McKnight v. McKnight

• Decision Date: 11 February 1976
• Docket Number: No. 6441,6441
• Citation: 535 S.W.2d 658
• Parties: Robert E. McKNIGHT, Appellant, v. Marie Eugenie Bourg McKNIGHT, Appellee.
• Court: Texas Court of Appeals

Page 658

535 S.W.2d 658

Robert E. McKNIGHT, Appellant, v. Marie Eugenie Bourg McKNIGHT, Appellee.

No. 6441.

Court of Civil Appeals of Texas,

El Paso.

Feb. 11, 1976.

Rehearing Denied March 10, 1976.

Turpin, Smith & Dyer, Irby L. Dyer, Midland, for appellant.

Stubbeman, McRae, Sealy, Laughlin & Browder, Milton L. Bankston, Austin, Stubbeman, McRae, Sealy, Laughlin & Browder, W. B. Browder, Jr., Midland, for appellee.

OPINION

STEPHEN F. PRESLAR, Chief Justice.

This is a divorce action in which the husband appeals that portion of the judgment dividing the property of the parties. Questions on appeal involve abuse of discretion of the trial Court in a division of the property and the proper disposition of partnership property. We reverse and reform the judgment in part and affirm the judgment in part.

The controlling law in this case is Section 3.63, Tex.Family Code Ann., formerly Article 4638, which provides: 'In a decree of divorce or annulment the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage .' It is well settled, under this provision of the Family Code and its predecessor statute, Art. 4638, that the trial court is vested with broad discretion when effecting a division of the property of parties to divorce proceedings. An equal division is not required. Williams v. Williams, 160 Tex. 99, 325 S.W.2d 682 (1959). It is equally well established that this discretion will not be disturbed on appeal unless it is clear that the trial court has abused its discretion. Weaks v. Weaks,471 S.W.2d 454 (Tex.Civ.App.--Beaumont 1971, writ dism'd); Mozisek v. Mozisek, 365 S.W.2d 669 (Tex.Civ.App.--Fort Worth 1963, writ dism'd). The cases are legion which determine the question of whether there was nor was not an abuse of discretion; it would serve no purpose to cite those cases here for each case must be decided on its own facts and circumstances.

In general, the division was that the wife received that which she claimed as separate property which had come to her from her father's estate and consisting of cash, stocks, and bonds, all in the total of some $526,000.00. The husband was given what was undisputedly his separate property consisting of a one-fourth interest in some twelve vacant tracts dedicated as drill sights in the City of Odessa, a one-third interest in three ranches in Jeff Davis County and a one-eighth interest in a ranch in Crane County, all subject to outstanding purchase price mortgages. The husband also received the family home, which was a gift from his father. These ranch properties were operated by a partnership consisting of the husband, his sister, and father. There was a joint bank account, and there were bank accounts claimed as separate property by the husband in the sum of some $72,000.00. Additionally, there was a dispute as to whether bank shares of the value of some $166,000.00 were the separate property of the husband. These disputed items were given to the wife; she received all bank accounts standing in her name or the husband's name, and one-half of the bank account of the ranch partnership. Additionally, she was given the cash surrender value of life insurance policies on the husband, one-fourth of all the cattle and other livestock owned by the ranch company partnership (to be divided in kind), a share of stock in the Odessa Country Club Membership, the 1972 Buick station wagon, household goods and furnishings in the family home. In addition to the debts he was ordered to pay, the husband was also ordered to pay $9,750.00 of the wife's attorney's fees, $600.00 per month child support, the $9,500.00 cash surrender value of the insurance policies, and any income tax liability and other taxes accruing during the marriage.

The statutory obligation imposed on the courts to divide the property fairly is coupled with a provision that it be done with due regard to the rights of the parties and 'any children of the marriage.' This Court is of the opinion that the trial Court abused its discretion in regards to the rights of the children of the marriage.

There were seven children of the marriage; one was married at the time of the divorce and six were still in the home. The custody of one child was awarded to the wife and the husband was ordered to pay $600.00 per month child support. The other five children are with the husband, three being awarded to him and the other two being above eighteen years of age and free to choose. Even though these two are above mandatory custody and child support orders, their rights are involved so far as the property division is concerned. The statute speaks of 'any' children of the marriage. These two girls are in college and entitled to stay there and be supported under the circumstances of this family's wealth. The abuse of discretion results from the fact that the children are the obligation of the husband, yet he is stripped of all cash, a portion of his livestock, left a business to operate but no funds to operate it with, and ordered to pay debts. The day-to-day expense of five children requires cash or a readily available source of cash; if the criteria of $600.00 per month for one child is right, then the husband will need $3,600.00 per month or $43,000.00 per year for the six.

Thus, the children are left in...