Becker v. Becker

• Decision Date: 20 October 1927
• Docket Number: (No. 2052.)
• Citation: 299 S.W. 528
• Parties: BECKER v. BECKER.
• Court: Texas Court of Appeals

299 S.W. 528

BECKER v. BECKER.

(No. 2052.)

Court of Civil Appeals of Texas. El Paso.

October 20, 1927.

Rehearing Denied November 10, 1927.

Error from District Court, Dallas County; Claude M. McCallum, Judge.

Suit by Maria Katherine Becker against Jacob Becker for divorce, in which defendant interposed a cross-action. From a judgment granting plaintiff a divorce and disposing of the community property, plaintiff brings error. Affirmed in part, and reversed in part, and rendered.

E. G. Senter, of Dallas, for plaintiff in error.

J. D. Crutcher, A. S. Jackson, and K. R. Craig, all of Dallas, for defendant in error.

PELPHREY, C. J.

Plaintiff in error filed suit for a divorce from defendant in error in the district court for the one hundred first judicial district at Dallas, Tex., on the ground of cruel treatment. She prayed for a divorce, custody of the minor children, seven in number; an injunction restraining defendant in error from interfering with plaintiff in error in the conduct of a dairy business which she was conducting, and for attorney's fees in the sum of $5,000.

Defendant in error answered by general demurrer, special exceptions, a general denial, and a cross-action for divorce on the grounds of cruelty, and prayed for a division of the community property. Plaintiff in error, by a supplemental petition, demurred generally to defendant in error's cross-action, and denied generally, and specially the matters alleged in the cross-action. Defendant in error by supplemental answer excepted generally and specially to the supplemental petition, and particularly to the part of the petition respecting attorney's fees.

The case was tried before a jury, who found on the issues submitted as follows:

(1) That the material allegations upon which plaintiff prayed for a divorce were true.

(2) That the material allegations of defendant's cross-action, with reference to the assault and battery made upon him by his two sons, Fred and Heine, were true.

(3) That the material allegations of defendant's cross-action, with reference to the plaintiff standing by and witnessing the assault without interfering or protesting, were not true.

(4) That the sum of $900 belonging to plaintiff as separate estate was intermingled with the community estate.

(5) The jury recommended that the plaintiff be given full custody of the homestead and all personal property thereon to be held in trust for the children, and that the remainder of the property be disposed of as the court should see fit.

(6) That the value of the 95 acres upon which the residence of plaintiff and defendant was situated was $75,000.

(7) That the market value of the 7½ acres of land in North West Dallas near Maple avenue was $7,500.

(8) That the market value of the dairy cattle and other personal property on the farm of plaintiff and defendant was $4,000.

(9) That a reasonable attorney's fee for plaintiff's counsel in the cause was $5,000.

On September 2, 1925, judgment was rendered in the present case as well as in No 51272, Jacob Becker v. Fred Becker, which case had theretofore been consolidated with the case in which this appeal is taken.

The court in its judgment granted to plaintiff, Maria Katherine Becker, a divorce; awarded to her the custody of the minor children; decreed to plaintiff and defendant each an equal undivided one-half interest in five certain tracts of land, and also certain personal property; found the property in question to be susceptible of partition in kind; appointed commissioners of partition; and reserved all other matters in litigation for determination in the final decree to be entered upon the return of the commissioners of partition.

The report of the commissioners was filed December 9, 1925, and thereafter, on the 4th day of March, 1926, the court rendered judgment awarding shares Nos. 1, 2, 3, 4, and 8 to Jacob Becker, and shares Nos. 5, 6, and 7 to Maria Katherine Becker, the commissioners having, for the purpose of partition, divided the property into eight shares, and having reported that shares Nos. 1, 2, 3, 4, and 8, together with the personal property, were of an aggregate equal value to shares Nos. 5, 6, and 7.

The court found that on the community property partitioned there existed debts totaling $6,803.17, together with interest thereon, and decreed that these debts should be assumed by defendant in lieu of an allowance for the support, maintenance, and education of said minor children, and the $900, which was shown to be the separate estate of plaintiff.

The court further decreed that the $5,000 attorney's fee in the case should be paid one-half by plaintiff and one-half by defendant, and that the costs be taxed equally between the parties.

Maria Katherine Becker has sued out a writ of error from said judgment.

Opinion.

Plaintiff in error asked for a reversal of the case upon the following propositions:

"(1) The court having submitted to the jury in special issue No. 5: `What provision, if any, as to the homestead rights do you make in this case?' and the jury having answered, `We recommend that the remainder of the property be disposed of as the court sees fit; that plaintiff be given full custody of the homestead and all personal property thereon to be held in trust for the children,' it became the duty of the court to respect said finding of the jury, and it was without lawful power to partition the estate as it did without making suitable provision for the support of the minor children.

"(2) The court having granted a divorce to the plaintiff, Mrs. Becker, having awarded her the custody of the minor children, it appearing from the finding of the jury that there was sufficient property belonging to the defendant, Jacob Becker, the father of the minor children, to provide for their support, it was the duty of the court to make such provision out of his share of the estate, and, in failing so to do, the court committed such an error as requires review and correction on appeal.

"(3) The court was without lawful power to render judgment as it attempted to do relieving the husband and father, Jacob Becker, from responsibility for the support, maintenance, and education of the minor children, upon the ground that their custody had been awarded to the mother.

"(4) The case having been tried and the judgment of the court granting a divorce to the plaintiff having been entered on the 11th day of July, 1925, the court was without lawful power to split the action and continue a section of it relating to the partition of the property to a succeeding term, and the judgment of the court thereafter entered at a succeeding term attempting to partition the property therefore a nullity, and wholly void. The jury having found in favor of the wife on her application for a divorce, and the court having entered judgment on such finding granting the plaintiff, Mrs. Becker, a divorce from her husband, Jacob Becker, the court was without power under the pleadings in the case and under the findings of the jury to tax an attorney's fee of $2,500 against the...