Jose Romulo Lopez v. Anita Michelle Lopez
01-15-00618-CV
Tex. App.Oct 7, 2015Background
- Parties: Jose Rumulo Lopez (appellant) and Anita Michelle Lopez (appellee) divorced after a marriage beginning in 1985; dispute centers on characterization and division of the marital residence at 222 W. Twickenham Trail and an award of attorney's fees.
- Facts relevant to characterization: Appellee received proceeds from family realty after her father's death, deposited some funds into CDs, received a check from a sister, and later the parties purchased the Twickenham residence from appellee's mother during the marriage; appellee testified the sister's check and payments to her mother related to that purchase.
- Trial court rulings: the court characterized $31,566.67 of the residence as appellee's separate property and awarded appellee $10,000 in attorney's fees as part of the property division; trial court adopted findings and denied appellant's motions for new trial.
- Appellant's challenges on appeal: (1) factual and legal insufficiency to support treating $31,566.67 of the house as appellee's separate property (failure to rebut the community-property presumption by clear and convincing evidence); (2) insufficiency of evidence to support $10,000 attorney-fee award as part of a just and right division; (3) trial court abused discretion by denying a new trial.
- Evidentiary issues: appellant emphasizes that the check relied on by appellee was unauthenticated and dated months before the deed, appellee was an interested witness, and testimony did not trace separate funds to the purchase.
Issues
| Issue | Plaintiff's Argument (Lopez) | Defendant's Argument (Anita Lopez) | Held (trial court ruling under review) |
|---|---|---|---|
| Whether $31,566.67 of the house is appellee's separate property | Appellant: Evidence legally/factually insufficient; appellee failed to trace separate funds or produce contract; unauthenticated check and interested-witness testimony insufficient to rebut community presumption | Appellee: Funds from family property sale (check, CDs, payments to mother) establish separate origin for that portion of the purchase | Trial court characterized $31,566.67 as appellee's separate property (appellant challenges sufficiency on appeal) |
| Whether $10,000 attorney's fees awarded as part of property division are supported | Appellant: No evidence that fees were necessary or part of a just and right division; appellee's testimony merely asserted reasonableness without substantiation | Appellee: Requested fees; testified they were reasonable and necessary | Trial court awarded $10,000 to appellee as part of division (appellant challenges sufficiency on appeal) |
| Whether the unauthenticated check and interested testimony were admissible/adequate to prove separate property | Appellant: Check is unauthenticated, hearsay, predates deed; interested witnesses’ testimony insufficient without corroboration | Appellee: Check and testimony establish transaction history and intent to apply funds to house | Trial court admitted/relied on check and testimony in characterizing property (appellant disputes sufficiency and admissibility) |
| Whether a new trial should have been granted | Appellant: Errors in characterization of property and fee award materially affect division; motion for new trial preserved complaints | Appellee: Trial court declined to grant new trial after hearing and adopted findings | Trial court denied new trial; appellant appeals that denial |
Key Cases Cited
- Cecil v. Smith, 804 S.W.2d 509 (Tex. 1991) (motion for new trial can preserve complaints of factual insufficiency for appeal)
- In re J.F.C., 96 S.W.3d 256 (Tex. 2002) (standards for legal and factual sufficiency review when higher clear-and-convincing standard applies)
- In re C.H., 89 S.W.3d 17 (Tex. 2002) (clarifies sufficiency review principles and standards)
- McKinley v. McKinley, 496 S.W.2d 540 (Tex. 1973) (character of property determined by inception of title)
- Carle v. Carle, 234 S.W.2d 1002 (Tex. 1950) (divorce courts may award attorney's fees as part of a just and right division)
- Old Republic Ins. Co. v. Scott, 846 S.W.2d 832 (Tex. 1993) (purpose of motion for new trial includes allowing trial court to correct reversible error)