Hendrick v. Hendrick

• Decision Date: 20 June 1949
• Docket Number: No. 5966.,5966.
• Citation: 222 S.W.2d 281
• Parties: HENDRICK v. HENDRICK.
• Court: Texas Court of Appeals

222 S.W.2d 281

HENDRICK v. HENDRICK.

No. 5966.

Court of Civil Appeals of Texas. Amarillo.

June 20, 1949.

Appeal from District Court, Randall County; Henry S. Bishop, Judge.

Action by Margaret Kerr Hendrick against James William Hendrick for divorce, custody of minor children and a division of community property. From the judgment, defendant appeals.

Judgment affirmed.

E. Byron Singleton, Amarillo, for appellant.

Underwood, Wilson, Sutton, Heare & Boyce, Amarillo, for appellee.

LUMPKIN, Justice.

The appellee, Margaret Kerr Hendrick, filed this suit against her husband, James William Hendrick, the appellant, asking for a divorce, custody of her two minor sons, and a division of the community property. Cruel treatment was alleged as the ground for divorce. Trial was before the court without the intervention of a jury and resulted in a judgment granting appellee a divorce, custody of her children, and ordered an unequal division of the property in favor of the appellee.

During the trial the appellant offered no defense as to the divorce or on the issue of which parent should be given custody of the children. On this appeal the appellant does not complain of that portion of the judgment which grants the divorce or awards the custody of his sons to the appellee, but he confines his attack to those portions of the court's judgment which make a disproportionate division of the community assets.

In 1930, immediately following their marriage, the parties came to Amarillo, Texas, where they have since maintained their residence. To them were born two sons, James William Hendrick, Jr. and Charles Kerr Hendrick, seventeen and thirteen years old respectively at the time of the trial. The appellant is a physician and surgeon. From the time he arrived until July, 1945, he practiced his profession at Amarillo. Immediately following his marriage and during the depression years, the appellant experienced some financial difficulties, but by 1940 he was receiving a growing yearly income as is evidenced by his income tax returns. For the year 1943 his gross income was $52,126.87 and his taxable income was $26,529.62. In 1944 he had a gross income of $48,356.12 and a taxable income of $32,194.70. In 1945, although he practiced only six months, the appellant received a gross income of $40,863.75 and paid an income tax on $28,660.69.

In July, 1945, the appellant joined the teaching staff at the University of Maryland Medical School, Baltimore, Maryland, where he was employed at the time this case was tried. For his services as an instructor, the appellant received a salary of about $50 a month. Since going to Baltimore he has not been engaged in the practice of his profession. Other income received by the appellant after his marriage was from a government disability cheque in the monthly amount of $75. This disability was the result of appellant's service with the armed forces during World War I. In 1944 these monthly payments were increased to $90. While sojourning in Baltimore the appellant rented his office equipment at Amarillo for $75 a month.

The appellant's first point of error concerns a certain Investors Syndicate Certificate. Because of the character of the money invested in the certificate and because of the fact that it was issued in the joint name of the parties, the court found that the certificate, valued at $15,970.64, was owned jointly by the parties. The appellant contends that the court erred in considering this certificate as an item of community property, subject to apportionment, because the money for this investment came from the appellant's separate means. In our opinion the record does not warrant this conclusion.

The record reveals that for a period of several years, $1,200 per year was placed in this investment. Of this sum about $900 came from the government disability cheques received monthly by the appellant. The remainder of the $1,200 yearly payment came from community funds. Article 4619, Vernon's Annotated Revised Civil Statutes provides: "All property acquired by either the husband or wife during marriage, except that which is the separate property of either, shall be deemed the common property of the husband and wife; and all the effects which the husband and wife possess at the time the marriage may be dissolved shall be regarded as common effects or gains, unless the contrary be satisfactorily proved."

It is presumed that all property which a husband and wife possess at the dissolution of the marriage is community property and the burden is on the party who alleges to the contrary. Rippy v. Rippy, Tex.Civ. App., 49 S.W.2d 494, writ refused; Bantuelle v. Bantuelle, Tex.Civ.App., 195 S.W. 2d 686. Property acquired during marriage takes its status as separate or community property at the time of its acquisition, although a bank account consisting of separate and community funds commingled in such a manner that neither can be distinguished from the other must be regarded as community funds. Boyd et al. v. Orr, Tex.Civ.App., 170 S.W.2d 829, ref. w. m. The intentions of the parties are controlling in transactions of this nature, and it it settled that these intentions may be judged by the facts surrounding the case.

In our opinion the trial court was justified in finding that the certificate was community property. The parties agreed prior to their marriage and long prior to the purchase of this certificate that they would save the money received from the disability cheques. The record shows that for some years after they were married the parties of necessity used this money to assist in defraying their living expenses and in making the payments on their home. In 1938, however, and each year thereafter for several years this money was used as part of the annual payment due Investors Syndicate on this certificate. The record further reveals that this certificate was not made out in the name of appellant only but jointly in the names of the parties. When at the appellant's request the certificate was made out jointly to the parties, the appellant, in the opinion of the trial court and in our opinion, declared his intent to make of this investment a community asset. Smith et al. v. Buss et al., 135 Tex. 566, 144 S.W.2d 529, and the cases there cited.

Article 4638, Vernon's Annotated Revised Civil Statutes, charges the trial court in divorce cases with the responsibility of making "a division of the estate of the parties in such a way as the court shall deem just and right, having due regard to the rights of each party and their children, if any." In Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21, 23, in discussing the power vested by this statute in the trial court, the Supreme Court said: "The court pronouncing a decree of divorce is invested with wide discretion in disposing of any and all property of the parties, separate or community, and * * * its action, in the exercise of such discretion, should be corrected on appeal only where an abuse of discretion is shown in that the disposition made of some property is manifestly unjust and unfair."

Clark v. Clark, Tex.Civ.App., 35 S.W.2d 189, dismissed; Hamm et al. v. Hamm, Tex.Civ.App., 159 S.W.2d 183. The appellant has not shown an abuse of discretion on the part of the trial court and, therefore, the appellant's contention in this connection is overruled.

In his second point of error the appellant asserts that because of his present low income as a teacher the trial court erred in making a disproportionate division of the community property by which the wife received two-thirds of the property and the appellant one-third.

When the appellant first went to Baltimore his income totaled $215 a month —...