Wilkerson v. Wilkerson

• Decision Date: 19 September 1974
• Docket Number: No. 761,761
• Citation: 515 S.W.2d 52
• Parties: Maxine Williams WILKERSON, Appellant, v. C. K. WILKERSON, Appellee.
• Court: Texas Court of Appeals

Page 52

515 S.W.2d 52

Maxine Williams WILKERSON, Appellant, v. C. K. WILKERSON, Appellee.

No. 761.

Court of Civil Appeals of Texas,

Tyler.

Sept. 19, 1974.

Wilson, Miller, Spivey, Sheehy & Knowles, Murph Wilson, Tyler, for appellant.

Tyner, Bain & Tyner, J. W. Tyner, Tyler, for appellee.

MOORE, Justice.

Appellant, Maxine Williams Wilkerson, instituted this suit against appellee, C. K. Wilkerson, seeking a divorce and a division of the estate of the parties. After a trial before the court, sitting without a jury, judgment was entered dissolving the marriage and dividing the property. Appellant, Maxine Williams, Wilkerson, duly perfected an appeal, but limits her complaint on this appeal to the division of the property.

The division made by the trial court, together with the value of each item of property, is as follows: appellant, Maxine Williams Wilkerson, was awarded (a) the home valued at $75,000.00; (b) one 1969 Cadillac automobile valued at $6,800.00; (c) one 1969 Plymouth automobile valued at $2,400.00; (d) one 1971 Pontiac Firebird automobile valued at $4,409.00; (e) one Fiat automobile valued at $1,212.00; (f) 60 shares of Braniff stock valued at $1,326.64; (g) 25 shares of Mages Sporting Goods stock valued at $30.00; (h) one share of Tyler Swim Club stock valued at $350.00; (i) all household goods and furniture valued at $4,295.00; (j) cash, savings accounts, bonds and interest thereon valued at $131,832.81; (k) 397 shares of Sears Roebuck stock valued at $45,500.00; and (l) 1/2 of interest accrued on all bonds and savings accounts from February 28, 1973, to date of judgment of the value of $18,804.89, of the total value of $291,960.34. Appellee, C. K. Wilkerson, was awarded (m) 440 acre farm in Van Zandt County valued at $66,000.00; (n) all livestock and cattle valued at $4,687.00; (o) all farm equipment valued at $3,091.67 (p) one 1968 Ford pickup valued at $1,200.00; (q) 397 shares of Sears Roebuck stock valued at $45,500.00; and (r) 1/2 interest on all bonds and savings accounts accrued from February 28, 1973, to date of judgment of the value of $18,804.89, of the total value of $139,283.56.

The record reveals that during the marriage, appellant inherited certain oil royalties producing an income of approximately $2,000.00 per month. The court awarded this property to appellant and there is no dispute as to title to her royalty interests. Excluding the oil royalties and accrued interest on the bonds and savings accounts, the trial court found that the total value of all assets owned by the parties amounted to $431,443.92.

In response to appellant' request, the trial court filed extensive findings of fact and conclusions of law. Among other things the court found that items (b) through (i) were purchased and paid for solely from funds owned by appellant as her property but made no specific findings that such items constituted appellant's separate property. The trial court further found that all other items of property listed above constituted community property in that they were purchased partly with funds supplied by appellant's separate estate and partly with funds from the community estate. By other findings the trial court sets forth the specific amounts supplied by appellant's separate estate in the purchase of each of the various items of community property.

By points three through nineteen appellant complains of the trial court's findings of fact. In these points she asserts that the trial court erred in refusing to find that items (a) through (j) constituted her separate property. The points are overruled. As will be noted above, appellant was awarded items (a) through (j) as her separate property in the court's judgment. The error of the trial court, if any, in failing to specifically state in the findings that such property was her separate property is therefore immaterial and harmless. Rule 434, Texas Rules of Civil Procedure. By her twentieth point, appellant urges that the trial court erred in the division of the community property because the amount awarded her was so disproportionate and inequitable as to amount to an abuse of discretion. We are not in accord with this proposition.

In her statement under this point appellant sets forth each item of community property and calculates the net value of the community. According to her calculation, the net value thereof, after deducting all reimbursements to her separate estate for funds expended in purchasing the property, amounts to $207,379.25. We shall accept this figure as being correct. She then argues that her separate estate was entitled to an additional reimbursement in the sum of $9,529.22 for separate funds advanced to the community to liquidate a loan on a house and lot owned by the parties and a reimbursement of $34,962.31 for separate funds placed in a joint bank account called the 'Farm Account.' Then, after deducting these additional reimbursements, she calculates that the community estate had a net value of $162,888.00. After subtracting the total value of the community property awarded appellant in the amount of $119,278.00, she calculates the share of the community property awarded her to be the sum of $43,610. She contends this to be an unjust and inequitable division. We do not agree with appellant's contention that she was entitled to the reimbursement for the $34,962.31 item. First, there is no finding that the funds were traced to the purchase or improvement of any property but were apparently comingled, and secondly, there is no finding that appellant was entitled to be reimbursed for this item. It must therefore be presumed, in support of the judgment, that appellant's separate estate was not entitled to reimbursement for the $34,962.31 . As a result we calculate the net value of the community estate at $197,850.31. Using this figure appellee was awarded property of the value of $119,278.00 and appellant was awarded community property of the value of $78,572.31. But, even though appellant's calculation be accepted as correct, under the record before us, we do not believe an abuse of discretion was shown.

Section 3.63 of the Family Code, V.A.T.S., provides:

'In a decree of divorce or annulment the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the mawrriage.'

It is well established that Texas divorce courts are given wide discretion in making a division of the estate of the parties. Equal division is not required. Upon appeal it must be presumed that the trial court exercised its discretion properly and the cause will be reversed only where there is a clear abuse of discretion. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923); Bell v. Bell, 513 S.W.2d 20 (Tex.Sup.1974); In re Marriage of McCurdy, 489 S.W.2d 712 (Tex.Civ.App., Amarillo, 1973, writ dism.); Harrison v. Harrison, 495 S.W.2d 1 (Tex.Civ.App., Tyler, 1973, n.w.h.).

The statute clearly vests discretion in the trial court in determining the proper division of the community estate of the parties.

In the exercise of this discretion, the court may consider, among other things, the age and physical condition of the parties, their relative need for future support, fault in breaking up the marriage, benefits the innocent spouse would have received from a continuation of the marriage, the size of the estate and the relative abilities of the parties. Hudson v. Hudson, (Tex.Civ.App.) 308 S.W.2d 140; Duncan v. Duncan, (Tex.Civ.App.) 374 S.W.2d 800; Middlesworth v. Middlesworth, (Tex.Civ.App.) 380 S.W.2d 790; Pickitt v. Pickitt, 401 S.W.2d 846 (Tex.Civ.App., Tyler, 1966).

In his conclusions of law, the trial court concluded as follows:

'After...