Hayes v. Hayes

• Decision Date: 16 April 1964
• Docket Number: No. 21,21
• Citation: 378 S.W.2d 375
• Parties: John E. HAYES, Appellant, v. Loula M. HAYES, Appellee.
• Court: Texas Court of Appeals

Page 375

378 S.W.2d 375

John E. HAYES, Appellant, v. Loula M. HAYES, Appellee.

No. 21.

Court of Civil Appeals of Texas, Corpus Christi.

April 16, 1964.

Rehearing Denied May 7, 1964.

Jackson Littleton, of Kelley, Looney, McLean & Littleton, Edinburg, Willis G. Perkin of Alamia, Perkin, & Lemen, Pharr, for appellant.

Neal King, of Hill, King & McKeithan, Mission, for appellee.

SHARPE, Justice.

This appeal by John E. Hayes, plaintiff below, involves that portion of the judgment which adjudicated the property rights of the parties upon the granting of a divorce to appellant from Loula M. Hayes, defendant below and appellee here.

The divorce issues were severed and tried before Honorable Magus F. Smith, the regular judge of the 93rd District Court, and a jury, resulting in interlocutory decree of divorce on March 22, 1963. Upon agreement of the parties Honorable S. N. McWhorter, a retired district judge, was specially assigned to try the property issues. After non-jury trial, final judgment was rendered on July 18, 1963, granting appellant a divorce, dividing the properties and otherwise settling the rights and liabilities in question.

Appellant and appellee were married on May 14, 1960, and finally separated on November 6, 1962. Prior to said marriage appellant had been married two times and appellee three. Each party was past middle age and owned separate properties at the time of their marriage. The trial court appointed an auditor to investigate and report various accounts and other matters concerning the properties belonging to the parties. Each party filed exceptions to the report of the auditor and he was one of the principal witnesses upon trial of the property issues.

Appellant, by five points of error, contends that the trial court erred in excluding a pre-marital contract between the parties, in making division of their properties and in fixing their rights and liabilities in connection therewith. Appellee contends that the trial judge correctly determined such property matters, but, by cross-assignment urges that the amount of attorneys fees awarded to her is inadequate as a matter of law. The divorce issues are not involved in this appeal.

The judgment of the trial court will be briefly summarized.

Appellant was awarded or allowed to retain the following: (1) Real estate situated in McAllen, Texas, together with a business building, furniture and fixtures used in his accounting business, subject to certain indebtedness. This property belonged to appellant prior to the marriage in question and substantial expenditures were made in connection with it during the marriage, the details of which will be discussed later in this opinion; (2) a 1960 Cadillac automobile, which was clear of indebtedness at the time the property issues were tried; (3) household furniture owned by appellant prior to the marriage; and (4) a promissory note executed by Darrell Smith in the amount of $11,365.00, for a 20% share of appellant's accounting business. The judgment reflects that the parties agreed such Smith note would be set aside to appellant and that appellee would have the right to collect a contingent fee which Mrs. Farwell, appellee's sister, might have to pay appellant for accounting services rendered, depending upon the outcome of litigation. The Smith note and the Farwell contingent fee, therefore, need not be further discussed. The final judgment required appellant to pay an indebtedness of $3,225.19, secured by lien against a 1962 Cadillac awarded to appellee, one-half of the indebtedness in the amount of $4,298.81 owing to the San Juan Bank, which was secured by household furniture, three notes to banks aggregating the amount of $11,500.00, and an indebtedness to Joe Norman, Jr., of $6,250.00, against which appellant claimed a set-off. Appellant was also required to pay $7,500.00 to appellee to adjust equities, and $1,500.00 for appellee's attorney fees.

Appellee was awarded or allowed to retain the following: (1) Real estate known as the 'Home Place' together with the improvements thereon, subject to indebtedness and lien placed against said property during the marriage, which land had belonged to appellee prior to the instant marriage, and upon which substantial expenditures had been made for improvements during the marriage, the details of which will be hereinafter discussed; (2) a 1962 Cadillac automobile, against which there was an indebtedness secured by lien in the amount of $3,225.19, which appellant was required to pay; (3) household furniture, except that owned by appellant prior to the marriage, subject to payment of one-half the indebtedness in the amount of $4,298.81 to San Juan Bank; (4) the Farwell contingent fee; (5) $7,500.00 to adjust equities; and (6) attorneys fees of $1,500.00.

The record shows in several instances that benefits accrued to the parties, financial and otherwise, not specifically mentioned in the judgment, and which the trial judge could properly have considered in making the property division.

The opinion will be shortened and disposition of this appeal will be facilitated by considering appellant's points in the following order: Point number three, relating to the alleged error in excluding a pre-nuptial agreement; point number two, relating to the alleged error in connection with the 'Home Place'; point number five, relating to the alleged error concerning the 1962 Cadillac automobile and the indebtedness against it; and points numbers one, four and six, grouped for discussion, relating to the alleged errors of the trial court in making the over-all division of the properties, in requiring appellant to pay virtually all of the debts, and in making an allowance of $7,500.00, to appellee in order to adjust equities.

Findings of fact and conclusions of law were not requested or filed. The judgment, therefore, will be reviewed under well-known rules applicable to such situation.

By his point number three appellant contends that the trial court erred in failing to admit in evidence or, at least to consider for limited purposes, a pre-nuptial contract between the parties in which it was agreed that the separate estate of a party making a contribution would be entitled to reimbursement.

The trial court properly excluded the pre-nuptial contract because it was not witnessed as is required by law. Article 4611, Vernon's Ann.Tex.Civ.St.; Ellington v. Ellington, 29 Tex. 2 (1867); Hickman v. Hickman, 10 S.W.2d 738 (Tex.Civ.App., 1928, n. w. h.); Hartman v. Hartman, 32 S.W.2d 233 (Tex.Civ.App., 1930, writ dism.); Lieber v. Mercantile National Bank at Dallas, 331 S.W.2d 463 (Tex.Civ.App., 1960, wr. ref. n. r. e.). Even if admitted or considered the said pre-nuptial contract would not have precluded appellant from making valid gifts to appellee during their marriage, which we hereafter hold that he did in connection with the 'Home Place' and the 1962 Cadillac automobile. It further appears that the trial court could have found that such contract would not have substantially affected the disposition of the properties made by it, if the same had been admitted or considered.

By his point number two appellant contends that the trial court erred in failing to allow appellant a contribution by reason of his expenditure of many thousands of dollars for improvements on the 'Home Place' on North Ware Road, McAllen, Texas, which expenditures undisputedly enhanced the value of such property, such reimbursement being proper under the intent shown by the pre-nuptial contract as well as by the settleed rules of law and equity. Appellee contends that the 'Home Place' was properly awarded to her as her separate property without allowing appellant any contribution for his expenditures because, on May 7, 1962, appellant reconveyed the property to her and all of the substantial improvements had been made prior to such date.

The 'Home Place' property is generally described as 15.23 acres out of lots 1 & 2, Beatty Subdivision, Hidalgo County, Texas. Appellee owned this tract of land prior to May 14, 1960, the date of her marriage to appellant. Shortly prior to such marriage appellee conveyed said property to a trustee, who, within a few days after the marriage, conveyed it to both of the parties by special warranty deed. Thereafter, and prior to May 7, 1962, substantial improvements were made at a cost of approximately $27,593.73. The record further shows that during the marriage from May 7, 1962 to March 22, 1963, the amount of $1,564.15 was spent on the 'Home Place'. This amount will be discussed hereafter under appellant's point number one. At the time of the marriage there was an indebtedness, secured by lien, against the said property in the amount of $5,731.62. After the marriaged said indebtedness was paid off and a new loan secured by deed of trust lien was arranged in the amount of $20,000.00. On May 7, 1962, after the parties had reconciled following a separation, appellant conveyed said property by warranty deed to appellee as her separate property, and she assumed the then outstanding indebtedness against it in the amount of $18,909.89. On the trial of the case counsel for appellant expressly refused to question the validity of said conveyance to appellee.

We hold that the trial court properly awarded the said 'Home Place' tract and improvements to appellee as her separate property. The deed from appellant to appellee made the property conveyed her separate property. It divested appellant of all his interest therein and vested full legal title in appellee. Hodge v. Ellis, 154 Tex. 341, 277 S.W.2d 900 (1955); Taylor v. Hollingsworth, 142 Tex. 158, 176 S.W.2d 733 (1943); Davis v. Davis, 141 Tex. 613, 175 S.W.2d 226 (1943); Alexander v. Alexander, 373 S.W.2d 800 (Tex.Civ.App., 1964, n. w. h.); McAdams v. Ogletree, 348 S.W.2d 75 (Tex.Civ.App., 1961, wr. ref. n. r. e.); Pevehouse v. Pevehouse, 304 S.W.2d 770 (Tex.Civ.App., 1957, wr. dism.). Appellant's point number two is...