Bohn v. Bohn, No. 15610

CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas
Writing for the CourtCOLEMAN
Citation455 S.W.2d 401
PartiesCarolyn Vee BOHN, Appellant, v. Wilford J. BOHN, Appellee. (1st Dist.)
Docket NumberNo. 15610
Decision Date07 May 1970

Page 401

455 S.W.2d 401
Carolyn Vee BOHN, Appellant,
v.
Wilford J. BOHN, Appellee.
No. 15610.
Court of Civil Appeals of Texas,
Houston (1st Dist.).
May 7, 1970.
Rehearing Denied June 18, 1970.

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.

COLEMAN, Justice.

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

Page 404

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by appellant by reason of the fact that appellee introduced into evidence without limitation certain of appellant's superseded pleadings. Appellant contends that since appellee introduced appellant's superseded petitions into evidence without limitation the court erred in considering evidence contradicting the statements of fact contained therein.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:

'In this connection, we have been unable to find any case holding squarely that one introducing such a pleading without limitation may not, under any circumstances, impeach its recitals by evidence to the contrary. We recognize the general rule that a party introducing documentary evidence is not allowed to impeach or contradict it or to accept a part of it in his favor and repudiate another part opposed to his claim or defense. 20 Am.Jur. 771, Sec. 915. But this rule has its exceptions and variations, as will be noticed in the case of Masterson et ux. v. Bouldin et al., Tex.Civ.App., 151 S.W.2d 301, 308, writ refused. In that case will be found a very elaborate discussion of this rule and its exceptions, but a repetition of such discussion will serve no good purpose here. The decision of that question in the Masterson case, however, in our judgment is particularly applicable and decisive here. As we understand the holding in that case, wherein the same rule urged here was not applied there, the court based the holding upon the theory that 'the rule does not apply, with the effect to conclude an issue regardless of evidence to the contrary, where the purpose of introducing the documentary evidence is not offered upon that particular issue.' In the instant case the pleading introduced contained nothing in destruction of the appellee's cause of action except the denial, both general and special, of the existence of any cause of action. We think it is highly unreasonable to assume that the appellee intended to deny his own cause of action by the introduction of his adversary's pleading. This fact, as was similarly indicated in the Masterson case, raises the presumption that the pleading was not offered upon the issue as to whether the appellee had a cause of action. It is quite evident that the pleading was introduced for the benefit of the admissions made therein by the appellant, and under such circumstances it should not be held to have concluded the question of the existence of a cause of action which, as above indicated, was clearly made an issue by other evidence.'

Page 405

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:

'It is recognized that the most dominant influence of all relations is that of husband over wife, and transactions between them, to be valid, particularly as to her, must be fair and reasonable and voluntarily and understandingly made. Such transactions are jealously scrutinized to prevent the wife from being overreached or defrauded by the undue influence or improper conduct of the husband; and when they are brought about by anything amounting to constructive frand on his part they are viodable by the wife. * * *'

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

Page 406

(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., holding 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...

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16 practice notes
  • Roberts v. Roberts, No. 08-97-00092-CV
    • United States
    • Court of Appeals of Texas
    • 30 de junho de 1999
    ...S.W.2d 835, 840 (Tex.App.--Waco 1991, writ denied)(stating that either "spouse may give separate property to the other"); Bohn v. Bohn, 455 S.W.2d 401, 405 (Tex.Civ.App.--Houston [1st Dist.] 1970, writ dism'd)("One spouse may make a valid gift of his or her separate property to the other sp......
  • Fletcher's Estate v. Jackson, No. 4137
    • United States
    • New Mexico Court of Appeals of New Mexico
    • 10 de abril de 1980
    ...or knowledge, and that the arrangement was fair and conscientious. Shapiro v. Shapiro, 424 Pa. 120, 224 A.2d 164 (1966); Bohn v. Bohn, 455 S.W.2d 401 (Tex.Civ.App.1970). In Bohn the court cited Beals as authority and Where a gift from the wife to the husband is attacked, the question of whe......
  • Vickery v. Vickery
    • United States
    • Supreme Court of Texas
    • 27 de maio de 1999
    ...the legal aspects of a transaction by which he would benefit, Glenn assumed the "high duty of an attorney to his client." Bohn v. Bohn, 455 S.W.2d 401, 412 (Tex. Civ. App.--Houston [1st Dist.] 1970, writ dism'd). Because Glenn had a fiduciary duty to Helen as Page 358 matter of law, the tri......
  • Buckner v. Buckner, No. 12-89-00091-CV
    • United States
    • Court of Appeals of Texas
    • 30 de agosto de 1991
    ...that a confidential relationship does exist between a husband and his wife. Wiley and Co. v. Prince, 21 Tex. 637 (1858); Bohn v. Bohn, 455 S.W.2d 401, 406 (Tex.Civ.App.--Houston [1st Dist.] 1970, writ Having established that a fiduciary or confidential relationship exists arising out of a m......
  • Request a trial to view additional results
16 cases
  • Roberts v. Roberts, No. 08-97-00092-CV
    • United States
    • Court of Appeals of Texas
    • 30 de junho de 1999
    ...S.W.2d 835, 840 (Tex.App.--Waco 1991, writ denied)(stating that either "spouse may give separate property to the other"); Bohn v. Bohn, 455 S.W.2d 401, 405 (Tex.Civ.App.--Houston [1st Dist.] 1970, writ dism'd)("One spouse may make a valid gift of his or her separate property to the other sp......
  • Fletcher's Estate v. Jackson, No. 4137
    • United States
    • New Mexico Court of Appeals of New Mexico
    • 10 de abril de 1980
    ...or knowledge, and that the arrangement was fair and conscientious. Shapiro v. Shapiro, 424 Pa. 120, 224 A.2d 164 (1966); Bohn v. Bohn, 455 S.W.2d 401 (Tex.Civ.App.1970). In Bohn the court cited Beals as authority and Where a gift from the wife to the husband is attacked, the question of whe......
  • Vickery v. Vickery
    • United States
    • Supreme Court of Texas
    • 27 de maio de 1999
    ...the legal aspects of a transaction by which he would benefit, Glenn assumed the "high duty of an attorney to his client." Bohn v. Bohn, 455 S.W.2d 401, 412 (Tex. Civ. App.--Houston [1st Dist.] 1970, writ dism'd). Because Glenn had a fiduciary duty to Helen as Page 358 matter of law, the tri......
  • Buckner v. Buckner, No. 12-89-00091-CV
    • United States
    • Court of Appeals of Texas
    • 30 de agosto de 1991
    ...that a confidential relationship does exist between a husband and his wife. Wiley and Co. v. Prince, 21 Tex. 637 (1858); Bohn v. Bohn, 455 S.W.2d 401, 406 (Tex.Civ.App.--Houston [1st Dist.] 1970, writ Having established that a fiduciary or confidential relationship exists arising out of a m......
  • Request a trial to view additional results

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