Eggemeyer v. Eggemeyer

• Decision Date: 18 May 1977
• Docket Number: No. B-6019,B-6019
• Citation: 554 S.W.2d 137
• Parties: Virginia EGGEMEYER, Petitioner, v. Homer Joseph EGGEMEYER, Respondent.
• Court: Texas Supreme Court

Page 137

554 S.W.2d 137

Virginia EGGEMEYER, Petitioner, v. Homer Joseph EGGEMEYER, Respondent.

No. B-6019.

Supreme Court of Texas.

May 18, 1977.

Rehearing Denied July 13, 1977.

Dissenting Opinion on Denial of Rehearing July 13, 1977.

Bradley C. Miles, San Angelo, for petitioner.

Marvin C. Hanz, San Angelo, for respondent.

POPE, Justice.

The question presented by this appeal is whether a trial court may in a divorce decree divest one spouse of his separate realty and transfer title to the other spouse. The court of civil appeals in reversing the judgment of the trial court has ruled that section 3.63 of the Family Code does not authorize such a divestiture of one's title to separate property. 535 S.W.2d 425. We affirm that judgment. This court has jurisdiction because the holding of the court of civil appeals conflicts with the holding in Wilkerson v. Wilkerson, 515 S.W.2d 52 (Tex.Civ.App.1974, no writ).

The trial court granted Virginia Eggemeyer a divorce from Homer Eggemeyer and named her managing conservator of their four minor children. The trial court also awarded Virginia all of the community interest in the small family farm. Homer owned as his separate property an undivided one-third interest in the farm by reason of a gift from his mother. The trial court divested him of that interest and transferred his title to Virginia. The farm was already subject to a 20,101.80 dollar debt owing the Federal Land Bank of Houston as well as a second lien in the amount of 5,200 dollars. In divesting title from Homer, the court created and imposed still another lien against the property in the sum of 10,000 dollars which was ordered payable to Homer by Virginia on July 16, 1982, the date when the youngest of the four children reaches age eighteen. The trial court ordered Homer to pay one hundred dollars per child per month until each reaches eighteen. The court of civil appeals in reversing the divestiture of title followed the well-reasoned decision of Ramirez v. Ramirez, 524 S.W.2d 767 (Tex.Civ.App.1975, no writ), and several previous decisions by this court.

It has long been the law that upon divorce the rents, revenues, and income from a spouse's separate property may be set aside for the support of the minor children. In support of that principle, the court of civil appeals properly cited Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923); Rice v. Rice, 21 Tex. 58 (1858); Fitts v. Fitts, 14 Tex. 443 (1855), and section 14.05(a) of the Texas Family Code. The trial court could have but did not set over the father's separate interest in the farm to the mother for the support of the children during their minority. The court of civil appeals did remand the cause to the trial court to consider such an arrangement. That arrangement would have satisfied the law's command that Homer Eggemeyer must support his minor children without divesting Homer of his title in his separate property.

Article 4639a, enacted in 1935, for the first time authorized divorce courts to inquire into the financial circumstances of the parties and to make orders for child support. Prior to this article's enactment, the Texas courts fashioned a method for enforcing the parents' legal duty to provide child support. The parents' property, whether community or separate, was subjected to a Virginia Eggemeyer states that section 3.63 of the Family Code authorizes the divestiture of Homer's separate realty and its vesting in her because the trial court can make such an order when it is "just and right." The statute is, of course, wholly silent about that matter. The argument is that the earlier article 4638 specifically prohibited the divestiture of title ¹ whereas the Family Code does not. ² From this omission, she argues the legislature intended to change the law and to authorize a divestiture. This is not a correct result for several reasons.

trust or some other form of interim management to insure the payment of child support. Cunningham v. Cunningham, 120 Tex. 491, 40 S.W.2d 46 (1931); Fitts v. Fitts, supra. When the duty of support to the minor was fulfilled, the property was freed from the trust. This method did not divest nor transfer to another person the owner's fee title.

The legislative commentary which accompanied the section when it was being considered by the legislature stated: "This is a codification of present law." McKnight, Commentary on Sec. 3.63, 5 Tex.Tech L.Rev. 337 (1974). The legislature believed it was making no change but was carrying forward the law as it then existed.

Section 14.05(a) of the Family Code supplies additional evidence of the legislature's intent to keep the law unchanged and as it was under article 4638. In construing section 3.63, section 14.05(a) has apparently escaped the consideration of the parties. As appears from the section's second sentence, section 14.05(a) carried forward into the Family Code what was well established by judicial precedent:

§ 14.05. Support of Child

(a) The court may order either or both parents to make periodic payments or a lump-sum payment, or both, for the support of the child until he is 18 years of age in the manner and to the persons specified by the court in the decree. In addition, the court may order a parent obligated to support a child to set aside property to be administered for the support of the child in the manner and by the persons specified by the court in the decree. (Emphasis added.)

The legislature expressly authorized the setting aside of property "to be administered," not divested, and "for the support of the child," but not for the support of a spouse. That was a codification of existing law. Section 3.63 does not expressly authorize the divestiture of separate realty, but section 14.05 does expressly authorize an interim administration of a spouse's property to assure the payment of child support. The reasonable conclusion is the legislature in enacting section 14.05 was codifying existing law.

Other evidence of legislative intent is derived from that part of section 3.63 which declares a divorce decree shall order "a division of the estate of the parties in a manner that the court deems just and right." The only "estate of the parties" is community property. Under former article 4638, we construed "the estate of the parties" to mean community property. Reardon v. Reardon, 359 S.W.2d 329 (Tex.1962); Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299 (1960); Mansfield v. Mansfield, 308 S.W.2d 80 (Tex.Civ.App.1958, writ dism'd). The community estate may logically be the subject of "a division." The statute does not authorize a division of the "estates" of the parties. McKnight, Commentary on Sec. 3.63, 5 Tex.Tech L.Rev. 338 (1974).

A constitutional problem also arises from the trial court's decree that the husband's separate property shall become the separate property of the divorced wife. The nature of property is fixed by the Texas Constitution, and not by what is "just and right." Culpability may, despite no-fault divorce, be a basis for the dissolution of a marriage, but it is no basis for a redefinition of property at variance with the Texas Constitution. Section 15, article XVI of the Texas Constitution declares that a wife's property, owned or claimed by her before marriage, and that acquired afterward by gift, devise or descent shall be the separate property of the wife. ³ By reason of legislation, the husband's property is classified the same way. ⁴ If one spouse's separate property may by a divorce decree be changed from the separate property of the one spouse into the separate property of the other, there is a type of separate property which is not embraced within the constitutional definition of the term. This question has never been confronted by this court, and as Professor McKnight has written: "Thus a constitutional issue that has never been raised needs resolution." McKnight, Matrimonial Property, 27 Sw. L.J. 37, 38 (1973).

This court held in Arnold v. Leonard, 114 Tex. 535, 273 S.W. 799 (1925), and again in Graham v. Franco, 488 S.W.2d 390, 392 (Tex.1972), that the constitutional definition of separate property was intended to be exclusive and that it may not be altered or enlarged by an act of the legislature. See also, Gorman v. Gause, 56 S.W.2d 855 (Tex.Com.App.1933, holding approved); Huie, The Texas Constitutional Definition of the Wife's Separate Property, 35 Tex.L.Rev. 1054, 1057-1058 (1957). This court has also held that the legislature cannot transform one type of constitutionally defined property into another type of property. Williams v. McKnight, 402 S.W.2d 505 (Tex.1966). We said in Hilley v. Hilley, 161 Tex. 569, 342 S.W.2d 565, 567-568 (1961):

All marital property is thus either separate or community. If acquired before marriage by any method, or after marriage by gift, devise or descent, it is separate; otherwise, it is community. . . . Property purchased with separate funds is separate . . . and community property partitioned in the manner provided in Articles 4624a and 881a-23, becomes separate property.

There is another constitutional problem. The protection of one's right to own property is said to be one of the most important purposes of government. That right has been described as fundamental, natural, inherent, inalienable, not derived from the legislature and as preexisting even constitutions. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922); 28 A.L.R. 1321 (1924); 16 Am.Jur.2d, Constitutional Law § 362 (1964). Article I, section 19, of the Texas Constitution ⁵ explains that no citizen of this state shall be deprived of his property except by the due course of the law of the land. The due course that protects citizens requires not only procedural but also substantive due course. See Interpretive Commentary after section 19, art. I, Tex.Const., p. 448, Vernon's Tex.Const. "One person's property may not be taken for the benefit of another private person without a...