Dietz v. Dietz
| Decision Date | 07 July 1976 |
| Docket Number | No. 6527,6527 |
| Citation | 540 S.W.2d 418 |
| Parties | Edna Lucille Gill DIETZ, Appellant, v. Jesse G. DIETZ, Jr., Appellee. |
| Court | Texas Court of Appeals |
Campbell & Davidson, John F. Campbell, Austin, for appellant.
Gibbins & Spivey Associated, Inc., Broadus A. Spivey, Patrick Hazel, Austin, for appellee.
This is an appeal with regard to that part of the judgment in a divorce case which divided the community property. After a trial to the Court without a jury, the trial Court entered a judgment granting a divorce to the husband, restored the wife's prior name, divided the community property, and awarded the wife $500.00 for attorney's fees.
At the time these parties married on July 12, 1974, they both were approximately 50 years old, and each had been previously married and had grown children. The parties separated in November, 1974, reconciled in February, 1975, again separated in April, 1975, and were divorced following the hearing in District Court in August, 1975. The Appellee was a businessman and rancher with a separate estate of approximately $750,000.00. He had an income of $1,000.00 per month from a business in which he owned 49% Of the stock, in addition to his income from ranching operations. The Appellant has a real estate broker's license but had no actual income at the time of the divorce. Her separate estate was in the neighborhood of $15,000.00. The trial Court found that the parties' community property consisted of several bank accounts and a certificate of deposit, two vehicles, a farm tractor, and 50 calves. According to values used by the Appellee, the community estate had a value of approximately $49,000.00. The trial Court awarded the Appellant a bank account with a balance of $424.00. The remainder of the community property was awarded to the Appellee.
The Appellant presents one Point of Error, contending that the trial Court erred in making a manifestly unjust division of the community property. The trial Court having awarded the Appellant less than 1% Of the community estate and the Appellee in excess of 99% Of the community estate, we have concluded that the Point of Error should be sustained.
The primary duty of the trial Court in dividing the community property of the parties is to make a division that is fair, just and equitable. The trial Court may exercise broad discretion in dividing the estate of the parties and such discretion may be corrected on appeal only where it is shown that the disposition is so manifestly unjust and unfair as to constitute an abuse of discretion. While an equal division is not required, there must be some reasonable basis for decreeing an unequal division of the property. To reach a fair, just and equitable division, the trial Court may set aside separate property of one party to the divorce to the other party. But the separate property of one spouse should not be awarded to the other merely to equalize their comparative wealth. In the exercise of this discretion, the Court may consider, among other things, the age and physical condition of the parties, their relative need for future support, fault in breaking up the marriage, disparity of the earning power of the parties, as well as their business opportunities, capacities and abilities. All of these principles and the authorities from which they emanate have been discussed at some length in the recent opinions in Cooper v. Cooper, 513 S.W.2d 229 (Tex.Civ.App.--Houston (1st Dist.) 1974, no writ); and Currie v. Currie,518 S.W.2d 386 (Tex.Civ.App.--San Antonio 1974, writ dism'd).
In this case, the trial Court did not attempt to identify or divide the separate property of the parties. No complaint is made in this regard and we see no reason why either party should have been awarded benefits from the separate estate of their spouse. In this case, there is a great difference in the value of the parties' separate estate, but the marriage was of short duration and each party appears to be capable of providing their own support in the future, and there are no minor children involved.
With regard to the community estate, the division is obviously unequal and, we believe, without any reasonable basis. The evidence does reflect that after the parties reconciled in February, 1975, the Appellee provided the Appellant with $8,000.00 to pay off a debt she incurred prior to the marriage. Although there is no finding, the trial Court might well have concluded that this money came from the Appellee's separate estate. Even so, we do not believe that such a finding would justify the unequal division of the community estate.
The Appellee attempted in the trial Court to show through the tracing of funds that most or all of the property determined by the trial Court to be community property was in fact the separate property of Mr. Dietz. The trial Court having decided against him on this contention, he brings to this Court a cross-point contending that as a matter of law the trial Court erred in characterizing his property as community property rather than as his separate estate. We may not consider that cross-point because the Appellee did not except to the judgment, give notice of appeal therefrom, or in any manner apprise the Court of his dissatisfaction with the determination as to what was community property. West Texas Utilities Company v. Irvin, 161 Tex. 5, 336 S.W.2d 609 (1960); Maloney v. Strain, 410 S.W.2d 650 (Tex.Civ.App.--Eastland 1966, no writ). Even if we could consider the point, the evidence does not establish as a matter of law that the property in dispute was the separate property of the Appellee.
Appellant urges that we reverse and render judgment that each of the parties is entitled to one-half of the community estate, and, in the alternative, suggests that Appellee should be required to file a remittitur of certain items awarded to him by the judgment. Rule 440, Tex.R.Civ.P., does provide in civil cases the Court of Civil Appeals may order a remittitur if the Court '* * * is of the opinion that the verdict and judgment of the trial court is excessive and that said cause should be reversed for that reason only * * *.' The Rule by reference to both the 'verdict and judgment' would indicate that the Rule applies only in jury cases. But the Rule has been applied and a remittitur ordered in non-jury cases. See Newman v. Newman, 195 S.W.2d 393 (Tex.Civ.App.--San Antonio), aff'd 145 Tex. 433, 198 S.W.2d 91 (1946). In Cooper v. Cooper, supra, the Court of Civil Appeals in a non-jury divorce case ordered a remittitur to cure the error of the trial Court in dividing the property of the parties.
Having concluded that the division of the community property constituted an abuse of discretion under the facts of this case, that portion of the judgment dividing the estate of the...
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