Hedtke v. Hedtke

• Decision Date: 14 February 1923
• Docket Number: (No. 3332.)
• Citation: 248 S.W. 21
• Parties: HEDTKE v. HEDTKE.
• Court: Texas Supreme Court

Page 21

248 S.W. 21

HEDTKE v. HEDTKE.

(No. 3332.)

Supreme Court of Texas.

February 14, 1923.

Certified Questions from Court of Civil Appeals of First Supreme Judicial District.

Suit for divorce by Lena Hedtke against J. G. Hedtke. From judgment for plaintiff, defendant appealed to the Court of Civil Appeals, which certifies questions. Questions answered.

J. F. Murray, of Runge, and Davidson & Bailey, of Cuero, for appellant.

Crain & Hartman, of Cuero, for appellee.

GREENWOOD, J.

Questions certified from the Court of Civil Appeals of the First Supreme Judicial District of Texas in an appeal from the district court of DeWitt county. The certificate of the honorable Court of Civil Appeals is as follows:

"In the above styled and numbered cause, now pending in this court on appeal from the district court of DeWitt county, it being a suit for divorce, division of property, and determination as to which of the parties should have custody of the minor children of the marriage, the following facts appear:

"The trial court submitted fact issues between the parties to the jury upon special issues, who found their community property consisted of personalty only, which was accordingly equally divided between them, and that the only real estate involved, which consisted of 197½ acres of land in DeWitt county and 100.4 acres of land in Karnes county, belonged to the husband, the defendant in the suit, as his separate property, and that no community funds had been used in the purchase of either tract. It also appeared that the 100.4 acres in Karnes county was fully paid for, but there was a mortgage indebtedness of $7,500 against the DeWitt county tract. In her petition for divorce the wife alleged that the 197½ acres was the homestead of the parties and their children, and was so used until she was compelled to abandon him a short time before the filing of the suit; that she had no separate property of her own, and no homestead other than the two tracts of land referred to. Upon the recommendation of the jury a divorce was granted the wife upon her petition therefor, and custody of the two minor children of the marriage was awarded to her. After submitting the other issues referred to, with reference to homestead rights, the court gave the jury this instruction:

"`Bearing the above in mind, and the fact that the uncontradicted evidence in this case shows that plaintiff and defendant have two minor children, Evie Leona and Walter Irvin, and that the defendant has a minor daughter, Gussie, by a former marriage, you may make some provision with reference to homestead rights if you think right and proper; or you may decline to make any provision with reference thereto.

"`Special Issue No. 17. What provision, if any, as to homestead rights do you make in this case?'

"In response to this question the jury replied: `We make the following provision with reference to homestead rights. We set aside the 100.4 acres of land situated in Karnes county, Tex., 3 or 4 miles northwest of Runge, as a homestead for plaintiff and her two minor children, Evie and Walter Irvin, for her lifetime.' Upon this answer the court decreed as follows: `And it further appearing to the court from said finding and verdict of the jury that plaintiff should be granted and allowed a homestead for herself and her two minor children during the balance of the natural life of plaintiff in the 100.4 acres in Karnes county, Tex., it is therefore ordered, adjudged, and decreed by the court that said tract of 100.4 acres of land in Karnes county, Tex., just above mentioned, be, and the same is hereby, set aside and awarded to plaintiff to be used and enjoyed by herself and her two minor children, Evie Leona Hedtke and Walter Irvin Hedtke, as a homestead during the balance of the natural life of plaintiff. * * * Possession of said land to revert to said defendant, J. G. Hedtke, at the termination of said homestead rights as herein provided. * * * And it is hereby ordered and decreed that defendant take said two tracts of land as his separate property, subject, however, to the homestead rights as herein fixed and decreed and given plaintiff in said tract of 100.4 acres of land in Karnes county, Tex.'

"Under the facts stated we are in doubt as to whether or not the court, in so fixing homestead rights in the separate property of the husband in favor of the divorced wife for the use and benefit of herself and their two minor children as a homestead during the balance of her natural life, exceeded its power, under article 4634, Revised Statutes of 1911. Accordingly we beg to propound to your honorable court the following questions:

"First. Was the trial court authorized to decree plaintiff the right to use and occupy as a homestead during her natural life the 100.4-acre tract of land owned by the defendant in his separate right?

"Second. Could the plaintiff or the minor children be given the right to hold and occupy said premises as a homestead after said minors became of age or ceased to be constituents of plaintiff's family?"

By express terms of article 4634 of Vernon's Sayles' Texas Civil Statutes, the district court was empowered, in pronouncing the decree of divorce, to order a division of the estate of the parties to the divorce suit in such way as to the court seemed just and right, having due regard to the rights of each party and of the children, provided neither party was divested of title to real estate. Real estate impressed with the homestead character was as much subject to division as was nonexempt property. The estate subject to division, under the statute, included all property of the parties whether community property or separate property. The meaning of the statute is not different from what it would have been had the word "property" been substituted in its phraseology for the word "estate."

The income from property belonging to the husband during marriage is subject to a charge or burden for the maintenance of the wife and every minor child. The burden issues from the marital contract, and is incident to the husband's relation to the family. It...