Hailey v. Hailey, A-7340

• Decision Date: 13 January 1960
• Docket Number: No. A-7340,A-7340
• Parties: Ray HAILEY, Petitioner, v. Frances HAILEY, Respondent.
• Court: Texas Supreme Court

Page 299

331 S.W.2d 299

160 Tex. 372

Ray HAILEY, Petitioner, v. Frances HAILEY, Respondent.

No. A-7340.

Supreme Court of Texas.

Jan. 13, 1960.

Rehearing Denied Feb. 17, 1960.

Hackney & Crawford, Brownfield, for petitioner.

Calloway Huffaker, Tahoka, for respondent.

GRIFFIN, Justice.

This is a suit brought in the District Court of Terry County, Texas, by Ray Hailey, as plaintiff, against Frances Hailey, as defendant, for a divorce, for division of the parties' community property and for custody of the minor daughter, aged 4. The parties will be designated as they were in the trial court. Defendant filed a cross-action against plaintiff for divorce, for division of the community property and for custody of the minor child. The trial court, without a jury, at the end of the trial entered judgment for plaintiff on his petition for divorce and denied defendant a divorce on her cross-action. The court awarded custody of the minor child to plaintiff and divided the community property, awarding Lot 16, Block 22, original town of Brownfield, Texas, to plaintiff, and Lot 5, Block 2, Colonial Heights Addition to the City of Brownfield, Texas, to defendant. Defendant appealed from that judgment in toto.

The Court of Civil Appeals affirmed the judgment of the trial court granting plaintiff a divorce, awarding custody of the minor child to plaintiff, and the court's division of the community property between the parties, but held it was error in violation of Art. 4638, Vernon's Annotated Texas Civil Statutes, to divide the estate so as to award one lot to each party. The Court of Civil Appeals reversed that part of the judgment of the trial court segregating the title and rendered judgment that the title of the property is not divested out of either party. 322 S.W.2d 575. Both parties applied for a writ of error to this Court and both applications were granted.

Under the provision of Art. 1821, Vernon's Annotated Texas Civil Statutes, the judgment of the Court of Civil Appeals is final in divorce suits, and this Court would have no jurisdiction except there be a conflict of decisions or disagreement of the judges of the Courts of Civil Appeals on questions of law material to the decision. Such conflict of decisions is the ground urged by plaintiff to give this Court jurisdiction, and this Court determines that there is a conflict between the case at bar and the decisions in Carle v. Carle, 1951, 149 Tex. 469, 234 S.W.2d 1002, and Puckett v. Puckett, Tex.Civ.App.1947, 205 s.W.2d 124, no writ history, by the Texarkana Court of Civil Appeals, and, therefore, this court has jurisdiction to decide this cause. Art. 1728, Vernon's Annotated Texas Civil Statutes.

The cases as to whether or not a court in a divorce cause may divide the community property so as to set aside to one party a particular piece of property to the exclusion of the other are in hopeless conflict and confusion. Plaintiff relies on the cases of Fitts v. Fitts, 1855, 14 Tex. 443; Carle v. Carle, Tex.Civ.App.1950, 234 S.W.2d 907; 149 Tex. 469, 234 S.W.2d 1002; Young v. Young, Tex.Civ.App.1893, 23 S.W. 83, no writ history; Puckett v. Puckett, supra; Walker v. Walker, Tex.Civ.App.1950, 231 S.W.2d 905, no writ history; Mansfield v. Mansfield, Tex.Civ.App.1957, 308 S.W.2d 80, wr. dism., w. o. j. to sustain the trial court's action in dividing the community lots.

The defendant and the Court of Civil Appeals rely on Tiemann v. Tiemann, 1871, 34 Tex. 522; Lewis v. Lewis, Tex.Civ.App.1944, 179 S.W.2d 594, no writ history; Donias v. Quintero, Tex.Civ.App.1949, 227 S.W.2d 252; Swanson v. Swanson, tex.Civ.App.1949, 229 S.W.2d 843, no writ history; and Maisel v. Maisel, Tex.Civ.App.1958, 312 S.W.2d 679, and numerous other cases with similar holdings to sustain the Court of Civil Appeals. Any atempt to distinguish or reconcile the above cases would be a waste o time, make this opinion too long, and add nothing of value so we will not undertake that task.

Art. 4638, Vernon's Annotated Texas Civil Statutes, reads as follows:

'The court pronouncing a decree of divorce shall also decree and order, a division of the estate of the parties in such a way as the court shall deem just and right, having due regard to the rights of each party and their children, of any. Nothing herein shall be construed to compel either party to divest himself or herself of the title to real estate.'

In construing this Article, this Court, in the case of Ex parte Scott, 1939, 133 Tex. 1, 123 S.W.2d 306, 313, said:

'By the provisions of Article 4638, R.C.S., 1925, the court pronouncing the decree of divorce has jurisdiction, in the divorce action, to decree a division of the estate of the parties in such a way as the court may deem just and right, having due regard for the rights of each party and their children, if any. This statute does not allow the divorce court to compel either party to the divorce action to divest himself or herself of the title to realty. As we construe it, Article 4638, supra, is mandatory in its provisions, and, under its terms, thje District Court of Dallas County, as between this husband and this wife, must decree a division of the property. Also, under this statute the division of the property does not have to be equal. The court can be controlled by what the facts may lead him to believe is just and right. * * *'

The case of Mansfield v. Mansfield, supra, upheld a trial court's judgment in a divorce action dividing community lots between the parties. The El Paso Court approved the following holding from Puckett v. Puckett, Tex.Civ.App.1947, 205 S.W.2d 124, 125, no writ history, as follows: '* * * In partitioning the community estate, either in kind or by a sale and partition of the proceeds, there is no divesting of title to such real estate within the meaning of the above statute; (Article 4638) it is purely a division of realty as between those who have title thereto. * * *' The trial court is required, under Art. 4638, to decree and order a division of he estate of the parties in such a way as the court shall deem just and right, having due regard to the rights of each party and their children, if any. Nothing therein shall be construed to compel either party to divest himself or herself of the title to real estate. In other words, the statute puts the duty on the trial court to make a partition of the community property whenever the pleadings of either party show the existence of such property. The trial court shall consider all the facts and circumstances shown by the evidence and then partition the community property, both personal and real estate, in such manner as may be just and right. The trial court's discretion in so partitioning the property is subject to review by the appellate courts. The trial court has the duty to determine if the community property is subject to partition in kind. If he determines that it is then he shall equitably divide the community property between the parties. If it is not subject to partition in kind the trial court can appoint a receiver and order so much of the property as is incapable of partition to be sold and the proceeds divided between the parties in such portions as, in the discretion of the court, may be a just, fair and equitable partition, having in mind the rights of the parties and the children. , 15A TexJur. 751 et seq., § 149 et seq. We approve the holding in the Mansfield case and those following that rule. It follows...