Vautrain v. Vautrain

• Decision Date: 03 February 1983
• Docket Number: No. 2-82-073-CV,2-82-073-CV
• Citation: 646 S.W.2d 309
• Parties: Betty Jean VAUTRAIN, Appellant, v. Lynn Dale VAUTRAIN, Appellee.
• Court: Texas Court of Appeals

Page 309

646 S.W.2d 309

Betty Jean VAUTRAIN, Appellant, v. Lynn Dale VAUTRAIN, Appellee.

No. 2-82-073-CV.

Court of Appeals of Texas,

Fort Worth.

Feb. 3, 1983.

Rehearing Denied Feb. 24, 1983.

Law Office of George J. Petrovich, Jr., and George J. Petrovich, Jr., Fort Worth, for appellant.

Godfrey, Decker, McMackin, Shipman, McClane & Bourland, and Warren D. Shipman, III; Debra L. Dillehay, Fort Worth, for appellee.

Before HUGHES, JORDAN and ASHWORTH, JJ.

OPINION

JORDAN, Justice.

The appeal is from a divorce judgment of the District Court which granted a divorce to the parties, named the appellant as managing conservator of one minor child of the parties, and divided the separate and community property of the parties between them. The record in this case is lengthy, at times confusing, and involved a divorce case which took more than a year to finally determine from the time of the original trial of the merits of the divorce until a third final judgment was entered.

The appeal is based on seventeen points of error raised by appellant and for reasons to be shown we affirm in parts, reverse and remand in part, and on other points of error defer a ruling until a partial new trial, here ordered, is held by the trial court to once and for all divide and dispose of all of the community property of the parties herein.

A brief review of the facts and of the various hearings and "Final Judgments" is necessary for the understanding of this opinion.

This divorce suit was filed in March of 1980 and a trial on the merits was held in the District Court from January 20th through January 22, 1981. The trial court took the matters of the divorce, custody, and property division under advisement and on May 29, 1981, orally pronounced his judgment on those issues from the bench. A judgment incorporating that oral ruling was signed on July 6, 1981.

After the appellant filed two motions for new trial, the court on September 17, 1981, signed an order granting a partial new trial. In her second amended motion for new trial, filed September 4, 1981, the appellant moved the court to grant a new trial for the purpose of considering property matters that were not considered and disposed of in the original trial on the merits in January of 1981. Some of these items included bonuses received by appellee from his employer, E.F. Hutton & Company, Inc., stock options from E.F. Hutton & Company, Inc., and other matters.

The trial court in its order granting a new trial, signed September 17, 1981, stated that the motion would be granted with respect to a division of the 1980 and 1981 bonuses, payable in February 1981, and February 1982, to the appellee from his employer, E.F. Hutton & Company, Inc.; a division of the stock portfolio including E.F. Hutton & Company, Inc.; stock shares and stock options; all employment benefits of the appellee from E.F. Hutton & Company, Inc., including salaries, commissions and his right to draw or receive same at regular intervals or in a lump sum plus any other reimbursements paid to him by E.F. Hutton & Company, Inc.; for the payment of income taxes for the years 1980 and 1981 by either of the parties, including the income tax consequences of the actual final division of the community property assets of the court. It also ordered that the matter of reimbursement to the appellant in the sum of $3,500.00 ordered advanced by her to the respondent for the exercise of 468 shares of E.F. Hutton & Company, Inc. and stock options would be reconsidered on the new trial.

After the partial new trial hearing was held on November 2, 1981, the trial court orally pronounced his decision on that partial new trial on November 19, 1981. On January 14, 1982 another final decree of divorce was signed, incorporating changes and additions to the original divorce judgment of July 6, 1981. At the November second and third 1981 hearing on the partial new trial the court considered only the matters mentioned in his order granting the new trial of September 17, 1981, and refused to consider any community property that may have been acquired, changed, or increased between May 29, 1981 and the November second and third 1981 hearing. The court, in granting and hearing the partial new trial, held that the judgment of divorce and division of property of May 29, 1981, orally pronounced from the bench, was final and that he would consider at the new trial hearing only the matters mentioned in his September 17, 1981 partial new trial order. The January 14, 1982 "Final Decree of Divorce" increased the child support to $550.00 every two weeks and ordered that respondent would no longer pay country club or gas bills for his minor child. The court in this January 14, 1982 "Final Decree of Divorce" also ordered stricken all matters involving obligations of the parties to the Internal Revenue Service, holding that those were matters between the parties and that no decree by this court concerning the liability of the parties by the Internal Revenue Service would be entered. The petitioner would be ordered to pay her own attorney's fees and costs of court incurred as a result of the hearing on the partial new trial. This "Final Decree of Divorce" of January 14, 1982 also increased the share of cash to be paid to appellant by appellee from his 1980 and 1981 bonuses from his employer, E.F. Hutton & Company, Inc. It also awarded her 776 shares of stock at a value equal to the price "on that stock on May 29, 1981."

On March 31, 1982, the trial court signed still another "Final Decree of Divorce", in which, on its own motion, the court modified its previous decree to eliminate any adjudication of attorney's fees in favor of appellant's third attorney.

The second and third "Final Judgments" also granted injunctive relief against both parties to prevent either of them from harassing or molesting the other and particularly to prevent appellant from harassing appellee with respect to his employment with his employer. This relief had been asked for in pleading filed by the parties following the original divorce decree of July 6, 1981, and prior to the hearing on the partial new trial on November second and third 1981.

Appellant's basic complaint here is that the trial court erred in considering his judgment of July 6, 1981 final as to the matter of divorce of the parties and of the division of their separate and community estates. Appellant argues that by granting a partial new trial the trial court made the original judgment of July 6, 1981 interlocutory, and not a final judgment and that the parties were therefore not finally divorced as of May 29, 1981 when the trial court orally pronounced judgment from the bench. She contends, therefore, that since the divorce was not final, the trial court should have considered and divided community property accruing to the marital estate between the dates of May 29, 1981, the date of the first oral pronouncement of judgment, and November 19, 1981, when the judgment was orally pronounced after the hearing on the partial new trial. We agree with this contention.

Appellant's first point of error contends that the trial court erred in failing and refusing to hear testimony of appellant with respect to the matter of fault causing the separation and eventual divorce of these parties. Appellant particularly complains of a remark of the trial court to the effect that "Counsel, I have explained to both of you that this Court no longer takes into consideration how much anguish the parties have caused each other." We do not believe that this comment of the trial court constituted reversible error for the simple reason that the record shows as a matter of fact that the appellee-husband was questioned at length, both on direct examination by his own attorney and on cross examination by appellant's attorney, with respect to his alleged extramarital affairs with other women. As a matter of fact, even though the court did permit this questioning, there was no proof whatever of any misconduct or extramarital activity on the part of appellee. Furthermore, the record reveals that there was no objection made to the remark of the trial court and therefore error if, any error, was waived. Coleman v. Pacific Employers Insurance Company, 484 S.W.2d 449 (Tex.Civ.App.--Tyler 1972, writ ref'd n.r.e.)

Moreover, there is no bill of exceptions made with respect to any evidence of fault excluded by the courts which appellant claims harmed her and perhaps affected the division of the parties community estate. Since any testimony in this connection was not preserved in the bill of exceptions, this court cannot presume that it would have established the wife's right to a greater portion of the community property. Biddle v. National Old Line Insurance Company, 513 S.W.2d 135 (Tex.Civ.App.--Dallas 1974, writ ref'd n.r.e.).

There is still another reason why there is no error involved even if the court did refuse to hear evidence of fault in this divorce case. Under the Family Code of Texas the court may hear and grant a divorce on either no fault premises or on the question of fault. It is discretionary with the court, once it decides to hear the divorce on the ground of the no fault basis, as to whether or not he shall consider the matter of fault involved in the divorce case. See Brown v. Brown, 599 S.W.2d 135 (Tex.Civ.App.--Corpus Christi 1980, no writ); Murff v. Murff, 615 S.W.2d 696 (Tex.1981); Young v. Young, 609 S.W.2d 758 (Tex.1980). In Murff, the Supreme Court of Texas said: "As we said in Young, however, 'this does not mean that fault must be considered, only that it may be considered.' " [Emphasis added by the court.]

For the reasons stated appellant's first point of error is overruled.

In her tenth point of error appellant alleges error on the part of the trial court in ordering child support for the couples only minor child in the amount of $1,100.00 per month plus certain medical care and other benefits. It is appel...