Thompson v. Thompson

• Decision Date: 12 June 1964
• Docket Number: No. 16546,16546
• Parties: Pearl Arlene THOMPSON, Appellant, v. Eulys Leonard THOMPSON, Appellee.
• Court: Texas Court of Appeals

Page 632

380 S.W.2d 632

Pearl Arlene THOMPSON, Appellant, v. Eulys Leonard THOMPSON, Appellee.

No. 16546.

Court of Civil Appeals of Texas, Fort Worth.

June 12, 1964.

Rehearing Denied July 10, 1964.

H. Tod Weaver and James F. Hoge, Jr., Fort Worth, for appellant.

McDonald, Sanders, Nichols, Wynn & Ginsburg, and Ernest E. Sanders, Fort Worth, for appellee.

LANGDON, Justice.

This case is companion to the case of Thompson v. Bott, 380 S.W.2d 640, in which this court handed down its opinion this same date.

On July 12, 1962 suit was instituted by appellee, Eulys Leonard Thompson, against his wife, Pearl Arlene Thompson, appellant, for divorce, division of property, award of custody to his wife and for reasonable visitation and child support.

On August 6, 1962 appellant filed her original answer and a counterclaim and cross-action against appellee and Ruth Bott, a feme sole. She alleged that appellee had conveyed 178 Shares of Thompson Auto Loans, Inc., stock to Ruth Bott in violation of her community rights and that such transfer of stock should be set aside.

On December 5, 1962 appellant filed a cross-action for divorce and division of property.

The case was tried to a jury on twenty special issues. It found each party guilty of such cruel treatment as to render living together insupportable. It answered fifteen issues concerning market value, specific indebtedness, and other matters relating to community property and awarded appellant $5,000.00 attorney's fees.

Judgment was rendered awarding a divorce to the appellee, decreeing a division of the property, awarding custody, child support and $5,000.00 in attorney's fees.

The appellant in appealing attacks the judgment of divorce, division of the property, amount of child support and the amount of attorney's fees, based upon thirty assignments of error.

We affirm.

Appellant by her first point of error presents four contentions as follows, (1) the acts of appellee were such as to deny him a divorce because of recrimination, (2) her acts were of a lesser degree, (3) no evidence to support the judgment of divorce and (4) same was contrary to the great weight of evidence.

No issues were requested or submitted on the defense of recrimination or inquiring as to the degree of cruel treatment of the respective parties.

'Upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and upon which no issue is given or requested shall be deemed as waived.' Rule 279, Texas Rules of Civil Procedure. Evidence relating to this point was not conclusively established. It was controverted in every essential detail.

In McFadden v. McFadden, 213 S.W.2d 71 (Amarillo Civ.App., 1948, Mand. Overr.), the jury, as here, found both parties guilty of cruel treatment. The court held: 'The doctrine of recrimination is observed in a number of jurisdictions in this country and, under it, where it is shown in divorce cases that both parties have been guilty of cruel treatment, a divorce will not be granted. It is now well settled however, that in this state, as well as a number of others, the rule is relaxed and that of comparative rectitude is recognized. In such cases the court has the duty of weighing the conduct of the respective parties and is authorized to grant a divorce to the one who is lesser guilty. Marr v. Marr, Tex.Civ.App., 191 S.W.2d 512; Beck v. Beck, 63 Tex. 34; Jones v. Jones, 60 Tex. 451.' The court further said: 'The question is largely within the sound discretion of the trial court and especially so when it is presented by findings of the jury, as it was in this case. We conclude therefore that the court properly weighed the conduct of the respective parties and that the conclusion reached was the correct one.' We hold to the same effect.

As to the contention of no evidence, we must disregard all unfavorable evidence and consider only that favorable to the verdict. Concerning the contention that the judgment was contrary to the great weight, this court, to warrant reversal, must find from the record as a whole that the granting of the divorce was so against a great preponderance of the evidence as to shock the conscience. In applying these rules we find the testimony of appellee and other witnesses in support of the finding of cruel treatment on the part of appellant to be clear and convincing. Evidence is so extensive in this regard that we see no necessity to recite it in any detail.

Appellant complains of the court's action in granting summary judgment ot Ruth Bott and in reading a portion thereof to the jury and commenting thereon and in refusing cross-examination of Bott concerning the transfer of the stock to her. Appellant also complains of the court's failure to enjoin Ruth Bott from disposing of the 178 shares of stock. Since these points are closely related they will be considered as a group.

In the appellant's counterclaim and cross-action against appellee and Ruth Bott she alleges the stock transfer in question occurred on September 20, 1961, some months prior to the institution of the divorce action. Mrs. Bott filed a motion for summary judgment with supporting affidavit. It is without dispute that Mrs. Bott paid $10,000.00 cash for the stock. There was no tender or offer to return the money which Mr. Thompson received for the stock. It must be presumed from the circumstances of the transfer that the $10,000.00 became a part of the community assets. There is no evidence in the record to the contrary. Thus the appellant's suit against Bott to cancel the sale of the corporate stock was for the benefit of the community estate of the Thompsons. The community estate originally had 592 shares of such stock. There remained in the community 414 shares after transfer of the 178 shares to Mrs. Bott. In its judgment of divorce the court found that the community estate consisted of 414 shares of the stock and awarded to each of the parties 207 shares. Thus the court in granting Mrs. Bott's motion for summary judgment in effect found that the 178 shares of stock belonged to Mrs. Bott and therefore were no longer a part of the community estate. The appellant in her reply to the motion for summary judgment raised no issue of fact as to a fraudulent disposition of the community property by appellee to Mrs. Bott. Finding no genuine disputed fact issues involving the stock transfer the court granted the motion for summary judgment. This effectively took the issue of the 178 shares of stock out of the case. It narrowed the scope of the trial to that extent and the court retained full power to make one complete adjudication on all aspects of the case at the proper time.

It was therefore proper for the court to permit the reading of pertinent portions of the summary judgment to the jury, with instructions that it should not consider the matters therein disposed of as having any bearing on any issue involved in this suit. For the same reason the court properly refused examination of a witness concerning the stock transaction and to enjoin Ruth Bott from disposing of the stock.

In considering the contention that the court's division of the property was inequitable and constituted an abuse of discretion it is the duty of this court to indulge every reasonable presumption in favor of a proper exercise of discretion by the trial court in dividing the properties of the parties. Ingham v. Ingham, 240 S.W.2d 409 (Amarillo Civ.App., 1951, Mand. Overr.); Mozisek v. Mozisek, 365 S.W.2d 669 (Fort Worth Civ.App., 1963, Dismissed).

A proper construction of the judgment in the light of the whole record and the court's recitals in the judgment shows the court did partition the property.

The provisions of Art. 4638, Vernon's Ann.Civ.St., do not require the division of property to be equal. The court can be controlled by what the facts lead him to believe is just and right. Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299 (1960).

Under the statute, the court hs wide discretion and power to determine questions of fact in respect to the division or partition of the property between the parties to a divorce and such awards will not be disturbed unless there is a clear abuse of discretion. Kollenborn v. Kollenborn, 273 S.W.2d 660 (Fort Worth Civ.App., 1954, Dismissed); Milligan v. Milligan, 282 S.W.2d 127 (San Antonio Civ.App., 1955, no writ hist.).

We find no abuse of discretion on the part of the trial court in the disposition of the property.

Appellant's points 7, 8, 10, 27 and 30 are based upon acts of the court which are not complained of in the motion for new trial and therefore the errors, if any, have been waived by appellant. The point concerning the court's refusal to enforce temporary orders is now moot.

Point 8 above referred to and point 9 complain of the court's action in refusing to permit appellant to take the oral depositions of certain witnesses. Appellant made known her desire to take the oral deposition of some fifteen witnesses. Following a hearing she was authorized to take the deposition of four witnesses. The order provided that the depositions of the other witnesses could be taken for good cause. There is no showing that appellant ever filed an application or otherwise requested the court to permit the taking of additional depositions or that she took the four depositions authorized. Clearly, under its order the trial court would have permitted the taking of the deposition of any material witness upon request of appellant.

Under point fourteen the appellant complains of the court's action in permitting the appellee, during pendency of the suit, to borrow $30,000.00 additional to the $20,000.00 already owned to the bank, and thereby encumber and dissipate the community assets.

Under undisputed evidence the Circle 6 Auto Parts, a partnership between appellee and Boyd, owed Thompson Auto Loans, Inc., in excess of $30,000.00. A good part of the $30,000.00 borrowed was paid on the obligations to Thompson...