Dillingham v. Dillingham

• Decision Date: 25 October 1968
• Docket Number: No. 16963,16963
• Citation: 434 S.W.2d 459
• Parties: Walter Winford DILLINGHAM, Appellant, v. Zexia Parmer DILLINGHAM, Appellee. . Fort Worth
• Court: Texas Court of Appeals

Page 459

434 S.W.2d 459

Walter Winford DILLINGHAM, Appellant, v. Zexia Parmer DILLINGHAM, Appellee.

No. 16963.

Court of Civil Appeals of Texas.

Fort Worth.

Oct. 25, 1968.

Rehearing Denied Dec. 6, 1968.

Bryan & Amidei, and Maurice Amidei, Fort Worth, for appellant.

Heard L. Floore and Wallace Brady, Fort Worth, for appellee.

OPINION

MASSEY, Chief Justice.

Appeal is from the property division award pursuant to decree of divorce.

Affirmed.

Predicate for the material contentions of appellant, Walter Winford Dillingham, as against appellee Zexia Parmer Dillingham, lies in his belief that the trial court erred insofar as its judgment treated corporate assets, allegedly the separate property of appellant, as though it was community property and (in effect) because the court divided such corporate property equally between appellant and appellee.

No part of the property awarded to the wife, appellee, was real estate. Article 4638, Vernon's Ann.Tex.St., 'Division of property', provides that upon pronouncing a decree of divorce a court shall also order a division of the estate of the parties in such a way as the court shall deem just and right, etc. In Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923), it was stated: 'For the purpose of doing equity, the court may award all the personal property to either spouse, * * *.' See commentary by Professor William O. Huie, on Texas' Community Property Law, in Vol. 13, V.A.T.S., § 12, 'Division on Divorce', beginning at p. 45. See also Ex parte Scott, 133 Tex. 1, 123 S.W.2d 306, 313 (1939); Grant v . Grant, 351 S.W.2d 897 (Waco Civ.App., 1961, writ dism.).

The fact that the property might constitute separate property of the appellant (a matter in dispute) is of no consequence. Under the law the court, in the exercise of equity powers pursuant to Art. 4638, is authorized to take the separate property of one party and award it to the other in a decree made pursuant to divorce. Such an award will not be disturbed unless there is a clear abuse of discretion. Mozisek v. Mozisek, 365 S.W.2d 669 (Fort Worth Civ.App., 1963, writ dism.).

The appellant does not premise his contention of error upon any abuse of discretion as such is usually considered. Indeed the record fails to substantiate any abuse, consideration given to all the facts and circumstances of the case and to the relative conditions and abilities of the parties to be expected following their divorce.

As we understand appellant's brief one of his contentions is that error exists merely because his separate property was erroneously 'treated' as a part of the community, with the result that the trial court labored under a mistake when it awarded to appellee an interest therein. However, such contention must fail in view of the following finding or conclusion of law to be observed in the Court's Findings of Fact and Conclusions of Law: '8. * * * I find also that the division of property between the parties herein as set out in the Judgment on file herein is equitable and just without regard to whether the property so divided is community, separate or mixed.'

It is true that the trial court did not agree with appellant's contention that the corporate property actually constituted the separate property of appellant, but it was made plain that the court intended appellee to have what was awarded to her whether or not he was mistaken as to its character.

We are in accord with the court's decision that, for purposes of the litigation, the corporate property should be considered as part of the community estate.

In a rather exhaustive study, with reference made to many authorities, an analogous question was presented to the Attorney General of Texas. That official handed down its Opinion #O-6595 on September 18, 1945; the specific question having been In re: 'Inheritance tax on one-half of accumulated surplus of a corporation when all of such corporation's stock was owned prior...