Terrell v. Terrell, 16298
| Decision Date | 26 November 1980 |
| Docket Number | No. 16298,16298 |
| Citation | 609 S.W.2d 841 |
| Parties | Dolores M. TERRELL, Appellant, v. Willie S. TERRELL, Appellee. |
| Court | Texas Court of Appeals |
Dolores M. Terrell, plaintiff, appeals from a judgment denying her claim for partition of military retirement benefits which she alleges were not disposed of in the divorce decree entered in 1973 terminating the marriage between her and defendant, Willie S. Terrell.
Defendant retired in 1964, on the basis of twenty years of service, and the parties stipulated that eighteen of those years were served while plaintiff and defendant were husband and wife. At the time of the divorce, January 17, 1973, defendant had been receiving retirement benefits for more than eight years.
The present suit was filed by plaintiff in 1978.
We consider first the question of whether plaintiff's suit is barred by limitations.
Defendant's claim that recovery is barred because of limitations is based on Shaw v. Corcoran, 570 S.W.2d 96 (Tex.Civ.App. Austin 1978, no writ). In that case the parties were divorced in 1967 and the decree made no mention of the retirement benefits. Shaw retired from the Navy and began receiving retirement benefits in November, 1970. After he refused to pay to his former wife any part of the pension, she filed suit in November, 1970. Shaw filed an answer and the suit was dismissed by his ex-wife in May, 1975. She then filed another suit for partition in May, 1977, and the Austin Court of Civil Appeals held that her claim was barred by limitations.
The result in Shaw is clearly based on the theory that the ex-husband had repudiated the claim of his ex-wife in the "autumn of 1970," and that such repudiation "set in operation the statute of limitations." 570 S.W.2d at 98.
In Cruse v. Cruse, 572 S.W.2d 68 (Tex.Civ.App. Houston (14th Dist.) 1978, writ ref'd, n. r. e.), the divorce decree, dated February 8, 1971, awarded the wife a specified fractional interest in the pension benefits. The husband retired and began receiving retirement benefits in October, 1971. Two months later, in December, the wife sought to hold him in contempt for his failure to pay to her the portion of the pension benefits awarded to her by the divorce decree. These contempt proceedings were dismissed by the trial court in February, 1972, and the wife's subsequent motion for judgment nunc pro tunc, apparently seeking to have the divorce decree modified to include a provision ordering the husband to pay a portion of the pension to the wife, was denied in May, 1972. In April, 1977, more than six years after the divorce and more than five years after the husband began receiving the pension benefits, the wife filed suit seeking an accounting and partition of all the retirement benefits received by the husband since October, 1971. The trial court held that her claim for benefits received by the husband more than two years prior to the filing of the 1977 suit was barred by limitations, and granted relief only as to the benefits received by the husband during the two years preceding the filing of the 1977 suit. The appellate court reversed, granting the plaintiff judgment for her share in all of the retirement benefits received by the husband.
In Cruse the Houston Court of Civil Appeals distinguished Shaw by pointing out that in Shaw there was evidence of a repudiation by the husband of the wife's interest more than five years before the wife filed her suit. The Cruse opinion rejected the contention that limitations began to run when the wife learned that the husband was receiving benefits and keeping the entire proceeds.
We consider Cruse to be controlling in this case on the question of limitations since here there is no evidence of a repudiation of plaintiff's interest by defendant. In this case defendant testified that he had not communicated with plaintiff since the divorce.
The trial court's conclusion that the divorce decree set aside certain community assets to plaintiff and that all other assets "including the Navy pension" were awarded to defendant cannot stand. The portions of the divorce decree concerning community property read as follows:
The Court finds that no community property was accumulated during the marriage other than personal effects, which should be awarded to the person having possession.
It is therefore
ORDERED, ADJUDGED and DECREED by the Court that each party hereto take as his or her sole and separate property all such property as is presently in his or her possession.
The divorce decree was not introduced in evidence. However, the provisions of the decree concerning the division of property were set out verbatim in defendant's answer as supporting his plea that the divorce decree awarded the pension benefits to him. Under these circumstances, the relevant provisions of the decree were admitted by defendant, relieving plaintiff of the burden of proving such provisions.
It is clear that the divorce decree made no mention of the retirement benefits. We reject defendant's contention that the retirement benefits must be considered as "personal effects" in his possession, because, at the time of the divorce, plaintiff was aware that defendant was receiving such benefits. Since the decree did not dispose of this community asset, upon dissolution of the marriage the parties became tenants in common with respect to such benefits and plaintiff is entitled to partition. Busby v. Busby, 457 S.W.2d 551 (Tex.1970); Wilson v. Wilson, 507 S.W.2d 916 (Tex.Civ.App. Houston (1st Dist.) 1974, no writ).
Defendant contends that the judgment below must be affirmed because the trial court found that plaintiff, in the divorce suit, had repudiated or abandoned her claim to the pension benefits. This finding by the trial court is based on defendant's testimony that plaintiff had told him that she wanted nothing from him and that all she wanted was "out" of the marriage, and that at the divorce hearing, which plaintiff did not attend, her attorney had so informed the court. The judgment in the divorce case contains no finding of an abandonment by plaintiff of her claim to any portion of the community estate. The divorce judgment, by awarding to plaintiff some of the community assets, necessarily is an adjudication that there was no such repudiation. In any event, the statement, "I want nothing from him," cannot be reasonably interpreted as meaning "He can have what is mine."
The trial court concluded that plaintiff...
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