Taylor v. TaylorTaylor v. Taylor
OPINION
This is an appeal from a judgment granting appellee, Vera Lee Taylor, a divorce from appellant, James Lee Taylor, and ordering a division of the community property of the marriage. The assignments of error are directed to that portion of the judgmеnt relating to division of the community property. We are of the opinion that reversible error is not presented and that the judgment should bе affirmed.
All five assignments of error are directed at the action of the court in its disposition of a balance of $23,959.26 in appellant’s account No. 87805 in The Permian Profit Sharing Trust. The stated purpose of the Trust is that of encouraging saving and self-provision for the future on the рart of employees of the participating companies. Employees contribute from their incomes and have their contributions matched by their employers to make up the corpus of the Trust, which is invested for possible, but not guaranteed, additional earnings. Pаrticipation is voluntary, and an employee may voluntarily withdraw. Participation ends upon termination of employment with an emplоyer involved in the plan. By its judgment, the court in this case ordered appellant-husband to withdraw from the Trust and pay one-half of the $23,959.26 to the appellee-wife. Under the provisions of the Trust, the only way the husband can withdraw his share is to withdraw from participation in the plan altogether. There is no contention that the funds in the Trust are not community property, but the vice of the court’s action, the appellant urges, is that he is forced to cease to participate in order to make a present division with his wife.
By his Point of Error number One apрellant says that the error of the court is that it did not have the power to order him to withdraw from participation in The Permian Profit Sharing Trust and to pay over the sum of $11,935.52 for the benefit of the wife. In this assignment he does not question the power of the court to divide community proрerty, nor does he question'the court’s division of one-half to each, as being an abuse of discretion. The thrust of his argument is that there must be рroperty available for division as to which the court can exercise its power to order a division, and that there is no authority for the court to order him to take a voluntary action to withdraw from the plan in accordance with its terms.
We are unable to agree with appellant that the court did not have the power to order him to withdraw from the plan. Article 4638, Texas Revised Civil Statutes Annotatеd, provides in part: “The court pronouncing a decree of divorce shall also decree and order a division of the estate of the parties in such a way as the court shall deem just and right * * There can be no doubt that the property in question was in existence and “available”. Under the provisions of the plan, appellant could, at any time, withdraw it and reduce it to his possession, in the very manner ordered by the court. This court so held in Duncan v. Estes, Tex.Civ.App.,
Points of Error 5 and 2 challenge the court’s determinatiоn as a matter of law that the appellant could withdraw from the plan within the framework of it, and that his interest therein was a distributable interеst. We conclude otherwise from a reading of the plan, as we did in Duncan v. Estes, supra.
The remaining points of error either present the question of abuse of discretion or complaints as to findings of fact, and we are of the opinion that abuse of discretion is not shown, and we are unable to determine the assignments as to findings of fact because there is no statement of facts in the record. In the absence of a statement of facts, the trial court’s findings of fact are binding on the appellate court, and it must be presumed that the evidence was sufficient and every fact necessary to support the findings and judgment was proved at the trial. Carter v. G & L Tool Company of Utah, Inc.,
All assignments of error have been considered, and all are overruled, and the judgment of the trial court is affirmed.