Spence v. Spence
| Decision Date | 06 May 1970 |
| Docket Number | No. 359,359 |
| Citation | 455 S.W.2d 365 |
| Parties | Philip S. SPENCE, Jr., et al., Appellants, v. Elizabeth Margaret SPENCE, Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
Max Garrett, Garrett & Letbetter, Houston, Charles R. Slone, Peareson, Scherer, Roberts & Slone, Richmond, for appellants.
Ralph K. Miller, Miller, Gann & Perdue, Houston, for appellee.
By judgment dated August 16, 1968, the Court of Domestic Relations No. 3 for Harris County, Texas, granted Elizabeth Margaret Spence a divorce from Dr. Philip S. Spence, Jr. In that judgment the court awarded to Dr. Spence, as his part of the community property, among other things, a 64-acre tract of rural land in Fort Bend County, Texas. The court awarded to Elizabeth Margaret Spence certain items of property and also 'to further equalize the awards herein made' rendered judgment in her favor against Dr. Spence in the amount of $40,000 and for attorney's fees in the amount of $4,000. That judgment did not fix any lien on any of the property awarded to Dr. Spence to secure his payment.
On August 26, 1968, Dr. Spence filed a motion for new trial in the Harris County divorce case. On September 17, 1968, Dr. Spence filed a motion to dismiss and withdraw this motion for new trial. Thereafter, also on September 17th, he executed an instrument giving 'to my fiancee, Lorain Scribner,' a boat and certain livestock which had been awarded to him in the divorce decree. Also on the same day he executed a deed conveying to Lorain Scribner a lot in Port O'Connor, Texas, which also had been so awarded to him in the divorce decree. Later, but still on the 17th of September, Dr. Spence and Lorain Spence were married by a judge in Harris County, Texas. Thereafter, at 11:10 a.m. on September 17, 1968, a voluntary designation of homestead was filed in Fort Bend County, whereby Dr. Spence designated as his family's homestead the 64-acre tract in Fort Bend County, which had been awarded to him in the Harris County divorce decree.
On October 4, 1968, Mrs. Elizabeth Margaret Spence caused an abstract of the Harris County divorce decree and money judgment to be filed in Fort Bend County in an effort to impose a judgment lien upon the 64-acre tract.
The money judgment in the divorce decree has not been paid. A garnishment of a bank account resulted in a recovery of a small sum of money. This suit was filed by Mrs. Elizabeth Spence in the district court of Fort Bend County, Texas, against Dr. Philip S. Spence, Jr. and his present wife, Lorain Spence. In it the plaintiff sought a judgment setting aside the conveyances to Lorain Scribner (now Lorain Spence), for the foreclosure of an alleged judgment lien on the 64-acre tract, for the appointment of a receiver to take over and liquidate those assets and for certain injunctive relief. The case was tried before the court without a jury. The principal question in the trial court, and here, is as to whether the 64-acre tract was so invested with a homestead character as to render it exempt from the reach of the former wife in satisfaction of the money judgment in the divorce decree. The trial court rendered judgment for the plaintiff, Mrs. Elizabeth Spence granting substantially all of the relief she sought. In general the trial court held that the gifts of the personalty and the Port O'Connor realty to Lorain Scribner were in fraud of Mrs. Elizabeth Spence as a creditor and were void, that the 64-acre tract was not the homestead of Dr. Spence and his newly formed family and that the plaintiff had established a valid judgment lien against that property by filing, on October 4, 1968, the abstract of the Harris County judgment. The trial court appointed a receiver to take over the assets held to be available for the satisfaction of the Harris County judgment and enjoined Dr. Spence from disposing of or secreting his assets.
Dr. Spence and his wife Lorain have appealed complaining, in particular, from that portion of the trial court's judgment which held that the 64-acre tract was not their homestead, and was subject to sale in satisfaction of the money judgment against Dr. Spence. The appellants concede that those portions of the trial court's judgment holding that the gift of the personal property and the Port O'Connor real property were in fraud of creditors and the adjudging that they be set aside are sustainable on the record.
We sustain the position of the appellants . We hold, as a matter of law, that the appellants effectively established a homestead upon the 64-acre tract in question, which homestead prevented the attachment of any judgment lien by the filing, in Fort Bend County, on October 4, 1968, the abstract of the Harris County judgment in favor of the appellee.
When Dr. Spence separated from Mrs. Elizabeth Spence he moved into an apartment in Houston. He is a medical doctor whose practice is in Houston. Soon after Dr. Spence moved into his apartment Lorain Scribner moved into the apartment adjoining his. Mrs. Scribner worked as a secretary in Houston and has continued to do so since her marriage to Dr. Spence. It was the testimony of Dr. and Lorain Spence that after their marriage on September 17, 1968, they went to San Antonio for a short honeymoon. On their return, on September 20, 1968, they moved into a small house on the 64-acre tract. At that time they moved the furniture from the apartment that had been occupied by Dr. Spence out to the 64 acres they did not at that time move the furniture that was in the apartment which had been occupied by Lorain Scribner, because, they testified, the existing house on the 64-acre tract was not large enough to accommodate it.
Before September of 1968, Dr. Spence employed a carpenter to enlarge the living quarters on the 64 acres. When he first started working...
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