Schwethelm v. Schwethelm
| Decision Date | 18 November 1927 |
| Docket Number | (No. 7844.) |
| Citation | 1 S.W.2d 911 |
| Parties | SCHWETHELM v. SCHWETHELM. |
| Court | Texas Court of Appeals |
Appeal from District Court, Bexar County; W. S. Anderson, Judge.
Action by Erna Krueger Schwethelm against Rudolph Schwethelm for a divorce and property adjustment. Decree for plaintiff, and being dissatisfied with the property division, she appeals. Reversed and remanded as to adjudication of property rights, and otherwise affirmed.
Bell & Bell, of San Antonio, for appellant.
Victor Keller and H. S. Groesbeck, both of San Antonio, for appellee.
Rudolph Schwethelm and wife, Erna K. Schwethelm, were married on June 10, 1916, and separated in May, 1924. The wife brought this action for divorce and for a property adjustment. She obtained judgment for the divorce, but, being dissatisfied with the decree for a property division, appealed from that decree. Neither party questions the divorce decree, which must therefore be affirmed.
At the time of the marriage, and for two years prior thereto, appellee was engaged in the feed and grain brokerage business in the city of San Antonio, and continued in that business. At the time of the marriage, he had approximately $9,000 cash in bank, and bills receivable aggregating approximately $2,500, which he subsequently collected. Further, he owned some residence lots, which he sold for approximately $3,000 after separating from his wife, which fact removes the transaction from consideration in this appeal. Appellant owned no property.
Two months after the marriage, appellee bought a lot and constructed and furnished a home thereon, in which the couple dwelt during the eight years they were together. The house, lot, and furniture cost about $8,000. He paid $500 cash when he contracted for the lot in August, and the balance upon the lot, as well as the cost of the house and furniture, in March, 1917, nine months after the marriage. Now appellant claims that this home became a part of the community estate, and sought to recover her interest therein, and for partition. The court found the home to be the separate property of appellee and decreed the whole of it to him, and thus arises the principal question in the appeal.
It is conceded, of course, that property acquired during coverture is presumed to be community property. The burden rests upon the spouse claiming such property to belong to a separate estate to affirmatively establish such claim; the presumption that the property belongs to the community being rebuttable.
There is a great mass of documentary evidence, consisting of passbooks, check stubs, canceled checks, and the like, which was introduced to show appellee's receipts and expenditures during coverture. It would be a wearisome as well as bootless task to set out this evidence in detail here. Appellee's brokerage business was an active one, involving rapidly transpiring transactions, so that it appears to be impossible to pursue the evidence with any hope of determining therefrom the exact or even approximate status of the business at any given time, with reference to profit and loss. As has been shown, appellee had on hand over $9,000 in cash at the time of the marriage. He also had bills receivable to the amount of $2,500. He subsequently collected these bills, but, as it is not shown when, the fact of the collection must be eliminated from consideration in determining whether the funds used in purchasing the home were community or separate funds. Several large transactions occurred between the time of the marriage and the time of the payments on the home. No effort was made upon the trial to segregate profits or losses from the working capital employed in these transactions. Appellee did a comparatively large business during the first year of his marriage, and testified that during that period he suffered heavy losses. It appears that between the date of his marriage and the date he contracted to...
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Duncan v. United States, 16310.
...must be able to prove how much is separate and how much is community * *," Walker-Smith Co. v. Coker, supra; Schwethelm v. Schwethelm, Tex.Civ. App., 1 S.W.2d 911; Finley v. Pafford, And Phillips v. Vitemb, 5 Cir., 235 F.2d 11, reflects these principles. Where, as in Phillips v. Vitemb, sup......
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Gibson v. Gibson, 11686.
...supra." See also: Smith v. Bailey, 66 Tex. 553, 1 S.W. 627; Walker-Smith Co. v. Coker, Tex.Civ.App., 176 S.W.2d 1002; Schwethelm v. Schwethelm, Tex.Civ.App., 1 S.W. 2d 911; Lindemood v. Evans, Tex.Civ.App., 166 S.W.2d 774; Rippy v. Rippy, Tex.Civ. App., 49 S.W.2d 494; Thomas v. Thomas, Tex.......
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Lindemood v. Evans, 11210.
... ... Mayor v. Breeding, Tex.Civ.App., 24 S.W.2d 542; Schwethelm v. Schwethelm, Tex.Civ.App., 1 S. W.2d 911; Davis v. Duncan, Tex.Civ.App., 102 S.W.2d 287 ... On January 29, 1909, Mark Evans, Jr., ... ...
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Peaslee-Gaulbert Corp. v. Hill
...with the fact that appellee's own statement of 'Gross Income' from sales was $48,348.09, made applicable the rule of Schwethelm v. Schwethelm, Tex.Civ.App., 1 S.W.2d 911, and particularly of Smith v. Bailey, 66 Tex. 553, 1 S.W. 627, 628, that '* * * gross gains arising from any sales made o......