Bell v. Bell

• Decision Date: 15 July 1976
• Docket Number: No. 16689,16689
• Citation: 540 S.W.2d 432
• Court: Texas Court of Appeals
• Parties: Roy W. BELL, Appellant, v. Libbie D. BELL, Appellee. (1st Dist.)

Page 432

540 S.W.2d 432

Roy W. BELL, Appellant, v. Libbie D. BELL, Appellee.

No. 16689.

Court of Civil Appeals of Texas,

Houston (1st Dist.).

July 15, 1976.

Rehearing Denied Aug. 12, 1976.

Garrett & Letbetter, Tom R. Letbetter, George Payne and Max Garrett, Houston, for appellant.

Franklin R. Navarro, Houston, for appellee.

PEDEN, Justice.

This is an appeal from the granting of a divorce to the plaintiff, Mrs. Libbie Bell, on the grounds of insupportability. Dr. Bell had filed a cross-action on the same grounds and had later amended it to allege that Mrs. Bell had committed adultery during the marriage. A motion to strike the allegations of adultery was granted by the trial court and Dr. Bell was ordered not to introduce evidence of it. A court-appointed master in chancery held hearings and reported his findings. The appellant filed exceptions to the master's report but agreed to have the trial court, sitting without a jury, enter a decree dissolving the marriage and dividing the property of the parties. The court filed findings of fact and conclusions of law.

Dr. Bell contends in his first three points of error that the court erred: (1) in striking his pleading of adultery because he had a right to plead and prove his statutory grounds for divorce, (2) in refusing to consider evidence of adultery because it would be relevant to division of the property, and (3) in awarding an attorney's fee to Mrs. Bell's attorney without considering evidence of adultery.

After Dr. Bell first pleaded adultery, the trial court required him to re-plead and allege the specific dates in question. His amended pleading alleged ten specific dates, the first of which was fourteen days after Mrs. Bell had filed this suit. The court made findings of fact that the allegations of adultery reflected that the alleged conduct occurred after the separation and filing of the suit, that there was no claimed relation to the original asserted grounds for divorce and no claim or pleading that the alleged adultery was cumulative of conduct of the parties prior to the separation. The court relied solely on the pleaded grounds for divorce before the separation and stated that in dividing the property of the parties he took into consideration, among other things, the grounds for divorce pleaded by the parties.

Mrs. Bell denied the allegation in question and contends that when both parties are seeking divorce on primary grounds of no fault or cruel treatment it is not error for the trial judge to eliminate allegations of adultery as an added ground and thus to keep out the possibility of sordid testimony, particularly when it concerns conduct which is alleged to have occurred after the parties have separated and both have sued. She cites Baxla v. Baxla, 522 S.W.2d 736 (Tex.Civ.App.1975, no writ) and Cusack v. Cusack, 491 S.W.2d 714 (Tex.Civ.App.1973, writ dism'd). The court in Baxla, discussing no fault provisions in various state statutes, stated:

'It is, however, clear that the statutes have as their goal the abolition of fault as a requirement for granting divorces. It is also manifestly clear from the legislative history of many, if not all, of the statutes, that the purpose and intent of the legislatures of the various states, including Texas, is to abolish the necessity of presenting sordid and ugly details of conduct on the part of either spouse to the marriage in order to obtain a decree of divorce.'

The court in Cusack stated:

'It also occurs to us that § 3.01 of the Code was incorporated therein as a new, independent and additional ground of divorce to render unnecessary the revealing to public gaze of sordid events that have come to mar two otherwise happy lives.'

Section 3.01 of the Family Code provides that a divorce may be decreed without regard to fault, but Section 3.03 states that a divorce may be decreed in favor of one spouse if the other spouse has committed adultery. The ground is not limited to adultery committed before the separation of the parties.

' Adultery,' as used in a divorce proceeding, means the voluntary sexual intercourse of a married person with one not the husband or wife of the offender. Lawler v. Lawler, 15 S.W.2d 684 (Tex.Civ.App.1929, no writ).

Rule 63, Texas Rules of Civil Procedure, permits parties to amend their pleadings as long as such action does not operate as a surprise to the opposite party.

Mrs. Bell further argues that if the trial judge erred in striking the pleading and excluding the evidence in question the error was harmless because there is no reason to believe that if the evidence had been admitted the trial court would have granted a divorce to the appellant on the ground of adultery instead of granting a no-fault divorce to her; further, that the appellant failed to discharge his burden of showing that had it been admitted the court would probably have divided the property in a different manner.

We conclude that the trial court erred in excluding the allegations and evidence of adultery and in failing to consider them in connection with the division of the community property. In dividing the estate of the parties in a manner that the court deems just and right, it considers all the evidence. 'Fault in breaking up the marriage and the benefits the innocent spouse would have received from a continuation of the marriage are factors a court may consider in making a division of property, but they are not the only factors which a court may consider.' Hooper v. Hooper, 403 S.W.2d 215 (Tex.Civ.App.1966, writ dism.); Cooper v. Cooper, 513 S.W.2d 229 (Tex.Civ.App.1974, no writ). See also Hedtke v. Hedtke, 112 Tex. 404, 248 S.W.2d 21 (1923). 'The attorney's fee is but a factor to be considered by the court in making an equitable division of the estate, considering the conditions and needs of the parties and all of the surrounding circumstances.' Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002 (1950).

Having shown error, the appellant has the additional burden of showing, under Rule 434, T.R.C.P., that the exclusion of the evidence in question 'amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case . . .' In deciding this question we consider the record as a whole. Duncan v. Smith, 393 S.W.2d 798 (Tex.1965).

After examining the entire record, we cannot say the exclusion of the evidence of adultery probably caused the rendition of an improper judgment. Had the husband been permitted to introduce the circumstantial evidence of adultery alleged to have occurred after both parties had filed pleadings based on insupportability, we cannot say the trial court would probably have awarded the husband any benefit in the division of the parties' estate as compensation to an innocent spouse for the fault of the wife in breaking up the marriage. The court may have divided the community estate unequally, but the husband's earning power is considerably greater than the wife's.

Dr. Bell contends in points of error four through ten that the court erred: (4) by abusing its discretion in appointing a master in chancery because this was not an exceptional case, (5) in overruling the motion to disqualify the master because he was guilty of unjudicious conduct and (6) because it was an abuse of discretion to fail to disqualify the master, (7) in awarding the master a fee because he should not have been appointed and (8) because he should have been removed, (9) in awarding the master a fee of $7,500 because the fee was not reasonable or decessary in this case, and (10) in entering judgment on behalf of the master against Dr. Bell for the fee of the master because under Rule 171, Texas Rules of Civil Procedure, the fee is to be taxed as costs.

The court's findings included:

'That because of numerous motions by both parties which caused many ancillary hearings, and because of the several pieces of property involved, including fractional interest ownership thereon, the nature of Respondent's business and relocation thereof, the numerous claims and counter claims of the parties as to the community and separate nature of the properties, real and personal, including Respondent's business, the value, worth and extent thereof,--the Court felt it necessary and did appoint Master in Chancery.'

Concerning the motion to remove the master, the court found that 'the conduct of the master was not such as to necessitate his removal and that the master conducted the hearings without prejudice to either party.' The appellant offered proof that the wife's attorney bought the master coffee and dessert while they visited with the wife for about an hour after one of the hearings before the master and on two other days. This may not have been prudent conduct on the part of either the master or the attorney for the wife, but we conclude, after viewing the entire record, that the trial judge did not err in declining to disqualify the master. The trial judge made his own decisions as to division of the estate of the parties based on the record and did not follow the master's findings or recommendations.

The trial court appointed the master on the appellee's motion. We agree with the appellant's complaint that he should not have been charged with the fee of the master. By timely objections and exceptions he has preserved any error in the charging of the master's fee.

Rule 171, Texas Rules of Civil Procedure, was drawn in part from Rule 53, Federal Rules of Civil Procedure,

'but with changes so extensive as to make the authority of federal decisions a problem to be determined on a case-by-case basis . . .'

'The appointment is thus an exceptional proceeding, for which there is no occasion when the matters in dispute are not complex. Examples of causes in which appointment has been found appropriate include . . .: divorce suits where the division of community and segregation of separate property is involved; and similar...