Harrell v. Harrell

692 S.W.2d 876 (1985)

Opal Frances HARRELL, Petitioner, v. Herbert C. HARRELL, Respondent.

No. C-3884.

Supreme Court of Texas.

July 10, 1985.

Coover and Coover, Ann E. Coover, Corpus Christi, for petitioner.

Nicolas, Morris and Barrow, Pat Morris and Sandra R. Nicolas, Corpus Christi, for respondent.

PER CURIAM.

This is a partition suit brought by a former spouse seeking division of military nondisability retirement benefits. The trial court held that the suit was foreclosed by this court's opinion in Trahan v. Trahan (Trahan I), 626 S.W.2d 485 (Tex.1981). The court of appeals reversed the judgment and remanded the cause for a new trial. 684 S.W.2d 118 (Tex.App.Corpus Christi 1984). On rehearing, 684 S.W.2d at 123, the court of appeals reversed itself and rendered judgment that Opal take nothing in her partition action. Because the court of appeals opinion on motion for rehearing conflicts with prior decisions of this court, we grant writ of error and, pursuant to Tex.R.Civ.P. 483, without hearing oral argument, reverse the judgment of the court of appeals.

It has long been the rule in Texas that community property not partitioned or divided upon divorce is held by the former spouses as tenants in common or joint owners. Busby v. Busby, 457 S.W.2d 551, 554 (Tex.1970); and Taylor v. Catalon, 140 Tex. 38, 166 S.W.2d 102, 104 (1942). It has likewise been the rule in Texas that a suit for partition of such former community property is a proper means of dividing said property between the tenants in common. See Taggart v. Taggart, 552 S.W.2d 422 (Tex.1977); Busby v. Busby, supra; and Keller v. Keller, 135 Tex. 260, 141 S.W.2d 308 (1940). The court of appeals held that Opal's sole means of obtaining a division of Herbert's military nondisability retirement benefits was by way of bill of review. Because this decision conflicts with this court's opinions in Taggart, Busby, Keller, and Taylor, we reverse the judgment of the court of appeals and remand the case to the court of appeals for consideration of Opal's remaining points of error.