Harris v. Ventura, 8194

• Decision Date: 08 March 1979
• Docket Number: No. 8194,8194
• Citation: 582 S.W.2d 853
• Parties: Francelle Ventura HARRIS, Individually and as Independent Executrix of the Estate of George Ventura, Appellants, v. Angeline VENTURA, Appellee.
• Court: Texas Court of Appeals

Page 853

582 S.W.2d 853

Francelle Ventura HARRIS, Individually and as Independent Executrix of the Estate of George Ventura, Appellants, v. Angeline VENTURA, Appellee.

No. 8194.

Court of Civil Appeals of Texas, Beaumont.

March 8, 1979.

Rehearing Denied April 6, 1979.

John Delaney, Bryan, for appellants.

Kent A. Caperton, Bryan, for appellee.

CLAYTON, Justice.

Appellee, plaintiff below, Angeline Ventura, brought this suit against Francelle Ventura Harris, individually and as Independent Executrix of the estate of George Ventura, deceased, to recover her community share of certain property included in the estate of George Ventura, her deceased husband. Appellants, Francelle Ventura Harris and George Paula Ventura, are the children of the decedent by a prior marriage. Appellants defended on the ground that their father's will left them his entire estate, and that the property claimed by appellee had constituted their father's separate estate. This suit is to determine the character of property included in the estate of the decedent and to determine the respective rights and duties of a surviving widow and children by a previous marriage. The properties involved in this appeal are certain certificates of deposit, bank checking and savings accounts.

Trial was to the court and findings of fact and conclusions of law were filed, and judgment was entered for appellee in the sum of $2,229.95 and decreed that appellants were vested with fee simple title to the real property owned and occupied as his homestead, "but that with respect to such property (appellee) shall have the obligation to . . . pay . . . all real property taxes assessed against such property and all expenses of upkeep and maintenance . . . for so long as she occupies such property as her homestead."

George Ventura and appellee, Angeline Ventura, were married in 1968. George Ventura died on January 1, 1975, leaving a will devising all of his property to his children, appellants. The will was admitted to probate, and Francelle Harris was appointed and qualified as independent executrix.

Among the items of property possessed by George and Angeline Ventura on January 1, 1975, were the following:

Appellants in their first two points urge error by the trial court in finding that appellants failed to overcome the community property presumption as to $4,997.51 on deposit in a checking account in the University National Bank. Appellants argue that the evidence conclusively established that the maximum possible amount of community funds contained in the account and all other funds were separate property, and that such a finding is contrary to the great weight and preponderance of the evidence.

The trial court found that this account consisted of a mixture of George Ventura's separate property, some community property, and certain funds of unexplained origin. The court concluded that appellants had failed to overcome the community property presumption as to this account and awarded appellee a one-half community share in the amount of.$2,498.76.

The applicable rules of law are well established. The Supreme Court in McKinley v. McKinley, 496 S.W.2d 540 (Tex.1973), reiterates the basic presumption, as stated in Tarver v. Tarver, 394 S.W.2d 780 (Tex.1965), that all property possessed by a husband and wife when their marriage is dissolved is their community property. This presumption is clearly stated in Tex.Fam.Code Ann. § 5.02 (Vernon 1975). It is the general rule that to discharge the burden imposed by the statute a spouse, or someone claiming through a spouse, must trace and clearly identify property claimed as separate property. See Tarver v. Tarver, supra; Wilson v. Wilson, 145 Tex. 607, 201 S.W.2d 226 (1947); Chapman v. Allen, 15 Tex. 278, 284 (1855). It is further well settled that when the evidence shows that separate and community properties have been so commingled as to defy resegregation and identification, the burden is not discharged, and the statutory presumption prevails. Tarver v. Tarver, supra; Hodge v. Ellis, 154 Tex. 341, 277 S.W.2d 900 (1955).

The testimony with reference to this account is clearly outlined, step by step, beginning with the amount in the account on April 12, 1974, and traced each deposit and withdrawal. Such facts appear in the record and have not been challenged in any manner by appellee. Therefore, they are accepted as being correct. Tex.R.Civ.P. 419. On April 12, 1974, the account balance was $460.15. It is presumed that this sum was community property. The next deposit was in the sum of $7,825.79 on April 16. This deposit was admitted to have been the proceeds of the sale of real property owned by George Ventura prior to his marriage to appellee. The next deposit was $1,174.62 on July 2. This included the sum of $878.63 which was admittedly inherited by deceased. Other deposits made between April 12, 1974, and January 1, 1975, were deposits of interest and that the total of the interest deposits and the beginning balance was $1,339.63; that all other money placed in the account was George Ventura's separate property. This testimony given as to the deposits in the account was not disputed or contradicted. There was a total amount of withdrawals during this same period in the amount of $5,046.54.

There was no attempt made to contradict any of the above facts. Appellants have clearly traced and identified the funds in this checking account in the sum of $3,657.88 as deceased's separate property. Thus, appellants met the burden of tracing their father's separate property as it was received and retained in the account. The separate funds did not lose their identity, although separate and community properties were commingled, since the trial court was able from the evidence to determine accurately the interest of each estate. Lindsey v. Lindsey, 564 S.W.2d 143 (Tex.Civ.App. Austin 1978, no writ); In re Marriage of Tandy, 532 S.W.2d 714, 717 (Tex.Civ.App. Amarillo 1976, no writ); Newland v. Newland, 529 S.W.2d 105 (Tex.Civ.App. Fort Worth 1975, writ dism'd).

However, where the checking account contains both community and separate funds, it is presumed that community funds are drawn out first. See Horlock v. Horlock, 533 S.W.2d 52, 58 (Tex.Civ.App. Houston (14th Dist.) 1975, writ dism'd); Sibley v. Sibley, 286 S.W.2d 657 (Tex.Civ.App. Dallas 1955, writ dism'd). Applying this rule, the $460.15 beginning balance was withdrawn after the first withdrawal, thereby establishing the sum of $4,118.03 as the separate funds of deceased, and appellee's community interest in the balance of the checking account would be $439.74 instead of.$2,498.76 found by the trial court.

Appellants urge a "no evidence" point in the finding by the trial court that appellee overcame the community property presumption as to a bank savings account in the amount of $687.52 and a bank checking account in the amount of $466.35. These two accounts were in the City National Bank of Bryan. The only evidence in the record with reference to these accounts was that the source of the funds was "(s)ome was gifts and some may have been my social security check. I don't remember." We agree with appellants that such testimony is no more than a "scintilla" of proof of the vital fact needed to be provided; i. e., that the accounts consisted of money acquired in one of the ways recognized to create separate property. Evidence is a mere scintilla, and legally no evidence, "when the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence." Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752, 755 (Tex.1970); Calvert, " 'No Evidence' and 'Insufficient Evidence' Points of Error," 38 Texas L.Rev. 361, 363 (1960). This point is sustained. Accordingly, appellee would be entitled to her community...