Cox v. Cox, 14752

• Decision Date: 26 March 1969
• Docket Number: No. 14752,14752
• Citation: 439 S.W.2d 862
• Parties: Lindabeth COX, Appellant, v. Clyde R. COX, Jr., Appellee. . San Antonio
• Court: Texas Court of Appeals

Page 862

439 S.W.2d 862

Lindabeth COX, Appellant, v. Clyde R. COX, Jr., Appellee.

No. 14752.

Court of Civil Appeals of Texas.

San Antonio.

March 26, 1969.

Rehearing Denied April 24, 1969.

Bruce Youngblood, Harless, Bailey & Youngblood, Dallas, for appellant.

Carter, Callender, Onion & Branton, San Antonio, John G. Murray, Pearsall, for appellee.

BARROW, Chief Justice.

This is an appeal from a judgment after a jury trial ¹ granting a divorce from appellant. Although the divorce was vigorously contested on the merits, all of appellant's eleven points on this appeal relate to property questions.

The parties were married on October 24, 1964, and separated on August 11, 1967. A daughter was born of this marriage on December 12, 1965, and appellant was granted custody of said child. The court found that the parties owned community property of the value of $14,960.80 and ordered it divided equally between them. Appellee or the parties owned a one-third interest in a farming and ranching partnership with appellee's father, which interest was the primary asset owned by the parties, either jointly or separately. The thrust of this appeal is directed toward the court's determination that such partnership interest was entirely the separate property of appellee.

There was very little testimony relating to this partnership interest. Appellant took the position that since appellee had not pleaded that same was his separate property, he could not introduce evidence to that effect and appellant objected to all such evidence. The trial court overruled such objections and permitted appellee to testify that although the written partnership agreement was signed on December 30, 1964, the agreement was actually formed in January, 1964. He was corroborated by a provision in the written agreement that it was executed as of January 1, 1964, and by the testimony of an independent bookkeeper who keep books for the partnership. Also, appellant testified that appellee was working with his father at the time of their marriage. The only evidence as to the value of said partnership interest came from the bookkeeper who testified as to the value based upon said partnership's 1967 income tax return.

At the conclusion of the evidence, the trial court stated that there was no contested issue to go to the jury on the partnership interest. The court, nevertheless, submitted Issue No. 5, and in response thereto the jury found that the capital investment account of appellee at the time of trial (February 28, 1968) was greater than his original investment in said partnership. The court refused to submit appellant's requested issue which inquired as to the reasonable market value of said partnership at the time of trial. In the judgment, the trial court found that appellee had acquired his one-third interest in the partnership prior to the marriage and that said partnership kept accurate records and books by an independent and disinterested bookkeeper. The court concluded that said partnership interest was the separate property of appellee.

Appellant urges that we should hold, as a matter of law, that said one-third partnership interest is community property, in that there are no pleadings, evidence or jury findings to rebut the statutory presumption that same is community property. Other points complain of the court's refusal to submit appellant's requested issue, and in making findings of fact although a jury had not been waived. She also asserts that the property partition is manifestly unfair and unjust in the court's conclusion that this one-third partnership interest is entirely the separate property of appellee and then dividing the other property equally.

Appellee's first amended petition filed on November 14, 1967, did not mention the partnership interest. He alleged only that 'some community property had been accumulated by parties' and requested the court to make a fair and equitable division of same unless the parties reached an amicable agreement. On December 1, 1967, appellee filed a sworn inventory and claimed as his separate property and undivided one-third interest in said partnership, of the value of $2,222.55. Appellant filed an amended answer on February 26, 1968, which was the day the case proceeded to trial, and alleged that said partnership interest was community property.

Since under the undisputed evidence this partnership interest was possessed by the parties at the time of the divorce, Art. 4619, Vernon's Ann.Civ.St., created a rebuttable presumption that such interest was the community property of the parties, and imposed the burden upon appellee to prove the contrary by satisfactory evidence. Tarver v. Tarver, 394 S.W.2d 780 (Tex.Sup.1965); Kirtley v. Kirtley, 417 S.W.2d 847 (Tex.Civ.App.--Texarkana 1967, writ ref'd n.r .e.). Appellee should have alleged that same was his separate property, as well as the basis for such claim. Weatherall v. Weatherall, 403 S.W.2d 524 (Tex.Civ.App.--Houston (1) 1966, no writ); Lowery v. Lowery, 136 S.W.2d 269 (Tex.Civ.App.--Beaumont 1940, writ dism'd); Bobbitt v. Bobbitt, 223 S.W. 478 (Tex.Civ.App.--Amarillo 1920, writ dism'd). We have been cited to no authority and have found none to support appellee's contention that his sworn inventory dispensed with the necessity of pleading this claim. However, appellant's pleading showed the existence of such property, and...