COMMUNITY
THE
PROPERTY
CONCEPT OF TRACING
Luis C H A V E Z
45
OWNERSHIP
COMMUNITY PROPERTY
THE CONCEPT OF TRACING OWNERSHIP
The law of community property in Texas was derived
from the civil law of Spain."'"
This system of joint and
concurrent ownership of property between husband and wife
had its origin among Germanic tribes.
In
A.D. the
Romans invited the Visigoths to Spain, and as a consequence,
the practice of community ownership that existed among
them was introduced into Spain.
of laws developed inSpain.
Thereafter, a dual system
The Goths lived under Visigoth
law while the Hispano-Roman continued to live under Roman law.
However, with the passage of time and the merger of Visigoth
law and Hispano-Roman law, the community property system
prevailed.
Finally, in 1805 when the Novisima Recopilacion
was published, the basic principles of the community property
law were established,
These principles were the foundation
of the modern system of community property as came to be known
in the Spanish-possessions in North America and in our
2
community property states.
The general principle underlying the community property
system in Spain was the equality of the spouse.
Upon
marriage, the union between the husband and wife was treated
as a"partnership" between the spouses, with the husband as
managing partner.
That is, each spouse as partner shared
equally in the acquisitions of the "partnership" during
(1)
46
33
the marriage.
The authority to act for the community in
business matters was reposed in the husband.
Furthermore,
each spouse contributed his time and efforts and revenue from
his individual capital to the partnership.
Thus, each spouse
owned a present, vested, undivided interest in all the property
acquired by the community.
however, was recognized.
Individual ownership of property,
Each spouse was capable of owning
separate property, although the presumption was that the property
was held in common unless otherwise proved.
Separate property
could be established by proving that the property was acquired
before marriage, by gift or inheritance.
Also, it was
possible to establish separate ownership of property by
tracing separate property into its product.
The burden of
proof was on the spouse asserting individual ownership by showing
the property maintained its separate character during the mmarriage.
Otherwise, all property acquired during the marriage by labor
and efforts of either spouse became community property.^
When Texas joined the Union, it retained the principles
of the Spanish law of community property by constitutional
provision.
The idea of the marriage as a partnership and the
Spanish definition of separate and community property remained
the same.
The Texas Constitution states that all property
of the wife owned by her before marriage and that acquired
by her afterward by gift, devise or descent is her separate
L.
property.
This provision of the Constitution has been interpreted
to mean that anything outside of the constitutional definition
of the wife's separate property is community property.
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Such a
3
conclusion was reached by the Texas Supreme Court in
Arnold v. L e o n a r d , ^ wherein a statute, which sought to enlarge
the constitutional definition of separate property, was
declared unconstitutional.^
The Court in Arnold, by using the
rule of implied exclusion in interpreting the Constitution,
ruled that if property was acquired by gift, devise or descent
as set down by the Constitution, it was separate; if the method
of acquiring the property during marriage was otherwise, it
was community.^
Subsequent legislative enactments have
carried forth similar definitions of noncommunity and community
property.®
These definitions are now embodied in the Texas
Family Code, which contains the latest legislative
characterizations of marital property.
The Texas Family Code defines separate property as
that which was owned or acquired by the spouse before marriage,
that acquired by the spouse during marriage by gift, devise,
or descent and that recovered for personal injuries sustained
by the spouse during m a r r i a g e . ^
Examples of separate
property include mutations of sepatate property, 10 increases
in value of separate realty and personalty,11 and the profits
from the sale of natural gas produced from the spouse's separate
gas wells, if traced. 12
On the other hand, community property
13
includes proceeds of sale of crops grown on separate lands, J
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the rents and income of separate property,
arising out of employment.^
and retirement benefits
In addition to the definitions
dealing with separate and community property, the Texas Family
Code deals with the property rights and liabilities of the
1 f)
17
18
spouses,
property agreements ' and homestead rights.
m
33
These definitions and provisions dealing with the property
of the spouses remain the same as before except for some slight
changes.
Inception of Title
In determining whether property is separate or community
as described in the Texas Family Code, Texas courts have
applied either the inception of title rule or the concept of
tracing ownership.
Under the inception of title rule, which
also is applied in other community states.
in order to determine
whether property is separate or community, it is necessary
to determine the time of acquisition of the property.
That
is, "property takes its status at the time it is acquired,
and whether the property is separate or community, depends on
the existence or nonexistence of the marriage at the incipiency
of the right by virtue of which title is finally extended or
vested." 20 The application of the inception of title rule
21
was illustrated in McCurdy v. McCurdy.
The court
m
McCurdy held that where life insurance policies naming his
estate as beneficiary were issued to the husband before
marriage, the proceeds
of the polices belonged wholly to
22
the husband's estate.
The court also held that the community
estate was entitled to reimbursement based on the amount of
23
premiums paid from community funds during marriage.
J
it
should be noted that the McCurdy court rejected the argument
that the proceeds of the policies belonged to the separate estate
of the husband after his death, only in proportion
to the
2*4amount of premiums paid by him during marriage.
That is,
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the court rejected the pro tanto or apportionment method
used in some community property jurisdictions.
Under the
apportionment method, the proceeds would have been community
property to the extent that the premiums were paid by the
community.
The court reasoned that utilization of the inception
of title rule would be more conducive to uniformity and
certainty, and "it was the best method by which orthodox
26
principles could be applied."
The implication appeared to
be that the inception of title rule was a judicial rule of
convenience.
On the other hand, the inception of title rule
is not applied the same way in retirement and pension plans
as it is in life insurance cases.
In the retirement and pension
plans cases, a pro-rata ownership approach is taken depending
on the time and amount
27 of benefits accruing before marriage
and after marriage.
Also, under the rule, if the rights
PR
are acquired during marriage, the property is community.
In
the case of original entry upon land as a naked trespasser,
the marital status of the trespasser at the end of the period
of limitation is controlling.
If the period of limitation
ends during the marriage relation, the land is community property.
Moreover, the inception of title rule may be controlling in a
situation wherein a right is acquired by a domiciliary of a
foreign state before entry into Texas.
The characterization
of marital property under the laws of the foreign state may
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prevail.
Tracing
The other method of determining whether property is
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11
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separate of community is the concept of tracing ownership.
Tracing is the process for determining the character of mutations.
Stated in another way, it is the process of establishing that
property, whether separate or community has retained its
character during marriage though it has changed in form.
It is
also a process for identifying property as separate when mingled
with community property.
Ordinarily, however, if the separate
property is so intermingled with community property as to defy
segregation and to permit identification as separate property,
the entire mass becomes community property.
The process of
tracing is helpful, for example, in a divorce proceeding
wherein it can be used to show that separate property brought
into the marriage or acquired during marriage has retained its
separate character up to the time of the divorce.
The concept
of tracing is also utilized often where the heirs of a
deceased person bring suit against the decedent's wife to recover
the interest of the decedent in the community estate of the
decedent and his wife.
Unless the wife can overcome the
presumption of the community nature of the property and
establish its separate character by accurate tracing, the heirs
will prevail.
Thus, tracing is simply an evidentiary process
whereby a litigant attempts to prove that the property in
question does not belong to the community estate of the spouses,
but is separate property or belongs to one of two community
estates.
The decision ultimately will turn on whether enough
evidence has been presented to prove with certainty that the
property on hand at the time of dissolution of the marriage,
either by divorce or death, is separate property or the product
of separate funds brought to the marriage.
This concept of tracing ownership was recognized in
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Texas as early as 18$1.
Love v. Robertson,
decided in 1851
introduced the court-made rule of tracing.
In Love, the husband
used his separate money to buy two slaves.
He paid cash for
one slave and paid $300 cash out of a total purchase price
of $800 for the other.
The32remaining balance was subsequently
paid with community funds.
After the husband's death, his
wife contended that both slaves were community property.
The court in Love concluded that the former slave was separate
property because it was purchased with separate funds and that
the latter slave belonged partly to the separate estate of the
husband and partly to the community estate.
The decision of
the court, on whether or not the slaves acquired during marriage
were separate of community property, was based on the character
of the consideration given in exchange for the slaves.
That
is, the slaves were mutations of the separate money of the husband
and this change did not alter their status as separate property
since it was merely a change
in form.
By determining the character
of the mutations (tracing), the court was able to determine the
identity of the property for the purpose of dividing it.
The
conclusion reached by the Love court appears to have been different
from the conclusion that would have been reached under Spanish
law.
Under Spanish law, the husband would have been allowed
reimbursement from the community estate for the amount of his
seperate money used in buying the slaves.
However, ownership
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of the slaves would have been awarded to the community. ^
Stated
in another v/ay, under Spanish law, all property purchased during
33
marriage, whether separate funds or community funds were used,
was for the benefit of the community.
On dissolution of
the marriage, reimbursement of the separate funds expended
for the benefit of the community would be allowed.
did not adopt this.
Texas
In Love, the primary inquiry was whether
the slaves were community or separate property.
Reimbursement
as opposed to ownership of the property, was not considered
by the court.
As subsequent case law indicates, the importance of the
rule of tracing ownership to determine the identity of property
as separate or community cannot be over-emphasized, as separate
property often goes through many changes and mutations during
marriage.
Notwithstanding the importance of the rule,
however, there exists much variance and uncertainty in the law
of community property states as to the quantum of proof and
method of record-keeping required to successfully trace property
as separate in any given situation.
Commingling Separate and Community Property
Under the laws of community property states, there
exists a rebuttable presumption that property possesses by
either spouse during marriage, and on dissolution of marriage,
is community property.
The burden of proving that it is
the separate property of either spouse is on the party
asserting it.
As previously stated, the decision ultimately
will turn on the sufficiency of the evidence presented to prove
with certainty that the property is separate.
Schmidt v. Huppmann-^ is a case, decided in 1889, which
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33
allowed reimbursement for commingled separate and community
property.
In Schmidt, at the time of the marriage, the husband
was in business as a merchant.
Out of the profits of the
business, the husband supported his wife and her children and
increased the community estate.
Furthermore, the husband
expended money from his separate estate to improve his wife's
"37
separate realty.
The Court concluded that the husband
should be allowed reimbursement both for the profits used to
increase the community estate and for the funds expended to
improve the wife's separate property.-^0
Relying on the concept
of tracing, the Court reasoned that the stock of merchandise
owned by the husband at the time of marriage was in fact the
same property, a stock of merchandise, at the time of dissolution
of the marriage even though the specific articles that
compromised the original stock had been sold and new stock bought.^
The Court's decision, however, rested in part on a theory of
— reimbursement.
It stated^ "Where it satisfactorily appears, as
in this case, that one spouse brought into the partnership separate
funds invested in a particular business, which business was
carried on and the profits arising therefrom used in creating
and building up the community estate, and the separate funds
are employed in the same business at the dissolution of the partnership, upon settlement with the community estate we think
the spouse furnishing such separate funds is entitled to be
reimbursed therefor."
40
Accordingly, the husband was allowed
reimbursement.
Subsequently, reimbursement was denied in the case of
Moor v. Moor.
In Moor, the husband owned at the time of
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33
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marriage a stock of cattle of about 1,800 head valued
at $36,000.
Three years later, he sold the original stock
of cattle and their increase for $82,000 and invested the
proceeds in other cattle.
These were later sold for
$38,000, at a loss of $44,000.
With part of the proceeds of
this latter sale, the husband bought real estate situated in
hp
Texas.
He took the deeds in his name, as his separate property.
Upon dissolution of the marriage by divorce Lothe husband contended
that this property was his separate estate. J The court,
LlLL
however, held that the land was community property.
The court
reasoned that the increase of the original stock of cattle which
was sold for $82,000 was community property
and that neither
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the value of the original stock nor what number of the original
stock of cattle, if any, was on hand when the sale was made had
been shown.
Thus, it concluded that the husband's separate and
community property were so commingled when he sold the cattle
as to prevent either from being identified and this prevented
the husband from showing that the real estate was purchased
with his separate funds.
Hence all property on hand at the
time of the dissolution of the marriage was deemed community
property.^
The husband then sought reimbursement from the community
estate for the value of the cattle he owned at the time of the
marriage.
This contention also was rejected by the court.
The
court was unable to find any Texas authority which allowed
reimbursement to the husband for his separate fund commingled
with community funds.
Furthermore, it distinguished Louisiana
cases allowing reimbursement noting that in Texas the husband
11
was permitted to trace his separate funds to establish
ownership of property bought with them, while in Louisiana
the property was presumed community property and the husband
allowed reimbursement for his separate funds expended in the
46
aquisition of the property.
As stated previously, there must be a definite tracing of
separate funds in particular accounts or property so that they
can be identified as separate as opposed to community property,
i
The presumtion that property, on hand at the time of the dissolution
of the marriage, is community property will not be overcome if
the person asserting otherwise does not trace and identify by
satisfactory.evidence the items of property.
were set forth by the Texas Supreme Court m
decided in 196$.
These guidelines
47
Tarver v. Tarver,
That is not to say, however, that prior to
Tarver, it was not indispensable to maintain the separate
character of property or to clearly trace and identify it as
. 48
such.
49
Tarver v. Tarver ' involved an action brought by the
former second wife against the former husband for partition of
their community estate and for an accounting from the date of
their divorce.
Two children and two grandchildren of the
husband's first marriage intervened seeking to recover one-half
of the property in the possession of the husband and the second
wife on the theory that the one-half was held by the husband
as trustee for them as heirs of his first wife.^ 0
The community
funds, income and assets of the first marriage were valued in
excess of $300,000.00.
The husband after the death of his first
wife continued to control and deal with the property as though
it belonged to him.
After the second marriage took
11
place, the husband retained one bank account through which
all business and personal transactions were handled.-'1
The
court found that the intervenors had failed to trace any
funds, assets or income of the first community estate into
the properties acquired during the second marriage and on
hand at the time the marriage was dissolved.
It also found
that the fact that the husband had used drilling rigs and
all necessary drilling and oil-producing equipment acquired
during the first marriage to drill wells for which he
received leasehold interests during the second marriage
did not make those interests a part of the first community
estate instead of the second community estate.
In reaching
its conclusion, the court in Tarver set forth guidelines to
establish the alleged separate character of property.
Initially,
the intervenors were required to overcome the presumption
that property possessed by either spouse at the dissolution
of the marriage was commumity.
Furthermore, the intervenors
had the burden of tracing and identifying by satisfactory
evidence the items of property claimed to be theirs.
The
quantum of proof required of the intervenors was that they
trace and clearly identify property claimed as community
property of the first marriage.
The court noted that the
presumption of community controls when the evidence shows
that separate and community property have been so commingled
as to defy segregation and identification.-^
In the instant
case, the intervenors argued that they discharged their burden
when they proved four things:
(1) the amount, character
and value of the first community estate at the time of their
Srt
s
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mother's death; (2) that the husband used the entire estate in
his business, selling the property and investing the proceeds
as his own and mixing and mingling their interest with hisj
(3) that he acquired no property from any other source and had
no other income, and (4) the amount, character and value of
the property they claimed as community property of the first
marriage by satisfactory evidence, either direct or circumstantial.
Nevertheless, the court ruled that the intervenors had failed
to trace the property they claimed as community property
of the first community estate into the properties acquired
during the second marriage.
These general rules have been given controlling effect in
subsequent cases where a spouse or one claiming through a spouse,
has attempted to trace and identify property claimed as separate
property.
The implication appears to be that the Tarver
guidelines must be satisfied in any given tracing situation.
Bank Accounts
It is well settled that where separate funds are so
commingled with community funds in a bank account that
identification as separate or community cannot be accomplished,
the presumption of the community nature of the property will
prevail.
Conversely, the commingly of separate funds with
~
community funds does not change the character of the separate
funds if they can still be identified or traced.
These general principles were recognized prior to Tarver.
It is questionable, however, whether the principles applied and
the outcome of some pre-Tarver decisions can be reconcilled under
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the guidelines set forth in Tarver.
In at least four cases decided
prior to Tarver, it was expressly recognized that where funds
are so commingled that identification as separate or community
funds cannot be made, they must be held to be community funds.
Under these cases, forfeiture of a spouse's separate estate
under the commingling doctrine was analogized to a trust*
That is, where a person mixed trust funds with his own, the whole
would be treated as trust property, except where he was able
to distinguish his own.
The application of this theory was
illustrated in Farrow v. F a r r o w , w h e r e i n the court held that
the evidence did not require a forfeiture of the husband's
<7
separate estate under the commingling doctrine.
It appeared
that the exact amount of money allocable to the separate estates
before marriage and the exact amount allocable to community
property deposited in the same bank account on the dissolution
of marriage were ascertainable.
The court emphasized two factors.
First, although the husband, in his business transactions, made
withdrawals, deposits and transfers between various bank accoounts,
at no time did the joint bank balance fall below the sum of
$3,000.
This $3,000 figure represented the wife's separate estate.
Second, the evidence shoed that the husband's transactions were
fully described and explained, and accurate records were
maintained.
These factors were important to the outcome of
the case because of the court's reference to the doctrines
of
CO
accession and specification and of confusion of goods.
7
Under these doctrines, had the husband wrongfully permitted
the property of his wife to become so commingled as to defy
segregation and identification, and had he failed to disclose
—
33
facts which would have insured a fair division of the property,
the combined property or its value would have been awarded to
his wife - the injured party.
Acknowledging that the husband's
separate property changed form frequently, the court concluded
that the separate character of the property was not affected
by the changes, nor did the evidence require a forfeiture of
the husband's estate under the commingling doctrine.
A year later, under an almost identical fact situation,
6l
the same court in Hartman v. Hartman
held that the evidence
failed to show such commingling of the separate and community
estates as would require enforcement of a forfeiture of the
husband's separate property.
Citing Farrow, the court said,
"Here we have a husband successfully risking a sizeable separate
estate.
Declaration of a forfeiture of the husband's separate
estate under these circumstances would be grossly inequitable
and would establish
z pa precedent Inimicable to the welfare of
the relationship."
The significance of this statement, if
any, was that the court was amenable to taking into account
the equities of the parties in a particular situation.
That
is, there existed the potential to circumvent the rigidity and
objectivity of tracing rules.
Furthermore, the court emphasized
the fact that the community property was insignificant in
comparison with the separate property with which it was commingled,
and that the amounts allocable to each estate was ascertainable.^
Thereafter, several cases appeared to apply tracing
principles foreign
64 to marital relations problems.
Sibley v. Sibley
In one case,
the court appeared to allude to the tracing
doctrine traditionally employed in misappropriation of money
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33
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cases.
The court stated that equity would impress a resulting
trust on commingled funds in favor of the wife and if a trustee
drew out money on a fund in which trust funds were mingled with
those of the trustee, the trustee would he presumed to have
withdrawn out his money first.
J
Under this type of analysis,
it is arguable that the wife might even be able to impose a
constructive trust on the "misappropriated" funds or their
product if the requisite tracing was accomplished.
The court
further stated that this rule of equity was an exception to the
general rule that where funds are so commingled as to defy
segregation and identification, they will be held to be
66
community funds.
This exception to the general rule recognized
in Sibley appears to have been based on a rule derived from the
case of Knatchbull v. H a l l e t ^ decided in 1880.
Under Hallet,
the presumption was that money withdrawn from a bank account
was pressumed to be the money of the wrongdoer and not trust
funds, irrespective of the order in which deposits were made.
For example, if the wrongdoer's bank account contained $1,000
of his own money and $1,000 misappropriated from the victim,
If the wrongdoer withdrew $1,000 from the bank account, the remaining
$1,000 in the account was presumed to belong to the victim,
By
utilizing this rule, the court in Sibley was able to conclude
that realty, which had been paid for from a bank account which
included the wife's separate funds and community funds, had been
paid for primarily with the wife's separate funds.
Therefore,
the community funds in the joint bank account of the parties
were presumed to have 68
been drawn out first before the separate
funds were withdrawn.
33
This apparent deviation from Tarver guidelines is evidenced
in another pre-Tarver decision which also held that community
funds in a joint bank account, also containing separate funds,
were presumed to have been drawn out first.
As a corollary to
this principle, if there were sufficient funds in the bank account
at all times material to cover a spouse's separate estate balance
at the time of dissolution of the marriage, such balance would
be presumed to be the spouse's separate funds.
This presumption
that the first money drawn out of the account and used for community
purposes were community funds was utilized in Barrington v.
69
Barrington.
In Barrington, it was held that no community funds
were invested in a tire shop business and that all stock on hand
and machinery and equipment used in operation of the business
were the separate property of the husband.
In reaching the
conclusion that it did, the court stated, "The community
moneys In joint bank accounts of the parties are therefore presumed
to have been drawn out first, before the separate moneys
are withdrawn, and since there were sufficient funds in the
bank, at all times material here, to cover appellee's
separate estate balance will be presumed to be her separate funds."
The facts in Barrington disclosed that the husband
owned at the date of marriage as his separate property a tire
shop which included various equipment.
The tire business was
operated as a going business during the marriage.
The husband
had on hand 34,25^.29 worth of tirestock at the time of marriage
as his separate property.
The receipt of proceeds from the sale
of the stock were deposited in one business bank account.
These proceeds subsequently were used to purchase new stock.
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70
33
The husband kept accurate records of all these transactions.
At the time of divorce, his stock of merchandise was valued at
$2,700 or $1,554-. 29 less than the original value of the stock.
He also sold and bought equipment necessary for his business.
The operation of the tire business and the income and
disbursement of its earnings were at no time mingled with
other income or monies.
Withdrawals were made from the earnings
of the business for the support and pleasure of the parties
71
or other community purposes.
Citing Sibley, the court
endorsed the principle that community funds in a joint bank
account are as a matter of law presumed to have been drawn first
before the separate funds were withdrawn.^ 2
The court thus
concluded that the facts of the case were sufficient to uphold
the trial court's findings that the monies and property of the
tire business were the husband's separate property.
It is
important to note, however, that at no time did the court
address what should have been its initial inquiry.
That is,
whether the money derived from the going tire business was profit
or derived from capital investment, Texas being a jurisdiction
where the profits
74. of a separate business fall into the
community estate'
and one committed to the presumption
that property acquired during marriage by either party belongs
to the community.
These pre-Tarver decisions do not constitute a complete
catalog of all tracing cases prior to 1965.
Nevertheless, they
are representative of the more liberal approach taken by the
courts when confronted with the concept of tracing than
permitted after Tarver.
Furthermore, they represent examples
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33
of the different methods of tracing utilized.
The Parrow
and Barrington cases, for example, have been interpreted not
as tracing separate funds into items of property presumed to
be community, but as claims for reimbursement.
Hartman is
interpreted as exemplifying a resolution of the tracing problem
by emphasis on equitable considerations."^
As such, these cases
have been rejected as controlling authority in post-Tarver
decisions.
It should be noted, however, that by 12&5 a stricter
tracing requirement consistent with Tarver was recognized.
77
In that year, Stanley v. Stanley'' was decided.
The Stanley
Court noted that the presumption of community property which
attaches to property acquired during marriage is "very strong
and can be overcome only by clear and convincing
proof that
rpO
it belongs to one or the other of them."'
In keeping with this
stricter approach to tracing, the court further noted that
even though one spouse had much property at the time of marriage
and the other spousSe had nothing, and that during marriage the
wealth of the parties decreased, that fact alone would not rebut
the presumption that properly acquired during marriage was
community, in character unless the purchase money or
consideration given for the property was explicitly traced
to the separate property of the spouse having
the disproportionate
79
amount of wealth at the time of marriage.'"7
It was not
surprising that in applying this standard, the spouse In
Stanley claiming the funds to be separate failed to sustain the
burden of tracing ownership to alleged separate property.
the stage was set for Tarver and the post-Tarver decisions.
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Hence,
20
As stated previously, Tarver v. Tarver
80
decided in
1965 set forth guidelines to establish the separate character
of property.
It held that to satisfactorily trace property
as being separate property, the spouse or one claiming
through a spouse must trace and clearly identify each item of
property claimed to be separate property by sufficient evidence.
The result of imposing this standard of proof has been and
remains important on two levels.
First, there is a stricter
tracing requirement which makes it difficult to discharge
the burden of tracing imposed on one attempting to overcome
the community presumption.
Second, the standard of tracing
imposed by Tarver has objectified the field of tracing.
In
the typical situation, either the burden is discharged or it
is not.
As a consequence, there is little emphasis, if any, on
equitable consideration.
Hence, harsh results, of necessity,
will arise.
In 1972, two important decisions dealing with joint bank
accounts were decided.
In re Marriage of Greer.
The first case to be decided was
The case involved a divorce
proceeding instituted by the wife.
The parties were married
in November, 1 9 6 8 , and remained married until about June, 1971.
According to accounting records of the husband, he had on hand
cash or liquid assets at the time of marriage, as his separate
property, in the sum of $4-0,412.28.
The husband's accounting
also included a detailed statement of assets on hand at the dissolution
82
of the marriage in the sum of $64-,l60.03.
The husband, by
subtracting the amount of assets owned before marriage from the
amount of assets owned by the parties during marriage, contended
65
33
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that the difference represented the total value of the community
oq
assets acquired during marriage. ^
Citing Tarver, the court
rejected the accounting procedure employed by the husband.
The
court held that the "before and after" tracing method did not
discharge the burden of tracing and reversed the finding of
the trial court that the husband had utilized a proper tracing
procedure.
The court furthermore disapproved the holdings
in Farrow, Hartman, and Barrington, and adopted the holding
in Stanley.^
The court concluded by noting that in rejecting
the accounting submitted by the husband and absent tracing,
the community presumption prevailed that the total sum of
the community estate was $64,l60.03» because not rebutted by
86
competent evidence.
Also important to the conclusion reached
in the Greer decision was section 3.63 of the Texas FamilyOry
Code which governs the division of property upon divorce.
The importance of this section lies in the fact that the trial
judge is reposed with great discretion in dividing the
marital property of the parties in a divorce proceeding.
Thus,
because of the strict standard of tracing imposed by Tarver
and the discretion accorded the trial court in dividing the
parties' property, it becomes very difficult to overturn the
decision of the trial court.
Furthermore, not once were
equitable considerations discussed in Greer.
Such matters as
the intentions of the parties, the duration of the marriage
and the inherent unfairness of the division of the property
to the husband were never mentioned.
The result turned solely
on whether or not the burden of tracing had been met.
the decision is consistent with Tarver.
Accordingly,
33
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OQ
The second case decided in 1972 was DePuy v. DePuy.
In
DePuy, the court held that the evidence supported the finding
of the trial court that the husband's separate funds were used
to purchase certain furniture, stock and securities and to make
89
a down payment on a duplex apartment.
7
There, the parties were
married in November, 1967i and were permanently separated about
April, 1970.
One joint bank checking account was maintained
by the parties and each was authorized to write checks on it.
Shortly after the marriage, a deposit of $66,64-7.01 was made
into the account.
The sum deposited into the joint account
represented the separate funds of the husband as it had been
90
inherited.7
The trial court found that such funds had been
adequately traced into the properties set aside to the husband
as his separate property in the divorce decree.
On appeal, the
court of appeals held that the finding of the trial court was
supported by the evidence.
At trial, the bank statements, the
investments in the duplex, and the stock trading account of the
husband were introduced in evidence.
There was also evidence
of the income and the living expenses of the parties.
The court
took into account that the parties had net earnings which
covered their living expenses with only a samll amount, if
any, left over.
On the basis of this evidence, the court
concluded that the separate funds of the husband were not so
commingled as to prevent segregation and prevent tracing of the
separate funds into the items decreed to the husband as his
separate property.^1
In reaching this result, the decision in DePu.y is
significant in two aspects.
procedural one.
The first important aspect is a
As the concurring opinion noted, there were
11
no specific requests for findings of fact made by the appellant92
wife.
Under such circumstances, it is will settled in Texas
that where no findings of fact are requested or filed, it
must be presumed that the trial court resolved in the husband's
favor every issue of fact raised by the evidence and the appellate
court must review the evidence in the light most favorable to
these findings, disregarding all that is contrary to those same
findings.
The court will indulge every reasonable presumption
in favor of those93facts that will support the judgement of
the trial court.
J
,
It is because of this mode of review which
give the impression in DePu.y that a less onerous burden of tracing
was imposed on the husband.
The second significant aspect of DePu.y is its implied support
for the holding In Barrington, wherein the court presumed
that the first monies drawn out of the bank account and used
for community purposes are community property.
This retreat
to Barrington appears implicitly when the court alluded to the
income and living expenses of the parties during the marriage
and the fact that the parties had "net earnings which approximated
their living expenses with only small amounts, if any, left over."
This
second point appears most persuasive when the court
stated that the authorities cited by the husband strongly
supported his position that the separate funds were not so
commingled as to prevent segregation and identification.
The
authorities cited by the husband included Farrow and Barrington,
the two cases traditionally cited for the proposition that
community funds are drawn out before separate monies are
withdrawn. ok Otherwise, it is difficult to reconcile DePu.y
33
with either Tarver or Greer and subsequent decisions,
Moreover,
the return to the doctrine enunciated in Barrington is also difficult
to explain.
The only rational basis for the opinion would be
to explain It in terms of equitable considerations.
For example,
the court may have taken into consideration the duration of the
marriage or the disproportionate amount of wealth of the husband.
As to this latter suggestion, however, it would be difficult
to reconcile with Stanley.
A third important decision involving bank accounts was decided
QC
within a year after DePuy.
This case, McKinley v. McKinley,
J
Involved an action by a widow against the executor of her husband's
estate for an injunction and to obtain a declaratory judgement
that two savings certificates were the community property of
her and her deceased husband.
The trial court held that the
two savings certificates were community property.
On appeal,
the court of appeals after allowing an offset affirmed the trial
court.
The Texas Supreme Court reversed the two lower courts.
It held that a portion of the savings certificates were separate
property. ^
The evidence introduced at trial disclosed that the husband,
prior to the marriage, opened two savings accounts which were
the source of funds used to purchase the certificates.
One
account was in the amount of $9,570.72 and the other was in
the amount of $9»535.63.
made in both accounts.
Numerous deposits and withdrawals were
Withdrawals from both accounts were used
to purchase the savings certificates.
The husband had $9»500
on deposit in a First Federal Savings and Loan savings account.
Interest earned by this account was $472.03-, and subsequently
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11
this amount was withdrawn.
The account continued to earn interest
and thereafter a $10,400 withdrawal was made.
This withdrawal
was used to purchase one savings certificate.
This certificate
97
remained on account and untouched until the husband's death. '
The Court in McKinley, citing Tarver, concluded that $9,5°° of
this certificate was traced and clearly identified as separate
property.
Accordingly, it held that $9,500 of the savings
QQ
certificate in the face amount of $10,400 was separate property.
Regarding the $16,000 savings certificate purchased from
Dallas Federal Savings and Loan, the Court acknowledged that
tracing was more difficult.
The $16,000 certificate was
derived from the consolidation of three smaller certificates
of $10,000, $4,000, and $2,000.
The $4,000 and the $2,000
came from a joint savings account and a joint checking account
respectively.
funds.
The Court concluded that these monies were community
The problem revolved around the $10,000.
Initially,
the husband owned as his separate property an account with
Dallas Federal which contained a balance of $9»570.27
Thereafter, $10,000 were withdrawn to purchase a certificate.
Numerous deposits and withdrawals were made.
Also, with respect
to the $16,000 savings certificate, the executor made no attempt
to trace any of the separate funds in the Dallas Federal Savings
account.
Moreover, he did not identify any amount claimed to
be the separate property of the husband.
Under these circumstances,
the Court concluded that the executor had failed to overcome
the community property presumption and held 99
that the Dallas
Federal certificate was community property. x
Xy <*-
*
33
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In so holding, the result in McKinelyis consistent with
the guidelines enunciated in Tarver.
Initially, the Court employed
the presumption that all property possessed by the husband and
wife on dissolution of the marriage is their community property.
It then applied the rule in Tarver that to discharge the burden
of tracing separate property, a spouse, or one claiming through
a spouse, must trace and clearly identify property as separate
property,
Moreover, by its holding, the Court recognized that
when the evidence shows that the community and separate property
have been so mingled as to become unidentifiable, the presumption
that the property is community in character must prevail.
Finally, the principles enunciated in Tarver were
re-affirmed in the recent decision of Pritchard v. Estate of
Tuttle, 1 0 0 decided in February, 1976.
In Pritchard, the evidence
indicated that the wife had commingled all marital funds in a
single bank account.
Kence, the escourt in Pritchard upheld
the findings of the trial court that she had failed to
overcome the community property presumption, except for $3i000
which she adequately traced as her separate property. 101
After
Pritchard, where there are many deposits and withdrawals from
an account and an absence of tracing and identification of such,
there exists an ample basis for courts to conclude that
commingling has occurred. 102
Business and Investments
Similar results have been reached in cases involving
property other than bank accounts.
For example, the concept of
ownership tracing and the rules that have developed under the
33
r>r\
concept have been applied to business ventures and dealings to
determine the character of property as separate or community.
This was illustrated in Norris v. Vaughan^"^ wherein it was
held that the production and sale of natural gas was equivalent
to a piecemeal sale of the separate corpus, and such funds, if
traced, would remain separate property.
Norris involved an action by the daughter of the deceased
wife of respondent Vaughn.
The daughter sued respondent to
impress community character upon gas produced from the separate
estate of respondent.
The daughter acknowledged that respondent
was the owner of certain properties as his separate estate, but
contended that this property produced natural gas and that the
income, received from the production of gas, during the
marriage of her mother to respondent was community property.
Regarding the daughter's contention that the profit from the
sale of natural gas from respondent's separate gas wells were
community property, the court citing Love v. Robertson held
that the production and sale of the natural gas was equivalent
to a piecemeal sale of the separate corpus, and such funds, if
traced, would remain separate property.^^
In view of this,
the daughter argued that if the gas had been sold in place it
would have remained the separate property of respondent but
that the production and sale of the gas impressed a community
statue on the property, and that the proceeds should be classed
as community property acquired during marriage.
That is, that
by virtue of the sale of the separate estate, community labor,
talent and funds were expended on its production and sale, thus
impressing a community character upon the gas.
As to the "Pakan"
11
wells, the court held that there was not such an expenditure
of community funds or effort to Impress community character
on the gas produced from these wells.
The court noted that
revenues from these wells v/ere kept in respondent Vaughan's
separate bank account and the expense items were drawn from
this account.
It further noted that there was no commingling
of funds received by respondent during the marriage as the
audit books showed that separate and community funds v/ere
traceable.
Furthermore, it was evident that no community
funds were used in the maintenance operations and that respondent
made only one trip to the "Pakan" wells area during the marriage
and that the wells required no management.
In this regard, the
court reasoned that since reasonable control and management
were necessary to preserve the separate estate, community
character would not be impressed on the funds because of respondent's
activities in relation to reasonable control and
m a n a g e m e n t .
On the other hand, when "farmount" agreement were obtained
through negotiations partly due to his talent and labor
during marriage, the community estate acquired rights in
such operations.
In this latter instance, the respondent
was entitled to reimbursement for separate funds expended in
behalf of the community,
Similarily, the concept of tracing has been utilized to
determine whether money derived from a going business is profit
or derived from capital investment, Texas being a jurisdiction
where the profits of a separate business fall into the
community estate.
Illustrative cases include Harden v. Vincent,108
Blumer v. Kallison 10 ^ and Waheed v. Waheed. 1 1 0
These cases are
cited for the proposition that absent proof that sales from a
73
11
going business where derived from capital investment and not
profits, the community property presumption would prevail.
For example, Waheed v. Waheed 1 1 1 held that the evidence was
insufficient to support the finding of the trial court
that all the assets listed in the husband's statement of
assets and liabilities were his separate property.
The trial
court had found that the parties owned no community property.
An auditor's report disclosed that at the time of amrriage the
—
husband owned certain property and a subsequent report revealed
that certain transactions.
The evidence was not clear whether
the cash from the transaction came from separate, community
or commingled property.
Furthermore, the husband's accountant
testified that $10,000.00 in a bank account came from sales
from a store and that he could not determine if the money
was profit or capital.
Hence, it was presumed that the
112
property belonged to the community estate.
In analyzing the foregoing decisions, both pre-Tarver
and post-Tarver, It is clear that after Tarver, the courts will
apply a rigid standard of tracing and that they will strive for
objectivity in reaching their result.
Apart from DePu.y which
appeared to have retreated to a Barrington type analysis, Greer
and subsequent decisions are clear examples of the rigidity the
courts will employ,
irrespective harsh results.
That is not
to say that in the future courts will not look into equitable
considerations.
Up to the present, however, there has been little
emphasis, if any, on such considerations after Tarver.
Other Community Property Jurisdictions
Courts from other community property jurisdictions do
33
continue to consider the equities of the parties.
As in
Texas, though, the emphasis on such considerations is greater
in older decisions.
A case decided in California in ; 9^+5
is illustrative of this.
travel accident policy.
in an airplane crash.
—
There, a husband bought an airplaneThereafter, the husband was killed
The widow, of a two month marriage,
demanded one-half of the proceeds of the policy on the ground
that the policy was purchased with community funds.
The
beneficiary of the policy argued that the policy was bought with
the separate funds of the insured husband.
awarded judgement for the beneficiary.
was affirmed.
The trial court
On appeal, the judgement
It is interesting to note that there was no oral \
or documentary evidence as to whether the money used in paying /
the premium was community property or separate property.
Therefore,
the wife contended that the presumption of community property
shouldprevail.
The court reasoned that where the marriage relation
had existed a short period of time, the community property
presumption was of less weight than in the case of a long-continued
marriage relation.
Here, the marriage had lasted only two months
and the husband had a bank account in his own name.
Therefore,
the court concluded that the burden was on the wife to prove
that the premium had been paid from community funds.
Having
failed to prove this, the judgment for the beneficiary was
114
upheld.
Similarily, an Idaho case appeared to also emphasize the
length of the marriage and whether the parties had regarded the11
, .
,
-j.
, 115 In another Idaho case, ^
bank account as community property. ^
'
r>r\
33
a
Barrington
type analysis was utilized.
The court held that
where during marriage the living and other expenses were
taken
from a bank account in which the separate funds of each spouse
had been deposited, it would not be presumed that the withdrawal's
had been taken from the wife's separate funds deposited therein.
Therefore, $3>735.31 of the wife's separate funds in
such
bank account were in the account when $6,750 were withdrawn and
applied in the purchase of a certain business.
Two reasons were
given by the court for this result.
First, that it was the duty
of the husband to support the wife.
Second, that there was no
presumption that the wife's separate funds were used for community
117
expenses.
The reasoning applied here appeared to be consistent
with the reasoning of the Barrington court; in other words;
that community funds were withdrawn before separate funds.
However,
the emphasis in the Idaho case was on the wife's interest rather
than the interest of both spouses as espoused in-Sibley.
There
are numerous other cases in accord with the Idaho decision that
the interest of the wife Is not impaired by
withdrawals.
In one jurisdiction there is authority for the
proposition that where community and separate funds are commingled
in one account, payments out of that account for obligations
against the separate property or for separate
uses are deemed
-1 -1 O
to be paid out of the separate funds.
In one community property jurisdiction a rather unique
approach to tracing has been undertaken.
In California, it is
possible to overcome the presumption of community property by
a theory
of Seev.
recapitulation.
This the
approach
was Illustrated
7
119
the
case of
See.
In See,
California
court made In
r>r\
33
r>r\
clear that a spouse may trace the source of property to his
separate funds with evidence that community expenses exceeded
community income at the time of acquisition of the property.
By establishing that at the time of acquisition of the property,
all community income was exhausted by community expenditures,
a spouse assertin separate ownership would establish the property
was purchased with separate funds.
120
Under this theory, the
121
controlling factor is the time of acquisition of the property.
Where the evidence discloses that at the time of acquisition
of the property there were no community funds, the presumption
of community property is overcome.
If on the other hand, where
the spouse cannot show by adequate record keeping that the community
funds were exhausted, the community presumption prevails.
Once
there is a commingling of community and separate funds, the spouse
assumes the burden of keeping adequate records to show a deficit
in community income at the time of acquisition.
In this regard,
a mere showing of an excess of community expenditures over
community income during the marriage would not establish that
there had been no acquisition of property with community funds.
The court reasoned that such a theory would undermine the principles
of community property in California by altering a spouse's
present, vested
interest into a mere expectancy to be realized
only if upon dissolution of the marriage the community income
exceeded community expenditures.
In See, the husband was
deprived from availing himself of the doctrine of recapitulation
because of his failure to keep adquate records.
122 Accordingly,
the community property presumption prevailed.
it is doubtful
that Texas courts, Barrington and DePuy aside, would employ
33
r>r\
the use of the recapitulation theory.
Weight and Sufficiency of the Evidence
Although courts have used various terms to describe
the quantum of proof necessary to overcome the community
property presumption, the consensus appears to be that it must
be more than a mere preponderance of the evidence.
In Texas,
the spouse attempt in^'to overcome the statutory presumtion
that property is community must trace and clearly identify
property claimed as separate property.
The test has also
been phrased as requiring that the separate property be clearly
and indisputably traced and identified or that the evidence must
be direct and positive, or that the presumtion be overcome by
123
clear and convincing proof.
J
Similarly, clear and convincing evidence is required in
the other community proerty jurisdiction.
As in Texas, the
majority rule is that more than a mere preponderance
is
124
required to overcome the community presumtion.
This may
be especially true where the rights of third parties are to
be affected.
In addition, courts are generally liberal regarding
the admissibility of evidence and in permitting proof as
to the nature and source of property and its ownership in
suits between spouses.
Any competent evidence, including
parol evidence where same is allowed, can be introduced.
Avoiding the Effect of Commingling
After Tarver and subsequent decisions involving the
concept of tracing ownership to separate property, one cannot
over-emphasize the importance of adequate and accurate record
keeping.
In view of the stringent standards of proof imposed
by such decisions on one asserting separate ownership of
property, it is doubtful that one can avoid the effect of
commingling absent such records.
(1) One should recall that the burden of
tracing was not met by showing assets
on hand at time of marriage and
showing all assets on hand at time of
divorce with the difference representing
the value of the community estate to
be divided upon divorce.
This method of
accounting has been expressly rejected
and should be avoided.
The mere fact
that such procedure is adequate willnot
otherwise make it acceptable.
(2) Regarding a going business, it is
imperative that there be proof that the
money was derived from capital investment.
In Texas, where profits of the separate
business fall into the community estate,
acquisition of fixtures and merchandise
after the original capital investment will
be presumed to have been purchased with
profits of the business.
Hence, they are
presumed to be community property.
79
(3) Regarding bank accounts, one should have
different or separate accounts for
community funds and separate funds.
All commingling or borrowing of funds
between accounts should be avoided.
Ordinarily the fact that a bank account
stands in the name of one spouse does not
overcome the presumtion of community
ownership or establish the separate
character of the funds.
80
FOOTNOTES
1.
Huie, Commentary on the Community Property Law of Texas,
13 Tex. Rev. Civ. Stat. Ann. ^ l , at2 (i960) (jiereinafter cited as
Huie JJ .
2. Vaughn, The Policy of Community Property and Inter-Spousal
Transactions, 19 Baylor L. Rev. 20, 28-31 (1967).
3. Id. at 41-59.
4. Tex. Const, art. XVI,J15,
5. 114 Tex. 535. 273 S. W. 799 (1925).
6. Id. at 803.
7. Id. at 803-05.
8. Eg. Tex Tev. Civ. Stat. Ann. art. 4613.
9. Tex. Fam. Code J 5.01 (1969).
10. Eg. Love v. Robertson, 7 Tex. 6 (1851).
11. Eg. Stringfellow v. Sorrels, 82 Tex. 277, 18 S. W. 689
(1891).
12. Eg. Norris v. Vaughn, 200 s T w . '2d 676 (Tex. 1953).
13. Eg. Coggin v. Coggin, 204 S. W. 2d 47 ( Tex. Civ.
App.-Amarillo 1947» no writ).
14. Eg. King v Matney, 259 S. W. 2d 606 (Tex. Civ. App.Amarillo 1953» no writ).
15. Eg. Busby v. Busby, 457 sT w 7 2d 551 (Tex, 1970).
16. See Tex. Fam. Code
5.61 (1969).
17. See Tex. Fam. Code
5-41 (1969).
81
18.
See Tex. Faro. Code J 5. bl-5. 85 (1959).
19.
For example, ^ 5.22 of the Texas Family Code
provides for the wife's equality of management.
Traditionally
the legislature gave the husband sole management and control
of the community estate.
See Cooper v. Texas Gulf Industries,
513 S.W. 2d 200 (Tex. 1974) for an interpretation of ^5.22.
Moreover, the Texas Family Code defines separate property to
include recoveries for personal injuries sustained by the
spouse during marriage, except any recovery for loss of
earning capacity during marriage.
This new provision of
the Texas Family Code was held to be in accord with the
constitutional definition of separate property in Grahem v.
Franco, 488 S.V//j2d 390 (Tex. 1972).
20.
See generally Colaen v. Alexander, 141 Tex.
134, 171 S.W. 2d 328 (Tex. 1943).
For example, where a
contract to buy land is entered into by a single person,
ifequitable rights are acquired under the contract, it
becomes the separate property of that person even though the
title was not finally extended until marriage.
This would hold
true even if community funds were used or services performed
during the marriage.
The community estate, however, would
beentitled to reimbursement from the separate estate for any
community funds used in paying a part of the purchase price.
21.
372 3. W,Cj2d 381 (Tex. Civ. App. -Waco 1 9 6 3 ,
writ ref'd).
22.
Id. at 333-34.
23.
Id. at 384.
82
24. Id. at 383.
25. Eg. Modern Woodmen Of America v. Gray, 113 Cal.
App. 729, 299 P. 754.
26.
McCurdy v.McCurdy, 372 S.W. 2d 381, 384 (Tex. Civ.
App.-Waco 1963i writ ref'd).
27. See Busby v. Busby, 457 S.W. 2d 551 (Tex.1970).
23
§ee Brown v. Lee, 371 S.W. 694 (Tex. 1963).
29. See Strong v. Garrett, 148 Tex 265, 224 S.W. 2d
471 (1949).
30. See Parson v. United States, 460 F.2d 228 (5th
Cir. 1972).
31. 7 Tex. 6 (1851).
32. Id. at 7.
33. Id. at 10.
34. Id. at 11-12.
35. Huie g 3, at 4.
36.73 Tex.112,US.W. 175 (1889).
37. Id. at 175.
38. Id. at 176.
39. Id.
40. Id.
41. 255 S.W. 231 (Tex. Civ. App.-San Antonio 1900,
writ ref'd).
42. Id. at 234.
43. Id.
44. Id.
45. Id. at 236.
83
46.
Id.
The court noted that if the property was
held to be the separate property of the husband, the entire loss
from the investment in the latter stock of cattle would be absorbed
by the community.
Id. at 236.
47.
394 S.W.2d 780, (Tex. 1965).
48.
Eg. Hodge v. Ellis, 268 S.W.2d 275 (Tex. Civ. App.-
Fort Worth 1954), aff'd in part 154 Tex.341, 277 S.W.2d 900;
Wilson v. Wilson, 145 Tex. 607, 201 S.W.2d 226, 227 (1947);
Chapman v. Allen, 15 Tex. 278, 283 (1855).
49.
394 S.W.2d 780 (Tex. 1965).
50.
Id. at 781.
51.
Id. at 782-83.
52.
Id.
53.
Id. at 783-84.
54.
Id. at 784.
55.
See generally Wilson v. Wilson, 145 Tex. 607,
at 785-86.
201 S. W. 2d 226, 227 (1947); Chapman v. Allen, 15 Tex.278,
283 (1855).
56.
233 S.W.2d 255 (Tex. Civ. App.-Austin 1951, no writ).
57.
Id.at 256.
58.
Id.
59.
Id. at 256-57.
60.
Id. at 257.
61
253 S.W.2d 480 (Tex Civ.App-Austin 1952, no writ).
62.
Id. at 482.
63-
Id.
64.
286 S.W.2d 657 (Tex. Civ. App.-Dallas 1955, dismissed)
84
65.
Id. at 659.
66.
Id.
6?.
13 Ch.Div. 696 (1880).
See generally D. Dobbs,
Handbook of the Law of Remedies g 5.16, at 427-28 (1973).
68.
Sibley v. Sibley, 286 S.W.2d 657, 659 (Tex. Civ. App.-
Dallas 1955, dismissed).
69.
290 S.W.2d 297 (Tex. Civ. App.-Texarkana 1956, no
writ).
70.
Id. at 302.
71.
Id. at 303-04.
72.
Id. at 304.
73.
Id. at 305.
74.
See generally Hardee v. Vincent, 136 Tex. 99,
147 S.W.2d 1072 (1941); Blumer v. Kallison, 297 S.W.2d 898
(Tex. Civ. App.-SanAntonio 1956, writ ref'd N.R.E.); Waheed v.
Waheed, 423 S.W.2d 159 (Tex. Civ. App.-Eastland 1967, no writ).
75.
See In re Marriage of Greer, 483 S.W.2d 490 (lex. Civ.
App. -Arnari 11 o 1972, disinissed).
76.
Id.
77.
294 S. W.2d 132 (Tex. Civ. App.-A,arillo 1956, writ
ref'd N.R.E.
78.
Id. at 136.
79.
Id.
80.
394 S.W.2d 780 (Tex.1965).
81.
483 S.W.2d 490 (Tex. Civ. App.-Amarillo 1972, dismissed).
85
82.
Id. at 492-93.
83.
Id. at 493.
84.
Id. at 494.
85.
Id.
86.
Id. at 495.
87.
Id.
88.
483 S.W.2d 88s (Tex. Civ. App,-Corpus Christi 1972,
no writ).
89.
Id. at 888.
90.
Id. at 887.
91.
Id. at 888.
92.
Id.
93.
See generally Durr v. Newman, 537 S.W.2d 323
(Tex. Civ. App.-El Paso 1976, no writ).
94.
Id. at 888.
95.
496 S.W.2d 540 (Tex. 1973)
96.
Id. at 543-44.
97.
Id, at 542-43.
98.
Id. at 543.
99.
Id.
100.
534 S.W.2d 946 (Tex. Civ. App.-Amarillo 1976,
no writ).
101.
Id. at 949.
102.
See genrally Gonzalez v. Gonzalez, 484 S.W.2d 611
(Tex. Civ. App.-El Paso 1972, no writ)
103.
260 S.W. 2d 676 (Tex. 1953)
104.
Id. at 677-78.
105.
Id. at 679-80
106.
Id. at 680.
107.
Id. at 682-83.
108.
136 Tex. 99, 147 S.W.2d 1072 (1941).
109.
297 S.W.2d 898 (Tex. Civ. App.-San Antonio 1956,
writ ref'd N.R.E.).
110.
423 S.W.2d (Tex. Civ. App.-Eastland 196?, no writ).
111.
Id.
112.
Id. at 162-63.
113.
Fidelty & Casualty Co. v. Kahoney, 71 Cal. App, 2d 65,
161 P.2d 944 (1945).
114.
Id. at 945-46.
115.
See generally Stahl v. Stahl, 91 Idaho 794, 430 P. 2d
685 (1967).
116.
Gapsch v. Gapsch, 76 Idaho 44, 277 P. 2d 278 (1945).
117.
Id. at 282.
118.
Blaine v. Blaine, 63 Ariz. 100, 159 P.2d 786 (1945)
119. 64 Cal. 2d 778, 51 Cal Rptr. 888, 415 P. 2d 776 (1966)
120.
Id. at 779--80.
121.
Id. at 780,
122,
Id. at 780--81
123.
Eg- Tarver v. Tarver, 394 S.W.2d 780 (Tex. 1965).
124.
Ig. Blaine v. Blaine, 63 Ariz. 100, 159 P2d 786 (1945)
87