tax returns for the period in question were separately made by appellant and appellee on a cash basis, it seems probable that appellee showed in his income tax return the same amount of community income and community deductions shown in appellant's return and that therefore appellee may also have to pay an additional income tax because of the Government's disallowance of certain deductions.

Paragraph 6. of appellant's pleading, with respect to concealment of income, reads as follows:

'Your Petitioner would show the Court that either Robert C. Kuldell did not receive any such purported $32,000 or $48,000 above true and proper expenses which purported $32,000 or $48,000 was thereafter spent for living expenses or business investments prior to August 5, 1954 or October 4, 1954 or that if Robert C. Kuldell did so receive such purported sums of income he concealed, hid or otherwise kept same from the knowledge of Petitioner and this Court.'

It is difficult to understand how appellee concealed any of such income from appellant if both separate income tax returns reflected the same thing as to the community income and deductions.In any event, it is our view that appellant's allegation is entirely too indefinite and wholly inadequate to show that the disallowance of deductions increased the community income, or that because of such disallowance...