Barrington v. Barrington (290 S.W.2d 297, 1956)

FANNING, Justice.

Elray Barrington sued his wife, Eva Bobbie Barrington, for divorce and for adjudication of his separate and community property fights. In a trial before the court without the intervention of a jury judgment was entered granting plaintiff, Elray Bar-rington, a divorce from defendant, Eva Bobbie Barrington, and the property rights of the parties were adjudicated and the community property of the parties was partitioned by such judgment. Findings of fact and conclusions of law were filed by the trial court. Defendant, Eva Bobbie Barrington, has appealed and complains of only one finding and conclusion of the trial court.

Appellant presents only one point which point is as follows:

“Point 1. The District Court erred in finding that during the period of the marriage of plaintiff and defendant, no community funds of the plaintiff and defendant were invested in the Barrington Tire Shop business, and in concluding that all of the stock on hand and machinery and equipment used in the operation of the Barrington Tire Shop business were the separate property of the plaintiff, Elray Barrington, for the. reason that said finding and conclusion is not substantiated by the evidence.”

Appellee by his counter-point 1 contends in essence that the trial court correctly rendered judgment for plaintiff awarding plaintiff judgment for title and possession of all the properties in question, except the specific property which was awarded to the defendant because (1) and (2) the finding of the trial court that no community funds of the parties were invested in the Barring-ton Tire Shop business and that all the stock on hand and machinery and equipment used in the operation of such business were the separate property of plaintiff, Elray Barrington, was conclusively supported by the preponderance of the evidence, and (3) :

“The Court having undertaken in the light of the evidence to equitably partition the community estate existing between the parties and defendant not having contested the judgment of the Court partitioning the community estate between the parties as being inequitable and unjust and not a just and fair and proper division of the estate between the parties, and only attacking the findings of the Court with-reference to the investment of ■ the community funds in the Barrington Tire Shop business such presents no question, the determination , of which in law would overturn the judgment of the Trial Court.”

Plaintiff and defendant were married March 25, 1954, separated February 1, 1955, the cause was tried March 5, 1955, and judgment granting the divorce and adjusting the property rights of the parties was rendered May 11, 1955. The court in its judgment considered and balanced the equities between the parties, stating in this respect:

“The Court having considered the advancements of each party out of their separate funds made toward the purchase of the real estate heretofore referred to as Lot 16 in Block 61, (the residence of the parties) such sum of $400.00 as separate property of defendant and cross-plaintiff, and such sum of $621.50 as separate property of plaintiff and cross-defendant having been duly considered and accounted for and such equities adjusted, said real estate is adjudicated to be owned equally by the said parties, plaintiff and cross-defendant and defendant and cross-plaintiff, subject, however, to the indebtedness now against such property. The Court having considered cash on hcmd and in banks at the date of the trial and having considered same to be community property of the parties, which is fully accounted for hereinafter in a partition and division of the property between the parties, and in such manner, the equities between the parties having been considered and balanced, including an allowance for defendant and cross-plaintiff from the time of the trial up until the date of this judgment such that she will, during such period of time, receive her equities in any income or earnings by plaintiff and cross-defendant during such period of time.” (Emphasis and interpolation ours.)

In this judgment the court awarded to defendant an undivided ½ interest in the community home of the parties, subject to outstanding indebtedness, taxes and charges against the property, and awarded to defendant certain items of community personal property including an automobile, television set, dinette suite and bedroom suite, subject to the indebtedness against such items, etc., and awarded to her certain items of personal property of the reasonable fair cash market value of $685.-00 which had been the separate property of plaintiff which items had been converted to the own use of defendant or had been disposed of by defendant, and the sum of $280 in cash was also awarded to defendant. The judgment decreed to the plaintiff a ½ interest in the community home, subject to indebtedness, etc., decreed that Lots 1 and 2 in Block 53 of the City of Jacksonville, Cherokee County, Texas, (the Barrington Tire Shop) was the separate property of plaintiff, and the court awarded all other properties, real, personal and mixed, which would include the stock, fixtures, appliances,, etc., in the Barrington Tire Shop to plaintiff, all of which was subject to outstanding; indebtedness, etc.

The trial court filed the following findings of fact and conclusions of law:

“Findings of Fact

I. That Plaintiff and Defendant were married March 25, A.D.1954.

II. That at the date of marriage of Plaintiff