Caulley v. Caulley

• Decision Date: 17 August 1989
• Docket Number: No. A14-88-286-CV,A14-88-286-CV
• Citation: 777 S.W.2d 147
• Parties: Robert A. CAULLEY, Appellant, v. Ruth CAULLEY, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 147

777 S.W.2d 147

Robert A. CAULLEY, Appellant, v. Ruth CAULLEY, Appellee.

No. A14-88-286-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

Aug. 17, 1989.

Rehearing Denied Sept. 28, 1989.

Kenneth C. Kaye, League City, for appellant.

David M. Oualline, Bill De La Garza, Houston, for appellee.

Before ROBERTSON, CANNON and DRAUGHN, JJ.

OPINION

ROBERTSON, Justice.

This is an appeal from a bench proceeding which resulted in an order requiring appellant to turn over his paycheck to a receiver and an order to sell certain of appellant's real property to satisfy Ohio judgments arising from a divorce obtained there by appellee, the former wife of appellant, along with expenses of obtaining full faith and credit enforcement in Texas. Appellant brings four points of error: (1) The court below erred in overruling his motion of continuance to await determination of validity of the Ohio divorce and alimony ordered thereunder; (2) The court below erred in concluding appellant's Texas farm was not his homestead; (3) The court below erred in ordering his present wife's community interest in property sold; and, (4) The court below erred in ordering 90% of appellant's future paychecks to be retained by a receiver to satisfy the Ohio and the Texas judgments. We affirm.

Appellant and appellee were formerly husband and wife, having been united for approximately thirty years in an Ohio marriage. Appellant's work brought him to Texas. In 1981, appellee filed for an Ohio divorce and later filed a "Petition for Conciliation", which appellant claims must be disposed of under Ohio statute before a final Ohio divorce may be validly entered by the court. Notwithstanding any such possible requirement, the Ohio court granted appellee a 1981 divorce under which appellant, then a Texas resident, was required to pay permanent alimony. When appellant failed to make any alimony payments, appellee obtained an Ohio judgment against him and brought it to Texas for recognition in Harris County District Court, followed by the filing of an abstract of judgment in September, 1987.

Shortly after divorce appellant remarried. His new wife had an urban home upon which she had established a Texas property tax homestead exemption. In 1983, appellant and his second wife jointly purchased a 150 acre farm in Texas with expectations of building a place for retirement scheduled to occur some time after 1990. When appellee sought to have the sheriff execute on the farm, appellant declared the farm exempt as a rural homestead and his wife "undesignated" her single family residence as an urban homestead. In the proceeding below, appellee obtained an order for a writ of execution upon the farm, appointment of a receiver, turnover of approximately 90% of appellant's net wages to the receiver, and attorney's fees.

After taking testimony, the court below made the following findings of fact:

1. A judgment for money exists against Defendant in favor of Plaintiff granted by the Common Pleas Court of Scioto County, Ohio on October 29, 1986, and it is valid.

2. The Judgment has been registered in this state on June 17, 1987 in conformity with law as a judgment of this Court.

3. A Writ of Execution was issued out on the Judgment registered in this Court on September 10, 1987 and was returned "nulla bona" by the Sheriff of Houston County, Texas because Defendant and his wife, CHRISTINE CAULLEY, claimed that 149.05 acres of land in that county was their rural homestead.

4. Defendant married CHRISTINE CAULLEY on October 14, 1981 in Webster, Texas.

5. Defendant resides with his wife in a house at 17306 Heritage House Circle, Webster, Harris County, Texas.

6. Until October 1987, CHRISTINE CAULLEY claimed the property at 17306 Heritage House Circle, Webster, Texas as homestead for the purpose of property tax exemption.

7. Plaintiff has duly recorded an Abstract of the Judgment registered with this Court as of September 23, 1987 in the Houston County Judgment Records and it is alphabetically indexed therein.

8. The affidavit declaring the Houston County property as the rural homestead of Defendant and his wife was not made or filed until after the Abstract of Judgment was filed.

9. The 149.05 acres in Houston County, Texas is not the rural homestead of Defendant.

10. The property in Webster, Texas is the permanent residence of Defendant.

11. Defendant is gainfully employed and receives monthly net pay of approximately $2,777.00 paid in installments of approximately $1,788.88 on the first (1st) of each month, and approximately $1,077.00 on the fifteenth (15th) of each month.

12. Defendant's paycheck, when received by him, does not represent current wages.

13. The reasonable value of the time expended by Plaintiff's attorneys for trial of this cause is $4,000.00.

14. The reasonable value of the attorney's services for Plaintiff if the judgment of this Court is appealed to the Court of Appeals, will be $3,000.00.

15. If a writ of error is taken to the Supreme Court of Texas, the reasonable value of attorney services regarding such appeal will be $1,500.00.

In his first point of error appellant urges us to find the trial court abused its discretion by overruling his motion for continuance to await determination of the validity of the Ohio divorce decree and the resulting judgment for alimony. Appellant cites an article from the Houston Post as well as Enterprises & Contracting Co. v. Plicoflex, Inc., 529 S.W.2d 805 (Tex.Civ.App.--Houston [1st Dist.] 1975, no writ.), and Acco International Paper Stock Corp. v. Sea-Land Service, Inc., 615 S.W.2d 855 (Tex.Civ.App.--Houston [1st Dist.] 1981, no writ.). We see no abuse of discretion. The court below need not have given appellant time to verify the validity of the Ohio divorce, considering appellant himself gave it sufficient credence to remarry immediately upon its entry by the Ohio court. Point of error number one is overruled.

As his second point appellant asserts the trial court erroneously concluded that the Webster property was appellant's homestead in the face of the undisputed testimony and the written homestead designation to the contrary. The way this point of error is worded leads us to believe it is framed in a "no evidence" theory, and because the relevant part of the prayer for relief seeks a reversal and rendition, we deem the point as one of legal insufficiency. See, McGahey v. Ford, 563 S.W.2d 857, 861-2 (Tex.Civ.App.--Fort Worth 1978, writ. ref'd n.r.e.). With regard to legal insufficiency points, the appellate court will consider only the evidence tending to support the finding, viewing it in the most favorable light in support of the finding, giving effect to all reasonable inferences that may properly be drawn therefrom and disregarding all conflicting evidence. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). Testimony was heard from both the appellant and his spouse, including admissions that they spent at least 60% of the nights of the year at the house in Webster, not at the farm, no change in the homestead designation was made until after the appellee filed her abstract of judgment in Texas, and that the intent was to occupy the farm as a homestead after retirement. All of the foregoing constitutes some evidence to support the findings of the court below. Point of error number two is overruled.

In point of error number three appellant urges that the court below erred in ordering execution sale of his wife's community interest in the Houston County farm in that the order of the court directs the Houston County Sheriff to execute upon the entire property. The land was acquired after marriage and the vendor's lien deed grants title to both husband and wife, creating the presumption that it is community property, which presumption has not been rebutted. TEX.FAM.CODE ANN. § 5.02; Tarver v. Tarver, 394 S.W.2d 780, 783 (Tex.1965). Absent evidence that the community property farm is subject to the wife's sole management, control, and disposition, the farm is presumed to be jointly managed. TEX.FAM.CODE ANN. § 5.22(c). The property therefore may be subject to appellant's obligations arising prior to marriage. TEX.FAM.CODE ANN. § 5.61(b)(2). A judgment against appellant husband to which the wife is not a party cannot affect the property rights of appellant's wife. Cooper v. Texas Gulf Industries, Inc., 513 S.W.2d 200, 202 (Tex.1974), Dulak v. Dulak, 513 S.W.2d 205, 207 (Tex.1974). A purchaser at an execution sale can acquire no greater right or interest in the property than the right or interest of the judgment debtor. Peurifoy v. Wiebusch, 132 Tex. 36, 117 S.W.2d 773, 776 (Tex.Comm'n of App.1938--opinion adopted). See also, 3-C Oil Co. v. Modesta Partnership, 668 S.W.2d 741 (Tex.App.--Austin 1984, writ. ref'd n.r.e.). The order of the court below is worded as follows:

... The Sheriff or Constable executing the Writ is ORDERED to proceed as in the case of ordinary execution and make due return to this Court ...

We construe this to mean that the sheriff will only affect appellant's community interest in the property as a judgment debtor without encroachment upon the interest of appellant's spouse. Appellant's point of error number three is overruled.

In his fourth and final point of error, appellant declares the order to turn over future salary checks received from appellant's employer void under Davis v. Raborn, 754 S.W.2d 481 (Tex.App.--Houston [1st Dist.] 1988, writ granted), or alternatively that the percentage to be turned over should be limited by the provisions of the Consumer Credit Protection Act, 15 U.S.C.A. §§ 1671 et seq. In Davis v. Raborn, the appellate court held that a trial court could order wages turned over to a receiver only after they are received by the debtor-employee and that an order to turn over future wages is tantamount to a garnishment of "current wages" prohibited by the Texas Constitution. We, like Chief Justice Evans who dissented in Davis, disagree with the majority...