Bohn v. Bohn
Decision Date | 07 May 1970 |
Docket Number | No. 15610,15610 |
Citation | 455 S.W.2d 401 |
Parties | Carolyn Vee BOHN, Appellant, v. Wilford J. BOHN, Appellee. (1st Dist.) |
Court | Texas Court of Appeals |
Andrews, Kurth, Campbell & Jones, Homer Mabry, Houston, Adams, Granberry & Hines, F. P. Granberry, Crockett, for appellant.
William E. Wright, Jonathan Day, Houston, Butler, Binion, Rice, Cook & Knapp, Houston, of counsel, for appellee.
This is an appeal from the judgment of the Court of Domestic Relations No. 4 of Harris County, Texas. The opinion of this court on a prior appeal is found in Bohn v. Bohn, Tex.Civ.App., 420 S.W.2d 165, in which an extensive statement of the facts concerning this case appears.
There are involved in this appeal questions concerning the ownership of certain shares of corporate stock, the division of certain personal property and community real estate, as well as the orders determining support for the minor children, visitation rights, and attorney's fees for the wife. Of particular significance are questions relating to the power of the trial court to place shares of stock belonging to the separate estate of the husband in trust for the purpose of paying college expenses of the children after they attain the age of eighteen years.
Appellant has presented 99 points of error appropriately grouped for argument. The first three points relate to the alleged error of the court in failing to recognize that the matters in controversy were conclusively established as alleged by appellant by reason of the fact that appellee introduced into evidence without limitation certain of appellant's superseded pleadings. Appellant contends that since appellee introduced appellant's superseded petitions into evidence without limitation the court erred in considering evidence contradicting the statements of fact contained therein. These points cannot be sustained.
It is frequently stated to be the general rule that a party who introduces documentary evidence is not allowed to impeach or contradict it or to accept a part which is in his favor and repudiate another part which is opposed to his claim or defense. However this rule is subject to exceptions. Masterson v. Bouldin, 151 S.W.2d 301 (Tex.Civ.App.--Eastland 1941, writ ref.).
In Jenkins v. Tanner, 166 S.W.2d 167 (Tex.Civ.App.--Amarillo 1942), opinion by Justice Folley, the court said:
These pleadings were introduced at the conclusion of the redirect examination of appellant who had been called by appellee as an adverse witness. Before the documents were introduced appellee had indicated by his questions that he proposed to introduce the pleadings to impeach appellant's testimony generally by showing that additional grounds for setting aside the gift of stock were added by each new pleading. Thereafter testimony by appellee directly contradicted many of the facts alleged in the pleadings. The trial court was not required to accept as true all of the self-serving declarations contained in the pleadings. Bonneville v. Wehrman, 106 S.W.2d 834 (Tex.Civ.App.--Waco 1937). See also Pioneer Finance & Thrift Corp. v. Adams, 426 S.W.2d 317 (Tex.Civ.App.--Eastland 1968, error refused, n.r.e.); Holliday v. Smith, 422 S.W.2d 791 (Tex.Civ.App.--Corpus Christi 1967, error refused, n.r.e.); Pigg v. International Hospitals, Inc., 421 S.W.2d 169 (Tex.Civ.App.--Dallas 1967, error refused, n.r.e.); Ballard v. Aetna Casualty and Surety Company, 391 S.W.2d 510 (Tex.Civ.App.--Corpus Christi 1965, error refused, n.r.e.); Trice Production Company v. Dutton Drilling Company, 333 S.W.2d 607 (Tex.Civ.App.--Houston 1960, error refused, n.r.e.); Brumit v. Cokins, 281 S.W.2d 154 (Tex.Civ.App--Galv.1955, error refused, n.r.e.).
The appellant's next group of points relates to her assertion that on dissolution of the marriage at her instance by reason of fault of her husband, she was entitled to have restored to her the property which she had transferred to her husband as a matter of law. This contention is based on the theory that the consideration for the transfer was the married state and the continuation thereof. There is authority that the violation of the marital vows resulting in a divorce is such a betrayal of the confidence of the marital partner, who had transferred property to the other in reliance on a continuation of the married state, as to cause equity to raise a constructive trust in favor of such partner. Osborne v. Osborne, 59 U.S.App.D.C. 288, 40 F.2d 88 (1930), and cases there cited.
In 41 Am.Jur., Husband and Wife, Sec. 269, it is stated: 'According to the weight of authority, a divorce although for the misconduct of one's spouse, even for adultery, does not give either any equitable interest in or right to avoid or have set aside a conveyance, transfer, or gift of property made to the divorced spouse before the divorce. * * *'
The statement made is supported by the cases cited. There is no Texas authority for the proposition asserted by appellant. One spouse may make a valid gift of his or her separate property to the other spouse. Riley v. Wilson, 86 Tex. 240, 24 S.W. 394 (1893). The rule proposed by appellant would nullify every gift between spouses where a divorce is granted on the basis of fault on the part of the donee, and is too rigid and inflexible.
The better rule is stated in 41 Am.Jur.2d, Husband and Wife, § 271, as follows:
* * *'
On the former appeal in this case, we recognized this rule although there are no Texas cases involving the husband-wife relationship. We adhere to this view of the law. Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256 (1951); Archer v. Griffith, 390 S.W.2d 735 (Tex.Sup.1965); Beville v. Jones, 74 Tex. 148, 11 S.W. 1128 (1889); Hickman v. Stone, 69 Tex. 255, 5 S.W. 833 (1887); Cooper v. Lee, 75 Tex. 114, 12 S.W. 483; Inman v . Parr, 311 S.W.2d 658, 702 (Tex.Civ.App.--Beaumont 1958, error ref., n.r.e.). That a confidential relationship exists between husband and wife has been recognized in Texas. Wiley and Co. v. Prince, 21 Tex. 637; Tenison v. Patton, 95 Tex. 284, 67 S.W. 92 (1902).
The burden rested on appllee to establish the fairness of the transaction. Thus, he must have produced evidence affirmatively showing that he acted in good faith, and that the gift was voluntarily and understandingly made. Archer v. Griffith, supra; Holland v. Brown, 66 S.W.2d 1095 (Tex.Civ.App.--Beaumont 1933, writ ref.); Ivey v. Neyland, 25 S.W.2d 313 (Tex.Com.App., approved); Henyan v. Trevino, 137 S.W. 458, 482 (Ct. of Civ.App. of Tex.1911, writ ref.).
He must also introduce evidence which, if believed, would prove that no fraud, actual or constructive was perpetrated on appellant. He must disclose material facts within his knowledge and, in this case, consistent with the duty in the lawyer-client relationship, the legal consequences flowing therefrom. Hickman v. Stone, supra; Tenison v. Patton, supra; Bell v. Ramirez, 299 S.W. 655 (Tex.Civ.App .--Austin 1927, writ ref.); Scott v. Weaver, 2 S.W.2d 870 (Tex.Civ.App.--Austin 1927, writ dism'd); Bryant v. Lewis, 27 S.W.2d 604 (Tex.Civ.App.--Austin 1930, writ dism'd).
The rules stated have been applied to the husband-wife relationship in many jurisdictions. Beals v. Ares, 25 N.M. 459, 185 P. 780 (1919); Adair v. Adair, 220 Ga. 852, 142 S.E.2d 251 (1965); Sande v. Sande, 83 Idaho 233, ...
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