Shook v. Shook

• Decision Date: 24 February 1912
• Parties: SHOOK v. SHOOK.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

145 S.W. 682

SHOOK v. SHOOK.^†

Court of Civil Appeals of Texas. Dallas.

February 24, 1912.

On Motion for Rehearing and for Additional Findings of Fact, March 23, 1912.

Appeal from District Court, Navarro County; N. B. Daviss, Judge.

Action for divorce by Carrie B. Shook against J. O. Shook. From a judgment modifying the report of commissioners appointed to partition the community property, plaintiff appeals. Affirmed.

See, also, 145 S. W. 699.

Richard Mays, for appellant. W. W. Ballew, for appellee.

RAINEY, C. J.

Appellant brought suit against appellee for divorce, for custody of their children, and for division of their property. A judgment was rendered granting the divorce, awarding appellant the custody of the children, adjudicating their property rights, and appointing commissioners. Appellee appealed from that judgment, and the judgment was affirmed. Shook v. Shook, 125 S. W. 638. After the return of the mandate, the commissioners proceeded to partition the property in accordance with the judgment and filed their report. The report of the commissioners was excepted to by J. O. Shook; his exceptions being filed on November 12, 1910. Appellant replied thereto setting up the defenses hereinafter urged, and specially that the original judgment was res adjudicata as to matters set up by appellee, Shook, and that the homestead alleged had been destroyed and the Shook family dissolved, under the terms of said decree, and that the court had power to adjust the equities between the estates of the parties, and to adjudge the costs, attorney's fees, etc., against the property of the respective parties and charge the same with liability therefor. The cause came on for hearing upon the exceptions to the report of the commissioners on December 17, 1910, and the court rendered a decree approving the report, except in so far as it undertook to set aside a sufficiency of the community property to indemnify and reimburse Mrs. Shook for the value of her separate property which had been used to pay off community debts, and in so far as said report undertook to subject J. O. Shook's community interest to the payment of $250, allowed as attorney's fee and declared to be a lien thereon. The court held that J. O. Shook's interest in said community real estate was his homestead, and was not liable for the payment of the above sums of money, but held that J. O. Shook was personally liable to Mrs. Shook therefor; and the court rejected that part of the report. Appellant excepted to the judgment so rendered, and gave notice of appeal therefrom."

The trial court's conclusions of fact are as follows:

"First. I find as a fact that the property to be divided by the commissioners of partition was the homestead of plaintiff and defendant at the time of the divorce on December 8, 1908, and their household goods and furniture situated therein, which was the community property of the parties, and belonged to them equally.

"Second. I find as a fact that the commissioners of partition have made a partition and division of the community personal property belonging to plaintiff and defendant; and that said partition thereof so made by them is just, fair, and equitable, and should be approved.

"Third. I find as a fact that the real estate which was to be divided, and which was set apart by the commissioners to Carrie B. Shook with a lien fixed thereupon in favor of J. O. Shook for $250, was the aforesaid homestead of Carrie B. Shook and J. O. Shook at the time of their separation. I find that the same is now so used and occupied by plaintiff, Mrs. Carrie B. Shook. I find that J. O. Shook has no other home-stead than his said undivided one-half interest in said property, and I find that he has been prohibited from using and occupying said homestead by the injunction of this court.

"Fourth. I find as a fact that J. O. Shook is the head of a family, and that he is yet liable for the support of his minor child Merle B. Shook; and I find that as such head of a family he is entitled to have his community one-half interest in said homestead property exempt to him under the Constitution and laws of Texas.

"Fifth. I find as a fact that the commissioners of partition by their partition and report thereof have attempted to divest title out of J. O. Shook to his one-half interest in said homestead property, and to set apart the entire property to Carrie B. Shook charged with a lien of $250, in the attempt to satisfy the judgment of $250 rendered in favor of Carrie B. Shook against J. O. Shook in the original divorce suit, and the community debt of $1,675 for which the property situated on Seventh avenue in the city of Corsicana, Tex., and known as `the rent property' or Caruthers property, was sold by W. H. Church, trustee, to pay the note and deed of trust executed by the Shook Company to the First National Bank for $1,675. And I find that the commissioners of partition have thus attempted to charge the interest of J. O. Shook in said homestead with the aggregate of said two items of $250 and $1,675, to wit, $1,925.

"Sixth. I find as a fact that what is known as `the rent property' or Caruthers property, and which was and is the separate property of plaintiff, Mrs. Carrie B. Shook, was since the rendition of the original judgment in this case, on, to wit, March 2, 1909, sold by said trustee to pay off a debt of $1,600 of the Shook Company. I find that said debt with interest amounts to $1,675, and is the community debt of plaintiff Mrs. Carrie B. Shook and of defendant J. O. Shook; and I find that J. O. Shook was and is liable to pay Mrs. Carrie B. Shook one-half of said $1,675, or $837.50, not all of it, and that he also owes and is liable to pay her the $250 recovered by her against him in the original judgment, together with 6 per cent. interest thereon from December 8, 1908.

"Seventh. I find as a fact that the original judgment in this divorce suit gave possession, custody, control, and nurture of Ford and Merle Shook, the two minor children of plaintiff and defendant, to plaintiff, Mrs. Carrie B. Shook, and that by its express terms said judgment charged and fixed the liability of Mrs. Carrie B. Shook for their support, maintenance, and education. I find that Ford Shook is now of full age.

"Eighth. I find as a fact that said original judgment gave J. O. Shook the right to have possession of Merle one day in each week thereafter, and that J. O. Shook has not had possession of Merle except at infrequent intervals since said judgment and decree of divorce. I find that J. O. Shook has had possession of Merle only as it suits his convenience and inclination at infrequent intervals, and that as much as one month or more sometimes intervenes between his requests for possession of Merle. I find that J. O. Shook has not contributed anything towards the support of Merle Shook, except to provide and furnish her with certain personal apparel, and small amounts of money amounting in the aggregate in all to from $60 to $75 since the date of said divorce decree.

"Ninth. I find as a fact that under the terms of said judgment and decree of...