Currie v. Currie

• Decision Date: 31 December 1974
• Docket Number: No. 15362,15362
• Citation: 518 S.W.2d 386
• Parties: Mary Helen CURRIE, Appellant, v. John Garner CURRIE, Appellee.
• Court: Texas Court of Appeals

Page 386

518 S.W.2d 386

Mary Helen CURRIE, Appellant, v. John Garner CURRIE, Appellee.

No. 15362.

Court of Civil Appeals of Texas San Antonio.

Dec. 31, 1974.

Rehearing Denied Jan. 29, 1975.

Matthews, Nowlin, Macfarlane & Barrett, John N. McCamish, Jr., F. W. Baker, Jon C. Wood, San Antonio, for appellant.

Joe Frazier Brown, San Antonio, Ronald Emmett Harris, Kessler, Nichols & Harris, Uvalde, for appellee.

BARROW, Chief Justice.

This is an appeal from a judgment entered after a non-jury trial wherein appellant's petition for dissolution of the marriage was granted and she was appointed managing conservator of the two minor children. Appellant asserts on this appeal that the property division is inequitable, the child support provisions are inadequate and the trial court failed to award her reasonable attorney's fees and necessary trial expenses.

Appellant and appellee were married on December 28, 1963, and separated on April 9, 1972. Two children were adopted during the marriage: John Quin Currie, who was born on March 15, 1968, and James Drew Currie, who was born on May 28, 1971. Appellant filed suit for divorce on April 12, 1972, in Uvalde County, but this suit was dismissed and re-filed in Bexar County on October 16, 1972. The judgment was signed on April 16, 1974. Appellee was ordered to pay child support of $200.00 per month per child until April 1, 1976, and thereafter, $250.00 per month until each child attained the age of 18 years. Appellee was also ordered to pay appellant's attorneys the sum of $15,000.00 plus $3,000.00 if the case was appealed to this Court, and an additional $3,000.00 if an application for writ of error was filed in the Supreme Court.

The thrust of appellant's complaints on this appeal relate to the property division and specifically to the trial court's action in awarding appellee, as his separate property, his undivided one-third interest in trusts created by the wills of appellee's great-grandfather, John Nance Garner, and appellee's grandfather, Tully C. Garner. Such interests had a valuation of approximately $1,300,000.00. In addition, appellee was awarded all interest in his teacher's retirement fund which had a value of about $4,200.00. Appellant was granted the sum of $50,000.00, evidenced by a promissory note to be signed by appellee, payable in 125 equal monthly installments, bearing interest at the rate of six percent per annum. The parties owned no real estate, and the relatively small amount of personalty accumulated during the marriage was granted to the party possessing it, subject to any indebtedness.

While recognizing that appellee's interest in these two trusts were inherited by him and thus are his separate property, appellant urges that all undistributed income earned by the trusts during the marriage is a part of the community estate. ¹ In addition, she urges that the community estate is entitled to be reimbursed for sums expended from income earned by the trust during the marriage to maintain and preserve the corpus of trust.

Since the terms of each trust differ in some respects, we must consider them separately. The will of John Nance Garner, Deceased, was admitted to probate on November 27, 1967. With the exception of several specific bequests which are not material here, all of his property was devised to the trustee to hold, manage and control in accordance with the terms of the trust created by said will. The net income from the estate is to become a part of the corpus. When the oldest child of testator's granddaughter, Genevieve Garner Currie, became 21 years of age, the corpus, including any net income which had been added thereto, was to be divided into as many separate trusts as there were then surviving children of his grandchildren. As each such beneficiary became 21 years of age, the trustee was to pay $25,000.00 in cash or the equivalent in property to such child. Thereafter, the trustee could from time to time make such additional distributions when in the trustee's 'uncontrolled discretion' such child beneficiary attained sound discretion and good business judgment. If any child of testator's granddaughter dies before receiving all of its distribution the trustee is directed to set up a trust fund for said child's issue, and if none, to distribute the corpus of such child's trust to the other surviving children of testator's granddaughter. The trustee is expressly granted full discretion to determine what constitutes net income and is specifically granted discretion to determine the amounts needed to preserve, repair, or otherwise protect the principal and to determine the allocation of receipts and disbursements between income and principal as the trustee deems to be in the best interest of the trust estates.

Appellee is the oldest of three children of Genevieve Garner Currie and he became 21 years of age in 1969. The $25,000.00 was distributed to him, as well as the sums of $15,000.00 in 1969, $9,500.00 in 1970, and $10,000.00 in 1971. Most of such sums were lost in unsuccessful stock market investments. The executor-trustee is Hon. D. W. Suttle, and he testified that his practice has been to distribute the income that was available after payment of the annual installment due to the Internal Revenue Service for the estate tax, and the expenditures necessary for maintenance of the property and current taxes. He testified that the only income he has retained is a small reserve for contingent expenses. He anticipates making full distribution to the beneficiaries if all three are still surviving after 1979 when the IRS is paid in full.

The annual tax returns filed on behalf of the John Nance Garner estate were introduced into evidence and appellant urges that one-third of the income earned by the trust estate during the marriage was community property of appellee and appellant, and that the trial court should have awarded her one-half of any of such income which was not distributed.

Since there is little undistributed income on hand, her principal contention on this appeal is that the community estate is entitled to be reimbursed for the estate taxes which have been paid in annual installments from income earned by the trust estate. Judge Suttle testified that he made an agreement with the IRS whereby the estate taxes were to be paid in annual installments. He testified that this was advantageous to the estate because of the low rate of interest charged by IRS. The estate taxes...