Halamka v. Halamka, 6-90-015-CV

• Decision Date: 09 October 1990
• Docket Number: No. 6-90-015-CV,6-90-015-CV
• Citation: 799 S.W.2d 351
• Parties: Debora HALAMKA, Appellant, v. Gregory HALAMKA, Appellee.
• Court: Texas Court of Appeals

Page 351

799 S.W.2d 351

Debora HALAMKA, Appellant, v. Gregory HALAMKA, Appellee.

No. 6-90-015-CV.

Court of Appeals of Texas Texarkana.

Oct. 9, 1990.

R. David Benavides, Dallas, for appellant.

Michael P. Setty, Pittsburg, for appellee.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

BLEIL, Justice.

Debora Halamka appeals from a divorce judgment. She complains that the court erred in making its disposition of the property of the parties, that the court's creation of a joint managing conservatorship constituted an abuse of discretion, that the court erred in failing to find tortious conduct by appellee against her, and that there is no evidence to support the court's finding holding her in contempt. We overrule these contentions and affirm the judgment of the trial court.

Gregory and Debora Halamka were married on April 22, 1984, and divorced on October 23, 1989. There are two children of the marriage. Shortly before this marriage, and while Gregory was still married to his previous wife, the parties purchased a house and twenty-four acres in the appellant's name on July 14, 1983. That house was destroyed by fire immediately after appellee filed for divorce.

Appellant argues that there is no evidence, or in the alternative, insufficient evidence, to support the trial court's findings that they purchased this property jointly. In reviewing the evidence for legal and factual sufficiency, we first examine the record for any probative evidence to support the finding, ignoring all contrary evidence. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). If we find some probative evidence, we then test the factual sufficiency of that evidence by examining the entire record to determine whether the finding is clearly wrong and unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 662 (1951).

The appellee testified that they purchased the house together, and the appellant testified that she had contributed half of the down payment. Some evidence supports the trial court's finding that they purchased the property jointly.

We now turn to the question of its sufficiency. In a case tried before the court, findings of fact have the same force and effect as jury answers to special issues and are treated with the same dignity on appellate review. De Benavides v. Warren, 674 S.W.2d 353, 356 (Tex.App.--San Antonio 1984, writ ref'd n.r.e.). The trier of fact may believe one witness and disbelieve another or may resolve inconsistencies in the testimony of any witness. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986).

The appellee testified that he and appellant had purchased the house using $5,000.00 which was given to him by his mother as the down payment. He documented withdrawals in that amount at that time by his mother from her savings account and her payment of $1,500.00 to an abstract company. His mother also testified about the gift of cash to her son. He testified that he had paid the entire down payment on the property with this money and that, before his marriage to appellant and before his divorce to his previous wife was final, he had made all payments on the property. The evidence sufficiently supports the trial court's findings that the Halamkas purchased the property jointly.

Appellant also argues that there is no or insufficient evidence to support the trial court's finding that the property must be sold because it could not be partitioned in kind. She does not contend that the trial court had no power to order a partition, but argues at length that the trial court erred in finding that the property was community. The trial court did not find this property to be community. The trial court listed specific property as community, but found that the remains of the house and the twenty-four acres was separate property jointly purchased prior to marriage.

A partitioning of separate property is not a part of a divorce proceeding. TEX.FAM.CODE ANN. § 3.63 (Vernon Supp.1990) authorizes a division "of the estate of the parties." The "estate" to be divided in a divorce proceeding is the community estate. Duke v. Duke, 605 S.W.2d 408, 411 (Tex.Civ.App.--El Paso 1980, writ dism'd). To hold that the term "estate of the parties" as used in Section 3.63 encompasses separate as well as community property violates the legislative intent in view of the historic use of the phrase as referring only to community property. Cameron v. Cameron, 641 S.W.2d 210, 214 (Tex.1982).

The trial court could, however, divide the property in a partition proceeding, and this would be done under the general laws pertaining to partition suits between co-tenants, not under the laws applicable to a divorce action. On appeal, there is no complaint about the partitioning of the separate property, and there is no prohibition against the trial court's considering a partition action concurrently with the divorce proceeding. Applying the laws of a partition action, the trial court determined that the house and twenty-four acres were incapable of partition in kind and that equity required an immediate partition by sale through a receiver appointed by the court. See TEX.R.CIV.P. 761, 770.

There is no direct testimony that the land was incapable of partition in kind. There was, however, evidence of its location alongside a lake, of the shape of the land, and of the general condition of the property and the remains of the house. The trial court determined that the property should not be divided but that it should be sold and the proceeds divided in order to restore the maximum value of the separate property to its owners. We conclude that the trial court, being in the best position to determine the equities between the parties, had sufficient evidence from which it could determine that the interests of both parties would be best served by selling the property and dividing the proceeds.

The appellant also argues that there is no evidence or insufficient evidence to support the trial court's finding that Alron Investments, Inc. is not a party to this case or a property owned by the community, and that her claims against Alron are not proper in this setting. The company is a corporation which was started more than four years before this marriage. Alron Investments is not a party. Thus, the court did not err in finding that Alron was not a party to this action.

Appellant argues that Alron corporate stock was transferred to appellee during their marriage and that if the property was in fact separate, the community estate was due reimbursement for time and money expended in its maintenance. The shareholders agreed in October 1983 to allow the appellee to exercise his option and purchase 3,200 shares of stock. He also purchased his mother's 3,300 shares for $11,000.00. He testified, and the documentary evidence reflects that he obtained these shares in January 1984, before the marriage. However, in appellee's response to a set of interrogatories answered in connection with his previous divorce, he...