Grimsley v. Grimsley, 1927

• Decision Date: 08 April 1982
• Docket Number: No. 1927,1927
• Citation: 632 S.W.2d 174
• Parties: John Crofford GRIMSLEY, Appellant, v. Patricia McLendon GRIMSLEY, Appellee.
• Court: Texas Court of Appeals

Page 174

632 S.W.2d 174

John Crofford GRIMSLEY, Appellant, v. Patricia McLendon GRIMSLEY, Appellee.

No. 1927.

Court of Appeals of Texas, Corpus Christi.

April 8, 1982.

Kenneth R. Hannam, Mahoney, Shaffer, Hatch & Layton, Corpus Christi, for appellant.

C. Gerard Miller, Corpus Christi, for appellee.

Before NYE, C. J., and YOUNG and GONZALEZ, JJ.

OPINION

GONZALEZ, Justice.

This is a divorce case. After trial before the court, judgment was entered granting a divorce and awarding to wife-appellee title to a house that was purchased after the marriage with proceeds of the sale of property that wife claimed was given to her by her husband-appellant prior to the marriage. We reverse and render.

In August 1978, appellant and appellee met. On October 2, 1978, appellant proposed marriage which proposal was accepted by appellee on October 10, 1978. Thereafter on October 18, 1978, appellant wrote the following letter to appellee.

"Dear Pat and intended wife,

In appreciation of your past love and affection, your present love and affection, and your future love and affection I would be extremely happy to have you accept all of the items I have listed on my schedule of personal property enclosed with this letter which consists of all of my personal possession prior to our marriage so that in the event of my death all of this will belong to you for you to do with as you wish.

Thank you Pat for being my friend and future wife.

I love you,

John"

SCHEDULE OF PERSONAL PROPERTY

Stereo System: Panasonic AM-FM stereo

Realistic turn table

Pioneer reel to reel tape deck

Akai 65-D cassette tape deck

Craig 8-track tape deck

Approximately 140 cassettes (recorded)

Approximately 10 Magell reel to reel tapes recorded

Approximately 50 Magell (90 minutes each side) blank tapes

Approximately 50 blank 8-track tapes

One stereo cabinet

Numerous albums-approximately 100 (one hundred)

Two Sterling speakers

Two smaller speakers

One Mediterranean sofa & chair

Two end tables w/two ginger-jar lamps

One Motorola color T.V.

One etagere

One recliner

One breakfast nook w/chair

One pair of binoculars

One coffee table

2000 shares of Energy Surveys stock consisting of the following:

1000 shares of S.I.I. stock Savings account in Hub City Bank in the name of Energy Survey, account no. unknown

First mortgage on property on Breaux Bridge Highway, Lafayette, Louisiana payable $438x to Energy Surveys for 15 years

Energy Survey Funds in Hub City Bank and Trust Co. checking account no. 02-3637-3

1976 Chevrolet Caprice-Energy Survey is owed $2025 as of the date of this schedule.

One two (2) bedroom residence on Odile St., Lafayette, La., valued at $25,000-owe $10,000x

All monies in E.M.C.D. savings plan

All monies owing from Helmer Directional Drlg. profit sharing

All contents of safety deposit box including $250 worth of silver coins"

No deed or formal transfers of the real estate or stock were ever effected.

The parties were married on November 18, 1978. This was a second marriage for both of them. At the time of the marriage, appellant was 50 years old and besides being the sole owner of Energy Surveys Co., he was an employee of a drilling company. Appellee was a 39-year-old school teacher with a Master's Degree who also was a part-time real estate salesperson. After the marriage, appellant moved into the rent house appellee was living in with her two little boys from the prior marriage.

Approximately three or four months after the marriage, the parties purchased a home in Corpus Christi Country Club Estates for Ninety Thousand Dollars ($90,000.00). They made a down payment of Sixty Two Thousand One Hundred Forty Seven and 94/100 Dollars ($62,147.94) and assumed a loan for the balance. The money for the down payment was traced, and it was undisputed that this consideration came from the sale of the property appellant owned before the marriage to wit:

(1) Twenty Thousand Dollars ($20,000.00) cash from Energy Surveys Inc. savings account.

(2) Thirty Thousand Dollars ($30,000.00) cash transferred from Energy Surveys Inc. to appellant following a loan to Energy Surveys Inc. of Thirty Thousand Dollars ($30,000.00) by Citizens State Bank in Corpus Christi. The collateral for the Thirty Thousand Dollars ($30,000.00) loan was One Thousand (1,000) shares of Smith International Industries stock which appellant owned.

(3) Thirteen Thousand Five Hundred and 08/100 Dollars ($13,500.08) cash which is the net proceeds from the sale of appellant's house in Louisiana.

All of these sums were deposited by appellant into a joint checking account at the Citizens State Bank in Corpus Christi during the month of February 1979. All of these transfers were made by appellant. At the time of the transfers, appellee had no authority or ability to transfer or encumber these funds nor to sell or convey appellant's property in Louisiana. Appellee wrote the check on the parties' joint checking account which made the down payment for the Country Club Estates house. However, both appellant and appellee were named grantees to the deed on said house.

After the purchase of the house, the parties started having marital problems. Appellant moved out. There was a brief reconciliation but again appellant moved out and the case was tried within twenty four months from the wedding date. During the marriage, the parties actually lived together not more than ten months and only seven months in the Country Club Estates home. The court divided the property as follows: appellee was awarded as her sole and separate property the home on Country Club Estates, all escrow funds held by the mortgage company for payment of insurance, taxes and maintenance charges on the home and her community interest in the house; a property located at 717 Ponder Street, all oil and gas mineral interest owned by her or in her name and the following items of personal property; all household furnishings, appliances, fixtures, wearing apparel, jewelry and other personal property in her possession or subject to her control, all sums of cash in her possession or in her control including Nine Thousand Dollars ($9,000.00) in the Teacher's Credit Union, all life insurance policies and retirement benefits arising out of her employment, a 1978 Cadillac automobile and a 1977 Oldsmobile Cutlass.

Appellant was awarded all household furnishings, appliances, fixtures, wearing apparel, jewelry and other personal property in his possession or subject to his control including but not limited to Two Thousand Four Hundred (2,400) shares of Energy Surveys stock, a 1978 Chevrolet automobile, two individual retirement accounts, all policies of life insurance insuring his life and all pensions, retirement benefits and other benefits arising out of his employment, a power table saw, a Bulova quartz watch, a crystal candy dish and one Jefferson and buffalo nickel coin collection and a lawnmower. Appellant was also ordered to pay a Fifty Thousand Dollar ($50,000.00) promissory note signed individually to Energy Surveys Inc. and a One Thousand Five Hundred Dollar ($1,500.00) note to Citizens State Bank.

The trial court filed findings of fact ¹ and conclusions of law ² and we also have a complete statement of facts containing all oral and written testimony introduced in the trial.

Appellant, in twelve points of error, contends that the trial court committed error in finding a gift of all of his personal property prior to the marriage because there was no evidence of a gift and there was also insufficient evidence or such finding is against the great weight and preponderance of the evidence.

Since the findings of fact regarding delivery filed by the trial court are without support in the evidence, we will pass upon appellant's points of error without regard thereto. See, Block v. Waters, 564 S.W.2d 113, 115 (Tex.Civ.App.-Beaumont 1978, writ ref'd).

The character of title to property as to whether it is separate or community property is generally determined as of the date it is vested. Spears, Marital Rights in Texas, § 392 (4th Ed. 1961). The question then is whether appellant made a gift of all of his assets to appellee before the marriage, thus making the down payment come from her separate property and giving her a separate interest in the home at the time it was purchased.

The well-established rule of law regarding gifts is that three elements are necessary to establish the existence of a gift: They are: (1) intent to make a gift; (2) delivery of the property, and (3) acceptance of the property. M. T. Harrington v. Bailey, 351 S.W.2d 946 (Tex.Civ.App.-Waco 1961); Sumaruk v. Todd, 560 S.W.2d 141, 146 (Tex.Civ.App.-Tyler 1977, no writ). One who is claiming the gift has the burden of proof.

Delivery of the property should be such that all dominion and control over the property is released by the owner. The rule has been stated as follows:

"Among the indispensible conditions of the valid gift and the intention of the donor to absolutely and irrevocably divest himself of the title, dominion and control of the subject of the gift and the praesenti at the very time he undertakes to make the gift The irrevocable transfer of the present title, dominion, and control of the thing given to the donee, so that the donor can exercise no further act of the dominion or control over it.

A mere intention to make a gift, however clearly expressed, which has not been carried into effect, amounts to nothing, and enforces no rights in the subject matter of the proposed gift upon the intended donee. The intention must be effective by complete and unconditional delivery." Harmon v. Schmitz, 39 S.W.2d 587, 589 (Tex.Com.App.-1931). (emphasis added)

Since there were no documents to indicate a formal transfer, endorsement or assignment of the property listed on the schedule, the only evidence of a gift prior to the marriage is the letter and the conduct of the parties as shown in the evidence. Appellee tried the case on the theory that...