Thomas v. Thomas

• Decision Date: 22 May 1975
• Docket Number: No. 16470,16470
• Parties: Virginia THOMAS, Appellant, v. James Bullock THOMAS, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 200

525 S.W.2d 200

Virginia THOMAS, Appellant, v. James Bullock THOMAS, Appellee.

No. 16470.

Court of Civil Appeals of Texas Houston (1st Dist.).

May 22, 1975.

John F. Schaffer, Houston, for appellant.

Michael D. Inlow, Houston, for appellee.

PEDEN, Justice.

Mrs. Virginia Thomas appeals from the judgment entered in a divorce action after a non-jury trial. In her points of error she complains that 1) the trial court's partition of the community property was unjust and unfair, 2) the court failed to consider appellee's civil service retirement fund and 3) the award of child support was inadequate.

All of the property of the parties was community property.

The trial judge did not make findings of fact or conclusions of law in response to the appellant's request for them, but this omission apparently was not timely called to the court's attention as required by Rule 297, Texas Rules of Civil Procedure, so we must affirm the judgment if it can be supported on any theory presented by the record, and we must view the evidence in a light most favorable to the appellee. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1951). Therefore, in reviewing the division of the parties' community estate we accept the appellee's value testimony.

The trial court award to the wife the equity in the parties' home, its furnishings and appliances, an automobile, the bank accounts in her name and possession, half of the parties' U.S. Savings Bonds, proceeds of her thrift and pension plan and all of her personal effects. The husband was awarded the other three bank accounts, the funds accumulated under his N.A.S.A. retirement plan, half of the parties' U.S. Savings Bonds, an automobile and all jewelry and personal property then in his possession.

Approximately $18,059.33 held in a trust for the benefit of the parties' two younger children was ordered held for the same purpose under a written trust to be administered by the parties. The husband was ordered to pay an attorney's fee of $1500 for the wife. The wife was appointed managing conservator of the parties' three children, whose ages were sixteen, thirteen and eleven, and the husband was ordered to make child support payments of $100 per month to each child 'until the child with respect to whom payments are made shall attain the age of eighteen.'

The husband's evaluation of the property awarded to the wife was $25,642. The attorney's fee is a factor to be considered in making an equitable division of the estate. Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002 (1950). When the attorney's fee is added to the value of the wife's share, it amounts to $27,142. Again using the husband's evaluation, and subtracting from his share the $1500 attorney's fee, the value of the property awarded to him is $34,251.66. Thus the husband's share was about 56% Of the total, and the trial court's division favored him by about $7,100.

Article 3.63 of Vernon's Texas Family Code, V.T.C.A. provides: 'In a decree of divorce or annulment the court shall order a division of the estate of the parties in a manner that the court deems fair and right, having due regard for the rights of each party and any children of the marriage.'

The statute makes clear, and it is well settled in Texas law, (both under this statute and the earlier, similarly-worded one) that the trial court has broad discretion in dividing the estate of the parties.

The trial court's action in exercising this wide 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. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923).

The court's duty is to make an equitable division of the estate, considering the conditions and needs of the parties and all of the surrounding circumstances. Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002 (1950). The division need not be equal, Williams v. Williams, 160 Tex. 99, 325 S.W.2d 682 (1959), so long as it is not so disproportionate as to be inequitable, Bowling v. Bowling, 373 S.W.2d 829 (Tex.Civ.App.1963, no writ), and so long as the circumstances justify awarding more than one-half to one spouse. Duncan v. Duncan, 374 S.W.2d 800 (Tex.Civ.App.1964, no writ); Keene v. Keene, 445 S.W.2d 624 (Tex.Civ.App.1969, writ dism.). Justice Claude Williams stated for the court in Waggener v. Waggener, 460 S.W.2d 251 (Tex.Civ.App.1970, no writ):

'The law permits a variety of factors to be looked to as justification for an unequal division. The points of inquiry upon which evidence should be accepted and tested by a trial court in making its decision as to...