Campbell v. Campbell

• Decision Date: 26 July 1979
• Docket Number: No. 18078,18078
• Citation: 586 S.W.2d 162
• Parties: William Bruner CAMPBELL, Appellant, v. Laura Fenner Williams CAMPBELL, Appellee.
• Court: Texas Court of Appeals

Page 162

586 S.W.2d 162

William Bruner CAMPBELL, Appellant, v. Laura Fenner Williams CAMPBELL, Appellee.

No. 18078.

Court of Civil Appeals of Texas, Fort Worth.

July 26, 1979.

Rehearing Denied Sept. 13, 1979.

Graves, Dougherty, Hearon, Moody & Garwood and Robert J. Hearon, Jr., Austin, for appellant.

Minton, Burton & Fitzgerald and Roy Q. Minton, Austin, for appellee.

OPINION

HUGHES, Justice.

William Campbell has appealed the judgment of the trial court which awarded his wife a divorce and one-half of his separate personal property, the bulk of which was promissory notes in the face amount of approximately $1,200,000.00.

We affirm.

The Campbells married in 1965. Campbell was 42. Mrs. Campbell was 27. They had two children, now ages 12 and 10 years. Mrs. Campbell sued for divorce in January, 1975. Trial court appointed her temporary managing conservator in March, 1975, and ordered that the children not be removed from its jurisdiction. Campbell disappeared with the children in September, 1975. In December, 1975, trial court made a temporary order that Mrs. Campbell have exclusive management of all the couple's property, both separate and community.

The case was tried on the merits in June, 1976. At the time of trial the whereabouts of Campbell and the children were still unknown to the court, Mrs. Campbell and attorneys for both parties. Campbell's attorneys filed a motion for continuance based on their inability to properly represent their client in the client's absence, but it was refused. In August, 1976, the trial court granted the divorce, appointed Mrs. Campbell the children's managing conservator, and divided the estate of the parties. Mrs. Campbell was awarded all of the community property, ordered to pay the community debts, and also awarded a 50% Interest in a series of promissory notes payable to Campbell. The divorce decree stated that these notes were Campbell's separate property.

The decree further provided that Campbell would have no rights to the children pending further court orders and that no child support was ordered subject to review by the court when he personally appeared before it. Campbell was found to be at fault in the break up of the marriage. Mrs. Campbell was ordered to pay both parties' attorney fees, including those expended by either side on appeal.

An appeal by Campbell's attorneys was attempted from this order but it was dismissed. The express postponement of the issues of visitation and child support for later judicial determination was held to have rendered the judgment interlocutory. Campbell v. Campbell, 550 S.W.2d 164, 166 (Tex.Civ.App. Austin 1977, no writ).

A second hearing was held in July, 1977. Campbell appeared in person. He and the children were found in Scotland. A Scottish court in December, 1976, removed the children from him and returned them to Mrs. Campbell pursuant to the Texas court order.

Since the issues of child custody, property division and fault had been decided in his absence, Campbell requested that he be allowed to present his evidence on them at the second hearing. The trial court refused to reopen these issues and limited the hearing to the visitation and support questions left undecided by the August, 1976 divorce decree. After the hearing, the trial court entered a second divorce decree, which incorporated the original decree and dealt with visitation and support.

Campbell was appointed the children's possessory conservator. His visitation rights were detailed. To enforce the return of the children to their mother after his periods of visitation, Campbell was required to post a bond in the amount of the face value of his separate property promissory notes and further secure the bond by the notes themselves. The bond and notes were to be furnished to Mrs. Campbell's attorney prior to visitation. Child support was expressly not awarded in view of the partition of the property of the parties in the original divorce decree.

By his first three points of error Campbell attacks the property division. The court in the original decree divided the property as follows: Furniture and other items of personal property such as art works acquired by either party before marriage were awarded to that party. Items of this type acquired after their marriage were awarded to Mrs. Campbell subject to her testimony that should Campbell have a "real need" for any of this property, she would convey it to him when he returned to the jurisdiction. Mrs. Campbell was awarded the family home in Austin, subject to a first mortgage of approximately $68,000.00 and an additional community debt attributable to it of approximately $46,000.00. The Austin house had been for sale for about a year prior to the first trial and one firm offer of approximately $90,000.00 had been received for it.

The court found that Campbell's separate estate consisted in part of a series of promissory notes of substantial value. The decree stated the notes should be divided in an equitable manner, and awarded Mrs. Campbell an undivided 50% Interest in them as her separate property. Campbell was awarded the other 50% Interest as his separate property.

Mrs. Campbell was also awarded all funds on deposit of whatever nature such as checks, cash and bank deposits. Included were proceeds from the sale of a prior residence in Tennessee consisting of a check for $24,325.89 and a note in the principal amount of $30,000.00. The note was specifically awarded to Mrs. Campbell as her separate property.

Pursuant to the December, 1976 property management order Mrs. Campbell had maintained two separate bank accounts which at time of trial had balances of $532.01 and $77.81. She also tendered, at trial, payments and interest totaling $5,538.82 on Campbell's promissory notes. The above amounts were included in the funds awarded to her. She was ordered to pay all community debts, estimated to total $11,000.00, out of the funds awarded to her. She was also ordered to pay attorney's fees for both parties totaling $20,490.00 and all court costs.

The community estate had little net worth. There was evidence that not all of the bills had been discovered and that many of the community debts were incurred by Campbell. There was also evidence that Mrs. Campbell's parents loaned her money to support herself and pay bills for the period of several months after Campbell left the country and before she obtained any funds as a result of the court order making her the temporary manager of the couple's property.

Under the authority of Tex.Family Code Ann. § 3.63 (1975) (hereinafter cited as § 3.63), the trial court in a divorce case is required to divide the estate of the parties in a manner it deems just and right, having a due regard for the rights of each party and the children of the marriage.

In his first point of error Campbell argues that the trial court lacked both the statutory and constitutional authority to award his wife half of his separate promissory notes. The series of promissory notes was received by Campbell as consideration for the sale of shares of some stock he had acquired prior to his marriage, therefore, they were clearly his separate property and he complains that the court awarded Mrs. Campbell approximately $600,000.00 of his separate estate.

Campbell's arguments present us with the issue of whether a trial court in a divorce action has the authority to divest one spouse of his separate personal property and award it to the other. He argues that the decision in Eggemeyer v. Eggemeyer, 554 S.W.2d 137 (Tex.1977) should be construed as holding that § 3.63 does not statutorily and could not constitutionally authorize a trial court to divest a spouse of any type of separate property in a divorce action. While he concedes that the only separate property before the court in Eggemeyer was realty, he argues that the opinion's language, rationale and constitutional analysis are equally applicable to separate personalty. He concludes that since Eggemeyer, Texas trial courts are prohibited from divesting a spouse of any type of separate property in a divorce proceeding. In short, he wishes us to extend Eggemeyer's holding to the divestiture of separate personalty.

All of the intermediate appellate courts which have directly or indirectly considered the question have refused to apply the Eggemeyer rationale to separate personalty. See e. g. Musslewhite v. Musslewhite, 555 S.W.2d 894 (Tex.Civ.App. Tyler 1977, writ dism'd); Campbell v. Campbell, 554 S.W.2d 10 (Tex.Civ.App. Fort Worth 1977, no writ); Muns v. Muns, 567 S.W.2d 563 (Tex.Civ.App. Dallas 1978, no writ); Eichelberger v. Eichelberger, 557 S.W.2d 587 (Tex.Civ.App. Waco 1977, rev'd on other grounds, 582 S.W.2d 395 (1979); York v York, 579 S.W.2d 24 (Tex.Civ.App. Beaumont 1979, no writ); Matter of Marriage of Trujillo, 580 S.W.2d 873 (Tex.Civ.App. Texarkana 1979, no writ).

Further, Campbell's interpretation of Eggemeyer would have us overrule a long line of cases allowing the discretionary division of separate personalty. The law prior to Eggemeyer was clear: Trial courts were vested with wide discretion in disposing of any and all of the parties' personal property, separate or community. See e. g., Fitts v. Fitts, 14 Tex. 443 (Tex.1855); Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923); Cooper v. Cooper, 513 S.W.2d 229 (Tex.Civ.App. Houston (1st Dist.) 1974, no writ); Ramirez v. Ramirez, 524 S.W.2d 767 (Tex.Civ.App. Corpus Christi 1975, no writ); Muns v. Muns, 567 S.W.2d 563 and cases cited therein at 564-65 (Tex.Civ.App. Dallas 1978, no writ).

Of course, the court's discretionary power to invade one spouse's separate property for the benefit of the other spouse is not unlimited. The circumstances of the case must make such action necessary to reach a just and fair division of the parties' property. Fuhrman v. Fuhrman, 302 S.W.2d 205 (Tex.Civ.App. El Paso 1957, writ dism'd); Trader v. Trader, 531 S.W.2d 189 (Tex.Civ.App. San...