Williams v. Williams, 6809

Decision Date01 December 1958
Docket NumberNo. 6809,6809
Citation319 S.W.2d 777
PartiesNettie Viola WILLIAMS, Appellant, v. Jay WILLIAMS, Appellee.
CourtTexas Court of Appeals

Lumpkin & Watson, Miller & Sanderson, Amarillo, for appellant.

Vickers & Vickers, Lubbock, for appellee.

NORTHCUTT, Justice.

Nettie Viola (Babe) Williams, as plaintiff, brought this suit against Jay Williams, as defendant, for divorce and for division of community property. Mrs. Williams contended that Lot 3 in Block 36, Highland Heights Addition to the City of Lubbock, Lubbock, Texas, was her separate property. Mr. Williams filed his answer and cross action for divorce and also asked for division of community property; but contended that Lot 3, above mentioned, was community property. The case was tried to the court without a jury, and after hearing all the testimony the court entered judgment refusing the plaintiffs a divorce but granted the defendant a divorce upon his cross action. The trial court also found that Lot 3, above mentioned, was community property and entered judgment dividing all the property one part to the plaintiff and the remaining portion to the defendant. From this judgment plaintiff perfected this appeal and she will hereafter be referred to as appellant.

No appeal is presented so far as the granting of the divorce is concerned. Appellant makes no contention that the judgment as to a division of the property is in any manner wrong if Lot 3 is community property. Appellant presents this appeal upon a single point of error as follows: 'The trial court erred in holding that at the time of the divorce, the property located in Lubbock, Texas, was community property of appellant and appellee.'

Appellant and appellee were married in July, 1928, and were never divorced until the divorce was granted in this cause. It is true they continued to have trouble and lived apart at different times. In April, 1946, this appellee filed a suit for divorce. At that time they were living in the real house on Lot 3, above mentioned, and renting to other people the house on the front of Lot 3. This was their home, and all the property they had except the household furnishings, a Ford automobile, certain garage equipment, some accounts and some cash. This would seem to be making their homestead the separate property of appellant. After the divorce suit was filed in 1946, appellant and appellee agreed the divorce suit would be dismissed and they would resume their marital relations, and at that time attempted, by written agreement, to divide their community property, which consisted of the above mentioned property. The only thing they tried to do was to make separate property out of community property which was not a gift from the husband to the wife.

On even date of this contract appellee, as grantor, did execute a warranty deed to Lot 3 to Mrs. Babe Williams, as grantee, as her separate property, and the same was filed for record on April 22, 1946; but appellee did not have actual knowledge of such filing until this suit was filed. From the date of this contract until the filing of this suit, the appellant and appellee treated all of their property as community property. The contract here in question was not acknowledged and neither did the appellant join the appellee in the deed in question deeding the above property which would be necessary in case the property was their homestead.

In reference to the partition or exchange of community property between husband and wife, Article 4624a of Texas Revised Civil Statutes, Vernon's Ann.Civ.St. art. 4624a, provides:

'If such instrument purports to exchange property or to partition...

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3 cases
  • Zisblatt v. Zisblatt
    • United States
    • Texas Court of Appeals
    • July 17, 1985
    ...in Williams is dictum. Further, we find that Williams is factually distinguishable from the present case. See Williams v. Williams, 319 S.W.2d 777 (Tex.Civ.App.--Amarillo 1958), writ dism'd w.o.j., 325 S.W.2d at 682. We further note the language from the Supreme Court's opinion where it is ......
  • Williams v. Williams
    • United States
    • Texas Supreme Court
    • June 24, 1959
    ...Amarillo, for petitioner. Vickers & Vickers, Lubbock, for respondent. PER CURIAM. The opinion of the Court of Civil Appeals is found in 319 S.W.2d 777. The suit is one for divorce and for a division of property. The judgment of the Court of Civil Appeals is final and this Court has no juris......
  • Hoyt v. Hoyt
    • United States
    • Texas Court of Appeals
    • August 4, 1961
    ...her support, for example, it might be fair and equitable for her to receive the bulk of the community estate.' See also Williams v. Williams, Tex.Civ.App., 319 S.W.2d 777 (err. dism.), 325 S.W.2d The balance of community property, so divided, consisted of stocks, insurance policies, automob......

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