Scannell v. Scannell

• Decision Date: 25 March 1938
• Docket Number: No. 13726.,13726.
• Citation: 117 S.W.2d 538
• Parties: SCANNELL v. SCANNELL.
• Court: Texas Court of Appeals

117 S.W.2d 538

SCANNELL v. SCANNELL.

No. 13726.

Court of Civil Appeals of Texas. Fort Worth.

March 25, 1938.

Rehearing Denied June 3, 1938.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Wichita County; Ernest Robertson, Judge.

Divorce suit by Ethel E. Scannell against Ernest E. Scannell, wherein the defendant filed a cross-action and Ross Robertson and others were joined as parties defendant. Judgment for plaintiff, and defendant Ernest E. Scannell appeals.

Affirmed.

Kilgore & Rogers, of Wichita Falls, for appellant.

J. R. Wilson and Otis Nelson, both of Wichita Falls, for appellee.

SPEER, Justice.

This suit was instituted by Mrs. Ethel E. Scannell against Ernest E. Scannell in a district court of Wichita County, for divorce, custody of two minor children, a division of community property, and for injunction. The parties will carry the same designation here as in the trial court.

The record discloses that plaintiff filed her original petition on October 18, 1935; on October 25, 1935, she filed an amended petition and defendant answered and filed a cross action for divorce as against plaintiff; thereafter, on December 29, 1935, they entered into an oral agreement, to the effect that the pending suits should be abandoned; on that day they also executed a written agreement that all previous conduct complained of in the pleadings by each against the other was forgiven, and that they would resume their former marital relation, and further providing that if either should subsequently become dissatisfied, they would then make a proper division of the community property, vest in the plaintiff the custody of the children, with the defendant supporting them as the law provides, and a divorce obtained if one could be obtained in an action for that purpose.

The case was tried upon plaintiff's fourth amended petition filed July 2, 1936. In this pleading, the above matters were alleged, and that pursuant to the agreement mentioned, they did resume the marital relation on December 29, 1935, and lived together until January 3, 1936, when they permanently separated. All jurisdictional allegations are shown and that the grounds for divorce relied upon by plaintiff arose subsequent to the time they each condoned the past conduct of the other. To this amended pleading, the defendant answered with general denial, special pleas and cross action for divorce. The allegations of both were sufficient to form the basis of the introduction of testimony.

Because of issues presented here, it is necessary to say that after the final separation of the parties, plaintiff filed in another district court of Wichita County a petition for divorce, on January 30, 1936, to which action defendant plead an abatement, on account of the pending suit, filed October 18, 1935; the plea was sustained, and plaintiff filed her second amended petition in the court where her original suit was pending. A third amended petition was filed, on June 3, 1936, making Ross Robertson, Maro Oil Company, Wichita Royalty Company and Mrs. Myrtle Scannell parties defendant; the fourth amended petition was filed on the date shown, to correct the corporate name of the Maro Oil Company, previously interpleaded, so as to read Maro Company, Inc.

Allegations are made that plaintiff and defendant owned as community property certain described real estate, consisting of the home, vacant lots and an oil lease in Archer County, Texas, of the value of $12,000.00. That the personal property consisted of an unliquidated claim against the Wichita Royalty Company, of the value of $25,000.00, certain shares of stock valued at $30,000.00, and cash of approximately $8,000.00. That since the institution of this suit, defendant sold and disposed of the shares of stock and secreted the funds received therefor, along with other cash in his possession, into accounts, and other evidences of claims available alone to himself, and had transferred much of the shares and bonds not so sold to defendants, Robertson and Maro Company, Inc., and had assigned unto defendant, Myrtle Scannell, his mother, the oil lease in Archer County, all for the purpose of cheating, wronging and defrauding plaintiff out of her community interest therein.

Further allegations are made that on about November 25, 1935, and prior to the time they undertook to again live together, they entered into an agreement, by the terms of which they would divide their community property, which agreement provided, among other things, that same was to become effective upon the approval thereof by the court, upon the trial of the divorce proceedings; that said contract was never presented to the court for approval and for that reason was ineffective; further pleading, plaintiff alleged that the separation and division of property agreement was void, for the reason defendant had fraudulently concealed from plaintiff the truth about the existence and values of their community property, and that she was without information concerning it; that she relied upon his statements, which were false and known to him at the time to be false.

Prayer was for the appointment of a receiver to take charge of all community property, including that held by defendants, Robertson, Maro Company, Inc., the Wichita Royalty Company, and Myrtle Scannell, held by them under the fraudulent conveyances and transfers by defendant, Scannell, and to hold the same subject to the orders of the court; that the injunction theretofore issued by the court on former pleadings, restraining defendant from disposing of any part of the property, and from molesting or interfering with plaintiff or the children, be continued in effect; for the cancellation of all said fraudulent assignments and transfers; and, further, that defendant be required to pay to plaintiff alimony, and a specified amount for the maintenance and support of the children pending suit, and for judgment finally for divorce, a fair and equitable division of the property, for custody of the children and for general and special relief, including reasonable attorney's fees, to compensate counsel for representing her in the proceedings.

The defendant's answer consisted of general denial, and specially that by the terms of the property settlement, which was fairly entered into between the parties, all property rights of each had been adjusted and settled; there was special denial of all plaintiff's allegations of fraud, deceit, misrepresentations, fraudulent conveyances and assignments of community property, and that he had, pursuant to said agreement, paid to plaintiff about $1,400.00, which amount should be charged to her in any division the court should order made; that he had taken and received certain property under said property settlement contract, and that the claims of plaintiff cast a cloud upon the title thereof. He further plead that plaintiff had induced him to enter into the renewed marital relation on December 29, 1935, for the fraudulent purpose of inducing him to condone her previous misconduct and to lay a predicate for attacking the validity of the property settlement agreement.

Final prayer was for divorce upon grounds shown in his cross action, for care and custody of the children, for removal of the cloud cast upon his titles by plaintiff's action, and for a fair division of the community property, charging plaintiff with such sums as had theretofore been received by her, a confirmation of the settlement contract and for general and special relief.

A trial was had to jury on special issues submitted by the court. Upon the verdict and other uncontroverted testimony, and the discretionary powers conferred by law upon the court, judgment was entered, in all respects favorable to plaintiff, from which defendant has perfected this appeal.

By the verdict it was found that plaintiff's grounds for divorce existed, and these grounds accrued subsequent to December 29, 1935; that the conditions rendered the parties again living together insupportable; that plaintiff was a suitable person to have custody of the children and that the children's best interest demanded that she have that custody; that $75.00 per month was reasonably necessary to maintain and support the children until they become sixteen years of age; that $1,100.00 was reasonable compensation to plaintiff's counsel as attorney's fees; the jury further found that neither Ross Robertson nor the Maro Company, Inc., had in their possession any property belonging to the community estate; that there was no consideration paid by Mrs. Myrtle Scannell to defendant for the assignment to her by defendant, for the fraudulent purpose of depriving plaintiff of her community interest therein; that since Mrs. Myrtle Scannell had received that assignment, she had received for oil runs therefrom the sum of $851.55; that the reasonable market value of the oil lease was $1,500.00; that defendant had due him some amount for salary by Wichita Royalty Company; that the salary charged that company by defendant was $400.00 per month; the value of the homestead was $6,500.00, the household furniture was valued at $1,000.00, the value of the vacant lots was $800.00, and that the market value of the shares of stock owned by the community estate on October 18, 1935, was $22,437.52.

An interlocutory judgment was entered on December 12, 1936, dissolving the marital relation between the parties, awarding the custody of the children to plaintiff, finding in favor of the defendants, Ross Robertson and Maro Company, Inc., and discharging them with their costs; after the testimony was in and before judgment was entered, the court sustained a plea in abatement in favor of the defendant, Wichita Royalty Company, in which it appeared the only liability of that defendant was contingent upon a contested unliquidated claim held by defendant, Scannell, for salary; the judgment sustaining the plea was without prejudice to either plaintiff or defendant as to...