Keene v. Keene

• Citation: 445 S.W.2d 624
• Decision Date: 29 September 1969
• Docket Number: No. 17325,17325
• Parties: Ross Edward KEENE, Appellant, v. Eva Louise KEENE, Appellee. . Dallas
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 624

445 S.W.2d 624

Ross Edward KEENE, Appellant, v. Eva Louise KEENE, Appellee.

No. 17325.

Court of Civil Appeals of Texas.

Dallas.

Sept. 29, 1969.

Rehearing Denied Oct. 17, 1969.

Jack C. Morgan, Morgan & Shumpert, Kaufman, for appellant.

Jess Rickman, Terrell, for appellee.

BATEMAN, Justice.

Appellant sued for divorce, division of community property and for custody of the minor child of the parties. Appellee's counterclaim sought the same relief, plus her attorney's fee. The final decree granted appellant a divorce, custody of the child and a division of community property. It denied appellee's counterclaim for divorce, custody and attorney's fee. Appellant's two points of error on appeal complain only that the property division was unjust to him.

Appellant's first complaint is that the trial court, having entered a decree on August 9, 1968, granting appellant a divorce but making no partition of the community property, had no jurisdiction to render another decree, at a subsequent term of court, partitioning the property. This point is without merit.

The decree of August 9, 1968 was an interlocutory order. It did not dispose of the issue, raised by the pleadings of both parties, of division of community property. Angerstein v. Angerstein, 389 S.W.2d 519, 521 (Tex.Civ.App., Corpus Christi 1965, no writ). It granted appellant's plea for a divorce and denied a similar plea by appellee. It then recited:

'IT FURTHER appearing to the Court that Plaintiff and Defendant own certain Community Property, both real and personal and that there is still a controversy as to the extent of the Community and Separate Property of Plaintiff and Defendant,

'IT IS THEREFORE the ORDER of this Court that no judgment be entered as to the division of the Community Property at this time.'

The decree then recited that appellant's temporary custody of the minor child be continued 'until the Community Property has been divided between Plaintiff and Defendant by this Court.' It then made provision for temporary alimony agreed upon by the parties. It was approved by the attorneys for both parties.

The decree signed on February 5, 1969, without mentioning the prior decree, grants appellant a divorce and denies appellee's counterclaim. It then partitions the community property of the parties, grants custody of the minor child to the appellant, with visitation rights to appellee, and taxes the costs equally between the parties.

Rule 174(b), Vernon's Texas Rules of Civil Procedure, provides:

'The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues.'

We find nothing in the record to indicate an abuse of the wide discretion thus given the court, and appellant's first point is overruled.

By his second point of error the appellant says the trial court abused its discretion in partitioning the community property in that such division was manifestly unjust and unfair. The decree recites that three certain tracts of land are community property and awards all of them to appellant, awarding to appellee the sum of $12,000 in cash and community furniture in her possession. The court then found that ten other tracts of land were the separate property of appellant and set them aside to him as...