Bohn v. Bohn

• Decision Date: 14 September 1967
• Docket Number: No. 15168,15168
• Parties: Carolyn Vee BOHN, Appellant, v. Wilford J. BOHN, Appellee. . Houston (1st Dist.)
• Court: Texas Court of Appeals

Page 165

420 S.W.2d 165

Carolyn Vee BOHN, Appellant, v. Wilford J. BOHN, Appellee.

No. 15168.

Court of Civil Appeals of Texas.

Houston (1st Dist.).

Sept. 14, 1967.

Rehearings Denied Oct. 12, 1967.

Andrews, Kurth, Campbell & Jones, Homer Mabry, Houston, Adams, Granberry & Hines, F. P. Granberry, Crockett, for appellant.

Carey Williams, Houston, for appellee.

COLEMAN, Justice.

This appeal arises out of a suit for divorce. Appellant's primary complaint concerns the disposition made of the property of the parties.

This suit was filed by appellee. A judgment of divorce was entered on the cross action of appellant, who was granted custody of the children. Appellee was required to make payments for the support of the children and was granted visitation privileges. Appellant complains of the judgment in respect to the provisions for support and visitation as well as the provisions regarding the division of the property owned by the parties. There is no appeal from that part of the judgment decreeing a divorce.

The parties were married June 2, 1957. At that time appellee was about thirty-five years of age. He had degrees in Business Administration and Law. He had served in the armed forces of this country for four years in World War II and one year during the Korean War, entering the service as a private and leaving as a 1st Lieutenant. He had practiced law for two years as an employee of different oil companies.

At the time of the marriage appellant was twenty-three years of age. She was a graduate of Southern Methodist University and had taught school is Dallas for one year. There is testimony that she suffered from an inferiority complex. She owned an automobile, some furniture, a relatively small amount of cash, and stock in the Southland Life Insurance Company worth about $70,000.00.

Appellee had little separate property other than an automobile. He had lost his job, and had determined to enter the private practice of law in Tyler. After the wedding appellant's parents gave the couple $2,000.00 as a wedding present. They gave appellee some office furniture. In November, 1957, appellant's parents gave them 60 shares of stock of Citizens First National Bank of Tyler, and also provided them funds with which to acquire a membership in a country club in Tyler, Texas. During the marriage appellant's parents made other gifts to the couple, including some stock in the Southland Life Insurance Company. They also permitted their daughter to draw checks on their bank account and she drew checks in the approximate amount of $33,000.00. There was testimony that this amount was considered an advancement against her share of the estate of her parents.

In November, 1957, appellant had a miscarriage. During this month at appellee's suggestion she agreed to give him one-half of her Southland Life stock and had it transferred into his name. Appellant testified that appellee told her that for estate tax purposes it would be wise if all of the stock was not in her name and that it would be much better if he had half of it because there wouldn't be as much estate tax to pay in the event of her death. She also testified that appellee asked her to transfer the stock over to him to show and prove how much she loved him. She testified that she had faith and confidence in him and expected the marriage to last for the balance of her life. She testified that she understood from her conversation with appellee that if their marriage terminated prior to the death of one of them, she would get the stock back. She also testified that he asked her not to mention the transfer of stock to her parents.

While appellee stated that 'perhaps' the discussion of the inheritance and estate tax was a secondary aspect to the gift itself, he admitted that the matter of benefits to the estate resulting from a gift to him of half of appellant's stock was discussed. He did not deny or contradict any of appellant's testimony concerning the circumstances leading to the gift. A written instrument executed by appellant and appellee conveying the stock to a third person in trust for the purpose of transferring it to appellee as a gift was introduced together with the written transfer from the trustee to appellee.

At the time of the trial the Southland stock transferred to appellee, the ownership of which he had retained, had increased in value to a sum of approximately $140,000.00. Appellant remained owner of stock of a greater value. Both parties had sold some of the stock in their respective names to purchase and improve their Houston residence, and appellee had sold some of the stock in his name to make certain payments on a 216 acre farm in Houston County, and appellant had sold some stock to secure cash for her living expenses.

In his judgment the trial court found that the shares of stock of the Southland Life Insurance Company carried on the books of the company in the name of Wilford J. Bohn were his separate property and set these shares of stock apart to him free from any claim of appellant.

The court made the same finding and decree in regard to the shares of stock in that company standing in the name of appellant.

The court further found that a 216 acre tract of land purchased by appellee during the marriage was the separate property of appellee and set over to him this tract of land, together with all improvements thereon and the farm equipment.

It is undisputed in the record that a downpayment of $6,400.00 was made on the purchase price of this land, $3,200.00 of which appellee secured from a sale of Southland Life Insurance Company stock. The balance of the down-payment was paid with the proceeds of a bank loan. The note given for the balance of the purchase price in the sum of $22,680.00 was executed by appellee alone, and was secured by the vendor's lien and a deed of trust. Neither this note, nor the note given the bank for $3,200.00 to complete the down-payment, contained any recitations limiting the liability of the community estate or providing that it should be paid from appellee's separate estate. The deed, however, recited that the downpayment was made by appellee out of his separate property, and purported to convey the land to appellee as his separate property.

The decree recited that all other property in the possession of the parties, except for specified properties held for the benefit of their minor children, 'is community property of the parties hereto' and proceeded to divide it. Appellant was given the community homestead together with all household furniture, furnishings, appliances, silver, china, glassware, her personal clothing, jewelry, her automobile, one-half of the balance in certain bank accounts, and other items. She was required to assume the indebtedness on the homestead. Appellee was given his automobile, certain firearms, his personal effects, office furniture, law books, accounts receivable, his business bank account, and other items.

Appellant's principal points of error concern the action of the trial court in failing to set aside the gift of stock made by her to appellee, and in finding the Houston County farm to be appellee's separate property.

The trial court erred in his conclusion that the Houston County farm constituted the separate property of appellee. In the absence of evidence to support a finding that the vendor's lien note executed during the marriage by appellee would be paid out of the separate property of appellee, it necessarily follows that a portion of the purchase price was paid by the community, since by presumption and legal effect the note is a community obligation. That portion of the down-payment paid with the funds acquired by a bank loan must be deemed paid with community funds. The community furnished $25,880.00 of the total consideration of $28,080.00, and thereby acquired a pro tanto ownership in the property. Broussard v. Tian, 156 Tex. 371, 295 S.W.2d 405 (1956).

The trial court is authorized by Article 4638, Vernon's Ann.Civ.St., to divide the property of the parties as he shall deem just and right, 'having due regard to the rights of each party and their children, if any,' but the trial court may not divest either party of title to real estate owned in his or her separate right. Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299, 1960; Reardon v. Reardon, 163 Tex. 605, 359 S.W.2d 329, 1962; Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21, 1923.

The statute has been construed to mean that the separate property should be restored to its owners, respectively, and that such division of the community be made as may seem just and right. Fitts v. Fitts, 14 Tex. 443; Puckett v. Puckett, 205 S.W.2d 124, Tex.Civ.App., Texarkana, 1947.

It is well settled, however, that when circumstances require it, the trial court may divide the separate personal property of the parties in such manner as may seem just and right. Ex Parte Scott, 133 Tex. 1, 123 S.W.2d 306, 1939; Fuhrman v. Fuhrman, 302 S.W.2d 205, Tex.Civ.App., Fuhrman, 302 S.W.2d 205, Tex.Civ.App., El Paso, 1957; Grant v. Grant, 351 S.W.2d 897, Tex.Civ.App., Waco, 1961, error dism., woj.

In spite of the broad discretion vested in the trial court in making a division of the property of the parties, the error of the court in determining the status of the Houston County land as being a part of the separate estate of appellee constitutes harmful error, and requires that the case be reversed for a new trial. Since the trial court was of the opinion that this property was not a part of the community estate, it follows that he was of the opinion that it could not be divided between the parties for such action would result in divesting appellee of title to separate real estate. His discretion, therefore, could not have been properly exercised in decreeing the division of the property of the parties.

The trial court refused to set aside appellant's gift of the Soughland Life Insurance Company stock to appellee. In so doing he...