Hensley v. Hensley

• Decision Date: 16 May 1973
• Docket Number: No. 6282,6282
• Citation: 496 S.W.2d 929
• Parties: Frances HENSLEY, Appellant, v. Eugene V. HENSLEY, Appellee.
• Court: Texas Court of Appeals

Page 929

496 S.W.2d 929

Frances HENSLEY, Appellant, v. Eugene V. HENSLEY, Appellee.

No. 6282.

Court of Civil Appeals of Texas El Paso.

May 16, 1973.

Shaw, Davis & Benson, William R. Davis, John R. Shaw, San Antonio, for appellant.

Jones & Milstead, Guilford L. Jones, Richard C. Milstead, Big Spring, for appellee.

OPINION

PRESLAR, Justice.

This is an appeal from a divorce suit. Appellant, Frances Hensley, has appealed only that portion of the judgment that pertains to the property division between the two parties. We affirm.

The record contains a lengthy statement of facts, and there is extensive testimony concerning whether or not the property involved in the divorce judgment is separate or community in character. Appellant and Appellee were married on January 27, 1967. Prior to the marriage, Appellant was employed at the race track in Ruidoso, New Mexico, and Appellee was a stockholder in the Ruidoso Racing Association. On June 12, 1969, Appellee was incarcerated in La Tuna Federal Prison for the offense and conviction of income tax evasion; such conviction was on appeal at the time Appellant and Appellee married. During the period of Appellee's confinement, Appellant visited with him frequently on the weekends, and testified that she managed the business affairs of Appellee. From June 12, 1969, until March of 1971, Appellant stated that she managed and spent $368,000.00 of Appellee's funds. Appellant further testified that at the time of her marriage to Appellee her separate property consisted of various personal effects, two automobiles, a triler house, and $6,000.00--$15,000.00 in cash. The automobiles and trailer house were subject to several thousand dollars indebtedness. Appellant filed for divorce on July 19, 1971. Appellee was released from La Tuna on December 1, 1971, and the judgment of divorce between the parties was granted on January 3, 1972. There were no children born of the marriage.

Appellant contends, by two points of error, that the trial Court's partition of the separate and community estate of the parties was manifestly unjust, such constituting an abuse of discretion, and that the Appellee failed to show that property awarded to him by the trial Court had been purchased with his separate funds. We consider both points of error together. The Judgment and Decree of Divorce provided in part:

'The Court finds that the parties hereto own separate property and have separate debts, respectively, and own some community property and have community debts, and that said property and debts should be divided in an equitable and just manner.

'IT IS THEREFORE FURTHER ORDERED, ADJUDGED and DECREED by the Court that the property owned by the parties, whether separate or community, shall be divided as follows:'

The trial Court's findings of fact reflect that Appellee was incarcerated in La Tuna Federal Reformatory on June 12, 1969, that from January 1, 1969, until the divorce suit was heard, the only monies received by either of the parties were the separate funds of the Appellee, that Appellant exclusively managed and controlled the estate of Appellee from June 12, 1969, until her power of attorney was revoked in March, 1971, and that Appellant had the exclusive management and control of $368,000.00 from June 12, 1969, through September 30, 1971, and that on October 1, 1971, $650.00 was all that remained from this amount.

It is a well settled rule of law in Texas that the trial Court is vested with broad discretion when effecting a division of the property of parties to a divorce proceeding. An equal division is not required. Williams v. Williams, 160 Tex. 99, 325 S.W.2d 682 (1959); Section 3.63, Texas Family Code, V.T.C.A. This discretion will not be disturbed on appeal unless it is clear that the trial Court has abused its discretion. Weaks v. Weaks, 471 S.W.2d 454 (Tex.Civ.App., Beaumont 1971, writ dism'd); Mozisek...