Stanley v. Stanley

• Decision Date: 24 September 1956
• Docket Number: No. 6610,6610
• Citation: 294 S.W.2d 132
• Parties: Mary Hare STANLEY, Appellant, v. Theodore Hawkins STANLEY, Appellee.
• Court: Texas Court of Appeals

Page 132

294 S.W.2d 132

Mary Hare STANLEY, Appellant, v. Theodore Hawkins STANLEY, Appellee.

No. 6610.

Court of Civil Appeals of Texas, Amarillo.

Sept. 24, 1956.

Rehearing Denied Oct. 22, 1956.

Simpson, Clayton & Fullingim, Amarillo, for appellant.

Sanders, Scott, Saunders & Smith, Amarillo, for appellee.

PITTS, Chief Justice.

This majority opinion has been prepared for announcement in lieu of a minority opinion. This appeal is from a judgment rendered in a case filed by appellant, Mary Hare Stanley, against appellee, Theodore Hawkins Stanley, seeking a divorce and an adjudication of property rights between the parties. No children were born to the marriage. The case was tried to the court without a jury and judgment was rendered granting appellant a divorce and dividing the property between the parties by awarding appellant approximately two-thirds of the property, except for the sum of $6,711.37 which was separately traced into the home hereinafter mentioned and which the trial court awarded to the appellant as her separate property, and by awarding to appellee approximately one-third, after deducting the sum of $6,711.37 from the total value of the property as appellant's separate property. Appellant perfected an appeal to this court but complains here only about the division of the property. No complaint is here made by either party about the issue of divorce.

In her points presented appellant charges in effect that the trial court erred in finding and concluding that appellant had forfeited her right to her separate estate owned by her before her marriage to appellee; that the trial court erred in applying the doctrine of co-mingling of property in this case and in concluding that the property in question, except for the sum of $6,711.37, was community property between the parties and that appellant was charged with the burden of proof in establishing her rights, if any, to any separate property she claimed; that the trial court abused its discretion in adjudicating the rights of the parties in connection with the property awards; that the trial court erred in finding that appellee did not, by his acts, consent, acquiescence and conduct, give to appellant as her separate estate all of the income, rents and revenues, increases and earnings, realized from her separate property during the marriage of the parties; that the trial court erred in its failure to find that appellee was indebted to the separate estate of appellant by reason of loans made to him by appellant out of her separate estate; and in effect that the evidence did not support the material findings of the trial court.

Appellee joins issue with appellant on the assignments presented and likewise files cross assignments complaining because the trial court found and concluded that the sum of $6,711.37 was separate funds of appellant's and because it failed to charge against any separate estate found to belong to appellant the sum of $4,500 advanced by the community estate to appellant to pay her income taxes before the marriage of the parties.

In its judgment the trial court described the property here involved and at the request of appellant made and filed separately its findings of fact and conclusions of law, which support the judgment. In its judgment it listed the properties and their agreed values as follows:

After deducting the value of appellant's separate property in the sum of $6,711.37 from the total value of the said sum, property of the value of $89,620.69 remains, which latter sum the trial court found and concluded to be community property between the parties and awarded appellant property of the value of $59,738.80 and appellee property of the value of $29,881.89, finding in support thereof that such a division was fair and equitable. The only real estate shown is the 'Home at 1511 Austin, Amarillo, Texas,' valued at $26,300, which among other property was awarded to appellant. Appellee was awarded the Cowboy Cafe at Canyon, Texas, valued at $9,350 and all equity of the value of $611.86 in the 1955 Chevrolet Station Wagon, together with cash in the sum of $19,920.03, and appellant was awarded the remainder of the property. Appellee voluntarily placed in the registry of the trial court a special warranty deed in favor of appellant to the Amarillo home located at 1511 Austin Avenue, valued at $26,300 and appellant has placed in the registry of the trial court a cashier's check in the sum of $19,920.03, both placed there subject to order as a result of a final judgment in this case.

The record reveals that the parties were married from August 17, 1949, until on or about September 17, 1954. The trial court found that during the marriage their properties had earned $84,044.63, which earnings were found to be community property and were mixed and co-mingled with appellant's separate property, except for the sum of $6,711.37, by placing it all together during their marriage in various bank accounts, in a safety deposit box and by investing it in the various business enterprizes herein mentioned and by withdrawing therefrom and adding thereto large sums at various times without keeping any kind of a record separating the funds much of the time; that because of the mixing and co-mingling of the community property of the parties, during the marriage, with appellant's separate property owned by her before her marriage, her separate property has lost its identity and cannot be traced or identified, except for the $6,711.37 previously herein shown, either by herself or by a certified public accountant who had been employed by appellant for a number of years and was familiar with her accounts and her business operations and who testified for her at the trial; and that the parties by their acts and conduct really treated the purchasers of their various properties as community property without specifying that any certain item was the separate property of either spouse. The trial court found further that there was no competent evidence or testimony to support appellant's claims that appellee had given to her the earnings during their marriage or that such were given to her by reason of appellee's acts, consent, acquiescence or conduct, or by reason of estoppel. The court further found that appellant was about 25 years older than appellee and was in failing health and because of these and other disparaties shown she was entitled to more than half of the community property owned by the parties (the record reveals that the appellant was about 65 and appellee was about 40 years of age at the time of the trial).

On a certified question in the case of Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21, 23, in discussing the power vested by statute in the trial court, Judge Greenwood, speaking for the Supreme Court, said:

'The court pronouncing a decree of divorce is invested with wide discretion in disposing of any and all property of the parties, separate or community, and * * * its action, in the exercise of such discretion, should be corrected on appeal only where an abuse of discretion is shown in that the disposition made of some property is manifestly unjust and unfair.'

The Hedtke case was followed by Clark v. Clark, Tex.Civ.App., 35 S.W.2d 189, writ dismissed; Housewright v. Housewright, Tex.Civ.App., 41 S.W.2d 1071, writ refused; Scannell v. Scannell, Tex.Civ.App., 117 S.W.2d 538; Hamm v. Hamm, Tex.Civ.App., 159 S.W.2d 183; Hendrick v. Hendrick, Tex.Civ.App., 222 S.W.2d 281, and numerous other cases.

In a divorce action, the trial court shall decree and order a division of the estate of the parties in such a way as it may deem just and right, having due regard for the rights of the parties. Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002. In doing so, the trial court may take into consideration the difference in ages of the parties or any other disparity between the earning powers of the parties, the business opportunities, capacities and abilities and is not required to divide the property equally. Venezia v. Venezia, Tex.Civ.App., 227 S.W.2d 881 and the many other authorities there cited.

It is presumed that all of the property which the husband and wife possess at the dissolution of marriage is community property and the burden to show otherwise is upon the party who alleges to the contrary. Earnest v. Earnest, Tex.Civ.App., 223 S.W.2d 681. Such a rule applies to realty acquired during marriage as well as to personal property. Rippy v. Rippy, Tex.Civ.App., 49 S.W.2d 494. The presumption of the community character of the property acquired by either spouse during marriage is very strong, and can be overcome only by clear and convincing proof that it belongs to one or the other of them, and the burden of proving its separate character is always upon him who asserts it. Skinner v. Skinner, Tex.Civ.App., 202 S.W.2d 318; Harkness v. McQueen, Tex.Civ.App., 232 S.W.2d 629. The fact that at the time of the marriage one spouse had much property and the other had nothing and that during the marriage relation the parties decreased in fortune, will not rebut the presumptions herein mentioned, unless the purchase money or consideration for the property is explicitly traced to the separate property of the spouse having the original ownership of the 'mcuh property' previously mentioned. Rippy v. Rippy, supra.

With reference to the co-mingling of funds by the husband and wife while married to each other:

'The law in Texas is to the effect that where separate and community property are so intermixed that the separate property loses its identity and cannot accurately be traced, the co-mingled fund, and property acquired therewith, becomes community property. Stated in another way, where a husband or wife permits his or her separate property to become so co-mingled with community property that it cannot be identified, the separate property comingled becomes community property. See Tex.Jur., 10 Yr.Supp. Vol. 5, Sec. 67a, p. 595; Hudspeth v....