Jacobs v. Jacobs

• Citation: 687 S.W.2d 731
• Decision Date: 03 April 1985
• Docket Number: No. C-2977,C-2977
• Parties: Roy Livingston JACOBS, Jr., Petitioner, v. Ellen English JACOBS, Respondent.
• Court: Supreme Court of Texas

Page 731

687 S.W.2d 731

Roy Livingston JACOBS, Jr., Petitioner, v. Ellen English JACOBS, Respondent.

No. C-2977.

Supreme Court of Texas.

April 3, 1985.

Crady & Peden, Douglas S. Johnston, Houston, for petitioner.

Burta Rhoads Raborn and Martha Bourne, Houston, for respondent.

RAY, Justice.

This is a divorce case in which only the property division is challenged on appeal. The court of appeals, after finding that the trial court had erred in determining what was properly a part of the community estate, reversed and rendered judgment as to part of the property division; reversed and remanded as to another part; and affirmed the trial court's judgment as to the remainder. 669 S.W.2d 759. We reverse that part of the court of appeals judgment which limits the remand to specific properties, substitute therefor a remand of the entire community estate for a new division and affirm the remainder of the judgment. We hold that a court of appeals must remand the entire community estate for a new division when it finds reversible error which materially affects the trial court's "just and right" division of the property.

The trial court found the value of the community estate to be between $1,300,000 and $1,500,000. About one-half of this value was attributable to reimbursement claims. The trial court found the community estate entitled to reimbursement for the time, toil and effort expended by husband on behalf of his separate property corporation, for certain community expenditures which benefited husband's separate estate and for certain income earned by husband, but diverted from the community estate to third parties.

Husband appealed the property division contending that the trial court had erred in awarding reimbursement to the community estate, had mischaracterized certain property and had erred in awarding wife her attorney's fees upon appeal. The court of appeals held that the trial court had erred in the following respects: (1) by awarding reimbursement to the community estate for the time, toil and effort of husband on behalf of his separate property corporation, (2) by awarding reimbursement to the community estate for income allegedly due husband, but diverted by him to third parties, (3) by characterizing as wholly community property certain properties in which husband had a separate property interest, (4) by characterizing as wife's separate property certain properties belonging to the community estate, and (5) by awarding wife her attorney's fees on appeal regardless of outcome.

Regarding the two reimbursement claims enumerated above, the court of appeals rendered judgment holding there was no evidence to support the first claim and no pleadings to support the second. The court of appeals also rendered judgment vacating wife's claim for attorney's fees on appeal. Regarding the mischaracterized property, the court of appeals remanded that part of the cause that affected the properties for a new division. The remainder of the property division was affirmed.

Both parties have filed applications for writ of error alleging conflicts jurisdiction. Tex.Rev.Civ.Stat.Ann. art. 1728, subd. 2 (Vernon Supp.1985). Only husband's allegation of conflict with Faulkner v. Faulkner, 582 S.W.2d 639 (Tex.Civ.App.--Dallas 1979, no writ) is sufficient to invoke our jurisdiction over this case of divorce. We have dismissed wife's application for want of jurisdiction. See Oil Field Haulers Ass'n v. Railroad Comm'n, 381 S.W.2d 183 (Tex.1964).

Under a single point of error, husband argues that the court of appeals has erred in failing to remand the entire property division to the trial court for a new division. Husband contends that the court of appeals' piecemeal editing of the property division made by the trial court is contrary to McKnight v. McKnight, 543 S.W.2d 863 (Tex.1976). We agree.

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