Chapman v. Chapman
| Decision Date | 30 April 1943 |
| Docket Number | No. 14518.,14518. |
| Parties | CHAPMAN v. CHAPMAN. |
| Court | Texas Court of Appeals |
Appeal from District Court, Wichita County; Irvin J. Vogel, Judge.
Action by Emilie Chapman against N. S. Chapman for divorce. From an adverse judgment, defendant appeals.
Affirmed.
Bullington, Humphrey & Humphrey, of Wichita Falls, for appellant.
King, Dawson & Jones, of Wichita Falls, for appellee.
This appeal is by the husband from a judgment rendered in a divorce suit. The judgment grants a divorce to the wife, and, generally speaking, awards half the community property to the wife and half to the husband, the husband's half, however, to be subject to the payment of the court costs, the fee of an auditor and that of a commissioner appointed to sell certain property, and a fee of $4,000 for the wife's attorney. The judgment also provides for reimbursement to the wife for a small amount of her separate funds which had been paid into the community, but no complaint of that is made on this appeal.
The husband complains of the award of $4,000 to the wife for her attorney's fee, contending that her pleadings are insufficient to support the award of an attorney fee, that the fee is erroneously taxed as court costs, and that the fee is grossly excessive.
The allegations of the wife's petition seeking an attorney's fee are meager, but are sufficient under the present rules of procedure, since the husband filed no exceptions to them. Her petition, after describing their marital situation and their financial and business affairs, alleges that she is entitled to a divorce, "and a reasonable attorney fee of $5,000.00."
The burden was upon the husband to except if he desired more explicit pleading in this regard. Rule Nos. 45, 47, 90, 91, Texas Rules of Civil Procedure.
The judgment provides for the sale of certain community assets, and for the payment, from the husband's share of the proceeds of the sale, of $4,000 to the wife as her attorney's fee. The judgment also contains a paragraph reading in part as follows: "It is further ordered, adjudged and decreed that all costs herein be taxed against the defendant, including the attorney's fee of the plaintiff as heretofore found, same to be paid as part of the costs in the manner above indicated, but if not so paid the plaintiff and the officers of this court shall have execution."
The husband charges error in taxing the attorney's fee as court costs. It is not disputed that an attorney fee in a divorce case should not be taxed as court costs. But we think that the judgment as a whole, despite the recital just quoted, shows that the attorney's fee is not taxed as court costs, but that it is to be paid "in the manner above indicated" in the judgment. We do not construe the judgment as an effort to tax the attorney's fee as court costs, and hold, if there be any doubt about it, that it is not a part of the court costs and that the surety on the appeal bond is under no liability for its payment. See Jacks v. Teague, Tex.Civ.App., 136 S.W.2d 896, writ of error dismissed, for a similar holding.
Appellant contends that the fee of $4,000 is grossly excessive. It is not possible for us to determine from the judgment, or from the record before us, the fair value of the community estate, but there is enough to show that it was not less than $45,000, and possibly was substantially more than that. The judgment shows that the husband had converted into liquid form more than $24,000 of the community assets and had taken them into another state before the date of the trial, and that there still remained in Wichita Falls a large and profitable creamery business. We cannot in an opinion of reasonable length review all of the testimony bearing upon this question, nor review all of the arguments of the parties relative thereto. The substance of the husband's arguments is that much of the work done by the wife's attorneys was unnecessary to obtain for her the relief actually awarded to her in the judgment, that is to say, a divorce and practically an equal division of the community property. He argues that the greater portion of her attorney's time and efforts were devoted to an unsuccessful attempt to have the court impound the community property and in some way cause it to be operated under control of the court without granting a divorce.
The fee is very large, and, looking backward, it might be said that the wife's attorneys did devote much of their time and effort to an attempt to obtain for the wife relief which she desired but which was not obtainable under our Texas laws, and it might be said that they possibly could have obtained for her a divorce and an equal division of the community estate with an amount of work which would have called for the payment of a smaller attorney's fee. On the other hand, the trial court could have reasonably believed that the husband was endeavoring to conceal from the wife and her attorneys the true amount and value of the community estate, and it is not disputed that he converted more than $24,000 worth of community assets into cash and other liquid form and carried them to another state, beyond the jurisdiction of the court, before the trial, and that he did not appear at the trial of the case. The trial court could have reasonably believed, from the evidence which came to his attention upon the several hearings held during the progress of the litigation, that the wife's attorneys were having much difficulty in determining the status of the community affairs and in enforcing the wife's rights. The case was tried without a jury. The trial court did not file separate findings of fact and none were requested. In reviewing his judgment, we must consider the evidence which tends to support his judgment, and not the evidence to the contrary. We must also bear in mind that the trial court is given the widest discretion in fixing the attorney's fee in such cases, and that his judgment will be reversed only upon a clear showing of abuse of judicial discretion. He was in much better position than are we to appraise the value of the services rendered by the wife's...
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