Robbins v. Robbins, 13864.

• Citation: 125 S.W.2d 666
• Decision Date: 17 February 1939
• Docket Number: No. 13864.,13864.
• Parties: ROBBINS v. ROBBINS.
• Court: Texas Court of Appeals

Page 666

125 S.W.2d 666

ROBBINS v. ROBBINS.

No. 13864.

Court of Civil Appeals of Texas. Fort Worth.

February 17, 1939.

Rehearing Denied March 10, 1939.

Error from District Court, Tarrant County; A. J. Power, Judge.

Suit by Mrs. Myrtle Robbins against Evins Robbins for divorce and for settlement of property rights, wherein the defendant filed a cross-action for divorce and for settlement of property rights. Judgment for plaintiff, and defendant appeals by writ of error.

Judgment reformed and as reformed affirmed.

Oscar Reed, of Fort Worth, for plaintiff in error.

Homer Baughman and Martin, Moore & Brewster, all of Fort Worth, for defendant in error.

SPEER, Justice.

Mrs. Myrtle Robbins instituted this suit against her husband, Evins Robbins, for divorce and to recover certain real and personal property, to have the title thereto quieted and also to recover of defendant an undivided one-half or community interest in certain barber and beauty shop tools, furniture, fixtures and appliances.

A cross action for divorce was filed by Evins Robbins, the husband, and to establish his alleged community interest in the property claimed by his wife as her separate estate. The wife recovered judgment and the husband has appealed by writ of error to this court. For convenience we shall refer to Mrs. Robbins as plaintiff and to Mr. Robbins as defendant.

The plaintiff alleged all necessary jurisdictional matters and grounds for divorce. No complaint is made by defendant of these pleadings, and it is unnecessary to set them out. She further alleged that at the time she married defendant, she owned certain houses and lots in Fort Worth, Texas, vacant lots in Harris County, furniture and fixtures in a twenty-three room boarding house in North Fort Worth, and approximately $1,000 in money. Allegations were made that defendant was a barber by trade and that on June 4, 1926, after their marriage in March of that year, the defendant was desirous of purchasing a barber shop, and that the parties entered into an oral agreement, by which, if plaintiff would loan defendant $1,000 with which to make the initial payment on the barber shop, he would repay the loan and would agree for plaintiff to have, keep and always retain in her own separate right all rents and revenues from her separate property, as well also all proceeds derived from her labors in operating the boarding house and any other profits she should earn from all sources thereafter, and that she should keep her bank deposits separate from his, for use exclusively by her for investments as she should see fit to make. That she made the loan to the defendant and thereafter, "with the knowledge, consent, direction and acquiescence of the defendant, and in carrying out such agreement between herself and the defendant, she has kept her income from the hotel business conducted by her and the rents, revenues and income from her separate property, and from the property acquired by her from time to time, * * * separate and apart from the community funds, and has with the knowledge, consent, acquiescence and at the direction of defendant deposited her said funds in her own name in a separate bank account as her separate property. * * * That with full knowledge of all the facts defendant did not thereafter make any protest or attempt to interfere with the plaintiff in the operation of her business and in the collection of the income, rents and revenues from her said property as acquired by her as aforesaid, but on the other hand agreed to and assisted her in maintaining her account in her own name and as her separate funds, and with full knowledge and consent acquiesced in and assisted her in purchasing property, * * in her own name and as her own separate property, and in the use of said funds as her own separate property, and had full knowledge, and gave full consent to her making payments on said property so purchased by her from time to time as her separate property out of her separate funds so maintained in her own separate account and in her own name as such."

The petition further shows that since the marriage of the parties, plaintiff has purchased with funds accumulated by her from rents and revenues, and proceeds of her labors, certain real estate, and made valuable improvements thereon, which property is really the bone of contention here. Plaintiff's allegations relating thereto read: "Plaintiff shows that she has purchased with her own separate funds since her marriage to defendant, and in her own name, as her separate property, with the full knowledge, consent, acquiescence and assistance of the defendant herein, and now owns in fee simple as her own separate property the following described real estate and personal property."

Following the foregoing allegations there are enumerated sixteen lots and tracts of land, designated interests in mineral rights to three tracts and all furniture and fixtures, purchased, repaired and replaced in the rooming house operated by her.

It is further disclosed by the petition that defendant did not repay the $1,000 loan, and that plaintiff had further advanced to him approximately $575 out of her separate funds, with which to equip a beauty parlor in connection with the barber shop. Allegations are made that defendant has purchased and paid for, with community funds, said barber shop, beauty parlor and a Studebaker automobile, all of considerable value, and that she is entitled to repayment of her loans and an undivided one-half community interest in each the barber shop, beauty parlor and automobile.

She prayed for divorce, that the title to and possession of her separate property be quieted and vested in her; that her community interest in the barber shop and beauty parlor be established and the property ordered sold and divided in such way as the court should determine their interests appeared, for attorney's fees, alleged to be in the sum of $1,000, and costs of suit.

Defendant answered by general demurrer, general denial and by special pleas, denying the grounds for divorce alleged by plaintiff. He filed a cross action against plaintiff for divorce, and specially denied the claims of plaintiff to all the property alleged by her to have been owned by her at the time of marriage, and alleged all other property described in plaintiff's petition belonged to the community, and was purchased by them from proceeds of their respective efforts, labors, skill and energy, along with the proceeds as rentals and revenues from plaintiff's separate property, all of the reasonable value of $50,000, and capable of producing rentals and revenues in the sum of $750 per month.

Prayer in the cross action was that plaintiff be denied a recovery as prayed for by her, and that he be granted divorce, and an equal division of all property described in the pleadings of both parties, aside from that part admittedly owned by plaintiff at the time of marriage, for a reasonable attorney's fee of $1,500, and for costs of suit.

A jury trial was had and a verdict rendered in response to 29 special issues submitted by the court. In the first 28 special issues, all points of controversy alleged by plaintiff were presented and answered in favor of her contentions. The twenty-ninth issue as submitted and answered found that defendant's alleged grounds for divorce in his cross action did not exist. No objections or exceptions were taken to the issues submitted by the court, and no requested issues were submitted by either party, in addition to those prepared by the court. The jury verdict was returned on October 26, 1937, and the court entered judgment for plaintiff on the 27th day of October, 1937. On October 28, 1937, defendant filed a formal motion to set aside the verdict for the reason it was not supported by but was contrary to both the evidence and law. No action is shown to have been taken on the motion and on the same day the motion was filed, defendant filed a motion for judgment non obstante veredicto. On November 20, 1937, defendant filed what he denominated his first amended motion for new trial, but no original motion for new trial is shown in the record. The motion to set aside the verdict of the jury was no doubt treated as such motion. In any event the amended motion came too late and was properly overruled by the court, on December 11, 1937. Exception was taken to the court's action in overruling the motion for new trial and notice of appeal given.

On April 21, 1938, the court entered a nunc pro tunc order as of December 1, 1937, overruling defendant's motion for judgment notwithstanding the verdict.

An appeal was perfected to this court from the order overruling the motion for new trial, but was subsequently dismissed by this court at the request of defendant, and thereafter, within the statutory time, defendant perfected this appeal by writ of error. In this way the cause is before us for consideration of fundamental errors.

Because of the view we take of this appeal, it is only necessary to state briefly the nature of the judgment entered. It was decreed that plaintiff take all real and personal property owned by her prior to marriage with defendant. She also received all real estate described in the pleadings as being owned by her before marriage and that purchased after marriage from funds earned by her and from rents and revenues therefrom, shown to have been acquired by instruments, which, on their faces, conveyed the title to plaintiff and limited it to her separate use and benefit. She was also awarded judgment against plaintiff for $1,000, as attorney's fees. Further, it was found that the barber shop and beauty parlor and an equity in an automobile were community property. A receiver was appointed to take charge of the community property and to sell and divide the proceeds under the orders of the court. The receiver was directed to sell the barber shop and beauty parlor and to deliver plaintiff one-half of the proceeds,...