holding inception-of-title doctrine applied to retirement benefits such that, those benefits acquired during marriage, while parties resided in community property state, were community property while those benefits that accrued while parties resided in common law states, or while spouse was single, constituted separate property
How later courts described this case
- holding inception-of-title doctrine applied to retirement benefits such that, those benefits acquired during marriage, while parties resided in community property state, were community property while those benefits that accrued while parties resided in common law states, or while spouse was single, constituted separate property
- holding that a division of community property is not an unlawful "divesting" of a divorcing spouse's separate property, citing Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299 (1960)
- recognizing that the Texas Constitution and Family Code do not allow a court, in a divorce proceeding, to divest one spouse of separate property by awarding it to the other spouse
- stating that separate property may not be divested
Written by the judges who cited it.
The opinion
GREENHILL, Chief Justice,
concurring.
I agree with the substance of the concurring opinion of Mr. Justice McGee.
I also agree with the holding of the Court that marital property acquired in a common-law jurisdiction is not separate property within the framework of the Texas community property laws.
The majority opinion gives several grounds for its holdings with which I obviously do not agree. Since there are many reasons given, it is not necessary to reach constitutional grounds, particularly the “due process” argument. A wise rule of opinion writing and appellate judgments is that constitutional grounds are not decided unless it is absolutely necessary.
A redeeming feature of the majority opinion, as I understand it, is that it does not reach the “due process” point. If it even suggests such a holding, it is unnecessary to the opinion.
The Court’s opinion does not disavow the dictum of the earlier opinion in Eggemeyer. Separate personal property was not before the Court in Eggemeyer; and any observation about “due process” was, in my opinion, clearly dictum. With this state of the law, we also have the undisturbed language of Hedtke that it was permissible to deal differently with separate realty and separate personalty.
It is my hope, therefore, that the Court’s power to deal with separate property, particularly separate personal property, may be addressed by the Legislature. After all, the Legislature is the policy making body of this state. In this context, the Legislature *229 will have an alternative to enacting alimony statutes which will surely result if the “due process” dictum of Eggemeyer should ultimately prevail. The Legislature can change the “estate of the parties” and other statutory provisions; but it cannot change the “due process [due course] of law” of the Texas Constitution, — without a constitutional amendment.