Farrow v. Farrow
Decision Date | 21 March 1951 |
Docket Number | No. 9957,9957 |
Parties | FARROW v. FARROW. |
Court | Texas Court of Appeals |
W. S. Leslie and Francis G. Culhane, both of San Angelo, for appellant.
Upton, Upton, Baker & Griffs, by H. C. Upton, San Angelo, for appellee.
This is a divorce suit in which divorce is no longer an issue.
The complaints made by the appellant, Mrs. Valeria D. Farrow, who obtained the divorce in a nonjury trial, are (1) that the court erred in not holding that all of the property involved was community property on the ground that the separate and community estates of the parties had been so commingled as to destroy identification; (2) that the court erred in ordering alimony allowed her pending appeal payable out of her share of the community estate; and (3) that the court erred in not allowing a fee for her attorneys.
The judgment awarded appellant the sum of $4,500, being $3,000 separate funds owned by her and $1,500 for her interest in the community estate, as well as certain personal property.
Appellant concedes that the judgment, in this respect, is fair and equitable. Her claim for a larger award is based solely upon application of the legal doctrine of commingling.
This is the third divorce between the parties. The last marriage occurred July 2, 1945. At that time appellee had on deposit in various banks the sum of $29,602.76, and also owned certain mineral interests about which there is no contest.
Appellant at such time owned a house and lot which she sold shortly after the marriage for $3,000 cash. This money was deposited in one of appellee's bank accounts.
In making the business transactions hereafter mentioned appellee made withdrawals from, deposits to, and transfers between the various bank accounts, but at no time did the joint bank balance fall below the sum of $3,000.
During the marriage appellee was not employed except for himself. His only business activity during the marriage was buying and selling pieces of real estate, some livestock, and their interim management. These transactions are fully and minutely described and explained in the evidence, principally from the testimony of one of appellants attorneys who, prior to the trial, had been delivered all of appellee's books, records and accounts.
We need not detail this evidence but will only set out its general nature and effect.
Appellee seems to have been a very careful and methodical business man. The details of the several trades which he made are fully and accurately reflected by the deeds, notes, checks and bank accounts. There is no intimation of any sub rosa deals.
His method of operating was plain and simple. He paid cash for property which he bought, the amount of which was shown either by a recitation in the deed or by check on one of his bank accounts. On properties which he sold the cash received was and notes retained were correctly recited in the deeds and the cash was deposited to one of his accounts.
While a piece of property was in appellee's possession it was usually repaired and improved, the expenditures for which are free from doubt. Rents collected from such properties are fully accounted for as well as interest collected on notes.
Actual profits made by appellee in all his trades were about $1,000. Other income to appellee during the marriage was $2,000 bonus for an oil lease on his separate lands and some small collections of rent and interest.
When appellee's assets were inventoried and appraised at the time of trial they had a value of $29,984, excluding the mineral interests, or about $300 more than he had at the time of marriage. This amount, however, included appellant's $3,000. Add the $1,500 awarded appellant for her community interest and it appears that the net result of the marriage to appellant, financially speaking, is a net loss of about $4,200.
These facts, in our opinion, fall far short of those required to enforce a forfeiture of appellee's separate estate under the commingling doctrine, some principles of which will now be stated.
In Andrews v. Brown, Tex.Com.App., 10 S.W.2d 707, 709, cited with approval in Mooers v. Richardson Petroleum Company, 146 Tex. 174, 204 S.W.2d 606, the following appears:
"If a man mixes trust funds with his own,' it is said, 'the whole will be treated as trust property, except so far as he may be able to distinguish what is his own.' * * * That principle seems to have recognition in most, if not all, American jurisdictions. * * *
In 9 Tex.Jur. title Confusion of Goods, Sec. 2, we find these principles stated: ...
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