Mathews v. Mathews

• Decision Date: 26 April 1967
• Docket Number: No. 11481,11481
• Citation: 414 S.W.2d 703
• Parties: Paul W. MATHEWS, Appellant, v. Mrs. Paul W. MATHEWS, Appellee. . Austin
• Court: Texas Court of Appeals

Page 703

414 S.W.2d 703

Paul W. MATHEWS, Appellant, v. Mrs. Paul W. MATHEWS, Appellee.

No. 11481.

Court of Civil Appeals of Texas Austin.

April 26, 1967.

Rehearing Denied May 17, 1967.

Gragg, Storey, Griffith & Gilmore, Jerry C. Gilmore, Dallas, for appellant.

Dalton, Moore, Forde & Joiner, C. Douglass Forde, Jr., Dallas, for appellee.

HUGHES, Justice.

Dr. and Mrs. Paul Mathews were married in 1924. The trial court awarded Mrs. Mathews a divorce and from this portion of the judgment no appeal was perfected.

The trial judge approved a settlement of property rights made by the parties, entering judgment thereon and also entering judgment with respect to the following matters which were not agreed to by the parties but which were submitted to the court for resolution:

'THE COURT finds from the evidence that any and all disability income benefits and payments under the insurance policies above listed is the community property of the parties hereto and further finds from the evidence that the sum of $7,500.00 should be allowed to Mrs. Paul W. Mathews and her attorneys, Dalton, Moore, Forde & Joiner, as attorney's fees for representing Plaintiff herein, said attorney's fees to be paid by the community estate.'

Disposition of these disputed matters was made in the judgment in separate paragraphs, it being noted at the end of each paragraph an exception and notice of appeal on behalf of Dr. Mathews.

The appeal (supersedeas) bond in this case limits the appeal to the judgment insofar as it relates to 'disability income payment.' We quote from such bond:

'WHEREAS in the above entitled and numbered cause pending in the Domestic Relations Court of Dallas County, Texas, and at regular term of said Court, to wit: on the 2nd day of June, 1966, the said MRS. PAUL W. MATHEWS recovered a judgment against the said PAUL W. MATHEWS providing for a division to her of one-half of all disability income payments of any and all policies or contracts of insurance owned by the parties as her sole and separate property, which payments would amount to approximately Three Thousand Dollars ($3,500.00) per year, from which portion of said judgment the said PAUL W. MATHEWS desires to take an appeal to the Court of Civil Appeals for the Fifth Supreme Judicial District setting at Dallas, Texas; and

WHEREAS the said PAUL W. MATHEWS desires supersedeas respecting such judgment in so far as it applies to the disability income payment;

Now, therefore, we, PAUL W. MATHEWS as Principal and The Hanover Insurance Company and _ _ as sureties, acknowledge ourselves bound to pay to the said Clerk of the District Court of Dallas County, Texas, the sum of $6,000.00 conditioned that such Appellant, PAUL W. MATHEWS, shall prosecute his appeal with effect and in case the judgment of the Supreme Court or the Court of Civil Appeals shall be against him, he shall perform its judgment, sentence or decree and pay all such damages as said court may award against him.'

In Connell Construction Company v. Phil Dor Plaza Corporation, 158 Tex. 262, 310 S.W.2d 311, it was held that the scope of an appeal could be limited in an appeal bond where the judgment had severable parts. To overcome this decision, and its adverse effect on the appellee, Rule 353, Texas Rules of Civil Procedure was amended in 1962 by adding Sec. (c) which reads:

'(c) No attempt to limit the scope of an appeal shall be effective as to a party adverse to the appellant unless the severable portion of the judgment from which the appeal is taken is designated in a separate notice served upon such adverse party and filed with the clerk within fifteen days after judgment or order overruling motion for new trial is rendered.'

Appellee in this case is making no complaint that appellant limited his appeal as above noted. It is our opinion that only an appellee, or an adverse party, can complain of the failure of an appellant to comply with this rule in limiting the scope of an appeal. Absent such compliance, the only penalty prescribed is that it shall not be effective as to parties adverse to appellant. We hold that appellant is bound by the limitation of the appeal set forth in his appeal bond and that his first point to the effect that the court erred in ordering attorney's fees allowed attorneys for appellee paid out of the assets of the community estate is not before us.

Appellant's remaining point is that the trial court erred in holding that disability income payments under certain policies of insurance which provided for payments to him in the event of his total and permanent disability were community property and in decreeing that appellee was entitled to one half of such payments as they matured in the future.

The insurance policies under which disability payments are being made were all purchased during the marriage of the parties and with their community funds. There are no onerous acts or duties imposed upon appellant by the policies in order to keep the policies in force and the disability payments continuing. Of course, appellant must not make a miraculous recovery or his payments will cease.

Conceding that little authority exists on the question, appellant cites cases which we will discuss.

In Allen v. Allen, 363 S.W.2d 312, Tex.Civ.App., Houston, n.w.h., the Court held that anticipated railroad retirement benefits of husband under Railroad Retirement Act of 1937, as amended 45 U.S.C.A ., are not property or estate of parties within Art. 4638, V.T.C.S., providing for division of the estate of the parties in a divorce action. This case turns, in part, upon the particular provisions of the Federal Act which are paramount to State law. For this reason, it is of small benefit here.

Appellant next cites McBride v. McBride, Tex.Civ.App., 256 S.W.2d 250, by this Court, n.w.h., in which we held that future wages of the husband were not 'the estate of the parties' within Art. 4638, supra.

The Supreme Court has diluted the authority of McBride in Francis v. Francis, 412 S.W.2d 29, Tex.Sup.Ct. Neither Francis nor McBride are helpful here because each was based upon express agreements of the husband to make payments to the wife after divorce. There is no similar agreement here.

In Cunningham v. Cunningham, 183 S.W.2d 985, Tex.Civ.App., Dallas, n.w.h., the Court held that renewal commissions on life insurance policies sold by the husband during the marriage and which might be payable in the future if the policies were renewed and the husband remained in the employ of the company were not community property in which the wife had an interest. This case turned upon insurance law to the effect that the agent acquired no interest in the renewals which became vested at the time the policies were written.

Pacific Indemnity Company v. Blessitt, 191 S.W.2d 904, Tex.Civ.App ., Beaumont, writ ref. n.r.e., was a workmen's compensation case in which the wife sued after divorce for an injury sustained by her during marriage. The husband filed a disclaimer. Judgment for the full amount due was awarded the wife over the protest of the insurance company that since the proceeds of the policy were community property, she was entitled to recover only one half. The Court held the disclaimer of the husband authorized the Court to make the entire award to the wife. This case is not helpful.

Mabry v. Aetna Casualty & Surety Company, 230 S.W.2d 572, Tex.Civ.App., Galv., n.w.h., was a suit...