York v. York

• Decision Date: 08 February 1979
• Docket Number: No. 8223,8223
• Citation: 579 S.W.2d 24
• Parties: Charles Douglas YORK, Appellant, v. Brenda Sue YORK, Appellee.
• Court: Texas Court of Appeals

Page 24

579 S.W.2d 24

Charles Douglas YORK, Appellant, v. Brenda Sue YORK, Appellee.

No. 8223.

Court of Civil Appeals of Texas, Beaumont.

Feb. 8, 1979.

Jerry V. Pennington, Orange, for appellant.

Jim Sharon Bearden, Orange, for appellee.

KEITH, Justice.

The husband, respondent below, appeals from an adverse judgment rendered in a bench trial of the divorce and complains only of the division of the community property.

The trial court divided the property as shown in the margin. ¹ Appellant's sole complaint is directed to the award of $6,500 in cash since, admittedly, such constituted one-half of a settlement of appellant's Worker's Compensation claim for partial disability for the sum of $13,000.

Our record discloses that appellant was injured on January 13, 1976, while in the course of his employment. He was totally disabled for a short period of time and received maximum Worker's Compensation Insurance benefits during his period of total disability as well as an advance of $500 on his final settlement. He resumed his employment but did not work every day. Finally, on December 30, 1977, an agreed judgment was entered in his suit for compensation benefits wherein the husband received an additional $13,000 in settlement of all past and future claims for his injury and incapacity. His attorney was awarded one-fourth of such recovery as his fee.

We are unable to determine from the record how much of such settlement was for past due and accrued compensation payments and how much thereof represented payment for lost earning capacity in the future. ²

The compensation suit was settled while the parties were separated and not living together but a divorce suit was not filed by the wife until January 16, 1978. According to appellant, the entire settlement figure, $13,000, has been kept separate and not commingled with any other funds.

Appellant argues that Tex. Family Code Ann. § 3.63 (1975), ³ has no applicability under the rationale of Eggemeyer v. Eggemeyer, 554 S.W.2d 137 (Tex.1977). He also contends that under Tex. Family Code Ann. § 5.01(a)(3) (1975), ⁴ the compensation benefits he received constituted his separate property and that the trial court was without authority, under Family Code § 3.63, to divest him of such separate property. See also Graham v. Franco, 488 S.W.2d 390, 396 (Tex.1972).

Appellant's reliance upon Eggemeyer is misplaced. The Supreme Court there held that a trial court could not divest a spouse of his title to separate Real property; it did not change the rule permitting divestiture of Personalty upon the granting of the divorce. Muns v. Muns, 567 S.W.2d 563, 565-567 (Tex.Civ.App. Dallas 1978, no writ). See also J. Sampson, "Common Law Property," 42 Tex.B.J. 131, 132 (1979). Appellant may not prevail on this appeal by reliance upon Eggemeyer.

Appellant suggests that the trial court should have followed the rationale of Hicks v. Hicks, 546 S.W.2d 71 (Tex.Civ.App. Dallas 1976, no writ). He argues that appellee did not introduce evidence to indicate that any portion of the settlement was for compensation for loss of earning capacity during the marriage.

We have examined the record carefully and find that while both parties were thoroughly familiar with the settlement negotiations, only appellant gave testimony concerning the basis thereof and, it must be admitted, it leaves much to be desired. The testimony of appellant is not entitled to the weight given to that of the defendant in O'Neil v. Mack Trucks, Inc., 542 S.W.2d 112, 116 (Tex.1976), mandate recalled and reissued, 551 S.W.2d 32 (Tex.1977).

We turn now to appellant's claim that the language found in Tex.Rev.Civ.Stat.Ann. art. 8306, § 3 (1967), ⁵ proscribes a judicial assignment of the compensation benefits. Under different circumstances than those facing us today, such prohibition has been liberally construed to protect the benefits to the worker against claims of others. See authorities cited in Hicks v. Hicks, supra (546 S.W.2d at 73-74). See also the general discussion of the section to be found in Highland Park State Bank v. Salazar, 555 S.W.2d 484 (Tex.Civ.App. San Antonio 1977, writ ref'd n.r.e.).

Hicks v. Hicks, supra, contains a discussion of most of the cases on the subject; but, it is factually different from ours. There, the settlement was made after the divorce and the holding turned on the fact that the wife had not discharged her burden of showing that the settlement funds belonged to the community. In our case, it is the appellant who labors under the burden of establishing that the settlement was separate, and not community, property. And, in the discharge of this burden, he is faced with the rule stated in Tex.Family Code Ann. § 5.02 (1975) : "Property possessed by either spouse during or on dissolution of marriage is presumed to be community property."

In our case, we have no dispute as to the source of the funds and there has been no commingling of such funds with any other funds. But, appellant labored under the burden of proving its separate character by "satisfactory evidence." Tarver v. Tarver, 394 S.W.2d 780, 783 (Tex.1965). Or, as stated in Cockerham v. Cockerham, 527 S.W.2d 162, 167 (Tex.1975), "the party asserting separate ownership must clearly trace the original separate property into the particular assets on hand during the marriage." See also Trevino v. Trevino, 555 S.W.2d 792, 796 (Tex.Civ.App. Corpus Christi 1977, no writ). As indicated earlier, appellant did not convince the trier of the facts that the settlement funds did not constitute payment for loss of earning capacity during marriage.

Had appellant made the necessary proof that the settlement funds were attributable to loss of future earning capacity, the authorities cited in Hicks, supra, would have been persuasive if not controlling. We simply hold that appellant...