Mea v. Mea

• Decision Date: 21 January 1971
• Docket Number: 533,Nos. 516,s. 516
• Citation: 464 S.W.2d 201
• Parties: Joseph MEA, Appellant, v. Doris MEA, Appellee.
• Court: Texas Court of Appeals

Page 201

464 S.W.2d 201

Joseph MEA, Appellant, v. Doris MEA, Appellee.

Nos. 516, 533.

Court of Civil Appeals of Texas,

Tyler.

Jan. 21, 1971.

Rehearing Denied Feb. 18, 1971.

Saunders, Caldwell & Schmidt, J. Byron Saunders, Tyler, for appellant.

Tyner, Bain & Creel, J. W. Tyner, Jerry Bain, Tyler, for appellee.

DUNAGAN, Chief Justice.

The appeals in both causes originate from a divorce suit. The suit was originated by the filing of a petition by the appellant, Joseph Mea, against the appellee, Doris Mea, for a divorce in the Court of Domestic Relations in and for Smith County, Texas. The appellant in his petition alleges '(t)hat, during the marriage of plaintiff and defendant, they acquired certain community property, all of which can be amicably partitioned between the parties.' He prayed for judgment dissolving the bonds of matrimony between the plaintiff and defendant and for all other and further relief to which he may be entitled, either in law or in equity. Subsequently appellee filed her counter-suit for divorce alleging that she and the appellant had acquired certain community property during the marriage and sought a fair and equitable disposition of such community property. She also alleged that she had no separate property or income and no means of paying her attorneys for their services to her in this suit. No children were born to this marriage.

The appeal in cause No. 516 is from an interlocutory order of the court appointing a receiver.

The appeal in cause No. 533 is from a judgment of the court disposing of the case on its merits. In the last mentioned judgment the trial judge denied appellant a divorce but granted appellee a divorce on her counter-suit, and in its judgment made appellee a money award of $90,000.00 with a separate lien upon certain properties to secure the payment of said money award and continued all temporary orders including the order of receivership pending final disposition of any appeal. Appellant timely perfected his appeal to this court in each of the causes. Both appeals were consolidated in this court for purposes of appeal pursuant to the joint motions of the parties therefor.

Appellant is not appealing from that portion of the judgment of the trial court awarding the divorce to appellee, but makes this appeal only as respects the receivership order and the division of the property made by the trial court in its final judgment.

The appellant's complaint in his second point of error is: 'The trial court erred and abused its discretion in failing to make and file additional and amended findings of facts as requested by appellant.' The case was tried before the court without a jury. The record reflects that the court made and filed findings of fact and conclusions of law pursuant to appellant's request therefore. Thereafter appellant timely made and filed his request for additional findings of fact and conclusions of law to which the court failed to respond. Appellant timely filed a written objection to the court's failure to so respond to his request and filed his written bill of exception No. 1. Appellant here urges that the failure of the trial court to make and file the additional findings of fact and conclusions of law constitutes error and an abuse of discretion of the trial court.

The trial court approved appellant's bill of exception No. 1 with the following qualification: 'Requested additional findings were evidentiary and not ultimate facts or conclusions.' The record contains no exception or objection to the qualification made by the judge. The bill with the qualification was by appellant accepted as true and correct in the trial court and filed by him therein. Under the settled law of this state when appellant excepted and filed the bill of exception as qualified by the trial court, he became bound by such qualification, and it will be presumed that the qualification was made with the consent and approval of appellant. The qualification becomes a part of the bill itself and is controlling as to the facts stated therein. We, therefore, must accept the same as true. Craddock v. Humble Oil & Refining Co., 234 S.W.2d 137, 141 (Tex.Civ.App., Ft. Worth, 1950, writ ref., n.r.e.); Kirkland v. Texas and Pacific Railway Company, 372 S.W.2d 367 (Tex.Civ.App., El Paso, 1963, writ ref., n.r.e.); Hall v. Texas Department of Public Safety, 413 S.W.2d 470 (Tex.Civ.App., Austin, 1967, n.w.h.); 4 Tex.Jur.2d, p. 47, sec. 517; Rule 372, Texas Rules of Civil Procedure, secs. (i) and (j). Duenkel v. Amarillo Bank & Trust Co., 222 S.W. 670 (Tex.Civ.App., Amarillo, 1920, writ ref.); Republic Underwriters v. Howard, 69 S.W.2d 584, 592 (Tex.Civ.App., Eastland, 1934, writ dism.); Lowrimore v. Sanders, 129 Tex. 563, 103 S.W.2d 739 (Tex.Sup., 1937).

In preparation of findings of fact and conclusions of law in cases tried by the court without a jury, the trial judge is required to find only ultimate, controlling issues of fact raised by pleadings and tendered by evidence, and is not required, even upon timely request, to make findings on issues of fact that are only evidentiary and incidental in nature. Cowling v. Colligan, 307 S.W.2d 841 (Tex.Civ.App., Waco, 1957, reformed and affirmed by the Supreme Court, 158 Tex. 458, 312 S.W.2d 943; Wade v. Taylor, 228 S.W.2d 922 (Tex.Civ.App., Amarillo, 1949, n.w.h.); Moore v Campbell, 254 S.W.2d 1018, 1024 (Tex.Civ.App., Austin, 1953, writ ref., n.r.e.).

Also under our Rules of Civil Procedure where there is a conflict between provisions of a bill of exception and statement of fact, those in the bill control. Rule 372(k), T.R.C.P.; Johnson v. Allen, 285 S.W.2d 771, 777 (Tex.Civ.App., Eastland, 1956, n.w.h.; Aguilera v. Reynolds Well Service, Inc., 234 S.W.2d 282 (Tex.Civ.App., San Antonio, 1950, writ ref.).

Nevertheless in our opinion the trial court did make all the necessary findings of ultimate issues upon which the case was determined. A full and complete statement of facts is before this court and no prejudice could be said to have accrued to appellant. Dillingham v. Dillingham, 434 S.W.2d 459, 462 (Tex.Civ.App., Ft. Worth, 1968, writ dism.).

Appellant by his points of error three, four and five contends that the trial court abused its discretion in the division of the property and by placing a special lien against all the property owned and/or claimed by appellant.

The court in its judgment pursuant to a stipulation entered in open court awarded to appellee Doris Mea certain items of furniture and other personal property owned by her prior to this marriage. In respect to the disposition of the other property involved, which forms the basis of this appeal, the judgment provides:

'IT IS FURTHER ORDERED, ADJUDGED and DECREED by the Court that Cross-Plaintiff, DORIS MEA, do have and recover of and from the Cross-Defendant, JOSEPH MEA, the sum of NINETY THOUSAND AND NO/100 ($90,000.00) DOLLARS, together with six per cent (6%) interest per annum thereon from date of Judgment until paid, and for all costs of suit, which sum the Court in the exercise of its discretion pursuant to the laws of the State of Texas finds to be just, right, fair and equitable without regard to whether the property so divided is community, separate, or mixed, taking into consideration all of the evidence in the record, including but not limited to the cause of the parties' inability to live together as husband and wife, the benefits DORIS MEA would have derived from the estate or through a continuance of the marriage, disparity in earning powers of the parties, business opportunities, capacities and abilities, and the relative conditions of the parties, their obligations, ages and the relative size of their separate and community estates.'

The appellant contends that the portion of the judgment awarding to appellee the sum of $90,000.00 is manifestly unjust to him.

Omitting the formal parts, the court's findings of fact are as follows:

'1. During the marriage of JOSEPH P. MEA and DORIS MEA, Joseph P. Mea was guilty of excesses, cruel treatment and outrages towards Doris Mea.

'2. During this marriage JOSEPH P. MEA was in full control of the company, MEA INTEREST, INC. of Texas, and the company, MEA INTEREST, INC. of New Jersey by virtue of the fact that he owned the only voting stock in such companies. Prior to the marriage and during the marriage of JOSEPH P. MEA and DORIS MEA, Joseph P. Mea made all of the decisions regarding corporate matters, including disbursements of funds, without consulting any other officer or director. By virtue of such control of the corporations, it is the finding of this Court that all of the income of such corporations was under his control and/or subject to his appointment as shown by the evidence.

'3. JOSEPH P. MEA owns substantial separate property.

'4. DORIS MEA owns no separate property other than that mentioned in the Judgment.

'5. JOSEPH P. MEA's earning capacity is very impressive, and by conventional standard he has the ability to make and earn large sums of money.

'6. By comparison DORIS MEA has a small earning capacity.

'7. JOSEPH P. MEA's business opportunities are prospectively lucrative.

'8. DORIS MEA has no business opportunities.

'9. DORIS MEA was not at fault in the break-up of the marriage.

'10. DORIS MEA could have reasonably anticipated and expected to gain great financial benefits as a result of the continuation of this marriage.

'11. The business abilities of the respective parties are widely divergent in that JOSEPH P. MEA is involved in several companies that gross large sums of money each year, and DORIS MEA's ability is limited to working as a clerk or secretary for weekly or monthly wages.

'12. The length of the marriage, the relative ages and health of each of the parties was also considered in arriving at a proper, just and equitable property division.

'13. The net worth of the parties without regard as to whether the property comprising such net worth is community, separate or mixed, is...