Price v. Price

• Decision Date: 29 November 1979
• Docket Number: No. 1281,1281
• Citation: 591 S.W.2d 601
• Court: Texas Court of Appeals
• Parties: Scottie PRICE, Appellant, v. Betty PRICE, Appellee.

Page 601

591 S.W.2d 601

Scottie PRICE, Appellant, v. Betty PRICE, Appellee.

No. 1281.

Court of Civil Appeals of Texas, Tyler.

Nov. 29, 1979.

Kenneth R. Barron, Tyler, for appellant.

Jerry C. Parker, Sammons & Parker, Tyler, for appellee.

MOORE, Justice.

Appellee, Betty Price, instituted this suit against appellant, Scottie Price, seeking a divorce and a division of the property. After a trial before the court, sitting without a jury, judgment was rendered dissolving the marriage. The community property, which consisted only of household and kitchen furniture, was divided between the parties. In addition, the trial court also awarded Mrs. Price a judgment against appellant for the sum of $4,000.00 as well as a $1,000.00 attorney's fee. Appellant perfected this appeal and brings eight points of error attacking only that portion of the judgment dividing the property.

We affirm.

Prior to the marriage, Mrs. Price was a resident of California, having moved there from Texas. Mr. Price, having known Mrs. Price for approximately five years, went to California and proposed marriage. After the marriage the parties returned to his apartment in Tyler, Texas. At that time Mr. Price was approximately thirty-nine years of age and Mrs. Price was thirty-eight. Both parties had children by a prior marriage. The marriage continued for fourteen months; however, the parties only lived together for a period of approximately five months. According to the testimony of Mrs. Price, she was compelled to leave her husband due to his continuous intoxication and failure to return home at night. During the marriage, Mr. Price was employed by A & S Electrical Contractors, Inc., in which he was half owner. He earned approximately $1,400.00 per month plus expenses. At the time of trial, Mrs. Price was employed at a manufacturing concern earning approximately $425.00 per month. During the marriage, Mrs. Price received treatment for a cancerous growth on her lip and testified that further treatment would be required.

The evidence shows that the separate property of Mrs. Price consisted of (1) a 1975 Camero automobile on which she was making payments of approximately $120.00 per month; and (2) a small amount of furniture which she brought into the marriage. Appellant's separate property consisted of (1) one half of the capital stock in A & S Electrical Company that had a book value of $17,060.00 which Mr. Price testified was pledged at a bank to secure a loan of $80,000.00; (2) a $1,500.00 promissory note which he testified was worthless; and (3) furniture and personal effects having an approximate value of $3,000.00. The judgment awarded each party their separate property as listed above.

The community property consisted of household and kitchen furniture. The only testimony with regard to the value of the furniture and household items was given by appellant and was based on the purchase price and the amount of the existing indebtedness against it. His testimony with regard to the amount and value of the property is somewhat confusing. As we understand it, the community furniture had a cost of $3,000.00, and at the time of trial, it had an indebtedness against it of approximately $1,500.00. The record also shows that the parties had community funds of $315.00. The trial court awarded appellant the community furniture, together with the $315.00 in cash. Thus the value of the community property awarded to appellant amounted to $1,815.00. The remainder of the community property which was free and clear of debt consisted of a microwave oven and a lamp valued at $1,000.00. These items were awarded to Mrs. Price. Thus the value of the community property awarded Mrs. Price amounted to approximately $1,000.00.

There is considerable testimony in the record with regard to the sum of $12,000.00 that appellant withdrew from the A & S Electrical Corporation during the marriage. Appellant testified that the funds were withdrawn to pay a debt owed by the corporation to Alton Knight. Mrs. Price testified that her husband told her that the funds were used to finance his share of an insulation business organized by him and Alton Knight. Although she made no effort to trace the funds, she takes the position that the $12,000.00 constituted a part of the community property.

Appellant asserts by his first point of error that the award of a $4,000.00 personal judgment in favor of Mrs. Price constitutes permanent alimony and is therefore contrary to the public policy of this state. By his second point, appellant contends that even if the $4,000.00 personal judgment in favor of Mrs. Price does not constitute alimony, the trial court nevertheless abused its discretion in dividing the property, because the personal judgment rendered against him had the effect of awarding appellee his separate property to the extent of $4,000.00 without just cause. We fail to find any merit in either contention.

The term "alimony" has come generally, in legal parlance, to include an allowance, whether periodical or in gross, judicially made to a wife upon an absolute divorce. The statutes and public policy of this state do not sanction alimony for the wife after a judgment of divorce has been entered. Francis v. Francis, 412 S.W.2d 29 (Tex.1967). Support payments ordered to be made after a divorce from the income from the husband's property, although considered alimony in many jurisdictions, is not considered alimony in this state. When its true meaning is distilled from the statutes and the court's decisions of this state, alimony which contravenes the public policy of this state is only those payments imposed by a court order or decree on the husband as a personal obligation for support and sustenance of the wife after a final decree of divorce. Francis v. Francis, supra, at 32-33.

In applying the above definition, the courts have generally held that the trial court may require one party to make monetary payments to the other after a divorce, so long as a division was referable to the rights and equities of the parties in and to the properties at the time of the dissolution of the marriage. In such a case, the courts have held that the division is not an allowance of permanent alimony in violation of the established public policy. Francis v. Francis, supra; Garrett v. Garrett, 534 S.W.2d 381, 382 (Tex.Civ.App. Houston (1st Dist.) 1976, no writ); In re Marriage of Jackson, 506 S.W.2d 261, 266-67 (Tex.Civ.App. Amarillo 1974, writ dism'd); Nail v. Nail, 477 S.W.2d 395, 399-400 (Tex.Civ.App. Fort Worth), rev'd on other grounds, 486 S.W.2d 761 (Tex.1972); Marks v. Marks, 470 S.W.2d 83, 86 (Tex.Civ.App. Tyler 1971, writ ref'd n. r. e.).

It is undisputed that at the time of the divorce appellant owned a one-half interest in an electrical contracting business where he served as president and earned an annual salary of $16,800.00, plus expenses. Although there is no evidence as to the market value of the business or its annual net earnings, the trial court could have drawn varying inferences and conclusions from the evidence presented, both with respect to the current market value and as to the future use and benefits...