DePuy v. DePuy, 715

• Decision Date: 31 July 1972
• Docket Number: No. 715,715
• Citation: DePuy v. DePuy, 483 S.W.2d 883 (Tex. Ct. App. 1972)
• Parties: Nancy Fae DePUY, Appellant, v. Frederick Jay DePUY, Appellee.
• Court: Texas Civil Court of Appeals

Page 883

483 S.W.2d 883

Nancy Fae DePUY, Appellant, v.Frederick Jay DePUY, Appellee.

No. 715.

Court of Civil Appeals of Texas Corpus Christi.

July 31, 1972.

Stone, Luther & Dyer, Max J. Luther III, Corpus Christi, for appellant.

McDonald, Spann & Smith, Ben F. McDonald, Jr., Corpus Christi, for appellee.

OPINION

SHARPE, Justice.

This appeal by Nancy Fae DePuy, plaintiff below, is from a judgment rendered after non-jury trial which granted her a divorce from Frederick Jay DePuy, defendant-appellee and adjudicated the property rights of the parties by setting aside certain properties, both real and personal, as the separate property of appellee and dividing the community property taking into consideration certain adjustments.The granting of the divorce is not an issue in this appeal.

Appellant asserts four points of error.Although different items of property are involved, appellant's basic contention is the same under all points, i.e., that the evidence established that the properties involved were purchased by monies drawn from the joint community bank account of the parties and is presumed to be community property because the monies therein consisted of comingled separate and community funds, and appellee, Frederick Jay DePuy, did not trace his separate funds, if any, into the properties purchased by clear and convincing evidence so as to rebut the presumption that the property was community property.For that reason appellant contends that the trial court erred in awarding the defendant-appellee as his separate property, under point one, the investment in the down payment on the duplex apartment located at 2102 Kenwood, Austin, Texas, Lot No. 7, BlockNo. 36, of the Travis Heights Addition, Travis County, Austin, Texas, in an amount of $8,018.53, as reimbursement or repayment of such investment from and out of the said duplex property, and awarding a lien against the said duplex real property to secure such reimbursement; under point two, stocks and securities consisting of 2036 shares of Enterprise Funds Incorporated, 105 shares of L.S.B. Industries, Inc., 300 shares of Shell Oil Corporation, and 200 shares of Tincor Computing Corporation; and under point three, furniture consisting of the Mediterranean bedroom and living room suites, the two oil paintings, the stereo set, and a lounge couch.Appellant's point number four reads as follows:

'The Court erred in not granting the Petitioner's Motion for Judgment because the evidence established that the property purchased by monies drawn from the joint community bank account and is presumed to be the community property because the monies therein consisted of comingled separate and community funds, and the Respondent did not trace his separate funds, if any, into such properties purchased by the parties by clear and convincing evidence so as to rebut the presumption that such properties were community property.'

Appellant's motion for judgment in effect requested the trial court to make an equal division of all property of the parties and to award her attorney's fees in the amount of $750.00.

The judgment of the trial court reads as follows:

'BE IT REMEMBERED that on the 18th day of October, 1971, at a regular term hereof, and in accordance with procedural requirements came the parties in the above styled and numbered cause personally and by and through counsel of record and announced ready for trial, and in open court waived a trial by jury and agreed that all matters of fact as well as law should be heard and determined by the Court sitting without a jury, and the Court proceeded to hear testimony, receive evidence, listen to the summary of counsel, consider the written briefs and legal authorities, and thereafter was of the opinion and accordingly so finds that the parties hereto were duly and lawfully married on or about November 24, 1967, and lived together as husband and wife until shortly prior to the filing of this divorce action.During the course of the marriage circumstances arose between the parties which have rendered their further living together insupportable because of discord and conflict of personalities destroying the legitimate ends of this marriage relationship and preventing any reasonable expectation of reconciliation.Accordingly, the Petitioner, Nancy Fae DePuy, is entitled to a divorce from the Respondent, Frederick Jay DePuy.

The Court further finds it necessary to set apart and decree to each party the respective separate property due such party, and further, to divide and partition the community properties of the parties in a just, right and equitable manner, having due regard for the rights of each party.Accordingly, the Court finds as follows:

1.The sum of $66,647.01 deposited by Frederick Jay DePuy in the joint bank account at Capital National Bank in January, 1968, represented the separate funds of Frederick Jay DePuy, such funds having been inherited from the estate of his grandfather and so being his separate property.Such funds have been traced into the following assets:

(A) Furniture consisting of Mediterranean bedroom and living room suites, now in the possession of Nancy DePuy;

(B) Stocks and securities consisting of 2036 shares of Enterprise Fund, Inc., 105 shares of L.S.B. Industries, Inc., 300 shares of Shell OilCorp., 200 shares of Tincor Computing Corp., now in the possession of Frederick Jay DePuy.

2.From the said separate funds of Frederick Jay DePuy, the Court finds there is reasonably traced the investment in a down payment on the duplex apartment located at 2102 Kenwood Street, Austin, Texas, Lot No. 7, BlockNo. 36, of Travis Heights Addition, Travis County, Austin, Texas; in the amount of $8,018.53, and Frederick Jay DePuy is entitled, as his separate estate, to a reimbursement or repayment of such investment from and out of said duplex property and should have a lien against said duplex real property to secure such reimbursement.

3.All other properties held by the parties are deemed to be community property and are to be equitably and fairly divided.

Having due regard for the rights of the parties and their respective estates, the Court enters the following orders and judgments:

IT IS ORDERED, ADJUDGED AND DECREED that the Petitioner, Nancy Fae DePuy, be and she is hereby granted a bill of divorcement from the Respondent, Frederick Jay DePuy, and the parties are accordingly so divorced and the bonds of matrimony heretofore existing between them are dissolved.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Frederick Jay DePuy be and he is hereby awarded and adjudged as his sole and separate property the following:

(1) The furniture consisting of Mediterranean bedroom suite and living room suite now in possession of Nancy Fae DePuy.

(2) Stocks and securities consisting of 2,036 shares of Enterprise Fund, Inc., 105 shares of L.S.B. Industries, Inc., 300 shares of Shell OilCorp., 200 shares of Tincor Computing Corp.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Frederick Jay DePuy is entitled to a separate reimbursement from the community estate in the amount of Eight Thousand, Eighteen Dollars and 53/100 Dollars ($8,018.53), representing the investment of his separate funds in the duplex at 2102 Kenwood Street, Austin, Texas, Lot No. 7, BlockNo. 36, of Travis Heights Addition, Travis County, Austin, Texas, and is granted a good and sufficient lien, mortgage and encumbrance against said property to secure the repayment to him of said sum.

In order to provide for repayment of the separate property right of reimbursement of Frederick Jay DePuy in said duplex and in order to equitably divide the community property, which is all the property remaining except that set aside and decreed as the separate property of Frederick Jay DePuy, the court ORDERS, ADJUDGES and DECREES as follows:

1.That Frederick Jay DePuy shall have and there is set aside to him as his sole and separate property the assets heretofore mentioned, to-wit, the furniture consisting of Mediterranean bedroom suite and living room suite and stocks and securities consisting of 2036 shares of Enterprise Fund, Inc., 105 shares of L.S.B. Industries, Inc., 300 shares of Shell OilCorp., 200 Shares of Tincor Computing Corp.As a division of the community property, Frederick Jay DePuy is hereby awarded title and possession to and of the Kenwood duplex, being Lot 7, Block 26, Travis Heights Addition, Austin, Travis County, Texas, the community interest in such duplex being of the value of $2,549.29.The Court observes that Frederick Jay DePuy lives in Austin, Texas, and it would be much better and more convenient for him to have the ownership, management and control of said duplex than for Petitioner to have the same in that she lives and resides in Corpus Christi, Texas.By awarding the community interest of $2,549.29 in said duplex to said Frederick Jay DePuy, the Court can thereby merge and provide for the separate property reimbursement to Frederick Jay DePuy of $8,018.53, and is so ordered.In addition thereto, the Court orders that the two oil paintings, the stereo set and the lounge couch be awarded to Frederick Jay DePuy as a division of the community property, and Frederick Jay DePuy shall have and there is hereby divided unto him the Chevrolet automobile that he is now driving and he is to assume the unpaid indebtedness on such automobile.The total community property value, disregarding the automobile which is of approximate equal value with the automobile of Nancy Fae DePuy, is $3,149.29.

II.To Nancy Fae DePuy as a division of the community property there is hereby awarded the gifts, personal effects and personal properties listed on Exhibit...