concurring and dissenting.
As to point of error one, I concur with the majority that there is sufficient clear and convincing evidence to support the court’s finding that Bob intended and did make a gift of the first 500 shares of Robert W. Powell & Associates, Inc. (the company) stock to Jo. However, as to the second 500 shares of Robert W. Powell stock, I disagree with the majority. Based on the evidence in this record, I would hold that the court erred in finding that Bob made a gift to Jo of the second 500 shares of stock, and that the second 500 shares of stock should be returned to Bob as his separate property.
I agree with the standard of review set out by the majority that, coupled with delivery and acceptance, there must be an intent to make a gift. I fail to find any evidence of donative intent as to the second 500 shares.
Bob testified as follows:
1.The company was incorporated in 1979, with an original issue of 1000 shares; on October 3, 1986, prior to his marriage to Jo, an additional 9000 shares were authorized. As of October 31, 1986, he owned 10,000 shares, the original 1,000 and the additional 9,000; on December 1, 1986, he divided the original 1,000 shares of stock into two portions, containing 500 shares each, and put 500 shares in Jo’s name and kept the other 500 shares in his name; that he transferred the first 500 shares of stock “to keep peace in the family”; that Jo was not aware that there were 10,000 rather than 1,000 shares.
2. That in March 1987, he endorsed over to Jo the 500 shares that he had placed in his name because he feared that his former wife and her attorney, who were given a $6,000 and $25,000 judgment against him respectively, would try and take the stock and that he wanted to have a little something in reserve to keep going. He stated that Jo did not request the transfer, but she agreed to the transfer so that the stock would be protected and if anything happened to them, i.e., that they were no longer husband and wife, she would return the stock.
3. That he would not have transferred the second 500 shares to her without this understanding. Further, she felt the whole idea of the second transfer of the 500 shares was deceptive and that he was not a Christian for doing it. That no money, or consideration passed for the second 500 shares of stock.
Jo testified as follows:
1. That Bob owned the company before the marriage; that they lived together nine months after they were married and then separated.
2. Concerning the first 500 shares, she testified that the 500 shares of the company’s stock were given to her. Her testimony follows:
Q. So that was a gratuitous act on his part?
A. The first 500 shares yes.
Q. And what about the second 500 shares—
A. That was an attempt to keep it from his ex-wife.
Q. And you knew that
A. Yes Sir.
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Q. So regardless of what the reason was, or the intent was, you’re willing to *187make something out of that by taking that stock, aren’t you.
A. Yes Sir.
Q. Do you feel as though since he was wrong in doing it, the fact that you’re wanting to keep it and benefit by is, that’s Okay?
A. Yes Sir
3. Jo testified further that he gave her the first 500 shares on December 1, 1986; that he wanted her to have them as a commitment to the marriage, and she interpreted this as a wedding gift.
Sallye Tucker testified as follows:
1. She was an employee of the company for 13 months in 1986 and early 1987; that immediately after Bob obtained a divorce from his second wife, and before he married Jo, he discontinued his salary from the company for the purpose of having an impact on the divorce.
2. She stated that Bob had her issue the first 500 shares in Jo’s name and he said “it was his wedding present to her ... ”; that there were absolutely no strings attached to the first 500 shares.
3. She testified that she issued the second 500 shares in Bob’s name. That her signature was on the back of the stock as well as Bob’s and that it indicated that his 500 shares were transferred to Jo. This transfer was much later than the transfer of the first 500 shares. When she was asked if there was anything said, or any reason given for the transfer of the second 500 shares, she replied, “No, I do not recall.”
Based on the above evidence, there is no evidence contained in this record to support donative intent of a gift of the second 500 shares to Jo. Therefore, I would sustain Bob’s first point of error as to the second 500 shares and overrule his point of error as to the first 500 shares inasmuch as the evidence supports donative intent on the part of Bob as to the first 500 shares.
Point of error five asserts Bob’s claim that the trial court erred in ordering him to pay $6,369 in attorney’s fees on Jo’s behalf. I agree with the majority that this case does not fall into the fact situation in Chiles since there was only separate property involved in Chiles. My disagreement lies in the facts as stated by the majority. The court’s discretionary power to award attorney’s fees on behalf of the wife, as in this case, is supported by many considerations in the court’s just and right division of the community assets and liabilities. This is true even if the assets exceed the liabilities, this being only one of the matters that the court considers in deciding to order attorney’s fees paid on behalf of either of the parties in the divorce. Carle v. Carle, 149 Tex. 469, 474, 234 S.W.2d 1002, 1005 (1950). Under the record in this case, I would find that the trial court did not err in awarding Jo attorney’s fees.
I would overrule point of error five.
In addressing points of error eight and nine, I disagree with the reasoning of the majority. As to the liens placed by the trial court on Bob’s separate property, the evidence in the record supports that these liens bear no relationship to Bob’s separate property. The majority reasons that “[t]he liens and the injunction are unnecessary in view of the cash supersedeas deposit, the sufficiency of which has not been challenged by Jo.” This leaves an inference that if you do not file a supersedeas bond then the liens placed by the trial court on Bob’s separate property may be proper. Therefore, I would address these points of error in the following manner.
In point of error eight, Bob complains that “the trial court erred in placing a judgment lien in favor of Jo on 20 percent of all stock owned by Robert W. Powell in Robert W. Powell & Asso., Inc. and a judgment lien on 30 percent of all stock, land, or interest owned by Robert W. Powell in [other companies owned by himself].” In point of error nine, Bob complains that “the trial court erred in enjoining [him] and the various corporations from diluting the shares of stock presently issued and outstanding.” The trial court’s final decree of divorce states that both of these awards were made “to secure the judgments herein awarded to her and against [Bob].” The trial court’s judgment liens include the entirety of Jo’s judgment.
*188When the trial court issued its final judgment on February 28, 1989, it placed a judgment lien on 20 percent of all stock owned by Bob in the company, and a judgment lien of 30 percent of all stock and/or interest owned by Bob in three of the other companies that he separately owned. Bob filed a cash deposit as a supersedeas bond in the amount of $33,492.80 on March 30, 1989, staying the execution of this judgment.
Bob asserts that both the judgment liens are improper because (1) he was required to file a supersedeas bond in addition to having his stock subject to the liens; (2) the trial court’s liens prejudice and hamper his ability to do business after the divorce and also interfere with the rights of third parties in the various companies; and (3) the liens amount to a divestiture of separate property.
I would hold that the trial court erred in placing a lien against Bob’s separate property, namely his shares of stock in the company and the other entities. Bob’s shares of stock in both the company and the other entities were his separate property. A divorce court may impose an equitable lien against the separate property of a spouse to secure a monetary award that represents the consideration for the other spouse’s interest in that property. Johnson v. Johnson, 804 S.W.2d 296, 299 (Tex.App.—Houston [1st Dist.] 1991, no writ); Kamel v. Kamel, 760 S.W.2d 677, 679 (Tex.App.—Tyler 1988, writ denied).
In this case, neither Jo nor the community had any interest in the stock on which the trial court placed a lien. The stock and interest in the companies were Bob’s separate property. Because the trial court’s lien deprives Bob of his separate property, those portions of the judgment that place a lien on Bob’s interest in the corporations should be deleted from the judgment.
I would sustain points of error eight and nine for the above reasons and reform the judgment to delete the liens against Bob’s stocks and interest in all of his separate property companies involved herein.
In his eleventh point of error, Bob argues that the court erred or abused its discretion in releasing Jo from liability for a loan in the amount of $10,000.
The court held that “Jo Lynn Powell is not liable for nor obligated to pay the alleged loan from Robert W. Powell & Associates, Inc. to Retirement Unlimited, Inc. in the amount of $10,000.” The evidence reveals that on March 8, 1987, the company in which Bob and Jo each owned separate property stock, transferred $10,000 to Retirements Unlimited, Inc., a company owned by Jo prior to the marriage and therefore her separate property. Neither of these companies was made a party to this cause of action. Therefore, the court had no jurisdiction to determine Jo’s liability with regard to loans involving these two corporations. Bob testified, “A $10,000 check was written on Robert W. Powell & Associates, Inc. into Retirements Unlimited, Inc.” It is not within the jurisdiction of the trial Court in this cause of action to make a determination as to the liability of Jo in regard to parties not before the court. See Tex.R.Civ.P. 39(a)(2)©.
I would sustain point of error 11.
Bob’s twelfth point of error appears to be a general attack on the trial court’s division of community property. Bob argues that the court abused its discretion in dividing the community property; that the divorce decree is tantamount to alimony; that the divorce decree deprives him of separate property; that there is no evidence to support the court’s division and characterization of community property.
A trial court enjoys broad discretion in dividing the community estate of the parties in a divorce. Bell v. Bell, 513 S.W.2d 20, 22 (Tex.1974). The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court’s action, but rather, whether the court acted arbitrarily or unreasonably. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). In dividing the estate of the parties, the trial court shall order a division of the property “that is just and right, having due regard for the rights of each party and any *189children of the marriage.” Tex.Fam. Code Ann. § 3.63(a), (b) (Vernon Supp.1991).
In my opinion, the trial court, in this case, erred in awarding Jo the second 500 shares of stock in the company, in granting the liens against Bob’s separate property to secure the judgments awarded to Jo, and in not awarding Bob the grandfather clock as his separate property. However, these errors involved misclassification of the separate property of both parties. None of the properties involved were community and therefore would not materially affect the trial court’s “just and right” division of the community property.
Therefore, I would find that the court did not abuse its discretion in the division of community property, and reform the judgment to conform to the findings set out above as to the separate property of the parties and the liens placed on Bob’s separate property. Jacobs v. Jacobs 687 S.W.2d. 731, 733 (Tex.1985).
I would affirm the judgment as reformed in the manner set out above.