TIREY, Justice.
This action is one for divorce, non-jury. The Court granted the husband a divorce and found that two minor children were born of the marriage and awarded the custody of the children to the mother and fixed support orders at $150.00 per month for each child; also fixed certain visitation rights for the plaintiff, providing in detail as to when and how these visitation privileges were to be carried out. The Court also found that the husband and wife had certain community properties and made division of the community properties between them, and further adjusted the values by placing a lien on certain of the properties awarded to the husband. The judgment contained certain recitations of findings of fact made by the trial court with reference to his division of the community property. There was no request for findings of fact and conclusions of law and none were filed.
The judgment is assailed on what plaintiff below designates as 4 points. They are to the effect that the Court erred: (1) "in attempting to partition in kind properties that it had not determined were capable of partition in kind."; (2) That it abused its discretion in that it made an unfair and unjust partition of the properties between the parties; (3) In finding that the plaintiff had dissipated and disposed of substantial portions of the property before and after the divorce suit was filed; (4) In finding that $300.00 should be paid as child support.
In paragraph 5 in the pleading on which plaintiff went to trial we find these allegations: "Plaintiff would further show that there is certain community property and there are a number of debts for which the greater portion of said property is liable, and the court should in fairness to both of said parties partition and divide the community property in accordance with the facts, law and indebtedness." And he prayed for a divorce "together with his proper proportion of the community property, and that the court award the care, custody and control of said minors as the court deems proper and necessary and to the best interest of said minors, * * *" and that plaintiff have such other and further relief, both general and special, in law and in equity to which he may be justly entitled.
Defendant went to trial on her first amended original answer. It contains a general denial and she asked for the care, custody and control of the children and for support, and she prayed for such relief, together with general and special relief in law or in equity. In the judgment we find this recital:
The court then awarded to Mrs. McCauley a tract of land in Dallas County which appears to be the homestead tract, together with all furniture and household goods, a 1959 model Oldsmobile, five U. S. Savings Bonds, maturity value $25.00 each, 100
Appellant has filed a supplemental brief in which he assigns points 5, 6, 7 and 8. They are substantially to the effect that the Court erred in awarding a money judgment against plaintiff, in that it ordered him to pay in cash the sum of $12,500.00 to defendant and to execute his note therefor, and because there is no pleading to support a money judgment against plaintiff.
We are of the view that each of appellant's points is answered adversely to him by virtue of the provisions of Article 4638, Vernon's Ann.Civ.Tex.St., and the pronouncements of our Supreme Court in the following cases: Ex parte Scott (Scott v. Scott, Scott v. Bond), 133 Tex. 1, 123 S.W.2d 306; Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299; McElreath v. McElreath, 162 Tex. 190, 345 S.W.2d 722; Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21; Wallace v. Briggs, 162 Tex. 485, 348 S.W.2d 523; Ex parte Prickett, 159 Tex. 302, 320 S.W.2d 1; Reardon v. Reardon, 163 Tex. 605, 359 S.W.2d 329. See also McBean v. McBean, Tex.Civ.App., 371 S.W.2d 930. Article 4638 aforesaid provides:
In construing this Article our Supreme Court, in Ex parte Scott, aforesaid, made the following pronouncement:
In Hailey v. Hailey, our Supreme Court reaffirmed the doctrine announced in the Scott case, supra, and in the opinion we find this statement:
Going back to appellant's pleadings on which he went to trial he specifically alleged that there was a community estate between him and his wife and he asked the court to make proper division of the property as between them, and this request made to the court by appellant was exactly what the court undertook to do as was his duty to do under the provisions of Article 4638, aforesaid, and under the decisions we have heretofore cited. Under the record here there was no separate property of either spouse. The court in its decree specifically stated: "* * * that a division of said community property and the payments of monies in the following described manner will be, under the evidence and the findings of the court herein, just, right and equitable." The court then proceeded to make the division between appellant and appellee in the manner we have heretofore stated. There was tendered in evidence a financial statement of plaintiff dated May 31, 1962, which showed total liabilities and net worth $90,654.54. In his financial statement as of January 25, 1963, it shows (as we understand it) a net worth of his property used in road construction work to be a total net of $15,592.50. He shows real estate, plus household furniture, and a boat and trailer $10,056.00, cash on hand $210.65, and accounts outstanding in the sum of $11,742.72. Testimony was further tendered to the effect that after the divorce suit was filed he transferred a Cadillac automobile for an inadequate consideration, and that he further transferred $17,650.00 worth of equipment to Jack Langford in satisfaction of an alleged debt. Other testimony was tendered with reference to the possession and disposition of substantial sums of money over a period of two (2) months and, in addition thereto, two days after the separation of the parties appellant withdrew $6000.00 from the bank account of the parties.
Our view of the record here is that the court's judgment in this cause shows that the court was making a partition of the whole of the community estate between the parties in a manner that he thought was just and right, and as the court was required to do by Article 4638, aforesaid. The next major question that presents itself is: Did the trial court abuse its discretion in a division of the property between the parties and in fixing the amount of the support orders for the two children ages 12 and 13 respectively? We have carefully considered the entire record in this cause and we cannot honestly and conscientiously say that under the record as a whole it shows that the trial court did abuse its discretion in either instance.
Appellant in his brief assails part of the decree as being void and unenforceable. The part complained of relates to the part in the decree that ordered plaintiff to pay off and discharge an indebtedness against the homestead awarded to the appellee as part of her share in the division of the community
Appellant says in effect that there is no provision in our statute, nor in our Constitution, nor in any of the provisions of the new rules, particularly rule 308, Texas Rules of Civil Procedure, that authorizes the court to enter such decree. We sustain this contention. In Wallace v. Briggs, supra, the Supreme Court, in point 2, made the following pronouncement:
It is our view that the last sentence of the opinion quoted sustains appellant's contention. See also Ex parte Prickett, supra.
Accordingly, that part of the decree which provides that appellant may be punished for contempt for his failure to execute and carry out the provisions of the decree is hereby stricken, and the decree is so modified and reformed.
We have carefully considered each of appellant's points in his original brief and his supplemental brief, and each is overruled, except as above stated.
The judgment is modified and reformed as hereinbefore stated, but in all other respects it is affirmed. All costs are taxed against appellant.
Modified and reformed in part, and in part affirmed.
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