Wade v. Wade, 13039
| Decision Date | 21 November 1956 |
| Docket Number | No. 13039,13039 |
| Citation | 295 S.W.2d 939 |
| Parties | James E. WADE, Appellant, v. Nan Lee WADE, Appellee. |
| Court | Texas Court of Appeals |
Kennerly & Lesher, A. C. Lesher, Jr., Houston, L. G. Mathews, Brownsville, for appellant.
Sharpe, Cunningham & Garza, Brownsville, for appellee.
This suit was instituted in the 107th District Court of Cameron County, Texas, by Nan Lee Wade against James E. Wade, her former husband, and others seeking to recover her community interest in certain property alleged to have been concealed by her former husband at the time they were divorced by a judgment of the 107th District Court on April 16, 1954. In the decree of divorce plaintiff was awarded the household furniture, a 1953 Buick automobile, and $10,000 to be paid principally in monthly installments of $200 each. In this suit she does not seek to set aside the property settlement provided for in the decree of divorce, but only to recover her interest in the community property which was not disclosed at the time of the divorce.
The trial was to a jury and the court rendered judgment, based at least in part upon the verdict of the jury, awarding to Nan Lee Wade a 20/27 interest, and to James E. Wade a 7/27 interest, in certain community property, from which judgment James E. Wade has prosecuted this appeal.
The evidence shows that at the time of the divorce appellant and appellee were the owners of three promissory notes, one for the principal sum of $31,500, another for the principal sum of $8,500, and another for the principal sum of $14,000. The court, in keeping with the verdict of the jury, found that these three notes were community property and awarded to the respective parties the interest therein which is above set forth.
The court also found that appellant had collected on these notes, since the divorce, interest amounting yo $1,260, and gave appellee judgment for 20/27 of that sum, which amounts to $933.33.
Appellant contends that all of this community property should have been divided one-half to him and one-half to appellee, and that the court erred in giving 20/27 of it to appellee. With this contention we agree.
This suit was not in the nature of a bill of review to set aside the original judgment and readjudicate the property settlement provided for therein. It was nothing more than a suit for appellee's interest in the community property which was concealed from her at the time of the divorce. Appellant admits that he did not divulge to appellee that he was the owner of the three notes, but undertook to justify such conduct by his contention that they were his separate property. On this contention the jury found against him.
(1) Art. 4638, Vernon's Ann.Civ.Stats., provides in effect for an unequal division...
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Vautrain v. Vautrain
...that unless the community property rights are litigated in the divorce suit, art. 4638 is not applicable in subsequent litigation. Wade v. Wade, 295 S.W.2d 939 (Tex.Civ.App.--San Antonio 1956, no writ). The court further said in Angerstein that, "Severance, under Rule 41, Texas Rules of Civ......
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Matthews v. Houtchens, 18046
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Angerstein v. Angerstein, 158
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