*1 BARRAS, Appellant Byron BARRAS, Loring Appellee. Leslea
No. 14-11-00954-CV. Texas, Appeals
Court Dist.). (14th
Houston 24, 2013.
Jan.
Rehearing April Overruled
of the property appeal, division. On Ger- (1) argues ald the trial court commit- ted fundamental error attaching a lien to his property to secure a money (2) Leslea, judgment for the evidence and support law do not money trial court’s (3) Leslea, judgment the trial court improperly awarded reimbursement (4) community estate, trial court improperly divided the marital estate. Concluding arguments that Gerald’s lack merit, affirm we judgment. court’s Background I. Factual PROCEDURAL Gerald and Leslea previously were mar- ried and divorced for the first time on June 2000. One of the community parties’ assets from the marriage first (the a house located on Drive Sunset Sun- property). set In the June divorce decree, parties agreed $150,000, pay would Leslea the sum payable $25,000, in installments of due on year, before December 15 of each with- out parties interest. The agreed after had paid, been Leslea would all warranty transfer deed her commu- nity interest the Sunset Black, Zimmerman, Kristen L. Marcia They agreed Gerald. that in the event of Webster, Appellant. for default, the house would sold be and the Lockwood, Bibb, Owen Tamara Pacini balance on the would paid due be Jones, Houston, Appellee. Allison Leslea, any remaining with monies to be *8 paid provided to Gerald. The decree also FROST, Panel consists of Justices that Gerald was to have exclusive use and CHRISTOPHER, and JAMISON. possession of the only paid house. Gerald $25,000 2000, in Leslea one installment but OPINION default, upon his Leslea did enforce CHRISTOPHER, the the TRACY Justice. sale of house.
Appellant Byron appeals During parties Gerald Barras the reconciled. In a final divorce him ordering leading up from decree of the time to second their mar- pay appellee Loring to Leslea riage signed Barras to one another in Leslea $125,000, by to be a represented promisso- releasing a document her lien on the Sun- ry by note and a property secured deed of trust set so that it be sold. could The against separate Gerald’s and property, proceeds applied sales were toward the ordering purchase his estate of a separate to reimburse house on Glenwood Drive (the $154,073 part the for community property). closing estate Glenwood The on first is a debt to a few weeks before divorce and intended occurred property this remarriage, and deed to bankruptcy. the any survive parties’ solely is in Gerald’s property the Glenwood At the trial request, Gerald’s court also marriage, parties After the name. findings issued of fact and conclusions cosigned mortgage; Leslea refinanced a finding law. The trial court issued note, in an additional note connec- and $125,000.00, awarding sum of Leslea “[t]he loan.1 equity parties home The tion with a promissory to be a note represented tax re- joint also refund toward applied Barras, from Barras to Leslea Gerald late property Glenwood in pairs on against proper- be secured the Glenwood 2009. ty of the monies same is a derivative —as again in separated and parties The in the original awarded Leslea Barras for a second divorce. petitioned Gerald decree of that was divorce secured divorce, for petition his amended ordering property”; Sunset Gerald to to confirm sepa- trial court his asked the $25,000 payments July make each be- him a disproportion- award rate ginning continuing and until the estate, community and ate share full, paid which time note Leslea is separate estate reimbursed from order his lien; providing release the community estate and from Leslea’s bankruptcy. such debt shall survive The counter-petition, In her separate estate. paid trial court found that Gerald had not the trial court to confirm her Leslea asked to her Leslea the cash sum due under the and order separate property the communi- first as of the date sec- divorce decree from ty sepa- reimbursed Gerald’s estate trial, produced ond that Leslea divorce rate estate. clear convincing trial, trial court nonjury After a $125,000 due from cash sum Gerald was on August its final decree issued property her sole separate and she The Leslea as her sole and court awarded judgment. money was entitled to a $125,000 payable property that the community also found estate Gerald, represented promissory to be to reimbursement from Ger- entitled by a deed of trust note and secured ald’s in the amount of estate against property. Glenwood In the ($128,962 principal reduction on the decree, court also included Glenwood in a tax property findings: community estate following repairs return used Glenwood is entitled to reimbursement from Gerald’s property) and such was considered in the reduction the Glen- principal estate for At court’s division. Gerald’s re- tax and for a refund in the wood quest, the trial court issued additional find- repairs used on home amount of law, ings of fact and conclusions which specifically it had property; *9 included finding community reimbursement considered equitable property, subject to lien at- division; property making in its and claims note, promissory tached secure the from Ger- award Leslea property. timely Gerald’s separate Gerald estate “is a derivative of the separate ald’s filed his parties’ appeal. in the notice of [Leslea]” monies awarded Corpus parties equity this home to- The used loan Christi. payment property ward the down a
163 eration spouses’ factors such as the capa II. Presented Issues abilities, bilities and business opportuni issues for our presents Gerald four re- ties, education, physical conditions, relative issue, In he his first contends that view. relative financial conditions and obli a the trial court committed fundamental age, gations, disparity in size of separate by a lien awarding against error Leslea estates, property, nature of the dispar separate-prop- the Glenwood his ity in earning income and capacity. homestead, erty payment to secure his Knight 723, v. Knight, 301 S.W.3d 728 In his judgment. second is- 2009, (Tex.App.-Houston [14th Dist.] no sue, $125,000 award, Gerald attacks the pet.). court asserting that the trial erred as a considering matter of law even such In dividing property, courts must claim and his affirmative de- refusing begin with the that all presumption prop of statute of limitations and release fenses erty possessed by spouse during either or Also, of his judgment. part as second marriage on dissolution of the is communi issue, Gerald contends that ty property. Tex. Fam.Code Ann. separate property award to Leslea as her 3.003(a) (West 2006); § Stavinoha v. Sta supported by legally factually is not vinoha, 604, 126 S.W.3d 607 (Tex.App. evidence, the trial sufficient and therefore 2004, Houston no pet.) [14th (citing Dist.] In abused its discretion. his third court Barnett, 107, Barnett v. 67 S.W.3d 111 issue, Gerald the trial claims that court (Tex.2001)). To overcome this presump awarding its abused discretion reim- tion, claiming the spouse assets as sepa community estate part bursement to the property required rate is to establish their property of its And in his fourth division. separate clear character and convincing issue, final argues the trial 3.003(b); § evidence. Tex. Ann. Fam.Code abused in its court its discretion communi- (“ Stavinoha, 126 at 607 S.W.3d ‘Clear and ty property division. convincing’ evidence means measure or degree proof produce that will in the Governing III. Law for a mind the trier of fact firm conviction Property Division belief allegations as to the truth established.”). divorce, sought a decree of the trial Separate be shall of the parties’ property property spouse court order a division owned in a the court marriage; property acquired estate manner that deems before dur regard devise, just right, having ing marriage by gift, due for the or de scent; recovery of each rights party. personal inju and the Tex. Fam.Code Ann. (West 2006). § is well the marriage. 7.001 “It estab ries sustained during Tex. (West 2006). may § lished that a trial court exercise wide 3.001 The Fam.Code Ann. division.” ordering property spouse claiming discretion nature of cer (Tex. Aduli, 805, clearly Aduli v. 368 819 property S.W.3d tain must trace iden 2012, tify the to be App.-Houston pet.) separate. Dist.] claimed [14th (Tex. Bell, Tomlinson, (citing Bell v. v. Graves 1974)). (Tex.App.-Houston need not pet. Dist.] division be [14th denied) Zagorski equal, presumed (citing Zagorski and it is properly (Tex.App.-Houston exercised its discretion in S.W.3d [14th denied)). determining division of in pet. “Tracing Dist.] the value and mari *10 establishing separate origin tal Id. A court's division of volves of property. community property may property through showing take into consid issue, that the asserts In first origi his spouse which the by means
time and error fundamental property.” committed trial court possession nally obtained rule, con the clear and $125,000 money judg- general ordering Id. As that the by testi satisfied is not vincing standard deed of by a to Leslea be secured ment the time at possessed property mony separate-property against Gerald’s trust prop separate is dissolved marriage is claim on Gerald bases his homestead. testimony is contradicted erty when such property afforded to homestead protection documentary evidence unsupported or Texas article 16 of the 50 of section nature of the asserted tracing the that the lien on argues Constitution Id. property. pursuant invalid property is the Glenwood Pemelton, 836 S.W.2d Heggen v. Review for of Standard IY. however, conclude, (Tex.1992). We Property Division the list here falls within imposed the lien error in di alleged review We exceptions to constitutionally permitted of for an abuse property viding marital Heggen and that protection, homestead (cit Aduli, at 819 368 S.W.3d discretion. inapplicable. is therefore 22). Bell, To disturb a at 513 S.W.2d ing party trial court’s division pro The Texas Constitution clearly abused its must show property exempt that homestead vides an order that is or by a division discretion debts, except for pay from forced sale Stavinoha, unjust or unfair. manifestly of debts. specified categories certain Tex. court does “A trial at 607-08. 126 S.W.3d Const, I, § The constitutional art. XV if there is some not abuse its discretion homestead exceptions to the ly allowed probative evidence of a substantive (1) purchase for: include debts exemption Knight, the decision.” support nature to (2) taxes due on money property; abuses its A trial court at 728. 301 S.W.3d (3) owelty partition property; unreasonably or arbi if it acted discretion (4) refi agreement; or written court order any guiding reference trarily, or without (5) property; against v. nance of a lien (citing Swaab Id. principles. rules or Swaab, (Tex.App. ren improve, and material to 282 S.W.3d certain work (6) pet. dism’d ovate, Houston certain repair property; [14th Dist.] sufficiency and factual suf (7) w.o.j.)). Legal credit; mortgag reverse extensions of factors, rather than ficiency are relevant (8) es; and refinance of a conversion reversal, deter bases independent by a manu property lien secured personal abused its the trial court mining whether property. home to a lien on real factured Aduli, division. discretion in its 50(a). does not con § The constitution Id. Stavinoha, 819; 126 S.W.3d 368 S.W.3d allowing a lien to be exception tain an Martin, Zieba (citing at 608 “just achieve a simply to imposed (Tex.App.-Houston [14th Dist.] upon divorce. right” division of writ)).2 1996, no at 148. Heggen, 836 S.W.2d See Analysis V. Court Heggen, Supreme the Texas proper- the trial court whether considered by impos- trial court err A. Did the lien on a equitable an ly impressed ing equitable lien on the Glenwood an homestead. separate-property property? spouse’s B.4, applicable and other standards for chal- tion V. 2. We of review discuss standard analysis. part of our findings review as lenges separate-property sec- infra
165 case, that, here, Heggen at In that the trial in is supported lien $150,000 pay finding court ordered the ex-wife to an implied purchase- that it is a lien, thus, to his inter- community money the ex-husband for and imposed it was not separate-property simply est in her homestead achieve “just to right” and divi (deeded a gift to her as from her sion parents) of the marital estate. The trial court imposed equitable and an lien ex- produced on the found that Leslea clear and con to wife’s homestead enforce the court’s vincing evidence that due (also judgment. Id. at 146 & n. 1 award- from Gerald was sepa Leslea’s sole and ing separately to a reimbursement claim rate property expressly tied that estate). community estate from money judgment ex-wife’s and the lien on The trial court granted property ex-husband the Glenwood back the monies $150,000 money judgment this lien awarded to her in parties’ June “simply just and right agreed ensure a division” 2000 divorce decree. This equita of the Id. supreme reasonably marital estate. The ble lien fits within the constitu (1) court ruled the lien invalid “it purchase-money because tional exception lien Const, burdened real for property protection. [the ex-wife’s] homestead See Tex. art. 50(a)(1) XVI, § reasons other than to secure ex-hus- (authorizing [the for “the debts interest; is, thereof, reimbursement purchase money band’s] a part of such the trial court it to impermissibly imposed purchase money”); Heggen, see also division,” just right secure a id. at S.W.2d at cases (discussing involving (2) imposed “it lien on [the ex-wife’s] “valid liens of the type pass which consti that, record, muster, i.e., on homestead based did securing tutional pur liens interests, taxes, not fit any categories money into allowed chase or improve Constitution; ments”). is, the Texas it was lien, not a tax not a purchase money it was As the case of McGoodwin v. lien, lien,” improvement nor was it an id. illustrates, McGoodwin a purchase-money Const, 50). XVI, (citing § art. Tex. implied: lien express can be “[W]hen Heggen recognized court lien is reserved in a purchase deed court, however, remand, impress on could money paid, is not a lien nevertheless equitable an lien on ex-wife’s separate- by implication arises favor vendor property homestead favor of ex- payment to secure purchase mon husband if it that his found reimbursement (Tex.1984). ey.” 671 S.W.2d claim satisfied a constitutional exception. McGoodwin, the Supreme Court Texas Id. 147-48. a trial approval reviewed court’s of an a de apply agreed property We novo standard of which a settlement in hus parties’ review where re agreed pay assertions band his wife quire review of Texas constitutional provi prop consideration her real interest erty. sions that involve matters of law. Harris pay, When ex-husband failed to County v. Hosp. Regional sought Dist. Tomball the ex-wife foreclose (Tex.2009); Hosp., lien; see on an implied based vendor’s Corp., agreed, Ross Union 296 S.W.3d the Carbide trial court and ordered the lien 206, 211 (Tex.App.-Houston foreclosed and the sold. The su [14th Dist.] denied). pet. Citing Heggen, preme court concluded the ex-wife was argues imposed that trial implied pur an uncon entitled to foreclosure of her chase-money stitutional lien on his lien separate-property superior that was this homestead. But case differs from claim of ex-husband’s constitutional home- *12 166 (3) 882-88; finding and the omitted is requested; see also Id. at protection.
stead Foley Capi- v. Heaton, 14-09-00717-CV, by the evidence. supported no. v. Watson 644, Bank, N.A., 647- 5132565, 383 S.W.3d tal One (Tex.App.-Hous- at *4 2010 WL 2012, (Tex.App.-Houston no 14, 2010, [14th Dist.] 49 pet.) no Dec. Dist.] [14th ton (“[W]hen see Tex.R. Civ. P. 299 one pet.); (mem. (recognizing ability of ex-wife op.) have been or more elements thereof found on her lien to foreclose vendor’s holder as court, unrequested omitted by proper- separate in ex-husband’s interest evidence, elements, will when supported Magallanez, Magallanez v. ty); support in of supplied presumption be 1995, 91, Paso (Tex.App.-El 94-95 S.W.2d judgment.”). the writ) (affirming validity of deed of trust no home- separate ex-wife’s against executed implied, The of an elements lien for equitable purchase-money as stead purchase-money lien are: “when equitable in that [ex-hus- interest the house “the lien is in a deed express no reserved ”); Knowlton, had ‘sold’ Bowden band] paid, not a lien purchase money the (Tex.App.-Houston 734 S.W.2d arises in favor by implication nevertheless writ) that, (holding no Dist.] [1st of payment the vendor secure of to ex- money of award aid of enforcement McGoodwin, money.” purchase interest, her trial property for part wife at 882. trial court included in The equitable authority impose had court $125,000award, findings of fact its residence); Stapler v. on ex-husband’s lien represented by promissory to be note (Tex.App.- 272-73 720 S.W.2d Stapler, aby against secured the Glen- deed 1986, writ) (affirming en- Worth no Fort of property, wood was a derivative equitable implied forcement of vendor’s divorce award to Leslea had prior where ex-wife’s real she property lien on secured the Sunset had been tax for pay failed to debt in consideration paid not been Gerald as of second property in- being awarded ex-husband’s trial, sepa was Leslea’s sole divorce terest); Forbes, Colquette v. property through rate clear established writ) (Tex.App.-Austin evidence, convincing entitled her sepa- on ex-wife’s (approving foreclosure against The trial judgment to a Gerald. vendor’s lien property implied where rate additionally court found that of arose in favor ex-husband secure prop real property separate Gerald’s exchange note promissory executed subject lien erty, equitable attached interest). his Although secure the note to Leslea. finding failed to the court include Although the trial court did not implied lien in favor was an this of Leslea equitable implied, label the lien issue an lien, purchase-money it vendor’s found lien, 299 of the Tex purchase-money Rule recov other elements her claim for of Procedure, of Omitted Find as Rules Civil equitable trial an ery. imposed court presume this such a ings, permits court in favor of lien on the Glenwood finding. findings governed by Omitted are of payment Leslea in order to secure of 299. On Texas Rule Civil Procedure $125,000,which owed Leslea as her Gerald ground an omitted element of a of appeal, of property as a derivative recovery presumptively will be found in he had prior divorce award and which not (1) if: support judgment trial Thus, condition is paid. first met. included one or more elements Second, fact; recovery although request ground findings in the (2) properly findings ed that the court issue fact the omitted element was and conclusions of law and additional find- debt due to Leslea. Property *13 ings pursuant and conclusions to Rules 296 separate established to be sepa- remains 298, respectively, of the Texas Rules rate property regardless of the fact that it Procedure, of Civil he did not properly may undergo changes mutations or any request findings regarding the nature form; separate its character is not altered of lien on the Glenwood property. Nor sale, by the exchange, or substitution of request did Leslea any such findings. the property. Harris, Harris Thus, the second condition is met. S.W.2d 802-03 (TexApp.-Houston denied) [14th writ Dist.] (affirming third,
And
the evidence supports a
continued separate nature of
finding
partnership
the trial
imposed
court
an
interest awarded to
implied,
ex-husband in a
equitable
previ-
purchase-money lien on
ous divorce despite
execution of
property.
Glenwood
The
additional
evidence
divorce,
partnership-related
shows that
in their
agreement
first
during
Gerald
sub-
sequent
agreed
$150,000
marriage).
to pay Leslea
Since Gerald
her com
failed to
$125,000
munity
pay
interest
in the
Sunset
debt for
property,
Leslea’s proper-
and that Leslea was to
ty
transfer her inter
interest and instead put
proceeds
property
est in the
to Gerald when the
from the sale of the
property,
Sunset
default,
paid.
debt was
In the event of
the which then included Leslea’s separate
sold,
Sunset property was to be
any
with
separate
toward a
property for
$150,000
balance due on the
award to be himself, a purchase-money lien in the
paid to Leslea. Because Gerald defaulted Glenwood property
in Leslea’s
favor
$25,000,
after paying
only
Leslea
she was
“arose
implication,
equity
as
natural
$125,000
entitled to
from the sale of the
creating a
vendee,
constructive trust in the
however,
property;
parties
reconciled that he should
keep
not
the estate of an-
sold,
before the
property
Sunset
was
McGoodwin,
other without paying for it.”
proceeds
from the sale went toward
(citation omitted).
This alternative an im- usage of the plied, equitable Sunset proceeds sales pur purchase-money lien on separate chase Gerald’s property did the Glenwood property. Because we con- alter character clude that the constitution authorizes such "Property ‘separate’ is characterized as pet.) (explaining inception Dist.] ‘community’ at the time inception of the party of title right occurs when first has Smith, property.” title to the Smith v. property by claim to the virtue of which title vested). (Tex.App.-Houston finally [14th (Tex.App.-Houston exception protec- to homestead an
a lien as denied)). 2005, pet. [1st tion, Dist.] first issue. we overrule Gerald’s Here, supports the record issue err or its the trial court abuse B. Did nonpayment Gerald’s awarding Leslea discretion $150,000 award from the first divorce and separate property? her judgment con- Leslea’s entitlement issue, presents four In his second *14 $125,000 separate property as her firming First, trial he asserts that the sub-issues. by parties. was consent of both Les- tried by awarding law as a matter of court erred lea on both cross-exam- testified direct and $125,000 separate property her Leslea as divorce regarding prior ination the de- agreed divorce de- parties’ prior the from terms; $150,000 award and its how cree’s were pleadings her deficient. cree because $25,000 only paid her toward the Gerald Second, that the trial court he contends award; reconciled, they after how she by refusing his as a matter of law erred lien on released her the Sunset Third, defense of limitations. affirmative money going the toward their because was by also argues that the trial erred he home, family property. new Glenwood the Fourth, Ger- refusing his release defense. testified was asking Leslea also that she legally the evidence is ald contends that court to confirm the unpaid factually to the support insufficient $125,000 separate property. as her Gerald $125,000award. $150,000 regarding testified the that he pay was to Leslea under their supposed $125,000 parties Leslea’s 1. The tried prior payment divorce decree and his of by consent. claim only $25,000. He testified he also purchased the before sub-issue, As a threshold money their remarriage used the argues that Leslea cannot recover purchase for have come from the this could $125,000 she did not set judgment because property. sale of the Sunset While Ger- sufficiently theory recovery of forth this objected ald’s counsel to the responds pleadings. her Leslea prior being award from the divorce decree tried consent issue of her parties objection referred to as a this judgment, money judgment to a of right reduction actually is not with the inconsistent relief $125,000debt. sought that Leslea at trial: to enforce the judgment A must trial court’s unpaid portion prior of the award through P. pleadings. conform to the Tex.R. Civ. a judgment. Although Leslea failed to 301; Moneyhon Moneyhon, v. 278 S.W.3d pleadings in her a claim include she 874, 2009, (Tex.App.-Houston [14 878 Dist.] seeking prior enforce the divorce “If pet.). no issues raised 9.010, pursuant decree section Reduc- by express are pleadings implied tried Money Judgment, tion of Texas parties, be consent of these issues shall Code, Family shows that the evidence they treated as if had been raised parties precisely tried issue: this “If Shifflett, v. pleadings.” Teel party not receive payments money did 597, (Tex.App.-Houston [14th Dist.] 602 as in the awarded decree divorce or denied). 2010, annulment, To ascertain if an issue pet. may render judg- court consent, reviewing was tried party for against defaulting ment record “not for unpaid payments must examine the amount of to which the issue, party but rather for evidence of trial entitled.” Tex. Fam.Code Ann. (West 9.010(b) 2006). § Young, The relevance of (citing issue.” Id. Greene v. particularly the admitted evidence related of limitations waives the Cooper defense. Cochran, money to whether Leslea was entitled to a (TexApp.- S.W.Bd judgment unpaid on this from the pet.) Dallas (concluding that party first her divorce as waived statute limitations defense where opposed any pleaded issue of reimburse- requested any he never findings relevant fact); ment or the community Schmidt, division of estate. Medistar Corp. v. Moreover, she did not although reference 162 (Tex.App.-San Antonio relief, denied) request section 9.010 in her Les- Woods, pet. (citing same). lea explicitly requested that the trial court S.W.2d at concluding confirm in the awarded to her We can understand how Gerald initially prior separate property divorce as her and may plead have failed to limitations as a money judgment secure such full defense to Leslea’s counter-petition; how- *15 extent agree of the law. We that ever, during trial it clear became that the parties tried this issue consent. There- parties trying were Leslea’s enforcement fore, the trial did not err in court address- claim sought in which she reduction a ing the issue. $125,000 money judgment of unpaid prior from the divorce. court any 2. Gerald waived limitations then awarded on Leslea relief this claim defense. findings and issued to this relevant claim. he Although did not raise this af requested findings But Gerald never from firmative in his or re pleadings defense on his limitations defense. Nor quest any from the on findings trial court did specifically request he additional or defense, his limitations Gerald contends findings amended of fact relevant to his that because the terms of divorce decrees limitations defense after the trial court governed by are contract law principles, original findings issued its of fact and con- the four-year statute of limitations in sec conclude, therefore, clusions of law. We tion 16.051 of the Texas Civil Practice and any that Gerald has waived error with Remedies as a Code bars Leslea’s claim his respect to affirmative defense to Les- matter of law.4 deciding Without whether any lea’s enforcement claim under statute or not the four-year applies, statute we Therefore, of limitations. overrule we this preserve conclude that Gerald has failed to sub-issue. this issue for appeal. 3. Gerald’s fails. release defense of af
Statute
limitations is an
defense,
94,
firmative
Tex. R. Crv.P. where
Gerald also contends that
evidence
established,
party asserting
law,
the defense bears the
as a
that
matter of
initial
prove,
burden to
secure
plead,
signed
release Leslea
in connection with
findings to
his plea
sustain
of limitations.
the sale
the Sunset
after
property,
his
Inc.,
Mercer,
$25,000
v.
M.
only
prior
Woods William
769
payment
to the
(Tex.1988).
S.W.2d
party
parties’ remarriage,
517
A
who
as a
operated
release
$125,000
findings
plea
fails to secure
to sustain
judgment
his
debt remain-
provided,
4. Gerald has not
and we have not
case did not involve an enforcement claim.
located, any
applies
(Tex.2002) (concern-
case
the residual
80
592-93
S.W.3d
period
par-
limitations
in
a
section 16.051 to
ing third-party
beneficiary
a
creditor
who was
ty's
pursuant
enforcement of a divorce decree
asserting a breach-of-contract claim based on
Family
authority,
to the
Code. Gerald’s cited
decree).
daughter's
her
divorce
Stewart,
apply
Stine v.
does not
because
proof
which
burden of
must
on
he had the
prior divorce decree.
ing
their
under
appeal
evidence
However,
does
include a
demonstrate
record
law,
establishes,
vital
as a matter
all
signed
actual
release.
copy of the
Id. at
facts in
of the issue.
733-34
support
in
Although
failed to
Francis,
(citing
Co.
Dow Chem.
as an affirmative defense
clude release
(Tex.2001)).
237, 241
When re-
S.W.3d
the record
supports
his pleadings,5
evidence,
no
viewing
sufficiency,
legal
Leslea released
of whether
issue
challenge, we review the
agreement
her
to sell
debt
challenged
find-
light most favorable
tried by
consent
Sunset
every reasonable inference
ing
indulge
questioning
In addition to
both parties.
it. Harrison v. Harri-
support
that would
award
regarding the terms
son,
(Tex.App.-Hous-
divorce, both
attor
parties’
from the first
pet.) (citing City
ton
[14th Dist.]
neys
testimony
re
elicited
from Leslea
Wilson,
Keller v.
of lien
garding
signing
her
release
(Tex.2005)).
credit favorable evidence
We
the sale
with
of the Sunset
conjunction
could,
if a
fact finder
and disre-
reasonable
despite
only paying
Gerald’s
unless a
gard contrary evidence
reasonable
award. Leslea also testi
of that
at 901-02 (citing
fact finder could not. Id.
sur
regarding
circumstances
fied
827);
Keller,
Hartis,
*16
City
at
168 S.W.3d
of
release,
the
whether
rounding
signing
her
is
contain the release of lien Leslea ad supports evidence Sufficient Moreover, signing. points mitted award. to no evidence that in such Leslea release expressly acknowledged receipt Finally, legal Gerald attacks the $125,000balance or that she unconditional sufficiency factual of the evidence support- ly unambiguously acknowledged that ing the award. He challenges the agreed such debt as described in the prior finding trial court’s that Leslea still had divorce decree was released. satisfied and claim her proper- ty by essentially reasserting his limitations Reviewing the in the *17 defenses, any and release without arguing challenged light most favorable to the im particular alleged deficiencies in Leslea’s finding every plied indulging and reason tracing or identification of her separate it, able inference that Ger support would property. legal sufficiency argument ald’s fails. The light Supreme Texas here Leslea re evidence indicates that the legal Court’s view that traditional and only $25,000 one payment ceived of from sufficiency factual reviews are not ade Gerald, and the trial court found that as of quate to accommodate the clear and con trial, the had second divorce not vincing proof parental in termi paid the balance. There is also burden this proceedings, applies nation agreed evidence that Leslea to release her heightened same standard of review in the that the property interest Sunset so separate-property findings in divorce property could be sold and so cases: pay could proceeds be used for a down sufficiency on the as their property legal
ment we conduct a [W]hen home. family Although point separate finding, Leslie at one review property of a during agreed cross-examination her we are to look at all instructed the evi- signing light intent in the release on the Sunset dence in most favorable to the debt, property was to release the on two whether finding to determine a reason- to her other occasions she testified instead able trier fact could have formed understanding that claim finding she still had a firm belief or conviction that its Looking debt unpaid as her was true. the evidence in Thus, property. finding a reasonable fact finder favorable to the light most (citations Stavinoha, (1) at 609 126 S.W.3d must assume we means that 266-67, J.F.C., and In re S.W.3d at in disputed facts resolved fact finder (Tex.2002), C.H., omit- fact 89 S.W.3d finding if a reasonable its favor of (2) ted); at 314. so, all 116 S.W.3d disregard Zagorski see do finder could standard heightened fact this applying that a reasonable “Even evidence contrary re- review, sufficiency point or found to have disbelieved a factual could finder However, we are all of court to examine appellate incredible. quires have been undisputed whether the disregard determining required the evidence not finding, great support against is so finding question facts that do clear and skew a might of the evidence preponderance because weight and If we determine convincing analysis. manifestly unjust.” Zagorski, to be could form fact finder that no reasonable S.W.3d at 314. of the truth or conviction a firm belief legal Gerald’s We first consider we must con- proved, be the matter to Here, trial evi sufficiency challenge. legally insuffi- that the evidence clude parties’ prior of: consisted dence cient. describing agreed divorce decree (citations
Stavinoha, at 608 126 S.W.3d for her communi award to Leslea (Tex.2002), J.F.C., 96 S.W.3d In re ty interest the Sunset at 314 omitted); Zagorski, how, default, the house was in the event of (“When at trial is proof burden of sold, entitled to the to be with Leslea evidence, apply a we convincing clear and pro from the sales balance on the debt factual suffi- legal higher standard ceeds; parties that Ger testimony by both review.”). sufficiency for factual As ciency debt; $25,000toward that only paid ald had finding, separate-property review of a to sell testimony by agreed Leslea that she a release signed the Sunset whether all of the consider must [w]e parties’ remarriage, prior of lien could that a factfinder is such pro the lien because the that she released belief or convic- reasonably a firm form go that sale were to toward ceeds of allegations truth of the tion about the of the Glenwood building purchase We should to be established. sought *18 home, that family their and property as disputed evidence is whether consider $125,000 remaining the she understood fact finder could a reasonable such that testimony and separate property; was her disputed evidence resolved that not have purchased that he the Glenwood by Gerald If, in of the finding. light in favor of its they were remarried property before record, that disputed the evidence entire buy to the Glenwood proceeds that the finder could not have a fact reasonable from the sale of could have come property finding the is so in favor of credited at it all the Looking property. the Sunset fact finder could not significant that a most favorable to the light in the evidence a firm belief or reasonably have formed this documenta separate-property finding, conviction, factually evidence is then the sufficiently ry and testimonial the evi- insufficient. If we determine standard; convincing the clear and satisfies insufficient, to factually we are dence is have reasonably court could the trial why we have con- opinion detail in our that firm belief or conviction formed a fact finder cluded that a reasonable the as her was entitled to evi- Leslea disputed credited could not have separate property. finding. the dence in favor of regard showing to Gerald’s factual tains evidence how With much prin- the only sufficiency challenge, cipal evidence ar on paid was down the initial mort- dispute here concerns the cir guably and then gage on the refinanced mortgage of of the release lien Leslea cumstances out taken on the Glenwood property. Sec- however, the trial court reason signed; ond, the record also contains evidence ably any disputed have resolved evi could showing that the took parties out a home finding favor of its that implied dence in equity loan on the Glenwood property, Leslea did not release the debt and of its which went payment toward down aon that finding she remained entitled to the Christi, Corpus showing separate as her There property. how much principal paid down fore, evidence, on all based this loan. The amount of principal paid reasonably could have formed firm down on $128,962; the three loans totaled belief conviction about the truth of Les- dispute Gerald does not this amount or leys separate claim to the as her that reduction principal came from finding and the property, court’s was not Third, community funds. Leslea testified great so against weight prepon parties’ joint tax of refund manifestly derance of the evidence as to be $25,111 went toward debts related to win- unjust. repairs dow on the property. Glenwood conclude that the evidence sufficient- We Reimbursement is an equita ly supported separate- trial court’s right ble that when arises the funds or $125,000. property characterization assets of one estate are used to benefit within Because court acted its and enhance another estate without itself division, in making discretion its receiving some benefit. Vallone v. Val we overrule Gerald’s sub-issue. larte, (Tex.1982). 458-59 Did the trial court abuse its C. dis- governed Reimbursement claims are by finding community cretion that section 8.402 of the Texas Family Code estate was entitled to reimbursement can variety arise from a expendi separate from Gerald’s estate? tures or See contributions. Tex. Fam.Code issue, In his third contends 3.402(a) (West (identi § Supp.2012) Ann. the trial court abused its discretion in or- fying categories expenditures nine him dering the community reimburse “a meaning are included within allegedly expended estate for amounts reimbursement”). claim a claim for improve which is reimbursement, trial court shall deter Gerald’s part estate. The trial mine the rights parties apply community court found estate was equitable principles determine whether in the entitled reimbursement amount of recognize considering the claim after *19 $154,073 ($128,962 in principal reduction parties’ and, the in relative circumstances $25,111, on the Glenwood and circumstances, appropriate order a divi represents which the community use of just of the claim a right sion in and man Glenwood). pay tax return to for repairs (West § ner. Tex. 7.007 Ann. Fam.Code argues that to present Gerald Leslea failed Supp.2012). a trial Because court resolves factually and legally sufficient evidence of for equitable claims reimbursement under any proper- enhancement in the Glenwood principles, may claims for reimbursement ty’s value. against be offset each other where appro 3.402(b). Here, § The supports types priate. party three Id. claim First, ing right of reimbursements. the record con- reimbursement has 174 to, capital improvements property.” proving pleading
burden for added). 3.402(a)(5) they § and that are (emphasis were made Id. expenditures Vallone, 644 S.W.2d at reimbursable. first will determine whether the trial We by one marital payment “[T]he 458-59. any to measure court was bound statute creates a debt of another estate en of the reimbursement claims reimbursement.” right of prima facie prop in to the hancement value Penick, 194, 196 v. 783 S.W.2d Penick erty; requires because assertion Gerald’s (Tex.1988). an offset party seeking review, this statutory we review claim de the bur bears a for reimbursement claim Dist., Hosp. Harris 283 County novo. to the offset. respect with proof den of 842; Ross, at at S.W.3d see S.W.3d 3.402(e). A § Ann. Tex. Fam.Code. in a claim for evaluating court’s discretion equally is as broad that
reimbursement statute, “In our aim to construing a trial court exercised a discretion give Legisla determine effect division of the just right a making intent, with begin plain ture’s and we Penick, community estate. S.W.2d meaning and common statute’s (“In analysis, great latitude must the final Hosp., Tex. v. words.” W. Oaks LP in applying be the trial court given to Williams, (Tex.2012) 171, 177 371 S.W.3d equitable value a claim for principles to (internal quotation marks and citations reimbursement.”). omitted). The has directed legislature rule, employ usage courts to the common 3.402(d) apply not does 1. Section meaning phrases that words and shall be 3.402(a). claims under all section according read in context construed reim- contends that Leslea’s Gerald grammar rules of usage, and common fail she failed to claims because bursement but also has directed that words a stat Family Texas requirements meet a if given meaning ute be technical such 3.402(d). 3.402(d) Section Code section meaning acquired legislative has been for funds ex- provides: “Reimbursement or as a of art. v. definition term Traxler improve- pended by a marital estate Inc., States, Entergy Gulf another marital estate shall be ments to (Tex.2012) (citing Tex. Gov’t Code Ann. in value by the enhancement measured (West 2005)). § 311.011 We construe stat marital estate.” the benefitted Tex. Fam. give every provision utes to effect to 3.402(d) added). § (emphasis Ann. Code provision that no is rendered mean ensure trial court argues abused Gerald superfluous. Leordeanu ingless or v. Am. in ordering its reimbursement discretion Co., Prot. Ins. 330 S.W.3d 248 n. 35 there is evidence that value because (Tex.2010). presume leg And we was enhanced. the Glenwood language islature chooses a statute’s with ordering contends his estate care, including word chosen for a each community, reimburse while purpose, purposefully omitting words resolving a claim court was reimbursement chosen. Geophysical TGS-NOPEC section Family under Texas Code (Tex. Combs, Co. 3.402(a)(5). Such reimbursement claim 2011) (citation omitted). If a statute is principal “the reduction of the consists of *20 interpretation unambiguous, adopt we debt, including part amount of that of a a (A) by language, supported plain its unless during equity home loan: incurred a (B) interpretation lead such an would to ab by proper- a lien on marriage; secured (C) of, Id. ty; acquisition incurred results. for the surd
175
3.402(a) includes nine Courts have treated
as
Although section
items such
home
reimbursement,
construction,8
section
categories
renovations
to a ranch
8.402(d)
house,9
provide
does
that claims for
building
not
stock tanks on a
be
generally shall
meas-
reimbursement
farm10 as improvements
purposes
for
by
in value to the
ured
the enhancement
“Capital improvements”
reimbursement.
estate, but rather
provides
benefited
is
in
also
not defined
the reimbursement
by
for
a
expended
funds
“[r]eimbursement
subchapter,
see
Tex. Fam.Code
Ann.
improvements to
marital estate for
another
3.401,
§
Family
or elsewhere in the
Code.
by
be measured
marital estate shall
Leslea asserts that a reduction
principal
value to
benefited
enhancement
is not a
“capital improvement
property.”
marital
estate.”
Nelson,
Tex.
Ann.
In Nelson v.
Fam.Code
the Eastland court of
3.402(d).
legislature
§
purposefully
The
appeals interpreted the former economic
modifying phrase “for im-
included the
statute,
contribution
which had included a
estate” to
provements to another marital
statutory
right
reimbursement
for the
claim
type
limit the
of reimbursement
re-
principal
pre-
reduction of the
amount of a
measured
the enhance-
quired
be
nuptial
property
debt secured
a lien on
ment
value to
benefited estate.
marriage,
owned before the
and held that
“improvements”
appears
also
in three
term
payment of an
“[t]he
antecedent debt for
categories
the nine
of sec-
enumerated
acquisition
more,
of property,
without
3.402 reimbursement claims—subsec-
tion
improvement
is not a capital
property.”
(a)(6),6
(a)(8).7
(a)(5),
In
these
tions
624,
193 S.W.3d
629 (Tex.App.-Eastland
instances,
precise phrase
three
em- 2006,
pet.).
no
In
applying
cases
for-
improvements.”
ployed
“capital
statute,
mer economic contribution
home
repairs
maintenance
were
also
is not
in the
“Improvements”
defined
capital
improvements.
See Garza v.
3.401,
§
subchapter,
id.
reimbursement
see
Garza,
538,
(Tex.App.-San
217 S.W.3d
Family
in the
Code. The
or elsewhere
2006,
Collins,
v.
pet.);
Antonio
no
Moroch
Supreme
provided
Texas
Court has
this
2005,
849, 865 (Tex.App.-Dallas
174 S.W.3d
improvement
“An
includes all
definition:
denied).
contrast,
pet.
purposes
for
except
to the freehold
for trade
additions
statute,
former
contribution
economic
fixtures which can be removed without in
as the
courts have treated items such
addi-
jury
property.”
Sonnier
Chis
Inc.,
475,
Co.,
tion of tile to a home11 and construction of
holm-Ryder
(Tex.1995)
garage
capital
section 16.009 of
and home
(interpreting
remodeling12
Code).
improvements.
Texas Civil Practice and Remedies
Nelson,
624,
3.402(a)(6) (covering
§
6. Tex. Fam.Code Ann.
8. Nelson v.
193 S.W.3d
632-33
principal
"the
amount of that
(Tex.App.-Eastland
pet.).
reduction of
no
(A)
during
part of a
incurred
a mar-
debt:
(B)
riage;
secured
a lien on
Zieba,
9.
928 S.W.2d
788-89.
(C)
by spouse;
owned
for which
creditor
agreed
solely
repayment
to look for
Allen,
(Tex.
10. Allen v.
spouse
estate of the
marital
1986, writ).
App.-Fort Worth
no
attached;
(D)
property the lien
whose
of,
acquisition
capital
incurred for the
Zoller,
01-09-00992-CV,
11. Zoller v.
no.
to,
improvements
property”).
(Tex.App.-Houston
WL
[1st
at *5
(mem.
Apr.
pet.)
op.).
Dist.]
3.402(a)(8)
§
(covering "capital
Id.
im-
7.
provements to
other than
incur-
Moroch,
debt”).
ring
abuse its discretion. finding. reimbursement We review suffi ciency challenges to trial findings court Next, we tri consider whether the by fact the same standards we apply al court its abused broad discretion reviewing jury’s findings. Zagorski, 116 evaluating reimbursement claims. is, S.W.3d at That we review the regard With to the reduction in principal light evidence in the most to the favorable from finding, attacking aside the lack of finding challenged indulge rea every showing evidence value enhancement it, sonable inference that would support property, presents Glenwood Gerald crediting favorable evidence if a reason legal or sufficiency no additional factual could, able fact finder Instead, disregarding challenge. Gerald argues contrary unless a evidence reasonable fact an for improper issued “dollar dol Harrison, finder could not. lar” reimbursement on the reduction Here, 901-02. Leslea testified she without principal, considering tax or any percent positive” “one hundred However, that Gerald community benefits. sec under used all of their 2008 tax 3.402, if refund —in sought any tion Gerald to a offsets reimbursement, pay amount of claim back debt required he was —to 3.402(e). window prove repairs property. § offsets. See id. contrast, presented tending no Gerald testified that the re of, pairs they existence separate show the cost about and that his to, offsets,17 any warranty. estate’s entitlement were covered under such As trier Moreover, fact, much their less amounts. sec court was credit entitled to 3.402(c) tion any testimony forecloses complaint regarding Leslea’s re- tax 3.402(a)(1) here, § (covering "payment recog 15. Id. only exist where the trial court one estate of the marital unsecured liabilities principal nized reimbursement on the reduc estate”). of another marital opposed tion for reim interest, taxes, bursement for or insurance. 3.402(a)(9) (covering § 16. Id. reduction "the See, Rogers Rogers, e.g., v. 754 S.W.2d community property an estate of unse- (Tex.App.-Houston [1st no Dist.] cured incurred debt estate of Nelson, writ); Nelson spouses”). one of the 1986, writ). (Tex.App.-Texarkana no appellate 17. Certain Texas con- courts have offsetting cluded that benefits even could *23 toward, on of the the law. Based our review record use and amount its
fund and here, repair any debt. not with being presented and of, separate-property Gerald’s people fair-minded could presumption that efforts to the of specific conclude rebut We entitled community estate was of find the trial court’s exercise its proper the ’ $25,111 tax for the refund. discretion, reimbursement conclude that broad we cannot argument Thus, legal sufficiency Gerald’s arbitrarily, unreasonably, acted the court sufficiency regard to a factual With fails. regard any guiding without rules or record, examine the entire we challenge, Therefore, we overrule principles. Ger- weighing all the considering and and after fourth issue. ald’s evidence, only finding set the fact we aside contrary overwhelming to the if it is so VI. Conclusion clearly evidence as to be
weight the supports the trial Because record Ahmed, 261 unjust. Ahmed v. wrong and $125,000 express findings court’s (Tex.App.-Houston [14th separate due to as her debt was Leslea Here, on such pet.). based Dist.] prior a the property as derivative of di- review, say that the trial court’s we cannot community and the vorce award that es- $25,111 award so con- reimbursement tate was entitled to reimbursement from overwhelming weight the trary to separate Gerald’s estate for reduction in unjust. clearly wrong to be and of and to the principal repairs Glenwood say we cannot that the trial Accordingly, finding and its that property, omitted ordering in its discretion court abused it equitable imposing lien was Glen- spent reimbursed for amounts community purchase- implied wood was an in the Glenwood and repairing lien, money we the trial conclude principal amount of debt on reducing the court did not discretion in award- abuse its third issue. it. overrule Gerald’s We $125,000money judgment, a ing Leslea dis- the trial abuse its D. Did against be secured community in its division of the cretion ordering in that Gerald’s es- and estate? community reimburse tate estate issue, essentially as- In his final Gerald part of its prop- the amount in awarding the trial court erred serts that in the erty Finding division. no error separate property as her awards, Leslea specific we further court’s con- reimbursement making clude that Gerald has failed overcome estate, community and that award to presumption the trial court did the court from prevented errors these dividing not abuse its discretion in just right division making community accordingly property. We af- community estate. judgment. firm court’s has presented not this FROST, J., concurring. beyond any specific complaints court with those described detail overruled FROST, Justice, KEM THOMPSON Here, heard above. trial court two concurring. days testimony, including par from respectfully judgment. I concur in the ties, licensed preparer their tax case, argues, appellant In this divorce expert two Treasury Department, exhibits; CPAs; among things, and is other the trial court over 30 admitted decree, along imposing with committed fundamental error a final divorce two sued separate-property conclusions of a lien on his homestead findings sets of fact and money judgment B.L.D., to secure a for his ex-wife In re (Tex. 2003). But, in violation of the Texas Constitution. in civil appeals, the fundamen- merit, if tal-error argument Even this had doctrine is a it would narrow limited exception procedural be fundamental error. Because the rules requiring *24 parties preserve error regarding fundamental-error doctrine does not their apply appellate complaints. See id. In light and because the pre- ex-husband did not the strong policy considerations court, favoring serve error in the trial this issue preservation-of-error requirement, may be overruled without addressing the Supreme Court of Texas has called the merits of argument.
fundamental-error doctrine “a discredited
most,
doctrine.” See id. At
the funda-
No Fundamental Error
mental-error doctrine applies in the follow-
issue,
In his first
appellant
By-
Gerald
(1)
ing situations:
when the record shows
ron Barras asserts that
the trial court
on its face that
the court rendering the
committed fundamental error by imposing
(2)
judgment
jurisdiction;
lacked
when the
a lien on Gerald’s separate-property home-
alleged error
in juvenile
occurred
delin-
stead to secure a money judgment
for
quency case and falls within a category of
appellee Leslea Loring Barras in violation
error as
preservation
to which
of error is
XVI,
of article
section 50 of the Texas
(3)
required;
when the error di-
Const,
XVI,
Constitution. See Tex.
art.
rectly
adversely
affects the interest of
§ 50.
argues
that the trial court’s
public
generally, as that
interest
imposition of this lien on his homestead
by
declared
a Texas statute or the Texas
provision
violates this
of the Texas Consti-
Trucks,
Constitution. See Mack
Inc. v.
tution and is invalid under the Supreme Tamez,
(Tex.2006)
572,
206 S.W.3d
577
Court of Texas’s
in Heggen
decision
v.
(including the first and
categories);
third
Pemelton,
(Tex.1992).
On Gerald does not contend Isaacs, 184, (Tex.App. preserved he error on this issue in the trial denied) 2011, -Houston pet. [14th Dist.] Rather, court. Gerald asserts that (holding that alleged error trial court in error alleged in his first issue is “funda- applying retroactively statute in violation assertion, mental error.” If this were cor- of Texas Constitution was waived fail rect, preservation then of error in preserve court); the trial ure to error court would not have necessary. Houston, been See Langston City v. no. 14-08- (Tex.
00063-CV, WL at *3 6, 2009, Aug. no App.-Houston Dist.] [14th Roy JACKSON, In re Samuel Relator. alleged error trial pet.) (holding that 14-12-01029-CR. No. real allowing double taxation of court in of Texas property in violation Constitution Texas, Appeals Court of error) (mem. op.); fundamental was not Dist.). (14th Houston Sieber, 14-06-00030-CV, no. Moore Jan. *1-2 (Tex.App.-Texarkana WL al pet.) (holding Nov. court in
leged declaring error *25 right to superior possession
ex-wife had homestead waived
ex-husband’s
court)
error in
preserve
failure to
Jackson,
Roy
pro
Samuel
se.
(mem.
Concrete, Inc.,
v. R.S.
op.); Waller
14-04-00553-CV,
1150204,at
no.
2005 WL
FROST,
Panel
of Justices
consists
(Tex.App.-Houston
May
*1-2
[14th Dist.]
CHRISTOPHER, and JAMISON.
17, 2005,
(holding
alleged
pet.)
imposing
error
trial court in
invalid lien
OPINION
contrary
on
Texas statute
real
JAMISON,
error)
(mem.
MARTHA HILL
Justice.
op.).
was not fundamental
any
Heggen
Neither the
case nor
other
13, 2012,
On November
relator filed a
case
supports
cited
the notion
petition for writ of mandamus in this
alleged
of error
in Gerald’s
type
Court.
Tex. Gov’t Code Ann.
See
Heg-
first
fundamental error. See
issue is
22.221;
Tex.RApp.
§
In
see also
P. 52.
Pemelton,
145,
gen
S.W.2d
146-48
petition,
asks this
relator
Court
(Tex.1992).
compel
Velasquez,
the Honorable Vanessa
judge of the 183rd District
presiding
Court
reasons,
foregoing
alleged
For
to conduct a
County
hearing
Harris
on
error
first issue
in Gerald’s
is not funda-
applications
corpus
his
for writ of habeas
error,
mental
and Gerald
this issue
waived
11,
28, 2004,
and June
filed March
his
error in the trial
failing
preserve
motion to set aside indictment filed Janu-
Trucks, Inc.,
court.
Mack
See
S.W.3d
12,
ary
written ruling
motion for
filed
B.L.D.,
577;
at
re
at 350-
8, 2004,
January
motion
and a
for discov-
51; Isaacs,
189;
at
Langston,
ery and inspection of evidence. These mo-
*3; Moore,
2009 WL
2006 WL
relator
tions were filed before
was convict-
Waller,
*1-2;
3290895, at
2005 WL
That
ed
October
conviction
Thus, it is
necessary
at *1-2.
State,
appeal.
was affirmed on
Jackson v.
the merits
address
of Gerald’s first is-
01-04-01137-CR,
No.
To be entitled relief case, relator must that he criminal show remedy at law adequate has no to redress harm, alleged that what his he seeks act, not compel involving a ministerial