Trevino v. Trevino

• Decision Date: 31 August 1977
• Docket Number: No. 1175,1175
• Citation: 555 S.W.2d 792
• Parties: Suzanne Marie TREVINO, Appellant/Cross Appellee, v. Jorge H. TREVINO, Appellee/Cross Appellant.
• Court: Texas Court of Appeals

Page 792

555 S.W.2d 792

Suzanne Marie TREVINO, Appellant/Cross Appellee, v. Jorge H. TREVINO, Appellee/Cross Appellant.

No. 1175.

Court of Civil Appeals of Texas, Corpus Christi.

Aug. 31, 1977.

Orrin W. Johnson, Johnson & Davis, Harlingen, for appellant.

John E. Lewis, Adams, Graham, Lewis, Jenkins, Jones & Graham, McAllen, for appellee.

OPINION

YOUNG, Justice.

This is an appeal from a judgment granting a divorce and dividing property. Suzanne and Dr. Jorge Trevino were married on June 23, 1973; the final judgment granting the divorce and dividing their property was entered on May 28, 1976. Both parties filed motions for new trial which were overruled by the trial court on August 30, 1976.

Trial was to a jury which found that the marriage had become insupportable and that the Doctor had been guilty of cruel treatment toward Suzanne. The jury also made fact findings as to values of community property and improvements and that Suzanne should recover $5,700.00 in attorney's fees from the Doctor. The jury further found that the community estate should be divided equally, one-half to each spouse. In accordance with those findings the trial court granted a divorce to the Doctor and ordered the property divided.

Both Suzanne, by sixteen points of error, and the Doctor, by four cross points, complain on appeal primarily about the classifications and the valuations assigned to the property as provided in the trial court's judgment. So both parties appeal. We affirm.

In our consideration of this appeal, we are first confronted with the resolution of the Doctor's motion to dismiss Suzanne's appeal. The motion was filed on March 10, 1977, the same day of but prior to oral submission of this case. The statement of facts and transcript had been filed on November 12, 1976, and December 28, 1976, respectively. The substance of the motion is that Suzanne is estopped to attack the judgment of the trial court because she accepted a $5,000.00 payment under the judgment. For support the Doctor relies on Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002 (1950); Trader v. Trader, 531 S.W.2d 189 (Tex.Civ.App. San Antonio 1975, writ dism'd); Lipshy v. Lipshy, 525 S.W.2d 222 (Tex.Civ.App. Dallas 1975, writ dism'd).

But the Doctor as a result of his delay in filing this motion has waived his right to assert dismissal on the above stated grounds. Rule 404, T.R.C.P., requires that all motions relating to the informalities of bringing appeals must be filed within thirty days after the filing of the transcript or the objection is waived. The Doctor's delay, therefore, clearly resulted in a waiver of any rights to dismissal that might have existed. Seber v. Glass, 258 S.W.2d 122 (Tex.Civ.App. Fort Worth 1953, no writ); DeLange v. Ogden, 106 S.W.2d 385 (Tex.Civ.App. San Antonio 1937, writ dism'd).

Further, we find that this case meets the exception to the rule of law that a litigant cannot treat a judgment as both right and wrong by voluntarily accepting benefits and prosecuting an appeal therefrom. Carle v. Carle, supra. In Haggard v. Haggard, 550 S.W.2d 374 (Tex.Civ.App. Dallas 1977, no writ) that exception is stated as follows:

". . . We are of the opinion that a spouse should not be estopped from appealing an award pursuant to a divorce unless the other spouse would be prejudiced by the appeal to the extent that the wrong could not be remedied upon retrial, or unless the appealing spouse has clearly acquiesced in the judgment. . . ."

In Haggard, the Court went on to note that mere possession of a portion of the community estate awarded does not conclusively establish acquiescence to a judgment. Furthermore acceptance of payment could be based on financial need and thus not make a case for voluntary acceptance as required by the doctrine of estoppel. It was also there reasoned that the acceptance of cash benefits under a judgment do not necessarily prejudice the rights of the other spouse. The Court pointed out that upon redivision of property, if necessary, that the money awarded could be taken into consideration and if there were an insufficient cash award to repay the money accepted, the assets awarded the spouse could be ordered sold to meet the debt.

Suzanne's acceptance of the $5,000.00 awarded was based upon financial need. Further, it is a cash award only and on final distribution of the property Suzanne will have sufficient assets to cover the award. The Doctor's motion to dismiss is overruled. Cherokee Nation v. United States, 355 F.2d 945, 174 Ct.Cl. 131 (U.S.Ct.Cl.1966); Haggard v. Haggard, supra; McCartney v. Mead, 541 S.W.2d 202 (Tex.Civ.App. Houston (1st Dist) 1976, no writ).

The first group of points presented in this appeal (Suzanne's points 1, 2, 3, 4 and 5 together with the Doctor's point 1) deal with the value given to the professional association stock owned by the parties. The jury determined the value to be $3,500.00. The trial court pursuant to this value and to the court's recited scheme of equal division of the community property awarded the stock to the Doctor and an offsetting cash award of $1,750.00 to Suzanne.

The Doctor as cross appellant challenges this action of the trial court by asserting that the stock was the Doctor's separate property. We do not agree.

It is the general rule that all property on hand when the marriage is dissolved is presumed to be community property. Tex.Family Code Ann. § 5.02. To overcome this presumption the party claiming the property as his or her separate property must show by clear and satisfactory evidence that it is his or her separate property. Tarver v. Tarver, 394 S.W.2d 780 (Tex.Sup.1965); In Re Marriage of Greer, 483 S.W.2d 490 (Tex.Civ.App. Amarillo 1972, writ dism'd). We feel that the evidence as presented does not overcome this presumption.

The professional association in question was formed in August and September of 1974 (during the marriage) pursuant to the instructions of Robert Chaffin, a Houston attorney retained to form the corporation. Mr. Chaffin on August 26, 1974, gave a letter to the doctors involved which contained the following instructions:

". . . Each of you will also be required to make a contribution of $500 to the Association as payment for stock which will be issued. . . ."

Dr. Trevino admitted twice that he complied with this direction; the first instance in his director's consent of September 1, 1974, and the second instance in the Doctor's individual consent as a shareholder. The Doctor further testified as follows:

"Q Now, Mr. Chaffin told you told us, in his letter to you, with reference to forming this corporation that you should implement all of these things that were mentioned in this August 26th letter and, you subsequently implemented these things; did you not?

A Right."

Dr. Trevino testified that he never signed a check or any other consideration such as a check for the stock but admitted that Mrs. Molina, his bookkeeper, might have issued the check. This testimony does not meet his burden of proving by clear and convincing evidence that the stock was the Doctor's separate property. The Doctor's point 1 is overruled.

Suzanne as appellant challenges the jury's value finding by stating that as a matter of law the value was established to be $57,300.00 and that the value finding of $3,500.00 was against the great weight and preponderance of the evidence.

As a general rule the testimony of experts is not binding on the jury. Suzanne's contention that the value of the stock is established as a matter of law is based on the exception to that rule that where the nature of the expert's testimony is such that the trier of the facts must be guided by such opinion, it is conclusive. Exxon Corp. v. West, 543 S.W.2d 667 (Tex.Civ.App. Houston (1st Dist) 1976, writ ref'd n.r.e.); Scott v. Liberty Mut. Ins. Co. 204 S.W.2d 16 (Tex.Civ.App. Austin 1947, writ ref'd n.r.e.). In Exxon, the court held that expert testimony on the amount of gas held in a reservoir was conclusive and in Scott, a doctor's testimony on the cause, diagnosis and treatment of a disease was held to be conclusive.

In the present case, Suzanne would have us hold that the testimony of Robert May, an actuary, called as an expert to testify as to the value of the corporate stock, was conclusive under the exception announced in Exxon Corp. v. West, supra. Mr. May testified that the value of the stock was $57,300.00. Mr. May's opinion was that one-third interest in the corporate stock was worth $40,000.00 (subject to a $700.00 discount for time payments). Further, upon the redemption of Dr. Pena's stock (Dr. Pena left the association in 1975 after a disagreement) the shares owned by the Trevinos increased from one-third to one-half interest with an appreciation in value of $18,000.00, being one-half of the cost of the redemption.

Expert testimony on value is not binding upon jurors. Maddox v. Maddox, 489 S.W.2d 391 (Tex.Civ.App. Houston (1st Dist) 1973, no writ); Tuttle v. State, 381 S.W.2d 330 (Tex.Civ.App. Texarkana 1964, writ ref'd n.r.e.); Steele v. City of Anson, 229 S.W.2d 948 (Tex.Civ.App. Eastland 1950, no writ). Therefore, the testimony of Mr. May as to the value of the corporate stock was not binding on the jury. Suzanne's contention that the value of the stock was established as a matter of law is without merit.

Suzanne in her alternate theory of error argues that the jury's finding is so against the great weight and preponderance of the evidence as to be clearly unjust. We disagree.

Robert May testified for Suzanne and stated that the value of the stock was $57,300.00. This value was based on testimony previously summarized in this opinion. To corroborate this testimony Suzanne introduced the Stock Purchase Agreement which required the stock to be redeemed by the corporation at one-half of the Doctor's annual salary on the death of a stockholder and at one-third of his annual salary if terminated by the Association. To show how this redemption plan...