Hoyt v. Hoyt

• Decision Date: 04 August 1961
• Docket Number: No. 15868,15868
• Citation: 351 S.W.2d 111
• Parties: Katherlne S. HOYT, Appellant, v. William Willard F. HOYT, Appellee.
• Court: Texas Court of Appeals

Page 111

351 S.W.2d 111

Katherlne S. HOYT, Appellant, v. William Willard F. HOYT, Appellee.

No. 15868.

Court of Civil Appeals of Texas, Dallas.

Aug. 4, 1961.

Rehearing Denied Oct. 20, 1961.

James P. Donovan, Dallas, for appellant.

David Wuntch, Dallas, for appellee.

YOUNG, Justice.

The appeal is from denial of a Bill of Review seeking to set aside the property settlement part of a judgment of divorce rendered September 28, 1959. At request of appellant the trial court made and filed findings of fact and conclusions of law.

Specifically as to nature of suit, appellant states that the action was to 'set aside a judgment of divorce, granted to appellee, her former husband, to the extent that such judgment divided the net assets of the community, valued at $29,686.81, awarding to the husband-appellee $27,789.81 and to the appellant-wife $1,897.00'; the trial court upon hearing rendering judgment denying the relief sought.

Points of appeal in material part are: Court erred (1) 'in sustaining a judgment, void on its face for want of jurisdiction to divide community property on the basis of an illegal and void past-nuptial agreement;' (2) 'in sustaining a judgment showing on its face an abuse of judicial discretion through an unfair and inequitable division of community property;' (3) 'because the findings of fact upon which the judgment was based are not supported by the evidence and the conclusions of law derived therefrom are wholly in error.'

A resume of material facts as gleaned from appellant's brief will now be detailed. This division of community property made by the court in the divorce action was based upon a property settlement agreement between husband and wife under date of July 23, 1959, some three days after Hoyt had filed his petition for divorce; and the provisions thereof as to division of property were incorporated in the divorce decree with court approval thereof. The divorce was granted on a waiver of citation (no appearance by appellant or attorney at the trial) and upon the sole testimony of plaintiff-husband that the settlement as to community property was fair and equitable. This agreement contained no statement as to value of the various items of property involved. At the prior trial no record was made of the testimony but the attorney for Hoyt testified at the present trial: 'I introduced the agreement through him (the plaintiff) and asked him if he signed it and if his wife signed it, and did he ask the Court to divide the community property in accordance with this agreement; that is my usual way of presenting a property settlement agreement to the court.' Testimony in the present action now shows that the value of the community property at time of divorce was $29,686.81; of that total under the divorce decree Hoyt received assets of the amount of $27,789.81 and Mrs. Hoyt of assets of plaintiff's note for $1,500 and a 1957 Chevrolet car under mortgage. The instant suit to set aside the earlier decree as to division of property is predicated upon charges of duress in procuring execution of the settlement agreement, fraud and concealment of the true value of the estate in the divorce action; and fraud upon the court in procuring a decree upon a waiver that was not sworn to, and a property settlement agreement that was not acknowledged as required by law in making a partition of property between spouses during existence of the marriage.

On the other hand, appellant testified that a few days prior to their separation she had discussed with her attorney and later, before final decree was granted, matters relative to a property settlement; and that she was at no time prevented from seeing an attorney. The property settlement in question was first presented to Mrs. Hoyt for signature by the attorney for Hoyt, who stated that she read the contents, her only objection then being that custody of the minor son, Don, was there placed with the father. Parenthetically, there were two children of the marriage; Willard Junior, the older one, being past 18 and married; and Don, the younger, choosing to live with his father, such custody was agreed upon, and, so also the property settlement. The court's findings of facts (many of which were challenged by appellant as not based on the evidence) were to effect that Mrs. Hoyt had 'agreed to and approved the settlement voluntarily, and no fraud or coercion was practiced on the plaintiff by the defendant; that the plaintiff Katherine S. Hoyt was not activated by any fear of threats by the defendant but by a desire to obtain a divorce and marry' a third party, naming him.

An item of the divorce settlement agreement was the homestead of the parties, awarded to Hoyt as his separate property. Appellant asserts that the provisions of the 1948 Amendment of Art. 16, Sec. 15, 'State Constitution' Vernon's Ann.St. (Art. 4624a, Vernon's Ann.Civ.St.) were not followed; the court being without jurisdiction to thus divide community property on basis of an illegal and void postnuptial agreement. The point is overruled.

The 1948 Constitutional Amendment relates to a partition of community property between spouses without reference to divorce; while here the trial court was fully authorized to approve a property settlement under Art. 4638, V.A.C.S., providing: 'The court pronouncing a decree of divorce shall also decree and order 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.' Professor Huie in his Article on 'The...