Earnest v. Earnest

• Decision Date: 26 September 1949
• Docket Number: No. 5974.,5974.
• Citation: 223 S.W.2d 681
• Parties: EARNEST v. EARNEST.
• Court: Texas Court of Appeals

223 S.W.2d 681

EARNEST v. EARNEST.

No. 5974.

Court of Civil Appeals of Texas. Amarillo.

September 26, 1949.

E. T. Miller and Hazlewood & Richards, Amarillo, for appellant.

S. E. Fish, Amarillo, for appellee.

LUMPKIN, Justice.

The appellant, Kay Earnest, filed this suit against her husband O. D. Earnest, the appellee, asking for a divorce, a division of community property and attorney's fees. The husband filed an answer and cross-action in which he denied appellant's allegations. He prayed for a divorce, a division of the community property, and title and possession of his separate property. Each party alleged cruel treatment as ground for divorce. Trial was before the court without the intervention of a jury and resulted in a judgment which granted the appellant a divorce, ordered a division of the community property, and denied appellant's request for attorney's fees. The appellant duly excepted to the judgment and gave notice of appeal.

On appeal the appellant does not complain of that portion of the judgment which granted the divorce but confines her attack to those portions of the court's judgment which pertain to a division of the alleged community assets and which denied appellant's prayer for attorney's fees.

At the appellant's request the court filed findings of fact and conclusions of law. Briefly summarized, the findings disclose the following facts:

The appellant is forty-eight years of age and has a good business as a beauty shop operator. The appellee is a man sixty-six years old and in poor health. He is suffering from high blood pressure and heart trouble, and his doctor testified that his disturbed home condition was a contributing factor in aggravating these ailments. The parties were married December 29, 1940, and separated December 11, 1948, and have not lived together since, although each occupies a part of the same house.

At the time of the marriage, appellee was employed as a railroad conductor. In December, 1947, he retired after having been employed by the Rock Island Railway for over thirty-five years. Prior to the marriage the appellee owned a six-room house and a four-room house, both located on the same lot in Amarillo, Texas. The four-room house was furnished, and the property had an unpaid balance of about $495.00 secured by a lien against the property. The appellee had $482.91 in the bank, his current paycheck of approximately $255.60, and a loan of $305.00 against the appellant. This last asset represents money loaned the appellant by the appellee before the marriage of the parties. Before the marriage, the appellant owned a 1940 Plymouth coupe and had about $300.00 in cash.

The court found that since the marriage the parties had maintained separate bank accounts; that according to the testimony of each party, they settled their community assets each month by a method whereby the appellee would give the appellant his personal check in an amount sufficient to make her bank account equal his; that the parties continued this practice until 1946; that in 1946 the appellant sold her beauty shop realizing a profit of about $500.00, none of which was ever given the appellee; that in 1948 the parties sold a lot in which they were both interested at a profit of $1,181.00 and that the appellee paid appellant $590.50, her part of the profit.

The court found that the appellee, upon his retirement from the railroad, was paid a lump sum of $720.00; that his monthly pension from the date of retirement to December 30, 1948, aggregated $1,442.48; that upon the filing of this suit he had a balance in the bank of $484.21, which had been reduced by the payment of the utility bills at his home; and that he had a cashier's cheque for $4,500.00, but the retirement and pension money before mentioned and the profit on the lot, $590.50, were included in the amount of the cashier's cheque. The court found that certain improvements had been made on appellee's separate property but that the evidence as to the amount expended was unsatisfactory and that there was neither pleading nor proof as to the alleged enhanced value of the property; the court also found that the parties were not in agreement as to the division of the community furniture and equipment; and, last, the court found "that both parties were responsible for the conditions shown by the evidence in the case;" that the evidence adduced at the trial warranted a divorce for either party; and that both parties had destroyed evidence which should have been presented to the court.

The court concluded as a matter of law that a divorce should be granted in favor of the appellant; that the appellee was entitled to judgment which vested in him as his separate property title to the real estate and the furniture of the four-room house; "that under the conditions, circumstances, and financial worth," appellant should not recover for her attorney's fees; that since the furniture in the six-room house and the equipment in the beauty shop could not be partitioned in kind, this property be sold by a receiver and the proceeds divided equally between the parties; and that the appellee should pay appellant $1,834.45 in full satisfaction of her interest in the community assets.

In support of the judgment the appellee points out that the appellant failed to except to the findings and conclusions filed at her request by the trial court. We overrule this contention. Where the judgment is duly excepted to and the record contains a statement of facts, the appellant is permitted to attack the findings and conclusions of the trial court, although no specific exceptions are taken thereto. Voight et al. v. Mackle, 71 Tex. 78, 8 S.W. 623; Johnson et al. v. Masterson Irr. Co., Tex. Civ.App., 217 S.W. 407; Reed et al. v. Murphy, Tex.Civ.App., 276 S.W. 951; Weir v. King, Tex.Civ.App., 166 S.W.2d 187.

In attacking the court's judgment the appellant contends that all of the property before the court, with the exception of the real estate and the automobile, was community property subject to division by the court and that the court abused its discretion in not dividing the community property equally between the parties.

In particular the appellant is concerned with the $4,500.00 cashier's cheque. The court found that the retirement and pension money and the profit on a lot were included in the amount contained in the cashier's cheque. A review of the record reveals that the retirement money of $720.00 was deposited in the bank and that this money was a part of the sum the appellee checked out, but that there is no testimony that the $720.00 was included in the cashier's cheque. The court found that $590.50, being one-half of the profit from the sale of the lot, was included in the amount of the cashier's cheque, whereas the appellee testified that $493.00 of the $590.50 was used to pay for paving adjacent to his separate property. His testimony shows that from his retirement on December 20, 1947, until July, 1948, he received a pension of $106.62 a month and that from July, 1948, to the date of the trial he received a monthly pension of $127.94. He said he usually cashed these pension cheques and used the money to defray current expenses, banking only what was left. The court, however, found that the entire amount of his retirement pay, aggregating $1,442.78, was included in the $4,500.00 cashier's cheque. Thus, the appellant asserts, the cashier's...