Dillard v. Dillard, 10799

• Decision Date: 09 November 1960
• Docket Number: No. 10799,10799
• Citation: 341 S.W.2d 668
• Parties: Truett O. DILLARD et al., Appellants, v. Lorraine M. Samon DILLARD, Appellee.
• Court: Texas Court of Appeals

Page 668

341 S.W.2d 668

Truett O. DILLARD et al., Appellants, v. Lorraine M. Samon DILLARD, Appellee.

No. 10799.

Court of Civil Appeals of Texas, Austin.

Nov. 9, 1960.

Rehearing Denied Jan. 4, 1961.

J. Hubert Lee, Austin, Byrd & Davis, Austin, for appellants.

John W. Flanagan, R. E. L. Looney, Austin, for appellee.

HUGHES, Justice.

This was a divorce suit in which appellee, Lorraine M. Samon Dillard was awarded a divorce from Truett O. Dillard. The judgment also awarded appellee custody of Ronnie T. Dillard, age 5, Mark K. Dillard, age 4, and Steven G. Dillard, age 3, their children, made provision for the maintenance and support of such children, and adjudicated certain property rights of the husband and wife, the husband's father and mother, Mr. and Mrs. N. J. Dillard, and his brother-in-law, J. K. Pringle, all of whom were parties.

This appeal is taken by Truett O. Dillard and N. J. Dillard ¹ only and is restricted to the adjudication of property rights.

Trial was to a jury. In accordance with its verdict, judgment favorable to appellee was rendered.

Appellants group their first, tenth, fifteenth and nineteenth points for briefing. They are to the effect that the real property designated as 2102 Winsted Lane was separate property of Truett O. Dillard, and was, at the most, subject to reimbursement in favor of the community, and the Court erred in not so holding and, alternatively, in not submitting this issue to the jury as requested; and that the Court erred in awarding appellee an undivided one half interest in the personal property located at this address.

The Trial Court adjudicated an undivided one half interest in the real property (2102) to be community and awarded appellee an undivided one fourth interest therein, the remaining three fourths interest being awarded to T. O. Dillard.

T. O. Dillard had been previously married and this property (2102) was purchased during such prior marriage and title was taken in his name. This marriage was dissolved by divorce in 1952. There is no evidence that disposition or partition of this property was made in that suti or otherwise until October 17, 1953, when Mrs. Charlotte Dillard, the first wife, made conveyance by deed of her interest in this property to T. O. Dillard, who at that time was married to appellee.

Appellant T. O. Dillard states that the property having been taken in his name prior to his marriage to appellee, that it is uncontrovertibly his separate property and 'There is no necessity for argument on this phase of the case. * * *'

We disagree with appellant, being of the opinion that the undisputed evidence, as a matter of law, established the community nature of the one fourth interest awarded appellee.

It being shown that this property (2102) was acquired during the marriage of T. O. Dillard and Mrs. Charlotte Dillard, and was possessed by them when their marriage was dissolved, and nothing more being shown, such property presumptively became community when acquired and was at the time of the marriage dissolution the community property of that marriage. Art. 4619, Venon's Ann.Civ.St.; Sec. 307, Husband and Wife, Tex.Jur. Vol. 23. Rippy v. Rippy, Tex.Civ.App. Austin, 49 S.W.2d 494, writ ref.

Upon the dissolution of the first marriage, nothing else appearing, this property (2102) was jointly owned by the parties, each owning an undivided one half interest therein. Hitchcock v. Cassel, Tex.Civ.App., Austin, 275 S.W.2d 205, writ ref., N.R.E.

These same principles are applicable to the one half interest in the 2102 property held to belong to the community estate of the second marriage. It was acquired during such marriage. It was possessed by the husband and wife at the time this marriage was dissolved. It was community property of the second marriage.

With respect to the personal property located at 2102 Winsted Lane appellant, T. O. Dillard, states that there is no evidence that any of the furniture found there was placed in it during his marriage to appellee.

The Court equally divided the personal property located at this address between the husband and wife.

Appellant T. O. Dillard points to no evidence which would overcome or tend to overcome the presumption created by Art. 4619, supra, that this personalty being possessed at the time of divorce was community property.

For another reason, the division of this personalty is not shown to be erroneous. Appellee having been awarded the custody of the minor children of the marriage, the Court was within its discretionary authority in awarding one half of this property to appellee. No abuse of this authority is charged or shown. See Art. 4638, V.A.C.S., Hamm v. Hamm, Tex.Civ.App. Fort Worth, 159 S.W.2d 183, Tims v. Tims, Tex.Civ.App. Amarillo, 201 S.W.2d 865, writ dism.

Appellants' points second, eleven, sixteen and eighteen are similar to the points last discussed except that they relate to what is called the Lake Travis property and its contents. They are grouped for briefing.

The Trial Court found, in its judgment, that the Lake Place was community property, but that appellant T. O. Dillard had invested $2,800 of his separate funds in the property and was entitled to its recovery. The Court also set aside to appellee one half the personal property located at the Lake Place.

No issues were submitted to the jury by the Court as to the separate or community nature of this property, although appellant T. O. Dillard requested such issues.

We will dispose first of the division of the personalty by referring to and adopting here what we said concerning the division of the personalty found in the Winsted (2102) property. The controlling facts are the same here, as there, and our ruling is the same.

The Lake Place was bought under these circumstances:

Appellee and appellant, T. O. Dillard, were married July, 4, 1953. The Lake Place was purchased March 26, 1954.

Appellant T. O. Dillard owned a house at 2101 Winsted Lane in Austin. This property was acquired before this marriage and was his separate property. Appellant sold this property, and while it was under contract of sale, and beofre he received its purchase price, he bought the Lake Place. He had expected to receive the proceeds of the Winsted property on April 1, 1954. In order to pay for the Lake Place, he borrowed $2,800 from the Austin National Bank on March 26, 1954. This loan was made, in part at least, upon the faith of the Winsted sale. By check issued March 25, 1954, appellant T. O. Dillard paid $2,800 for the Lake Place. On April 9, 1954, payment for the Winsted property was received in the amount of $3605.16, and on the same day appellant paid his loan to the Austin National Bank.

Appellant T. O. Dillard contends that the credit extended him by the Bank was not community credit, but was his separate credit.

An officer of the lending bank testified that, if necessary to collect the $2,800 note, the bank would have levied on any property, community or separate, of T. O. Dillard.

It is our opinion that the debt to the bank was a community debt, the proceeds community funds, and the property purchased community property.

We content ourselves, on this point, in citing an excellent opinion by Chief Justice Chadick of the Texarkana Court of Civil Appeals in Goodloe v. Williams, 302 S.W.2d 235, writ ref.

Under this authority, and the cases cited in it, property purchased during marriage by either spouse on credit is community property unless an agreement exists that the separate estate of the vendee only shall be looked to by the vendor for satisfaction of the credit extended.

This same rule is applicable to property purchased during marriage with borrowed money. Speer Law of Marital Rights in Texas, 3rd Ed.1929, Sec. 430, XXI Tex.LawRev. p. 41.

Applying this principle to this record, agreement on the part of the Austin National Bank to look only to the separate estate of appellant. T. O. Dillard for repayment of the funds borrowed from it to purchase the Lake Place was essential to a finding or conclusion that this property was the separate property of T. O. Dillard.

No such agreement was proved or attempted to be proved. In fact, its existence was negatived by appellee.

In our opinion, the community nature of this property was established as a matter of law, thus dispensing with the necessity of submitting any relevant issues to the jury.

Appellants' third and twenty third points are grouped for briefing. They assert error in the Trial Court's action in refusing appellant N. J. Dillard leave to intervene in this cause to preserve his rights in Cause No. 115,504 pending in the District Court of Travis County, Texas, which was a suit of foreclosure on a $3,000 promissory purchase money note and lien on the property on the Bee Caves Road executed by appellee and her husband in favor of N. J Dillard, and the action of the Court in 'impliedly adjudicating' the invalidity of the vendor's lien securing the $3,000 note.

The Bee Caves property was the homestead of the parties. The note and lien were introduced in evidence by appellant N. J. Dillard.

The only adjudication made by the Trial Court regarding this property was:

'* * * that the 'Bee Caves' place is the homestead, that it is community property, that Plaintiff and Defendant, Truett O. Dillard, each own an undivided one-half interest in said property, subject only to an outstanding indebtedness to the Austin Savings and Loan Association, assumed by Plaintiff and Defendant, Truett O. Dillard, when they purchased said property; and further that Plaintiff's undivided one-half interest in the 'Bee Caves' place, be and it is hereby set aside to her. Said 'Bee Caves' place is described as follows, to-wit: [Description omitted.] and further that the interest of Truett O. Dillard in the above named and described property is hereby set aside to the Plaintiff, Lorraine M. Samon Dillard, for the benefit, use and maintenance of the three children of this...