author: MASSEY, Chief Justice.

text:
    Douglas Geddes BENEDICT, Appellant, v. Sammy Jane BENEDICT, et al., Appellees.
    No. 17748.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 1, 1976.
    Rehearing Denied Nov. 5, 1976.

      Murad & Steimel and Walter E. Steimel, Fort Worth, for appellant.
    Wilson, McGee & Craig and William T. McGee, Fort Worth, for appellees.
   OPINION

MASSEY, Chief Justice.

From the judgment of divorce in the case filed by his wife, Sammy Jane Benedict, Douglas Geddes Benedict has appealed.

Judgment reformed, and as reformed, affirmed.

The entitlement of the wife to a divorce is not challenged by the appeal. Challenged is: (a) the grant of custody of the children, provision of the judgment relative to visitation of children, and the amount of child support allowed, including the provision for its increase at a future date; (b) the action of the court in dividing property between the husband and wife, including both community and separate property, allegedly without complete inventory and without evidence of its appraised value; apportionment of the income tax liability on the community estate and the imposition of liability upon the husband therefor as well as obligation to discharge the community debts; (c) the grant to the wife of what the husband contends amounts to alimony; and (d) miscellaneous complaints including the award of attorney’s fees and costs, and the fact that though the Court’s letter antecedent to judgment (included in the Transcript) indicated what the judgment would provide, it actually provided differently with no opportunity afforded the husband for hearing before the entry of judgment.

The husband and wife were married on July 8, 1965 in New York State. The wife did not work after that time. She had approximately one year in college but left to become an airline stewardess, in which work she was engaged for approximately 1⅜ years. She was 37 years of age at time of the trial in July of 1975. At the time the parties married the husband was in the construction business and also worked in some manner in connection with a “gun shop”. Afterward he ceased activity in both these enterprises. He dealt in real estate in the State of New York for a period of time. He proved generally unsuccessful in his attempts to profit. Actually he lost money.

Despite the husband’s misfortunes it is apparent that he did not unduly suffer by reduction in his living standard. He then continued to receive, and will hereafter continue to receive, the income from a “lifetime trust”. The history of annual income therefrom reflects between $60,000.00 and $70,000.00 per year as trust income, and the presumption from the record is that this income will continue.

In 1971 the parties moved to Texas and purchased a rather expensive home in Fort Worth.

We have attempted to analyze the evidence in the case in the determining exactly how and why the trial court arrived at its disposition and division of the property of the parties, with consideration given the property itself, the value of the items and articles thereof, and the value of the total. In her brief the wife’s statement, and it is a fair one, is: “The net value of all of the properties after the payment of all debts and taxes is between $296,513.52 and $301,-038.52. Of this, Mrs. Benedict was awarded property which was worth between $141,-908.00 and $146,433.00, and Respondent was awarded property worth $154,605.52.” These figures do not include the $400.00 per month due to be paid to the wife after the divorce, payments contended by the husband to amount to permanent alimony beyond the authority of the court to award.

The custody of the children was by the judgment of the court given jointly to the wife, along with intervenors, her parents Hugh Downing and Minna Downing. The wife and her parents were jointly appointed the “managing conservators”, meaning in this case that they were given the rights of physical custody of the parties’ minor children, with accompanying obligation, subject to the visitation rights of the father. The husband was appointed “possessory conservator”, meaning the parent who will not have custody except for prescribed rights during periods in which there is exercise of rights of visitation.

We find that we may readily reduce the matters upon which our investigation of the law must be made. By the wife’s suit she charged cruel treatment as well as ins-upportability of the marriage relationship because of discord which had destroyed the legitimate ends of the marriage relationship. The trial court, as the fact finder, was entitled to attribute to the husband the fault in the respects charged. The court will be presumed to have done so in the absence of any Findings of Fact and Conclusions of Law in the record.

No point of error asserts the claim that there is “no evidence” to support some essential finding, or that any finding made would be contrary to the “great weight and preponderance of the evidence” adduced on trial. The complaints presented by the husband’s points are that there was abuse of discretion by the trial court. These make it necessary for this Court to examine the entire record in the same manner as would be necessary if complaint was made that there were findings contrary to the great weight of the evidence.

We hold that there was no abuse of discretion on the part of the court by failure to grant physical custody of the children to the husband and in merely allowing him visitation, nor was there any error because of the specific provisions of judgment relative to times for and duration of his rights of visitation. Evidence at the hearing upon existent animosity between the parties supported the action of the court in making the specific provisions. Furthermore, we know of nothing in the law which would forbid the trial court from making provisions of this character in every case. Visitation is not actually limited thereby if the parties cooperate. Accommodation and agreement on a greater opportunity for visitation would not require approval of the court.

The court did not specifically state that the husband was not a proper party to be granted physical custody of the children though under the record it could have so decided. The same is true relative to the wife. The question of fitness and suitability of the wife to have the physical custody was a matter of concern for the court. In resolving this question the court determined to vest the custody of the children in the wife together with her parents, as joint “managing conservators”. Placement of the custodial responsibilities upon her parents along with the wife was an obvious act of wisdom on the part of the court; to have done otherwise might have been logically questioned. With such done there was assurance that the duties of the office of “managing conservator” would more assuredly be discharged. In this case there existed those “special conditions” making necessary such joint custody provisions in the judgment decree, and the evidence having shown a necessity therefor there was satisfaction of the requirement stated existent by the case upon which the husband relies. Bronner v. Bronner, 267 S.W.2d 577 (Tex.Civ.App., Amarillo, 1953, no writ history)-

There was no abuse of the court’s discretion in the assessment of amounts of child support to be paid by the husband as the parent “out of custody”, nor in the provision for an increase in child support at a subsequent date. On the matter of increase the court was not punishing the husband; the intention as to accommodate him. The evidence disclosed that by the end of the initial 3-year period, in which a lesser amount was to be paid for child support than would thereafter be the husband’s obligation, the husband expected to have certain monetary obligations resolved and discharged, and also to have completed the course of education currently undertaken and would probably have begun to earn money. At time of the trial the husband was not a wage earner nor operator of any business from which income was derived.

The husband’s very substantial income at time of trial was from income of lifetime “spendthrift trusts” of which he was beneficiary, the principal of which he could not invade. The amounts provided by the court’s judgment to be paid by the husband for the support of his children were much greater than in the ordinary case. The living standards of the children were much greater than in the ordinary divorce case and were actually commensurate with their father’s considerable income.

It is the amount necessary to support children according to their station in life as well as their needs which is of importance in fixing the level of child support. As applied to the children involved the evidence not only demonstrated such, but additionally showed a greater need for the child support decreed in view of the existent physical and emotional condition of one of them. No abuse of discretion existed in the judgment on amounts to be paid for child support.

A question involved on the appeal concerns whether the judgment awarded alimony to the wife by the provision that there be the amount of $400.00 per month due her from the husband for the remainder of her lifetime or until such time as she may remarry. On this there are actually two questions: (a) Was it a recovery by her against the husband in (further) settlement of her rights in the community and separate property of the parties? (b) Did the award to the wife constitute an abuse of discretion?

The husband insists that there was abuse of discretion by the court in that all of the community property was awarded to the wife, plus most of the husband’s separate property, together with the contention that there was additional abuse of discretion in the imposition of all the past tax liability upon the parties’ community estate and in making it the obligation of the husband to discharge all the community debts. Adding insult to injury, by the view of the husband, the court went further in an abuse of its discretion and granted permanent alimony. There is contention that if the $400.00 per month was not alimony, its allowance nevertheless rendered the property division grossly disproportionate as between the parties (if not theretofore disproportionate) to his prejudice.

On the division of the community property there is additional complaint that there was not a complete inventory thereof, nor evidence of appraised value of items included.

Earlier in the opinion we outlined the monetary amounts of the court’s apportionment. Some of the property owned by the parties was community and some was the separate property of one or the other of them. In the absence of proper proof tracing the separate property of one or the other of the parties the matter is governed by the statutory presumption that all property on hand at the dissolution of the marriage is community property. Y.A.T.S., Family Code, Sec. 5.02, “(Marital Property) Presumption.”

As applied to the husband’s “tracing” evidence, intended to show the character of property as separate and not community, the trial court was entitled' to decide that he had not discharged the burden of proof as applied to some of it, including the residence in Fort Worth which was awarded to the wife. In the state of the record we are bound to presume that this was what the court did find. On the stated findings of the court, considered along with findings to be presumed, we hold there was not an abuse of discretion in the property division. We hold likewise when we.treat as part of such property division the $400.00 per month to be paid in the future which the husband says is obvious alimony. With the $400.00 per month included we hold that there was a disproportionate award. We agree with the husband’s authorities that there must be some reasonable basis for such an unequal division of property on divorce. We perceive no error, however, the answer to his complaint being that in this case there is evidence proving such a reasonable basis for the unequal division.

To repeat: the wife sought and obtained unequal division of the parties’ property; allowance of such we hold authorized by equitable principles of law properly considered by the court in the property division. Among the elements the court was entitled to take into consideration were not only fault in the circumstances involved in the breaking-up of the parties, but also the disparity in the earning power of the parties following dissolution of the marriage, the probable need for future support and appropriate compensation to the spouse not at fault for that loss of economic benefit of the marriage relation itself which would have probably been received had the marriage continued.

The authority of the court, matters to be considered in the exercise of its authority, etc., are considered in cases to which we refer. Included therein for special consideration as applied to the parties’ separate property, and as applied to instances where there is invasion of the separate property interest for the benefit of the ' spouse who would have no interest therein but for the judgment of the court, are expressions to the effect that there must be a reasonable basis for such an award by the court, an unequal division of property usually being involved. The cases are: In re Marriage of McCurdy, 489 S.W.2d 712, 717 (Tex.Civ.App., Amarillo, 1973, writ dism.); Dobbs v. Dobbs, 449 S.W.2d 119 (Tex.Civ. App., Tyler, 1969, no writ hist.); Keene v. Keene, 445 S.W.2d 624 (Tex.Civ.App., Dallas, 1969, writ dism.); Roye v. Roye, 404 S.W.2d 92 (Tex.Civ.App., Tyler, 1966, no writ hist.); Dillard v. Dillard, 341 S.W.2d 668 (Tex.Civ.App., Austin, 1960, writ ref., n. r. e.); Cooper v. Cooper, 513 S.W.2d 229 (Tex.Civ.App., Houston, 1st Dist., 1974, no writ hist.); Hooper v. Hooper, 403 S.W.2d 215 (Tex.Civ.App,, Amarillo, 1966, writ dism.); Liddell v. Liddell, 29 S.W.2d 868 (Tex.Civ.App., San Antonio, 1930, no writ hist.); Shaw v. Shaw, 402 S.W.2d 821 (Tex. Civ.App., San Antonio, 1966, no writ hist.). Particularly enlightening upon the law, though the case dealt with the relative legal rights of the parties after the court had exercised its authority to provide monthly payments to be made to one spouse and the judgment in the case had become final, is Keton v. Clark, 67 S.W.2d 437 (Tex.Civ. App., Waco, 1933, error refused).

Involved in the disposition of the parties’ property in the instant case is the matter of the community indebtedness. The community debts were taken into consideration by the trial court and the obligation for the payment of such debts was by the judgment imposed upon the husband. In such eases, even where there must be invasion of the separate property of one for the benefit of the other party, a similar rule of law to that hereinabove noticed has application. Cases dealing with the question include the following: Cusack v. Cusack, 491 S.W.2d 714 (Tex.Civ.App., Corpus Christi, 1973, writ dism.); Mangum v. Mangum, 184 S.W.2d 338 (Tex.Civ.App., San Antonio, 1944, no writ hist.); Hughes v. Hughes, 259 S.W. 180 (Tex.Civ.App., Amarillo, 1924, writ dism.); Franks v. Franks, 138 S.W. 1110 (Tex.Civ.App., Austin, 1911, writ ref.).

In the disposition of property upon divorce the matter of tax liability was an element for consideration. Of course the matter of imposition of liability for the discharge of the obligation (affecting only the rights of the parties, one against the other) should be considered in the property division. Cole v. Cole, 532 S.W.2d 102 (Tex. Civ.App., Dallas, 1975, no writ hist.). Indeed it has been held that when the court fails to consider such tax liability, and the wife is without the means to satisfy the obligation for its payment, the failure constitutes error. Gaulding v. Gaulding, 256 S.W.2d 684, 688 (Tex.Civ.App., Dallas, 1953, no writ hist.).

Herein lies at least part of the occasion for the trial court’s having provided for a lesser amount to be paid by the husband during an initial 3-year period for child support than the amount to be paid after that period has expired. The husband was shown to have failed to file tax returns since 1970. In order to discharge the resultant tax liability the cost will be considerable; indeed the husband estimates that it will be $120,000.00. It is obvious that if the wife becomes compelled to pay the taxes (in order to preserve the family home for herself and the children) it will appear an act of wisdom for the trial court (as it did in making the provisions of judgment) to provide that obligation of the husband should include the duty of reimbursement. In any event this would merely be a part of the broader consideration of the total of the property and property interests for which there was provision in the judgment, this would be proper if the charge laid upon the husband of the whole tax liability be proper, and this would not prejudice him in the eyes of the law. Imposition of the entire tax liability upon the husband in this case was within the authority of the trial court. Upon consideration of the evidence we hold that the court’s exercise of its authority did not amount to an abuse of discretion.

To be hereafter noticed is that there was award of two-thirds of the attorney’s fee of the wife charged against her husband. The amount so charged was properly considered as a part of the test of propriety of the property division. Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002 (1950). Conceivably there are cases in which such a charge would create an unjust property division. Here there is not proof that in making the property division there was any improper “dual consideration” of the attorney’s fee. Absent such it cannot be said that error resulted in this case.

We have considered the husband’s complaint that there was an incomplete inventory of the parties’ property, and his contention that without evidence of the value thereof there was error in the property division. The record fails to support the contention. A question is not raised. The husband submitted his own inventory and assigned values to the majority of the items inventoried by him. On the property there was substantial expert testimony. If there was any failure as applied to any omitted items the failure would be disregarded by this Court as a possible ground to reverse the judgment since the law does not concern itself with trifles. See 44 A.L.R. 168, Annotation: “ ‘De minimis non curat lex.’ ”

A provision of the judgment was for the wife’s entitlement to $400.00 per month subsequent to the date of the divorce. The provision reads as follows: “In further settlement of the rights of Petitioner in the community and separate property of the parties, the Court finds that Petitioner is entitled to have and recover judgment against Respondent in the sum of $400.00 monthly for the remainder of her lifetime or until such time as she may remarry.”

Of course, if the obligation was “personal”, i. e., was truly a judgment in personam and not a judgment in rem, it would be forbidden by Texas law as an award of alimony after the divorce. The language quoted is susceptible of construction that it is such an impermissible adjudication; but as we construe it under the facts and circumstances of this case the only thing wrong with it is that it is over-broad in its provisions. Having that character it may be corrected by a reformation which narrows its scope and reduces the burden construable as having been imposed so that the benefits to the wife intended to be afforded thereby are limited. In other words it is our opinion that by providing that the $400.00 monthly payments shall come from the proceeds of property in existence at the time of the divorce and thus made a part of the in rem adjudication there would be no doubt of judgment propriety.

It is clear from the whole record in the case, coupled with the language we have quoted from the judgment, that there was not an intent by the court to render an in personam judgment and that the court did intend to render an in rem judgment. We perceive no reversible error in the reformation above described and it will be made as part of the judgment of this Court.

We specifically take occasion to explain the matter of the $400.00 per month provided by judgment to be part of the division of property existent at the time of the divorce. We note that we do not have before us a situation requiring a somewhat different application of the law as is necessary where there has been a contract of the parties relative to property division, etc., though there should be consideration of language to be found in the cases dealing with the legal question involved where there has been such a contract. Here we have merely the decision of the court making the division of property. The distinction to be made under the differing circumstance has been explained. See cases annotated under V.A.T.S. Art. 4637, “Alimony” (now repealed by Acts 1969, 61st Leg., p. 2707, Ch. 888, § 6, eff. Jan. 1, 1970); and Texas Family Code, Ch. 3, “Dissolution of Marriage”, Sec. 3.59, “Temporary Support”.

Essentially the law is that the courts are not authorized to decree an award of permanent alimony for the support of the divorced wife because to do so would be to contradict the public policy of the state; however, an award is not alimony which is forbidden by law, where in the property settlement provisions of a divorce decree one of the parties is required to make payments to the other after the divorce and the payments are referable to any property that either spouse may have owned or claimed at time of the decree which is part of the existing property which the court apportions. On this principle of law there are many cases which could be cited. Most are cited and discussed in 20 Tex.Jur.2d, p. 611, “Divorce and Separation”, Ch. XIX, “Alimony”, Sub. C., “After Divorce”, Sec. 289, “In general”; in 16 South Texas Law Journal (1974-1975), p. 1, “A Wife’s Right to Support Payments in Texas”, by Edward W. Turley, Jr.; and in Francis v. Francis, 412 S.W.2d 29 (Tex.Sup., 1967).

Relative is the following statement by the Texas Supreme Court: “While the court, in ordering the divorce, should not be unmindful of the benefits which the spouse not at fault would have derived from a continuance of the marriage, through the estate of the other spouse, its power is not limited to providing compensation for such benefits. Instead the court is to do complete equity as between the husband and wife and the children, having due regard to all obligations of the spouses and to the probable future necessities of all concerned. For the purpose of doing equity, the court may award all the personal property to either spouse, and may subject the income, rents, or revenues of all real estate, belonging to either or both of the spouses, to the support of either or both of them, or to the education and support of the children.” Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923).

It is fortunate, from the standpoint of the wife, that a part of the existing property of the husband is his trust estate. It is from the profits to be derived therefrom that the trial court undoubtedly intended the $400.00 per month should be paid. The estate being one which is a “spendthrift trust” the corpus could not be reached for any sale, etc., but we hold that such inability at law may not defeat the authority of the court to treat the trust as property of the husband existent upon divorce. While the husband lives he will receive the income from the trust.

Therefore it follows that the $400.00 per month to be paid in the future is “referable” to property which by the law here involved is proper to be treated as owned by the husband at time of the divorce. There being no question but that the court apportioned said monthly sum to her as part of the settlement made in division of property upon divorce, there was no impropriety and no reversible error involved. As already stated earlier in this opinion the provision thus became a part of the total property division.

We overrule the complaints of error because of the adjudication of all costs of trial against the husband. We also overrule the complaint based on the award of two-thirds of the total attorney’s fee held reasonable for the representation of the wife in the proceeding. On costs see V.A. T.S., Family Code, Sec. 3.65, “Costs”, authorizing costs as assessed by the court in the instant case. The matter of the award of attorney’s fees to the successful party in a divorce suit has heretofore been discussed. Here the amount allowed as attorney’s fees -is treated as part of the property in existence at the time of the divorce and is governed by our holding that there was not an abuse of discretion on the part of the court in its division of the parties’ property.

Finally, we overrule the point of error complaining because statements made in the letter of the court to the attorneys before the judgment was rendered and signed fail to conform to the judgment in the case, and the contention that error occurred in that counsel for the husband was not afforded opportunity for hearing because of the non-conformity. For the purposes of appellate court consideration, the letter of the court, though included in the record, is nevertheless a nullity and is to be totally disregarded. This Court has previously committed itself on this question. Te-jas Trail Property Owners Association v. Holt, 516 S.W.2d 441 (Tex.Civ.App., Fort Worth, 1974, no writ hist.). We know of no authority to the contrary. Since we must disregard the letter on appeal, we must likewise disregard the fact that there was no opportunity afforded the complainant to be heard before the judgment was rendered and signed.

The judgment is reformed by a qualification of certain language of the judgment by an addition of additional provision, to-wit: the provision thereof which presently reads, “In further settlement of the rights of Petitioner in the community and separate property of the parties, the Court finds that Petitioner is entitled to have and recover judgment against Respondent in the sum of $400.00 monthly for the remainder of her lifetime or until such time as she may remarry” is by this Court qualified by addition of the following: “The aforesaid monthly payment is ordered to be paid by Respondent Douglas Geddes Benedict to Petitioner Sammy Jane Benedict from the income of the existing trust estate of which said Respondent is beneficiary, and of which on October 9, 1975, the trustee was Mrs. Mary Graham, formerly Mrs. Robert L. Graham, as it is received."

As so reformed the judgment of the trial court is affirmed. All costs of the appeal are taxed against appellant, who was respondent/defendant below.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    Joe SIMPKINS et al., Appellants, v. CITY OF DALLAS, Appellee.
    No. 5583.
    Court of Civil Appeals of Texas, Waco.
    Oct. 7, 1976.
    Rehearing Denied Nov. 4, 1976.

      H. Louis Nichols, Saner, Jack, Sallinger & Nichols, Dallas, for appellants.
    N. Alex Bickley, Carroll R. Graham, and Mary Leigh Bartlett, Dallas, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by Simpkins, et al., property owners, from judgment of the trial court in a condemnation case.

City of Dallas brought this condemnation action to acquire 1948.6 acres of land owned by Simpkins, et al., situated in the flood plain of the Trinity River in the City of Dallas, for a sanitary fill site. The landowners appealed from the Commissioners’ award, and the case was tried to a jury. The jury fixed the value of the land condemned at $2,046,030. ($1050. per acre) as of September 10,1974, and the trial court rendered judgment accordingly. Damages to the remainder was not involved.

The property owners appeal on 9 points:

Points 1 thru 6 complain of the trial courts sustaining objections to comparable sales offered by defendant’s witness Addison, in support of his opinion testimony as to the value of the property being condemned.

Points 7, 8 and 9 complain the verdict and judgment are contrary to the great weight and preponderance of the evidence; and award inadequate damages.

The 1948.6 acres condemned is located in the southeast portion of Dallas County, east of South Central Expressway and south of Loop 12. The entire tract is located in the flood plain of the Trinity River, and before the property can be developed it will have to be protected from flooding. This can only be done by construction of a levee around all sides of the property at a cost of approximately $4,354,000. This would only protect some 735 acres of the property taking into account area lost to sumps, the levee, and land outside the levee. The cost of this is $4500. per acre enclosed by the levee.

The evidence as to the highest and best use of the 1948.6 acres was disputed. Six witnesses for the landowners testified the highest and best use of the property which could be leveed was for industrial development; while four witnesses for the City testified the highest and best use of the property was for agricultural or recreational uses.

The three expert value expert witnesses for the landowners testified the value of the land taken as follows: Cook: $3,500. per acre ($6,820,100. total); Addison: $2,850. per acre ($5,553,500. total); Sherman: $3,000. per acre ($5,845,800. total).

The City’s three expert witnesses testified the market value of the land to be $1000. per acre ($1,948,600. total).

The jury awarded $1050. per acre ($2,046,030. total).

Appellants’ 1st point asserts the trial court erred in sustaining objection to the Burtis to Development Investors sale of November 6, 1973 offered by the witness Addison in support of his opinion testimony the property taken to be worth $2,850. per acre. This sale consisted of 226.593 acres, for $3,300. per acre.

There was evidence the sale had fallen through and the tract had been reconveyed to the seller; and further the tract was located in the City of Grand Prairie approximately 14 miles from the land being condemned.

Objection to the evidence was on the ground of remoteness in distance from the condemned property, and the fact the sale had fallen through.

Appellants’ 2nd point asserts the trial court erred in sustaining objection to the Isaminger to Riverlake Properties sale of May 1972, offered by the witness Addison in support of his opinion testimony. This sale consisted of 261.53 acres located ½ mile from the land being condemned, and was for $2,500. per acre.

The property was improved and had buildings on it.

Objection to this evidence was on the ground the property was improved property.

Appellants’ 3rd point asserts the trial court erred in sustaining objection to the Percy to Farina sale of November 1973, offered by Addison in support of his opinion testimony. This sale consisted of 291.42 acres for $10,000. per acre.

There was evidence the property was 17 to 18 miles from the condemned property, and that the tract was split by new Interstate Highway 635.

Objection to this evidence was on the ground the property was too remote in distance from the condemned property, and was not comparable since it was split by IH 635.

Appellants’ 4th point asserts the trial court erred in sustaining objection to the Miller to Farina sale of May 1972, offered by the witness Addison in support of his opinion testimony. This sale consisted of 148.42 acres, for $10,000. per acre.

There was testimony that a part of the property was not in the flood plain, and the witness Addison said it was necessary for him to make “adjustments”; and the property is located 16, 17, or 18 miles from the property condemned.

Objection to the evidence was on the ground the property was too remote in distance from the condemned property.

Appellants’ 5th point asserts the trial court erred in sustaining objection to the General Mills to Jorde and Ellis sale of March 1971, offered by the witness Addison in support of his opinion testimony. This sale consisted of 361.2 acres, for $2,341.22 per acre.

There was testimony that it was 17 to 18 miles from the property condemned.

Objection to the evidence was on the ground the property was too remote in distance from the condemned property.

Appellants’ 6th point reasserts the trial court erred in sustaining objections to the foregoing five sales.

The trial court did not err in sustaining objection to the Burtis to Development Investors sale, because such sale had fallen through (Point 1); and did not err in sustaining objection to the Isaminger to Riverlake Properties sale because the property involved was improved property with buildings on it; (Point 2).

The Burtis to Development Investors sale (Point 1), the Percy to Farina sale (Point 3), the Miller to Farina sale (Point 4), and the General Mills to Jorde and Ellis sale (Point 5), were located 14 miles, 18 miles, 16/18 miles and 17/18 miles from the condemned property; and the Miller to Farina sale (Point 4) was partially not in the flood plain, which required an “adjustment” to be made by the witness.

The question of the degree of similarity, the size, the distance and use factors in comparable sales in condemnation cases cannot be determined by any inflexible, hard and fast general rules, and must rest in the discretion of the trial judge. Thompson v. State, CCA, NWH, 319 S.W.2d 368; Ford v. State, CCA, NWH, 432 S.W.2d 720; Urban Renewal Agency of the City of Austin v. Georgetown Savings & Loan Assn. CCA, NRE, 509 S.W.2d 419.

Each case must be judged on its own facts, and from the record before us we cannot say the trial court abused its discretion.

And the Miller to Farina sale (Point 4), was admittedly not a sale of comparable property, and extensive “adjustment” was done by the witness Addison to make it fit into his opinion of value. City of Garland v. Joyce, CCA, NRE, 462 S.W.2d 86.

Further if the trial court could be said to have erred in excluding any of the sales, such error was harmless under Rule 434 TRCP. The trial court admitted all sales testified to by appellants’ witnesses Cook and Sherman, and admitted 6 of the witness Addison’s sales including the City of University Park to Griffin sale which was for $13,451. per acre and is closer to the condemned property than the two Farina sales which were excluded.

Appellants’ 7th, 8th and 9th points complain the judgment against the great weight and preponderance of the evidence, and that it was inadequate.

The verdict is higher than the value testified to by any of the City’s witnesses, (and lower than testified to by any of appellants’ witnesses). The $1050. per acre for the 1948.6 acres totalling $2,046,030. when only some 735 were usable, and these only after $4,354,000. should be spent for a levee, is not against the great weight and preponderance of the evidence or inadequate.

Moreover, this case is before us on a partial statement of facts. The record reflects that some 23 exhibits were admitted into evidence which have not been brought forward by appellants. In the absence of a complete statement of facts (which is appellants’ burden and duty to bring forward), it must be presumed on appeal that the evidence supports the verdict and judgment of the trial court. Baker v. Rutherford Waco, Tex.Civ.App., NRE, 293 S.W.2d 669; Englander v. Kennedy, Tex., 428 S.W.2d 806; Levitz Furniture Co. v. State of Texas, Waco, Tex.Civ.App., NRE, 471 S.W.2d 452.

All appellants’ points are overruled.

AFFIRMED.


author: CLAUDE WILLIAMS, Chief Justice.

text:
    TM PRODUCTIONS, INC., Appellant, v. Frank M. NICHOLS, III, Appellee.
    No. 19009.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 7, 1976.

      Tom Thomas, Kolodey & Thomas, Dallas, for appellant.
    A. Don Crowder, David H. Cain, Crowder, Mattox & Morris, Dallas, for appellee.
   CLAUDE WILLIAMS, Chief Justice.

Frank M. Nichols, III, recovered a judgment in the district court, based upon a jury-verdict, against TM Productions, Inc. in his action to recover compensation for commissions alleged to be due him under his employment contract. TM Productions, Inc. appeals from this judgment and in its sole point of error contends that the court erred as a matter of law in granting appellee judgment for $9,200 based on the jury’s answer to special issue number one because the proper construction of the written contract between the parties, under the uncon-troverted evidence, would limit appellee’s recovery to the sum of $1,408.55, the amount of commissions due him on the date of verdict. We hold that the trial court erred in rendering judgment on the verdict in the sum of $9,200 because there is no evidence to support it and we reverse the judgment of the trial court and render judgment for appellee Frank M. Nichols, III, against appellant TM Productions, Inc. in the sum of $1,408.55.

Nichols entered into a written contract with TM Productions, Inc. on September 21, 1973, in which Nichols was employed as a salesman in the business of supplying various productions services to radio stations across the country, such as radio station jingles, identification jingles, singing of call letters, and generally supplying tape recordings to be played on automated computer systems which replace manual operation of a radio station. Under this contract, Nichols was to be paid fifteen percent sales commissions on all products and services which he sold.

One type of contract called “The Producer” is a service containing production music in commercials that radio stations can use to underscore copy of a client or to produce a commercial which the station will sell to its local client. It is a format used by radio stations to increase advertising revenue and is sold to a radio station for a period of three years with payments being made to TM Productions on a monthly basis over thirty-six months. It constituted approximately ninety-five percent of Nichols’ sales. When the sale was finalized, TM Productions gave Nichols credit in a special bookkeeping account for amounts representing the first twelve months of the thirty-six month contract with the credit subsequently being posted for the remainder of the contract at the beginning of each following year. All amounts due Nichols were actually paid on a quarterly basis. Twenty-five percent of the first year’s fifteen-percent commission was held in reserve by TM Productions in case of cancellation, or the like, but would finally be credited to Nichols upon completion of the contract. Nichols was given advances in the form of a draw against future commissions, including a travel allowance or draw. Nichols was notified on July 3, 1974, by telephone that he had been terminated effective June 30, 1974. In the ten-month period Nichols was employed by TM Productions, his advances totaled $17,241.60 and his total gross sales were estimated to be $200,000. To the best of Nichols’ knowledge, no contract ever sold by him was canceled, defaulted or turned over to an attorney for collection.

It is undisputed by the parties that TM Productions owed Nichols at the time of trial a minimum of $1,408.55 which represents accrued commissions. However, Nichols argues that the contract states that upon his termination his account would be settled and he would be paid all commissions upon contracts which he sold and which had been billed and delivered to the purchaser. TM Productions argues that it is not obligated to pay future commissions until the amounts are actually received by it from the purchaser. TM Productions stipulates that it will pay Nichols the commissions when the payments are received from the purchasers.

Upon this disagreement, Nichols filed suit against TM Productions and alleged in his pleadings that the sums owed him were at least $9,500. He alleged a breach of contract on the part of TM Productions and sought an accounting in order to know what amounts were definitely owed him. Neither party pleaded that the contract was ambiguous and in fact in oral argument before this court both parties agreed that they considered the contract definitely to be clear and unambiguous.

At the conclusion of the evidence the trial court submitted the following special issue.

Special Issue No. 1: What sum of money, if any, if paid now in cash, would reasonably compensate plaintiff, Frank M. Nichols, III, for money due him under the contract?
Answer in dollars and cents, if any, or none.
Answer: $9,200.

TM Productions moved the court to render the judgment non obstante veredicto for $1,408.55 in favor of Nichols because there were no proper pleadings and no evidence submitted to the jury upon which the findings on special issue number one could be supported. The trial court entered judgment for appellee Nichols on the jury’s verdict awarding Nichols the sum of $9,200.

Since TM Productions has not filed a motion for new trial, we are confined in our review to determine whether the trial court erroneously denied its motion for judgment non obstante veredicto. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887, 890 (1960). Tex.R.Civ.P. 301 provides that a motion for judgment non obstante veredicto may be rendered by the court if a directed verdict would have been proper. Consequently, the trial court is authorized to render judgment non obstante veredicto only when there is no evidence warranting a submission of an issue to the jury. Alamo Ambulance Service, Inc. v. Moulton, 402 S.W.2d 200, 202 (Tex.Civ.App.—San Antonio 1966), affirmed, 414 S.W.2d 444 (Tex. 1967). Implicit in this rule is the fact that it is only when the issue is material that the judgment must conform to the findings. Teas v. Republic National Bank, 460 S.W.2d 233 (Tex.Civ.App.—Dallas 1970, writ ref’d n. r. e.); Massie v. Hutcheson, 270 S.W. 544 (Tex.Comm’n App.1925, jdgmt. adopted). An attack on the overruling of a motion for judgment non obstante veredicto constitutes a “no evidence” point as opposed to a point challenging the sufficiency of the evidence. Shelton v. Ector, 364 S.W .2d 425, 428 (Tex.Civ.App.—Dallas 1963, no writ). A “no evidence” point presents a question of law, and the appellate court must review the evidence most favorably in support of the findings to determine if a judgment non obstante veredicto is proper. Muro v. Houston Fire & Casualty Insurance Co., 329 S.W.2d 326, 328 (Tex.Civ.App.—San Antonio 1959, writ ref’d n. r. e.). However, the rule providing that the court may render judgment non obstante veredicto if a directed verdict would have been proper, does not mean literally “no evidence at all” but comprehends those situations in which the evidence is deemed to be legally insufficient to establish an asserted proposition of fact. Kirkpatrick v. Raggio, 319 S.W.2d 362, 366 (Tex.Civ.App.—Fort Worth 1958, writ ref’d n. r. e.).

In the light of these well-established rules, we must determine if there is any evidence of probative force upon which the jury could have based its findings on special issue number one. The primary evidence is the contract between the parties. Both parties agree that the written contract is a complete and unambiguous integration of their agreement. Of course, the question of whether a contract is ambiguous is one of law and not of fact. We have concluded, as a matter of law, that the contract is, indeed unambiguous. Being unambiguous it would be inappropriate to permit parol evidence to support a construction of the agreement. As pointed out by Justice Guittard of this Court, in Don Drum Real Estate Co. v. Hudson, 465 S.W.2d 409 (Tex.Civ.App.—Dallas 1971, no writ), there is a distinction between “interpretation” and “construction” although these words are often used interchangeably. As stated in the opinion, “interpretation” of a contract is the process of determining the meaning of the language, whereas “construction” is the determination of the legal effects of the contract. Proof of extrinsic expression of the party’s intention is proper for the interpretation of the language where the meaning is uncertain, but not for determining the contract’s legal effect, except insofar as such determination requires interpretation of the language used. In this case, we have an unambiguous contract, but the parties differ as to the meaning of the terminology utilized in the contract relating to the time to pay all accrued and future commissions. Appellee did not offer to introduce parol evidence to explain the provisions of the contract or his intentions when entering into the contract. Thus, we must look to the terms and provisions of the contract itself to determine whether appellant was obligated to pay all accrued and future commissions to the ap-pellee upon termination of employment. The disagreement between the parties over the meaning of the contract revolves around the definition of two essential words.

One provision of the contract requires that within thirty days of the date the product is delivered and billed, TM Productions will credit Nichols’ account for the first year’s commission less a twenty-five percent reserve. Nichols argues this word means a vested right in all commissions.

Another provision of the contract requires that in the event Nichols’ employment is terminated by TM Productions, his account will be settled to the date of his termination. Nichols argues this provision to mean that all vested commissions will be paid notwithstanding the fact that the purchase price has not been received by TM Productions.

A presumption exists that every provision of a contract was included for a particular purpose. Jones v. Dumas Development Co., 229 S.W.2d 936, 939 (Tex.Civ.App.—Amarillo 1950, writ ref’d n. r. e.). A court must presume that the parties intended every word to have meaning, effect and purpose unless it is plainly repugnant to the meaning of the overall contract. Masterson v. Gulf Oil Corp., 301 S.W.2d 486, 488 (Tex. Civ.App.—Galveston 1957, writ ref’d n. r. e.). In absence of evidence to the contrary, words and phrases in a written contract will be accorded the ordinary, popular, and commonly-accepted meaning. Magnolia Warehouse & Storage Co. v. Davis & Blackwell, 108 Tex. 422, 195 S.W. 184, 186 (1917); and Pan American Insurance Co. v. Cooper Butane Co., 157 Tex. 102, 300 S.W.2d 651, 654-55 (1957).

In order to ascertain the commonly-accepted meaning of the two essential words, we must look to the dictionary. Webster’s New International Dictionary of the English Language 621 (2d ed. 1941) defines the word “credit” within the bookkeeping context as follows:

To enter upon the credit side of an account; to give credit for; to place to the credit of.

At 2293, it further defines the word “settle” as follows: In order to interpret this contract we must look to the entire contract to establish the meaning of individual provisions and the intent of the parties. Portland Gasoline Co. v. Superior Marketing Co., 150 Tex. 533, 243 S.W.2d 823, 824-25 (1951). When the contract refers to “crediting” Nichols’ account, it addresses the bookkeeping function that includes posting Nichols’ account for the amount due that year only. Although this amount may be vested, any amounts derived from the second and third year of the contract would not vest until credited. When the contract refers to “settling” the bookkeeping account as of the date of Nichols’ termination, it means only that the amounts credited to the account at that date will be paid and that Nichols will be advised of TM Productions’ computations concerning what future amounts will be due him. It does not imply an accelerated payment of all commissions contrary to the contractual provisions providing for a credit to his account at the beginning of each year of the three-year contract and the final payment of the twenty-five percent reserve amount when the contract is totally fulfilled. Thus, the contract on its face provides no evidence with which to support the jury’s verdict. Since no other evidence is available, the jury’s verdict, is without support, and appellant’s no evidence contention must be sustained.

To determine, as something exposed to doubt or question, to free from uncertainty or wavering; to make sure, firm or constant; as to settle questions of law; to put beyond dispute; as, that settles the question; also, to appoint definitely, as an event or date; as to settle a day for the meeting.
To close by payment, as accounts; to liquidate.

Accordingly, the trial court committed reversible error in entering judgment upon the verdict. We reverse the trial court’s judgment and render judgment in favor of Nichols and against TM Productions, Inc. in the sum of $1,408,55, with interest thereon at the rate of nine percent per annum from March 12,1976, being the date of the rendition of judgment by the trial court.

Reversed and rendered.

      . The Producer. 15% after delivery and billing. Within 30 days of the date the Producer is delivered and billed, TM will credit your account with the first year’s commission less a 25% reserve. At 12 month intervals thereafter TM will credit your account with the commission for the next 12 month period. This procedure will be in effect for the duration of the contract. You will receive the 25% reserve as part of the final credit when the contract is totally fulfilled.

      . In the event your employment is terminated by either party, your account will be settled to the date of your termination. At the time of termination, you agree to return to TM, postage paid, any and all equipment, demonstration tapes, and any other material of any type or nature supplied to you by TM. Title to any equipment or material furnished to you shall remain in TM, and you have no ownership interest in any of this material. Either party may terminate this agreement upon 14 days written notice.


text:
    Leroy HOWARD, Appellant, v. FRENCH-BROWN FLOORS CO., Appellee.
    No. 19006.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 7, 1976.

      Larry R. Boyd, Dallas, for appellant.
    Wayne A. Johnson, II, Dallas, for appel-lee.
   CLAUDE WILLIAMS, Chief Justice.

French-Brown Floors Company brought this action against Leroy Howard for breach of contract and in the alternative quantum meruit. Following a non jury trial, judgment was rendered against Howard in the amount of $664.15 together with attorney’s fees in the amount of $690. Findings of fact and conclusions of law were neither requested nor filed.

Howard bases his appeal upon the contentions that: (1) There was no contract between him and French-Brown; (2) the trial court erred in finding him liable for payment on the theory of quantum meruit; and (3) the trial court erred in assessing attorney’s fees against him. We find there was sufficient evidence to support the trial court’s judgment based on an express contract and that attorney’s fees were properly awarded under Tex.Rev.Civ.Stat.Ann. art. 2226 (Vernon Supp. 1975). Accordingly, we affirm the judgment of the trial court.

Appellant Howard entered into a contract with a contractor, J. Harvey Richey, for construction and subsequent purchase of a townhouse upon land owned by Richey. Thereafter, Howard, accompanied by another person, went to French-Brown’s place of business and selected custom design flooring and approved a floor design plan for the townhouse. It is disputed as to whether this person was Howard’s interior designer or Richey. After Howard approved the floor plan, he instructed the appellee French-Brown to prepare and forward the specifications to him. French-Brown forwarded these specifications on April 6,1972. Since the flooring was to be custom designed, French-Brown requested a down-payment of one-half of the purchase price. A check for the downpayment signed by Richey was forwarded to French-Brown on June 13, 1972. Installation was scheduled on July 15, 1972, but the floor was not installed until on or about March 30, 1973, because of delays in construction. During the interim, French-Brown conducted telephone conversations with both Howard and Richey. Richey directed French-Brown to begin installation of the flooring, but Howard specifically directed that the flooring not be installed since construction had been delayed and the flooring would be ruined. During the first conversation between French-Brown and Richey, he referred to the flooring as “Mr. Leroy Howard’s floor.” After an on-site inspection by Mrs. Brown, the corporate secretary of French-Brown, she decided that the installation of flooring should be delayed.

Sometime in January 1973, Howard became dissatisfied with the services provided by Richey and entered into an agreement to purchase the realty and townhouse thereon in its incomplete state if Richey would transfer good title by warranty deed and assure Howard that all subcontractors’ claims due and owing as of the date of closing would be paid. As a result of this agreement, the real estate transaction was closed in the latter part of January 1973. There is no evidence to show that French-Brown had actual notice of the fact that Howard did not own the property all of the time, and there is no evidence in the record to show any custom of the trade. After Howard closed the real estate transaction in February 1973, another contractor resumed construction of the townhouse. Subsequently, Howard personally contacted French-Brown and directed that the flooring be installed. The flooring was installed on or about March 30, 1973, and an invoice sent to Howard. Approximately three weeks later, Howard hand-delivered a letter to French-Brown stating that he was not liable for the amount in the invoice and that French-Brown should look only to Ri-chey for payment.

When an appellant appeals from a judgment rendered in a nonjury trial without requesting findings of fact and conclusions of law, we must assume that the trial court’s findings are all in support of its judgment, and the judgment must be affirmed if there is evidence of probative force to support it upon any theory authorized by law. Seaman v. Seaman, 425 S.W.2d 339, 341 (Tex.1968); and City of Abilene v. Meek, 311 S.W.2d 654, 656 (Tex. Civ.App.-Eastland 1958, writ ref’d).

Appellant Howard argues that he was not a party to the contract and that appellee entered into an agreement with Richey, the contractor, only. The evidence shows that Howard personally selected the flooring at French-Brown’s place of business and directed that the specifications be sent to him. Also, Howard personally approved the floor design plan prepared by French-Brown. According to Mrs. Brown, Richey was not even present during Howard’s visit at French-Brown’s place of business. It was upon the direction of Howard that French-Brown refrained from installing the flooring. Moreover, after Richey had been discharged and the new contractor hired, Howard personally directed the flooring to be installed. The only dealings between French-Brown and Richey were that Richey sent the downpayment to French-Brown and further directed the floor to be installed in contradiction to the orders of Howard. However, this fact is overshadowed by the fact that Howard had been dealing with French-Brown in this matter before French-Brown was even aware that Richey was involved as the contractor. Although Howard testified that he did not intend to personally contract with French-Brown, the trial court is not required to believe his controverted testimony. Testimony by an interested witness presents an issue to be determined by the trial court. Owne Development Co. v. Calvert, 157 Tex. 212, 302 S.W.2d 640, 642 (1957). In a nonju-ry trial, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Burk v. Mata, 529 S.W.2d 591, 594 (Tex.Civ.App.— San Antonio 1975, writ ref’d n. r. e.). The testimony in this case constitutes sufficient evidence to support the trial court’s judgment based upon an express contract.

Appellant Howard argues that in absence of a contractual provision for recovery of attorney’s fees, a recovery can only be made pursuant to Tex.Rev.Civ.Stat. Ann. art. 2226 (Vernon Supp. 1975). New Amsterdam Casualty Co. v. Texas Industries, Inc., 414 S.W.2d 914 (Tex.1967). He argues that Tenneco Oil Co. v. Padre Drilling Co., 453 S.W.2d 814 (Tex.1970) prohibits recovery of attorney’s fees if the services by French-Brown were provided or materials were furnished to Richey and not appellant. We need not address this argument since we have held that the services and materials were furnished to appellant Howard under an .express contract. However, appellant also argues that this court in Alpert v. Jarrell Carpentry Co., 510 S.W.2d 136 (Tex. Civ.App.-Dallas 1974, no writ) has refused to allow attorney’s fees in an action.involving a product or general services. In Alpert, this court held that the suit was not for purely personal services or labor or materials furnished but was based primarily upon a contract for a product or for a general service. The holding was based upon the fact that all materials were furnished by the defendant, and the labor and services performed by the workmen were for the benefit of the plaintiff in order to provide a general service for the defendant. Moreover, a thirty percent contractor’s fee for profit provided by the contract was not a charge for “personal services” as defined in Tenneco. Those facts alone distinguish Alpert from the case at bar. In Tenneco, our supreme court held that a corporation would be entitled to attorney’s fees for “material furnished” under the statute. The majority of the court held a view that the corporation could not recover attorney’s fees on a claim for labor done or for personal services rendered by the corporation. However, Tex.Rev.Civ.Stat.Ann. art. 2226 (Vernon Supp. 1975) was amended in 1971 to include within its coverage corporations, partnerships, and other legal entities. This amendment has apparently given legislative sanction to the view expressed in the concurring opinion in Tenneco which would have allowed attorney’s fees for such a claim. Recently, attorney’s fees have been awarded on behalf of the corporation which provided goods, merchandise, materials, and services. Boysen v. Security Lumber Co., 531 S.W.2d 454 (Tex.Civ.App.-Houston [14th Dist.] 1975, no writ); and Ambox, Inc. v. Steward & Stevenson Services, Inc., 518 S.W.2d 428 (Tex.Civ.App.-Houston [14th Dist.] 1975, writ ref’d n. r. e.). We agree with these opinions and hold that the recovery by a corporation for attorney’s fees paid in collection claims for any services or materials furnished is authorized under the statute.

Finally, appellant Howard questions the reasonableness of the amount awarded to the appellee French-Brown for attorney’s fees on the basis that only the attorney representing appellee testified as to the value of his services. The record reveals that not only did appellee’s attorney testify from his own knowledge concerning the reasonableness of the attorney’s fees, but also Mrs. Brown testified that her firm had paid the attorneys the sum of $690 for their services. We hold that this evidence is sufficient to support the trial court’s award of attorney’s fees.

Finding no reversible error in this record, we affirm the judgment of the trial court.

Affirmed.


author: RAY, Justice.

text:
    In the Matter of the MARRIAGE OF Charles E. LONG and Kathy Long, and In the Interest of a child.
    No. 8374.
    Court of Civil Appeals of Texas, Texarkana.
    Oct. 12, 1976.

      Frank Elder, III, Kilgore, for appellant.
    Otto Ritter, Longview, for appellee.
   RAY, Justice.

This is a domestic relations case. Charles E. Long and Kathy Long, husband and wife, both petitioned the Domestic Relations Court of Gregg County to grant them a divorce. The cause was tried to the Court without the aid of a jury, and the trial court granted appellee, Charles E. Long, a divorce from Kathy Long. Appellant, Kathy Long, was appointed managing conservator of the couple’s only child, and appel-lee was appointed the possessory conservator.

Kathy Long appeals from those parts of the judgment awarding her alimony; dividing the estate of the parties; obligating persons not standing in loco parentis to the minor child to pay child support; and awarding her inadequate attorney’s fees. Eight points of error are presented for our consideration.

That portion of the judgment complained of as alimony is as follows:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Charles E. Long pay to Respondent, Kathy Long, the sum of $200.00 per month, starting the 24th day of September, 1975, and thereafter, a like payment on the same day of each month for a total of eighty-four (84) months, or until the said Kathy Long remarries.”

In Francis v. Francis, 412 S.W.2d 29 (Tex. 1967), it was stated:

“The statutes and public policy of this State do not sanction alimony for the wife after a judgment of divorce has been entered. See McElreath v. McElreath, 162 Tex. 190, 345 S.W.2d 722, 747 (1961); Cunningham v. Cunningham, 120 Tex. 491, 40 S.W.2d 46, 75 A.L.R. 1305 (1931); Art. 2328b-l, Sec. 2(6); Art. 2328b-3, Sec. 7. In this State as in other states, alimony is an allowance for support and sustenance of the wife, periodic or in gross, which a court orders a husband to pay; but in this State, unlike in other states, such support payments may be ordered only ‘until a final decree shall be made in the case.’ Art. 4637; Cunningham v. Cunningham, supra. Support payments ordered to be made after divorce from the income from the husband’s property, although considered alimony in many jurisdictions, is not considered alimony in this State. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923); Keton v. Clark, 67 S.W.2d 437 (Tex.Civ. App.—Waco 1933, writ refused). When its true meaning is distilled from the statutes and the court decisions of this State, alimony which contravenes the public policy of the State is only those payments imposed by a court order or decree on the husband as a personal obligation for support and sustenance of the wife after a final decree of divorce.”

It is clear from the quoted language of the divorce decree in this case that the eighty-four (84) monthly payments were a personal obligation imposed upon the husband by court order for the support and sustenance of the wife after a final decree of divorce. As such, those payments constitute alimony which contravenes the public policy of this state.

The trial court could have ordered a division of property that included sums to be paid after the divorce from the income from the husband’s separate property. Francis v. Francis, supra.

“For the purpose of doing equity, the court may award all the personal property to either spouse and may subject the income, rents or revenues of all real estate, belonging to either or both of the spouses, to the support of either or both of them, or to the education and support of the children.” Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (Tex.1923).

In 1954, H. L. Long and Bettye Virginia Long, parents of Charles E. Long, established an irrevocable trust consisting of oil and gas producing property naming their four children as beneficiaries, share and share alike. Under the terms of the trust, one-half of the corpus then in the trust for a child would be distributed upon the beneficiary attaining the age twenty-five, and the trust would terminate upon the distribution of the remaining one-half at age thirty. By 1961 the trust had discharged all indebtedness against the properties and was operating at a profit. From the period of January 1, 1961, to June 30, 1969, the trust had accumulated approximately $25,000.00 net income for each of the four beneficiaries. Charles attained age twenty-five on August 14, 1974, and was entitled to one-half of his share of the trust corpus. Suit for divorce was filed in April of 1975 and granted on October 7, 1975.

On June 26, 1969, Charles E. Long, then age twenty, and having completed two years at Kilgore College, married Kathy Johnson, age seventeen, who had completed ten years of formal education. Both Kathy and Charles worked at unskilled or semiskilled jobs until they separated in June 1974. At the time of trial, Charles had been working as a reservation agent for an airline earning $850.00 per month (take-home pay of approximately $625.00) for one year. Prior to that he had been employed as a roustabout for Rusk County Well Service, a company owned by his mother, and operated a gymnasium owned by the trust. Kathy, on the other hand, at time of trial was enrolled in a vocational rehabilitation program working 40 hours per week, earning $300.00 per month, and attending school to earn her high school equivalency diploma. Prior to that time, she had worked at various jobs including waitress, assembly line worker, and cashier in a retail store.

It is undisputed that the parties, for all practical purposes, never accumulated any community property.

The trustees were parties to this suit and were ordered by the trial court to pay $200.00 per month for the support of the minor child of the parties.

The Charles E. Long Trust will terminate August 14, 1979, at a time when Barbara Ann Long will be age seven.

Sometime after Charles attained the age of twenty-five, he orally stated his intent to allow the trustees of the Charles E. Long Trust to continue to manage his one-half share which the trustees were under an obligation to distribute within a reasonable time after August 14, 1974.

Kathy Long complains of the division of the estate of the parties. The rule in such attacks is that Texas Divorce Courts are given wide discretion in making a division of the estate of the parties; equal division is not required; upon appeal it is presumed that the trial court exercised its discretion properly, and the cause will be reversed only where there is a clear abuse of discretion. Hedtke v. Hedtke, supra; Bell v. Bell, 513 S.W.2d 20 (Tex.1974); Wilkerson v. Wilkerson, 515 S.W.2d 52 (Tex. Civ.App. Tyler 1974, no writ); Looney v. Looney, 541 S.W.2d 877, 1 Tex.Ct.Rpts. 713 (Tex.Civ.App. Beaumont 1976, no writ). In the exercise of its discretion, the trial court may consider, among other things, the age and physical condition of the parties, their relative need for future support, fault in breaking up the marriage, benefits the innocent spouse would have received from a continuation of the marriage, the size of the estate, and the relative abilities of the parties. Wilkerson v. Wilkerson, supra; Benedict v. Benedict, 542 S.W.2d 692, 1 Tex.Ct. Rpts. 770 (Tex.Civ.App. Fort Worth 1976, no writ).

Appellant’s first, second, third and fifth points of error assert that the trial court abused its discretion in dividing the estate of the parties. The trial court had only separate personal property (not considering, for the moment, the character of trust income) with which to work. By the appellant’s own calculations she owned no real or personal property, except for her personal effects, and no community property (again, not considering trust income). The appellant estimates that she was awarded approximately 20% of the appellee’s separate personal estate. She believes this to be an inadequate and unequal division. The appellant argues this division to be partially the result of a mistakenly characterized debt of $35,704.42 by the appellee which appellee asserts as a community debt evidenced by promissory notes some of which are payable to his trust. Kathy contends that the natural consequence of this characterization was to reduce the amount of the appellee’s separate estate awarded to her. The evidence shows that $11,560.28 of the $35,704.42 was spent by the husband for 1974 income taxes ($8,000.00) and $3,560.28 for his 1975 living expenses. Both the husband and the trustees conceded the balance was spent for the support of the family during the marriage.

The statute empowering the courts to effect a property division is Section 3.63 of the Texas Family Code which provides the following:

“In a decree of divorce or annulment the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.”

This statute, and its predecessor, Article 4638, Texas Revised Civil Statutes, have been interpreted to include all the separate personal property of either spouse within the meaning of “estate of the parties” and therefore such property is susceptible to division. Hedtke v. Hedtke, supra; Cooper v. Cooper, 513 S.W.2d 229 (Tex.Civ. App. Houston-1st Dist. 1974, no writ).

Charles E. Long had a present pos-sessory interest in the trust at the time of trial. The trust had terminated as to one-half of the corpus of the trust. Charles was entitled to that one-half of the corpus and the income that had accumulated on that portion of the corpus following his having reached age twenty-five. The one-half of the corpus was his separate property but was appropriate for consideration by the trial court in dividing the estate of the parties. The accumulated income from his one-half of the corpus after reaching age twenty-five was community property and was also subject to division by the court. However, the trial court was not required to set aside any certain percentage of the property for either spouse. The appellant has failed to demonstrate that her receipt of but 20% of the appellee’s separate personal estate was an abuse of discretion.

It is not clear that the sums “borrowed” will actually be repaid but rather they may have come by way of advancement from the appellee’s interest in his one-half of the corpus and/or the trust. On August 14,1969, Charles became 21 years of age. The trust provided in Sec. 11(b) that:

“Upon the attainment of the age of twenty-one (21) years by Charles Edward Long, the Trustees may pay to him, at such intervals as they may determine during the continuance of the TRUST, so much of the net income of the TRUST ESTATE as the Trustees, in their absolute and sole discretion, may deem proper and appropriate and determine to distribute unto the said Charles Edward Long. It is our wish that the Trustees distribute sufficient income unto Charles Edward Long which, when added to the income available to him from other sources, will adequately provide for his support and maintenance in accordance with his station in life. . . .”

It was after this time that the first in a series of notes was executed by Charles. The first note was dated March 31, 1970, in the sum of $985.00 which was money sent to Charles and his wife when they temporarily lived in California. The other notes which totaled the sum of $35,704.42 (including the March 31,1970, note) were executed on and after January 1, 1975, when Charles was already age twenty-five. The husband (the same being true for the wife) is obligated to furnish support for community living, and if no community funds are available he must utilize his separate funds. Separate funds spent for community living are deemed a gift to the community for its well-being and use. Texas Family Code, Sec. 4.02 (1973); Norris v. Vaughan, 152 Tex. 491, 260 S.W.2d 676 (1953). The evidence shows that on September 24, 1975, the date of the trial, he controlled in his own right separate personal property in the form of liquid assets of at least $85,000.00. The court found that the promissory notes in the sum of $35,704.42 were nearly all executed by Charles after the parties separated on June 15, 1974. Cash on Deposit as of August 31, 1974, was $50,889.71. On August 14, 1974, when Charles reached the age of twenty-five, he was entitled to the cash on deposit from the one-half of the corpus of the trust which was then $50,-889.71.

The appellant argues that the “debt” characterization led to an inequitable property division. This is perhaps logical, but not clearly demonstrated. The court was required to take all relevant property interests into consideration in reaching an equitable division of the estate of the parties. Gillis v. Gillis, 435 S.W.2d 171 (Tex.Civ.App. Fort Worth 1968, writ dism’d); Bell v. Bell, supra. The court’s characterization of separate funds applied to support the community as a community debt rather than an advancement might have precluded an accurate consideration of all relevant property interests. On retrial the court will need to clearly determine whether the notes constituted community debts or advancements. If the notes were community debts the court may in dividing the estate of the parties order the community funds to be applied to the payment of the debts as far as the funds will go and order the remainder paid out of the husband’s separate funds. If the notes represent advancements made by the trustees out of the trust funds pursuant to Sec. 11(b) of the trust or out of the one-half of the trust to which Charles was entitled, then the court need not take the notes into consideration in dividing the estate of the parties.

The appellant’s fourth point of error complains of the trial court’s failure to find that one-half of the interest, dividends, rentals of equipment, and cattle sales earned by the Charles E. Long Trust during the marriage and subject to non-discretionary distribution by the trustees was community income. Conclusions of law five and six specifically deny the community estate of the parties any interest in the trust.

Income received by a married beneficiary on the trust corpus to which the beneficiary is entitled has been held to be community property, Mercantile Bank at Dallas v. Wilson, 279 S.W.2d 650, 654 (Tex. Civ.App. Dallas 1955, writ ref’d n.r.e.), and has been taxed accordingly. McFaddin v. Commissioner of Internal Revenue, 148 F.2d 570 (5th Cir. 1945).

Trust income which a married beneficiary does not receive, and to which he has no claim other than an expectancy interest in the corpus, has been held not to be community property. Currie v. Currie, 518 S.W.2d 386 (Tex.Civ.App. San Antonio 1974, writ dism’d).

The appellee contends that Currie is directly on point; the appellant contends that the Mercantile Bank case controls. The dispute is based upon the significance of the appellee’s election not to seek a distribution of his one-half of the trust when he reached age twenty-five. By the terms of the trust, the income was to be accumulated until the beneficiary (appellee) reached age twenty-one. At that time, income was distributable solely at the discretion of the trustees. When the beneficiary reached age twenty-five the trust dictates that the trustees deliver and distribute unto the beneficiary one-half of the assets and property comprising the corpus of the trust. At age thirty, the beneficiary is to receive the remaining one-half. The appellee reached age twenty-five at a time after separation but before suit for divorce had been filed. The appel-lee decided to leave his half interest in the trust though he was entitled to withdraw approximately $85,000.00 in liquid assets exclusive of interests in real property.

The appellant does not claim a community interest in the entire $85,000.00, nor does she deny that such portion of this sum attributable to the corpus acquired by gift is separate property of the appellee. Kathy does contend that some $10,853.83 is attributable not to the corpus but to the income from the corpus. Outlined in appellant’s brief is the income from interest, dividends, equipment rental and cattle sales which shows that from August 15, 1974, to July 31, 1975, there was accumulated $4,973.21. This is the only sum that we view to partially be community property from ' the sources named since the $4,973.21 represented income on the total Charles E. Long Trust. Only one-half of the $4,973.21 was subject to distribution to Charles since the other one-half of such sum still belonged to the trust. It thus appears that $2,486.60 could be classed as community income to Charles and Kathy.

Unlike the situation in Currie, supra, the beneficiary in the case before us was entitled to a present possessory interest in one-half of the trust corpus and the income from that one-half. In the Mercantile Bank case, supra, undistributed income was in the hands of the trustees but the beneficiary had a present possessory interest in the funds. As in the Mercantile Bank case, we conclude that the income on the trust corpus should have been labeled community property.

The appellee suggests that should this Court reach the conclusion that the income from trust corpus to which the beneficiary was entitled to present possession be de-elared community property though the corpus and the income be voluntarily left in the hands of the trustees, it still should not be deemed fatal to the judgment as a whole. This suggestion is made at least plausible by the fact that the appellant concedes that she has received an amount equivalent to a lump sum award of $13,-397.70, an amount greater than the community half interest she asserts to the trust income. As was the case with the trial court’s possible mischaracterization of the “community debt,” it is conceivable that the court’s possible mischaracterization of trust income was but harmless error, and that the judgment could still be construed not to be an abuse of discretion. These errors, however, go so deeply to the heart of the case that it is difficult to disregard them. The trial court failed to consider all of the relevant property interests of the estate of the parties. We therefore conclude that the ends of justice require a remand of this case for further consideration by the trial court.

Appellant complains of the trial court’s order obligating persons not standing in loco parentis to the minor child to pay child support. The trustees of the Charles E. Long Trust were ordered to pay to the appellant $200.00 per month for the benefit of the minor child, Barbara Ann Long. The appellant fears that this order would be unenforceable were the trustees to refuse to pay, or upon the termination of the trust scheduled for August 14, 1979, when appel-lee reaches age thirty and the child will be age seven.

The validity of this point hinges on the interpretation of Sec. 14.05(a) and (c) of the Texas Family Code. The Code provisions are as follows:

“(a) The court may order either or both parents to make periodic payments or a lump-sum payment, or both, for the support of the child until he is 18 years of age in the manner and to the persons specified by the court in the decree. .
(c) The court may order the trustees of a spend-thrift or other trust to make disbursements for the support of the child to the extent the trustees are required to make payments to a beneficiary who is required to make support payments under this section. If disbursement of the assets of the trust is discretionary in the trustees, the court may order payment for the benefit of the child from the income of the trust, but not from the principal.”

The appellant urges that because the appel-lee is not by the terms of the judgment required to make support payments in his individual capacity, that Sec. 14.05(c) does not apply. The trustees, suggests the appellant, are not “required to make payments to a beneficiary who is required to make support payments under this section.”

We are inclined to agree with the appellant. Section 4.02 of the Family Code states that each spouse has the duty to support his or her minor children, but Section 14.05(c) does not speak in terms of duty to support, but states that the trustees may be ordered to pay child support to the extent they are required to make payments to a beneficiary “who is required to make support payments under this section. [Sec. 14.-05].” We therefore conclude that the court must first order the trust beneficiary-parent to make the child support payment or payments, after which it may then order the trustees to make disbursement for the support of the child.

The judgment of the trial court is reversed and the case is remanded for a new trial.

       All references to articles are to Vernon’s Ann. Texas Civil Statutes.