Tarver v. Tarver

Decision Date06 October 1965
Docket NumberNo. A-10224,A-10224
Citation394 S.W.2d 780
PartiesA. H. TARVER et al., Petitioners, v. Arline S. TARVER, Respondent.
CourtTexas Supreme Court

Smead & Harbour, Longview, for A. H. Tarver.

L. F. Burke, Longview, R. Dean Moorhead, Austin, for Jack H. Tarver and others.

Kenley, Ritter & Boyland, Jack N. Price, with above firm, Longview, Graves, Dougherty, Gee & Hearon, Austin, for respondent.

CALVERT, Chief Justice.

Arline S. Tarver sued her former husband, A. H. Tarver, for partition of their community estate acquired during nearly forty years of marriage and for an accounting from the date of their divorce on May 19, 1960. The fair market value of all property in the possession of A. H. Tarver and Arline Tarver on that date was $340,545.58. Two children of a former marriage of A. H. Tarver and two children of a deceased son of that marriage, the only heirs at law of the first wife who died intestate, intervened in the case. The intervenors sought, primarily, to recover one-half of the property in the possession of A. H. and Arline Tarver on the theory that the one-half was held by Tarver as trustee for them as heirs of his first wife.

The case was tried to a jury. In response to the only special issue submitted, the jury found that 70% of the property was community of the second marriage. All parties filed motions for judgment notwithstanding the verdict. The trial judge set aside the jury verdict as having no support in the evidence and rendered judgment as follows: (1) Two and one-fourth acres of land in Hardin County, Texas, acquired by A. H. Tarver before his first marriage and having a value of $1,200.00, was found to be his separate property and title thereto was awarded to him. (2) Certain oil royalty and other real and personal property, acquired during the first marriage and having a value of.$19,850.00, was found to be community property of that marriage and was awarded one-half to A. H. Tarver and one-half to intervenors. 1 (3) Certain oil royalty, stocks and bonds, real and personal property and cash, acquired during the second marriage and having a value of $308,212.99, 2 was found to be community property of that marriage and was awarded one-half to Arline Tarver, one-fourth to A. H. Tarver and one-fourth to intervenors. (4) Adjustments were ordered to be made in cash for properties not susceptible to partition in kind. (5) A. H. Tarver was ordered to pay to Arline Tarver $20,579.04 found by the court to be one-half of the net income from their community properties from the date of their divorce on May 19, 1960, to the date of the judgment on May 31, 1963, less certain payments theretofore made. (6) Arline Tarver was ordered to account to intervenors for one-half of the value of a diamond ring found by the court to be community property of the first marriage but to have been a gift from A. H. Tarver to Arline. (7) All obligations of the judgment were directed to bear interest at the rate of 6% from the date of the judgment until discharged. (8) All costs were assessed one-half to Arline Tarver, one-fourth to A. H. Tarver and one-fourth to intervenors. Findings of fact in support of the judgment are set out in the opinion of the Court of Civil Appeals and need not be repeated here.

A. H. Tarver and intervenors perfected a general appeal from the trial court's judgment. Arline Tarver appealed from the judgment only in so far as it (1) taxed one-half of the costs against her, (2) required her to account for one-half of the value of the diamond ring, and (3) denied her a recovery of interest on her one-half of the income from the community of the second marriage after the date of the divorce and before judgment. The Court of Civil Appeals affirmed the trial court's judgment. 378 S.W.2d 381. We affirm.

(1) Arline Tarver did not file an application for writ of error. She seeks by cross-assignments in her answer to the applications of A. H. Tarver and intervenors to challenge those parts of the trial court's judgment from which she appealed to the Court of Civil Appeals. Inasmuch as the Court of Civil Appeals denied her the relief she sought, she has lost her right to complain of these matters in this Court because of her failure to apply for writ of error. Sears, Roebuck & Company v. Robinson, 154 Tex. 336, 280 S.W.2d 238 (1955).

(2) While A. H. Tarver and intervenors have prosecuted separate appeals, there is no antagonism between them and neither seeks relief from those parts of the trial court's judgment in favor of the other. They join in a common effort to overturn the judgments of the courts below only in so far as they favor Arline Tarver. They complain primarily of the trial court's conclusion, approved by the Court of Civil Appeals, that all property acquired during the marriage of A. H. and Arline Tarver was community property of that marriage and of the finding of fact on which the conclusion is based. The finding of fact is as follows: 'Intervenors failed to trace any fund, income or assets of the first community estate into any of the property acquired during the second marriage and held as of May 19, 1960.' They assert that the law does not impose on them a burden of tracing the first community funds, income or assets into the property on hand on May 19, 1960, in order to establish their one-half interest therein; that they made all proof required by law to entitle them to recover one-half of the properties; and that they should have been awarded one-half of such properties and the other one-half should have been divided equally between A. H. Tarver and Arline Tarver. The paramount question in this case, therefore, is whether intervenors had the burden of tracing. If the burden was on intervenors to trace funds, income or assets of the first community estate into the properties on hand which were acquired during the second marriage, and if they failed to discharge the burden, the judgments of the courts below should be affirmed. We hold that they did have the burden of tracing and that they failed to discharge it. The problem and our holding will be better understood if put in proper factual context.

A. H. Tarver and Minnie Ora Peeler were married in 1903. Minnie died November 30, 1918, intestate, leaving three children surviving her: Edward A. Tarver, thirteen years of age, Kathleen Tarver, now Mrs. Kathleen Pfannkuche, ten years of age, and Jack H. Tarver, two years of age. Edward A. Tarver died in 1953, leaving two children, Kathleen Tarver and Edward A. Tarver, Jr., surviving him. The community estate of A. H. and Minnie Tarver at the time of her death consisted of cash, accounts and notes receivable, stocks and bonds, interests in partnerships and joint ventures, oil royalty and real and personal property valued at $348,785.62. The estate had a net worth of $335,942.84. No administration was had on the estate of Minnie Tarver and no guardian of the estates of the children was appointed. A. H. Tarver simply continued to control and deal with the property as though it were his own, recognizing, however, that one-half belonged to his children.

A. H. Tarver and Arline Self were married July 18, 1921. The marriage was terminated by divorce on May 19, 1960. At the time of the marriage, the community property of the first marriage still in the possession of A. H. Tarver had a fair market value of $282,650.41, and the community estate a net worth of $276,670.41. There was a continuing diminution in the value of assets in the possession or control of Tarver until 1931, at which time all properties on hand had a value of $134,174.49 and the combined estates a net worth of $48,688.70. From 1931 to 1960 there was a gradual increase in both book value of assets on hand and net worth of the combined estates. On the date of the divorce, the assets of the combined estates had a book value of $236,473.87 and, on that basis, the estates had a net worth of $205,887.87. When converted to fair market value, the assets of the combined estates had a value of $340,454.58 and the estates a net worth of $309,959.58. Arline Tarver was awarded a one-half interest in all property on hand on the date of the divorce except that which was identified as having been acquired before her marriage.

Tarver never made an accounting to or settlement with the children of his first wife and none was demanded by them until they intervened in this suit. The youngest of the children reached his majority in 1938. All of the children consented to and acquiesced in their father's use of their interests in the properties of the first community for more than twenty-five years after reaching their majority and they knew that assets of the first community would be, and actually were, sold, depleted, depreciated and disposed of during the second marriage and that the proceeds were mixed and mingled with income of Tarver from all sources. Arline Tarver knew as early as 1924 that Tarver had not settled with the children of the first marriage, but she had no control over or active voice in the management of the business affairs of her marriage. From and after 1922, Tarver maintained one bank account in Shreveport, Louisiana, through which was channeled all income from all sources and from which virtually all disbursements for expenses and purchases were made over a period of some thirty-eight years. As long as they remained a part of the family group, the three children of the first marriage and two children of the second marriage were supported and educated, four to college degrees, with funds from the common bank account.

(3) An evaluation of the legal rights of the parties must begin with that part of Article 4619, Sec. 1, Vernon's Texas Civil Statutes, which provides: ' * * * all the effects which the husband and wife possess at the time the marriage may be dissolved shall be regarded as common effects or gains, unless the contrary be satisfactorily proved. * * *' The plain wording...

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