Newland v. Newland

• Decision Date: 17 October 1975
• Docket Number: No. 17654,17654
• Citation: 529 S.W.2d 105
• Parties: Evelyn NEWLAND, Appellant, v. Leo L. NEWLAND, Appellee.
• Court: Texas Court of Appeals

Page 105

529 S.W.2d 105

Evelyn NEWLAND, Appellant, v. Leo L. NEWLAND, Appellee.

No. 17654.

Court of Civil Appeals of Texas Fort Worth.

Oct. 17, 1975.

Rehearing Denied Nov. 14, 1975.

Leo Patrick Ferris, Fort Worth, for appellant.

T. B. Coffield, Bowie, Cantey, Hanger, Gooch, Cravens & Munn, and S. G. Johndroe III, Fort Worth, for appellee.

OPINION

MASSEY, Chief Justice.

Evelyn Newland sought divorce and partition of property by suit against her husband Leo L. Newland. Trial was before the court. Judgment was rendered granting the divorce and partitioning the property of the parties, plus other relief to the wife not involved on appeal.

Appeal therefrom has been taken by Mrs. Newland, complaining because of that part of the decision that certain real estate was not part of the parties' community estate, but was the separate property of the husband. She also complains that in the event decision that such was separate property of the husband there was inadequate allowance for enhancement of the value thereof as from the parties' community estate; and because the court found, contrary to clear evidence to the contrary, that the separate funds of the husband were not commingled with the community funds of the parties.

We affirm.

Property possessed by either spouse during or on dissolution of marriage is presumed to be community property. Vernon's Texas Codes Annotated, Family Code, Sec. 5.02, 'Presumption'. It is presumed that all property acquired during marriage is community property. Wilson v. Wilson, 145 Tex. 607, 201 S.W.2d 226 (1947). The degree of proof required of a spouse seeking to establish the character of property as separate rather than community, i.e. to overcome the presumption of the law, is that he prove the separate character by 'clear and convincing' evidence or by 'clear and satisfactory' evidence. Van v. Webb, 147 Tex. 299, 215 S.W.2d 151 (1948); Wilson v. Wilson, supra. The requirement is satisfied in certain instances where he is able to trace the original separate property into the particular assets on hand at the time of dissolution of marriage where there has been a change in form, though he must both trace and clearly identify the property as his separate estate. Tarver v. Tarver, 394 S.W.2d 780 (Tex.Sup., 1965); McKinley v. McKinley, 496 S.W.2d 540 (Tex.Sup., 1973). In the absence of agreement to the contrary property purchased with separate funds, or taken in exchange for separate property, becomes the separate property of him whose money purchases or whose property is given in exchange. Dixon v. Sanderson, 72 Tex. 359, 10 S.W. 535 (1888).

Where the evidence shows that separate and community property have been so commingled as to defy resegregation and identification he who is obliged to meet the applicable requirement of proof of separate character of the property cannot discharge the burden of proof incumbent upon him by law and the statutory presumption that the property is of community character should prevail. McKinley v. McKinley, supra.

While most of Mr. Newland's testimony was corroborated by bank records, etc., some was not so supported. Mrs. Newland contends that where there is not corroboration there is lacking the requirement of evidence that it be 'clear and convincing'. She cites Duncan v. Duncan, 374 S.W.2d 800 (Eastland, Tex.Civ.App., 1964, no writ history) and West v. Austin National Bank, 427 S.W.2d 906 (San Antonio, Tex.Civ.App., 1968, writ ref., n.r.e.). We do not believe either case supports the contention. In a suit of this nature between a husband and wife the parties are each able to testify upon material agreements, express or implied, but rarely would any third persons be able to corroborate either. The same applies to action of one with no participation of the other. To adopt the rule for which Mrs. Newland contends would be to deny justice in a great number of cases, indeed in nearly all where the facts are within the knowledge of only one spouse. Of course the fact finder would be entitled to disbelieve and refuse to find for the spouse having knowledge and testifying, but in instances where he is believed and the finding made for him a judgment based thereupon should not be disturbed because of a lack of corroboration of his testimony.

The rule relative to 'clear and convincing' evidence, etc. is a narrow one. In our blended system the rule is in practical effect but an admonition to the judge to exercise great caution in weighing the evidence. The case is decided by the fact finder by a preponderance of the evidence. On a review of judgment by a trial court upon a motion for new trial filed the court should grant a new trial if in his opinion the evidence in support of the verdict does not meet the requirement that it be 'clear and convincing', etc. In such an instance the court could do no more; he should not render judgment contrary thereto. Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206, 209 (1950), in which opinion the court discussed the origin of the rule in courts of chancery where the matters of fact as well as of law were tried by the chancellor, with the operative effect thereof in our Texas practice. On appeal, if there was any evidence supporting the judgment of the trial court neither could the appellate court do more than reverse the judgment and remand the cause.

From the record it is obvious that the court sought to initially decide what was the separate property of either spouse and to consider it aside from that which was community property, with anticipation that it should be restored to its owner upon dissolution of marriage. That the court do so is in accord with the general rule. Fitts v. Fitts, 14 Tex. 443 (1855).

With the separate property ascertained the court proceeded to apportion to the community such appropriate amount as the husband's separate property was enhanced in value by use of community funds as a charge thereon, and to divide the whole of the community property by 'splitting it down the middle', i.e. to apportion to each of the parties one-half (50%) thereof.

There is no complaint of the propriety of an even division of the community estate. The complaint is that property which should have been treated as part of the community estate was determined to be the separate property of the husband and therefore not similarly divided.

There were what might be termed 'four parcels' of real estate which were found and decreed to be the separate property of the husband. As applied to each parcel Mrs. Newland insists that evidence was insufficient to meet the applicable legal requirements to establish its separate character. An extended discussion could be made. We deem it sufficient to say that we have examined and tested the evidence applicable to each parcel, placing the burden of proof upon Mr. Newland. In every instance do we find that he discharged his burden.

In minor aspects, and on several occasions as admitted by Mr. Newland in the record, there was complication because of the following: At and prior to his marriage Mr. Newland had a 'general account'...