*1 cated, if there be more than one application for Writ of Mandamus ground, such as for incompetency, mis- should be denied.
conduct, office, or malfeasance in shall
specifically ground state each with such
certainty give as to sought officer removed,
be notice of the matters and things with which he is charged ...
Charter, sec. (Emphasis added). 5.03. The petition presented to the City Council in the case at bar predicated is on the FINN, Appellant, Joellen following “grounds”: 1. Kelly Councilman consistantly has FINN, Appellee. Frank (sic) led, encouraged participated improper
in minority and incompetent No. 21066. opposition to the governing body of Texas, Appeals Court of of City of Colleyville aiding and in Dallas. and abetting filing litigation against City with Colleyville 6, 1983. Sept.
full knowledge cost to be borne Rehearing Denied Oct. the citizens Colleyville and con- trary to the wishes of the majority of
the citizens of Colleyville. 2. Councilman Kelly has repeatedly mean,
been overbearing and obnoxi- ous forcing himself, his thoughts
and verbosity upon citizens for the purpose creating unrest and dissen-
sion within City of Colleyville. 3. Councilman Kelly has on numerous
occasions asked for professional
advice of the city attorney city engineer regarding city ordinance in-
terpretation and clarification then blatantly ignored the advice he
received and made decisions and vot-
ed contrary to that advice to the det-
riment of the city and in malfeasance
of his office. After reviewing petition, this I am forced to conclude that these “grounds” so-called
for are, recall Councilman as a Kelly law,
matter of insufficient under sec. 5.03 City to impose duty Charter a clear upon City Council to order the election.
It my opinion that these “grounds” recall of Councilman Kelly reality allege general conclusions of discontent and
disagreement with the per- Councilman’s
formance office and a for him dislike personally.
737
739 *4 Daman, Berman,
Douglas F. Fichtner & Mitchell, Dallas, appellant. for Carter, Jones, Walter H. Magee, Magee, Dallas, Rudberg, Mayes, appel- Moss & lee.
VANCE, Justice. in this questions presented appeal concern the trial court’s division of *5 upon the divorce of Frank and Joellen Finn. The points contending wife asserts fourteen that by various errors committed court in an unfair unjust prop- resulted below, division. erty For the reasons stated we hold that the wife was de- improperly nied of documents essential to discovery prove the value of the interest community in practice. the husband’s law We there- fore reverse and remand the divi- sion for a new trial.
The Finns were married for more than twenty years. During the entire time the couple was married the husband worked for a law firm. The large practice Dallas law is a in which the partnership structured as a senior for over partner husband has been years. Although ten the wife also has a degree, practice during law she not law did marriage, the but instead devoted her time maintaining raising to the home and their the parties agreed four children. The on community property, value of most practice but the the law value of husband’s hotly was contested. Firm. Goodwill of Law
The wife contends that
the trial court
the
to exclude the
by instructing
erred
of the law firm and its future
goodwill
the valuation of the
earning capacity from
community interest
in the husband’s law
in
The
the
estate.
practice.
on
Relying
the Fort Worth Court
particularly
Nail court was
concerned with
Appeals
Geesbreght
of Civil
decision in
the
that
practitioner
fact
should a solo
die
Geesbreght,
(Tex.Civ.App.—
741 goodwill whether profes- attached to a sional abilities of the husband’s predeces- sional practice subject is to division upon sors in the firm as well as the abilities of his First, divorce. goodwill must be deter- present partners professional employ- mined to exist Under these independently person- recog- ees. circumstances we al ability nize professional spouse. goodwill independent the firm has Second, apart goodwill exist, professional ability if such is from the found to then it must the husband. be determined whether goodwill has a commercial value in which here, The inquiry stop does not as the is entitled community estate to share. contends, wife but must continue to deter- mine whether his goodwill has commercial Evidence in the present case indi value to which the estate is community cates good husband’s law firm has question entitled. Without the goodwill of will independent professional ability. of his a long established firm has commercial val- Like the Gees professional corporation question ue. The which confronts us is breght, the firm does conduct business whether the community estate is entitled to under partners, the names of the senior but share the value of the law firm’s good-
rather
under
operates
the names of two
will.
founding partners
longer
with
practicing
the firm. The record reflects that at
community
estate is not enti
of trial the law firm consisted of twen
time
tled to a
interest
than that
to which
greater
ty senior partners,
twenty-two junior part
the husband is
good
entitled in
firm’s
ners and forty-three
associates. The hus will. The extent of the husband’s interest
band has been practicing law with the firm is governed by the partnership agreement.1
for over twenty-five years; however,
the Under the
partnership agree
terms of the
firm has been providing legal
ment,
services to
withdraw,
should the husband die or
public
for more than ninety years. A
1)
he is entitled
amount con
large part of the
reputation
firm’s
pro
account, 2)
in his capital
tained
earned
viding services was built upon
profes-
distributed,
income which had not been
urges
1. The
421,
324,
us to
Cal.Rptr.
(1971).
follow a line of Califor-
98
329
court
good
nia cases which have held the accrued
liberty
unequal
California is not at
to make an
professional practice
community
will of a
to be
community property
division of the
due to dis-
property subject
upon
to division
divorce. Sla-
parate earning capacity
spouses,
between the
Slater,
241,
Cal.App.3d
ter
Cal.Rptr.
v.
100
160
education,
opportunities,
business
relative
(1980);
Webb,
335,
Cal.App.3d
686
Webb v.
94
conditions,
physical
relative financial condition
Cal.Rptr.
Foster,
(1979);
156
334
42
Foster v.
obligations, disparity
ages
and size of
Cal.App.3d 577,
(1974);
Cal.Rptr.
Lopez
117
49
separate estates. Thus the California court
Lopez,
Cal.App.3d
Cal.Rptr.
38
58
goodwill
must consider the factor of accrued
(1974);
Golden,
Cal.App.2d
Golden v.
guise
under the
it
if
Mueller,
Cal.Rptr.
(1969);
Mueller v.
to be
at all. Such is not the case in
considered
Cal.App.2d 245,
(1956).
3) his interest in the firm’s reserve account husband’s pendent partici- on the continued firm, and, proportionate therefore, less ten of his in percent pation share the is not Nail, in the receivable for community accounts clients’ dis- estate. bursement.2 a of By Consequently, vote three fourths of we hold S.W.2d at partners, may properly be the trial court instructed the senior husband withdraw, required and in he not the law firm’s to that event to consider accrued compensation goodwill earning is capacity entitled to the same for his or when future community a interest placing value on provided voluntary interest as with- to practice practice. drawal should he continue law in the husband’s law compensation pro- elsewhere. Additional is we do mean holding this not By vided should the husband with- voluntarily a earning capacity husband’s as draw cease from the firm and to practice member of the firm has relevance to not law. The does agreement provide any estate. community division of the Under goodwill accrued compensation for to a Family disparity section 3.63 of the Code in partner practice who ceases to law with the is factor earning capacity spouses of a firm, any it provide nor does mechanism making considered when a may which be realize the value of the firm’s goodwill. just of the right division Murff, property. Murff v. legal any right The lack of goodwill (Tex.1981). Although cannot value husband to realize the of the firm’s determining in properly be considered goodwill is a decisive factor. It distin community’s interest in the law value guishes case from present Geesbreght firm, earn to the extent that husband’s corporate provided wherein the structure his ing is enhanced continued capacity enabled Dr. Geesbreght mechanism which firm, the may in the law court participation of accrued realize the value goodwill assessing when dis consider this factor enhancing the value of his In the stock. in parity earning capacity spouses. present only through case the mechanism which may possibly the husband realize the Discovery. 2. Limitation of value accrued goodwill through is The wife contends law as member of continuing practice discovery firm, court denied depending improperly a circumstance sheets, profit law balance and loss on his firm’s capacity, own individual but also statements, reflecting and records salaries partners. uncontrolled discretion his partners. to senior position Thus is no better than that of and disbursements his discovery the firm’s Nail, granted in which trial court supreme physician plan agreement court retirement goodwill found the value accrued Internal Revenue practice an to be re and of the husband’s Ser professional individual schedules, provide K-l which annual vice alized earn only through enhanced future of the firm’s assets ing realization in the future summaries of his share Such capacity. documents, de- These expectancy entirely earnings. is no than an more Masquelette v. Commissioner agreement provi- Estate of 2. The contains dices.” also extensive Revenue, regarding (5th which we of Internal sions retirement benefits 239 F.2d unnecessary Cir.1956) Story, 99). find here. (quoting Partnerships to detail § earning To the firm’s future extent that law advantage as 3. Goodwill has been defined “the goodwill, proprie- capacity is attributable acquired by establish- benefit which ty the valuation of the of its consideration beyond capital value ment the mere *8 community in the firm is interest law estate’s therein, stock, funds, employed in or holding regard good- disposed in to our public general patronage consequence of the the law firm’s future will. To the extent encouragement which it receives from con- earning capacity other is attributable factors of its stant or habitual customers account goodwill, in is not the commu- than it celebrity, reputa- position, local or common or applied nity the same rationale based on estate skill, influence, punctuality, tion or or or goodwill. to accrued circumstances or necessi- from other accidental ties, partialities preju- from ancient or even contends, were insufficient to allow her to nership agreement, any existing buy-sell adequately prepare a valuation agreement, of the com- and the husband’s Internal Rev- munity interest in the firm. Specifically K-l enue Service schedules for the last five she complains without the requested in order to calculate years the value of the documents she is unable to determine the husband’s interest in the firm.4 McDaniel’s value of the firm’s accrued goodwill and its testimony was sufficient to demonstrate earning capacity, which have a requested direct rela- need for the materials. tion to the value of the community judge interest ordered that partnership agree- in the disparity firm and to the between ment and the husband’s K-l be schedules earning capacity spouses. produced and denied the motion as to the firm’s financial statements.
The husband contends that the wife was At trial one of the expert able wife’s witness- adequately determine the value of es, Sampson, interest in Jim testified that the value of the firm without the husband’s interest in the firm the financial records under withheld from her. provisions partnership agreement points He out that the wife presented the $161,000.5 was he Sampson indicated had of two testimony expert witnesses who these calculated values based on the formu- were able place a value on the communi- provided la in the partnership agreement ty interest in the firm without the absent using figures contained in the couple’s records. In addition the presented husband tax years returns for the last five and the evidence of the value of the community firm’s balance sheets for 1977 and interest in the firm through the managing eight months of Sampson 1978. did not partner, Kleinman, Harold who testified indicate that he had access to any other from notes he had made while examining financial records of the firm. the absent records. The argues husband that the wife was not harmed because suffi- trial, At expert, the wife’s other Lane cient presented evidence was on which to McDaniel, testified that the value of the value the community interest in the firm. husband’s interest in the tangible assets We do agree. $122,000. the firm was McDaniel indicated figure that he obtained this from Klein- The wife served the husband with a sub- man’s prior testimony. poena duces tecum requesting the disputed documents. He refused to with comply managing partner firm, Ha- request and the wife filed a motion to com- Kleinman, rold as testified to the amount to pel production of those pro- documents not which the husband would be entitled should duced. At hearing on the motion one of he either leave the firm and continue to the wife’s two expert witnesses, Lane practice law or be forced to withdraw from McDaniel, testified that he partners. needed the the firm a vote of the He yearly firm’s financial statements for the stated that the total due the husband under years plus last five $122,- interim financial circumstances was either of these statements for the current year, the part- $40,- 342.00.6 figure Kleinman’s is almost Although 4. during only McDaniel stated partnership agreement direct ex- should he with- amination that he voluntarily would like to have the K-l draw from the partners firm, schedules for all of practice he law. cease to conceded on cross-examination remaining 6.Kleinman testified that the balance necessary husband’s K-l schedule was earnings husband’s undistributed that he did not need the K-l schedules for the $45,853.08 account and that the balance partners. other McDaniel was never asked on $69,937.36. capital the husband’s account was previously cross-examination to retract his He also testified that deduction to be 10% stated need for the firm’s financial statements subtracted from the husband’s share of the voluntarily. nor did he do so $1,638.00. firm’s reserve account was The de- Sampson average figure equal also testified that duction should be 10% percentage amount the husband’s income from the firm husband’s interest the accounts years $172,000. fig- for the last five The hus- receivable for clients’ disbursements. This band is entitled ure to this additional sum was to be subtracted from the husband’s under *9 Sampson’s figure.
000.00 less than Klein- to possible it is calculate the amount in the man the figures testified that source of his capital husband’s and the account amount “regular accounting was the firm’s rec- years of his for the undistributed income ords,” particularly the firm’s balance However, encompassed by the forms. the 31, 1980, sheet of December as document K-l schedules do reflect the amount to not to which the court wife denied the access. the be entitled from which husband would testimony This was admitted over the account, third the firm’s the item reserve timely objection wife’s out to the pointing in the specified agreement. court that she had been denied access to The trial of this commenced on De- action were the records which basis of Kleinman’s 8, 1980, eight cember and lasted for weeks. testimony. no The K-l schedules contained informa- contained in the tion as amounts Under these we find the circumstances various with the firm at husband’s accounts discovery denial of the wife of deprived divorce, of one approximately year the time access to material information needed to the time in the represented after most effectively cross-examine and to Kleinman K—1 at trial. recent schedule admitted Nor experts they allow her all the information K-l figures do the contained in the sched- required accurately to the value of calculate with testified comport figures by ules to the husband’s interest in firm. Had the which for the Kleinman were substituted produced requested, documents been as by jury’s finding the court. wife have had neces- would the information sary effectively challenge accuracy to figures consisted of testimony Kleinman’s Further, wife’s testimony. Kleinman’s from current records obtained the firm’s experts required rely were not to on second- produced which were at time. Of ary in to determining presenting data $122,343 gave which Kleinman as court her estimate of the value of interest before de- value of husband’s interest in firm. community $45,- ducting earnings distribution $69,937.36, 853.08, major was component The denial was ma discovery which, Kleinman, according represented to because the wife terial not it denied husband’s in the capital interest present information needed adequately said, This Kleinman was figure, account. court, her case to the it but also because but taken computation, not based deprived evi the trial court of sufficient 31, 1980, from “a schedule as of December dence on which base a valuation the firm and partner which lists each in The community interest the law firm. their capital his name opposite lists or her found the value of the objected The to this evi- account.” firm interest in the to be zero. On it ground on the constituted dence motion, disregarded husband’s the court no underly- with to which summary respect tes finding and the value jury’s substituted had provided. details been ing tified to Kleinman as the value community interest the firm.7 The wife to bring for the husband offered Counsel is proba contends that there no evidence of allow it to court and to be document support finding. tive value to the court’s however, judge, examined camera. We agree. the document the witness whether asked testimony, and be cumulative of his husband’s would Internal Revenue Service replied from were that it would. On fur-' through K-l schedules the witness examination, explained that ther Kleinman admitted into evidence. From these forms proportionate language judgment share firm’s reserve 7. From the contained apparent testimony the court deducted the it as to the account. There earnings the court had amount of undistributed reserve amounts contained either the firm’s pay ordered disbursed the husband feder- account or its accounts receivable for clients’ figure testified to taxes al income Kleinman, from disbursements. finding commu- thus the value nity interest in thé firm to be $76,489.
745 the bulk of the capital husband’s account trial, at the time of cannot shift the burden represented what the husband had actually the opposing party to examine them and paid assets,” for the “hard the furniture objection determine admissibility firm, and fixtures of the over the period testimony based on them. Sherwin-Wil twelve or thirteen years that he had been Co., 940, liams 424 Perry Co. S.W.2d 946 partner, senior and that “capital 1968, (Tex.Civ.App. writ n.r. ref’d — Austin account” was a cumulation of such items. e.). testimony Oral based on entries con The wife’s objected counsel to this testimo- tained in written producing records without ny being as summary of information from the hearsay. source of such information is the firm’s books that previously had not Heddin, Delhi Pipeline Gas Co. v. 508 been made available himto and that he did 417, 1974, (Tex.Civ.App. Tyler 420 S.W.2d — not want to and could accounting not do an writ). no production The lack of firm’s books at that in the point trial. renders Kleinman’s tes underlying records timony double-hearsay
From these it since the records proceedings appears that the wife’s themselves are until ad objection hearsay properly was not to the hus- band’s failure to bring into court the docu- mitted as business records under article ment containing the figure, cumulative but 3737e, (Vernon TEX.REV.CIV.STAT.ANN. that testimony based on this document was Zimmermann, Supp.1982-1983). Day & not competent because the document itself Strickland, 541, (Tex. Inc. v. 483 S.W.2d 546 represented a summary of other figures 1972, writ Civ.App. ref’d n.r. — Texarkana which had not been made available for her records, e.). These like those in Sherwin- examination. Williams, are hearsay, any testimony based on them is “hearsay spawned hear This objection was well taken. Co., say.” v. Williams Sherwin 424 S.W.2d Even if 31,1980, the document of December at 946. Consequently, Kleinman’s testimo offered, had been it would not have been ny not establish the trial court’s valua does admissible over objection made. It was tion as a matter of law. Xonu Inter See not a record of the husband’s contributions continental Industries v. Stauffer Chemical made at or near the time of each transac Co., 757, (Tex.Civ.App.— 587 760 S.W.2d tion as required by the business records 1979, Corpus writ). Christi statute, TEX.REV.CIV.STAT.ANN. art. (Vernon 3737e Supp.1982-1983). Neither problem by This was not cured were the underlying records authenticated experts. of the wife’s McDaniel testimony in the manner required by the statute. $122,000 as accepted figure Kleinman’s Kleinman’s testimony, based on un the value of the husband’s interest in the proved unproduced records, was not of the firm and indicated tangible assets susceptible of an adequate cross-examina the source of his information was tion, and neither did the wife’s attorneys which testimony, hearsay. Kleinman’s have an opportunity subject the firm’s on the Testimony hearsay based statements records to an audit of their own. Conse nothing hearsay others is more than quently, the evidence was inadmissible. Zimmermann, upon hearsay. &Day See Dallas Railway Guthrie, & Terminal Co. v. Inc., 546; 483 at Muro v. S.W.2d Houston 585, 550, 146 Tex. (1948). Co., Casualty Fire and Insurance (Tex.Civ.App.—San ton Counsel for the wife did An Further, n.r.e.). io ref’d objection waive the writ by advising the court testimony that he had no time to McDaniel based his of value on look at the records specified other than those and that- it would be factors impossible go agreement. We do not know through them and do an accounting have figures testimony what McDaniel’s would point at that in the trial. When been devel voluminous, records been if further information had party relying are them, merely by making oped discovery them accessible cross-examination underlying of Kleinman based on the rec propert support asset without in the evi- ords. largest dence. this interest is the Since estate, its value item of the other evidence as to the value of *11 principal was the contested issue at husband’s interest the firm under the respect property with to the division of the partnership agreement testimony was the of the that without a parties, we conclude Sampson, expert. the wife’s other the trial court could not proper valuation Sampson’sfigure great- was more than 30% making a properly exercise its discretion er the one ulti- figure, than Kleinman’s “just 3.63 right” division within section used the trial court to mately by determine these Family of the Texas Code. Under the value of the in the community interest circumstances we hold that the trial court’s However, Sampson firm. did not have ac- estate was an community division of the cess to the then current financial state- Consequently, abuse of discretion. firm, ments of the but was forced instead to the com- portion judgment dividing estimate the amounts in the various rele- remanded for a property must be munity vant firm using secondary accounts sources 434. new trial. TEX.R.CIV.P. Sampson information. testified on the him, basis of the information available to pre-trial to the wife’s respect With which did not include the current informa- discovery, we are unable to de motion for Kleinman, tion available to that the value which records should have precisely termine according of the husband’s interest the information produced. Much of been in the partnership agreement formula was of determin purpose was for the requested $161,000. light testimony, In the of this firm, matter we a ing goodwill properly trial court could not hold as a considered in determin hold should not be (before matter of law that the value de- interest. Neither is the husband’s ing $45,- distribution of ducting earnings records of all to examine the wife entitled 853.04) $122,342. bearing those only but partners, wife entitled inspect The Relevant information husband’s interest. those of the firm neces financial records 1980 and balance sheet for from the firm’s interest in sary calculate husband’s should be previous years for several possibly the firm under the formula contained in the will have to deter The court furnished. fact that one partnership agreement. The evidence, what mine, hearing after perhaps experts of her was able to estimate records, should be fur any, if additional informa secondary amount from sources of husband’s nished in order to determine negate right tion does not her to the most his inter and the value of earning capacity recog accurate information available. We part the firm as determined est in confidentiality nize the protect need to figures If relevant nership agreement. However, of the firm’s records. this need availa audit are independent on an based not be an absolute bar to because discovery rec of the firm’s ble, further examination may inspection the court order an in camera necessary. not be may ords their protect privacy. of the documents to Marks, (Tex. Maresca v. we have necessary, If remand is Tunks, 182, 328 1962); Crane v. 160 Tex. remand amicus curiae to urged by been (1959). the value of on the issue of not to remand the law firm and interest in
We find that the denial of dis This we can division. property the entire rights was such a denial of the covery Family in Texas Article 3.63 of calculated to not do. reasonably wife as was division be property requires that Code probably did cause the rendition cause and husband’s interest just right. The The husband’s improper judgment. of an large percentage firm constitutes major asset of interest in the firm was change in its community estate and community estate. Lack of this dis and re- the division may valuation distort valuation of this left the trial court’s covery a redistribution of the quire property. gold trial court credited the coins to the trial court must have before it all of the the community property, wife’s share of in order to make the parties pro- the coins or the finding that impliedly just right division mandated Article ceeds from them were still wife’s Therefore, 3.63. the entire divi- remand, possession.8 On the court should sion is remanded for a new trial. whether each of ask the to determine has parties possession has of the coins or Issues on Retrial having had them. received the benefit contentions has raised several If neither is found to have benefited spouse with recur on respect problems may coins, can- they from then possession *12 These include the of in- propriety retrial. in the property be included properly $126,400in awarded to cluding property the spouse. awarded to either which were comprised gold the wife coins exist; of award- propriety not shown to the Life Insurance b. The to the hus- ing policies four life insurance that the The wife also contends they to a contrary stipulation band insur awarding trial court erred in four life were to be awarded to the wife as her covering ance the husband’s life to policies separate propriety charg- the property; ing guardians although parties agreed the wife fees for ad litem him the had appointed objection; pro- over her and the The policies the were to be awarded to her. priety denying the wife an award for her policies sepa wife claims that the are her attorney’s fees. We have considered these that in reliance on the property rate and contentions in of our light remanding order proceed did not at agreement written she trial, the division for a new property separate trial to as to the present evidence property. stipulation character of the The
a. The Gold Coins as her sepa states that the wife “shall have respect gold With coins the the insurance property pol rate and estate” wife contends that division property question. language icies in used does unjust because the trial court included present not indicate that the character of gold property coins awarded to property “separate,” is but rather indi her when there was no evidence that these parties that the agreement by cates coins were in the possession party of either to the wife as her policiesare to be awarded at the time of trial. The wife admitted division of the com separate property upon that she had removed the coins from the to be munity language estate. We find this couple’ssafety deposit placed box and them property more nature of a settlement in the folders paper in their house. The wife agreement stipulation and not a as to asserts that the disappeared coins from the The trial court property. character of the house while she was out of the state and agree written parties’ is not bound accuses her taking husband of them while does not to settle the purport ment which she was gone. having The husband admits incorpo division and is not property entire searched the house while the wife was gone Harding v. judgment. rated in the See folders, having paper seen the but in (Tex.Civ.App.— Harding, empty sists that the folders were when he 1970, writ). The court Antonio no saw A San special them. issue was submitted to mandate of section 3.63 of must follow the jury asking whether the husband or just right and make a Family Code anyone acting in his behalf had removed regardless the coins from the house. Based on the division of issue, spouses. Before jury’s negative response agreement to this between wife, judgment (175) among Seventy-Five 8. The awarded the other Hundred Aus- C. One already possession items as follows: trian 100 Coronas Fifty (50) fifty gold and/or control of RESPONDENT JOELLEN B. Mexican Peso coins already possession and/or control of FINN. RESPONDENT JOELLEN FINN. agreement binding such an can become appointing guard abuse its discretion in court, the court must find that ians ad litem. fair, agreement just equitable compensation The amount of has been entered into without coercion guardians awarded to the ad litem is also Morgan other undue v. Mor influence. See will within discretion of the court and gan, 447, 450 (Tex.App 622 S.W.2d . —Beau not be overturned unless a clear abuse of However, writ). mont on retrial discretion is from the records. apparent the wife should have an to es opportunity Poston, (Tex. Poston v. policies separate tablish that are her 1978, no Civ.App. Dist.] [1st — Houston and, therefore, not sub property, writ). The guardi record indicates that the division in the estate. ject attended four trial con ans weeks of Cameron, 210, 219 Cameron v. 641 S.W.2d cerning custody the issue of as well as sev (Tex.1982). pre-trial hearings. eral The court’s award litem was guardians sup of fees to the ad c. ad Litem The Guardians ported by evidence in the record and was The wife next contends that not an abuse of discretion. ad li- appointing guardians court erred in parents of the minor child couple’s tem two minor children *13 objection. being protected by interests are the request, at the husband’s over her whose guardian required ad litem are appointed She the trial court abused its argues that fee are indi charging pay guardian’s they discretion in her with one-half of the unless no they 11.10(e) the fees because had TEX.FAM.CODE ANN. guardians’ gent. § perform, performed (Vernon parents ascertainable duties to As the Supp.1982-1983). no two minor children whose interests discovery, participated minimally and of the the If were entitled to guardians protect by appoint trial. the court sought litem, representation, fees for this minimal ad both hus any guardians ment of fees. should wife were liable for their the wife contends that the husband band and the charged parties have been with all of those fees are one factor The liabilities of making the court when guardians appointed by because the were to be considered property right do division of opposed. just motion which the wife We a and his Family 3.63 of the Texas under section agree. not 897, Goren, 899 531 v. S.W.2d Code. Goren 11.10(a) section Under 1975, (Tex.Civ.App. [1st Dist.] — Houston a may appoint Texas the court Family Code Horlock, 533 dism’d); Horlock v. see writ the interests guardian represent ad litem to 52, (Tex.Civ.App. 58 [14th S.W.2d — Houston parent- of the child in a suit affecting will be 1975, dism’d). This debt writ Dist.] child TEX.FAM.CODE ANN. relationship. the court when by considered a factor to be (Yemon 11.10(a) Supp.1982-1983). Such § on remand. dividing will not be overturned un appointment is shown. less an abuse of discretion Fees Attorney’s Wife’s d. The 829, 578 Swearingen Swearingen, v. S.W.2d of the court’s complains wife also The (Tex.Civ.App. 831 [1st Dist.] — Houston fees. any attorney’s 1979, minor failure award her dism’d). Custody writ to the were submitted issues special Two present contested in the highly children was and ne- reasonableness any jury regarding made guardians case. Whether and attorney of her the services cessity is a contribution to substantial serv- for those to be awarded which does not control amount hindsight matter of rendered the services found Trial of ices. of abuse of discretion. question were not reasonable attorney wife’s almost four weeks custody issue took therefore, and, did not reach necessary and for fifteen volumes of and accounts to be awarded. the amount question these circum of facts. Under statement special to those answers jury’s on the stances, trial court did not Based we find the 749 issues, the court did not award the wife an asset of the goodwill part The firm’s is that the attorney’s fees. The wife contends belong it does not nership entity, and jury’s answers to the two issues on special separate either the estate of attorney’s against great her fees were Bromberg, partners. the individual Source weight preponderance of the evidence Comment, TEX.REV.CIV.STAT.ANN. and that the court her denying erred Thus, 6132b, (Vernon 1970). art. 28-A § attorney’s fees. here. The inapplicable Nail decision is analogous goodwill partnership of the law required The court is not to award by the corporate goodwill addressed fees, spouse attorney’s either but rather the 570 Geesbreght Geesbreght, v. court fees are one factor to be con attorneys’ 427, Worth (Tex.Civ.App. 435 S.W.2d making just right sidered when divi — Fort 1978, dism’d). good The firm’s will writ Carle, 149 property. sion of the Carle v. 469, 1002, (1950); Tex. 234 1005 the community part S.W.2d enhances the value of Austin, 290, (Tex. Austin v. interest. nership 1981, Civ.App. writ); no Brooks v. — Austin con agreement does not partnership Brooks, 233, 238 (Tex.Civ.App.— partnership value of the individual trol the 1981, writ). Waco On remand of the is the being interests. The asset divided division, the reasonable and neces as a husband’s interest sary attorney’s parties fees of both will be a business, his contractual death going not making factor considered court in rights. benefits or withdrawal Slater just right property. division of the Cal.Rptr. Slater, Cal.App.3d We note that half of the state over The formula in the (1980). 688-689 appeal ment of facts filed in this concerns may represent partnership agreement the issue of child which the wife custody, interest, but value of the husband’s present did not challenge. portion That it a consideration preclude should *14 statement of facts was used 689; Slater, 160 at Cal.Rptr. other facts. solely challenge appoint the need for the Stern, 340, 257 v. 66 N.J. 331 A.2d Stern ment of ad guardians litem for two interest (1975). The value of the husband’s children, minor an issue on which she did value of the present should be based on the not prevail. We therefore tax one-half of business, entity going as a partnership the costs the wife and one-half of the of part would include consideration which costs to the husband. TEX.R.CIY.P. 448. goodwill, any. prop if Goodwill nership The original opinion is withdrawn. The an and, although intangible, it is inte erty judgment respect is reversed with business, the same as its part of a gral property division and affirmed in all other Culicchia, physical assets. Taormina respects. The cause is for a new remanded 569, Paso (Tex.Civ.App. — El solely prop- trial limited to the issue of the n.r.e.); 1962, Ordway-Saunders writ ref’d erty division. 711, Little, (Tex.Civ. Co. v. n.r.e.). writ ref’d App. — Amarillo GUITTARD, C.J., ALLEN, SHUM- possessed goodwill, law firm Whether the SPARLING, JJ., join PERT and in this and, so, questions are fact for if its value majority opinion. Taormina, 355 S.W.2d at the trier of facts. GUILLOT, J., in this participate did not case. future are concerned with majority STEWART, Justice, concurring. contingencies. All assets as of the time dissolu- estate are valued disagree majori- I with the respectfully There is no valid marriage. tion holding that the value of the law firm’s ty’s a professional to exclude reason is not to be considered in evaluat- goodwill part- rule when the from this basic ing the interest. interest community’s partnership ner intends to continue as a member of matters other than the childrens’ interest. firm. Nevertheless, each guardian ad litem was paid on an hourly basis as though each was
I otherwise concur. actively engaged in a trial, contested which AKIN, J., was not the joins in this case here. opinion. I Additionally, fail to why understand AKIN, Justice, concurring. children’s interests in this case were not Although agree judgment I represented under the doctrine of virtual reversed, be I also with Justice agree should representation by either their mother or by goodwill Stewart that the of the husband’s father, their each of whom represented law ar- partnership should be considered in by competent counsel. Oaklawn Preserva
riving at
the husband’s interest
in that
tion Society v. Board of Managers Dallas
Hence,
partnership.
joined
I have
in that County Hospital Dist.,
(Tex.
ests of the two children were not STEWART, J., joins opinion. in this Indeed, throughout parallel. but rather long guardian this trial both ad litems were STEPHENS, Justice, dissenting. nothing except but did submit bills present I respectfully dissent to the majority’s Thus, I hourly for trial time on an basis. conclusion that the division must fail why necessary to understand two were be reversed for a new I trial. believe the of these children. protect interests decision impermissible applica- results in an ap- Consequently, I would hold tion of our standard of review in a divorce litem for each pointment guardian of a ad case. an abuse of discretion. Since child was motion rehearing, application On the court to each of appoint husband moved for en granted, banc consideration was elev- litems, I would assess the guardian these ad *15 justices en of this court A participating. the husband. against costs of each court, of the is majority as evidenced by view, courts are often too free my In opinion, their concluded that the trial judge in appointing funds in and litigants’ with erred in denying adequate dis- ad litems. guardian unneeded compensating of covery the husband’s interest in this Indeed, ad litem fees guardian in Thompson the law firm of & Knight, and with to respect sum significant case were a that such error mandates reversal of the Consequently, estate. community total property division award of the My court. litem appoint guardian ad judges should review of the my analysis record and of the protect to absolutely necessary only where applicable law leads me to a different con- interests and then to exercise the childrens’ clusion. as to guardian ad litems restraint necessary was expended case, contested, the time tried to bitterly whether This was case, this In trial’s protect eight to the wards. for some weeks. At the jury were sub- fifty-two special conclusion issues judge guardian both ad permitted litems was After the verdict jury. mitted throughout trial, sit the entire though even returned, page judgment a fifty-four participated neither and even much though divorce, cus- awarding entered granting of testimony and trial time concerned
751 (Tex.Civ.App. Tyler to the fa- son, minor children 52 tody of the four 515 S.W.2d — the moth- ther, support 1974, writ). child charging no no parties. er, dividing and that errors com readily it is seen Thus complaint makes no only The mother require reversal during mitted trial award, unjust divi- only manifestly custody causes a when the error proper per- Smith, matters in their place sion. To 620 v. division of Smith property. our standard I first address no spective, (Tex.Civ.App. 619 — Dallas light responsibility, review and writ). sought. relief
PROPERTY DIVISION values of stipulated parties
STANDARD OF REVIEW substantially all of the assets. 1, 1970, Title I of the Texas January On stipulated, jury As to those values not became effective. It was in Family Code Keough found the value of a retirement comprehensive guide tended to be a with plan $81,- Thompson Knight & to be it en respect family to all matters which 244.27, special and in to a issue response compassed. Article 3.63 of the Code directs found the husband’s interest in the firm action, judge, in a divorce to order Knight The trial Thompson & to be zero. parties a division of the estate of the in a error, judge cured the as to the husband’s just right, manner that the court deems entering by Thompson Knight, & interest in having regard rights due for the each issue, as to that NOV judgment marriage. children of the By party $76,- finding of his own substituting its it seen that the very language readily is supported 489.00, figure which grant intended to wide latitude legislature manag- testimony of the from the evidence when his judge exercising duty to the trial four Additionally, of the firm. ing partner The court’s discre dividing the estate. par- were divided between automobiles to division even to the extent tion extends Using assigned. ties, being values without of disregarding advisory jury. answers of a value of the net compute I figures, these Cockerham, v. Cockerham $869,065.73. The assets to be parties’ Merrell, (Tex.1975); Merrell v. 527 S.W.2d valued properties awarded various wife was 1975, writ ref’d (Tex.Civ.App. Tyler — the total $416,290.60,representing 48% at n.r.e.); (Tex. Roye Roye, 531 S.W.2d $452,- estate, was awarded and the husband 1975, writ); no Williams v. Civ.App. Tyler — the total estate. 775.13, 52%of representing Williams, (Tex.Civ.App.— 537 S.W.2d to the hus- award larger in a This results 1976, writ). Tyler $36,848.53. sum of band role, judge trial has This court’s once the issues were submitted to special Four division, if his to determine made found that the husband jury, they in which division, facts, consti- under all of the certain acts of damaged by had been of discretion. We are tutes an abuse funds from withdrawing community wife in legislature nor intend empowered, did pledging assets bank accounts judg- its appellate court to substitute benefit, loans for her sole personal secure *16 judge. ment for that of a trial knowledge consent or and without with a Furthermore, are confronted we half of The awarded one the husband. trial court exercised that for those acts to presumption damage found $39,761.00. and a clear abuse When properly, husband, in the sum of its discretion this adjusted by before we the division of must be demonstrated discretion sum, being wife awarded decision. it results in the trial court’s reverse the may $39,761.00 court, $416,290.60 plus by (Tex.Civ. Duke, 605 v. Duke secret with- received from the previously 1980, dism’d); Maben writ Paso App. — El funds, totaling the drawal of (Tex.Civ.App. Maben, 574 S.W.2d — Fort being $456,605.16, and the husband sum of 1978, writ); v. Wilker Wilkerson Worth $452,775.13, correspond- awarded with the did it likely result in an unfair unjust and $3,276.47 favoring difference of now ing division, or perhaps stated, more fairly did wife. The shift to 50.19% percentages the denial of discovery preclude wife awarded to the wife and being the estate from presenting evidence of substantially 49.81%to the husband. revealed, more assets than were pre- thus cluding the trial court from having before it by were assessed parties’ liabilities the extent of necessary the estate to effect mortgages charging existing all debts and Second, just a and fair division? was the party receiving to the specific properties allocation of gold certain coins to the wife Additionally, the husband property. improper, light of her contention that the $5,000.00debt due to an charged was with a husband had taken them? tax- unpaid individual. The federal income to wife es, charged if for 1978 were any, earnings gener- had separate insofar as her DENIAL OF DISCOVERY The husband was liability. ated the The wife argues that the trial court de- due payment with the of all taxes
charged nied her access to the financial books and For for 1979and 1980. joint earnings from records of the firm during pre-trial; that it were to file a parties year precluded her from introducing evidence, joint year dur- period return for during the phase, trial married, sepa- Thompson and a & ing which were they Knight’s gross receipts and net of time after revenues period rate one for be deter- which related to the inter- directly parties’ The tax was to liability divorce. firm; her, est in the that it dur- precluded Ad- accountants. by public mined certified ing introducing the trial from evi- phase, was ordered to reim- ditionally, the wife to sen- granted dence of retirement benefits $7,962.43, in the sum of burse the husband further, the trial partners; ior and capi- as required pay been which he had by permitting court erred one of senior by forced sale resulting in the gain tal taxes as to values partners testify of the firm to on a by the wife pledged a of assets creditor records, from rec- contained in without the her and made for benefit loan subject ords not admitted in evidence or knowledge or consent. husband’s pre-trial discovery. one life awarded judgment Finally, sought to take the Prior to trial the one to to the husband policy insurance him of the husband. served deposition She policies, other were ten the wife. There commanding subpoena with a duces tecum wife, set aside yet found to be owned him to a list of doc- produce comprehensive property. separate as his to the husband uments which all of the finan- encompassed was this award reasoning court’s The documents cial matters of the firm. which, judgment in the forth in detail set compliance with the produced were not animosity the bitterness recites filing in the wife subpoena, which resulted vested in discretion recognizes parties, TEX.R.CIV.P., motion, under Rule proper, to be this award him, finds compel production. their rights of each for the regard due having 8, 1980, December the trial court On condition As a the children. party and from evidence on the wife’s motion heard ownership of vesting of precedent McDaniel, called attorney, Mr. Lane husband, he policies the insurance Mr. McDaniel the wife as her witness. the cash sur- the wife pay required degree, Ph.D. and a testified that he held a policy. value of each render degree accounting. B.B.A. He stated facts, I conclude these From trained in divid- professionally that he was divided. evenly fairly During held business interests. ing closely addressed must be However, questions two asked Mr. judge hearing made. bemay final determination before *17 what records he needed to ade-' McDaniel interest in the determine Finn’s quately of cer- discovery of First, was the denial that he needed replied He partnership. error, if so firm and the law tain records of partnership agreement, the forms 1065 for requested need for the documents. Fur- five-year a and period, the forms K-l thermore, only was evidence are associated with the business. He to presented on the motion insufficient “partner’s defined a K-l as the distributive requested show that were all documents of earnings shares and other information in the prove material to Finn’s interest However, which he goes along....” converse was but also the partnership, agreed cross-examination, that since the testifying shown the wife’s own witness terms of the partnership agreement would necessary only certain documents were controlling interest, be in the sale of Finn’s Finn’s interest in the for him to determine he only Finn, needed the forms K-l of and Those documents were or- partnership. not of all the partners, to determine Finn’s the trial i.e. the produced by judge; dered Additionally, interest. he agreed that if Finn, agree- forms K-l the partnership of the partnership agreement denied Finn ment, plan. and the retirement specific assets, interest in in the trial, McDaniel, Mr. During both event of a sale of his partnership interest same witness who testified on the wife’s (which did), it that he could determine Jimmy motion to and Mr. compel, Simpson, Finn’s interest in the firm from his forms as her expert testified for wife witness- K-l, and that he would not need the firm’s es. stated that de- they Neither had been forms 1065. At the conclusion of this hear- nied to documents to make necessary access ing, the court ordered production of the a determination of Finn’s interest in the forms, partnership agreement, Finn’s K-l fact, partnership. In Mr. Simpson testified and the current retirement plan. that he been permitted had to review two designed TEX.R.CIV.P.RULE 167 is years eight months of of Thomp- provide party showing good a cause the records, son & Knight’s financial the Finns’ right inspection of of documents and evi personal financial statements for the last dence material to that cause of ac party’s five years, and the partnership agreement, tion or sought defense. documents and that from this data he was able to must contain material evidence. Further calculate Finn’s interest in Thompson & more, showing good a of cause is required. Knight. This designed, rule was not nor should it be In light presented of the evidence on the used, permitted to be fishing to further a compel, wife’s motion to judge’s the trial expedition. The burden is on the moving ruling, trial, and the evidence presented at I party allege prove good both cause conclude wife was not denied dis- production for the of the documents re case, of covery evidence material to her quested. This, course, allega of requires that no abuse of discretion has been shown. facts, proof tion and and not mere con Bryan clusions. v. General Electric Credit
Corporation,
(Tex.Civ.App.
My review of the motion reveals that no Mr. Kleinman was shown not be pled; only facts were conclusions as to the firm, was shown partner senior but *18 754 He testified managing partner.
to the 889, be 436 S.W.2d (Tex.1969). 891 The court 20 senior firm was of composed that the further required, as a condition for admis partners, junior partners, approximately evidence, 22 sion of the that summary the un 130 lawyers, approximately derlying 50 and data be brought associate either into court or made employees. He testified available to the opposing party, other salaried order that the correctness of the operations partner- evidence detail as to may be tested by inspection or accounting proce- that the detail of the ship, material may be for records, available cross-exami dures, as his role custodian nation. Lewis v. Savings Southmore Asso comput- the fact that were on records ciation, (Tex.1972); 480 180 S.W.2d Dallas ers, that examined the and the fact he had Railway Guthrie, & Terminal Co. v. 146 his notes of brought and to court records 585, (1948); Tex. 210 4 S.W.2d 550 Wig interest was their contents insofar as Finn’s more, Evidence (Chadbourn Sec. 1230 at 535 qualifi- this preliminary After concerned. 1972). Furthermore, rev. Texas case law to amount cation, was asked state the he recognized has that trial courts have wide 31, December capital Finn’s account on discretion in determining whether summa that such objection was voiced ries are necessary expedite to the trial. and summary, would constitute a testimony Texas Dallas, Warehouse Co. v. Inc. be admissible summary would not that such Mills, Springs Inc., (Tex.Civ. 735 511 S.W.2d provided were underlying unless the details 1974, App. n.r.e.); writ ref’d Moore — Waco collo- for examination. After considerable Moore, v. 430 247 (Tex.Civ.App.— court, lawyers and the quy between n.r.e.); Shelby Dallas writ ref’d Coun evidence was admitted. O’Banion, (Tex.Civ. v. 195 ty 188 S.W.2d long It has been that business established writ). App. Finally — Beaumont as may be received into evidence records the court holds that it is for court rule. TEX.REV. exception hearsay to opposing party to determine whether Computer art. 3737e. CIV.STAT.ANN. adequate has to opportunity had an exam- recognized business records. printouts are as here be noted ine the records. It should Collins, (5th Rosenberg v. 624 F.2d See as testimony that when Kleinman’s to Bell Tele Cir.1980); Voss v. Southwestern Finn’s value of account solicited capital (Tex.Civ. phone Company, made, objection Thompson & and 1980, writ ref’d App. [1st Dist.] — Houston offered make the records availa- Knight n.r.e.). the wife ble to for her examination. Her Line Pipe wife relies on Black Lake refused, that he did not stating counsel Co., 538 S.W.2d v. Union Construction Co. records, look at and that he did want to proposition for that (Tex.1976), have time to examine them. In then have been testimony should not Kleinman’s this a waiver of the my opinion constituted testimony his consisted of admitted because examination, right wife’s further con- and thus of business records summaries seeking being absence of denied a con- misplaces her hearsay. The' wife stituted for purpose. tinuance that Black Lake holds on Black Lake. reliance Kleinman was The evidence shows that admissi- underlying records are when that firm managing partner of the with the 3737e, rec- when those art. ble under he responsibility operation; its was cus- data are shown to supporting and their ords records; its the court was shown it would todian of extent be voluminous bringing entire production impracticality require be impracticable court, into perused by underlying entire mass be mass of documents them, best evidence aloud to of entries over read constituted thousands allowing relaxed written be purchases, rule should or more of sales years eleven wit- aby qualified or testimony summaries other data depreciation schedules of an the results summarily. stating account; ness capital the immateri- up made records, citing Cooper examination relate other they of the records as ality Co., Oil & Gas Co. LaGloria Petroleum all entries employees; partners *19 $500,000.00 time of the or about the were made at could been in excess of have transaction; records were finally, the this interval of time. during to counsel for the wife’s made available Hill left the Harvest After her sister set that the test It seems to me examine. 14,1980, the morning July address on the of been met. in Black Lake has out coins in various gold wife hid the and silver wife’s evidence, and from the she this testified that places From in the house. She the documents inspect refusal the next three night counsel’s did the spend that I conclude inspection, house, although stay offered for she did nights when at that as an days. was admissible testimony during Kleinman’s of the time those there some rule. hearsay to the exception 18, 1980, On the wife left Dallas July time During month. this gone for one GOLD COINS THE MISSING the hus- her whereabouts were unknown to Dallas, the wife first she reveals that band. When she returned to Our record removing of the 175 September accused her husband filed suit for divorce pe- Mexican time, gold Austrian Coronas and 50 contemplation and in Before that sos, the to the other divorce, all of but made no accusation as she removed filing discovery that her upon controlled safe coins. testified jointly a She gold coins from neither the Dallas, missing anoth- coins she notified bank in box at one deposit their alone, police any company the knowl- nor insurance without er, in her name issue, special In answer disappearance. the hus- Later when of the husband. edge nor husband neither the the found that transfer, jury moved she of this band learned these removed in his behalf anyone acting established again bank and to a third them Hill address. coins from the Harvest alone. name box in her deposit a safe wife 7, 1980, after the long On October suit, The first divorce to which the hus- Dallas, a loan negotiated she returned to cross-action, no was sched- band had filed $120,- in the amount from a Dallas Bank 14, 1980, July uled for trial on before remaining gold 000.00, the securing it with wife visiting judge. morning On that bank at coins, valued and silver morning, dismissed her suit. On that same $190,475.00. where she and her sister drove to the bank wife, gold of all that deposit she her safe box This evidence shows emptied gold coins, 14, 1980, du- in consisting possession of 275 Austrian four July her cats, absolved Krugerrands, peso 50 Mexican in gold question. coins coins, hundred It taking and 175 Austrian one them. gold from later husband only burglars removed bank, at her sister rent- that highly unlikely coronas. While coins, the remain name, leaving all making her deposit specific ed a safe box in these ones, as other valuables as well co-signatory ing on the box. Under house, absence. during box the wife’s that her sister rented the wife testified clearly justi facts, judge was had a which she wished these because she book wife, party the last it, charging and denied that she transferred fied in keep Arring coins. gold See box. with possession, coins into her sister’s gold (Tex.Civ. of five buck- 613 S.W.2d possession Arrington, also took ton v. The wife v. 1981, writ); Baxla $1,000.00 no coins, containing Worth App. silver each ets of — Fort (Tex.Civ.App Baxla, value, as collateral 522 S.W.2d pledged face which had . —Dal Grothe, 590 bank, per- writ); for her Grothe made las no on a loan at 1979, no benefit, knowledge (Tex.Civ.App without the sonal — Austin writ). husband. wis- bank, challenge the I must summary, and her sister left In The wife and remand Hill, reversal majority’s Harvest took to her home on dom of drove new trial as case for a house, the sister left. this coins into that unless First, law is clear value of the market division. agrees The wife manifestly results in a in the trial error possession coins in her exclusive gold unfair division of the the error is property, Second,
harmless. majority agree part good-will Thompson & case, Knight is a divisible asset in this so good-will is not in issue. All of the other having stipulated par-
values been ties, capital this leaves account of Thompson the husband in the firm of & *20 Knight disputed. Perhaps a new trial as to produce precise prof- will a more fer computer print- of evidence as to this
out figure, yet figure unquestiona- will be the
bly same. result then will be just not a more fair and division of the parties’ instead, parties; estate between the
it will be a dissipation capital
account, more, perhaps pay the addi- fees, fees, lawyer accounting
tional witness fees, litigation, and other result- expense
ing, finally, in a lesser sum to be realized by parties. litigation long, This has been tedious, expensive, and emotional for the parties and their children. It should be judgment
ended. The trial court’s should in all be things affirmed.
CARVER, STOREY, WHITHAM and ROWE, JJ., join in this dissenting opinion. Land and Watson
Robert W. WATSON Company, Appellant, Cattle Stephen Anna BETTINGER and Appellee.
Margaret Bettinger, No. 2-83-053-CV. Texas, Appeals Court Fort Worth. 7, 1983. Sept. 12, 1983. Denied Oct. Rehearing