Harrington v. Harrington

• Decision Date: 12 March 1970
• Docket Number: No. 15606,15606
• Citation: 451 S.W.2d 797
• Parties: James Rayburn HARRINGTON, Appellant, v. Lillian HARRINGTON, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 797

451 S.W.2d 797

James Rayburn HARRINGTON, Appellant, v. Lillian HARRINGTON, Appellee.

No. 15606.

Court of Civil Appeals of Texas,

Houston (1st Dist.).

March 12, 1970.

Mac L. Bennett, Jr., Normangee; W. T. Bennett, Huntsville, of counsel, for appellant.

W. E. Barron, Navasota; Lawrence, Thornton & Payne, Billy Payne, Bryan, for appellee.

PEDEN, Justice.

The appellant complains of the trial court's disposition of the property of the parties in a divorce case. He does not question the granting of the divorce to the appellee.

This case was tried before the court without a jury. The record consists of a statement of facts and a transcript. The trial court's judgment specifically determines that the parties' various items of property constituted community property and it designates which party takes each item. No other conclusions of law and no findings of fact are contained in the record, and it does not reflect that any were requested.

Appellant's first two points of error are 'no evidence' points. The first complains of the trial court's holding that a certain 36.02 acre tract of land was community property of the parties, and the second asserts that since that tract was appellant's separate property, the trial court lacked authority to divest him of his title to it by awarding it to the appellee.

In deciding 'no evidence' points we may only consider the evidence which tends to support the trial court's finding and must disregard any that leads to a contrary conclusion. Bishop v. Bishop, 359 S.W.2d 869 (Tex.Sup.1962).

It is uncontroverted that the parties were married in 1940 and that neither of them then owned any of the property in which they had any interest when the divorce was granted.

'All property possessed by either spouse during or on dissolution of marriage is presumed to be community property.' Art. 4619, Vernon's Ann. Civil Statutes, which was in effect when this judgment was entered on October 8, 1969.

Title to the 36.02 acre tract was received by J. R. and Lillian Harrington during their marriage by a deed from J. D. Moody which recites that he conveyed it to them in exchange for three tracts, one of which contained 59.6 acres. Appellant's first two points of error depend on his showing that there was no evidence that the 59.6 acre tract was community property.

The appellant introduced in evidence a deed dated December 11, 1968 reciting that his mother, Mrs. Katherine J. Harrington, conveyed to Rayburn Harrington (the appellant) the 59.6 acre tract for and in consideration of the sum of ten dollars and other good and valuable consideration paid by him, receipt of which was acknowledged. The parties were married to each other throughout December of 1968. It is well settled that property conveyed to the husband during a marriage is presumed to belong to the community and that the burden is on the claimant to rebut the presumption.

The appellee testified that she and her husband had purchased the 59.6 acre tract from Mrs. Katherine Harrington by promising to pay her five thousand dollars for it. Property purchased during the marriage on credit is community property unless an agreement exists that the separate estate of one of the vendees only shall be looked to by the vendor for satisfaction of the credit extended. Dillard v . Dillard, 341 S.W.2d 668 (Tex.Civ.App.1960, writ ref. n.r.e.) citing Goodloe v. Williams, 302 S.W.2d 235 (Tex.Civ.App.1957, writ refused).

The appellee's testimony was sufficient evidence to raise a fact issue as to whether the 59.6 acre tract was community property.

We overrule the appellant's first two points of error. It will not be necessary for us to discuss the appellee's contention based on the doctrine of commingling.

The appellant's third point of error alleges that there is no evidence to support the trial court's finding that a 145.1 acre tract (which the trial court awarded to the appellant) was community property because the appellant's father deeded it to him as a gift.

We overrule the point. There is in evidence the deed by which the 145.1 acre tract was conveyed to J. R. Harrington while the parties were married. It recites that he paid ten dollars and other good and valuable consideration for the land. This testimony gives rise to the presumption which we have noticed that the tract was community property.

The appellant's testimony that his father had given the land to him by paying all of the consideration to the grantor for him was not corroborated. The appellee was asked on cross-examination whether she knew when her husband got the 145.1 acres. Her answer was that she did not but that she knew he cashed a lot of bonds. She is entitled to an inference from such answer that he cashed them at or about the time the 145.1 acre tract was acquired.

Appellant's testimony that his father gave him the land was also contradicted by the testimony of his sister. Further, since there is evidence in the record which tends to discredit or impeach his testimony, and he is an interested witness, his testimony does nothing more than raise a fact issue as to how the 145.1 acre tract was acquired. Anchor Casualty Co. v. Bowers, 393 S.W.2d 168 (Tex.Sup.1965); Kirtley v. Kirtley, 417 S.W.2d 847 (Tex.Civ.App.1967, writ dism.).

The appellant's last three points of error were discussed and briefed together, because each of them deals with the same property and the same consideration as to the exercise of discretion by the trial court.

Fourth Point. 'The Trial Court erred in failing to order the dairy and milking equipment and the one lot of fifty (50) head of dairy...