Lana Sue Calhoun v. Dana Rex Calhoun
12-17-00032-CV
| Tex. App. | Oct 25, 2017Background
- Lana Sue Calhoun and Dana Rex Calhoun married ~30 years; Rex filed for divorce and a nonjury hearing occurred Jan 22, 2016; Sue participated pro se by telephone while incarcerated.
- Trial court allowed Sue 15 days post-hearing to submit exhibits; Sue sent exhibits and a "settlement offer" to Rex’s counsel and filed a copy with the court; no objections to her filings appear in the record.
- Final divorce decree signed Dec 19, 2016 (long delay unexplained) ordered sale of the marital residence (729 Rosehill Rd.) and 28.02 acres in Nacogdoches County, with proceeds divided equally; decree included a catchall awarding undisposed property to the party in possession.
- Sue appealed, raising seven issues challenging the disposition of various property (homestead acreage, additional bank accounts, retirement accounts, mineral rights, burial plots, alleged separate property items, and the sale terms).
- The appellate court reviewed for abuse of discretion, presuming implied findings in the absence of requested findings, and considering whether Sue presented sufficient evidence to overcome the community-property presumption.
Issues
| Issue | Plaintiff's Argument (Calhoun) | Defendant's Argument (Rex) | Held |
|---|---|---|---|
| Undisposed real property: homestead acreage | Sue: Additional 1 acre (beyond deed description) was owned and not disposed | Rex: Deed/county tax statement support sole described parcel; Sue offered no deed or other proof | Court: No abuse — decree orders sale of property as described in deed; Sue’s unsupported testimony insufficient |
| Bank accounts and retirement accounts | Sue: Rex has additional bank accounts and retirement accounts not divided | Rex: Testified to one bank account (~$1,500) and a single retirement plan (two contribution sources) | Court: No abuse — trial court entitled to believe Rex; decree awards 50% of community interest in his retirement plan |
| Mineral rights and burial plots | Sue: Mineral-escrow and two burial plots not addressed | Rex: Decree orders sale of the 28.02 acres; no evidence mineral estate severed; no certificate of ownership for plots produced | Court: Decree construed to include minerals in place (absent severance); burial plots fall under catchall awarding possession to party in possession of the certificate; no abuse |
| Alleged separate personal property (furniture, jewelry, guns, etc.) | Sue: Items were separate (pre-marriage gifts/inheritances) and should not have been awarded to Rex | Rex: Many items treated as community; Sue provided only an unsigned/unsworn post-hearing list with cryptic notations and no tracing documents | Court: No abuse — Sue failed to produce clear-and-convincing tracing evidence to overcome community presumption |
| Terms of sale and sale procedure | Sue: Opposes automatic 3% price reductions every 90 days; asks for guidance on mortgage payoffs and neutral agent/auctioneer | Rex/Record: Court ordered procedure; Sue did not specify how reduction constituted an abuse of discretion | Court: Issue inadequately briefed as an error; appellate court declines to address; overruled |
Key Cases Cited
- Walton v. Johnson, 879 S.W.2d 942 (Tex. App.−Tyler 1994) (writ denied) (trial court may divide community estate only)
- Granger v. Granger, 236 S.W.3d 852 (Tex. App.−Tyler 2007) (pet. denied) (abuse-of-discretion standard and property division review principles)
- Sink v. Sink, 364 S.W.3d 340 (Tex. App.−Dallas 2012) (no pet.) (presumption of implied findings in nonjury trials without requested findings)
- Wenske v. Ealy, 521 S.W.3d 369 (Tex. App.−Corpus Christi 2016) (aff’d) (minerals in place are part of the realty absent severance)
- Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39 (Tex. 2017) (interpretive principles regarding mineral estates)
- Sharma v. Routh, 302 S.W.3d 355 (Tex. App.−Houston [14th Dist.] 2009) (no pet.) (mischaracterization of separate property as community may be an abuse of discretion)
- Graves v. Tomlinson, 329 S.W.3d 128 (Tex. App.−Houston [14th Dist.] 2010) (pet. denied) (testimony unsupported by tracing documents generally insufficient to satisfy clear-and-convincing standard)