Weatherall v. Weatherall, 14821
| Decision Date | 26 May 1966 |
| Docket Number | No. 14821,14821 |
| Citation | 403 S.W.2d 524 |
| Parties | Christine WEATHERALL, Appellant, v. Tommie Lee WEATHERALL, Appellee. . Houston |
| Court | Texas Court of Appeals |
Mabel Grey Howell, Houston, for appellant .
Bert E. Derden, M. G. Nahas, Jr., Houston, for appellee.
This is an appeal from a judgment granting appellee a divorce, dividing the community property, finding a certain tract of land was the separate property of appellant, and awarding appellee a judgment against appellant for $3,250.00 which allegedly represented appellee's portion of expenditures made from the community to improve this separate tract of land. The judgment for divorce is not attacked. Only the part of the judgment that divided the property is attacked.
Appellee filed suit for divorce and alleged the ownership by the community of specified property, including the marital home. It is this home property that is the real source of dispute. Appellant filed an answer consisting of a general denial and cross-action, and her petition merely makes reference to community property. In none of the pleadings was the home property described as appellant's separate property though admittedly it was. No pleading suggested that community funds had been employed to make improvements on the lot which is admittedly her separate property.
On January 28, 1965, the cause came on for trial and the trial court, as evidenced by its docket entry of that date, rendered the following judgment:
This judgment was rendered at the term of court that began September 1, 1964, and would expire August 31, 1965. Article 2338--11, Vernon's Ann.Tex.Civ.St.
No written draft of the judgment reflecting the judgment rendered was signed by the trial judge.
On June 2, 1965, after appellant's original attorneys had been permitted to withdraw as counsel, appellant's present counsel filed what is denominated 'Defendant's and Cross-Plaintiff's Motion to Set Aside Docket Entry for Division of Property and Grant a Hearing on Division of Community Property.' The motion is lengthy, but it is material to note that it asserts the effect of the docket entry was to divest appellant of title to her separate real estate, and also the division of the property was inequitable. Too, of real significance is the assertion here that the trial court interpreted his docket entry, as shown by the written draft signed September 15, 1965, as the judgment he actually rendered, and in the written draft of the judgment he found the marital home to be appellant's separate property but gave appellee recovery of $3,250.00 for his share of the community employed in adding improvements to the separate real estate. At the time of the rendition of judgment, as evidenced by the docket entry, there was no pleading by appellee seeking reimbursement. In fact, no pleading suggested any separate property or the employment of community funds for its improvement.
On September 15, 1965, the appellee filed a reply to appellant's motion. The effect of the reply was to assert that if the home was appellant's separate property, various amounts of the community had been employed to make improvements and appellee was entitled to reimbursement for his share of such expenditures and this should constitute a charge against the separate property.
Prior to the filing of this reply and on September 7, 1965, appellee filed a motion to enter judgment on the judgment rendered January 28, 1965. The proposed judgment attached to the motion, which was the judgment signed on September 15, 1965, found the home place to be the separate property of appellant and adjudged title in her. It also gave appellee personal judgment against appellant for $3,250.00 as his part of community funds...
To continue reading
Request your trial
-
Bahr v. Kohr
...92. The Bahrs point to two cases for the proposition that separate property or separate funds are affirmative defenses. See Weatherall v. Weatherall, 403 S.W.2d 524 (Tex.Civ.App.--Houston 1966, no writ); Grogan v. Henderson, 313 S.W.2d 315 (Tex.Civ.App.--Texarkana 1958, writ ref'd n.r.e.). ......
-
Cox v. Cox, 14752
...writ ref'd n.r .e.). Appellee should have alleged that same was his separate property, as well as the basis for such claim. Weatherall v. Weatherall, 403 S.W.2d 524 (Tex.Civ.App.--Houston (1) 1966, no writ); Lowery v. Lowery, 136 S.W.2d 269 (Tex.Civ.App.--Beaumont 1940, writ dism'd); Bobbit......
-
Wachendorfer v. Wachendorfer
...the amount of the community contribution and the enhanced value. Lindsay v. Clayman, 151 Tex. 593, 254 S.W.2d 777 (1952). In Weatherall v. Weatherall, 403 S.W.2d 524 (Tex.Civ.App.1966, no writ), this court reversed and remanded that portion of a divorce judgment which gave the husband a per......
-
McEntire v. McEntire
...or tried by implication or consent. See Davis v. Davis, 521 S.W.2d 952, 954 (Tex.Civ.App.--Fort Worth 1975, no writ); Weatherall v. Weatherall, 403 S.W.2d 524, 526 (Tex.Civ.App.--Houston 1966, no Appellee contends the court had authority to enlarge upon the original divorce decree since the......