author: MASSEY, Chief Justice.

text:
    MICREA, INC., and Jack Adler, Appellants, v. EUREKA LIFE INSURANCE COMPANY OF AMERICA, Appellee.
    No. 17686.
    Court of Civil Appeals of Texas, Fort Worth.
    Jan. 30, 1976.
    Rehearing Denied Feb. 27, 1976.

      Jon Mercer, Houston, for appellants.
    Fillmore, Lambert, Farabee, Purtle & Lee, and Glynn Purtle, Wichita Falls, for appellee.
   OPINION

MASSEY, Chief Justice.

Eureka Life Insurance Company brought suit against Micrea, Incorporated, for deficiency indebtedness evidenced by note, after original indebtedness was credited with proceeds from sale of real estate under authority of a Deed of Trust. Said company likewise sued Jack Adler upon his contract of guaranty of the note obligation of Mi-crea. Micrea and Adler, by cross-action, sought to set aside and annul the sale by Trustee for a variety of reasons, and by additional cross-action Adler sued the company for damages on the theory that his contract provided for the payment of usurious interest.

Status of the case as so described resulted from consolidation of the suit by Eureka Life Insurance Company’s suit in Wichita County, with the suit filed by Micrea and Adler in Brazoria County where there had been the sale by Trustee of the real estate securing the note.

Trial was before the court without a jury. Following hearing judgment was rendered for Eureka Life Insurance Company on the note, with denial of all the relief sought by Micrea, Inc. and Jack Adler who have brought an appeal.

Judgment affirmed as to Micrea, Incorporated; as to Jack Adler judgment is reformed by elimination of attorney’s fee adjudged against him, and as reformed affirmed.

Not clear from the record is whether Micrea had existed as a corporation for some time, or whether it was formed for the purposes of the several transactions and occurrences which culminated in suit and judgment. In any event Micrea was a close corporation of which Jack Adler and his wife were the owners of the stock. There is not the contention that there exists any issue of whether such corporation was the alter ego of Adler, its president.

Some 46 acres of land in Brazoria County was apparently optioned to be purchased by Micrea in the early part of 1973. In order to consummate purchase of the land Micrea required a loan of approximately $168,-750.00. It found that Eureka Life Insurance Company of America was willing to loan the money on the following conditions:

(a) the indebtedness by loan should be evidenced by note and the note must be absolutely guaranteed by Adler as an individual,

(b) the security for the indebtedness should be by first lien on the land to be .purchased, secured further by Deed of Trust, (c) that the note should be for a full three year period for $168,750.00 with said amount delivered over to Micrea at the “closing” of the real estate purchase and financing transaction(s), (d) that Micrea should immediately and at time of “closing” make redelivery to the company of the sum of $10,-125.00 as “commitment fee” due from Mi-crea to the company as part of the consideration for making the loan and (e) that Adler should guarantee payment of the loan as “Guarantor.”

The $10,125.00 “commitment fee” was not referred to as any part of the interest on the principal amount of $168,750.00. It is clear that it was not intended to be applied as interest. The note contract provided that it should be due and payable on or before three (3) years from its date with interest at the rate of ten per cent (10%) per annum on the $168,750.00, payable semi-annually as it accrued, beginning on or before November 1, 1973.

To all the foregoing Micrea agreed and executed instruments in accord, acting by and through Jack Adler, its President, on May 25, 1973. Upon receipt in hand of the $168,750.00, Micrea handed back to the agent of the company the agreed amount of $10,125.00. To the guaranty Adler agreed, as an individual, and at the same time he signed the $168,750.00 note as “Guarantor”, he signed a separate instrument guaranteeing that in the event of default by Micrea he would be bound to pay the balance of any indebtedness owing to the company.

Developments anticipated by all parties failed to occur. Micrea made the interest payment due November 1,1973 but nothing thereafter. By provisions of the note there was default by Micrea entitling the company to make its election to declare the whole of the indebtedness evidenced thereby as due and payable, and accelerating the obligation of Micrea so that there would be a maturity thereof (because of the default) much earlier than the date of the expiration of the three-year term originally anticipated. It is agreed that the company did exactly this, plus exercising its right to proceed. to cause the property to be sold under the provisions of the Deed of Trust. Following procedures necessarily antecedent to sale of this security by Trustee there was what Micrea and Adler contend was a mere purported, and in any event voidable sale to an agent for the company itself for the sum of $46,000.00.

With the ascertainment of the amount of credits to be made on the indebtedness of Micrea pursuant to the sale by Trustee, and by reason of Adler’s guaranty of the remainder of the indebtedness, the company proceeded to institute action to make the deficiency, plus the ten per cent (10%) attorney’s fee provided by the note contract. As indicated heretofore the judgment secured against Micrea is in all respects affirmed. However, since there was a distinction to be made in the burden of proof on the company’s action against Adler, the allowance of identical amount as attorney’s fee in the judgment against him was in excess of the amount shown by proof, and to the extent of such excess is reduced.

Necessarily must our affirmance depend upon our refusal to disturb the action and sale pursuant to the Deed of Trust of Mi-crea. The points of error bearing thereon by the cross-action of both Micrea and Adler are all overruled. In part in consideration thereof, and in part independently, the points contending error in the denial of Adler’s individual claim for usury damages are denied.

Under the complaints made by the points of error we find nothing constituting reversible error by the foreclosure under the Deed of Trust, nor by the judgment for deficiency of the obligation by note plus attorney’s fee for services of the company’s attorney in the prosecution of its suit. We will discuss questions posed relative thereto at a later stage.

Initially we will discuss the suit by cross-action of Adler, the individual, for-wrongful and usurious contract by his guaranty of the Micrea note obligation in the amount of $168,750.00.

Of course Adler’s obligation to the company by guaranty “matured” so that liability attached upon failure of Micrea to meet its note obligation. In the instant case the exact date Adler’s obligation “matured” is immaterial to determination of questions, and may for convenience be taken as September 30, 1974 when the company filed its suit against Adler and Micrea for deficiency of the obligation by note, plus attorney’s fee.

To be noted in the description of the facts at the beginning of the opinion is that Micrea, in obtaining the $168,750.00 from the company, agreed to, and did, deliver back to the company the sum of $10,-125.00 as payment by it to the company as what is termed “points” or “commitment fee” due the company for making the loan. The $168,750.00 of the note provided on its face that it was to be repaid plus 10% accrued interest within three years. Micrea did receive the full amount, though simultaneously (or immediately) redelivering it over to the company. We may observe that the $10,125.00 was interest which should have been credited as such upon the interest calculated as owing on the note at time of the judgment. Morris v. Miglicco, 468 S.W.2d 517 (Houston, 14th Dist., Tex.Civ. App., 1971, writ ref., n. r. e.). In any event it was paid by Micrea, a corporation. That Micrea might be deemed to have been obliged to pay (as result of the payment of the $10,125.00) approximately 12% interest rather than the 10% provided on the face of the note was, as to it, immaterial. This is so because Micrea was at liberty to pay, or contract with the company to pay, up to 18% interest for the use of a lender’s money. V.Á.T.S. Title 32, “Corporations”, Art. 1302-2.09. “Authority of certain corporations to borrow money.”

By V.A.T.S. Title 79, “Interest”, Art. 5069-1.02, “Maximum rates of interest”, ten per cent (10%) per annum is the maximum rate of interest where not otherwise authorized by Texas statute. If the company’s loan had been to Adler rather than to Micrea such would have been the maximum permitted to be contracted or collected without the taint of usury.

By Art. 5069-1.06, “Penalties”, under the same Title, there is provision that “Any person who contracts for, charges or receives interest which is greater than the amount authorized . . . shall forfeit to the obligor twice the amount of interest contracted for, charged or received, and reasonable attorney fees fixed by the court provided that there shall be no penalty for a violation which results from an accidental and bona fide error”.

It is by this statutory provision that Adler contends upon his individual cross-action for double the amount of the interest provided in the note as a penalty. In making the contention Adler seeks to have the $10,125.00 paid by Micrea as “points” or “commitment fee” treated as part of the interest contracted. In other words Adler desires a construction of the entire transaction as one where by a contract between himself and the company there had been contract for him to pay interest greater than the amount authorized by law.

Understandable is that at no stage of the proceeding did either Micrea or Adler seek to have the $10,125.00 (delivered back to the company) treated as “interest paid” on the $168,750.00 note figure and credited upon the amount declared upon the company’s suit for deficiency judgment. For Adler to make the contention would be to waive his attempt to have the contract, as to him, declared usurious. The $10,125.00 was paid by Micrea, not by Adler. Adler’s contract to pay was effective and operative only upon the occurrence of a condition precedent. In any event the trial court was entitled to treat the $10,125.00 as having been paid by Micrea and not Adler.

Nothing in the evidence proves anything fraudulent by the company’s loan of the money, or that it was in fact a loan to Adler with the language of the contract(s) actually fictional in statements that the loan was to Micrea. The same applies to the manner by which the $10,125.00 was delivered over to Micrea, and instantly redelivered by it to the company as for some consideration other than interest for which credit should be given.

The State has no law which affords Adler a cause of action by reason of the transaction(s) here involved. Our statutes relative to penalty are to be enforced strictly in accordance with their terms. Rights of redress provided thereby are therefore to be restricted to those who are original parties to the usurious contract. One who has riot himself paid usurious interest and whose individual contract with a lender, in relation to a loan made to another, does not provide for usurious interest may not avoid liability on the ground that usurious interest was paid by the principal debtor, the defense of usury of right of action growing out of the contract providing therefor or actual collection of usurious interest being purely personal to the borrower for whose protection the statutes were enacted. Of course there might be a right to question a usurious contract by one in privity with the borrower, but if so he is obliged to show that it is based upon and derivative from the borrower’s right. The foregoing is more or less “Hornbook Law”. The subject is written upon in 91 C.J.S. Usury §§ 71, 132, 151, and 153, p. 648, et seq.

Adler’s signature on the face of the note was stated thereon to have been as “Guarantor”. A separate contract of guaranty spelled out the individual obligation assumed to the company by Adler as such. Therein Adler promised that if there was default on the note obligation of Micrea he would, o.n demand, pay the balance owing by Micrea plus “any and all indebtedness and the expenses incurred by the payee . expended to collect said note or to protect its security including . . . the payment of attorney’s fees, ad valorem taxes and insurance premiums.” Therein Adler further expressly agreed that the company might surrender, release, etc. the collateral or other security held by it for the note and obligation guaranteed. Obviously this provision had application to the realty covered by the Deed of Trusts.

By suit of September 30, 1974 the company, as was its right, elected to charge Adler upon his contract as “Guarantor”. Thereby it “declared” in a manner which made operative and enforceable Adler’s contract obligations, dependent upon conditions precedent. The conditions precedent lay in the failure of Micrea, as the primary obligor on the note, to make the payments thereby prescribed. Only upon such failure by Micrea was the company entitled to exercise its right of election and demand payment by Adler as an individual.

By reason of all the foregoing our holding is that Adler has failed to prove his cross-action for usury. Among those we consider that Adler, by not insisting that the note be credited with the $10,125.00 when to make the credit would operate to reduce the interest owed by Micrea to 10% and thhs enure to his own benefit by reducing the indebtedness guaranteed, has consented to its payment being treated to have been paid as for some other consideration by Micrea.

The Legislature has not seen fit to enact legislation which would afford Adler any right to collect damages because of any usury in a contract of guaranty such as that to which he agreed in this instance. His individual contract does not qualify as one where as a primary obligor he could be treated as having contracted to pay interest above 10% per annum upon the effectiveness of his agreement (as the result of Micrea’s default of payment and the payee’s election to declare him liable upon his contract of guaranty). Adler has not cited any case which shows the contrary, nor has he made demonstrable construction of any existent statute which could operate to make a cause of action for usury avail to him.

The remainder of the opinion will generally relate to complaints of the manner by which purported foreclosure under Micrea’s Deed of Trust was effected. Micrea and Adler seek to have the Trustee’s sale set aside so that there must be new proceedings and another sale for a new amount as credit to be applied upon the note. On the subject reference is made to 39 Tex.Jur.2d, the entire chapter on “Mortgages and Trust Deeds.” See also 9 Tex.Jur.2d, p. 329, et seq. on “Bills and Notes”, Secs. 302, 304, 306 and 345. These sections discuss applicable provisions of the Texas Uniform Commercial Code.

We take occasion to observe, initially, that there was evidence of sufficient probative force and effect to establish the right, plus undisputed evidence that the company did elect to and did declare the note accelerated and payable in full as wholly mature. Suit thereon, credit given to the proceeds of the Trustee’s sale, etc., resulted in the company declaring upon a cause of action for deficiency upon the note, after proper credits. The decision of the trial court was that it should render judgment for $160,132.77, inclusive of the amount of $13,974.37 as attorney’s fee against both Micrea and Adler. The allowance as attorney’s fee matched the finding of the trial court that the deficiency in the obligation by note and by guaranty contract, plus added obligation to pay expenses, etc. was $139,743.75. There was interest which accrued since November, 1973 when interest for five months was paid. There was also the undisputed fact that Micrea’s contract by note provided for 10% thereof as attorney’s fee. The court’s finding of fact No. 8 was that such amount was a reasonable fee for the company’s attorney for services in the case.

For convenience we will first consider the complaints relative to the attorney’s fee. Micrea plead, and in view of the contractual provisions of the note and guaranty contract it was its burden to establish by proof, that a lesser amount than the 10% contracted should be adjudged as the proper attorney’s fee allowable against it in the case. That Micrea could properly make the claim is established by Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948, 950 (1960). Such case is furthermore authority for the following: “The usual attorney’s fee clause is, however, in the nature of a contract of indemnity and cannot be regarded as providing for liquidated damages or a penalty. Upon a proper showing the holder will be limited to an amount which is reasonable under the circumstances, and may be denied any recovery where it appears that no expense has been incurred as a result of the maker’s default. (Citing cases.)”

It was the burden of Micrea to show the fact and obtain a fact finding that a reasonable attorney’s fee was not as great as the 10% contracted, and the amount to which the allowable attorney’s fee should be reduced. Unless the reduction be compelled by the force of the evidence admitted and of record for the purpose the trial court was free to find that there had been failure by Micrea in discharge of the burden of proof, and for that reason decline to reduce the amount below that contracted. That, in effect, is what was done by the trial court, sitting as the fact finder. By its finding of fact No. 8 it found the $13,974.37 was reasonable attorney’s fee. (By Micrea’s posture in the case in that its burden was to prove and obtain finding to the contrary, there would be the necessarily included presumed finding that Micrea’s proof failed to establish that it was excessive by any amount.) We observe, furthermore, that the evidence tendered on trial to discharge the burden of Micrea upon the matter of reasonable attorney’s fee was excluded by the trial court. The exclusion may have been error but that is not a question we are required to consider. There is no point of error complaining of the exclusion of any evidence. By bill of exception the evidence of Micrea upon the issue was shown and the fact that it was tendered, with tender refused by the court, likewise shown. (Indeed, in the evidence on making the bill of exceptions there was evidence of reasonable attorney’s fee both Micrea and Adler sought to prove as necessary to be expended in making the note collection.) This was no part of evidence proper to be considered in rendition of judgment for it was excluded.

The circumstances might have warranted presentation of complaint of the exclusion by point of error, but there is no point of error which makes the complaint. Upon T.R.C.P. 418, “Briefs: Contents”, the Supreme Court wrote in Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, 482 (1943), and among other holding was that a point of error on appeal might be complete within itself in the sense that it must, on its face (including the argument under the point) show that the matter complained of presents reversible error.

However, as applied to Adler and under the Adler contract of guaranty the burden of proof was upon the company to establish the amount of expenses as attorney’s fee as prerequisite to entitlement therefore against Adler. These were expenses incurred or expended, necessarily, in collection of the note to which Adler’s guaranty applied. In other words though Micrea had contracted to pay 10% as attorney’s fee Adler, by his guaranty, had merely contracted to pay such a fee as was necessarily incurred by the company. On this there was no evidence of record. Therefore the company waived the right to recover attorney’s fee from Adler. Adler’s points of error raise the question and we hold that the trial court erred in the award of $13,974.37 as attorney’s fee against Adler.

In relation to the fault in the proceedings relative of foreclosure on the security by Deed of Trust. Micrea and Adler seek by their brief to demonstrate impropriety by the case of Lockwood v. Lisby, 476 S.W.2d 871 (Fort Worth, Tex.Civ.App., 1972, writ ref., n. r. e.), a prior opinion by this court. Quoted therefrom (p. 873) was the following: “Our concern in this case is related to ‘notice’ as applied to a prerequisite contractual condition (by construction) upon which right to conduct any trustee’s sale is made to depend. Specifically, we are concerned with ‘notice of intention to accelerate, or of acceleration, of obligation to pay an indebtedness evidenced by note.’ This ‘notice’ is to be distinguished from a ‘notice of trustee’s sale’, a different albeit an associated transaction in that authority to conduct the sale depends not only upon regularity of the notice of sale but also upon propriety and validity of the antecedent notice of acceleration of payments due as evidenced by note. It was because of the unexcused want of ‘notice’ relative to such an acceleration that the trial court rendered judgment in this case.” (Emphasis was in the opinion.) The parties also cite Crow v. Heath, 516 S.W.2d 225 (Corpus Christi, Tex.Civ.App., 1974, writ ref., n. r. e.), a case in which consideration was given similar questions relative to sale under a deed of trust. In that case it was written, “. . . where the mortgagee seeks a deficiency judgment outside of judicial foreclosure, the sale by such power must stand strict scrutiny.”

In the instant case there was not presented the questions passed upon in Lockwood v. Lisby, supra. That is so because there has been, in the instant case, a “waiver” by the contracts of both Micrea and Adler. Micrea’s waiver is to be found in the note and Deed of Trust. Adler’s waiver is to be found in the note, which he signed as “Guarantor” and in the separate guaranty contract. The court, furthermore, found such waivers by its findings and conclusions in the case. By reason of the waivers in this case there was not reversibility in want of notices which otherwise might be said to have rendered foreclosure under the Deed of Trust improper. Phillips v. Whiteside, 426 S.W.2d 350 (Houston 14th Dist., Tex.Civ.App., 1968, no writ history); Bazile v. Tamborello, 442 S.W.2d 923 (Houston 14th Dist., Tex.Civ.App., 1969, no writ history). That there might be equitable as well as contractual waiver is recognized in Allen Sales & Servicenter, Inc. v. Ryan, 525 S.W.2d 863 (Tex.Sup., 1975).

Even if the complaints presented were not contractually waived, we find that the pleadings of Micrea and Adler fail to raise the issue of absence of notice of acceleration of the note before suit was filed. By one question and answer in the record there is testimony from Adler, apparently in his individual capacity, that “he” did not receive any notice of acceleration. This being part of an unplead affirmative defense there is some doubt that it constituted an issue tried without objection so that no formal proceedings were necessary. T.R.C.P. 279, “Submission of Issues”. In any event it would be an issue upon which Micrea and Adler would necessarily bear the burden of proof. The court’s finding was against them in respect herein-above noticed. Neither Micrea nor Adler sought additional findings and conclusions to those originally filed and there were none. Certainly, therefore, they are without any finding availing them benefit. T.R. C.P. 299, “Omitted Findings”. The failure to request additional findings which would cover this as an element of defense for Micrea and Adler, no element thereof having elsewhere been found, constitutes its waiver as a defense. McKenzie v. Carte, 385 S.W.2d 520, 529 (Corpus Christi, Tex. Civ.App., 1964, writ ref., n. r. e.). See also McDonald Texas Civil Practice, “Nonjury Trial”, Vol. 4, Sec. 16.09, “Omitted Findings”.

The first complaint of irregularity in the proceedings to foreclose under provisions of the Deed of Trust came after the sale had been completed and deed delivered by the Trustee. Under the circumstances regularity is presumed. The burden of proof was upon Micrea and Adler by reason of their claim of irregularity. They sought to set aside a completed sale pursuant to which title was acquired by the company. An interest of a third party has not arisen. Generally, the complaint is that though there was posting of notice of the sale to be held on September 3, 1974 at the door of the courthouse in Brazoria County there was not proof that there was posting at two other public places in the county; that the sale, if in fact conducted, did not take place at the south and main door of the courthouse, but at another and different door whereby there was not proper compliance that sale be at the “courthouse door”; and that there was gross inadequacy in the $46,-000.00 price for which the property was sold, whereby the rules of equity would require vacation and annulment of the sale upon timely application.

Mere inadequacy in the amount for which property was sold is not sufficient reason to annul a sale made by authority of a Deed of Trust. There must be accompanying irregularities in the sale, at least slight irregularities. Pantaze v. Slocum, 518 S.W.2d 407 (Fort Worth, Tex.Civ.App., 1974, writ ref., n. r. e.); Crow v. Heath, 516 S.W.2d 225 (Corpus Christi, Tex.Civ.App., 1974, writ ref., n. r. e.). Evidence in this case included proof, obviously believed, concerning efforts made by the Trustee to interest prospective purchasers through advertisements; coupled with proof that Micrea and Adler had actual adequate notice sufficiently in advance of the sale to afford opportunity to seek to interest prospective buyers who might bid up the price for which the property was sold and thereby reduce the deficiency in indebtedness owing. Clearly established is that the sale was one where there was mere inadequacy of price. But irregularity in the sale was not established. To do this was the burden of Micrea and Adler.

It was shown that the Trustee enlisted the services of the sheriff of Brazoria County to post the three required notices. The Trustee testified on trial that he employed and paid the sheriff for such services, and saw the posted notice at the bulletin board provided for the purpose just inside the door of the courthouse; that of his own independent knowledge he does not know the location of any other of the two public places of posting nor of actual posting. Of course the sheriff would be the person with knowledge. He did not testify. On the question of whether the sale was at the proper “courthouse door” the Trustee made inquiry upon arriving at the Brazoria County Courthouse as the proper door customarily used for conducting trustee’s sales, that he was directed by the sheriff to the east door as the proper location, and that thereat the sale was conducted. In general the “Courthouse Door” is either of the (several) entrances to the building provided for the holding of the district court. T.R.C.P. 648, “ ‘Courthouse Door’ Defined.” The evidence of the Trustee was that he conducted the sale, and that it was done at the east door to the Brazoria County Courthouse. Noted is that Adler was at the courthouse, but at the south door. He did not, however, have anyone with him who intended to bid on the property to be sold; he was merely present out of interest in learning the amount for which the property was sold. Encountering the Trustee immediately after the sale he made no protest.

On the subject matter of the foregoing paragraph, among other matters which are important is that relating to the proper placement of the burden of proof. By the testimony of the Trustee who conducted the sale, it became necessary for Micrea and Adler, in the support of their contentions of irregularity, to at least go forward in the presentation of evidence so that they might be entitled to obtain findings either that there was failure in respect to proper posting, a failure to prove any actual sale, or a failure to conduct the sale at the proper place, to wit: the “official or recognized courthouse door”. Indeed Tar-rant Savings Association v. Lucky Homes, Inc., 390 S.W.2d 473 (Tex.Sup., 1965) holds that the burden is defensive and that it is one who would defeat right of a plaintiff to recover for deficiency following a sale by Trustee who is obliged to discharge the burden of proof. Absent such proof, he might be held to have failed to show legal or equitable reason to invalidate the sale and have the same set aside. With such evidence, if such failed to establish his claims, or any of them, by a preponderance of the evidence, according to the fact finder, he would not be entitled to have the sale annulled. That is exactly the condition in which the trial court found Micrea and Adler. We cannot say that the court erred.

All points of error are overruled save that under which we reverse the judgment against Adler, as an individual, the amount of $13,974.37 as attorney’s fees. This means that the entire judgment is reformed so as to read as follows: It is, therefore, accordingly ORDERED, ADJUDGED and DECREED that Plaintiff Eureka Life Insurance Company of America be and it is hereby awarded judgment against defendants, Micrea, Inc. and Jack Adler, jointly and severally in the sum of $146,158.40, and that in addition thereto is hereby awarded judgment against Micrea, Inc. in the additional sum of $13,974.37 as attorney’s fee.

Costs of appeal are adjudged to the extent of 50% as against both Micrea and Adler jointly and severally; the remaining 50% of the amount of such costs are adjudged against Micrea.

ON MOTION FOR REHEARING

All parties have filed motions for rehearing. Of these we find merit in certain presentation made in the motion for rehearing by Eureka Life Insurance Company of America, but not in the motion of Micrea, Inc., and Jack Adler.

To correct both our opinion and judgment in the case there is need to amend the judgment of the trial court so as to reform it to read other than as stated by our original opinion and judgment, which is further reformed and correctly stated below.

The judgment of the trial court is reformed so as to read as follows: It is, therefore, accordingly ORDERED, ADJUDGED AND DECREED that Plaintiff Eureka Life Insurance Company of America be and it is hereby awarded judgment against defendants, Micrea, Inc., and Jack Adler, jointly and severally, in the sum of $146,158.40, with interest thereon at the rate of ten per cent per annum from date of April 10, 1975, until paid; and that in addition thereto is hereby awarded judgment against Micrea, Inc., in the additional sum of $13,974.37 as attorney’s fee, with interest thereon from April 10, 1975, to September 1, 1975, at the rate of six per cent per annum and beginning September 1, 1975, at the rate of nine per cent per annum until paid, by V.A.T.S., Art. 5069-1.05, “Rate of Judgments”.


source: Caselaw Access Project

author: AKIN, Justice.

license: Public Domain

text:
    C_, Appellant, v. C_, Appellee.
    No. 18758.
    Court of Civil Appeals of Texas, Dallas.
    Feb. 5, 1976.
    Rehearing Denied March 4, 1976.

      J. Glenn Turner, Jr., James J. Hartnett, Turner, Hitchins, Mclnerney, Webb & Hart-nett, Dallas, for appellant.
    Jack C. Pate, Robert T. Baskett, Burle-son, Bondies, Baldwin & Pate, Dallas, for appellee.
   AKIN, Justice.

This is a contest in a divorce suit between the mother and father for managing con-servatorship (custody) of their eight-year-old daughter and four-year-old son. Trial was to a jury, which found that it was in the best interests of the children that the father-appellee be appointed managing conservator. Acting on the jury verdict, the trial court rendered judgment appointing the father managing conservator. After trial the mother discharged her trial counsel and retained her present attorneys who filed a motion for new trial. As one of the grounds for a new trial, appellant’s present counsel attached affidavits which portray appellee as a man of violent temper who disciplines the children harshly and cruelly. Although some, but not all, of these affi-ants had been called as witnesses at trial, this testimony had not been elicited from them. Notwithstanding these affidavits, the trial court overruled the motion for new trial. The mother appeals. We reverse and remand because we conclude that the trial court abused its discretion in denying a new trial.

In an action involving custody, the ' children are real parties in interest. This is because the controlling factor is the best interests of the children. E. g., Ponder v. Rice, 479 S.W.2d 90, 94 (Tex.Civ.App. — Dallas 1972, no writ); Conley v. St. Jacques, 110 S.W.2d 1238, 1241 (Tex.Civ.App.— Amarillo 1937, writ dism’d). Appellant argues that material evidence bearing on the issue of the best interests of the children was omitted at trial, but admits that her former counsel failed to offer it. Appellee contended in the trial court, as he does here, that consequences for error of counsel must be assigned to the party litigant. In support of his position, appellee cites In re Y, 516 S.W.2d 199 (Tex.Civ.App. — Corpus Christi 1974, writ ref’d n. r. e.). In that case the father sued for change of custody, alleging changed conditions materially affecting the children. The jury found for the father who was accordingly awarded custody. On appeal, the mother complained that she had engaged an attorney who was inexperienced in the area. She alleged that her attorney had failed to make objections when necessary and failed to fully set forth evidence favorable to her position. Her attorney admitted in his motion for new trial that his strategy had been ineffective and that if he had properly presented the evidence a different jury verdict would probably have resulted. In holding that this was not a ground for new trial, the court stated: “Inexperience with the courts or negligence or mistake of one’s own attorney is not a ground for a new trial.” Id. at 206. The court concluded: “It was incumbent upon the mother to show that without any fault of her own, she was not afforded an opportunity to present her new evidence.” Id. In support of this holding, the court cited several cases not involving the custody of minor children. In reaching this conclusion, the Corpus Christi court adhered to the traditional requisites of the granting of a new trial on the basis of newly discovered evidence. Id. at 205 — 206. None of the evidence proffered in In re Y showed that the conduct of the father complained of in the motion for new trial directly affected the children.

Although we might have reached the same result as the Corpus Christi court on the facts in that case, we conclude that the ordinary rules restricting the granting of a new trial for newly discovered evidence should not be applied rigidly in child custody proceedings. In such cases the children are the primary parties in interest, and they are rarely represented by counsel. Counsel for the contending parents cannot always be relied upon to protect the interests of the children because the parents often attempt to promote their own interests and vindicate their own asserted rights rather than to protect the children’s interests. Anderson v. Martin, 257 S.W.2d 347, 353 (Tex.Civ.App. — Amarillo 1953, writ ref’d n. r. e.). Consequently, the court’s duty to protect the children’s interests should not be limited by technical rules. See Leithold v. Plass, 413 S.W.2d 698, 701 (Tex.1967); Brillhart v. Brillhart, 176 S.W.2d 229, 230 (Tex.Civ.App. — Amarillo 1943, writ ref’d w. o. m.). Pertinent facts which may directly affect the interests of the children should be heard and considered by the trial court regardless of the lack of diligence of the parties in their presentation of information to the court. Gf. Sparkman v. Sparkman, 217 Ala. 41, 114 So. 580, 581 (1927); Person v. Person, 172 La. 740, 135 So. 225, 227 (1931); Annot., 9 A.L.R.2d 623, 634 (1950).

On motion for new trial the court has discretion to grant the motion if it finds that the interests of the children have not been fully protected. We hold that in an extreme case, if the evidence is sufficiently strong, failure to grant the motion may be an abuse of that discretion.

Accordingly, we have examined the affidavits in support of the motion for new trial to determine whether the trial court abused its discretion in refusing to grant a new trial. We cannot escape the conclusion that the court should have granted the motion. For example, one affiant told of ap-pellee’s erratic behavior in disciplining the children and of his violent temper. Appellant’s sister related an incident in which appellee whipped his son who was then two years old for soiling his diapers, screamed at the boy that he was a “pig” and put him in the rear yard. This affiant further swore that, one year earlier when respondent’s son did not eat his dinner, the respondent grabbed him by the elbows and screamed that he was going to kill him. Another averred that she had seen appellee strike his young son so severely that the child was bruised. In yet another instance, appellee struck his daughter in the nose causing it to bleed. None of these facts pertaining to appellee’s violent temper or to his harsh treatment of the children had been presented to the jury. Furthermore, the juvenile investigator’s report shows that letters written by appellee’s suggested character references mentioned appellee’s violent temper. Although we do not suggest that these letters were admissible, they present the likelihood that important additional evidence was available. With these facts before the court on motion for new trial, we hold that the trial court abused its discretion in overruling the motion.

Our holding in this case should not be interpreted as meaning that the court must grant a new trial whenever the losing party brings forth new evidence bearing on the issue of the best interests of the children. No abuse of discretion is shown unless the evidence presented in support of the motion, and not offered at the original trial, strongly shows that the original custody order would have a seriously adverse effect on the interest and welfare of the children, and that presentation of such evidence at another trial would probably change the result. We conclude that the evidence disclosed by the affidavits in the present case is of that character.

Neither do we hold that the trial court must necessarily grant the motion on the basis of affidavits without hearing the evidence from the witnesses. Of course, the court may, in the exercise of its discretion, require that the witnesses give their testimony in person and be subjected to cross-examination before the court decides whether a new trial should be ordered. Or, it may decide to hear further evidence on the ground that the facts stated in the affidavits are not strong enough to justify a new trial. It should not, however, in such a case as this, refuse to consider the evidence on the ground that the party tendering it had not been diligent in presenting it. To permit the future of the children to be determined by lack of diligence of one of the parties would ignore the court’s primary responsibility to protect the children and make its decision in their best interests.

Reversed and remanded.

       The court also has discretion to appoint a guardian ad litem or an attorney whenever it discovers that the interests of the children are not being fully protected by counsel for the parents. Tex. Family Code Ann. § 11.-10(a)(c) (Vernon Supp.1975).


author: COLEMAN, Chief Justice.

text:
    Alice Crockett BOYD, Appellant, v. Ronnie D. BOYD, Appellee.
    No. 16624.
    Court of Civil Appeals of Texas, Houston (1st Disk).
    Feb. 5, 1976.
    Rehearing Denied March 4, 1976.

      Bousquet & McPherson, Thomas G. Bous-quet, Houston, for appellant.
    Robert I. Peeples, Houston, for appellee.
   COLEMAN, Chief Justice.

This is an appeal from an order of the trial court modifying child support payments. Findings of fact and conclusions of law were filed. The appellant contends that the trial court erred in making certain findings of fact and conclusions of law and abused its discretion by reducing the child support payments ordered in the divorce decree entered in 1972. We affirm.

In the divorce decree appellant was given custody of the three minor children of the marriage, a girl and two boys. Appellee was required to pay $300.00 per month in child support payments. The trial court approved a property settlement agreement dividing substantial real estate holdings. As a part of this settlement agreement appellee agreed to make monthly payments of $700.00 to appellant for the support of appellant and the children. He also agreed to pay the medical, dental and hospital expense of the children in excess of $25.00 per occurrence. In September of 1974, the two boys, with the approval of appellant, went to live with appellee, his wife and her children.

At this hearing on modification of the child support payments, the parties agreed that the husband, appellee, would be made managing conservator of the two boys, and such a provision was included in the court’s decree.

At the hearing on this matter appellant testified that she did not believe that she was able to maintain her daughter in the same standard of living as that prior to the divorce without increased support payments. The daughter was twelve years of age at the date of the hearing. Appellant asserts that since her daughter is three years older than she was at the time of the divorce, the cost of supporting her has increased. She testified that the child was becoming a teenager and was very interested in clothing. She also testified that a fair share of the expense of maintaining her home, which should be provided out of the child support payments, together with costs directly attributable to the care of said child would amount to approximately $1,000.00 each month. There is no testimony as to the reasonable cost of supporting the child at the time the divorce was granted.

The trial court found that in the year of the divorce, appellee’s net income after taxes was $19,181.00 and that his net income after taxes during the year 1974 was $122,-426.00. There is evidence that appellee’s income varies from year to year and that his average net income over the last seven years was $51,155.00. There is evidence that his income for the year 1974 was approximately $100,000.00 more than any previous year. He also testified that he expected his income for the current year to approximate $134,000.00. He testified that he estimated that the amount of money required to properly care for Leslie Ann Boyd, his daughter, was the sum of $372.00 per month.

The trial court is given broad discretion in fixing child support payments, and decreasing or increasing such payments, and the court’s order will not be disturbed on appeal except on a showing of a clear abuse of discretion. Clark v. Clark, 496 S.W.2d 659 (Tex.Civ.App. — Waco, 1973, no writ history).

In Bell v. Sykes, 521 S.W.2d 752 (Tex.Civ. App. — Houston [1st], 1975, no writ history), this court pointed out that in proceedings to modify the child support páyments in a divorce decree the court must consider the provisions of V.T.C.A. Family Code Sections 14.07 and 14.08.

Section 14.07, supra, provides that:
“(a) The best interest of the child shall always be the primary consideration of the court in determining questions of support of and access to the
child .
“(b) In determining the best interests of the child, the court shall consider the circumstances of the parents . . . ”
Section 14.08, supra, provides:
“(a) The motion shall allege that the circumstances of the child have materially and substantially changed since the entry of the order sought to be modified
“(c) After a hearing and on a finding that the circumstances of the child have materially and substantially changed and that modification is in the best interest of the child, any order or part of an order may be modified, except that an order providing for support of a child may be modified only as to obligations accruing subsequent to the motion to modify.”

The judgment in the instant case states the court’s finding that the circumstances of the children of appellant and appellee have materially and substantially changed in that the sons are now living with appel-lee and only the daughter remains with appellant. In his findings of fact the court also finds that the best interest of the children would be served by modifying the prior order of the court to provide that Ronnie D. Boyd should pay the sum of $150.00 per month as support for Leslie Ann Boyd until she attains the age of eighteen years, and in addition he required Ronnie D. Boyd to pay the private school tuition for the said Leslie Ann Boyd. There is testimony that the child attends a private school where the tuition is about $90.00 per month, and that it is contemplated that she will be enrolled in another private school where the tuition will be $270.00 per month.

As a conclusion of law the court stated:
“The court may consider the contractual periodic payments as part of the child support being paid by Ronnie D. Boyd for the support of his minor daughter in this case (rather than examine it as one of his expenses and one item of income of Alice Crockett Boyd).”

The agreement relative to the payment of the $700.00 monthly referred to by the court in this conclusion of law reads:

“In addition to any rights that Respondent may have in the property of Petitioner and Respondent, said property having been equitably divided and partitioned as set forth above, Petitioner, in recognition of the family relationship and in discharge of his obligation of support, does hereby agree to pay to Respondent periodic payments in the sum of Seven Hundred and No/100 ($700.00) Dollars per month for the support of Respondent and the minor children of the parties hereto until the youngest of said minor children attains twenty-one years of age subject to the contingencies hereinafter set out . . .”

One of the contingencies referred to in the above quoted agreement reads:

“. . .In the event of Respondent’s remarriage, the periodic payments shall be reduced from $700.00 per month to $360.00 per month and further reduced by one-third as each child of Petitioner and Respondent attains eighteen years of age

While appellee testified that he considered the $700.00 payment required by the settlement agreement to be additional child support, the language of the agreement refutes his contention. Appellee testified that the $700.00 amount was agreed to by him for the reason that under the Internal

Revenue Code a payment of alimony could be deducted from his income and would be taxable to the recipient. Thus by paying his wife alimony, which could be used for child support, he could give her money which would otherwise be paid to the government in taxes. By reason of the clause requiring reduction in the payments on remarriage of the wife it appears from the written instrument that it was anticipated that no more than $360.00 of the payment would be applied to the support of the children. We recognize that Mr. Boyd is under a legal obligation to pay the sum of $700.00 to his former wife. She may use such part of that sum as she desires for the support of her daughter. The payment cannot be reduced simply because the wife is no longer required to support the two boys. The court would clearly be within his discretion in determining that Mr. Boyd was in fact paying the sum of $360.00 per month for the support of his daughter in addition to the amount which the court ordered him to pay by the amended decree. In determining the amount of child support which the court would order Mr. Boyd to pay under penalty of contempt the court could consider that he was legally obligated to pay the child’s school tuition and medical, dental and hospital bills. Without taking into account the cost of medical and dental expense the court could consider that Mr. Boyd had assumed an obligation to pay a sum approximating $600.00 a month for the support of his child.

It appears from the court’s conclusion of law previously mentioned that he in fact considered that Mr. Boyd was legally obligated to pay the sum of $700.00 per month in addition to the medical and educational expense and the amount awarded as child support payments. The total sum arrived at by this process of reasoning would approximate the amount of child support which Mrs. Boyd testified the child required.

The change in the managing conservator-ship of the boys from Mrs. Boyd to Mr. Boyd, and the substantial increase in Mr.

Boyd’s income for the year 1974 and his projected earnings for the year 1975 clearly support the trial court’s finding that the best interest of the child required the modification of the prior order of the court. However, the evidence does not require a finding that the circumstances of the child have materially and substantially changed since the entry of the order sought to be modified so as to require an increase in child support.

While the amount of support which the trial court ordered Mr. Boyd to contribute to the one child in the custody of Mrs. Boyd was reduced from the $300.00 payment which Mr. Boyd was required to make for the support of three children to $150.00 which he is required to make for the support of one child, in fact the amount of money contributed by Mr. Boyd available for the support of this one child has been increased.

The trial court erred in making the conclusion of law hereinbefore discussed. We conclude from an examination of the whole record that the error was not such as was calculated to cause and probably did cause the rendition of an improper judgment.

The judgment is affirmed.


author: CHADICK, Chief Justice.

text:
    IRVING INDEPENDENT SCHOOL DISTRICT et al., Appellants, v. DELTA AIRLINES, INC., Appellee.
    No. 8342.
    Court of Civil Appeals of Texas, Texarkana.
    Feb. 10, 1976.
    Rehearing Denied March 23, 1976.

      Arlen D. Bynum, Bradshaw & Bynum, Dallas, for appellants.
    William F. Carroll, Clark, West, Keller, Sanders & Butler, Dallas, for appellee.
   CHADICK, Chief Justice.

Delta Airlines, Inc. sued the Irving Independent School District, the District’s Tax Assessor Collector, its Board of Equalization and Board of Trustees and obtained a declaratory judgment and permanent injunction. The judgment declared the airline’s thirty-five year leasehold interest in a 15.49 acre tract of land and improvements thereon at the Dallas-Fort Worth Regional Airport tax exempt and relieved the airline from tax liability to the school district, as well as, from liens and actions or threats of actions to enforce tax collection so long as the land and improvements are used for repairing, servicing and maintaining the airline’s flight and ground equipment in support of its operations at the airport. The school district and its co-defendants have perfected an appeal. The judgment of the trial court is modified and affirmed.

I.

The initial issue for determination is whether Tex.Rev.Civ.Stat.Ann. art. 7173 (1971), by its terms, excludes the airline’s leasehold interest from taxation by the school district. The article provides that property belonging to a city or cities and held under a lease for a term of one year or more shall be considered for taxation purposes as the property of the person holding the lease; however, specifically not included, and therefore excluded from the statute’s operation, is a lease of a public transportation facility. The parties agree the Cities of Dallas and Fort Worth own the 15.49 acre tract and improvements in suit and leased it to the airline under an agreement dated April 1, 1972. Thus, the airline claims and holds a leasehold estate in city owned realty. There is no evidence supporting a claim by the airline to an actual or lawful use of the demised property in any other right. The question narrows to whether the 35.49 acres of land and improvements are, as a matter of law, under this record a public transportation facility.

II.

The improvements at the time of suit consisted principally of a maintenance hangar connected with the airline passenger terminal and airport runway by an extensive taxiway system. The building is constructed to permit direct entry of aircraft from the taxiways to inspection and repair bays and houses, shops and offices for use in the airline’s maintenance program. Wheel, welding, avionics and sheet metal shops, as well as areas for parts storage and storage of flammable material are set apart inside the building. Planes in service are required to undergo frequent inspection, ranging from a service “check” each 24 hours of operation to less frequent major inspections requiring disassembly of engines, etc. Facilities for this purpose must be available. Ground service equipment, that is, tugs used in maneuvering a plane at the terminal loading gate, air conditioning trucks used to cool loading planes prior to activation of engines, belt loaders used in baggage loading, cars, trucks and similar equipment useful in operating the facility are also housed in the building.

Cities are authorized to construct, operate and maintain airports and have been delegated power to be exercised by them in the execution of such endeavors. Tex.Rev.Civ. Stat.Ann. art. 46d-l et seq., (The Municipal Airports Act). Cities may “ . plan, establish, develop, construct, enlarge, improve, maintain, equip, operate, regulate, protect and police airports and air navigation facilities, . . . ” An airport by statutory definition is: “ ‘(A)ny area of land or water which is used, or intended for use, for the landing and take-off of aircraft, and any appurtenant areas which are used, or intended for use, for airport buildings or other airport facilities or right-of-ways, together with all airport buildings and facilities located thereon.” An air navigation facility is: “(A)ny facility — other than one owned and operated by the United States— used in, available for use in, or designed for use in, aid of air navigation, including any structures, mechanism, lights, beacons, markers, communicating systems, or other instrumentalities, or devices used or useful as an aid, or constituting an advantage or convenience, to the safe taking-off, navigation, and landing of aircraft, or the safe and efficient operation or maintenance of an airport, and any combination of any or all of such facilities.”

As the quotations from Article 46d — 1 show, facilities other than runways and terminals are legislatively recognized as necessary to airport operation. The use of the 15.49 acre tract and its improvements in operational support of air passenger service, as shown by the undisputed facts in this record, brings such facilities within the legislative definitions. There is no warrant for use of a more restrictive' standard in this instance. Together, such land and improvements constitute facilities used in and available to use in and designed for use in the safe and efficient operation of the Dallas-Port Worth Regional Airport and constitute a public transportation facility as contemplated by Article 7173.

III.

The conclusion announced requires this court to confront and decide the issue of whether Article 7173 is unconstitutional because it permits leasehold interests in public transportation facilities to escape taxation. The mentioned article is the sole statutory authority for taxation of privately held leasehold estates in city owned real property. A multitude of cases have considered taxation associated with municipally owned property as affected by Texas Constitution Article VIII, Secs. 1, 2 and 17, Article XI, Sec. 9 and Tex.Rev.Civ.Stat. Ann. arts. 7145, 7150, 7173 and 7174. Out of the welter of views expressed in opinions filed in these cases, it is concluded that the law is now settled that the legislature has the power to authorize taxation of privately held leaseholds on municipal property. Daugherty v. Thompson, 71 Tex. 192, 9 S.W. 99 (1888); The City of Beaumont v. Fertitta, 415 S.W.2d 902 (Tex.1967).

Leasehold interests, generally, are not statutorily subjected to taxation. 54 Tex.Jur.2d, Taxation, Sec. 55. See also Daugherty v. Thompson, supra; Phillips Chemical Company v. Dumas School District, 361 U.S. 376, 80 S.Ct. 474, 4 L.Ed.2d 384. However, in implementing state tax policy with reference to municipally owned land and improvements, the legislature, by enacting Article 7173, decided that leaseholds in such property having a term of one year or more should be taxed but provided for certain exceptions. Among the exceptions is a lease of a public transportation faciiity. Omitting from taxation a lease on municipally owned property used as a public transportation facility does not run counter to an express or implied command of the constitution; the omission merely equates such leases with leases generally or leases on municipally owned property of less than one year duration. As explained in Daugherty v. Thompson:

“Property exempted from taxation in the hands of its owner while used for the purposes on account of which the exemption is given, will doubtless become subject to taxation if leased, for any period, to be used for a purpose which does not itself give the exemption, unless in cases in which the exemption is given by the constitution, or under a contract that would be impaired by taxation. While this is true, it does not follow that a lessee will be liable to pay taxes on the leasehold, unless the law so provides. The only law providing that a lessee shall pay taxes on leased property is found in article 4691, Rev.St. (now Article 7173) which determines what leasehold estate shall be taxable.” (emphasis and interpolation supplied).

Article 7173 must be considered a valid legislative enactment as legislative acts are presumed constitutional unless infirmity is clearly manifest. Robinson v. Hill, 507 S.W.2d 521 (Tex.1974); Duncan v.. Gabler, 147 Tex. 229, 215 S.W.2d 155 (1948); Texas Nat. Guard Armory Board v. McCraw, 132 Tex. 613, 126 S.W.2d 627 (1939).

IV.

Whether the broad relief granted exceeds the pleading and proof becomes the final issue. Without a prolonged discussion it may be stated that the relief granted was overly broad and more extensive than the record justified. The nature of the use of the leasehold interest determines whether the land and improvements are a public transportation facility and its taxable status. Use of the leasehold is subject to change and tax liability is not irrevocably fixed by use at the time of the suit. Nor will the record sustain injunctive relief. Neither irreparable injury nor absence of an adequate remedy at law is shown.

V.

The judgment of the trial court will be modified to declare that the 15.49 acre tract and its improvements were a public transportation facility as used in 1974 and not taxable by the school district for that period.

As modified the judgment of the trial court is affirmed.

      . The following extract from one of the briefs on file lends perspective to the litigation: “The Dallas-Fort Worth Regional Airport is located midway between the Cities of Dallas and Fort Worth, Texas and encompasses within its physical boundaries approximately 17,000 acres, or roughly, 26 square miles of land surface area. The Airport, including land, improvements and all facilities located thereon, is owned jointly by the municipalities of Dallas, Texas and Fort Worth, Texas and is administered by the Dallas-Fort Worth Regional Airport Board. Delta leases from the Cities of Dallas and Fort Worth, through the auspices of the Regional Airport Board, passenger terminal facilities, an air cargo terminal and a maintenance facility at the Dallas-Fort Worth Regional Airport. Only the latter lease on the Delta maintenance facility is at issue in this appeal, the other facilities being located outside the boundaries of defendant Irving Independent School District.” The development, construction and financing of the airport is traced by Chief Judge William M. Taylor, Jr., in City of Dallas, Texas v. Southwest Airlines Co., 371 F.Supp. 1015 (N.D.Tex.1973) affd 494 F.2d 773 (5th Cir. 1974) cert. den. 419 U.S. 1079, 95 S.Ct. 668, 42 L.Ed.2d 674 (1974).

      . Judges Walker, Greenhill and Steakley dissented in The City of Beaumont v. Fertit-ta, however the case was cited as authority on a related point in Canutillo Independent School District v. City of El Paso, 514 S.W.2d 466 (Tex.Civ.App. El Paso 1974, writ refd). Such Supreme Court approval is doubtful if the principal thrust of Fertitta is open to question.

      . It is not contended that this record shows the omission under consideration is discriminatory.


author: KEITH, Justice.

text:
    Bertha McBURNETT et vir., Appellants, v. Floyd GORDON et al., Appellees. Bertha McBURNETT et vir., Appellants, v. James R. GORDON et al., Appellees.
    Nos. 7797, 7798.
    Court of Civil Appeals of Texas, Beaumont.
    Feb. 12, 1976.
    Rehearing Denied March 25, 1976.
    J. Leonard Gotsdiner, Houston, for appellants.

      Fletcher Richardson, Lee Roger Ratliff, Silsbee, for appellees.
   KEITH, Justice.

Plaintiffs below (appellants here) have appealed from two adverse judgments entered in the District Court of Hardin County; and, since the parties are the same in each case, we will dispose of the appeals with a single opinion.

The Deed Case

Our No. 7797 (District Court No. 15,048) is a suit brought by appellants against ap-pellees to set aside three deeds executed by the mother of the parties, Rosie Gordon, prior to her death. This suit was instituted on April 9, 1969, and the defendants duly answered; and, by amended pleadings, filed numerous special exceptions. By an order dated September 11, 1975, the trial court sustained all of such exceptions and dismissed the suit. The order is silent as to whether plaintiffs sought leave or declined to amend. The appeal was duly perfected from the order of dismissal.

In the Deed Case the sole question is whether the trial court erred in sustaining the exceptions of the defendants and in dismissing the cause. The appellants have no points of error challenging such action. Instead, all of the points of error relate to our No. 7797 hereinafter discussed complaining of the dismissal of the cause for want of prosecution. We discussed only recently the nature of an appeal from an order of dismissal after the trial court has sustained exceptions. See McCamey v. Kinnear, 484 S.W.2d 150 (Tex.Civ.App. — Beaumont 1972, writ ref’d n. r. e.).

Had appellants addressed points of error to this action of the court in sustaining the special exceptions in the Deed Case, we could pass upon the propriety of the court’s dismissal. But, appellants have failed to discharge the burden resting upon every litigant who perfects an appeal from an adverse judgment in a trial court — “to show that the judgment is erroneous in order to obtain a reversal. The Englander Go., Inc. v. Kennedy, 428 S.W.2d 806, 807 (Tex.1968).

An appellant can show reversible error only by complying with the rules governing appellate practice, including Tex.R. Civ.P. 418. When a point of error is not preserved in accordance with Rule 418, the question is not properly before the appellate court for review. Isenhower v. Bell, 365 S.W.2d 354, 358 (Tex.1963). The failure to present a point of error amounts to a waiver thereof. Bickler v. Bickler, 403 S.W.2d 354, 361 (Tex.1966); State Farm Mutual Automobile Ins. Co. v. Cowley, 468 S.W.2d 353, 354 (Tex.1971).

Upon oral argument, and for the first time, appellants in the Deed Case contended that the trial court committed fundamental error in sustaining one of the special exceptions, the thrust of the argument being that the pleadings disclosed the absence of a necessary party. No such contention was made by appellants in the court below or in the brief filed in this court.

We granted leave to file a supplemental brief confined to the alleged fundamental error and a lengthy brief has been filed by appellants’ counsel. We have examined all of the authorities therein cited and find none to be dispositive of the contention now advanced.

The doctrine of fundamental error was restricted severely by our Supreme Court in McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265, 266 (1957), which required the appellate court to note unassigned errors “[w]hen the record affirmatively and conclusively shows that the court rendering the judgment was without jurisdiction of the subject matter” of the suit.

Chief Justice Calvert, in Petroleum Anchor Equipment, Inc. v. Tyra, 406 S.W.2d 891, 893 (Tex.1966), construing Tex.R.Civ.P. 39 as it was then written, addressed the court’s attention to classification of the parties. However, extensive changes were made in Rule 39 in the amendment effective January 1, 1971, rendering inoperative much of the holding in Tyra, supra.

The modern and prevailing rule is that stated in Cooper v. Texas Gulf Industries, Inc., 513 S.W.2d 200, 203-204 (Tex.1974), where Tyra and amended Rule 39, both supra, are discussed in a scholarly opinion by Justice Johnson. Among other statements contained in this latest expression by our Supreme Court is this:

“Under the provisions of our present .Rule 39 it would be rare indeed if there were a person whose presence was so indispensable in the sense that his absence deprives the court of jurisdiction to adjudicate between the parties already joined.” (513 S.W.2d at 204)

See also, Sherrill v. Estate of Plumley, 514 S.W.2d 286, 298 (Tex.Civ.App. — Houston [1st Dist.] 1974, writ ref’d n. r. e.).

Under the record which we review in the Deed Case, we do not find fundamental error. McCauley, supra.

Appellants’ having no points of error challenging the action of the trial court in sustaining the exceptions and dismissing the cause, and having found no fundamental error in our search of the record, the judgment of the trial court in the Deed Case (Our No. 7797, District Court No. 15,-048) is AFFIRMED.

The Will Case

Our No. 7798 (District Court No. 15,609) originated as an appeal from an order of the constitutional county court of Hardin County denying admission to probate of the alleged will of Rosie Gordon, the mother of all the parties. The transcript of the proceedings in the probate court was filed in the District Court on June 18,1970. Thereafter, the defendants filed separate motions to dismiss this cause because of want of diligent prosecution, such motions having been filed on July 30 and July 31, 1975, respectively.

The Will Case recites the appearance of the parties by and through their respective attorneys and continues:

“The Court, after hearing all of the evidence submitted by all of the respective parties hereto, argument of counsel and after full consideration of these matters, finds the following: The appeal of BERTHA McBURNETT has been pending on the docket of this court for a period in excess of five (5) years; said cause has not been set for hearing by the said BERTHA McBURNETT since being placed on the docket of this court; on February 19, 1973, by and through her attorney of record, Plaintiff requested that said cause be placed on the trial docket setting of this court, and made no request for a trial setting at the docket call held on July 20, 1973; and, the said BERTHA McBUR-NETT, by her acts and conduct, has abandoned her appeal and cause of action. It appears to the Court that the motions to dismiss are well taken and should be granted, [emphasis supplied]

[followed by an order of dismissal]”

Appellants have appealed from this latter order without a statement of facts or any effort to explain why they were deprived of a statement of facts.

In the Will Case, although appellants have points of error challenging the order of dismissal for want of prosecution, no attempt was made, even upon oral argument, to assert fundamental error as was done in the Deed Case discussed earlier. None of the assigned errors addresses itself to the absence of a statement of facts.

Justice Stephenson, in Missouri P. R. Co. v. Liberty County Water C. & I. Dist, 483 S.W.2d 50 (Tex.Civ.App. — Beaumont 1972, writ ref’d n. r. e.), discussed in detail the rules governing such a dismissal. It is readily apparent from such discussion that the trial court’s discretion in dismissing the cause for want of prosecution will not be reversed in the absence of a showing of abuse of discretion; and, this presupposes that evidence was introduced at the hearing upon the motion.

It is clear that the points urged by appellants cannot be reviewed without a statement of facts containing the evidence introduced upon the hearing. Cf. Lane v. Fair Stores, Inc., 150 Tex. 566, 243 S.W.2d 683, 684 (1951). And, in the absence of a statement of facts, we must presume that the evidence supports the finding by the trial court. Guthrie v. National Homes Corporation, 394 S.W.2d 494,495 (Tex.1965). Having no factual record to review, we find no abuse of discretion. So holding, the judgment of the trial court in the Will Case (Our No. 7798, District Court No. 15,609) is likewise AFFIRMED.

      . Among the authorities cited are three cases from separate courts of civil appeals. Counsel neglects to advise us that each of these cases was reversed by the Supreme Court. See, e. g., Joy v. Peacock, 131 S.W.2d 1012 (Tex.Civ.App. — Dallas 1939), reversed, 137 Tex. 387, 153 S.W.2d 440 (1941); State v. Bednarz, 174 S.W.2d 743 (Tex.Civ.App. — San Antonio), reversed, 142 Tex. 138, 176 S.W.2d 562 (1943); and Atwood v. Humble Oil & Refining Co., 239 S.W.2d 412 (Tex.Civ.App. — El Paso 1950), reversed, 150 Tex. 617, 244 S.W.2d 637 (1951).
      Candor to this court in the presentation of the authorities would have indicated to counsel the necessity of at least informing us that the decisions which he relies upon had become judicial casualties many years ago.

      . We note in passing that although appellants’ counsel was counsel of record in Cooper, supra, that case was not mentioned in oral argument or in the post-submission brief. Moreover, Cooper did not present a case of unassigned error being treated as fundamental error; rather, it was brought directly to the attention of the appellate court by proper assignments.


author: GUITTARD, Justice.

text:
    T & T DRAPERY SERVICE, INC., Appellant, v. Gary Paul BROWN et al., Appellees.
    No. 18846.
    Court of Civil Appeals of Texas, Dallas.
    Feb. 12, 1976.

      Robert L. Russell Bush, Rohne & Hooden-pyle, Arlington, for appellant.
    Glennis E. Sims, Bailey, Williams, West-fall, Lee & Fowler, Dallas, for appellees.
   GUITTARD, Justice.

This injunction suit was brought by T & T Drapery Service, Inc. to restrain two of its former employees, Gary Brown and Lacey Moore, from competing with plaintiff in violation of covenants in their employment contracts.

The trial court denied a temporary injunction, and plaintiff appeals. We hold that this order was within the court’s discretion because there is evidence to support á finding that plaintiff failed to show probable injury to plaintiff’s business pending final trial.

Plaintiff contends in its first point that the trial court abused its discretion in denying the temporary injunction because the evidence “tended to show that Plaintiff had suffered a probable injury in losing the drapery business of the apartment complexes known as Whispering Hills and Lazy Acres as a result of Defendants Brown and Moore’s breach of their employment contracts with Plaintiff.” Disposition of this contention requires a review of the evidence.

Plaintiff is in the business of cleaning, repairing and selling commercial draperies. Most of its customers are apartment complexes in and around the Dallas area. It has divided its trade area into a number of routes, each of which is handled by a route salesman. The salesman has the responsibility to deal with customers, take down the draperies, bring them into the plant to be cleaned and pressed, return them, rehang them, and make any rod repairs necessary to hang them properly. Since plaintiff’s business is based on service to its customers, and that service is performed by the route salesmen, the good will of plaintiff’s business consists principally of the rapport established between the salesmen and the customers. In the past plaintiff had experienced a loss of business as a result of loss of several of its salesmen to competitors. To protect its business against further losses of this kind, plaintiff requires its salesmen to sign employment contracts in which they agree not to engage in the drapery service business in competition with plaintiff within a one-hundred-mile radius of Dallas, Texas, for a period of three years after leaving plaintiff’s employment.

Defendants Brown and Moore had been employed as route salesmen for plaintiff several months before signing these contracts. Neither had any knowledge of the business before they began working for plaintiff, and both had received all of their training from plaintiff. After working under the written contracts for more than seven months, defendants quit and went to work for a competing company known as The Workroom, Incorporated, doing substantially the same type of work as they did for plaintiff. At the time of the temporary-injunction hearing, defendant Moore was serving several of the customers he had formerly served for plaintiff, but none of these former customers were customers of plaintiff at the time Moore left. Defendant Brown’s route for The Workroom was in a different area from the routes he had worked for plaintiff, but he was familiar with some of plaintiff’s customers in that area because he had occasionally assisted plaintiff’s other route salesmen there.

Defendant Moore testified that at the time of the hearing he was not serving any of the customers for The Workroom that he had served when he was working for plaintiff. He acknowledged that he had served the Lazy Acres complex for plaintiff and had developed a good rapport with the manager. He admitted that this manager had shifted her drapery business to The Workroom after he had gone to work for that company, and said that he did not know whether his employment by The Workroom was the reason for her switching over, but thought it was “a big factor.” He testified, however, that the management of Lazy Acres had been taken over by First Property Management Company, which already had an agreement with The Workroom concerning their drapery service.

Whispering Hills was another customer Moore had served when working for plaintiff, but was not on Moore’s route at the time he left. Whispering Hills switched to The Workroom after Moore went to work there, and Moore first testified that the reason for the shift was his good rapport with the manager and that the manager found out that he was with The Workroom and wanted him to be her route driver. He also testified, however, .that his rapport with this manager “wasn’t necessarily the reason why she came with The Workroom” because she switched over knowing that he would not be her route driver.

Both Moore and Brown testified that their duties as route drivers for The Workroom were confined to the service of The Workroom’s established customers and did not include solicitation of new customers. Moore admitted that he had given the name of his former customers to another employee, who went out and talked to them, but he denied that any of these customers had shifted over to The Workroom because of his acquaintance with the managers. Rather, he said that they shifted because they were managed by First Property Management Company, and all of the First Property apartments were customers of The Workroom.

Moore also admitted that he had gone to Timberpark I at the request of the manager to talk about doing business with her. She was a customer of plaintiff, but Moore “gathered” that she no longer had credit with plaintiff. There is no evidence that plaintiff ever lost the patronage of Timber-park I.

Plaintiff’s president, Claude Thomas, testified that he had lost customers since Moore and Brown left, but the only customers he could name were Lazy Acres and Whispering Hills. He knew, however, that Whispering Hills had recently been sold and was being managed by a California company and that the company operating Lazy Acres had also had a change of management.

Plaintiff was unable to establish any direct economic loss as a result of competition by Brown and Moore. Thomas testified that plaintiff’s business had decreased during the year preceding defendants’ departure as a result of the general business slump as well as the earlier loss of several route salesmen. He was unable to say whether plaintiff’s gross sales had decreased since Moore and Brown had left. One of his supervisors, Murray Edwards, testified that since that time the business of all his routes had fallen off. He did not mention any greater decline on the routes defendants had worked for plaintiff. Defendant Brown testified that The Workroom’s prices were considerably lower than plaintiff’s and that plaintiff had been losing customers to The Workroom before he and Moore left.

Although this evidence might have justified the trial court in issuing a temporary injunction restraining defendants from competing with plaintiff pending final trial, we cannot say that the court abused its discretion in denying it. To authorize issuance of the writ, the plaintiff must present evidence tending to show not only a probable right of recovery on final hearing, but also a probable injury in the interim. Millwrights Local Union v. Rust Engineering Co., 433 S.W.2d 683, 686 (Tex. 1968). Here plaintiff could identify only two of its customers as having been lost to The Workroom after defendants began working there, and plaintiff’s assertion of probable injury pending the suit appears to be based primarily on the loss of these two customers. There is evidence tending to show that the loss of these customers was the result of factors other than competition by defendants, such as management changes and The Workroom’s lower prices. Viewing the evidence here most favorably to defendants, as we must if necessary to uphold the trial court’s order, we hold that it justifies the trial court’s finding that no probable injury as a result of defendant’s competition was shown.

We need not decide the question of validity of the covenants against competition in the employment contracts, nor need we review the trial court’s findings concerning the time and distance limits in those covenants.

Affirmed.


text:
    H. MOLSEN & CO., INC., Appellant, v. E. W. SETTLE, Appellee.
    No. 18764.
    Court of Civil Appeals of Texas, Dallas.
    Feb. 12, 1976.

      Thomas A. Blakeley, Jr., Grady, Johnson, Smith & Blakeley, Dallas, for appellant.
    John Allen Curtis, Curtis & Hudson, Inc., Dallas, for appellee.
   AKIN, Justice.

This is a venue case in which plaintiff seeks to sustain venue in Collin County under Tex.Rev.Civ.Stat.Ann. art. 1995(9) and (23) (Vernon 1964) and under decisions holding venue to be res judicata after a nonsuit in a previous case.

E. W. Settle sued H. Molsen & Company, a resident of Dallas County, and B. G. Turner, a resident of Hunt County, in Collin County for a declaratory judgment and for damages. He sought to invalidate two contracts with defendant Molsen for the sale of plaintiff’s cotton production on two farms and for the difference in price between the market value and the contract price for cotton already delivered. Plaintiff admits that he signed the first contract dated March 19,1973, but alleges that it should be set aside on various grounds. He alleges that the second contract, dated May 28, 1973, was invalid because he did not sign it, and, consequently, his signature must be a forgery. Molsen filed its plea of privilege seeking transfer of the cause to Dallas County. Plaintiff controverted Molsen’s plea of privilege urging the application of subdivisions 9 and 23, as well as a plea of res judicata on venue. Defendant Turner, a resident of Hunt County and the agent of H. Molsen & Company, did not file a plea of privilege and is not a party to this appeal. The trial court overruled Molsen’s plea of privilege. Molsen appeals.

Defendant Molsen’s contentions are: (1) Subdivision 9 does not apply because plaintiff failed to prove that a crime (forgery) was committed in Collin County; (2) subdivision 23 does not apply because plaintiff failed to plead and prove a cause of action arising in Collin County against defendant and failed to prove that defendant had an “agency or representative” in Collin County; and (3) decisions that hold venue to be res judicata are inapplicable because plaintiff failed to prove that the prior suit arose out of the same transaction as the present case. We agree with these contentions and, accordingly, reverse and render.

1. Subdivision 9

Subdivision 9 provides that “[a] suit based upon a crime, offense, or trespass may be brought in the county where such crime, offense, or trespass was committed by the defendant, or by his agent or representative . . . .” Plaintiff alleged in his controverting affidavit that his signature on the contract was forged by defendant Molsen’s agent Turner, and that the offense occurred in Collin County, Texas. At the venue hearing, however, all that was proved was that plaintiff did not sign this contract and that he did not know who signed it. We conclude, therefore, that plaintiff failed to establish that the crime of forgery was committed in Collin County, and, consequently, he cannot maintain venue under subdivision 9. To come within subdivision 9, a plaintiff must plead and prove a crime committed by the defendant in the county in which the plaintiff asserts venue. E. g., Wiederkehr v. Coker, 304 S.W.2d 185 (Tex.Civ.App. — Eastland 1957, no writ).

2. Subdivision 23

Subdivision 23 provides that suits “against a private corporation may be brought in the county in which its principal office is situated; or in the county in which the cause of action or part thereof arose; or in the county in which the plaintiff resided at the time the cause of action or part thereof arose, provided such corporation . . . has an agency or representative in such county . . . .” [Emphasis added.] ' In order to come within subdivision 23 so as to defeat a plea of privilege, plaintiff must have both pleaded and proved a cause of action arising in Collin County, Texas. Employers Casualty Co. v. Clark, 491 S.W.2d 661, 662 (Tex.1973). Plaintiff alleged that the first contract of March 19, 1973, was unenforceable because it was vague and indefinite, it was unconscionable, there was a failure of consideration, there was a disparity of information about the cotton market between the parties, and defendant Molsen had inside information of federal laws in the operation of the United States Department of Agriculture. At the plea of privilege hearing, however, plaintiff offered no proof of these allegations. The contracts themselves were not tendered in evidence. Moreover, plaintiff failed to prove that defendant Molsen had an “agency or representative” in Collin County. Instead, plaintiff proved that defendant Turner, agent for defendant Mol-sen, resided in Hunt County. Since plaintiff failed to prove a cause of action against defendant Molsen in Collin County, and, since plaintiff failed to prove that an agent or representative of defendant Molsen resided in Collin County, we conclude that subdivision 23 does not apply.

3. Res Judicata

Plaintiff also argues that since defendant Molsen had nonsuited a case filed by it in Dallas County against plaintiff Settle after Settle had filed his plea of privilege to be sued in Collin County, the issue of venue is res judicata. Consequently, he argues that the trial court correctly overruled defendant Molsen’s plea of privilege. In support of this contention, plaintiff cites Gonzalez v. Burns, 406 S.W.2d 527 (Tex.Civ.App. — San Antonio 1966, no writ), which states “that where a plaintiff takes a non-suit while defendant’s plea of privilege is pending, the venue in a subsequent action between the same parties on the same claim is thereby fixed in the county of defendant’s domicile, when the question of venue is raised.” In support of this statement, see also Royal Petroleum Corp. v. McCallum, 134 Tex. 543, 561, 135 S.W.2d 958, 967 (1940); Heifer v. Texas Employers’ Insurance Ass’n, 467 S.W.2d 687, 688 (Tex.Civ. App. — San Antonio 1971, no writ). Although we agree with this rule, it does not apply because all that plaintiff proved was that he was sued by defendant Molsen in Dallas County. In order for plaintiff to maintain venue in Collin County under the theory of res judicata it was incumbent upon plaintiff to both plead and prove that the lawsuit in Dallas County involved the identical subject matter and the same issues as the present suit and that he had filed a plea of privilege to be sued in Collin County prior to the time that "Molsen nonsuited. See Keys v. May Aluminum, Inc., 431 S.W.2d 380, 382 (Tex.Civ.App. — Houston [14th Dist.] 1968, writ dism’d); see also R. McDonald, Texas Civil Practice § 4.62 (1965). Since plaintiff offered no such proof, we conclude that plaintiff’s argument is without merit.

Since we have concluded that the court erred in overruling defendant Molsen’s plea of privilege, the order overruling the plea is reversed and judgment is rendered sustaining defendant Molsen’s plea of privilege and transferring this cause as to defendant Molsen to a district court of Dallas County.


author: EVANS, Justice.

text:
    Ex parte Larry Julian BLACKMON.
    No. 16668.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 12, 1976.
    Vern J. Thrower & Associates, K. D. Keenan, Houston, for appellant.
   EVANS, Justice.

Relator, Larry Julian Blackmon, filed this original proceeding for writ of habeas corpus, contending that an order entered by the Court of Domestic Relations No. 1 of Harris County, Texas, holding him in contempt of court for failure to make timely child support payments was void.

The order of commitment complained of by relator recites that he was charged with contempt in failing to comply with the terms of a divorce decree dated July 17, 1972, wherein the court ordered him to pay the sum of $125.00 each month to his former wife for the support and maintenance of their minor child. The court found relator guilty of contempt in that he had failed and refused to pay such child support in the amount of $250.00 and had also failed and refused to make such payments on or before the 15th day of the month as ordered by the court. This order fixed relator’s confinement in the County jail for a period of 120 days beginning December 12, 1975, and provided that he should be further confined until he purged himself of the contempt by paying the arrearage of $250.00, court costs and attorney’s fees of $750.00.

The original petition for contempt filed by relator’s former wife alleged in general terms that relator had failed and refused to comply with the support provisions of the divorce decree. Relator filed special exceptions to this petition asserting that it did not give him fair notice as to the amount of arrearage complained of, the number of months and for which months he was alleged to be in arrears, and that the divorce decree had been superseded by a subsequent order entered November 26, 1974, which modified the parent-child relationship and ordered relator to make one support payment to his former wife on November 29, 1974. At the hearing on the relator’s special exceptions, the original petition for contempt was orally amended so as to allege that relator was “in arrears for the months of August, September, November and December, 1974.”

It is relator’s contention that there is no evidence to support the trial court’s finding that he was $250.00 in arrears in payment of his child support for the months of August, September and November, 1974, and that there was no court order directing him to pay child support to his former wife for December, 1974.

The relator affirmatively testified that he had made child support payments by checks made payable to and accepted by his former wife for the period January, 1974, through August, 1974 and that on one occasion during this period of time he had made a double payment so that he would always be one month ahead. This testimony was supported by his cancelled checks and banking records. His former wife did not deny nor offer any evidence to refute relator’s showing that the checks were made and received for the months indicated. Relator testified that he made the September payment to his former wife in cash and that for the purpose of confirming this payment, he made a notation on the face of his October check that it was made and accepted as child support payment “in full” as of that time. His former wife admitted she had received some cash but stated that she did not have her records with her and could not say when such cash payments were made. She testified she did not consider the October cheek payment in full, that she took the check because she needed it for child support and did not notice the recitation on its face until after she had left her attorney’s office.

Relator testified that the November 1974 payment was made by him pursuant to the court’s order entered November 25, 1974, modifying the terms of the divorce decree and designating him as the managing conservator of the minor child. That order provided that relator should “continue child support as heretofore ordered” and that the first payment was to be made to the Harris County Probation Department on or before November 29, 1974. It provided that relator’s former wife had been served with citation to appear at the hearing on November 18, 1974, but had failed to appear. Relator testified that at the hearing on November 18, 1974, he advised the court that he had not made the November payment and the court ordered him to make such payment on November 29, 1974. He testified that he did not make the payment on November 29 because that was the Thanksgiving weekend and the Harris County Probation Department was closed, so that he • made the payment the following Monday. The only other occasion when relator was late in making a payment was in March 1974, when he was approximately two weeks late. He explained that on that occasion his former wife was in the hospital in intensive care and he could not find a way to get the payment to her.

The evidence produced by relator was not refuted by his former wife who filed the petition for contempt. Her testimony was conclusory in nature and amounted only to a statement that according to her records, which she did not have with her, relator was in arrears for the months of August, September, November and December of 1974. The order of November 26, 1974, designating relator as the managing conservator of the child did not require relator to make further child support payments to his former wife other than the November payment which was to be paid on November 29, 1974. Accordingly relator could not have been in contempt for failure to make a payment for the month of December 1974. In view of petitioner’s uncontradicted testimony, and the documentary evidence offered in support thereof, and taking into consideration the court’s order of November 26, 1974, which indicated no prior deficiencies in payment, we hold there is no evidence to support the trial court’s finding that an arrearage of two months existed.

“Contempt is not to be presumed, but on the contrary is presumed not to exist. A judgment of contempt without support in the evidence is void, and the Court is without jurisdiction to order punishment in the absence of some evidence of contemptuous disobedience.” Deramus v. Thornton, 160 Tex. 494, 333 S.W.2d 824 (Tex.1960).

Since there is no evidence of probative force to support the trial court’s finding that an arrearage existed in the amount of $250.00, the order of contempt is void. The order does not impose any separate penalty for the relator’s alleged failure to make payments when due and we are not authorized to make that determination.

Relator’s petition for writ of habeas corpus is granted and he is ordered discharged from custody.


text:
    Nolen M. GARRETT, Appellant, v. Lorene GARRETT, Appellee.
    No. 16631.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 12, 1976.

      Raymond J. Keller, Houston, for appellant.
    D. Graham Moore, Houston, for appellee.
   EVANS, Justice.

A divorce action.

In a non-jury trial appellee, Lorene Garrett, was awarded a divorce from appellant, Nolen M. Garrett, on the grounds of insup-portability under Section 3.01 of the Texas Family Code. No findings of fact or conclusions of law were filed. The trial court divided the community property between the parties based upon their testimony and their respective inventories filed in the case. The decree provided that in addition to certain other property awarded appellee, she should receive:

“$24,000.00 in cash payable to the Petitioner from the Respondent over a period of ten (10) years at the rate of $200.00 per month beginning January 1, 1975, and the 1st of every subsequent month until the total amount of $24,000.00 is paid. The $200.00 per month payments are to be made to wherever the address of Petitioner may exist.”

Appellant contends that this provision constitutes an award of alimony in violation of the public policy of the state and also that it is void for lack of certainty.

Appellant does not contend that the trial court abused its discretion in making an equitable division of the community property. Nor is the point raised that the court erred in its implied finding that the property was not fairly susceptible of division in kind. His argument is that there was no evidence that the community estate contained $24,000.00 in cash and that the record does not indicate the source of the required payments to be referable to any property.

It is the duty of the appellate courts to indulge every reasonable presumption in favor of the trial court’s proper exercise of discretion in a division of property. Cooper v. Cooper, 513 S.W.2d 229 (Tex.Civ.App. — Houston [1st] 1974, no writ); Thomas v. Thomas, 525 S.W.2d 200, 201 (Tex.Civ.App. — Houston [1st] 1975, no writ); Womble v. Womble, 502 S.W.2d 886, 888 (Tex.Civ.App. — Fort Worth, 1973, no writ). The trial court may require one party to make monetary payments to the other party after divorce, and such payments are not construed to be in the nature of permanent alimony if they are referable to any property which either spouse may have owned or claimed. Marks v. Marks, 470 S.W.2d 83, 86 (Tex.Civ.App. — Tyler, 1971, writ ref’d n. r. e.); In In re Marriage of Jackson, 506 S.W.2d 261, 266 (Tex.Civ.App. —Amarillo, 1974, writ dism’d), it is said:

“ . . . The court, as the trier of the facts, was entitled to consider the weight and credibility of the testimony and other evidence submitted in making its determination as to the valuations to be assigned to the various items of property. Further, the court was empowered to employ sound discretion, in the light of all the facts and circumstances, in arriving at the' decision as to what was ‘just and right’ in the manner of dividing the properties and adjusting the equities of the parties therein. So long as the division was referable to the rights and equities of the parties in and to the properties at the time of dissolution of the marriage, such division should not be regarded as an allowance of permanent alimony in violation of established public policy. Francis v. Francis, 412 S.W.2d 29 (Tex. 1967). ...”

At the time of the divorce hearing, appellant was the director-manager of a company with estimated net earnings for the year 1974 of $18,000.00 per year. At such time appellee was employed as a receptionist in an orthodontist’s offices earning a gross income of $6,600.00 per year. The parties had been married for over thirty years and had two children, both of whom were adults.

In addition to the monetary award, appel-lee was awarded certain shares of stock, a term insurance policy, and the personal effects, furniture and cash in her possession. Appellant was awarded the personal effects in his possession, a 1974 Thunderbird automobile, certain improved property on Toledo Bend Lake, certain oil property, an unimproved lot or lots, certain rental property, an insurance policy, and a boat and motor. The evidence presented to the trial court as to the value of these properties was principally the parties’ own testimony as to the prices paid therefor and their respective opinions as to the current market value. The trial court could have drawn varying inferences and conclusions from this evidence, both with respect to the ■ current market value of the respective properties and as to the future use and benefits likely to be enjoyed by the continued ownership thereof.

In our opinion the evidence supports the trial court’s award as being referable to the rights and equities of the parties in the properties at the time of the divorce hearing. On the basis of the evidence before it, the trial court could reasonably have decided that the aggregate worth of the properties. awarded to appellant, more than equaled the value of the monetary award to appellee and that the properties which it awarded to appellant would likely appreciate in value. It appropriately could have considered that the current value of the specific properties awarded to appellant exceeded several times over the value of the specific properties awarded to appellee and that it would be most beneficial for appellant to be given the continued control and management of the properties decreed to him.

In order to achieve an equitable balance between the parties, the court was authorized to order payment of a cash sum by appellant to appellee, even though there was no cash in the community estate. Weaks v. Weaks, 471 S.W.2d 454 (Tex.Civ.App. — Beaumont, 1971, writ dism’d); In re Jackson, supra. In adjusting the rights and equities between the parties the court was authorized to consider not only the valuation of the properties but also the capacities and abilities of the respective parties, including any disparity in their earning powers. Goren v. Goren, 531 S.W.2d 897 (Tex. Civ.App. — Houston [1st], 1975); In re Marriage of Jackson, supra.

We hold that appellant failed to establish that the monetary award in the instant case was in the nature of a payment of alimony. We further hold that such award was not void for want of certainty merely because the decree did not specify the particular source of money from which such payments were to be made.

The judgment of the trial court is affirmed.