Hicks v. Hicks
| Decision Date | 15 December 1976 |
| Docket Number | No. 19004,19004 |
| Citation | 546 S.W.2d 71 |
| Parties | Kenneth L. HICKS, Appellant, v. Saundra Dell HICKS et al., Appellees. |
| Court | Texas Court of Appeals |
John M. Gillis, Gillis, Rogers & Taylor, Dallas, for appellant.
Donald V. Yarborough, Yarborough, Hinds & Shahan, Dallas, for appellees.
Saundra Dell Hicks sued Travelers Insurance Company and her ex-husband Kenneth L. Hicks for post-divorce partition of a workmen's compensation settlement. The claim was for injuries sustained by Mr. Hicks during the marriage, but was settled after the divorce. The injury occurred on October 30, 1973, the parties separated in January 1974, and the judgment of divorce was rendered on June 3, 1974. The plaintiff asserted that the proceeds of the claim were presumptively community property because the injury occurred during the marriage and because there was a commingling of community and separate property with a previous claim settled before the divorce. She concludes that there is, therefore, a presumption that the entire award is community property. Defendant Mr. Hicks responded that the funds were his separate property because the claim was settled in September of 1974 after the divorce and that this action was barred by Res judicata since the question could have been litigated in the divorce proceedings. Travelers, the workmen's compensation carrier, paid the proceeds, $6,000 net, into the court's registry and was dismissed. Trial was to the court without a jury. The court concluded that: The husband had defrauded his wife by concealing from her the existence of the claim; the burden was on the husband to prove that the claim was not community; he failed to meet this burden; there is a presumption that the proceeds from the claim are community; this presumption was not overcome by the husband; and separate and community funds were commingled. Acting on these findings of fact and conclusions of law, the trial court awarded the wife $2,400 of the fund and the husband $3,600. Only the defendant-husband appeals from the judgment. Because we hold that on a claim for compensation settled after divorce, the noninjured spouse has the burden to show what part of the fund was community, if any, and because she failed to sustain this burden, we reverse and render.
Appellant Hicks contends that the trial court erred in decreeing that his ex-wife receive part of the funds because: (1) the court erroneously indulged a presumption that the funds were community property; (2) proceeds of a post-divorce workmen's compensation settlement are separate property; (3) the decree is a judicial compulsory assignment of compensation benefits; (4) it held that the defendant had commingled funds from the claim with other community property; and (5) the suit is barred by Res judicata because with diligence it could have been litigated in the prior divorce proceeding.
On the other hand, the ex-wife contends that the trial court was correct in its judgment because this matter was not adjudicated in the divorce decree, there was a commingling of funds between this claim and a previous claim settled for $1,200 in January 1974, and the ex-husband defrauded her by concealing the fact that this claim was still pending at the time of the divorce.
Although the divorce decree disposed of several listed items of community property, it did not mention the claim in question and did not contain a clause providing for the disposition of other property not specifically mentioned. The property not mentioned was not, therefore, disposed of by the divorce decree. Thompson v. Thompson, 500 S.W.2d 203, 208 (Tex.Civ.App.--Dallas 1973, no writ). Where part of the community estate is not disposed of in a divorce decree, a subsequent action for partition of this property is not barred by Res judicata. Busby v. Busby, 457 S.W.2d 551, 554 (Tex.1970). Since this claim remains undisposed of, the court's finding that Mr. Hicks fraudulently concealed the existence of the claim is immaterial.
The plaintiff argues that there was a commingling of the settlement proceeds in dispute with a $1,200 settlement of another workmen's compensation claim received by her ex-husband several months prior to divorce. We cannot agree because we find no evidence of a mixing of the two funds. The undisputed evidence is that the $1,200 was received...
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