Sibley v. Sibley

• Decision Date: 03 June 1955
• Docket Number: No. 14974,14974
• Citation: 286 S.W.2d 657
• Parties: Wm. David SIBLEY, Appellant, v. Gladys Mealer SIBLEY, Appellee.
• Court: Texas Court of Appeals

Page 657

286 S.W.2d 657

Wm. David SIBLEY, Appellant, v. Gladys Mealer SIBLEY, Appellee.

No. 14974.

Court of Civil Appeals of Texas, Dallas.

June 3, 1955.

Rehearing Denied June 24, 1955.

Burt Barr and Earl R. Parker, Dallas, for appellant.

Sanders, Lefkowitz & Green, and Jack D. Eades, Dallas, for appellee.

PER CURIAM.

This is a duly perfected appeal from only that portion of a divorce proceeding which partitioned the property of the parties, to wit, a 160-acre farm in Kaufman County. The trial court found the property was paid for, 11% out of community funds and 89% out of appellee's separate funds, and entered judgment for appellant for 5 1/2% of the fee in the property and for appellee for 94 1/2% of the fee in the property, and in addition awarded appellee a life estate in the whole farm. Appellant here briefs six points of error.

Point 1 asserts error in the finding and judgment in favor of appellee for 89% of the farm as her separate estate because same is not supported by the evidence. The record shows the farm was purchased during the marriage of appellant and appellee (the parties were married July 24, 1929 and divorced Dec. 9, 1954). The history of the transactions leading up to the purchase of the farm began with the transfer to appellee by appellee's aunt of a certain lot in the City of Dallas which appellee testified was a gift from her aunt to her. The deed recited the consideration as $10 to grantor in hand paid by appellee out of her separate means and estate, the receipt of which was acknowledged and confessed; and conveyed the property to Mrs. Sibley as her separate property and estate. Appellant testified that he paid the $10 recited in the deed out of community funds. Appellee testified the land was worth $2,000 and that the $10 recited in the deed was not paid. The lot in question was traded in as part of the purchase price of another piece of property located on Gaston Avenue. The Gaston Avenue deed recited the consideration as $10 and other valuable considerations. There was evidence that the lot, received by appellee from her aunt, was transferred to the grantor of the Gaston Avenue property as the down payment thereon. The Gaston Avenue deed named appellant as grantee, and the consideration as $165 cash and a note for $335. Appellee testified the two named sums were paid out of community funds. Appellant testified certain improvements were made thereon and were paid for out of community funds. That the Gaston Avenue property was afterwards sold for $4,000 less closing expenses, and the net to them of $3,566.68 was deposited with $2,500 of appellant's separate funds; that on Oct. 11, 1946 the 160-acre farm here involved was purchased for $2,880, $1,929.08 cash and a note for the balance. At the time of the trial the balance due on the note was $200; payments thereon were made from community funds. Appellee testified the proceeds of $3,566.68 were deposited in a joint checking account in Arlington on July 10, 1946, which account at the time had a balance of $1,698.34 which was community funds. Appellant also testified the $1,698.34 was what was left of a $2,500 deposit of his separate funds placed in the joint account about three months before. The joint account on Oct. 16, 1946, with no deposits in the meantime, had been reduced through checks for living expenses to $4,009.46. On Oct. 11, 1946 the $1,929.08 check as the down payment on the farm reduced the account to $2,070.30. In our opinion the testimony of the parties to the suit, being interested witnesses, made questions of fact for the trail judge sitting without a jury, as to the status of all funds on hand at the time of the divorce; that is, whether such funds were community or separate.

The presumption is that where funds are commingled so as to prevent their proper identity as separate or community funds, they must be held to be community funds. However, there are exceptions to the rule or presumption. In divorce proceedings our courts have found no difficulty in following separate funds through bank accounts. Farrow v. Farrow, Tex.Civ.App., 238 S.W.2d 255; Coggin v. Coggin, Tex.Civ.App., 204 S.W.2d 47. Equity impresses a resulting trust on such funds in favor of the wife and where a trustee draws checks on a fund in which trust funds are mingled with those of the trustee, the trustee is presumed to have checked out his own money first, and is therefore an exception to the general rule. U. S. Fidelity & Guaranty Co. v. First National Bank, Tex.Civ.App., 81 S.W.2d 213; Continental Nat. Bank v. Weems, 69 Tex. 489, 6 S.W. 802, at page 805.

The community moneys in joint bank account of the parties are therefore presumed to have been drawn out first, before the separate moneys are withdrawn. Edsall v. Edsall, Tex.Civ.App., 240 S.W.2d 424; Farrow v. Farrow, supra; Coggin v. Coggin, supra; and since there were sufficient funds in the bank, at all times material here, to cover appellee's separate estate balance at the time of the divorce, such balance will be presumed to be her separate funds. Point 1 is overruled.

Point 2 asserts error in holding 89% of the property to be appellee's separate property because the undisputed facts show appellant from his separate estate placed $2,500 in the bank prior to the sale of the Gaston Avenue...