O'Neil v. O'Neil, 1328.

• Decision Date: 26 October 1934
• Docket Number: No. 1328.,1328.
• Citation: 77 S.W.2d 554
• Parties: O'NEIL v. O'NEIL.
• Court: Texas Court of Appeals

77 S.W.2d 554

O'NEIL v. O'NEIL.

No. 1328.

Court of Civil Appeals of Texas. Eastland.

October 26, 1934.

Rehearing Denied November 23, 1934.

Appeal from District Court, Wichita County; Irvin J. Vogel, Judge.

Suit by Frances O'Neil against John O'Neil. From an adverse judgment, the defendant appeals, and the plaintiff cross-assigns errors.

Reversed and remanded.

T. R. Boone and Kearby Peery, both of Wichita Falls, for appellant.

Slay & Simon, of Fort Worth, for appellee.

FUNDERBURK, Justice.

After final decree of divorce in favor of Mrs. Frances O'Neil, against John O'Neil, in a suit from which, prior to judgment, issues concerning the custody of their children and division of their community property had, by agreement, been eliminated, this suit was brought by Mrs. O'Neil against her former husband, as follows:

(a) For custody of their two children.

(b) For one-half of all community property (subject to allowance to plaintiff of a homestead out of same).

(c) For certain separate property of plaintiff in possession of defendant.

(d) For attorney's fees in the divorce suit and this suit.

(e) For the establishment of a trust in favor of plaintiff and said minor children in separate property of the defendant, or in the alternative to have specific payments in money in lieu thereof out of said separate property.

In addition to the above, the suit was treated by all parties as one for the partition of property previously constituting the community estate of plaintiff and defendant. The defendant in his answer presented the contention that he had, out of his separate property, loaned, for use in the business to which the community property was devoted, large sums of money which he was entitled to have repaid, and which if repaid would leave no community property. No separate property of the defendant was traced into any specific community property and any purpose to do so was expressly disclaimed.

The case was tried with a jury up until the parties rested, at which time the trial judge on his own motion, and expressly over the objection of the defendant, discharged the jury and rendered judgment. The judgment recited that it appeared to the court that "the matters in controversy were questions of law and mixed questions of law and fact." Although the record fails to disclose that either party made request for conclusions of fact and law to be made and filed, comprehensive findings of fact were recited in the judgment. Most of the property involved in the suit was real property, but neither the pleadings of any of the parties, nor the judgment of the court, described any such property sufficiently for the purpose of partition. The court decreed that the defendant pay plaintiff the sum of $7,000 at the rate of $300 per month "from the proceeds derived from the rents, royalties and oil runs from the said community estate until said amount of $7,000 is fully paid, and a lien is hereby created against the entire community estate for the payment of the $7,000 in the manner herein set out." It was further decreed that upon the payment of said $7,000 in the manner directed defendant "shall be vested with the title in and to all the community estate, save and except the homestead in Wichita Falls, Texas, and that she (plaintiff) be divested of all title to the community estate, save and except the homestead in Wichita Falls, Texas, and the household and kitchen furniture, and that she be invested with title thereto, and that all of his interest therein is hereby divested out of him." The judgment awarded $3,000 for attorney's fees to certain named attorneys who were not parties to the suit. The amount so allowed as attorney's fees was declared to be a lien against all the community property adjudged to defendant, as well as his separate property. The judgment made no mention of the issue relating to the custody of the children. With reference to the independent cause of action for the recovery of certain separate personal property of the plaintiff alleged to be in the possession of the defendant, the court undertook to award recovery of a part only of it to plaintiff, but did this by directing that defendant deliver it to the clerk of the court to be by the clerk delivered to plaintiff. After judgment, the plaintiff filed a motion to substitute certain findings for some of the findings first recited in the judgment, but the record shows no action on said motion. From the judgment the defendant has appealed.

Included in appellee's brief are certain cross-assignments of error. The judgment recites no exception thereto by either party, but the appellant who filed a motion for new trial, upon the overruling of same, excepted and gave notice of appeal, all of which is recited in the order.

We have had some difficulty in satisfying ourselves that a final judgment is shown, so as to support the appeal. To hold it final we must construe it as having decreed that Mrs. O'Neil was not entitled to the custody of her two minor children. If the pleadings were sufficient to support a judgment in her favor for the custody of the children, then under the decisions of the Supreme Court the failure of the judgment to expressly dispose of that issue raises the implication that it was determined against the plaintiff. Trammell v. Rosen, 106 Tex. 132, 157 S. W. 1161; Beaumont Irrigating Co. v. Delaune, 107 Tex. 381, 180 S. W. 98; Rackley v. Fowlkes, 89 Tex. 613, 36 S. W. 77; Davies v. Thomson, 92 Tex. 391, 49 S. W. 215. The judgment recited findings that certain items of personal property were the separate property of plaintiff, but only awarded her recovery of two items (two rings). The judgment to be final must be construed as denying her recovery of the other items. There are other questions arising upon the record respecting the finality of the judgment; but, in view of the disposition which we have concluded must be made of the appeal if the judgment be final, we have deemed it advisable to assume, without deciding, that the judgment is final and appealable, the contrary not clearly appearing.

Appellant presents a number of assignments of error, but upon submission of the case, and as a part of the oral argument, urged but one question of law, and expressly stated that he waived all other errors, and requested the court that if we did not sustain the one contention to affirm the judgment of the court below. Appellant treats the suit as one for partition of community property, and insists that the undisputed evidence showed that he had made advances of money in specified amounts out of his separate property for the benefit of the community property, in that same had been used in the community business, and that he, therefore, was entitled to have same repaid to him out of the community property, and if any community property remained, to have only such remainder partitioned between the plaintiff and defendant. We think the pleadings in the case were insufficient to support a judgment of partition, but since both parties seem to have regarded the suit as one in part seeking partition, and have made no point of any insufficiency of the pleadings, we have concluded to pass upon the question presented.

The record does not show that the advancements were debts. They certainly were not debts owing by the plaintiff to the defendant. The most that can be said is that the advancements consisted of separate property of the defendant which may, or may not, have entered into improvements of some, or even all, of the community property. No relation of debtor and creditor was created. If the advancements were anything of a nature entitling the defendant to a reimbursement thereof, they were equitable charges, of the character which this court had occasion to consider and discuss at some length in Dakan v. Dakan, 52 S.W.(2d) 1070. The enforceability of such charges is dependent upon certain conditions. In the first place, they are only enforceable in a partition of property held in cotenancy. In the next place, the allowance, or reimbursement, is...