Cockerham v. Cockerham

Citation514 S.W.2d 150
Decision Date19 September 1974
Docket NumberNo. 5337,5337
PartiesDorothy COCKERHAM and Theodore Mack, Trustee in Bankruptcy, Appellants, v. E. A. COCKERHAM, Appellee.
CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas

Garrett, Settle & Callaway, John Whiteside, Fort Worth, for appellants.

Lynn B. Griffith, Waxahachie, for appellee.

OPINION

JAMES, Justice.

This is a divorce case, with the intervention of the wife's trustee in bankruptcy. Plaintiff-Appellant Dorothy Cockerham brought this suit for divorce against Defendant-Appellee E. A. Cockerham; whereupon Intervenor-Appellant Theodore Mack, Trustee in Bankruptcy of Appellant Dorothy Cockerham, intervened seeking to require the payment of indebtedness to the creditors of the bankrupt estate out of the community property prior to its division between the husband and wife. We affirm the trial court's judgment. Trial wherein the husband, wife, and Trustee all participated, was had to a jury, which found: (1) and (2) That the best interests of the two minor children of the marriage dictated that they should be awarded to their father, Defendant Appellee E. A. Cockerham. The children were Kim, a girl 8 years old and Kevin, a boy six years old.

(3) Special Issue No. 3 inquired:

'Do you find from a preponderance of the evidence that Dorothy Cockerham has made gifts of property to De Ray Houston?

'Answer 'yes' or 'no." To this the jury answered, 'no'.

Pursuant to the jury verdict, the trial court on September 11, 1972, entered a judgment granting a divorce, awarding custody of the children to the husband, giving the wife child visitations two hours every other Sunday at the husband's home, and restraining the wife from taking the children away from the husband's home. The judgment then recite: 'The Court further finds that due to the intervention of the Trustee in Bankruptcy, the property rights of the parties herein are not determined at this time, but this Court retains jurisdiction of the property rights of said parties until finally determined at a future date.'

Then about a year later, in September 1973, the cause was again called for trial, whereupon the former wife, the former husband, and the Trustee-Intervenor again participated. This last hearing was before the court without a jury, and was for the purpose of adjudication of the property rights of the parties. Pursuant to this last hearing, the trial court on December 17, 1973 entered its judgment making the following dispositions of property, to wit:

(1) That the 198 acre tract described therein was the homestead of the parties, and was awarded to Defendant-Appellee E. A. Cockerham, along with the household and kitchen furnishings.

(2) That the 320 acre tract described therein was adjudicated to be one-half the separate property of E. A. Cockerham and the other half the community property of Dorothy Cockerham and E. A. Cockerham .

(3) The court found that 'there is existing the sum of $47,958.00 in community debts including the sum of $36,200.00 due on indebtedness secured by a lien on the homestead awarded to E. A. Cockerham, and that the said Dorothy Cockerham has taken the sum of $19,317.14 worth of community property in fraud of the rights of the said E. A. Cockerham.'

(4) The court found that aside from the land above-mentioned, the community property consisted of 'certain cattle, farm equipment and machinery, a milk base, milking equipment, a pickup vehicle and a Buick automobile.' The court awarded the pickup to him (E. A. Cockerham), the Buick to her (Dorothy Cockerham), and divided the rest of the community property equally between him and her.

(5) The court charged her share of the community property to be charged with one-half the sum of $19,317.14 or $9658.57, but this being subject to the priority of the community debts of $47,985.00.

(6) The court further found that the community one-half of the 320 acres, along with the cattle, farm equipment, and machinery, milk base, and milking equipment is 'subject to the community debts and the parties take same subject thereto.'

(7) The trial court further found that 'all of the rights of the said Dorothy Cockerham as to any and all of the property herein set out are subject to the rights of the Intervenor Trustee in Bankruptcy and any award of any property or rights herein set out for her shall be subject to the rights of said Intervenor Trustee in Bankruptcy.'

(8) Costs were taxed against Dorothy Cockerham.

It is from this judgment adjudicating the property rights that Dorothy Cockerham and the Trustee-Intervenor prosecute this appeal.

The court made Findings of Fact and Conclusions of Law, the pertinent portions of which (without repeating those set out in the judgment) are substantially as follows:

(1) That the 198 acre homestead tract had an existing debt of $36,200.00 against it, and in addition thereto the parties owed $11,785.00 of other community debts, or a total community indebtedness of $47,985.00.

(2) The trial court made the following finding which is contrary to the jury's answer to Special Issue No. 3 as hereinabove set out. For this reason we set out such finding in full, to wit:

'The Court further finds that Dorothy Cockerham has, over a period of time, taken from the community assets sums of money totaling at least $19,317.14, and used said money over the protest of the said E . A. Cockerham in the purchase and operation of a dress shop, and that the dress shop inventory went into a store owned by a third party male. Further, the Court finds that the said Dorothy Cockerham and the same said third party male had and maintained a joint banking account. In addition to the above, the Court finds that after the closing of the dress shop operated by the said Dorothy Cockerham, that she became the manager and sole employee of the dress shop supposedly owned by the third party male. It was to this dress shop that the inventory from the store operated by Dorothy Cockerham was taken, and for which she purchased one time at least $2,000.00 worth of inventory and placed same to her store account, but that the inventory was placed in the store supposedly owned by the third party male. Upon this purchase, suit was filed against E. A. Cockerham for the said amount of the inventory. The Court further finds that no accounting was ever made by the said Dorothy Cockerham to the said E. A. Cockerham for any of the funds and that same was a fraud upon the rights of the said E. A . Cockerham. The Court finds that this sum should be charged to the proportionate share owned by the said Dorothy Cockerham but subject to the community debts above set out.'

(3) The trial court made the following findings concerning the 320 acre tract above-mentioned:

'The Court further finds that one-half thereof is community property and one-half the separate property of the said E. A. Cockerham by reason of his ownership to an undivided one-half interest thereof prior to his marriage with Dorothy Cockerham. The prior ownership being with a relative on a half-to-half basis and that a partition suit was brought wherein E. A. Cockerham and Dorothy Coerkahm purchased the whole of the said 320 acres, and that said method was but a means of convenience provided by law to complete the purchase of the whole and secure a loan thereon.

'The Court further finds that in any event, the said E. A. Cockerham is entitled to an accounting for his one-half interest in said property due to his ownership prior to marriage.'

(4) The court went on to find 'that the parties own cattle, farm equipment, milk base and milking equipment and this property, along with the one-half of the 320 acres of land, is community property, and that the parties take same subject to the community debt (of $47,985.00), and that the share of the said Dorothy Cockerham be charged with the sum set out above ($9658.57) taken by her in fraud of the rights of the said E. A. Cockerham.'

(5) The court further found that prior to and at the time of the marriage, E. A. Cockerham owned as his separate property, in addition to the real estate above set out, 'work animals, farm equipment and fifty or sixty head of cattle.'

Included in the Conclusions of Law, the trial court said:

'The act of Dorothy Cockerham, over the protest of E. A. Cockerham, in using community funds in her store adventure; and having a joint bank account with a third party male; and in transferring inventory from her store to the supposed store of the third party male without accounting for same, was a fraud upon the rights of E. A. Cockerham, and for which she is entitled to have charged against her interest.'

The court further concluded that the community property was subject to the community debts (meaning the $47,985.00), and that Dorothy's share of the community property 'is chargeable with the sums set out above (meaning the $9658.57) because of her using community property in defraud of the community estate.'

The final conclusion of law stated:

'The share or portion of Dorothy Cockerham is subject to the divisions of this Court, and the rights of the Intervenor Trustee in the order as set out.'

Appellant Dorothy Cockerham complains that the trial court erred: (1) in that the divisions of the propety was so disproportionate as to be manifestly unjust so as to amount to an abuse of discretion; (2) in denying her a jury during the second trial; (3) in holding that one-half of the 320 acre tract to be the separate property of Appellee E. A. Cockerham; and (4) in holding that she (Appellant Dorothy Cockerham) took $19,317.14 from the community estate. We overrule these contentions.

The Cockerhams were married in 1949, when he was twenty-six years old and she was sixteen. At the time of their marriage he owned an undivided one-half interest in the 320 acre tract above-mentioned, subject to some indebtedness concerning which the record is silent. His brother owned the other undivided one-half. In addition...

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