# Herbert v. Herbert > Texas Supreme Court · May 25, 1988 · 31 Tex. Sup. Ct. J. 453 URL: https://www.frixlaw.com/law-library/cases/9682118 ## Case - **Full name:** Hansel Kay HERBERT, Petitioner, v. Dorothy HERBERT, Respondent - **Court:** Texas Supreme Court - **Decided:** May 25, 1988 - **Citations:** 31 Tex. Sup. Ct. J. 453; 754 S.W.2d 141; 1988 Tex. LEXIS 59; 1988 WL 51624 - **Precedential status:** Published - **Opinion:** Dissent by Culver - **Judges:** Kilgarlin, Phillips, Gonzalez, Robertson, Mauzy, Ray, Culver - **Cited by:** 434 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9682118 ## How later opinions describe it (automated extraction) - explaining that in conducting factual-sufficiency review, appellate court’s admission “that reasonable minds could differ about the conclusion to be drawn from the evidence makes it abundantly clear that a substitution of court findings for jury findings has occurred. This was… - noting that factual sufficiency review allows appellate court judges "to usurp the jury function. It is allowing them to substitute their own thought processes for those of the jury. Any distinction between appellate judges weighing the evidence and appellate judges determinin… - noting that factual sufficiency review allows appellate court judges Ato usurp the jury function. It is allowing them to substitute their own thought processes for those of the jury. Any distinction between appellate judges weighing the evidence and appellate judges determinin… - reversing court of appeals=s decision on factual sufficiency and noting that A[t]he admission by the court of appeals that reasonable minds could differ about the conclusions to be drawn from the evidence makes it abundantly clear that a substitution of court findings for jury… - reversing court of appeals's decision on factual sufficiency and noting that "[t]he admission by the court of appeals that reasonable minds could differ about the conclusions to be drawn from the evidence makes it abundantly clear that a substitution of court findings for jury… ## Opinion text *146 CULVER, Justice, dissenting. In reviewing the judgment of the court of appeals, 699 S.W.2d 717 , it is obvious that the court realized that Mrs. Herbert had suffered an inequitable result at her jury trial. I agree that a new trial should be conducted. Therefore, I must respectfully dissent from the majority opinion. The facts show that when Mr. and Mrs. Herbert divorced in 1977, they entered into an agreement incident to divorce. It was approved by the trial court and incorporated into the final decree. Under this agreement, the wife was to receive 50% of the husband’s retirement pension when he began receiving his monthly payments in February, 1982. All other community property items were divided, including many household chattels by the agreement. After the ex-husband began receiving his pension at age 60, the ex-wife sued to enforce the terms of the agreement, since he was not sending her 50% of the pension. The pension was a community property asset. It was not “his” pension of which he agreed to “give” Mrs. Herbert one-half. When the case was tried to a jury, Mr. Herbert testified that he did not pay 50% of the pension to his ex-wife because she had not delivered to him a number of items awarded to him in the agreement incident to divorce. The case was tried to the jury as though the agreement/judgment was just like any other commercial contract. A judgment which had been final for five years was attacked as though its terms could be modified or cancelled on a showing of substantial breach of contract. The jury answered the one issue submitted to them that Mrs. Herbert had not substantially complied with the duties and obligations required under the property settlement agreement. Based on this jury finding, the trial court denied Mrs. Herbert any recovery. Since Mr. Herbert did not get all his chattels, Mrs. Herbert lost all her right to 50% of the pension. The majority opinion affirms the trial court decision forever depriving Mrs. Herbert of her community property interest in the pension. This is, to me, an injustice. It is my opinion that agreements incident to divorce which are spelled out in a decree or made a part of a decree by reference should be treated as final judgments. These should be enforced as judgments. Either party may seek enforcement of divorce decrees. Mr. Herbert’s claim for missing chattels, or the value thereof, at another trial should be treated as a credit or set-off to Mrs. Herbert’s claim for her one-half of the pension. Equity should continue to have a place in family law matters. The court of appeals reviewed the facts as Article V, Section 6 of the Texas Constitution provides. It did not substitute its finding for that of the jury. It found that Mr. Herbert raised an affirmative defense which would have totally abrogated the prior divorce decree, which is a final judgment. Concluding that this was not correct, the court of appeals returned the case for a new trial. While I may not concur with everything in the opinion of the court of appeals, I do approve of the result — reverse and remand for a new trial. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9682118. Public record. Not legal advice.