Marriage of Moore, Matter of, 07-93-0294-CV
| Decision Date | 08 November 1994 |
| Docket Number | No. 07-93-0294-CV,07-93-0294-CV |
| Parties | In the Matter of the MARRIAGE OF Ola Donville MOORE and Dorothy E. Moore. |
| Court | Texas Court of Appeals |
Purdom Law Offices, Thomas J. Purdom, Lubbock, for appellant.
Carr, Fouts, Hunt, Craig, Terrill & Wolfe, Gary Bellair, Donald M. Hunt, and Aubrey Jan Fouts, Lubbock, for appellee.
Before REYNOLDS, C.J., and DODSON and BOYD, JJ.
In this appeal, appellant Ola Donville Moore (Mr. Moore) challenges the judgment entered in his divorce action against appellee Dorothy E. Moore (Mrs. Moore). In seventeen points of error, Mr. Moore asserts that the trial court erred during the course of the trial and, in rendering judgment, made an improper division of separate and community property. For the reasons later set forth, we find the trial court erred in awarding Mrs. Moore $26,000 in damages for Mr. Moore's "breach of fiduciary duty." Accordingly, unless Mrs. Moore files a voluntary remittitur in that amount within twenty days, we will sever the portion of the trial court judgment making division of the property and remand that portion to the trial court, affirming the remainder of the judgment. If, however, she timely files the remittitur, we will affirm the judgment of the trial court.
Mr. Moore and Mrs. Moore married on November 6, 1971. During their marriage, Mr. Moore, a farmer by trade, managed virtually all of the financial transactions of the community estate. Mrs. Moore served the community in her capacity as homemaker. On September 18, 1991, Mr. Moore filed for divorce. Mrs. Moore counterclaimed for divorce and sought, as relevant to this appeal, reimbursement to the community estate for "funds, assets, time, labor and talent expended by the community estate to benefit or enhance [Mr. Moore's] alleged separate estate." She also brought a separate cause of action seeking recovery of actual and exemplary damages for Mr. Moore's alleged breach of his fiduciary duty to the community estate.
After a jury trial, and based in part upon the jury's verdict, the trial court entered the judgment resulting in this appeal. In that judgment, the court ordered the divorce of the parties, divided the community estate, granted Mrs. Moore's claim for reimbursement in the amount of $21,096, and awarded a $40,000 judgment in Mrs. Moore's favor for Mr. Moore's breach of fiduciary duty. Hence, this appeal. 1
We immediately note that most, if not all, of Mr. Moore's points of error are improperly multifarious. Kroger Co. v. Cellan, 560 S.W.2d 505, 507 (Tex.Civ.App.--Tyler 1977, writ ref'd n.r.e.); Tex.R.App.P. 74. We will, nevertheless, address the issues presented by those points as we understand them and in such sequence as we deem logical.
In her counterclaim for divorce, Mrs. Moore alleged that Mr. Moore, who "was entrusted with the management, control and disposition of substantially all of the community estate and funds," willfully and intentionally violated his fiduciary duty to Mrs. Moore. Specifically, Mrs. Moore asserted the following violations:
1. organizing and operating an alleged separate property corporation;
2. transferring or issuing stock to his third party family members without compensation from said parties 3. devoting community assets, time, labor and talent for the benefit of the corporation for the purpose of depriving Mrs. Moore of her interest and rights in and to community property which, otherwise, would have been accumulated with the assets and funds devoted to the corporation;
4. making loans and gifts of community assets, including gifts of stock in the corporation, to third parties for the purpose of depriving Mrs. Moore of her community property rights;
5. failing to devote his time, labor and talent to the enhancement of the value of the community estate of the parties and, instead, devoting such intangible community assets to enhancing either his separate property or the property of his third party family members;
6. failing to make full disclosure of community assets so as to deprive Mrs. Moore of a just and right division of the marital estate;
7. concealing community assets and income so as to deprive Mrs. Moore of a just and right division of the marital estate; and
8. engaging in a course of conduct designed and intended to deprive Mrs. Moore of a just and right division of the marital estate.
In addition to alleging that these actions proximately caused her damages, Mrs. Moore sought exemplary damages "by virtue of the wilful and intentional breach." Although Mr. Moore specially excepted to the allegations of breach, the record does not show any ruling on those exceptions. Presumably, however, the exceptions were overruled as the trial proceeded upon Mrs. Moore's original cause of action for breach of fiduciary duty.
In his first point, Mr. Moore asserts that the trial court erred in treating Mrs. Moore's allegation of his breach of fiduciary duty "as a cause of action separate from the divorce action." He additionally argues that the trial court erred in assessing separate damages for the alleged breach rather than treating his actions as factors to be considered in making a just and right division of the community estate.
In response to his first point, Mrs. Moore initially points out that the record does not contain a ruling on Mr. Moore's special exceptions regarding the breach of fiduciary duty cause of action. Mrs. Moore asserts that by his failure to have the ruling included in the record, Mr. Moore has waived this challenge. Alternatively, she contends that even if he did not waive the error claimed, Mr. Moore's point must still be overruled "because a spouse's fraud on the community is an appropriate basis for separate damages."
As we understand it, the gravamen of Mr. Moore's first point is that the trial court erred in treating the breach of fiduciary duty allegation as a separate cause of action both in the pleadings and in the court's judgment. That interpretation necessarily impinges upon the errors specifically alleged in Mr. Moore's points of error two through eight. Therefore, in our discussion of these ensuing points, in addition to discussing the errors specifically alleged in those later points, we will discuss the possible impact his first point contention might have upon the specifically alleged errors.
We construe the first point of error to assert that the trial court erred in treating the breach of fiduciary duty allegations as a separate cause of action in the pleadings. In his second and third points of error, Mr. Moore contends that the trial court erred in overruling his special exceptions to Mrs. Moore's breach of fiduciary duty action. 2 However, Mrs. Moore correctly contends that Mr. Moore waived points one through three, as regarding the pleadings, by failing to get a ruling on his special exceptions.
It is an appellant's burden, on appeal, to present to the appellate court a sufficient record clearly showing any error of which he complains. Tex.R.App.P. 50(d). It is the rule that if defective allegations are made in the pleadings, the denial of a special exception to those allegations preserves any such error in the pleadings, see Cluck v. Cluck, 647 S.W.2d 338, 340 (Tex.App.--San Antonio 1982, writ dismissed), as well as any alleged error in the trial court's rulings on the special exceptions. However, without a record demonstrating the trial court's ruling on the exceptions, there is nothing for this court to review in that regard. Dodson v. Citizens State Bank of Dalhart, 701 S.W.2d 89, 95 (Tex.App.--Amarillo 1986, writ ref'd n.r.e.); Wichita Building Corp. v. Lenz, 458 S.W.2d 829, 830-31 (Tex.Civ.App.--Fort Worth 1970, no writ). 3 That being true, we must, and do overrule that part of appellant's first point dealing with this alleged error together with his first and second points.
We also interpret Mr. Moore's first point to allege that the trial court erred in treating Mrs. Moore's breach allegation as a separate cause of action in the court's judgment. More specifically, Mr. Moore alleges in his first point of error that the trial court erred in assessing damages "separate from the division of the estate of the parties" and, in his eighth point, he alleges the trial court erred in granting, in its judgment, $40,000 damages for breach of fiduciary duty.
Initially, we note that a fiduciary relationship exists between a husband and a wife as to the community property controlled by each spouse. Carnes v. Meador, 533 S.W.2d 365, 370 (Tex.Civ.App.--Dallas 1975, writ ref'd n.r.e.). The breach of a legal or equitable duty which violates this fiduciary relationship existing between spouses is termed "fraud on the community," a judicially created concept based on the theory of constructive fraud. Jackson v. Smith, 703 S.W.2d 791, 795 (Tex.App.--Dallas 1985, no writ). Any such conduct in the marital relationship is termed fraud on the community because, although not actually fraudulent, it has all the consequences and legal effects of actual fraud in that such conduct tends to deceive the other spouse or violate confidences that exist as a result of the marriage.
As Mr. Moore exclusively managed and controlled the community estate of the marriage, he assumed a fiduciary duty to Mrs. Moore with respect to such property. Therefore, the only recourse available to Mrs. Moore for any acts Mr. Moore may have taken in violation of this fiduciary duty was an action for fraud on the community. That is to say, because of their common heritage, an allegation of breach of fiduciary duty in a divorce context and a claim of fraud on the community are the same creatures.
Having made this initial determination, we must now decide whether a claim for breach of fiduciary duty may be...
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