author: KLINGEMAN, Justice.

text:
    George R. ROLAND et al., Appellants, v. John W. McCULLOUGH, Jr., et al., Appellees.
    No. 15820.
    Court of Civil Appeals of Texas, San Antonio.
    Jan. 18, 1977.
    Rehearing Denied Feb. 15, 1978.

      Robert Harms Bliss, Ronald L. Clower, Dallas, for appellants.
    Hollon & Marion, Boerne, Joseph W. Burkett, Jr., Kerrville, for appellees.
   KLINGEMAN, Justice.

This is an appeal from a summary judgment granting recovery on two promissory notes and for judicial foreclosure of a deed of trust on 200 acres of land. This cause is before us as a consolidated cause from the District Court of Kerr County, Texas. Ap-pellees, John W. McCullough, Jr., Marjorie W. McCullough, Marjorie McCullough Brown, and Sally McCullough Futch, originally sued appellants, George R. Roland and Kirby Albright, on a promissory note in the amount of $5,315.10 in Cause No. 1735. Appellants filed an answer including a plea that they were induced to give the note because of fraudulent representation of ap-pellees as to the access to Interstate 10 to and from such 200-acre tract. Appellants also filed an action in Cause No. 1754 for reformation or recission of the contract of sale. Appellants then filed in Cause No. 1811 a petition for a temporary restraining order and to enjoin foreclosure of the real estate involved. Appellees filed a general denial and a counterclaim for judicial foreclosure of a deed of trust lien and note in the amount of $88,585.08. All suits were consolidated into Cause No. 1735. Appel-lees filed a motion for summary judgment, and the trial court, on December 13, 1976, granted appellees’ motion for summary judgment and decreed that appellees recover on the notes and for foreclosure of the deed of trust lien.

By one point of error appellants assert that the trial court erred in granting appel-lees’ motion for summary judgment because (a) there is insufficient proof to support a summary judgment in that appellees failed to introduce into evidence either the originals or certified copies of the promissory notes sued upon; (b) material fact questions existed concerning fraud in the inducement and unilateral mistake of fact,

In summary judgment cases the question on appeal and in this Court is not whether the summary judgment proof raises fact issues with respect to essential elements of a cause of action, but whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more elements of the plaintiffs’ cause of action. The burden of proof is on the movant and all doubts as to the existence of a genuine issue of material fact must be resolved against the party moving for summary judgment. Farley v. Prudential Ins. Co., 480 S.W.2d 176 (Tex.1972); Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970).

The summary judgment evidence here consists of exhibits, affidavits, and testimony had in one of the consolidated causes. The summary judgment recites that the trial court, having considered the pleadings, admissions on file as contained in Cause No. 1811, and affidavits, finds that there is no genuine issue of material fact and that appellees are entitled to a summary judgment as a matter of law.

This controversy arises out of the sale of a tract of 200 acres of land by appellees to appellants. Appellees were the owners of a 200-acre tract situated on IH 10 which adjoined a tract of land owned by one of the appellants (Dr. Roland). The other appellant (Kirby Albright) is a real estate broker and on various occasions bought real estate in connection with Dr. Roland. The record is somewhat unclear as to whether in this case he collected a commission. It is undisputed that appellants executed the notes and deed of trust involved, but it is their contention that they were fraudulently induced to give such notes and mortgage because of fraudulent representations by the appellees as to the access to the property from IH 10.

We consider first appellants’ contention that there is insufficient proof to support the summary judgment in that appel-lees failed to introduce into evidence either the originals or certified copies of the original notes sued upon. It appears from the record that photocopies of the two notes involved were attached to appellees’ pleadings and were also attached to the affidavits supporting the motion for summary judgment. In such affidavits the affiant states that appellees are the owners and holders of such promissory notes, true copies of which are thereto attached; and also that true copies are also attached to plaintiffs’ original pleadings, which pleadings and all exhibits attached thereto are incorporated by reference. Appellants do not deny the execution of such notes nor do they contend that the copies were not true copies of such notes. In fact, in their pleadings in the trial court, they acknowledged that they executed such notes and contend that they were fraudulently induced to give such notes because of fraudulent representations made by appellees. No exceptions or objections were made in the trial court relating to the failure to attach the original or certified copies of the notes in question.

In Womack v. I. & H. Development Co., Inc., 433 S.W.2d 937 (Tex.Civ.App.-Amarillo 1968, no writ), the contention was made that no proof of the notes was made because neither the originals or certified copies were attached to the pleadings or the motions for summary judgment. The Court held that the notes were properly in evidence, stating:

There was no exception in the trial court relating to the failure to attach the original or certified copies of the notes in question. Where unverified or uncerti-fied copies are attached to pleadings or a motion for summary judgment and no exception is taken, the party thereby waives the requirement under Rule 166-A(e) and the copies are a sufficient basis to grant a motion for summary judgment when it fairly appears there is no genuine issue as to a material fact and that the moving party is entitled to a judgment as a matter of law. Youngstown Sheet & Tube Company v. Penn, 363 S.W.2d 230 (Sup.Ct.). Farmers & Merchants Compress & Warehouse Company v. City of Dallas (Tex.Civ.App.) 335 S.W.2d 854, 856 (Ref.N.R.E.) Schoolcraft v. Channel Construction Company (Tex.Civ.App.) 397 S.W.2d 256 (Ref.N.R.E.). It is further noted appellants admitted the execution of the notes in their sworn answer. Such allegation constitutes a judicial admission and is construed against appellants. Yelverton v. Brown (Tex.Civ.App.) 412 S.W.2d 325. McCormick v. Stowe Lumber Company (Tex.Civ.App.) 356 S.W.2d 450 (Ref.N.R.E.). We therefore conclude the notes were properly in evidence before the court.

In Broaddus v. Town North Nat’l Bank, 558 S.W.2d 909 (Tex.Civ.App.1977), the Court held that when a photocopy of a promissory note is attached to an affidavit, which affidavit swears that the attached note is a true and correct copy of original note, the note becomes a sworn exhibit, and is in full compliance with Rule 166-A(e), Tex.R.Civ.P. See also International Shelters, Inc. v. Corpus Christi State National Bank, 475 S.W.2d 334 (Tex.Civ.App.—Corpus Christi 1971, no writ); Wexler v. Gibraltar Savings Ass’n, 439 S.W.2d 379 (Tex.Civ.App.—Houston [14th Dist.] 1969, no writ).

We have concluded that the notes were properly in evidence before the Court and are in compliance with the provisions of Rule 166-A(e).

We consider next appellants’ contention that the trial court erred in granting appel-lees’ motion for summary judgment because material fact questions existed concerning fraud in the inducement and unilateral mistake of fact. Rule 166-A(c) provides that a summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavit, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

To establish actionable fraud it must appear that: (1) a material representation was made; (2) it was false; (3) when the representation was made the speaker knew it was false or that he made it recklessly without any knowledge of its truth and as a positive assertion; (4) the speaker made the representation with the intent that it should be acted upon by the party; (5) the party acted in reliance upon the representation; and (6) the party thereby suffered injury. Stone v. Lawyers Title Ins. Corp., 554 S.W.2d 183 (Tex.1977); Oilwell Division, United States Steel Corp. v. Fryer, 493 S.W.2d 487 (Tex.1973); McCall v. Trucks of Texas, Inc., 535 S.W.2d 791 (Tex.Civ.App.—Houston [1st Dist.] 1976, writ ref’d n. r. e.); Brady v. Johnson, 512 S.W.2d 359 (Tex.Civ.App.—Austin 1974, no writ); Panhandle & Santa Fe Ry. Co. v. O’Neal, 119 S.W.2d 1077 (Tex.Civ.App.—Eastland 1938, writ ref’d); Wilson v. Jones, 45 S.W.2d 572 (Tex.Com.App.1932, holding approved). Each of these elements must be established and the absence of any one of them will prevent a recovery.

We have concluded that the record shows that as a matter of law there is no material fact issue as to elements 1, 2, and 3, heretofore set forth.

Appellants’ basic contentions are as follows: (a) although appellees never told them that there was access to IH 10 from such property, they did not tell them that access had been denied; (b) a map of the 200 acres was furnished to them by appel-lees, and it could be reasonably inferred therefrom that there was access to such property; (c) at the time they originally inspected the property, while IH 10 was still under construction, they entered such property from IH 10.

Appellants concede that appellees never specifically said that the property had access to Interstate Highway 10, and one of the appellants (Albright) testified that when he inspected the property he was told by appellee McCullough, that the only way to enter the property was through Dr. Roland’s property. He also testified that at the time that he and Dr. Roland purchased the property he knew there was no service road to IH 10.

Appellants rely heavily on a plat of the 200-acre tract furnished to them by appel-lees, and Albright testified that he concluded from the plat that it would appear there would be a probability of future access to the service road; that although McCullough did not tell him that he could go from the 200 acres to IH 10, by inference he was telling him he could. He testified that the plat given to him did not show non-access to IH 10, but also that the plat did not show a frontage road on the 200 acres.

Dr. Roland’s testimony indicated that in 1972 he bought the 600 acres which adjoins the 200 acres and that he was informed thereafter by Albright that he might be interested in buying the 200-acre tract. He testified that he relies heavily on Albright in his realty transactions; that Albright recommended the purchase of the 200-acre tract and that is why he bought it; and that any time Albright recommends property he buys it if he has the money at such time. Dr. Roland does not remember whether McCullough ever represented to him that there was highway frontage, and Dr. Roland stated he was relying on the fact that when they looked at the property nothing was said about lack of access to it from IH 10. He stated that it did not seem strange to him that none of the plats showed a frontage road.

John McCullough, one of the appellees, said that the reason they wanted to sell the 200 acres was that the highway had cut it off from the rest of the 1,400-acre ranch of which it was a part and that at one time he had contacted appellants to see if he could get an easement to the 200 acres through the 600-acre tract owned by Dr. Roland. He stated that when he talked to Albright about selling the property here involved he told him that “we have no access, and the only reason we are going to sell it is because we can’t get to it.” He stated that Albright told him that Dr. Roland owned the 600-acre tract adjoining it and had access through such property. McCullough testified that when he took appellants to look at the property, which was at the time the road was under construction, they had to go up an incline to get to the property and he told appellants that “we cannot go through this, except now. When the highway is open it will not be available.” He testified that when he and appellants went to the property they stayed only a short period of time and that he offered to walk the fence line with them, but they said they were in a hurry and that that was enough.

The map of the 200-aere tract introduced into evidence shows the tract fronting on IH 10, but does not show any access or frontage road.

It is evident that appellants’ contention as to fraud is premised on alleged concealment or nondisclosure. Their own testimony indicates that appellees never told them that they could get to the highway from the 200-acre tract and that they were told that the only way to enter the property was through Dr. Roland’s property. There is no showing of a confidential or fiduciary relationship between the parties, except perhaps between the two appellants, giving rise to a duty to disclose something other than was disclosed.

Both Albright’s and Roland’s testimony indicates that they had made frequent purchases of real estate and were knowledgeable in this field; that Albright had been in the real estate business for years; that Albright and Roland bought property together on numerous occasions; and that Roland relied heavily on Albright’s recommendations.

Albright testified that he owned other land abutting on interstate highways; that the title company that issued the policy for the tract here involved never indicated to Albright that they had access to IH 10, and that he never asked if there was such access; that the plat given him did not depict a frontage road on the 200 acres; that at the time that he looked at the property, McCullough told him that the only way to get to the 200 acres was through the 600 acres owned by Dr. Roland. Dr. Roland’s testimony indicates clearly that he was relying upon Albright and not upon any representations made by appellees.

Our Supreme Court, In Thigpen v. Locke, 363 S.W.2d 247 (Tex.1962), said:

As to the contention that there was some evidence on the second theory of actual fraud, petitioner had interposed the rule that a party to an arms-length transaction is charged with the obligation of reading what he signs and, failing that, may not thereafter, without a showing of trickery or artifice, avoid the instrument on the ground that he did not know what he was signing. [Citation omitted] This rule is but a narrower application of the principle that the party claiming fraud has a duty to use reasonable diligence in protecting his own affairs. ‘In an arm’s-length transaction the defrauded party must exercise ordinary care for the protection of his own interests and is charged with knowledge of all facts which would have been discovered by a reasonably prudent person similarly situated. And a failure to exercise reasonable diligence is not excused by mere confidence in the honesty and integrity of the other party.’ Courseview, Inc. v. Phillips Petroleum Co., 158 Tex. 397, 312 S.W.2d 197.

Richman Trusts v. Kutner, 504 S.W.2d 539 (Tex.Civ.App.-Dallas 1973, writ ref’d n. r. e.), was a summary judgment proceeding by a purchaser against a seller on the basis of fraud. In upholding the summary judgment the Court said:

Appellants’ second and fifth points of error present the question of an alleged duty on the part of Kutner to disclose to appellants certain facts about present and future insurance coverages, as opposed to the alleged duty of appellants to investigate these facts prior to the consummation of the sale. These material facts concern the policy coverage limitations, expiration date, and replacement cost. From this record we have concluded that there was no legal duty upon appellee Kutner to come forward and voluntarily disclose these facts. Under the circumstances here presented the duty would be upon appellants to make inquiry and discover such information if it was considered necessary to sustain the investment decision made by them.
In Moore & Moore Drilling Co. v. White, 345 S.W.2d 550 (Tex.Civ.App.—Dallas 1961, writ ref’d n. r. e.), we reviewed certain fundamental characteristics of actionable fraud, especially dealing with the question of concealment or failure to disclose facts. As we pointed out there the complaining party must not have failed to exercise reasonable care to discover material matters equally available to him. In other words, in a ‘caveat emptor’ situation he must not have shut his eyes and ears to matters equally open and available to him upon reasonable inquiry and investigation.
While it is true that Kutner failed to disclose the expiration date of the insurance policy and the future cost of replacing the insurance coverage, we do not believe that there was any duty upon him to do so.

There is no merit to appellants’ contention that there was a unilateral mistake of fact which would entitle them to relief. In order to be entitled to equitable relief on the grounds of unilateral mistake, plaintiffs must show: (1) the mistake is of so great a consequence that to enforce the contract as made would be unconscionable; (2) the mistake relates to a material feature of the contract; (3) the mistake must have been made regardless of the exercise of ordinary care; (4) the parties can be placed in status quo in the equity sense; i. e., recission must not result in prejudice to the other party except for the loss of his bargain. James T. Taylor and Son, Inc. v. Arlington Ind. School District, 160 Tex. 617, 335 S.W.2d 371 (1960); May v. San Antonio & A.P. Town-Site Co., 83 Tex. 502, 18 S.W. 959 (1892); Fonseca v. County of Hidalgo, 527 S.W.2d 474 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.). A contract may not be avoided on the ground of mistake of fact where it appears that ignorance of the facts was the result of carelessness, indifference, or inattention. Moreover, here there is no fraud, either express or implied, which induced the mistake, if any, on the part of appellants and appellees are not responsible for any such alleged mistake.

We have concluded that under the record here, as a matter of law, appellants failed to establish any actionable fraud in that: (1) there is no fact issue as to the following elements of appellants’ action for fraud: (a) a material representation was made, (b) it was false; (c) when the representation was made the speaker knew it was false or that he made it recklessly without any knowledge of its truth and as a positive assertion; (2) there was no duty arising out of the relationship of the parties requiring appellees to disclose or reveal anything more than the record shows they revealed; (3) appellants did not establish any unilateral mistake that would entitle them to any relief.

Under the record, appellees were entitled to a summary judgment as a matter of law, and the trial court properly granted the summary judgment. The judgment is affirmed.

      . In 4 McDonald’s, Texas Civil Practice § 17.-26.11 (1971), in discussing the consideration of evidence other than or supplemental to affidavits in summary judgment proceedings, it is stated: “The court may take into account admissions in whatever form they appear: for example, in exhibits, pleadings, stipulations, evidence on a prior trial of the action or on a separate trial of an issue or claim in the action, responses (or implied admissions arising from failure to reply) to formal demands under Rule 169, recitations in pre-trial orders, statements under oath in another proceeding, or in trespass to try title actions the abstract of title filed by claimant.”

      . “ ‘When, therefore, the parties are dealing at arm’s length, there being no confidential relationship, mere silence is not fraud, either actual or constructive.’ 20a Tex.Jur. § 38, p. 70. The suppression of information could only be fraud where he knows that the other party is ignorant of such facts and that the other party has not equal opportunity of discovering the truth.” Moore & Moore Drilling Company v. White, 345 S.W.2d 550 (Tex.Civ.App.-Dallas 1961, writ ref’d n. r. e.).


source: Caselaw Access Project

author: EVANS, Justice. EVANS, Justice.

license: Public Domain

text:
    James E. McGUIRE et ux., Appellants, v. FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver of Sharpstown State Bank, Appellee.
    No. 16862.
    Court of Civil Appeals of Texas, First District.
    Sept. 1, 1977.
    Rehearing Denied Nov. 17, 1977.

      Moore, Putnam & Larson, Gene E. Putnam, Houston, for appellants.
    Baker & Botts, Allister M. Waldrop, Jr., Norris Dennard, Houston, for appellee.
   EVANS, Justice.

This is an appeal from a deficiency judgment rendered against Mr. and Mrs. McGuire, the original makers of a promissory note made payable to Gibraltar Savings Association in the principal amount of $26,-100.00. The note dated July 27,1965, represented a part of the purchase price of a condominium unit purchased by the McGuires from Condominium, Inc. and it was secured by a deed of trust in favor of Gibraltar Savings Association.

In May 1966, the McGuires reconveyed the property to Condominium, Inc., which assumed and agreed to pay the balance due on the purchase money indebtedness. The note was subsequently assigned by Gilbral-tar Savings Association to Sharpstown Realty Company, by that company to the National Banker’s Life Insurance Company of Dallas, and then was assigned to Sharps-town State Bank. The last payment on the note was made by Sharpstown Realty Company to Sharpstown State Bank on December 22, 1970.

On January 25, 1971, Sharpstown State Bank was closed by the State Banking Commissioner. Two days later the Federal Deposit Insurance Corporation was appointed receiver of that bank. The F.D.I.C. thereafter accelerated the entire indebtedness and proceeded to foreclose under the deed of trust. At a trustee’s sale held in February 1972, the F.D.I.C. bid in and purchased the property for the sum of $20,-180.51.

On May 23, 1972, the F.D.I.C. filed this suit against the McGuires, seeking to recover the claimed deficiency on the note in the sum of $9,463.46, plus attorney’s fees, trustee’s fees and interest.

In its original petition, the F.D.I.C. alleged that the McGuires might be served with process at their residence: “107 Dana, Highlands, Harris County, Texas”. That process was returned unexecuted on May 25, 1972 with the officer’s notation that the defendants no longer lived at that location. A year later, on May 21, 1973, a second citation was issued for service upon the McGuires at the same address, and that process was also returned unexecuted with a notation that the officer was unable to locate the defendants at the address given.

On October 3, 1974, a citation was issued for service upon the Secretary of State, and on October 9, 1974 that process was forwarded by the Secretary of State’s office to James E. McGuire “Lot 5, S — 1, Lake Lota-wana, Mo. 64063”. The return receipt on this notification shows that the process was returned “unclaimed”.

On February 13, 1976, the F.D.I.C. notified its attorneys that it had received a location report which indicated that the McGuires resided at 5012 Prospect, Kansas City, Missouri, and that Mr. McGuire was currently President of Agra Steel Corporation at 4650 W. 90th Terrace, Prairie Village, Kansas. Processes were then issued by the District Clerk’s office for service at the Kansas business address, and after being forwarded through the office of the Secretary of State, were served upon the McGuires on March 8, 1976.

In the first three points of error the McGuires contend that the trial court erred in entering judgment for the F.D.I.C., because its cause of action was barred by the four year statute of limitations in that it had failed, as a matter of law, to meet its burden of proof of showing that it had exercised due diligence in prosecuting its claim. These points will be sustained.

It is undisputed that early in September of 1974, the F.D.I.C. had information that McGuire could be served at his business address in Prairie Village, Kansas as well as at his residence in Lake Lotawana, Missouri. Although the record shows that the F.D.I.C. attorney furnished the District Clerk’s office with information both as to the residence and business addresses of Mr. McGuire, the letter of transmittal to the clerk suggested only the residence address as the place where service was to be attempted. There is no evidence indicating that a request was made upon the District Clerk or upon the Secretary of State to serve the McGuires at the business address, and on the contrary the record shows that citations were issued for service only at the residence address.

A period of some 18 months expired between September 1974, the date when the F.D.I.C. first received notification of an accurate business address for the McGuires, and March 1976, when service of process was perfected. During this same period of time, there was a lapse of some eight months between the time that the F.D.I.C.’s attorneys learned that service had been ineffectually attempted at the McGuire residence address and the time when service was perfected.

Where the defendant pleads the defense of limitations, and a failure to timely serve the defendant is shown, it is the plaintiffs’ burden to explain the delay. Williams v. Houston-Citizens Bank & Trust Co., 531 S.W.2d 434 (Tex.Civ.App.-Houston [14th] 1975, writ ref’d n. r. e.). In order to meet this burden the plaintiffs must show not only that the suit was filed within the statutory period, but that there was a bona fide intent that process be issued and served and that due diligence was exercised in the issuance and service of citation. Buie v. Couch, 126 S.W.2d 565, 566 (Tex.Civ.App.-Waco 1939, writ ref’d). The diligence which must be shown is the same as that which would have been exercised by an ordinarily prudent person under the same or similar circumstances. McDonald v. Evans, 217 S.W.2d 870 (Tex.Civ.App.-Amarillo 1949, no writ); Meyer v. Pecos Mercantile Co., 47 S.W.2d 435 (Tex.Civ.App.—El Paso 1932, no writ).

The F.D.I.C. points to the evidence indicating that numerous efforts were made to locate the McGuires prior to the first issuance of citation in 1972, and that continuous efforts were thereafter made to locate the McGuires by an individual who was employed by the F.D.I.C. for that purpose. The McGuires evidently changed their residence a number of times after executing the note, and the F.D.I.C. contends that this factor and others, coupled with the extraordinary number of accounts which it was required to handle as receiver for the Sharpstown State Bank, constituted sufficient explanation for its failure to effect service of process on the McGuires.

The F.D.I.C. has failed, however, to give any reasonable excuse for its failure to have process served on the McGuires within the 18 month period after it first learned of an accurate business address. It was incumbent upon the F.D.I.C., not only to furnish the District Clerk with the information that it had concerning the McGuires two addresses, but to exercise ordinary diligence in ascertaining that citation was actually issued and served on the basis of such information. Jackson v. J. R. Neatherlin Corp., 557 S.W.2d 327 (Tex.Civ.App.-Houston [1st] 1977). Under the circumstances shown by the undisputed evidence, this court must hold that the record establishes as a matter of law a lack of due diligence in the issuance and service of process. Rigo Mfg. Co. v. Thomas, 458 S.W.2d 180, 182 (Tex.1970). In view of this court’s ruling with respect to the McGuires’ first three points of error, it is not necessary to consider the remaining points of error.

The judgment of the trial court is reversed and rendered.

ON MOTION FOR REHEARING

EVANS, Justice.

In a supplemental motion for rehearing the appellees propose that Article 5537, Tex.Rev.Civ.Stat.Ann. should be applied to this case, thus avoiding the bar of the statute of limitations. Appellees contend that the evidence shows the McGuires were residents of the state at the time the note was executed and that their subsequent departure from the state tolled the statute of limitations notwithstanding the permanent nature of their nonresidency. Appellees cite the recent case of Dicker v. Binkley, 555 S.W.2d 495 (Tex.Civ.App.—Dallas 1977, writ filed), as authority for this proposition.

It is unnecessary to determine at this stage of the proceedings whether Article 5537 would be applicable to the facts at hand. The applicability of Article 5537 to nonresidents present in the state at the time of the inception or accrual of the cause of action has long been established. Wise v. Anderson, 359 S.W.2d 876 (Tex.1962); Stone v. Phillips, 142 Tex. 216, 176 S.W.2d 932 (1944); Gibson v. Nadel, 164 F.2d 970 (5th Cir. 1947). The appellees made no assertion of this proposition prior to their motion for rehearing, and the matter cannot be raised at this point in the proceedings. Stanfield v. Butler, 475 S.W.2d 838 (Tex.Civ.App.—Beaumont 1971, writ ref’d n. r. e.); W. T. Burton Co. v. Keown Contracting Co., 353 S.W.2d 909 (Tex.Civ.App. —Beaumont 1961, writ ref’d n. r. e.).

The motion for rehearing is denied.


author: PEDEN, Justice.

text:
    E. Raymond JENSEN et ux., Appellants, v. Paul H. KISRO, Appellee.
    No. 16970.
    Court of Civil Appeals of Texas, Houston (1st Dist.)
    Dec. 15, 1977.
    Rehearing Denied Jan. 19, 1978.

      Bernard & Bernard, D. R. Bernard, Melissa Smith, Houston, for appellants.
    Felton, Giddens & Luck, Dale W. Felton, Houston, for appellee.
   PEDEN, Justice.

E. Raymond and Myra Jensen appeal from the trial court’s refusal to set aside a former judgment. Their motion was based on the death of the plaintiff prior to judgment and failure to join his heirs or personal representative. The trial court held that under Rule 329b(5), Texas Rules of Civil Procedure, it lacked jurisdiction to determine the matter because more than thirty days had passed since judgment had been rendered. Appellants contend that the trial court’s equitable powers give it jurisdiction to review their motion. We affirm.

Paul Kisro, now deceased, originally sued both Mr. and Mrs. Jensen for the value of bank stock sold by Mr. Jensen under a power of attorney which Mr. Kisro alleged had been terminated by its principal. Summary judgment was entered against both defendants. Mr. Jensen alone appealed. Although we reversed and remanded the cause as to him, Jensen v. Kisro, 547 S.W.2d 65 (Tex.Civ.App.1977, no writ), the judgment became final against Mrs. Jensen. Garnishment proceedings were then instituted in Mr. Kisro’s name against South-more Savings and Loan, and the trial court ordered Southmore to pay $25,200.76 into the registry of the court. This court was asked in Mr. Kisro’s name to mandamus the district judge to enter a garnishment judgment in his favor, but we declined to do so.

In April, 1977, Mr. and Mrs. Jensen filed a motion to set aside the summary judgment rendered more than seven months earlier, stating that the plaintiff, Paul Kis-ro, was dead when the judgment was entered and that no suggestion of death had been filed. The motion was denied by the trial court “for the reason that this court has no jurisdiction over the matters in question, although a fundamental error does exist.”

We agree with the dismissal of the motion for lack of jurisdiction. Rule 329b(5) provides:

“After the expiration of thirty (30 days) from the date judgment is rendered . ., the judgment cannot be set aside except by bill of review for sufficient cause, filed within the time allowed by law.”

Appellants assert that their motion to set aside the judgment was in fact a petition for an equitable bill of review, relying on Squyres v. Rasmussen, 296 S.W. 977 (Tex.Civ.App.1927, no writ). It holds that the style of the motion will not defeat its effectiveness as a bill of review if the pleading contains the necessary allegations. Appellants’ motion to set aside the judgment contained these:

“It has recently been discovered that Plaintiff, PAUL H. KISRO, was dead at the time of judgment in this cause. To date, attorneys for Plaintiff have failed to file a suggestion of death in this cause, and it was only pursuant to an inquiry made by Defendants that such death was discovered.
Accordingly, the parties were not properly before the Court at the time of judgment in this cause, and the final summary judgment rendered by this Court on August 26, 1976 should be vacated and set aside, and a new trial should be granted.”

Since the judgment against Mr. Jensen had already been reversed and the cause remanded as to him, it was not necessary for him to seek to have it set aside. For Mrs. Jensen to have made the necessary allegations for a bill of review, she was required to plead: 1) a meritorious defense to the cause of action alleged to support the judgment, 2) which she was prevented from making by the fraud, accident or wrongful act of the opposite party, 3) unmixed with any fault or negligence of her own. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998 (1950). Appellants’ motion presented none of these averments and was not an original proceeding filed as an independent action, stating a meritorious cause. It is, therefore, insufficient as a bill of review. Bridgman v. Moore, 143 Tex. 250, 183 S.W.2d 705, 706 (1944).

Appellants also contend that the trial court lacked jurisdiction to proceed to judgment in August, 1976 because the plaintiff had died and his heirs or representative became indispensable parties. This is the holding in Phillips v. Teinert, 493 S.W.2d 584 (Tex.Civ.App.1973, no writ). Assuming that appellee’s heirs or representative did become indispensable parties, Mr. and Mrs. Jensen were still required to attack the error by a proper bill of review. McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 710 (1961) stated:

“Accordingly, we construe the emphasized provision of Rule 329-b to mean that when the time for filing a motion for new trial has expired and relief may not be obtained by appeal, a proceeding in the nature of a bill of review is the exclusive method of vacating a default judgment rendered in a case in which the court had jurisdictional power to render it.”

“Jurisdictional power,” as used in the proceeding statement, applies to subject matter jurisdiction only; moreover, appellants’ theory of lack of personal jurisdiction may only be advanced by a timely appeal or by a bill of review. Deen v. Kirk, 508 S.W.2d 70, 72 (Tex.1974). Since appellants did not pursue this remedy, the trial judge correctly ruled that he was without jurisdiction under Rule 329b.

Affirmed.


author: MURRAY, Justice.

text:
    Terrence W. McDONALD and King William Association, Appellants, v. BOARD OF ADJUSTMENT, CITY OF SAN ANTONIO, et al., Appellees.
    No. 15850.
    Court of Civil Appeals of Texas, San Antonio.
    Dec. 21, 1977.
    Rehearing Denied Jan. 18, 1978.

      Theodore M. Bailey, Michael H. Casey, San Antonio, for appellant.
    Jay Sam Levey, Levey & Goldstein, San Antonio, for appellees.
   MURRAY, Justice.

The appellants, Terrence W. McDonald and King William Association, brought this suit in the nature of a writ of certiorari under the provisions of Art. lOllg, Tex.Rev. Civ.Stat.Ann. (Supp.1977) against the City of San Antonio and the Board of Adjustment of the City of San Antonio, challenging the legality of the decision of the Board of Adjustment of the City of San Antonio in granting the right to nonconforming use of Lot 4, Block 4, NCB741, City of San Antonio, County of Bexar, Texas for warehousing use only.

Mrs. Sally Flores applied for a permit to prove nonconforming rights for warehousing and manufacturing on said Lot 4 located at 212 Madison Street in a historic D apartment district. § 42-50 of the San Antonio, Texas Zoning Ordinance (1975) does not allow this use in a historic D apartment district. The building in question is a hollowed out concrete and steel building built in 1935 as a warehouse addition to the Samuels Glass Company building located at 923 South Alamo Street in a J commercial district.

At the time the original Zoning Ordinance was adopted by the City of San Antonio on November 3, 1938, the building was used for fabricating mirrors and warehousing of rough glass. Since that time, with the exception of some short periods which will be discussed later, the building has been used at least in part as a warehouse. In 1963, the owner, Mr. J. H. West, sold the property to Mr. E. J. Hood. Mr. Hood intended to operate a metal fabricating plant but his plans were never consummated. In 1964 the property was sold to Mrs. Sally Flores and husband, who have used the property as a manufacturing plant and warehouse up until the hearing before the Board of Adjustment.

The trial in the district court was without jury, and the only evidence submitted was the verified record of the Board of Adjustment’s proceedings consisting of the transcript, all papers on file, including stipulations and pertinent zoning ordinances. The court entered its judgment sustaining the action of the Board in granting nonconforming use for warehouse use only to the said Lot 4, and denying nonconforming use for manufacturing. No appeal was taken by the property owner from the order of the Board denying said manufacturing use.

Appellants’ points of appeal can be narrowed to the following propositions broadly stated: 1. There was no evidence, or in the alternative, no substantial evidence, supporting the decision that there was a continued use of Lot 4 as a warehouse. 2. All nonconforming rights were terminated by the violation of the San Antonio Zoning Ordinance by failure to register a nonconforming use on Lot 4, as provided for in §§ 42-35 and 42 — 34(c)(3) of said Ordinance. 3. All nonconforming rights were terminated by the fact that a prior owner, E. J. Hood, discontinued all nonconforming uses in general and the use as warehousing in particular. 4. All nonconforming rights were terminated by the use of Lot 4 for plastics manufacturing, which is heavier use than prior nonconforming use had established and which change violated § 42-34 of the Zoning Ordinance.

We are governed by certain estaba lished legal principles in an appeal from a decision of the Board of Adjustment, as set out in the following cases, and it would serve no purpose to reiterate those principles here except to say that a party seeking relief from a decision of the Board of Adjustment, relative to nonconforming use, has the burden of proof to establish illegality and if the evidence before the court as a whole is such that reasonable minds could have reached the conclusion that the Board must have reached in order to justify its action, then the order must be sustained. City of San Angelo v. Boehme Bakery, 144 Tex. 281, 190 S.W.2d 67 (1945); Swain v. Board of Adjustment of City of University Park, 433 S.W.2d 727 (Tex.Civ.App.-Dallas 1968, writ ref’d n. r. e.), cert. denied, 396 U.S. 277, 90 S.Ct. 563, 24 L.Ed.2d 465 (1970); City of Dallas v. Fifley, 359 S.W.2d 177 (Tex.Civ.App.-Dallas 1962, writ ref’d n. r. e.); Montgomery v. City of Dallas, 245 S.W.2d 753 (Tex.Civ.App.-Waco 1952, writ ref’d n. r. e.).

Prior to 1965 the Zoning Code of 1950, in § 64-6(a), provided as follows:

Nonconforming uses. The lawful use of land existing on November 3, 1938, although such use does not conform to the provisions of this chapter, may be continued, but if such nonconforming use is discontinued, any future use of such premises shall be in conformity with the provisions of this chapter.
The lawful use of any building existing on November 3, 1938, may be continued, although such use may be extended throughout the building, provided no structural alterations, except those required by law or ordinances, are made therein. If no structural alterations are made, a nonconforming use of a building may be changed to another nonconform ing use of the same or more restricted classification.
The right of nonconforming uses to continue shall be subject to such regulations as to the maintenance of the premises and conditions of operation as may, in the judgment of the board of adjustment, be reasonably required for the protection of adjacent property.

§ 42-34 of the present City Code, which was enacted on June 28, 1965, provides as follows:

(b) To another nonconforming use. The following and no other, nonconforming uses may be changed to another nonconforming use as herein set forth, provided, however, that a nonconforming use changed to another nonconforming use as provided, shall not thereafter be changed back to the former nonconforming use:

City Code § 42-58(30) (1965), provides that in order to qualify as a proper “J” commercial use, if the use in question is not specifically listed in that section, the use must not be “obnoxious or offensive by reason of the emission of odor, dust, smoke, gas, noise or vibration.”

The resolution of the Board is as follows: MOTION made by Mr. Keoughan and seconded by Mr. Foster that the applicant is before the Board to attempt to establish non-conforming rights for the manufacturing of glass and warehousing on Lots 4 and 5, NCB 9791. It should be noted that this property is zoned Historic “D” Apartment District. This member moved that the applicant has proven nonconforming rights on Lot 4 for the use of warehousing. This member moved that the applicant has failed to prove any nonconforming rights on Lot 5. The applicant has supplied sufficient facts to this Board to establish that from the date of the passing of the Zoning Ordinance, being November 3,1938, the building was in existence at that time and has been since that time used for some form of warehousing. There has not been an abandonment or termination of warehousing aspect of this use since that date. The rights to manufacture products have been lost, due to the changing of uses, to a manufacturing use or fabricating use other than glass products. There has been some aspect of warehousing conducted continuously therein. The fact that the residence on Lot 5 was destroyed by fire after the passing of the ordinance terminated the non-conforming rights (assuming they ever existed). Sections 42-32 through 42-38 give the Board of Adjustment the authority to determine whether or not non-conforming rights exist on a specific piece of property and in summation, this member moved that the applicant has proven non-conforming rights to use Lot 4 for warehousing purposes.
ADDENDUM TO MOTION made by Mr. Keoughan and seconded by Mr. Foster that there is in some respect the fabrication of plastics; therefore, this member moved that the applicant be given a six month period in which to cease and desist this use.

The present City Code § 42-37(b), provides that:

The violation of this chapter shall terminate immediately the right to operate a nonconforming use.

Appellants contend that the Board’s denial of manufacturing implies a finding that there had been a violation of the nonconforming use and, therefore, under City Code § 42-37(b) all nonconforming rights terminated immediately. Appellees contend that the granting of nonconforming use of warehousing by the Board implies a finding of no violation and the Board was in error in denying manufacturing, but they do not care to use the building for manufacturing and have not appealed such ruling.

It is undisputed that prior to the building being used for plastics manufacturing in 1963 it was being used for warehousing, which was permitted in a “J” commercial district. Plastics manufacturing is permitted in a “J” commercial district if the use is not “obnoxious or offensive by reason of the emission of odor, dust, smoke, gas, noise or vibrations.”

There is no evidence in the minutes of the Board of the emissions of odor, etc. There is mention by three people of odor in the return of notices mailed to surrounding property owners; however, only the results of these notices were received by the Board. We hold that appellants have failed to show that the odor was illegal because of violation of the nonconforming use as a plastics manufacturer.

Appellants complain of the action of the Board in failing to eliminate all nonconforming use of property because of the action of E. J. Hood. Appellants urge abandonment of any nonconforming use as a matter of law because during the few months that Mr. Hood owned the property the property was vacant and the nonconforming use was discontinued. We agree with the statement found in 62 C.J.S. Municipal Corporations § 226 at 502 (1949).

The word ‘discontinued,’ as used in a zoning ordinance provision that, if a nonconforming use is discontinued, any new use of the premises shall be in conformity with provisions of the ordinance, connotes a voluntary act and is synonymous with ‘abandoned,’ and the discontinuance of a nonconforming use results from the concurrence of the intent to abandon and some overt act or failure to act which carries the implication of abandonment.

The unsuccessful attempt of Mr. Hood to establish a metal manufacturing plant is in no sense conclusive of abandonment and in fact shows an intention not to abandon. Town of Highland Park v. Marshall, 235 S.W.2d 658 (Tex.Civ.App.—Dallas 1950, writ ref’d n. r. e.) We hold that the evidence before the Board was such that reasonable minds could reach the conclusion that there had been no abandonment of the nonconforming use.

Appellants urge that the trial court erred by not finding that the decision of the Board was illegal because the Board cannot waive the failure to register the nonconforming use before the changing of the nonconforming use.

The Board of Adjustment made no finding of failure to register. The order of the Board of Adjustment is accorded a presumption of validity, and the burden is on the one attacking such order to prove it invalid or illegal. Board of Adjustment of the City of Corpus Christi, Texas v. Whitlock, 442 S.W.2d 437 (Tex.Civ.App.—Corpus Christi 1969, writ ref’d n. r. e.).

§ 42-35(a) of the San Antonio City Code provides for requirements for registration of nonconforming uses and reads as follows:

(a) Registration. The owner or owners of the land and/or structure or structures in which nonconforming use is located shall register such nonconforming use by filing with the department of building and planning administration a registration statement for such nonconforming use within three (3) years from the effective date hereof [June 28, 1965].

The only evidence before the Board of Adjustment concerning non-registration was two statements from persons in opposition to the application that the nonconforming uses were not registered. The statements did not disclose from whom or how this information was obtained. There was no evidence from the department of building and planning administration of registration or non-registration. Where records are required to be kept by public officers, it is presumed that they are kept in accordance with the law. Where there is a lack of an entry in the records, it may be inferred that the thing was not done. Tex.Rev.Civ.Stat. Ann. art. 3731a, Sections 5 & 6. We find no error in the trial court, and appellants’ evidence is insufficient to establish that the decision of the Board of Adjustment is illegal. City of Dallas v. Fifley, supra.

The appellants contend that the court erred in ruling that substantial evidence existed to support the decision of the Board that there was a continued use of Lot 4 since 1938 for warehousing. Appellants specifically maintain there was no warehousing for a period after 1951 when the building was used for auto body works, in 1963 when the building was bought for the use of a metal fabricating plant, and in 1964 when the building had been used for plastics manufacturing.

Prior to 1965, the Zoning Code of 1950, in § 64-6, provided that a nonconforming use of a building could be changed to another nonconforming use of the same or less restrictive classification.

Appellants have taken the erroneous position that only one nonconforming use was permitted under the Ordinance. We do not agree with this position and need not decide whether warehousing had a continued use on Lot 4 since 1938, for the question was whether warehousing or another nonconforming use of the same or less restrictive classification continued. Appellants presented no evidence but relied entirely upon the transcript of the proceedings before the Board of Adjustment and have failed to establish sufficient evidence of the Board’s illegal decision.

Subsequent to 1965 the building was used for warehousing and plastics manufacturing and the evidence before the Board was such that reasonable minds could reach the conclusion of continued use of warehousing.

The judgment of the trial court is affirmed.


author: MOORE, Justice.

text:
    Mable Jo GROST, Appellant, v. Frank H. GROST, Appellee.
    No. 1053.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 29, 1977.
    Rehearing Denied Feb. 2, 1978.

      Reba Graham Rasor, Raggio & Raggio, Inc., Donald R. Smith, Dallas, for appellant.
    Shannon Jones, Jr., Jerry C. Alexander, Passman, Jones, Andrew Coplin, Holley & Co., Dallas, for appellee.
   MOORE, Justice.

This is a divorce case with the principal issue on this appeal being whether the trial court abused its discretion in dividing the community property between the parties. Appellee, Frank H. Grost, instituted suit against his wife Mable Jo Grost, appellant, seeking a divorce on “no fault” grounds of insupportability, and for a division of the estate of the parties. Mrs. Grost answered and filed a cross-action seeking a divorce on the grounds of cruelty and adultery. After a bifurcated trial, of which part was tried before a jury and part before the court without a jury, judgment was entered dissolving the bonds of matrimony and dividing the property. Appellant, Mable Jo Grost, being dissatisfied with the property division, duly perfected this appeal.

We affirm.

Sec. 3.6B of Tex.Rev.Civ.Stat.Ann., The Texas Family Code, requires the court, upon granting a divorce, to order a division of the estate of the parties in a manner that the court deems just and right.

The trial court filed extensive findings of fact and conclusions of law. Based on such findings, as well as other findings made by the jury, the trial court divided the property as follows:

Wife
ASSETS:
1. Home 31,881.39
2. Securities 28,680.82
3. Cash 83,901.04
4. Automobile 5,225.00
5. 24 acres of land (less tax liability) 142,000.00
6. Cash value wife’s life ins. policy 2,559.41
7. One-half cash value of husband’s life policies 2,455.22
TOTAL $296,702.88
CONTINGENT INTEREST:
8. 20% husband’s retirement 35,371.50
9. 50% husband’s death and disability benefits 88,428.75
TOTAL $123,800.25
Husband
10. Land 15,000.00
11. Securities 52,152.31
12. Cash 61,115.93
13. Automobile 3,000.00
14. One-half cash value of life policies 2,455.22
15. Partnership loan acct. 11,120.24
16. Partnership capital acct. 55,300.00
$200,143.70
35,371.50 17. 20% retirement
18. 50% death disability 88,428.75
$123,800.25

Under her first point of error appellant asserts that the trial court erred in awarding the wife one-half of only 40% of the husband’s vested retirement benefits. The trial court found that 40% of the husband’s retirement benefits had vested, amounting to $70,743.00, and awarded appellant one-half of that amount or 20% of the total benefits. Appellant argues that such award made by the trial court was not in conformity with the procedural requirement for the division of such property as laid down in Cearley v. Cearley, 544 S.W.2d 661 (Tex.Sup.1976). We are not in accord with this proposition.

In the findings of fact the trial court found that Frank H. Grost had acquired, during the marriage of the parties, certain death, disability and retirement benefits as a partner in the partnership known as Alford, Meroney & Company; that the present value of the death and disability benefits under the terms of the partnership agreement with Alford, Meroney & Company for death and disability was $176,857.50, which sum was payable to Frank H. Grost or his estate in One Hundred Twenty (120) monthly payments of $1,473.81 each; that the partnership agreement provides that 50% of retirement benefits in a like sum (100% being $176,857.50) vests on June 30, 1977, and that 5% (of $176,857.50) vests on June 30th thereafter for 10 succeeding years. The court further found that as of June 1, 1976, only 40% of the retirement benefits had vested in Frank H. Grost by reason of his employment with Alford, Me-roney & Company, and that all retirement benefits vesting thereafter should be the sole and separate property of Frank H. Grost. The court further found 40% of the retirement benefits was acquired by the parties during their marriage and accordingly awarded each party 20% thereof.

The portion of the judgment dividing the retirement, death and disability benefits reads as follows:

“IT IS, ACCORDINGLY, FURTHER ORDERED, ADJUDGED AND DECREED by the Court that Mable Jo Grost is awarded as her sole and separate property, and Frank H. Grost is hereby divested of all right, title, and interest in and to the following property:
One-half (½) of the first $589.52 ($589.52 being 40 per cent of $1,473.81), said one-half (½) being $294.76, IF, AS, and WHEN paid by Alford, Meroney & Company as retirement benefits for Frank H. Grost under the terms of the Partnership Agreement with Alford, Meroney & Company; and
One-half (½) of the amount of $1,473.81 of each monthly payment, IF, AS and WHEN paid by Alford, Meroney & Company as disability benefits for Frank H. Grost under the terms of the Partnership agreement with Alford, Meroney & Company; and
One-half (½) of the amount of $1,473.81 of each monthly payment, IF, AS and WHEN paid by Alford, Meroney & Company as death benefits for the estate of Frank H. Grost under the terms of the Partnership Agreement with Alford, Meroney & Company; and
One-half (½) of each monthly payment of $500.00, IF, AS, and WHEN paid as a retirement benefit for Frank H. Grost under the terms of the Partnership Agreement with Alford, Meroney & Company, beginning at the 75th birthday of Frank H. Grost.”

The record reveals that the parties had been married for thirty-one years, during which time Mr. Grost had been employed as a partner in the accounting firm of Alford, Meroney & Company. In 1969 the company adopted a plan for the payment of certain benefits upon death, disability or retirement by its employees. The death, disability and retirement plan was unfunded and constituted nothing more than a mere promise on the part of the company to pay the benefits out of earnings. The amount of the benefits was based upon the earnings and length of tenure of the employees. The allotment of the death, disability and retirement benefits to Frank H. Grost amounted to $176,857.50. The funds were to be disbursed monthly in the manner described in the court’s judgment. Under the terms of the plan no employee was permitted to retire until June 30, 1977, and only then if he had reached the age of 55. The judgment of divorce was dated July 16, 1976. Thus, at the time of the divorce, Mr. Grost was required to work one more year with the company before he would be entitled to retire and receive 50% of his retirement income. Consequently, less than 50% of the retirement benefits were earned during coverture. After June 30,1977, the remaining 50% promised him under the plan could only be earned at the rate of 5% a year by his continuing to work for the company for the next ten years. Thus, the remaining 50% of the retirement funds would be earned after the date of divorce and, of course, would not constitute community property acquired during the marriage.

In Texas, disability retirement benefits resulting from employment during marriage are community property subject to division between the husband and wife in the event of dissolution of the marriage. Busby v. Busby, 457 S.W.2d 551, 554 (Tex.Sup.1970); Herring v. Blakeley, 385 S.W.2d 843, 846 (Tex.Sup.1965). That portion of the retirement benefits earned during cov-erture constitute community property at the time of divorce, even though they had not matured and were not at the time subject to possession and enjoyment. Busby v. Busby, supra. Such portion of the retirement benefits earned during coverture constitute a contingent interest in property and are community assets subject to division under Sec. 3.63 of the Texas Family Code. Cearley v. Cearley, 544 S.W.2d 661, 666 (Tex.Sup.1976).

In support of her first point of error appellant argues that the Cearley decision, supra, has explicitly disapproved division of retirement benefits on the basis of “vesting,” and therefore the court erred in finding that 40% of the benefits had vested. The Cearley decision indeed held that such benefits need not be vested, in the sense of matured, before they can be considered community assets subject to division. However, it is clear that the trial court, in finding that 40% of the retirement benefits had “vested,” was using that term in the sense of “earned,” which is the expression found in Cearley. As something less than 50% of the retirement benefits were earned by the husband as of the date of the divorce, we believe that the court’s finding that 40% of the benefits were “vested,” or “earned,” during coverture was in conformity with the correct procedural requirement for the division of such property as laid down in Cearley.

In order to effect an equitable division of the property of the parties, it has long been the law that the court may award all or part of either spouse’s community personal property to the other. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923). The trial court was authorized by sec. 3.63 of the Family Code to order a division of the property in a manner that the court deems just and right. We hold that the trial court did not err in awarding appellant one-half of 40% of the husband’s retirement benefits. Appellant’s first point is overruled.

By her second point of error, appellant contends that the trial court erred in excluding the testimony of Matalee Webster wherein she offered to testify that she intended to give 1,000 shares of stock in Lakewood Acres, Inc., to her niece, Mrs. Grost, and did not intend to give any part thereof to Frank H. Grost. In reply, appel-lee urges that, even if the ruling were erroneous, the error was harmless, since it did not cause the rendition of an improper judgment.

A brief history of this particular transaction is in order. The record reveals that in 1963, while Mr. Grost was at home recovering from a heart attack, Matalee Webster, Mrs. Grost’s aunt, became fearful that the family did not have sufficient funds. She went to Mrs. Grost’s home, taking with her a 1,000-share stock certificate which represented the entire ownership of Lakewood Acres. The record does not show what conversation, if any, took place with regard to the stock certificate, except for the fact that Matalee Webster testified that Mr. Grost told her to sign the stock certificate and that he would take care of it. While it appears that the stock certificate was signed by her, it was not made a part of the record. By way of a bill of exception, appellant offered the proffered testimony of Matalee Webster showing that she would testify that she intended to give the 1,000-share stock certificate solely to her niece, Mrs. Grost.

The record shows that Mrs. Grost became president of Lakewood Acres, Inc., and Mr. Grost became Secretary. The evidence shows that the principal asset owned by the corporation was approximately 27 acres of unimproved land situated in Grapevine, Texas. Mr. Grost testified that at that time the land had a value of approximately $20,000.00. The record shows that the parties subsequently purchased three acres of the land from the corporation with community funds, which was accounted for in Item 11 of the community property schedule depicted supra. Thereafter, the parties improved the land by subdividing it in lots and constructing streets thereon. On May 31, 1971, Mrs. Grost, as president of Lakewood Acres, Inc., caused the 1,000-share stock certificate to be cancelled and issued her and her husband 500 shares each of the corporate stock. On the same date they entered into an agreement whereby the corporate stock was sold to Gary Kirkland, trustee, for and in consideration of $267,-832.25. It was agreed by the parties at that time that the corporation would be dissolved by Kirkland and that he would then execute a note and deed of trust to them payable in installments over a ten-year period and that the lien would represent the sole security for the transaction. The note as well as the deed of trust was executed to Mr. & Mrs. Grost jointly. The corporation was subsequently dissolved and at the time of trial the parties were the joint owners of the vendor’s lien note and the deed of trust lien upon the 24 acres of land. Although several payments were made on the note, at the time of trial repossession was eminent, and the value placed on the land as shown in Item 5 of the foregoing property schedule represented the market value of the land in the event it was repossessed.

By virtue of sec. 5.02 of the Texas Family Code, all property possessed by either spouse during or on dissolution of marriage is presumed to be community property. Sec. 5.01 of the Family Code provides that community property consists of the property, other than separate property, acquired by either spouse during marriage, and that a spouse’s separate property consists of the property acquired by the spouse during marriage by gift, devise or descent. The general rule is that property acquires its status as separate or community property of the husband and wife at the time of its acquisition. Lindsay v. dayman, 151 Tex. 593, 254 S.W.2d 777 (1952); Carriere v. Bodungen, 500 S.W.2d 692 (Tex.Civ.App.—Corpus Christi 1973, no writ).

In an effort to rebut the presumption that the 1,000-share stock certificate was community property, appellant caused Special Issue No. 8 to be submitted to the jury which inquired as to whether Mrs. Webster made the gift of the 1,000 shares of stock solely to Mrs. Grost as her separate property. The jury answered in the negative.

We think the testimony was admissible to show that Matalee Webster intended to give the stock solely to her niece. Dunham v. Chatham, 21 Tex. 231 (1858); Foster v. Christensen, 67 S.W.2d 246 (Tex.Com.App.1934); see 27 Tex.Jur.2d Gifts, sec. 51 at 192. It was therefore error for the court to have excluded it. However, an error committed by the trial court in excluding testimony with regard to whether certain property is separate or community will not result in a reversal unless the record, as a whole, shows that the error was calculated to cause and probably did cause the complaining party to receive less than his or her fair share of the total value of the community estate. Rule 434, Tex.R.Civ.P.; Cooper v. Cooper, 513 S.W.2d 229, 233 (Tex.Civ.App.—Houston [1st Dist.] 1974, no writ).

Under the record before us we fail to see how the error resulted in harm to appellant. Even if we assume that the 1,000 shares of stock were her separate property by reason of a gift from her aunt, the undisputed facts show that she later executed a stock certificate giving her husband 500 shares of the stock. At that point a presumption arose that she made a gift to her husband of one-half of the stock. Carriere v. Bodungen, supra. Nowhere in her pleading or proof does she seek to establish that this transaction was not a gift. It has long been the law that one spouse may make a valid gift of his or her separate property to the other spouse. Riley v. Wilson, 86 Tex. 240, 24 S.W. 394 (1892); Bohn v. Bohn, 455 S.W.2d 401 (Tex.Civ.App.-Houston [1st Dist.] 1970, writ dism’d). Thus, at the time of trial Mr. Grost owned one-half of the vendor’s lien note received in exchange for his 500 shares of stock as his separate property and Mrs. Grost owned only a one-half interest therein as her separate property. The trial court awarded Mrs. Grost the entire value of the vendor’s lien note in the amount of $142,000.00 as shown by Item 5 of the above schedule, thereby divesting Mr. Grost of his separate one-half interest therein, about which he makes no complaint. Thus, assuming arguendo, that this item of property was initially her separate property, in view of the fact that she subsequently gave her husband one-half of it, the error resulted only in the court’s failure to set aside to her one-half of the value of the vendor’s lien note in the amount of $71,-000.00 as her separate property. Consequently, the net effect of the error was to reduce the total assets awarded her by the sum of $71,000.00. The error, however, could not have resulted in harm to her, because, even after deducting the $71,000.00 from the total assets received by her, she still received assets totalling $225,702.88 as compared to assets of the value of $200,-143.70 received by her husband. Thus, the error in excluding the testimony of Matalee Webster did not cause the rendition of an improper judgment. Rule 434, Tex.R.Civ.P. Her second point of error is overruled.

In the third, fourth and fifth points appellant contends that the court erred in finding that the net value of the husband’s partnership investment accounts, after the payment of Federal Income Taxes, would be negligible or amount to a deficit. She contends that such finding has no support in the evidence or, in the alternative, that it is against the overwhelming weight and preponderance of the evidence. In her argument under these points she contends that at the time of trial the husband’s interest in the partnership had a value in excess of $100,000.00 and that the award of these accounts to him resulted in his receiving more than his fair share of the community property.

The record in regard to the partnership accounts is somewhat complicated. As we understand the testimony, Mr. Grost had a required capital account in the partnership of $55,300.00 as of June 30, 1975, the last date on which the partnership’s books were closed. He also had a loan account on that date in the amount of $82,120.24. The latter amount represented his share of the billings made by the partnership to its customers which had not been collected. While the loan account represented his share of the earnings as of that date, such accrued earnings would not be paid to him until collected since the partnership kept books on a cash basis. Thus, as of June 30, 1975, his total interest in the partnership accounts amounted to $137,420.24. The record shows that during the marriage the parties had borrowed the sum of $71,000.00 from the partnership against the loan account. After deducting the amount of the loan the net loan account amounted to $11,120.24. The trial court awarded Mr. Grost the loan account, as well as the capital account in the amount of $55,300.00, but found that after the payment of income taxes the value of these accounts would be negligible. We find no probative evidence to support this finding. While some part of these accounts would no doubt be subject to income taxes, there is no probative evidence as to the amount thereof. Accordingly, we think the court should have treated the partnership interest awarded to Mr. Grost as community assets as we have shown under Items 16 and 17 on the above property schedule. The error, however, in refusing to assign any value to these items resulted in no harm, to appellant, since even including the value of these items as a part of the estate awarded the husband, appellant nevertheless received assets exceeding those awarded to the husband. Rule 434, Tex.R.Civ.P. Points three, four and five are accordingly overruled.

Next, appellant complains of the action of the trial court in refusing to award her ownership of any interest in the several life insurance policies acquired during marriage insuring the life of her husband. She argues that the policies, as such, constitute property which was acquired during the marriage and that therefore she had a right to receive as a community asset an ownership interest in the policies. We cannot agree with this proposition.

The record shows that during the marriage the parties acquired a life insurance policy on the wife in the face amount of $10,000.00 and acquired several policies on the husband in the face amount of $116,-487.00. Three of the husband’s policies to-talling $80,000.00 were term policies and therefore had no cash surrender value. The trial court awarded the wife her policies together with the entire amount of the cash surrender value on her policy and also one-half of the cash surrender value of the policies carried on the husband as shown in Items 6 and 7 of the above property schedule. The court awarded the husband his policies together with one-half of the cash surrender value of such policies.

Appellant makes no complaint with regard to the division of the cash surrender values on the policies. Her complaint is that the court should have additionally awarded her title to or an ownership interest in the husband’s policies. She argues that in awarding the husband title to his policies in the face amount of $116,487.00 as compared to the award to her of only her $10,000.00 policy, the court made an unfair distribution of the community assets represented by the policies.

It is well settled that the cash surrender value of life insurance policies acquired during marriage constitutes community property and such is generally regarded as the proper basis for settlement of the rights of the parties on termination of the marriage. Womack v. Womack, 141 Tex. 299, 172 S.W.2d 307 (1943); Berdoll v. Berdoll, 145 S.W.2d 227 (Tex.Civ.App.—Austin 1940, writ dism’d w. o. j.); Locke v. Locke, 143 S.W.2d 637 (Tex.Civ.App.—Beaumont 1940, no writ); Russell v. Russell, 79 S.W.2d 639 (Tex.Civ.App.—San Antonio 1935, writ dism’d); Simpkins, Texas Family Law, sec. 5:69, at 359 (5th Ed. 1975).

One of the first steps which the courts must undertake in making an equitable distribution of the community property is to determine the value to be accorded each piece of property owned by the community estate. In cases involving life insurance the question arises as to what value is to be accorded to the policies. Some life insurance policies have value while others do not. For example, a policy acquired during marriage and providing for a cash surrender value has a value to the community estate to the extent of the community funds used to create the cash surrender value. Also, in situations in which all of the premiums on a life insurance policy are paid in one lump sum with community funds during the marriage, the full amount of the insurance coverage constitutes contingent community property accruing on the death of the insured. Cox v. Cox, 304 S.W.2d 175 (Tex.Civ.App.—Texarkana 1957, no writ). Where the policies do not provide for a cash surrender value and amount to nothing more than a mere contract between the insured and the insurer whereby the insured promises to pay a stipulated premium for a stipulated period of time for and in consideration of the payment of a stipulated sum upon death, the insurance contract, as such, has no value.

In the present case there is no evidence that any of the policies in which appellant seeks ownership had any value other than their cash surrender value. Thus, while the policies themselves may have been technically owned by the community, after the division of their cash surrender value the policies, as such, had no value and therefore did not constitute community assets to be divided between the parties. Consequently, we find no merit in appellant’s contention that the trial court should have awarded her an ownership interest in the policies on the husband’s life rather than merely dividing the cash surrender value thereof.

In any event, we sincerely doubt that the trial court would have been authorized to alter the insurance contracts by transferring ownership of the policies or a part thereof to appellant, without the insurance company’s having been made a party to the suit. See Russell v. Russell, supra. The sixth point is overruled.

In her final point of error appellant contends that the court abused its discretion in awarding her less than one-half of the property of the parties. We find no merit in this contention.

The primary duty of the trial court in dividing the estate of the parties is to make a division that is fair, just and equitable. On appeal from a judgment dividing property of the parties, the question is whether or not the trial court abused its discretion, and, if so, whether such abuse requires a reversal of the judgment. It is the duty of the appellate court to indulge every reasonable presumption in favor of the trial court’s exercise of its discretion, which may be corrected on appeal only when such abuse of it is shown that the disposition made of the estate was manifestly unjust, unfair and inequitable. Roye v. Roye, 404 S.W.2d 92 (Tex.Civ.App.-Tyler 1966, no writ). As we view the record appellant was awarded property having a value slightly in excess of one-half the total value of the community estate. Consequently, we have concluded that no abuse of discretion was shown.

Finding no reversible error the judgment of the trial court is affirmed.

      . The trial court found that neither of these items had any value; however, we have concluded that they should have been assigned the values as set forth in the above schedule as will be discussed later.

      . The trial court also awarded each party 50% of the $500.00 per month retirement benefits commencing when the husband reaches the age of 75.


author: ,EVANS, Justice.

text:
    Alfred RUBIN, Appellant, v. Nathaniel GILMORE et al., Appellees.
    No. 16951.
    Court of Civil Appeals of Texas, Houston 1st Dist.
    Dec. 29, 1977.

      Schlanger, Cook, Cohn & Mills, Steven J. Watkins, Houston, for appellant.
    Jefferson, Maness, Valdes & Mims, Carnegie H. Mims, Jr., Houston, for appellees.
   ,EVANS, Justice.

This is an appeal from an order granting a temporary injunction and appointing a receiver.

The appellees, Nathaniel Gilmore and William Gibson, Jr. brought this action against Alfred L. Rubin, alleging an oral partnership agreement with Rubin concerning the operation of a night club known as the “New Yorker Club”. Gilmore and Gibson sought an accounting for money allegedly received by Rubin and a temporary and permanent injunction restraining Rubin from interfering with their operation of the business. The appointment of a receiver was also requested. Rubin answered, denying the existence of a partnership and contending that he owned the business and that Gilmore and Gibson were his employees.

According to the testimony introduced at the temporary injunction hearing, Gilmore and Gibson were responsible for the management of the night club and Rubin was responsible for handling the financial affairs of the business. After the business had been in operation for approximately two months, a controversy developed with respect to whether Rubin was making proper application of business revenues to the payment of expenses. As a result of this dispute, Rubin padlocked the club premises, thereby terminating all business activity.

The trial court’s temporary order, which is the subject of this appeal, enjoined Rubin from interfering with Gilmore and Gibson “in any manner in their operation and peaceable possession of the business known as the ‘New Yorker Club’ ”, and appointed a receiver to take charge of the operation of the business pending final hearing on the matter.

In Rubin’s first point of error, he contends that the temporary injunction improperly interferes with his lease contract with the landowner, who was not made a party to the action.

The temporary order does not purport to affect the rights of the parties under the lease contract, and it has not been shown how the landowner’s rights or obligations will be prejudiced or adversely affected by the order. Such rights as the owner of the property may have under the lease agreement remain outside the scope of the temporary order, and contrary to Rubin’s argument, the fact that the owner was not a party to the proceedings did not deprive the trial court of its jurisdiction to enter the temporary order. Rule 39, Tex.R.Civ.P.; Cooper v. Texas Gulf Industries, Inc., 513 S.W.2d 200 (Tex.1974).

It is Rubin’s further contention that even if a partnership existed, his action in padlocking the premises constituted a dissolution of the partnership arrangement and that the temporary injunction order and the appointment of a receiver improperly deprived him of the right to wind up the partnership affairs.

The trial court found that Rubin had appropriated business income to his own personal use, that he had failed or refused to account for income collected and disbursed, and that he had wrongfully excluded Gilmore and Gibson from the premises. Rubin has not contested these findings. The trial court concluded that Gilmore and Gibson would be irreparably harmed unless Rubin was enjoined and a receiver was appointed to conserve and protect the business assets pending final hearing.

A trial court is clothed with broad discretion in determining whether to issue a writ of temporary injunction and its order will be reversed only upon a showing that there has been an abuse of this discretion. Transport Company of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549 (1953). The trial court’s findings support its conclusion of a probable wrong and a probable injury justifying the issuance of a temporary injunction. The record "does not reflect an abuse of the trial court’s discretion.

A trial court may appoint a receiver to take charge of the partnership business where the parties are unable to agree upon the management of a business and the partnership assets are in danger of being lost, removed or materially injured. Article 2293, Tex.Rev.Civ.Stat.Ann.; Alexander v. Alexander, 99 S.W.2d 1062 (Tex.Civ.App.—Austin 1936, no writ). A receiver may be appointed even though the existence of the partnership is denied. Rische v. Rische, 46 Tex.Civ.App. 23, 101 S.W. 849 (San Antonio 1907, writ dism’d). The trial court’s findings in the instant case support its appointment of a receiver to take charge of the business pending final hearing on the merits.

It is next the contention of Rubin that the order appointing the receiver was unreasonably vague and that the trial court erred in failing to require the filing of a bond by Gilmore and Gibson as a condition to the appointment of the receiver.

The trial court’s order directs the receiver to take financial control of the business and to protect the business assets and conserve the business profits pending the final resolution of the cause. It also directs the receiver to determine the amount of compensation to be paid to Gilmore and Gibson for their services pending final disposition of the cause, after taking into consideration the amount of income available for the payment of necessary expenses. Although the order could have been more specific with respect to the receiver’s duties, it is not so vague as to render the order invalid.

The trial court was not, however, authorized to appoint a receiver in the absence of an applicant’s bond filed in compliance with Rule 695a, Tex.R.Civ.P. Neither the filing of the receiver’s bond nor the filing of the temporary injunction bond satisfied this requirement. Continental Homes Co. v. Hilltown Property Owners Assoc., Inc., 529 S.W.2d 293 (Tex.Civ.App.—Fort Worth 1975, no writ). The requirement of an applicant’s bond is mandatory, and non-compliance with Rule 695a requires the reversal of the order appointing the receiver. Continental Homes Co. v. Hilltown Property Owners Assoc., Inc. supra; Parr v. First State Bank, 507 S.W.2d 579 (Tex.Civ.App.-San Antonio 1974, no writ).

It is Rubin’s further contention that the trial court’s temporary injunction order is void in that it fails to state the reason for its issuance and does not describe in reasonable detail the act or acts sought to be restrained.

Rule 683, Tex.R.Civ.P. provides:

“Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.”

The temporary injunction order recites that the court was of the opinion, after considering the verified petition, the evidence and argument of counsel, that Rubin probably had breached the partnership agreement and that he was interfering with normal business operations. The court further found that unless Rubin was restrained pending the final hearing, Gilmore and Gibson would suffer irreparable harm and damage in that their privilege to sell alcoholic beverages for public consumption might be canceled or revoked as a result of Rubin’s conduct. The order further recites that in order to insure that the business was being operated properly and that all income and expenses were accounted for each day until final hearing, a receiver should be appointed for the reasons mentioned.

In its findings of fact the trial court found that Rubin had failed or refused to pay the gross receipt taxes owing from the sale of mixed beverages and that unless Rubin was enjoined and a receiver appointed pending final hearing, the plaintiff’s permit to sell mixed beverages would be canceled for failure to pay the gross receipt taxes. Rubin, contends, however, that the trial court’s findings cannot be upheld as there was no evidence of nonpayment of gross receipt taxes.

In reviewing Rubin’s “no evidence” points, this court must review the record in a light most favorable to the trial court’s judgment. Fisher Construction Co. v. Riggs, 160 Tex. 23, 325 S.W.2d 126 (1959). There was testimony that the club’s operation was under investigation by the Texas Alcoholic Beverage Commission, and that the mixed beverage permit had possibly been suspended. As previously noted, the trial court found that Rubin had appropriated business funds to his own use and had failed or refused to account for his handling of the venture’s funds. Upon these findings the trial court could have concluded that Rubin would not likely pay in due course the regular expenses of the business, including the gross receipt taxes attributable to the sale of mixed beverages, and that irreparable injury would probably result unless Rubin was enjoined from interfering in the business and a receiver was appointed to take control of the venture pending a final hearing on the matter.

The final question to be determined is whether the injunction decree is sufficiently definite as to the activities which it seeks to enjoin.

In Villalobos v. Holguin, 146 Tex. 474, 208 S.W.2d 871 (1948), the Supreme Court said:

“An injunction decree must be as definite, clear and precise as possible, and when practicable it should inform the defendant of the acts he is restrained from doing, without calling on him for inferences or conclusions about which persons might well differ and without leaving anything for further hearing.”

The trial court’s temporary order appoints a receiver to take charge of the operation of the business pending a final hearing, and it enjoins Rubin from interfering with Gilmore and Gibson “in any manner” in “their” operation and possession of the business. However, the decree does not specifically enjoin Rubin from going on or about the business premises nor does it indicate to what extent he is prohibited from involving himself in the business venture.

It has been decided, at least in cases involving the public interest, that an injunction decree need not specifically enumerate every possible act which might constitute an unauthorized practice. San Antonio Bar Ass’n v. Guardian Abstract & Title Co., 156 Tex. 7, 291 S.W.2d 697 (1956); Davies v. Unauthorized Practice Comm. of the State Bar, 431 S.W.2d 590 (Tex.Civ.App.—Tyler 1968, writ ref’d n. r. e.). However, it is also settled that an injunction decree must to the extent practicable set forth in reasonable detail the nature of the acts prohibited so that the person restrained is not left to conjecture as to whether certain acts will violate the terms of the decree. Ex parte Slavin, 412 S.W.2d 43 (Tex.1967); Villalobos v. Holguin, supra.

In the case at bar Rubin was entitled to go about the business premises and to participate in the business affairs of the venture unless specifically restrained by the court’s decree. The problem with the decree is that it does not clearly define the type of conduct which it seeks to prohibit. An injunction order which is framed so broadly as to prohibit the enjoyment of lawful rights is invalid. Seline v. Baker, 536 S.W.2d 631, 634 (Tex.Civ.App.—Houston [1st Dist.] 1976, no writ); Dincans v. Keeran, 192 S.W. 603, 604 (Tex.Civ.App.—San Antonio 1917, no writ).

This court is empowered to modify the terms of the trial court’s injunction order, but to do so in this case would entail conjecture by this court as to the specific conduct the trial court sought to prohibit by its temporary decree. It is therefore in the interest of justice that the cause be remanded to the trial court for such further orders and proceedings as it may deem appropriate. Coates v. Coates, 355 S.W.2d 260, 263 (Tex.Civ.App.—Eastland 1962, no writ).

The trial court’s order granting the temporary injunction and appointing a receiver is reversed, and the cause is remanded for further proceedings.


text:
    Betty Suzanne ONDRUSEK, Appellant, v. James Robert ONDRUSEK, Appellee.
    No. 1086.
    Court of Civil Appeals of Texas, Tyler.
    Jan. 12, 1978.

      Paul E. Lokey, Paul E. Lokey & Co., Dallas, for appellant.
    Stephen L. Holley, Holley & Holley, Dallas, for appellee.
   MOORE, Justice.

This is an appeal from an order increasing child support payments previously ordered in a divorce action.

Appellant, Betty Suzanne Ondrusek, and James Robert Ondrusek, appellee, were divorced on September 27, 1976. The husband, James Robert Ondrusek, was awarded the custody of the parties’ three minor children. Mrs. Ondrusek, who was unemployed at the time of the divorce, was ordered to pay child support commensurate with her ability to do so, but was not ordered to pay any specific amount at that time. On November 5, 1976, appellee filed a motion for contempt for failure to pay child support and a motion seeking an order requiring Mrs. Ondrusek to make child support payments in specific amounts in the future. He alleged that immediately after the trial of the divorce case on August 31, 1976, she obtained employment and ever since has been gainfully employed with a net monthly income of $362.68. Appellee alleged that the children were in need of support, and that the wife had made no child support payments whatever after the entry of the divorce decree. After a hearing on January 11, 1977, the trial court denied the motion for contempt but entered an order directing appellant to pay child support for the three minor children in the total amount of $20.00 per week, commencing on January 14, 1977. From this order she perfected this appeal.

We affirm.

Appellant brings three points of error contending that the trial court erred in finding that she had the ability to pay child support payments in the amount of $20.00 per week. The sole question presented is whether the trial court’s ruling amounted to an abuse of discretion.

Pursuant to appellant’s request, the trial court filed findings of fact and conclusions of law. The court found, among other things, that (1) appellant’s circumstances had materially changed since the date of the divorce decree; (2) appellant was presently employed and was earning a regular salary; (3) she had the ability to pay child support in the amount of $20.00 per week and (4) the appellee was in need of such support in order to support adequately the children. Appellant does not challenge any of the foregoing findings save and except the finding that she had the ability to pay child support in the amount of $20.00 per week.

Our statutes provide that each spouse has the duty to support his or her minor children. Tex.Family Code Ann. sec. 4.02. In order to enforce the duty of support the court may order either or both parents to make periodic payments for the support of a child until he is eighteen (18) years of age. Tex.Family Code Ann. sec. 14.05(a). Each case involving the question of the propriety of an order requiring a parent to make child support payments must stand on its own facts, and trial courts, by necessity, have wide discretion in regard thereto. Such discretion will not be disturbed on appeal unless the court has clearly abused its discretion. Dennis v. Dennis, 512 S.W.2d 699 (Tex.Civ.App.-Tyler 1974, no writ); Cunningham v. Cunningham, 515 S.W.2d 345 (Tex.Civ.App.-Corpus Christi 1974, no writ); Hearn v. Hearn, 449 S.W.2d 141 (Tex.Civ.App.-Tyler 1969, no writ).

The record discloses that at the time of the hearing on the motion for contempt Mrs. Ondrusek was gainfully employed with a gross monthly salary of $450.00 and a net take-home pay of $362.68 per month. Appellant testified that she was unable to contribute to the support of her children because her living expenses exceeded her salary. At the time of the hearing she was unmarried and lived alone in an apartment. According to her testimony, her total monthly expenses amounted to $458.48 and her living expenses thereby exceeded her net pay by $95.80 per month. Among her various monthly expenses she testified that (1) her monthly rent on her apartment amounted to $160.00, (2) her monthly gasoline bill was $40.00 and (3) the payment on her automobile amounted to $106.00 per month.

If all of the expenditures detailed by her were necessary, she would, of course, not have the ability to pay the child support payments out of her monthly earnings. While appellant would be entitled to retain enough of her earnings to pay her necessary living expenses, she was also under a duty to abide by the order of support. If necessary to the discharge of the latter obligation, it was incumbent upon her to reduce her individual living expenses to an absolute minimum. Ex parte Kollenborn, 154 Tex. 223, 276 S.W.2d 251 (1955). That she has reduced her living expenses to an absolute minimum is not conclusively established by her testimony. Nowhere in her testimony does she attempt to explain why it was necessary for her to live alone in a $160.00-a-month apartment, nor does she attempt to explain why it was necessary for her to maintain an automobile requiring an expenditure of $106.00 per month for payments thereon and $40.00 per month for gasoline. Consequently, the trial court was at liberty to conclude that the foregoing monthly expenditures were not absolutely necessary. Without any testimony to the contrary the court was at liberty to conclude that by having shared her apartment rent with another person she could have saved enough to make the support payments, or that, by having sold her automobile and having adopted a less expensive vehicle or some other mode of transportation, she could have reduced her monthly expenses by enough to make the payments. Under the record before us, we cannot say that appellant’s own evidence conclusively established that she was unable to make the $20.00 per week support payments out of her salary.

The court’s order, however, need not rest alone on the finding that the appellant had the ability to pay the support payments out of her earnings. Nowhere in appellant’s testimony did she testify that she had no funds, other than her earnings, with which to pay the support payments. Under the terms of the divorce decree, which was entered approximately three and one-half months prior to the date of the contempt hearing, appellant was awarded one-half of the parties’ bank account in the amount of $3,300.00 and one-half of an income tax refund check in the amount of $1,032.00. In addition to this amount she was awarded a $16,000.00 personal judgment against her husband, secured by an equitable lien upon all the real and personal property awarded him in the divorce decree. Other property awarded to the husband on which she had an equitable lien consisted of (1) a house and lot, (2) a 1970 Ford, (3) a 1974 Plymouth and (4) a 1939 Ford. Although the evidence shows that the husband had not paid the $16,000.00 judgment, appellant offered no testimony showing that she had been unable to enforce her lien against the husband’s property, nor did she testify that she had no funds in her own bank account with which to meet the support payments. Her sole contention, both in the trial court and in this court, is that she was unable to pay the support payments out of her earnings.

In determining the duty of a parent to support a child after a divorce, it is to be borne in mind that such duty corresponds to his or her overall financial ability. Gully v. Gully, 111 Tex. 233, 231 S.W. 97 (1921); Butler v. Butler, 265 S.W. 415 (Tex.Civ.App.-Beaumont 1924, writ dism’d). Thus, the duty to pay support is not limited to a parent’s ability to pay only from current earnings, but extends to his or her financial ability to pay from any and all sources that might be available.

Viewing the evidence in a light most favorable to the trial court’s findings, as we are required to do, we have concluded that there is evidence of probative force to support the finding that appellant had the financial ability to pay the amount ordered by the court. Accordingly, we hold that no abuse of discretion was shown.

Affirmed.