Lawson v. Lawson, 6-91-099-CV
| Decision Date | 10 March 1992 |
| Docket Number | No. 6-91-099-CV,6-91-099-CV |
| Citation | 828 S.W.2d 158 |
| Parties | Ruth LAWSON, Appellant, v. Floyd LAWSON, Appellee. |
| Court | Texas Court of Appeals |
Frank Long, Dist. Atty., Sulphur Springs.
Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.
Ruth Lawson appeals from the judgment entered by the trial court granting her a divorce from Floyd Lawson and dividing the community property. This Court previously heard an appeal in this same cause and reversed and remanded it for further proceedings.
In this appeal, Ruth Lawson contends that the trial court erred by failing to follow the law of the case as set out in this Court's previous unpublished opinion and a mandamus proceeding subsequent to this Court's opinion. Specifically, Ruth Lawson complains that certificates of deposit were improperly characterized as Floyd's separate property rather than as part of the community of Ruth and Floyd.
Floyd Lawson takes the position that the ownership of the certificates of deposit had already been determined by the judge prior to the jury trial, and thus the jury question inquiring about the commingling of the properties did not refer to that issue because it was not before the jury. The record does not bear this out. There was a pretrial hearing in which the trial judge declared the post-nuptial agreement to be valid, but none of the certificates in question were listed in the post-nuptial agreement. In the earlier proceeding, this Court declared the post-nuptial agreement to be invalid, but that question is not controlling in this case. Whether the certificates were separate property owned prior to the marriage or other separate property described by the post-nuptial agreement, Floyd Lawson had the duty of establishing that the certificates of deposit that existed at the time of the divorce could be traced back to property he owned as separate property.
The jury found that the property claimed as separate property and that claimed as community property had been commingled so that they were not capable of being identified as separate or community property. 1
There was extensive testimony about the certificates of deposit. Floyd Lawson testified that the initial investment in the certificates of deposit came from money received from the sale of land about 1970. There was testimony about whether some of this money belonged to his children, about who had paid taxes on some of the interest income, and about the names of third parties on the certificates of deposit. 2 Floyd Lawson's testimony that the certificates of deposit were his could not be considered tracing. Some of the testimony was ambiguous and contradictory. But even if the evidence had carefully traced with full documentation of every change in form to property he once held as separate property, he could not now prevail on his argument that the certificates of deposit were his separate property because the jury as fact finders found that all of the property was commingled, so that it was incapable of being identified. He has not challenged that jury finding in the trial court or in this Court.
Neither Ruth Lawson nor Floyd Lawson has challenged the findings of the jury in this appeal. 3 Ruth Lawson specifically challenged the failure to the trial court to follow the findings of the jury. After having the judgment n.o.v. set aside in favor of the jury findings, she cannot now pick and choose which jury finding she wants to be controlling. Unless she had challenged the sufficiency of the evidence by a point of error, and she has not, she will be bound by the jury finding. Unless the factual determinations by the jury are properly challenged, we are also bound by those determinations. The jury's unchallenged finding that the money in the form of certificates of deposit was commingled mandates the court to determine all of the certificates of deposit as community property.
There is some confusion about the interest on the certificates of deposit and the principal of the certificates of deposit. No specific question was asked to the jury about the characterization of the certificates of deposit. The only question that related to the certificates of deposit was the general question about commingling. The question to the jury that specifically involved the certificates of deposit involved interest only. While it is not consistent to say that all of the certificates of deposit are community property but that the interest from some of the certificates of deposit is separate property, the jury's unchallenged factual determination finds some of the interest to be separate property. This Court has no authority to set aside an unchallenged jury finding. The jury's finding in answer to jury question 5 that some of the interest from these certificates of deposit was separate property seems to conflict with its answer to jury question 6 finding that all the property had been so commingled that it would be presumed to be community. 4 The general rule is that a specific finding would control over a general finding. Harris County v. Patrick, 636 S.W.2d 211 (Tex.App.-Texarkana 1982, no writ). Thus, jury question 5 5 should control over jury question 6. The trial court must be able to identify the specific amounts of interest earned in order to divide it separately from the certificates of deposit. There were no jury questions asked about the amounts of interest, and if these amounts cannot be determined from undisputed evidence, then the answers to jury question 5 are meaningless and cannot be applied. In that event, the answer to jury question 6 would also apply to the commingled interest and all the interest must be treated as a part of the certificates of deposit, which are community property.
When an appellate court ruling significantly affects the characterization of property and thus impacts the property division, the appellate court should remand the matter to the trial court for an equitable division of all the community property under the guidelines set out by the appellate court. We remand the case to the trial court for another division of all the community property treating the certificates of deposit as community...
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