Bush v. Bush
336 S.W.3d 722
Tex. App.2010Background
- Tracy Bush and Michael Bush married in November 1999 and had a daughter, C.B., with prior marriages involving Tracy and Michael.
- During marriage there were allegations of Tracy’s affair and a separate claim that Tracy’s daughter J.S. alleged Michael sexually assaulted her; J.S. later recanted.
- The couple separated in May 2006; Tracy filed for divorce in October 2006.
- Agreed temporary orders granted Tracy temporary custody of C.B. with Michael’s visitation supervised by an adult.
- The trial court appointed an amicus attorney to interview the child and assess safety; the amicus operated with a limited scope.
- At trial, the court awarded Tracy and Michael joint managing conservatorship of C.B. with Michael designated to designate C.B.’s domicile; it also divided the community estate and classified several horses as Michael’s separate property, and Tracy appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Amicus appointment preserved for appeal | Bush | Bush | Issue not preserved for appeal; overruled on preservation grounds. |
| Whether joint managing conservatorship and domicile designation were proper | Bush argued sole conservatorship with supervised possession | Bush argued joint conservatorship was best; domicile designated to Michael | No abuse of discretion; joint managing conservatorship and domicile designation upheld. |
| Whether the community estate division was just and right | Bush | Bush contends unequal division and allocation of tax liability; argues improper reimbursement | Division upheld; court properly considered tax liability, and unequal division was within discretion. |
| Characterization of four horses as Michael's separate property | Bush | Horses either gifts to Michael or to family; tracing not required in all gifts | Legally sufficient evidence supported horses as Michael's separate property. |
| Whether trial court properly considered the family’s tax liabilities in property division | Bush | Employment taxes were community liabilities to be divided | Trial court did not abuse discretion; taxes treated as community liability for division. |
Key Cases Cited
- Monroe v. Alternatives in Motion, 234 S.W.3d 56 (Tex.App.-Houston [1st Dist.] 2007) (abuse of discretion standard for conservatorship appeals)
- Holley v. Holley, 864 S.W.2d 703 (Tex.App.-Houston [1st Dist.] 1993) (credibility and evidence evaluation framework)
- In re T.D.C., 91 S.W.3d 865 (Tex.App.-Fort Worth 2002) (standard for evaluating conservatorship decisions)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex.2005) (standards for reviewing legal and factual sufficiency; abuse of discretion guidance)
- Lenz v. Lenz, 79 S.W.3d 10 (Tex.2002) (best interests and custodial evaluation framework)
- Alsenz v. Alsenz, 101 S.W.3d 648 (Tex.App.-Houston [1st Dist.] 2003) (broad discretion in dividing community estate; property characterization)
- McElwee v. McElwee, 911 S.W.2d 182 (Tex.App.-Houston [1st Dist.] 1995) (family property division standards; tracing and community interests)
- Pace v. Pace, 160 S.W.3d 714 (Tex.App.-Dallas 2005) (donative intent and characterization of gifts in property division)
- Roosth v. Roosth, 889 S.W.2d 445 (Tex.App.-Houston [14th Dist.] 1994) (gift characterization and separate property presumption)
- Inwood Nat'l Bank of Dallas v. Hoppe, 596 S.W.2d 183 (Tex.Civ.App.-Texarkana 1980) (characterization and division of property; third-party creditor rights)
- Providian Nat'l Bank v. Ebarb, 180 S.W.3d 898 (Tex.App.-Beaumont 2005) (effects of property division on creditors’ rights)
- Rusk v. Rusk, 5 S.W.3d 299 (Tex.App.-Houston [14th Dist.] 1999) (donative intent and separate property in gifts)