Nail v. Nail
| Decision Date | 08 November 1972 |
| Docket Number | No. B--3317,B--3317 |
| Citation | 486 S.W.2d 761,52 A.L.R.3d 1338 |
| Parties | James B. NAIL, Jr., Petitioner, v. Alice J. NAIL, Respondent. |
| Court | Texas Supreme Court |
Fillmore, Parish, Martin, Kramer & Fillmore, Howard L. Martin, Wichita Falls, for petitioner.
Friberg, Martin & Richie, Gene Richie, Wichita Falls, for respondent.
Section 3.63 of the Texas Family Code 1 requires the Court in a decree of divorce to 'order a division of the estate of the parties in a manner that the court deems just and right . . ..' The controlling question here is whether in this divorce proceeding the accrued good will of the medical practice of the husband, a doctor of medicine specializing in ophthalmology, based as it is on his personal skill, experience and reputation, as well as upon his continuing in the practice, constitutes property that is subject to division as part of the estate of the parties. The trial court and a divided court of civil appeals considered that it was. 477 S.W.2d 395. We hold that it was not.
The problem is posed in this manner. Petitioner, Dr. James B. Nail, Jr. and his wife, Alice J. Nail, Respondent, were married in 1945. He was subsequently licensed to practice medicine and has practiced in Wichita Falls, Texas, since 1956. His wife sued him for divorce which was granted by judgment dated August 12, 1971. The court ordered a division of the estate of the parties and that which is questioned here is the following grant to Alice J. Nail in the decree of divorce:
The supporting findings of fact and conclusions of law of the trial court were these:
'That except for the cruel conduct on the part of the said James Barry Nail, Jr. to Alice Jane Nail, the marriage could have continued.
'That had the marriage continued, Alice Jane Nail would have had the benefit of community income in the approximate sum of $53,000.00 per year.
'That during their marriage, James Barry Nail, Jr., completed his pre-medical education, graduated from medical school, completed his internship and his residency in opthalmology.
'That Alice Jane Nail and James Barry Nail, Jr., accumulated and now own the following community property:
(a) The house and lots located at 4502 Martinique Street, Wichita Falls, Texas;
(b) Valuable household fixtures, furnishings and appliances located in the home at 4502 Martinique Street, Wichita Falls, Texas;
(c) The medical practice of James Barry Nail, Jr.;
(d) Two automobiles; and
(e) One boat and motor.
'There are no liquid assets owned by the community estate of Alice Jane Nail and James Barry Nail, Jr.
'That the value of the assets of the medical practice of James Barry Nail, Jr., is $131,759.64, including all fixtures, furniture, equipment, and the value of the good will that has accrued thereto during the marriage of Alice Jane Nail and James Barry Nail, Jr.
'That the approximate value of Defendant's office equipment and office furniture is $735.47.
'That James Barry Nail, Jr., has an earning capacity of approximately $52,000.00 per year.
'That the earning capacity of James Barry Nail, Jr., will increase in subsequent years.
'That Alice Jane Nail is not trained for any employment.
'I conclude from a consideration of the respective ages of the parties, their earning capacities and abilities, the conduct of the Respondent toward the Petitioner, what the Petitioner could have reasonably expected to receive from a continuation of the marriage, except for the conduct of the Respondent, and from all other factors that it is fair and equitable to grant to the Petitioner Alice Jane Nail, the following property:
(a) . . .
(b) . . .
(c) . . .
(d) A community interest in the medical practice of James Barry Nail, Jr., in the sum of $40,000.00, which said sum shall be payable at the rate of $400.00 per month for a period of 24 months beginning August 1, 1971, and continuing until July 1, 1973. Beginning August 1, 1973, the monthly payments of James Barry Nail, Jr. to Alice Jane Nail should be reduced to $300.00 per month and continue thereafter until the total of $40,000.00 shall have been paid by James Barry Nail, Jr., to Alice Jane Nail, or until the said James Barry Nail, Jr. shall cease to practice medicine; . . .'
It is to be observed that the decree of the court was not based upon a permissible agreement between the parties for support payments to the wife after divorce; nor was it in terms of a court imposed personal obligation of the husband for support of the wife after divorce that would constitute permanent alimony not sanctioned by the statutes and public policy of Texas. See Francis v. Francis, 412 S.W.2d 29 (Tex.1967); Art. 2328b--4, § 2(f), Art. 4637, Vernon's Ann.Civ.St., and Sec. 3.59 of the Texas Family Code. Rather, the decree in the respects under attack purported to be an exercise of the discretionary powers of the trial court in effecting a just and right division of the estate of the parties.
As noted, the trial court found the value of the husband's medical practice to be $131,759.64, inclusive of fixtures, furniture, equipment and accrued good will; but the court further found the value of the furniture and equipment to be only approximately $735.47, thus leaving a valuation of accrued good will in the sum of $131,024.17. The further finding that the wife's community interest therein was $40,000.00 was derived, at least in part, from the testimony of a witness offered by the wife as an expert that the valuation of the good will of a professional practice would have 'a starting point' of 'multiplying one full year's billings by one or one and a half'. This seems so in light of the trial court finding that the...
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