Tyler v. Tyler
| Decision Date | 19 November 1987 |
| Docket Number | No. A14-87-352-CV,A14-87-352-CV |
| Citation | 742 S.W.2d 740 |
| Parties | Alton T. TYLER, Appellant, v. Irene C. TYLER, Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
N. Wyatt Collier, Houston, for appellant.
Ray Cortez, James S. Kelly, Houston, for appellee.
Before J. CURTISS BROWN, C.J., and ROBERTSON and CANNON, JJ.
This appeal is from a judgment of the trial court awarding a recovery of money to appellee from appellant. While appellant assigns seven points of error, the controlling issues are whether, by voluntarily paying the money in question, appellee is entitled to recover the money from appellant and whether the judgment in question here was an impermissible modification of the prior divorce judgment. We hold appellee is not entitled to recover and reverse and render the judgment for appellant.
Appellant (Alton) and appellee (Irene) were divorced by judgment signed July 7, 1983, or by corrected judgment signed August 8, 1983. 1 A part of the community property disposed of by the judgment was 32,902 shares of Gulf Interstate, Inc. stock. Under the terms of the divorce decree, the stock was evenly divided with each party receiving 16,451 shares. At the time of the divorce the stock was in the possession of First City National Bank having been pledged as security for a $50,000 promissory note signed only by Alton and payable to the bank. The $50,000 note was not due and payable until April 6, 1986, and the decree provided that the dividends earned from the shares of stock were to be credited to the note and that any indebtedness remaining unpaid on April 6, 1986, was to be paid by Alton.
On August 3, 1983, an attorney for Irene presented the following described authorization to the bank:
Please let this letter serve as authority for my attorney Ray Cortez to check into and discuss with your bank the Certificate for 16,451 shares of Gulf Interstate, Inc. in your possession which now serves as security for a $50,000.00 loan made by my ex-husband Alton Thomas Tyler and which shares were awarded to me by the divorce decree signed the 7th day of July, 1983.
/s/ Irene C. Tyler
The bank refused to release the stock to Irene, and shortly thereafter her attorney again inquired if the bank would release the stock if the loan was paid off. In early September, 1983, Irene called the bank and "demand[ed] the stock." Pursuant to these requests, the bank caused 16,451 shares of stock to be re-issued in the name of Irene Tyler. The shares were then sold; the bank was paid $50,000 to retire the loan, and the remaining sum of approximately $135,000 received from the sale of the stock was delivered to Irene. On May 16, 1984, Irene filed suit against Alton to recover the $50,000 alleging that Alton had "wrongfully detained and converted to his own use said sum of $50,000.00" and had refused to pay such sum to her although she had demanded that he do so.
Following a trial to the court, judgment was entered in favor of Irene for some $41,400 plus attorney's fees. In his findings of fact the trial court found that Irene "did not initiate or request the sale of her .. stock and did not agree to payment of said note from .. the sale of her .. stock," and that the amount of dividends that would have been applied to the payment of the principal of the note had the stock not been sold was $8,600. The court further found that $2,400 was a reasonable attorney's fee. In his conclusions of law the trial court found that Irene "has the right to collect from defendant the amount deducted from the proceeds of the sale of her stock by an action, whereby the Court would enforce the divorce decree or by an action based on assumpsit."
In his fifth point of error appellant contends the court erred in entering judgment for appellee because "as a matter of law" when appellee paid the $50,000 note at the bank "she did so on a volunteer basis and hence was not entitled to recover said sum from Appellant." Appellee, on the other hand, points to the finding by the trial court that Irene was not a volunteer and argues that she is therefore entitled to recover either as "a co-obligor," "a guarantor" or "a surety."
Findings of fact are not conclusive on appeal when the statement of facts appears in the record as it does here. Middleton v. Kawasaki Steel Corp., 687 S.W.2d 42, 44 (Tex.App.--Houston [14th Dist.] ), writ ref'd n.r.e. per curiam, 699 S.W.2d 199 (Tex.1985). Further, appellant's point of error, reasonably construed, attacks the above finding on the basis that "as a matter of law" appellee was a volunteer. Based upon the evidence recited it is...
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