Counts v. Counts, 10974

• Decision Date: 30 May 1962
• Docket Number: No. 10974,10974
• Parties: Susie Lee COUNTS, Appellant, v. Carl Aaron COUNTS, Appellee.
• Court: Texas Court of Appeals

Page 192

358 S.W.2d 192

Susie Lee COUNTS, Appellant, v. Carl Aaron COUNTS, Appellee.

No. 10974.

Court of Civil Appeals of Texas, Austin.

May 30, 1962.

Rehearing Denied June 20, 1962.

Ronald Smallwood, Karnes City, Nunn & Griggs, Sweetwater, for appellant.

William C. McDonald, San Angelo, for appellee.

RICHARDS, Justice.

Susie Lee Counts, appellant, filed suit for divorce in the 51st District Court of Tom Green County against Carl Aaron Counts, appellee, upon the statutory grounds set forth in Art. 4629, Vernon's Civil Statutes, alleging the accumulation of a community estate during the marriage, asking for partition thereof, and praying for a temporary restraining order and temporary injunction pendente lite enjoining appellee from disposing of or encumbering any of the community property; directing appellee to pay into the registry of the Court the sum of $250.00 monthly for the support and maintenance of appellant and for the allowance of reasonable attorney's fees. The Trial Court having granted a temporary restraining order, the hearing on the temporary injunction was set for April 28, 1961.

Appellee answered and filed a cross-action as cross-plaintiff seeking a divorce from appellant, alleging that prior to April 5, 1961, the date of filing of appellant's original petition, he had separated from appellant, which separation was caused by actions and conduct of appellant as cross-defendant, which would entitle him to a divorce under the statutory provisions of Art. 4629, V.C.S. He further alleged that he would file a full and complete inventory of the community property as ordered by the Trial Court and prayed for partition of the community property in accordance with law unless the parties should be able to make a just and equitable division of the property between themselves.

Upon the hearing of appellant's application for alimony pendente lite on April 28, 1961, both parties announced in open court that they had agreed to the rendition of a temporary injunction and allowance for appellant in lieu of alimony and other temporary relief for the benefit of both parties, and the Trial Court entered its order temporarily enjoining from selling, disposing of or encumbering any of the community property or contracting any debts on account thereof but providing that appellee was authorized to borrow from the San Angelo National Bank such amounts of money as would be reasonably required for the payment of the cost of labor and other necessary expenses connected with the shearing of sheep belonging to the community estate, which funds were to be used by appellee solely for such purpose and which debt should constitute a charge against the community estate.

The order further provided that appellant should have the use and possession of the community homestead with the furniture contained therein and an automobile in her possession and appellee should continue to have the use and possession of a pick-up truck and other vehicles in his possession and that he should remain in possession of all other community property of the parties subject to the injunctive provisions.

Appellee was ordered to immediately sell a sufficient amount of wool produced from the sheep sufficient to provide a sale price of $1500.00 and upon receiving the proceeds of the sale to pay to appellant the sum of $750.00 therefrom to be used by her for her support and maintenance during pendency of the suit and to be charged against her interest in the community estate and that appellee should retain the balance from such sale for his support and maintenance during pendency of the suit. Appellee was then authorized to sell the remaining wool produced from the sheep at such times and for the best prices reasonably obtainable as he might deem advantageous for the community estate, the proceeds to be deposited by appellee in a bank account in his name in the San Angelo National Bank and retained on deposit subject to further orders of the Court and providing for an accounting of all expenditures made by appellee in connection with the shearing of such sheep. The order, having been approved by the parties in open court, provided that no formal writ of injunction or other process should issue but that the order should remain in effect from April 28, 1961 until further order or final judgment of the Court. All temporary relief sought by the parties which was not specifically granted was denied.

It appears from the record that between April 5, 1961, the date upon which the temporary restraining order was issued, and April 28, 1961, the date of the hearing on the application for temporary injunction, the firm of attorneys who had filed the suit for appellant had been dismissed and that Ronald Smallwood, an attorney of Karnes City, Texas, had been employed by appellant to represent her in the divorce proceedings including the hearing on the temporary injunction.

On June 1, 1961, appellant filed a motion for contempt against appellee for violation of the temporary injunction, alleging that on May 19, 1961 appellee had sold certain wool sheared from the sheep belonging to the community estate to Western Wool and Mohair Company who had paid appellee the sum of $3,019.61 and that under the provisions of the temporary injunction it became the duty of appellee to immediately pay appellant $750.00 from the proceeds of such sale which he had failed to do and that the failure of appellee to immediately make such payment to appellant constituted a violation of the injunctive order.

The Trial Court ordered appellee to appear on June 23, 1961 to show cause why he should not be adjudged on contempt and on June 8, 1961 appellee filed a sworn answer to the motion for contempt alleging that he had sold the wool as alleged through Western Wool and Mohair Company who mailed him a check therefor in the sum of $3,019.61 at Robert Lee, Texas, which was received after banking hours on June 1, 1961; that on the morning of June 2, 1961, he deposited the check in the San Angelo National Bank and issued to appellant his check on such account for $750.00 which was delivered on the same day by his attorney to Cliff Tupper to be delivered to appellant; that on May 25, 1961 his attorney advised Ronald Smallwood, one of plaintiff's attorneys, that the wool had been sold and the court's order had been complied with and praying that the motion for contempt be dismissed. The record does not show that the Trial Court conducted any hearing on the motion for contempt on May 23, 1961 or entered any order granting or denying such motion.

On July 17, 1961 appellant filed a motion to inspect a safety deposit box in the San Angelo National Bank in which appellee had customarily kept papers and documents pertaining to the community business affairs, which papers and documents contained evidence material to the community business and properties involved in the suit; that the bank would not permit appellant's entry into such box without the consent of appellee who had the key in his possession, which, when used with a key in possession of the bank, would open the box, and prayed for an order requiring appellee to open such safety deposit box to permit appellant and her attorney to inspect the documents and papers and to copy or photograph such papers and documents as would, in the opinion of appellant, constitute evidence concerning the community property, which motion was set for hearing before the Trial Court on June 23, 1961. The record does not disclose that any hearing upon this motion was held or the entry of any order either granting or denying it. However, the record reveals that appellant was in possession of a key to the box at the time the motion was filed.

On July 26, 1961 appellant filed an application for the appointment of a receiver and other relief, in which it was alleged that appellee was in possession of all of the community livestock of the value of approximately $17,000.00 according to the inventory made by appellee, which livestock was kept by appellee on a leased ranch upon which ranch appellee's father and brother also pastured livestock belonging to them. Appellant then alleged that since the livestock of appellee's father and brother were also sheep, it was within the power of appellee to commingle the community livestock with the livestock belonging to his father and brother and by reason thereof appellee's father and brother could claim the ownership of such of the community livestock which might be of greater value than some of the livestock belonging to them and could substitute inferior livestock for the better community livestock. It was further alleged that additional fraud might be practiced in the disposition of the community livestock by appellee, his father and his brother and unless a receiver was appointed to take possession of all of the community livestock as well as the community money on deposit to appellee's account in the San Angelo National Bank, appellee, with the connivance and aid of his father and brother, would defraud appellant of part of her community property.

Appellant further alleged that the provisions of the temporary injunction entered May 28, 1961 were being violated by appellee and that she did not have any income for her maintenance during the pendency of the suit and being without funds for her support the Trial Court should allow her a sum for her support in proportion to the means of appellee under the provisions of Art. 4637, V.C.S., until the entry of a final decree. It was also alleged that although appellant had received the sum of $750.00 as provided in the order of May 28, 1961, she was required to pay a substantial part thereof to her attorney, Ronald Smallwood, in accordance with an oral contract between herself and said attorney; that since the sum of $750.00 was charged against her community interest, any order which should be construed to provide that she could not use a reasonable part of such money in...