*1 was named individually as defendant had
been filed. Point of error seventeen is
overruled.
The judgment is affirmed. CLUCK, Appellant,
Margaret CLUCK, Appellee.
No. 16926. Appeals
Court of Antonio.
Dec. 1982.
Appellant’s Rehearing Denied
Jan. 1983.
Appellee’s Rehearing Part; Granted in
Denied in Jan. Part *2 Cluck, pro se.
Elwood Pasqual, Maloney, Jack Pat Soloman Cas- seb, Antonio, for appellee. CADENA, C.J., ESQUIVEL Before and REEVES, JJ. OPINION REEVES, Justice. case, Margaret in this
petitioned the trial court for a divorce appellant, Cluck. to his fault as the cause of the court, divorce. The trial without aid of divid- jury, appellee, awarded the divorce awarded community property ed the This concerns the attorney’s appeal fees. fees. attorney’s division and the grounds first two of error Appellant’s ap- fees to attorney’s attack the award of re- Appellee initially pellee’s attorneys. Casseb, Jr. as counsel. tained Mr. Solomon for original petition Mr. filed the Casseb divorce, following: which included the necessary that it was Petitioner states undersigned the services of the secure herein, represent her attorney proper were such services preservation protection a reasonable at- petitioner’s rights, and judg- be awarded and torney’s fee should attorney in favor of said ment rendered against respondent. The petition with prayer counsel, closed lant whiсh contends that first requested, in part, Casseb, “Judgment be ren- Mr. is not entitled to fees attorney’s dered in favor of her attorney his attor- because he attorney had withdrawn as ney’s fees.” withdrew Casseb from the record and did not at trial. appear We find case by written granted by motion that Judge performed preparatory Casseb *3 19, on January 1981. Mrs. Cluck’s new work as an in this cаse. He attorney is counsel, Pat Associates, and Maloney, Sr. entitled to for the compensation legal work including Pasqual, performed. Mr. Jack entered the appeared testify suit He in court to with a appearance formal notice of on as Feb- to the of his fees reasonableness and 2, ruary decree, 1981. In the divorce appellant stipulated the the val that reasonable trial court awarded Mr. Casseb ue of legal and his services was The fact $5000.00 $5000. $46,000.00 Maloney Pasqual and in Judge attor- that withdrew as attorney Casseb of ney’s fees. Appellant record him from the did not remove the lawsuit legal reasonable services rendered in by regard attorney Cas- to fees earned to the $5,000.00. seb аmounted to time of his withdrawal. To hold otherwise alleges that pleadings the do not support require would a law suit to separate pursue the award to or Maloney attorney Casseb and cause of action for fees. Pasqual, and the does support evidence not $46,000 As to the awarded to Mr. the award to and Maloney Pasqual. Appel- Pasqual Associates, and Maloney and Mr. lee responds that not specially did we also find that is evidence to sup there except to pleadings object her and did not port recovery. Appellee the called Mr. Oli to the evidence to prove attorney offered Heard, ver a in specialist board certified the fees. area, testify law аs the family appro to to attorney’s priate award of fees in a award of fees in this case. Mr. divorce action is as of testimony, upon treated the fair Heard’s which the trial just and division of the marital estate. the apparently specific is based dollar incumbent upon party seeking appellee’s the amounts recovery attorneys, аwarded to of attorney that it prove necessary by appellant fees to is was not at trial. controverted to the employ Appellant good and the reasonable faith in attorney contests ness of Carle, action, need, the fee. Carle v. attorney bringing this her and 469, 1002, 149 (1950). Tex. 234 1005 the of necessity S.W.2d of retention counsel. We Fees supports either in find thеse recoverable the wife’s that the record elements attorneys recovery name or the Akin which are of Akin, 323, (Tex.Civ. note that attorney’s 276 325-326 fees. We this was a S.W.2d App. 1955, dism’d); complicated law suit. More protracted Jeter v. and — Austin Jeter, over, earning ap of disparate capacity 281 the (Tex.Civ.App.— S.W. 598-600 1926, pellant apparent If from the writ). apрellee appellee Dallas no has inad the sole income Appellant record. was equately pleaded recovery attorney’s of fees, while had family, the error his fail earner in his waived during short time the appellee’s plead employed ure to to been for a specially except 30 of ings. year years v. First first of their Lampsman approximately See National 28, appellant’s first two Dallas, (Tex.Civ. marriage. reject Bank in 29 We n.r.e.); points of error. App. Chap writ ref’d — Waco Chapman, man v. 128 of er complains point dism’d). (Tex.Civ.Ap p Worth .—Fort ror the court erred in number three that trusts to be null and void overturning declaring In the trial court’s two evidence or (1) because: was no judgment attorney’s fees in there award court; action of the pleadings support appear divorce case it must there has (2) marriage been that the two children a clear abuse of discretion. See Lewis who were contin Lewis, (Tex.Civ. appellant appellee, 218 221-222 S.W.2d trust, were not writ). gent App. Appel no beneficiaries Worth — Fort suit; parties (3) discretion, to the authority appel- had to award jurisdiction court lacked pursuant Family lant’s appellee, interest note to Code 3.63 to declare said trust null and void. he standing complain has no as to the children’s interest in the note. The children again note that the first time the eighteen years both over raises the insufficiency of the age, judgment are not bound pleading was in an instrument appellant have standing ownership to contest styled “Motion for New Trial and to Modi- Industries, Cooper the note. v. Texas Gulf fy, Correct or Reform the Judgment.” Ap- Inc., (Tex.1974). S.W.2d pellee’s pleadings called for a division of the community property. Evidence was intro- error, Appellant, by point his fourth duced that the corpus of each trust were chаllenges community property. objection No awarding membership the San Antonio *4 during trial to the introduction of Country appellee. to The Antonio Club San evidence concerning these trusts. See Country Club is a association or- voluntary Lampsman v. First National Bank in Dal- ganized non-profit corporation. as a Mem- las, supra. bership by in the club is invitation of the Boаrd of Governors and the Board has the As to contention that the resi- membership. to terminate dence situated at Mandalay East, Drive by-laws provide, part: of the club Antonio, Texas, San was in trust and not properly court, before the Upon any stockholding we the death of mem- note that the original club, inventory ber of the or upon resignation or described the property and stated, then subject any upon dismissal of member of such to trust indenture 23, 1976, dated being dropped December member for cause executed by Cluck, settlor, Elwood membership club, upon or Margaret Cluck, trustee. In his acceptance amended by application Board of an inventory he lists as community property for a senior or membership, upon accept- the property situated at member, 300 Mandalay ance to an become associate or East, Drive Antonio, San member, again upon transfer to a non-resident describing the property but deleting any the Board of Governors shall have the reference to a trust. There was prior no 300 right purchase corporа- to Mandalay trust indenture tion, introduced into by the share or shares of stock held evidence. There being no evidence $1,000.00, before such provided, member for the trial court as to a “300 Mandalay however, Drive the widow or widower or adult East Trust” the trial court properly treated son or daughter of deceased member it as community property. may havе the deceased member’s share pay- transferred to their name without There was introduced into evidence a fee, upon being ment of initiation invited trust instrument styled 412/52 Ranch Trust stockholding membership to Board wherein appellant, settlor, transferred to Upon Governors. the certificate evi- Margaret Cluck, trustee and as primary dencing share of such stoсk issued or beneficiary, lands situated in Burnet Coun- transferred, there shall be endorsed the ty, Texas. The contingent or secondary following: beneficiaries are the children of nonnegotiable The stock is and non- The real estate owned the trust was sold except transferable on the books of the consideration was a note club, only after the has been club executed purchasers payable to Mar- opportunity afforded an to exercise its garet Cluck individually and as trustee. option purchase to same for (inter- contends that the income $1,000.00 per share. est) earned was community property while principal belonged fee, to the trust. Assum- Appellant, upon paying his initiation ing appellаnt’s position as to the ownership granted membership in his club correct, court, the note is in its name only.
The divorce provided: decree petitioner, cise power such of interpretation and ad- “Margaret Cluck, is following awarded the ministration. long governing So as such property as her separate sole and bodies do not legislation substitute estаte, and respondent, Elwood interpretation, transgress do not hereby right, divested of all title and reason, sense, fairness, bounds of common interest in and to property, such to-wit:” do public policy, not contravene or the * * * * * * laws interpretation of the land in such administration, the courts cannot in- title,
M. All right, interest, equity and terfere. ownership in and to the San Antonio at Id. Club, Country Antonio, Texas,
currently standing in the name of Club, Country San Antonio as a vol- Cluck; Elwood Cluck is association, untary right has the sole to hereby divested of any membership determine who will members of their be or ownership rights in said stock and that, according club. We note to its by- such membership and ownership laws, spouse that even a of a decedent rights are hereby transferred approval member stockholder needs the Margaret Cluck, and all rights and prior becoming the Board of Governors privileges in connection with said stockholder member of club. Our Su- stock standing heretofore in Elwood preme Court has stated: Cluck shall be and are hereby as- A voluntary power association has the *5 signed and transferred to Margaret enact governing rules the admission of Cluck. certain prescribing qualifi- members and membership; Since the cations for and such rules membership stock has a contin enforced, gent will $1,000.00, they against redeemable value of be unless the trial the good could and did take morals or violate the laws of into consideration this as an asset of the state. community in divid ing the сommunity estate of the Houston, Exchange Cline v. Insurance of However, we are opinion of the that the 175, (1942). 140 Tex. 677 S.W.2d trial court had no to divest the therefore the hold that trial appellee of membership in the club. We divesting appellant court erred in the of his view the stock certificate as an merely indi- membership country the club. cia of the right to membership analogous to Appellant general makes his alle a membership card in voluntary associ gation that the division of the marital es ation, personal only to the appellant. fair, disproportionate just tate was and not Courts have been reluctant to interfere and equitable point in his fifth of error. To
with the internal management of a volun
overturn a trial court’s division of a marital
tary association.
In Brotherhood of Rail
appellant
estate in a divorce
must establish
Price,
289,
road Trainmen v.
108 S.W.2d
v.
a clear abuse of discretion. See Lewis
(Tex.Civ.App.
1987,
dism’d)
— Galveston
Lewis, supra. The
of a marital
division
states,
the court
may
upon
estate in a
be based
a
divorce
Courts are not disposed to interfere with
variety
including the fault for
of factors
management
internal
voluntary
of a
asso-
breakup
marriage,
age
the
the
member,
ciation .A
by becom-
parties,
earning capacities
respective
such,
himself,
ing
subjects
legal
within
marriage.
length
limits, organization’s power
to ad-
Murff,
696, 698-99
See Murff v.
minister,
make,
as well as to its power to
(Tex.1981).
its rules.
say
To
may
courts
рower
exercise the
interpretation
contends that
administration
the marital
governing
reserved to the
has in effect
a division of
organizations
bodies
such
re-
plain-
appellee
would
estate under which the
has
ly subvert their
while
right
percent
contractual
to exer-
ceived
of the estate
eighty-six
has,
has received only
per
fourteen
The
in this case
cent.
moreover,
We are wary
placing
percentage
to his fault
in the
figure upon the
he argues
division of the
cause of this divorce. While
quite correctly
rarely
this case.
that fault is
a one-
Disparate divisions of the com
divorce,
way street in the cause of a
none
munity
upheld
have been
where the facts so
judge
it
that the trial
could
theless
is
fact
Huls,
warrant. Huls v.
making
take into account in
reasonably
(Tex.Civ.App.
317-318
[1st Dist.]
— Houston
Murff,
division of the marital estate. See
writ); Cooper
no
Cooper,
supra.
S.W.2d
(Tex.Civ.App
231-232
. —Hous
ton
writ).
no
Bearing these
[1st Dist.]
balance,
say
On
we cannot
mind,
facts in
proceed
we will
to review the
court abused its discretion
division
evidence produced at trial.
certainly
legiti
the marital estate. The court has
true
has received the bulk of
mately attempted
provide
some
the marital estate including the family
security for Mrs. Cluck in the future while
home, the income from
promissory
various
allowing appellant
pursue
his livelihood.
notes, several properties,
judg
and a cash
ground
We overrule
fifth
of er
Nonetheless,
ment.
received in
ror.
professional
total his
practice.
Indeed, the
sixth
Appellant’s
and seventh
one case appellee cites
proposition
grounds of error concern the failure
the alleged percentage division of the
trial
to credit certain
appel
sums to
estate was improper, the
Hooper
case of
making
lant in
property division.
Hooper,
than is also without merit. It is uncontested that appropriated NAUTILUS TRAINING CENTER NO. $60,000 from bank stock which was owned al., INC., Appellants, et community. Appellee argued vigor- ously that appropriations these of funds from bank
there has been an improper apportionment
of the Court costs. is, therefore, judg- ordered amended,
ment in this cause be and that
appellant, surety, Elwood Cluck and Aetna
Casualty and Surety Company, pay two-
thirds of the the appeal costs of and the
appellee, Margaret pay one-third of
the costs of the appeal.
It is further ordered that mo-
tion for rehearing and the motion rehearing, exception with the costs, overruled,
court and that
judgment of the heretofore entered
be affirmed as amended. notes were in CORPORATION, SEAFIRST LEASING temporary contradiction of orders. We can- Appellee. not find that judge’s failure to credit expenditures by appellee was an 2350 CV. No. discretion, abuse of taking into account the Appeals Court conduct of expending commu- Christi. Corpus nity judge’s funds. The trial action is sus- tained. 9, 1982. Dec. We hold that the trial court did not abuse its discretion in the division of the commu nity property, including the community property interest in the stock of the San Antonio Country But Club. we further that, law, hold as a matter erred in divesting his member ship in the club. Therefore in conformity Fuhrman, with Fuhrman v. (Tex.Civ.App. Paso — El dism’d), ease, we remand the with instruc tions to the trial reform judgment court to its its transferring right, title or ownership in appellee’s membership to the Antonio Country Club. ON APPELLANT’S AND APPELLEE’S MOTIONS FOR REHEARING Appellant and appellee have each filed that, motions for rehearing. We find ex- cept as to motion to reconsider costs, assessment of court their mo- tions are agree without merit. We