# Cockerham v. Cockerham > Texas Supreme Court · July 9, 1975 · 18 Tex. Sup. Ct. J. 389 URL: https://www.frixlaw.com/law-library/cases/9683121 ## Case - **Full name:** Dorothy COCKERHAM Et Al., Petitioners, v. E. A. COCKERHAM, Respondent - **Court:** Texas Supreme Court - **Decided:** July 9, 1975 - **Citations:** 18 Tex. Sup. Ct. J. 389; 527 S.W.2d 162; 1975 Tex. LEXIS 242 - **Precedential status:** Published - **Opinion:** Dissent by Reavley - **Judges:** Sam D. Johnson - **Cited by:** 317 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/9683121 ## How later opinions describe it (automated extraction) - holding joint management of property sufficiently established by fact that title to property was taken in both spouses= names and both spouses were obligated on note under which money to buy property was acquired - holding that the reinvestment of profits of a solely managed business purchased during marriage constituted “capital improvements” with community property and thus the business was jointly managed - holding trial court erred in awarding husband interest in certain property because jury had already determined wife had not fraudulently gifted such property to third party and thus “there was no basis for the award to the husband” - holding presumption rebutted where wife testified she paid little attention to the property, never saw the deed, and husband testified he merely thought of the property acquisition as a business opportunity - holding that “party asserting separate ownership must clearly trace the original separate property into the particular assets on hand during the marriage” ## Opinion text REAVLEY, Justice (dissenting). I disagree with the Court’s holding that E. A. Cockerham is personally liable for, and his separate property subject to, the debts incurred by Dorothy Cockerham in the operation of the dress shops. 1 It is a long step through fact and law from the decision of the trial court that E. A. Cocker-ham is not liable personally for those debts, incurred by Dorothy “in her store adventure” which used community funds “over the protest of E. A. Cockerham,” to the decision by this Court that he is personally liable. What are the factors so “replete” in this record which the majority find to require that we take this step? We are given the following: (1) The husband “advanced” the wife money. He paid for the initial inventory and borrowed money at one time to enable her to meet her difficulties. (2) She was allowed to write checks on “his personal checking account.” He signed one of the checks himself to pay an operational expense. (3) The husband and wife filed joint income tax returns and deducted for the dress shop losses. Since “his dairy business” was enjoying a substantial income, the deductions reduced the amount of tax that would otherwise have been due. (4) The husband gave his implied assent to the dress shop liabilities. It must first be understood that there is no pleading and no contention that any creditor relied upon appearances that the husband was operating or responsible for these dress shops. Estoppel is not in the case. The facts by anyone’s version would not take us in that direction. E. A. Cocker-ham worked at his dairy farm near Itasca and did little else. During the two years while Dorothy Cockerham had a dress shop, first in Hurst and then in Burleson, he went there “once or maybe twice.” He did absolutely nothing toward the operation of these dress shops, and he took no interest in them except for his concern about the cost when he became aware of the difficulties several months before the collapse. Money for this venture did indeed come out of the Itasca, bank account. Quite á bit of it. But these were community funds and a community bank account. Except for the interests in land stated above, all that they owned was community property. The Court holds here that this community was under the joint management and control of both spouses. During the 22 years of their marriage they had kept their money in this account and the wife had always signed checks on the account by writing his name — sometimes adding “by wife.” The references in the opinion to what he “advanced the wife” are inappropriate to the present Family Code and to the emancipation of married women. The Cockerhams filed joint income tax returns through 1971. All income and all deductions were reported without any distinction between the separate or community nature of each. This is what spouses do in joint returns, and I know of no prior suggestion that the ownership of property or personal liabilities are thereby changed. I had supposed that the Texas Family Code as enacted and amended by the 61st, 62nd and 63rd Legislatures places a creditor who deals with one spouse in a position where, in the event of subsequent unpaid debts and liabilities, he might not be able to reach that community property which is not held solely in the name of the spouse with whom he deals. Section 5.24 protects the *175 creditor to the extent that he can assume the spouse has sole management of property in that spouse’s name. However, the other community property may well be under the sole management of the other spouse by the terms of § 5.22, which so specifies for property that the other spouse “would have owned if single” and which also gives effect to agreements between the spouses, whether or not the agreement is known to the creditor. If the other spouse has sole management, under §'5.61 that property is beyond the creditor’s reach. If that state of the law was disturbing to creditors, they can now relax while spouses with separate estates do the worrying. The Court today seems to hold that a wife (or husband) who assents to the husband (or wife) spending community funds in a venture thereby subjects her (or his) total estate to any liability that the husband’s (or wife’s) venture may precipitate. Except for the liability for necessaries which each spouse may owe for the support of the other spouse, the separate property of a spouse should be subjected to liability for debts of the other spouse only to the extent and under the same rules of law that would make a non-family party liable. §§ 5.61(a), 3.59. If the separate property of E. A. Cocker-ham is liable for the dress shop debts, discussion of sections of the Family Code and of the matters of joint or sole management are not necessary. The present case raises so many questions of interest that the majority does discuss a few unnecessary matters, and I shall discuss one. In deciding the respective ownership of the 320 acres, the majority begins with the “well established” rule “that when a husband uses separate property consideration to pay for land acquired during the marriage and takes title to the land in the name of husband and wife, it is presumed he intended the interest placed in his wife to be a gift.” The reason back of the rule is that a husband or parent owes a moral obligation to a wife or child, and a deed in the name of the wife or child is presumed to have been made in discharge of that moral obligation and as a gift to the natural object of his love and affection. If, however, the wife uses her separate money to purchase property and takes a deed in the name of the husband, the contrary presumption follows: he holds legal title under resulting trust for her benefit. Smith v. Strahan, 16 Tex. 314 (1856). Such differences in treatment are now passé. Comment, 9 Houston L.Rev. 120 (1971). For instruments executed after the date of the delivery of this opinion, I would apply the presumption in favor of a gift to either spouse. However, I would not presume a gift in favor of a spouse who is receiving an interest in the property irrespective of gift. In the present case, Dorothy and E. A. Cockerham were purchasing an undivided half interest for their community. This explains the appearance of Dorothy’s name as grantee. No presumption of gift by him to her of his separate property interest is justified. I must add that under the writing of the majority, the presumption has become a very weak one. The husband testifies that the interest is his, and the wife, though in court, says nothing about a gift; presumption rebutted. GREENHILL, C. J. and WALKER, J., join in this dissent. . E. A. Cockerham’s separate property, pri- or to divorce, consisted of the one half interest in the 320 acres discussed in the opinion, and also his remainder interest in 130 acres which is not discussed. The latter interest was given to him by his mother, who retained a life estate. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9683121. Public record. Not legal advice.