Marriage of Tandy, In Matter of, 8555

• Citation: 532 S.W.2d 714
• Decision Date: 28 January 1976
• Docket Number: No. 8555,8555
• Parties: In the Matter of the MARRIAGE OF Winifred C. TANDY and Roger C. Tandy.
• Court: Texas Court of Appeals

Page 714

532 S.W.2d 714

In the Matter of the MARRIAGE OF Winifred C. TANDY and Roger C. Tandy.

No. 8555.

Court of Civil Appeals of Texas,

Amarillo.

Jan. 28, 1976.

Rehearing Denied Feb. 23, 1976.

Lemon, Close, Atkinson & Shearer, G. R. Close, Perryton, for appellant and cross appellee.

J. E. Blackburn, Spearman, for appellee and cross appellant.

ELLIS, Chief Justice.

Winifred C. Tandy and Roger C. Tandy, the parties in a divorce action brought by Winifred C. Tandy as petitioner, appeal from that portion of the judgment dividing the property. Neither party complains of any portion of the decree other than the property division. Each party challenges the community and separate characterization made by the trial court with respect to certain items of property. Affirmed in part and reversed and remanded in part.

Mr. and Mrs. Tandy will sometimes be referred to as 'husband' and 'wife,' respectively. They were married on June 9, 1972 and separated about April 15, 1974. The wife filed this action on May 10, 1974, and on August 2, 1974, the husband as cross-petitioner, filed his cross-action. The case was tried to the court without a jury, and the decree was entered on October 18, 1974. The petitioner-wife was granted a divorce and change of name. Also, the decree recited that the separate and community property owned by the parties should be divided in an equitable manner. Certain listed items of property were awarded to the wife, including one-fourth interest in the 1974 crops, subject to a deduction therefrom of one-fourth of the expenses of hauling, harvesting, etc. The husband was awarded 'all other community property' and was to be responsible for the payment of all other community debts. The decree further provided that '(a)ll other property possessed by either party prior to the marriage and still in existence is deemed separate property of that party and is specifically set aside to that party.'

In its findings of fact and conclusions of law the court set out what it had concluded to be a fair and equitable division of the community property. Among other matters, the findings of fact and conclusions of law set out that, Excluding certain crops, the community property on hand was found to have a value of approximately $56,500 community debts were found to total approximately $39,000, leaving a net value of the community property at $17,500. A portion of the $39,000 community indebtedness above mentioned was $9,824 ($10,000 less $176.00 spent on wheat land) owing to The First National Bank of Perryton, Texas, and $8,000 owed to Batman Crain, Inc., representing expenses in the total sum of $17,824 attributable to the 1974 crops. The court calculated that the community property awarded to Mrs. Tandy, Excluding the crops, was worth $8,750, one-half the total net value of $17,500 in community property. It is apparent that the court was seeking to divide the net value of the community property equally between the parties.

With respect to the 1974 crops, Mrs. Tandy was awarded one-fourth of the 1974 wheat, corn and milo crops, in kind. The wheat was in storage, the corn already harvested and the milo yet to be harvested 'when it is ready.' Also, the decree recited that from such one-fourth interest there would be deducted one-fourth of the expenses for 'all unpaid costs of hauling, harvesting, storage, land-lord's share (on leased lands), docks, $730.00 for gas and $116 .00 for electricity on the corn crop.'

During the period of time relevant to this case, Mr. Tandy was engaged in a joint farming venture with David Tandy, his son by a former marriage. Under the undisputed evidence before the court, and as set out in Mr. Tandy's brief, David Tandy, in exchange for his work in connection with the farming operation, was to receive one-half of the net crop proceeds after all indebtedness, including the indebtedness to the bank and to the grain company, had been paid . The remaining one-half of such net crop proceeds constituted community interests of Mr. and Mrs. Tandy (one-fourth interest to each).

From the decree entered, both parties have appealed. Each party as an appellant, has raised two points of error.

By point of error number one, the appellant wife contends, in effect, that the trial court erred in calculating David Tandy's share or interest in the proceeds of the 1974 wheat, corn and milo crops, by failing to allocate an amount equal to one-half of the cost of raising these crops against his interest, thereby decreasing to such extent the net sum to be credited to the community estate. In the decree no mention was made of the allocation of net proceeds of the 1974 crops to David. However, in the findings of fact and conclusions of law, the court found 'that the joint venture with David Tandy is bona fide and . . . that David Tandy has a one-half interest in the 'net proceeds' . . . of the 1974 wheat, corn and milo crops.' Net proceeds was defined by the court as 'the amount left after deducting the presently unpaid costs of harvest, hauling, storage, landlord's share (on leased lands), and docks and $730 for gas and $116 for electricity on the corn crop.' Mrs. Tandy contends that the trial court erred by reason of its failure to take into consideration the formula established by the evidence for determining the amount due David out of the proceeds of the 1974 crops, i.e., none of the crop expenses represented by the bank and grain company indebtedness was deducted from the amount of the crop proceeds allocated to David for his compensation for labor in lieu of a salary. The appellant wife asserts that under the formula applicable, as established by the evidence, the trial court should have included the amount of the indebtedness to the bank and to the grain company, all of which was attributable to expenses incurred in connection with the production of the 1974 crops, along with the expenses of harvest, hauling, etc., in determining the amount of the 'net proceeds' of the crops.

Mr. Tandy testified that all of the $9,824 indebtedness to the bank and the $8,000 debt to the grain company, created by an advance on the proceeds to be realized from the sale of the 1974 wheat crop stored in the Batman elevators, was attributable to the Tandy farming operations for the 1974 crops. If an amount equal to one-half of the indebtedness to the bank and grain company, in the total sum of $17,824, attributable as 1974 crop expenses, (recognized as a part of the community indebtedness), were considered in determining the amount of the net proceeds of the 1974 crops to which David was entitled, in accordance with the evidence with respect to the manner of allocation of expenses and proceeds, the effect would be to increase the community share of the crop proceeds to the extent of $8,912, which represents one-half of such $17,824 indebtedness. We find no...