Goldberg v. Goldberg

• Decision Date: 04 June 1965
• Docket Number: No. 16648,16648
• Citation: 392 S.W.2d 168
• Parties: Morton N. GOLDBERG, Appellant, v. Mary Margaret GOLDBERG, Appellee.
• Court: Texas Court of Appeals

Page 168

392 S.W.2d 168

Morton N. GOLDBERG, Appellant, v. Mary Margaret GOLDBERG, Appellee.

No. 16648.

Court of Civil Appeals of Texas, Fort Worth.

June 4, 1965.

Brantley Pringle, Fort Worth, for appellant.

Tilley, Hyder & Law, Thos. H. Law and Robert M. Randolph, Fort Worth, for appellee.

MASSEY, Chief Justice.

Plaintiff Mary Margaret Goldberg sued defendant Morton N. Goldberg for divorce. Defendant filed his cross-action for like relief against plaintiff. Following a trial before the court without a jury judgment was rendered for plaintiff. The defendant appealed. Plaintiff filed a cross-appeal.

Judgment affirmed.

Defendant's complaint is that there was error in the judgment in respect to attorney's fees adjudged against him, and in the amount awarded. Further, his complaint is of the trial court's award to plaintiff of: a one-half interest in a promissory note received on sale of what he claims was his separate interest in certain property, an amount in dollars representing one-half the cash surrender value of his life insurance policies, and an amount in dollars representing one-half the value of his clinic assets.

It is obvious from the language of the judgment that except for the attorney's fees, the court intended to make a 'split down the middle' of the community property and/or the value thereof, awarding one-half to each party. The court intended to give each party what was his or her separate property. In any event, the court was acquainted with the property with which it dealt, whether its character constituted community or separate property. Additionally, the court intended that the defendant pay all the reasonable and necessary attorney's fees of plaintiff, found in the amount of $7,500.00. Judgment for the attorney's fees amount was awarded directly to the 'law firm of Tilley, Hyder & Law.'

Relative to the property award, predicate for defendant's complaint lies in his contention that such was his personal property. No part of the property was real estate. Art. 4638, Vernon's Ann.Tex.Civ.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 defendant (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 defendant 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. He does, however, contend that the award to the wife in effect granted permanent alimony. We believe the contention is spurious and hold that it has no merit. Plaintiff was awarded nothing in the nature of property necessarily deliverable by defendant as property he will or might acquire subsequent to the divorce. The award, as of property, is a portion of such existent at time the divorce was granted. In no sense did the award include alimony to accrue subsequently.

We hold against the defendant's contention on the matter of attorney's fees. Evidence thereon introduced before the court, without objection from the defendant, adequately supprts the amount awarded. Such was awarded direct to the law firm of Tilley, Hyder and Law, and in this respect the judgment was unusual, but under the circumstances of the case would not amount to reversible error. The record clearly reflects that the law firm represented the plaintiff from the beginning and that no other attorney participated in her behalf. Two members of the firm, Thomas H. Law and Robert M. Randolph, submitted themselves to the jurisdiction of the court as parties in the case during the pendency of the litigation. Occasion therefor was in connection with their request for injunctive relief against the defendant and another.

Plaintiff's petition alleged that she had employed said firm as attorneys to represent her in the divorce proceeding and had contracted to pay them a reasonable fee therefor, that such services were necessary, and that she had no separate property or income with which to pay the fee. The prayer of the petition omitted reference to an attorney's fee, but contained a prayer for general relief. In that part of the judgment of the court antecedent to the portion containing the order and decree the following language appears: 'The law firm of Tilley, Hyder & Law, attorneys for Plaintiff, should be awarded attorneys' fees in the amount of $7,500.00, * * * paid by Defendant.' Subsequent thereto the judgment provided: 'It is further ORDERED, ADJUDGED and DECREED that the law firm of Tilley, Hyder & Law have and recover from Defendant the sum of $7,500.00 as reasonable attorneys' fees for their services herein.'

As between plaintiff and defendant, at least, the issue upon the matter of attorney's fees was before the court as tried without objection and with the consent of the parties. Texas Rules of Civil Procedure, Rule 67, 'Amendments to Conform to Issues Tried Without Objection'. Under this theory the right of the plaintiff to attorney's fees was established in the evidence and the defendant's liability therefor in the reasonable amount found by the court was likewise established. Considered as error the entry of judgment decreeing that defendant should pay the attorney's fees direct to plaintiff's attorneys, rather than to plaintiff, would be an error of which the plaintiff, not the defendant, might have cause for complaint. She does not complain. Had there existed any dispute between plaintiff and her attorneys relative to which should have the right to receive judgment for attorney's fees, the matter could be remanded to the trial court to render be proper judgment in such respect. In such hypothetical dispute the defendant would have no interest, for with the amount of his...