Ramirez v. Ramirez

• Decision Date: 26 June 1975
• Docket Number: No. 971,971
• Citation: 524 S.W.2d 767
• Parties: Baldomar S. RAMIREZ, Appellant, v. Maria Luisa Vasquez RAMIREZ, Appellee.
• Court: Texas Court of Appeals

Page 767

524 S.W.2d 767

Baldomar S. RAMIREZ, Appellant, v. Maria Luisa Vasquez RAMIREZ, Appellee.

No. 971.

Court of Civil Appeals of Texas Corpus Christi.

June 26, 1975.

Raul A. Gonzalez, Jr., Brownsville, for appellant.

Tony Martinez, Joe W. Walsh & Associates, Brownsville, for appellee.

OPINION

NYE, Chief Justice.

This is an appeal from the judgment entered in a divorce action. Appellee, Maria Luisa Vasquez Ramirez, instituted this suit against appellant Baldomar S. Ramirez, seeking a divorce, custody of their minor child and a division of the estate of the parties. After a trial before the Court, sitting without a jury, judgment was entered dissolving the marriage, granting custody of the child to the appellee and dividing the property. Appellant Baldomar Ramirez has duly perfected his appeal to this Court limiting his complaint on appeal to the Court's action in the division of the property.

The parties herein, Maria Ramirez and Baldomar Ramirez, were married on or about December 16, 1951. During the pendency of the marriage, the parties adopted a child in 1963. The parties subsequently ceased living together on May 3, 1974. The wife filed her petition for divorce on May 6, 1974. The trial court granted the wife the divorce, named her as managing conservator, and divided the property.

The property division made by the trial court was as follows: Maria Ramirez was awarded (a) the 1972 Ford LTD automobile; (b) the household furniture; (c) the color T.V.; (d) the house and a lot located on Farm Road 803, Cameron County, Texas, being 1.61 acres of land out of 50 acres.

Baldomar Ramirez was awarded: (a) the 1965 Ford Fairlane automobile; (b) a 16 aluminum boat and a 90 horsepower motor; (c) an International Scout automobile; (d) the Farmall tractor-equipment; (e) 1 share in Farmers Gin Association; and (f) the balance of the 50-acre tract of land. The properties awarded were subject to any indebtedness charged against them.

The court ordered that all other debts and financial obligations were to be paid by the husband. Finally, the court awarded to the minor child certain stock shares and certificates of deposit of which there is no complaint. The record reveals that the house and land (a 50 acre tract) was property inherited by the husband prior to his marriage, and as such, constituted his separate property. After the marriage the parties moved into the house and made various improvements on the house, enhancing its value by some $2,500.00 from its original state. There is no dispute by the wife that the 50 acre tract upon which the house was located was the husband's separate property.

The husband limits his appeal to that portion of the judgment divesting him of title to his separate real property, that being the house and the 1.61 acres on which the house is located. In his two points of error, he complains that the trial court erred and abused its discretion in divesting him of title to his separate real property.

The statutory provision governing the court's action in dividing the property of the parties is Section 3.63 of the Texas Family Code, Vernon's Tex.Rev.Civ.Stat.Ann. (formerly article 4638), which reads: 'In a decree of divorce or annulment the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.' This relatively new provision has raised the issue as to whether the law has changed so that the Courts now have the power to divest a person of his separate real property in a divorce proceeding. We think they do not.

In deciding such question, we believe the legislative history should be considered. The predecessor of Section 3.63 was article 4638, Vernon's Tex.Rev.Civ.Stat.Ann., which reads:

'The court pronouncing a decree of divorce shall also decree and order a division of the estate of the parties in such a way as the court shall deem just and right, having due regard to the rights of each party and their children, if any. Nothing herein shall be construed to compel either party to divest himself or herself of the title to real estate.' (Emphasis added.)

A great deal of confusion arose concerning the last sentence in the above article, that being whether such restriction was limited to the separate real property of a party, or the community real property, or both. However, in 1960, the Texas Supreme Court in Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299 (1960), laid the question to rest. It stated that: 'That part of Art. 4638 contained in the last sentence, which prohibits the divestitute of title by either party to real estate, has no application to the community real estate but applies only to the separate property of each party.' The Supreme Court again in McElreath v. McElreath, 162 Tex. 190, 345 S.W.2d 722 (1961) reaffirmed their prior holding in Hailey by stating that a Texas Court is not authorized to divest either spouse of his or her title to separate property, citing the Hailey case.

After such holdings, there seemed to be no question that a court was without authority to divest either spouse of their separate real property. See also, Reardon v. Reardon, 163 Tex. 605, 359 S.W.2d 329 (1962); Grant v. Grant, 351 S.W.2d 897 (Tex.Civ.App.--Waco 1961, writ dism'd); Harrison v. Harrison, 365 S.W.2d 698 (Tex.Civ.App.--San Antonio 1963, writ dism'd); Alexander v. Alexander, 373 S.W.2d 800 (Tex.Civ.App.--Corpus Christi 1963, no writ); Holmes v. Holmes, 447 S.W.2d 423 (Tex.Civ.App.--Waco 1969, no writ); Hearn v. Hearn, 449 S.W.2d 141 (Tex.Civ.App.--Tyler 1969, no writ).

It should be noted that the restriction the Supreme Court put on the courts with respect to either spouse's separate property related only to their separate real property. Whereas as to personalty, the courts are vested with wide discretion in disposing of any and all property of parties, separate or community. Fitts v. Fitts, 14 Tex. 443 (Tex.Sup.1855); Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21, 23 (1923); Cooper v. Cooper, 513 S.W.2d 229 (Tex.Civ.App.--Houston (1st Dist.) 1974, no writ); Bryant v. Bryant, 478 S.W.2d 602 (Tex.CivApp.--Waco 1972, no writ); Dorfman v. Dorfman, 457 S.W.2d 91 (Tex.Civ.App.--Waco 1970, no writ); Dillingham v. Dillingham, 434 S.W .2d 459 (Tex.Civ.App.--Fort Worth 1968, writ dism'd); Keene v. Keene, 445 S.W.2d 624 (Tex.Civ.App.--Dallas 1969, writ dism'd); Tullis v. Tullis, 456 S.W.2d 172 (Tex.Civ.App.--El Paso 1970, writ dism'd). The court may even go to the extent of decreeing a trust upon the separate estate of the husband for the benefit of the wife. Ex parte Scott, 133 Tex. 1, 123 S.W.2d 306 (1939); Keene v. Keene, 445 S.W.2d 624 (Tex.Civ.App.--Dallas 1969, writ dism'd).

When Section 3.63 of the Family Code was enacted into law and became effective January 1, 1970, it was obvious that the draftsmen omitted the latter provision with respect to divestitute of title to land. The omission of the last sentence of former article 4638 from the present statute (Section 3.63) again created doubt as to its meaning, this time with respect to whether a court now has the authority to divest a spouse of his separate real property. The wife argues that it is clear that the specific deletion of that language, appearing in the last sentence in article 4638, was done for the purpose of relieving the courts of any such limitation. We disagree. Professor Joseph W. McKnight in his commentary on Section 3.63, found in 5 Tex.Tech.L.Rev. 337, 338, states:

'In formulating section 3.63 the draftsman omitted the proviso with respect to divestiture of title to land. But the commentary on the section which was presented to the Legislature, stated that: 'This is a codification of present law.' The misrepresentation was recognized soon after the Family Code was passed but no effective action has been taken to clarify the meaning of this section.'

See also, Huie, Commentary on The Community Property Law of Texas, Vol. 13, Tex.Rev.Civ.Stat.Ann. pp. 45--48; McKnight, Matrimonial Property--Annual Survey of Texas Law, 27 S.W.L.J. 27, 38--39 (1973).

In Bryant v. Bryant, 478 S.W.2d 602, 605 (Tex.Civ.App.--Waco 1972, no writ), the court stated there that: 'Although as a general rule separate property will be restored to its owner . . ., (but) as to personalty, the court is invested with wide discretion in disposing of any and all property of the parties, separate or community.' The court continued by stating: 'We recognize that in Hailey, our Supreme Court was construing old Article 4638, V.A.T.S.; however, the similarity in the wording of old Article 4638, V.A.T.S., and the present Article 3.63 of the Family Code as hereinabove quoted is sufficient to cause this rule of law to be the same.' See also Cooper v. Cooper, 513 S.W.2d 229 (Tex.Civ.App.--Houston (1st Dist.) 1974, no writ); DePuy v. DePuy 483 S.W.2d 883 (Tex.Civ.App.--Corpus Christi 1972, no writ) (concurring opinion) . We have found no Texas case to the contrary.

As further authority, with respect to the legislative intent, Section 3.63 (as well as former article 4638) states '. . . the court shall order a division of The estate of the parties in a manner that the court deems just and right . . ..' There can only be one 'estate of the parties', which belongs to both, that being the community estate. Had the legislature intended the courts to have the authority to divest spouses of their separate real property, they would have used 'estates' of the parties or the legislature would have specifically so stated.

The wife cites as her authority for the proposition that the courts now, under Section 3.63, have the authority to divest a spouse of his separate real property in a divorce proceeding, the following cases: Medearis v. Medearis, 487 S.W.2d 198 (Tex.Civ.App.--Austin 1972, no writ); In Re Marriage of McCurdy, 489 S.W.2d 712 (Tex.Civ.App.--Amarillo 1973, writ dism'd); Schreiner v. Schreiner, 502 S.W.2d 840 (...