Case Information
*0 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 10/7/2015 9:38:32 AM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 01-15-00618-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 10/7/2015 9:38:32 AM CHRISTOPHER PRINE CLERK NO. 01-15-00618-CV COURT OF APPEALS
FIRST DISTRICT OF TEXAS AT HOUSTON
JOSE RUMULO LOPEZ, Appellant, vs.
ANITA MICHELLE LOPEZ,Appellee. BRIEF OF APPELLANT JOSE RUMULO LOPEZ On appeal from 308th Judicial District Court, Harris County, Texas
Cause No. 2014-20490 Honorable James Lombardino Presiding CARL SELESKY, SBOT# 00792121 The Selesky Law Firm
5225 Katy Freeway, Suite 605 Houston, Texas 77007
Tel: (713) 780-9595
Fax: (713) 782-5226
ATTORNEY FOR JOSE RUMULO LOPEZ ORAL ARGUMENT NOT REQUESTED *2 REQUEST FOR ORAL ARGUMENT
Appellant does not request oral argument.
PARTIES AND ATTORNEYS Appellant: JOSE RUMULO LOPEZ
Appellant's Attorney:
Mr. Carl J. Selesky
5225 Katy Freeway, Suite 605
Houston, Texas 77007
carlselesky@carlselesky.com
Appellant's previous Attorney:
Felix M. Cantu, Jr.
242 Tamerlaine Drive
Houston, Texas 77024
Appellee: ANITA MICHELLE LOPEZ
Appellee's Attorney:
Sandra Kay Polk
1502 Augusta #390
Houston, Texas 77057
kay@polkfinn.com
Appellee's previous Atton1ey:
Judy D. Guyon
12607 Orchid Trails Drive
Houston, Texas 77041
judy@judyguyon.com - Email
II *3 TABLE OF CONTENTS TABLE OF CONTENTS ......................................................................................... iii
INDEX OF AUTHORITIES ..................................................................................... v
STATEMENT OF THE JURISDICTION ............................................................. viii
STATEMENT OF THE CASE .............................................................................. viii
ISSUES PRESENTED FOR REVIEW .................................................................... ix
STATEMENT OF FACTS ........................................................................................ 1
SUMMARY OF THE ARGUMENT ........................................................................ 3
ARGUMENT ............................................................................................................ 4
I. TRIAL COURT ERRED BY CHARACTERIZING $31,566.67 OF THE
RESIDENCE AS APPELLEE'S SEPARATE PROPERTY ......................... 4 A. ERROR PROPERLY PRESERVED FOR APPEAL ................................................... 4
B. PRESUMPTION OF COMMUNITY PROPERTY ...................................................... 5
i. Testimony of Appellee Insufficient ................................................................ 8 a. Interested Witness ......................................................................................... 9
11. Testimony by Appellee's Sister Insufficient.. ............................................. 10 111. Unauthenticated Check Insufficient ........................................................... 12
II. TRIAL COURT ERRORED BY AWARDING ATTORNEY'S FEES ...... 13
A. ERROR PRESERVED FOR APPEAL .................................................................... 14
B. STANDARD OF REVIEW .................................................................................... 14
C. ERROR IN THE AMOUNT OF FEES .................................................................... 14
III. TRIAL COURT ERRORED BY NOT GRANTING A NEW TRIAL ......
PRAYER ................................................................................................................. 16
APPENDIX .......................................................................................... Appendix Tab
Texas Family Code Section 3.003
Texas Rule of Appellate Procedure 33.1
Texas Rule of Civil Procedure 166a
Texas Rule of Civil Procedure 324
IV *5 INDEX OF AUTHORITIES Akin v. Aldn, 649 S.W.2d 700, 703 (Tex.App.-Fort Worth 1983, writ
refd n.r.e.) .................................................................................................................. 6
Am. Risk Ins. Co. v. Abousway, No. 14-13-00124-CV, 2014 WL 2767402,
at *5 (Tex. App.-Houston [14th Dist.] June 17, 2014, no pet.) (mem. op.) ............ 13
Barker v. Eckman, 213 S.W.3d 306, 311-12 (Tex. 2006) ....................................... 13
Carle v. Carle, 234 S.W.2d 1002 (Tex. 1950) ........................................................ 13
Carter v. Carter, 736 S.W.2d 775, 779 (Tex.App.-Houston [14th Dist.]
1987, no writ.) ........................................................................................................... 7
Cecil v. Smith, 804 S.W.2d 509, 511-512 (Tex. 1991) ............................................. 5
Ganesan v. Vallabhaneni, 96 S.W.3d 345, 354 (Tex.App.-Austin 2002,
pet. denied) ............................................................................................................... 6
Garcia v. Gomez, 319 S.W.3d 638, 640 (Tex. 2010) .............................................. 10
Hunnicutt v. Clark, 428 S.W.2d 691, 694 (Tex. Civ. App.-Texarkana
1968, no pet.) ........................................................................................................... 10
Jacobs v. Jacobs, 687 S.W.2d 731, 732 (Tex.1985) ............................................... 15
In re CH, 89 S.W.3d 17, 26 (Tex.2002) .................................................................. 6
In re J.F. C., 96 S.W.3d 256, 265-66 (Tex.~002) ...................................................... 6
Mandellv. Mandell, 310 S.W.3d 531, 541 (Tex. App.-Fort Worth
2010, pet. denied) .................................................................................................... 13
McElwee v. McElwee, 911 S.W.2d 182, 188 (Tex.App.-Houston [1st Dist.]
1995, writ denied) ...................................................................................................... 6
McKinley v. McKinley, 496 S.W.2d 540, 543 (Tex.1973) ........................................ 6
v
Messier v. Messier, No. 14-13-00572-CV, 2014 WL 2767402, at *5 (Tex.
App.-Houston [14th Dist.] June 17, 2014, no pet.) (mem. op.) .............................. 13
Moore v. Moore, 383 S.W.3d 190, 198 (Tex. App.-Dallas 2012, pet. denied) ....... 13
Moroch v. Collins, 174 S.W.3d 849, 857 (Tex. App.-Dallas 2005, pet. denied) .... 14
Old Republic Ins. v. Scott, 846 S.W.2d 832, 833 (Tex. 1993) ................................ 15
Phillips v. Phillips, 296 S.W.3d 656, 670-71 (Tex. App.-El Paso 2009, pet.
denied) ..................................................................................................................... 13
Schmeltz v. Garey, 49 Tex. 49, 6061 (Tex. 1878). ---911 S.W.2d 182 (1995) ......... 6
Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768, 852 (Tex.App.-Houston
[1st Dist] 1987, writ refd n.r.e.) ................................................................................ 4
West v. West, No. 01-14-00350-CV (Tex.App-Houston [1st Dist.] July 14,
2015, Mtn. for rehearing filed)(mem. op.) ...................................................... 13, 14
OTHER AUTHORITIES Texas Family Code Section 3.003 ............................................................................... 6
Texas Rule of Appellate Procedure 33.1 .................................................................... .4
Texas Rule of Civil Procedure 166a ......................................................................... 10
Texas Rule of Civil Procedure 324 ...................................................................... .4,
VI
NO. 01-15-00618-CV *7 COURT OF APPEALS
FIRST DISTRICT OF TEXAS AT HOUSTON
JOSE RUMULO LOPEZ, Appellant, vs.
ANITA MICHELLE LOPEZ, Appellee. BRIEF OF APPELLANT JOSE RUMULO LOPEZ On appeal from 308th Judicial District Court, Harris County, Texas
Cause No. 2014-20490 Honorable James Lombardino Presiding TO THE HONORABLE FIRST COURT OF APPEALS:
Appellant JOSE RUMULO LOPEZ files this Brief of Appellant and asks this Honorable first Court of Appeals to reverse the judgment of the trial court and
remand this matter for a new trial and re-division of the community estate.
Vil STATEMENT OF THE JURISDICTION *8 This Comt has jurisdiction over this appeal pursuant to TEX. GOV'T.
CODE § 22.202(h), because it is a civil case with which a notice of appeal was
filed. TEX. GOV'T. CODE § 22.202(h).
STATEMENT OF THE CASE Nature of the case: This is a divorce matter brought by Petitioner/ Appellee, ANITA MICHELLE LOPEZ ("Appellee") against JOSE RUMULO LOPEZ
("Appellant"). 1
Course of proceedings and disposition: The original petition for divorce was filed on April 14, 2014. 2 The original answer was filed on July 10, 2015. 3
The initial Final Decree was signed on February 23, 2015. Appellant filed a
motion for new trial on March 24, 2015. 4 A second final decree of divorce was
signed on May 4, 2015. [5] Appellant filed a second motion for new trial on June 3,
2015. [6] The motion was denied on July 15, 2015. [7] The comt adopted findings of
facts and conclusions of law on July 15, 2015. 8 Appellant filed a notice of appeal
on July 16, 2015.
[1] Clerk's Record (CR), p. 3.
[2] CR,p.3.
[3] CR, p. 18.
[4] CR,p. 20.
[5] CR,p. 48.
[6] CR,p. 64.
[7] CR, p. 103.
[8] CR, p. 100.
[9] CR, p. 104.
viii ISSUES PRESENTED FOR REVIEW *9 I. TRIAL COURT ERRED BY CHARACTERIZING $31,566.67 OF THE
RESIDENCE AS APPELLEE'S SEPARATE PROPERTY II. TRIAL COURT ERRORED BY AWARDING ATTORNEY'S FEES
III. TRIAL COURT ERRORED BY NOT GRANTING A NEW TRIAL
IX STATEMENT OF FACTS Mr. Lopez and Appellee were matTied on April 18, 1985. [10] After the parties
were man·ied, Appellee received an interest in real estate upon the death of her
father 11 . Mr. Lopez and Appellee paid the utilities for this portion of real estate
during the matTiage. 12 The patiies later could not come to an agreement on paying
the utilities, taxes, ai1d other costs associated with owning the propeiiy. [13] The
paiiies then sold their interest in the real estate to Appellee's siblings. 14 Appellee
allegedly put the funds received for the property from her brother into CD
accounts, which she described as cmmnunity property. 15 Appellee received a
check from her sister for her interest in the property. 16
Mr. Lopez and Appellee later purchased the property located at 222 W.
Twickenhain Trial, Houston, Texas 77076 from Appellee's mother. 17 Payments
were made to Appellee's mother as payment for the prope1iy located at 222 W.
Twickenham Trail. [18]
Appellee filed for divorce on April 14, 2014. 19 A first amended petition [1] CR, ° p. 3.
[11] Reporter's Record(RR), p. 39.
[12] RR, p. 40.
[13] RR, p. 41.
14RR , p. 41.
[15] RR,p. 42.
16 Petitioner's Exhibit(PE) 2; RR, p. 139.
11RR , p. 38.
IS RR, p. 43.
I9RR, p. 3.
was filed on June 16, 2014, in which Appellee requested att0111ey's fees from Mr.
Lopez. 20 A divorce trial was held on January 27, 2015. 21 At trial, Appellee
represented to the Court that the check she received from her sister and the deed
from her mother for the property located at 222 W. Twickenham Trial were in
close proximity to each other, when in fact they were dated months apart. 22
Appellee, with no supporting evidence testified that she believed the requested
attorney's fees were reasonable and necessary. [23] The trial comi rendered a ruling
which was recorded on the record. [24] The trial comi granted the party's divorced
based on insupportability. [25] The trial court held that Appellee owned a separate
property interest in the residence located at 222 W. Twickenham Trail. [26] The trial
comi awar·ded $10,000.00 in att0111ey's fees to Petitioner. 27 The Court entered the
initial final decree for this matter on February 23, 2015. The decree contained
several awards that were not mentioned at trial. Specifically, a money judgment
against Respondent, liens to secure judgments, and the assignment of the mar·ital
estate's tax liability.
Mr. Lopez filed~ motion for new trial on March 24, 2015. 28 The motion for
[10] - CR,p. 9.
1J - RR, p. I.
[22] RR, p. 43.
[13] - RR, p. 69.
14 - RR, p. 127.
[25] RR, p. 128.
[16] - RR, p. 128.
17 - RR, p. 129.
[28] CR, p. 20.
new t1ial asse1ied that the evidence was factually and legally insufficient to suppmi
the trial comi's n1lings regarding the property located at 222 W. Twickenhain
Trail. [29] A heaiing was held on April 29, 2015. [30] A second final decree of divorce
was signed by the trial comi on May 4, 2015. [31] A second motion for new trial was
filed by Mr. Lopez on June 3, 2015, and denied by the trial court on July 15,
2015. [32] The motion for new trial asse1ied that the evidence was factually and
legally insufficient to suppmi the trial court's rulings regarding the property located
at 222 W. Twickenham Trail, and regai·ding the court's ruling for attorney's fees. [33]
The comi adopted findings of facts and conclusions of law on July 15, 2015. The
findings of fact states that the award for attorney's fees was made as paii of the t1ial
court's division of the marital estate. [34] Appellant filed a notice of appeal on July
16, 2015. [35]
SUMMARY OF THE ARGUMENT The trial court erred by chai·acterizing a paii of the property located at 222 W. Twickenhain Trail as Appellee's sepai·ate property. Appellee had the burden to
overcome the presumption that the property was community prope1iy. The
unauthenticated check, as well as the testimony of Appellee fail to meet Appellee's
[29] CR, p. 22.
[3] ° CR, p. 32.
[31] CR, p. 48.
[32] CR, p. 64; CR, p. 103.
[33] CR, p. 65; CR, p. 66.
[34] CR,p. 100.
r , CR, p. 104.
burden of proof to show that any portion of the property was separate property.
The trial court ened by awarding $10,000 in attorney's fees to Appellee. There is insufficient evidence to show that the $10,000 judgment for attorney's fees
was required as part of a just and fair division of the community estate.
The trial court eITed by not granting Appellant's motion for new trial. The *13 enors regarding the characterization of the community estate, and the award of
attorney's fees as pati of a just and fair division materially affect the trial comi's
division of the mai·ital estate. Any error in the division of the community estate
will cause the entire estate to be re-divided.
ARGUMENT
I. TRIAL COURT ERRED BY CHARACTERIZING $31,566.67 OF THE
RESIDENCE AS APPELLEE'S SEPARATE PROPERTY
A. ERROR PROPERLY PRESERVED FOR APPEAL
To preserve e1Tor for appellate review, a party usually must make a ti111ely objection to the trial court. [36] A motion for new trial must be filed in order to
preserve certam comp amts. . l . [37] A party complaining of fachial or legal
insufficiency is not required to comply with rule 33.l(a) and may file a motion for
new trial to preserve enor for appeal. [38] The motion for new trial preserves error
[36] Tex. R. App. P. § 33.l(a)(West 2014).
[37] See Tex. R. App. P. § 33.l(d)(West 2014).
[38] Tex. R. App. P. § 33.l(d); Tex. R. Civ. P. § 324(West 2012); Texaco, Inc. v. Pennzoil, Co.,
729 S.W.2d 768, 852 (Tex.App.-Houston [1st Dist] 1987, writ ref'd n.r.e.).
4
even when an objection is not made during tria!. 39
In the Cecil case, the appellant complained that the evidence was factually insufficient to support the jury findings. 40 The appellant filed a motion for new
trial in which she asserted her claim that the evidence was factually insufficient.
The motion for new trial was not brought before the trial comi, and was overruled
by operation oflaw. [42] The appellate comi held that the appellant had not preserved
her claim of factual insufficiency. 43 The Texas Supreme Comi subsequently
reversed and remanded the matter to the court of appeals, ruling that the claim for
factual insufficiency had been preserved by the filing of a motion for new trial. 44
In the present matter, Mr. Lopez timely filed a motion for new trial on June 3, 2015. 45 The motion for new trial asserted that the evidence was factually and
legally insufficient to support the trial court's 1ulings regarding the prope1iy located
at 222 W. Twickenham Trail. [46] Therefore, Mr. Lopez properly preserved this issue
for appeal.
B. PRESUMPTION OF COMMUNITY PROPERTY
. . A presmnption exists in the Texas Family Code that all property possessed 39 See Cecil v. Smith, 804 S. W.2d 509, 511-512 (Tex. 1991).
[4] ° Cecil v. Smith, 804 S.W.2d at 510.
[41] Id.
[42] Id.
[43] Id.
[44] Cecil, at 512.
[45] CR, p. 64.
[46] CR, p. 66.
5
by a husband and wife at the time of the dissolution of their marriage is cmmnunity
property. [47] If a patiy asse1is that certain propeiiy is their separate prope1iy, they
bear the burden of rebutting the presumption of cmmnunity prope1iy by clear and
convmcmg evr ence. · · "d Reviewing cowis apply a higher standard of legal and
factual sufficiency review when a party's burden of proof must be by cleat· and
convincing evidence. [49] In order to discharge this burden, a pat·ty generally must
trace and cleai·ly identify the prope1iy claimed as separate propeiiy. [50] The party's
testimony alone will usually be insufficient to rebut the preswnption. 51 A patiy
usually must trace the funds used to purchase the property to show that it is 5?
separate property. - A party can trace the separate origin of property with
evidence showing the time and means by which the property was obtained. [53]
Any doubts regarding the chai·acter of property should be resolved in favor of the
comnrnnity estate. 54 The asswnption of community property prevails if sw1nise
or speculation is required to conclude the property's status. [55]
[47] Tex.Fam.Code Ann.§ 3.003 (West 2002).
[48] Id.; NfcKinley v. A1cKinley, 496 S.W.2d 540, 543 (Tex.1973).
[49] NfcKinley, [50] at 543. In re 96 S.W.3d 256, 265-66 (Tex.2002); 89 S.W.3d 17, 26 (Tex.2002). In re J.F.C., C.H.,
[51] [52] See Schmeltz v. Garey, 49 Tex. 49, 6061 (Tex. 1878). ---911 S.W.2d 182 (1995). Id.; McElwee v. A1cElwee, 911 S.W.2d 182, 188 (Tex.App.-Houston [1st Dist.] 1995, writ
denied).
[53] [54] 649 S.W.2d 700, 703 (Tex.App.-Fort Worth 1983, Akin v. Akin, writ refd n.r.e.). 96 S.W.3d 345, 354 (Tex.App.-Austin 2002, pet. denied). Ganesan v. Vallabhaneni,
[55] NfcKinley, 496 S.W.2d at 544.
6 In this matter, the trial court ened when it determined that Appellee owned a separate property interest in the residence located at 222 W. Twickenham Trail. [56]
Appellee had the burden to rebut the presumption of cmrununity property. The
house should have been completely characterized as community property based on
the inception of title.
In the Carter case, real property was purchased by the husband through an *16 ean1est money contract prior to maniage. [58] The comi of appeals held that the
character of real prope1iy is determined by whether the maniage existed at
inception of the new owner's rights. 59 The trial comi had already held that the
contract was signed prior to the maniage; therefore the property was the husband's
separate propeiiy. [60]
The facts in this case are clearly dissimilar to the Carter case. In this case, the property was undisputedly purchased during the marriage. 61 There was no
evidence presented to this Court that indicates separate prope1iy funds were used in
direct relationship to a purchase of real estate.
The only documentation regarding the purchase of the prope1iy is an unauthenticated check from several months before the prope1iy was transferred. 62
[56] CR, p. 128.
[57] See Carter v. Carter, 736 S.W.2d 775, 779 (Tex.App.-Houston [14th Dist.] 1987, no writ.).
ss Id.
[59] Id.
[60] Id.
[61] RR, p. 38.
[62] PE 2; RR, p. 139.
No contract for the sale of the real estate property has been offered by Petitioner to
prove her separate propei1y interest. Without any tracing of these funds directly to
the purchase, the Petitioner is unable to satisfy her burden. The Trial Court erred
when characterizing the marital estate's real estate property.
i. Testimony of Appellee Insufficient
Appellee's uncontroverted testimony is insufficient evidence to rebut tl1e presumption of cmmnunity property. Appellee testified that the prope11y at 222 W.
Twickenham Trail was purchased after she was manied to Mr. Lopez. [63] Appellee
testified that the prope11y was purchased by herself and Mr. Lopez. [64] The property
at 222 W. Twickenham Trail was allegedly purchased using funds from the sale of
other property which was received after the death of Appellee's father. [65] The
property from Appelle's father was shared between multiple parties whom all paid
a pmiion of the utilities. [66] Appellee testified that she and Mr. Lopez paid their
portion of the utilities for the property together. [67] According to Appellee, only
after the property was divided did Mr. Lopez not agree to pay for the utilities and
other ~osts associated with owning the prope11y. [68]
After the c01mnw1ity had been paying for a pmiion of the utilities on the [63] RR, p. 38.
[64] RR, p. 38-39.
6" 'RR, p. 39.
[66] RR, p. 40.
[67] RR, p. 40.
[68] RR, p. 41.
8
property received upon Appellee's father's death, it was later sold to Appellee's
siblings. [69] Appellee put the funds received for the property from her brother into
CD accounts, which she described as community property. 70 The funds received
from her sister for the prope1iy were allegedly given to Appellee's mother as
payment for the property located at 222 W. Twickenham Trail. 71 Payments were
regularly made to Appellee's mother as payment for the prope1iy located at 222 W.
Twickenham Trail.
Appellee did not testify that she paid the utilities for the property with *18 separate funds. The parties' expenditure of community prope1iy funds to pay for
their p01iion of the utilities for the property shows that Appellee's interest in the
property was part of the community estate. When the property was sold to
Appellee's brother and sister, the income from that propeiiy was community
propeiiy. Therefore, Appellee's testimony does not prove that the funds received
from Appellee's sister were her separate property. Additionally, Appellee's
testimony does not prove that the $31,000 given to Appellee's mother was actually
for the purchase of the property located at 222 W. Twickenham Trail.
a. Interested Witness
In order to be dispositive, sworn testimony of an interested witness must [69] RR, p. 41.
[70] RR,p. 42.
[71] RR, p. 43.
7' -RR, p. 43.
9
contain clear and credible statements of fact that are able to be controverted. [73]
There must not be any evidence that calls into question the affiant's credibility. [74] If
the testimony of an interested paiiy does not meet one of the requirements, it is
inconclusive and at most raises a question of fact for the finder of fact. [75] A party
has an interest in a case when she is a witness in the case, is managing or directing
the case, has any pecuniary interest in the lawsuit, or is an attorney in the case.
Appellee claims that the funds received from her sister for her interest in the shared prope1iy was given to Appellee's mother as payment for the property
located at 222 W. Twickenham Trail. [77] However, as an interested witness, the
testimony of Petitioner is insufficient testimony to establish prope1iy as a paiiy's
separate property.
ii. Testimony by Appel!ee's Sister Insufficient
Appellee's sister testified regarding the characterization of the propeiiy. [78] Specifically, Appellee's sister testified that she gave Appellee a check for
herinterest in the shared property. [79] She also testified that Appellee had planned to
pay off the house located at 222 W. Twickenham Trail with the funds from the
[73] See TEX. R. CIV. P. 166a(c)(West2012).
[74] Garcia v. Gomez, 319 S.W.3d 638, 640 (Tex. 2010).
[75] Id.
[76] p. RR, [77] 43. Hunnicutt v. Clark, no App.-Texarkana 1968, Civ. 428 S.W.2d 691, 694 (Tex. pet.).
[78] RR, p. 91.
[79] RR, p. 91.
10
check, and that Appellee had done so.
The testimony of Appellee's sister does not show that the property interest purchased by the check was Appellee's separate property. Appellee's sister does
not even claim that she purchased Appellee's separate property interest. The fact
that Appellee received a check from her sister is in-elevant to the issue of
characterizing the property sold. The testimony of Appellee's sister provides no
evidence, or in the alternative, insufficient evidence to support the claim that the
property sold to Appellee's sister was the separate property of Appellee.
The testimony of Appellee's sister does not show that a real estate *20 transaction existed between appellee and Appellee's mother. The testirnony
actually contradicts the testimony of Appellee in that the property located at 222
W. Twickenham Trail was not paid off with the funds received from Appellee's
sister. Appellee actually testified that she and Mr. Lopez continued to make
payments on the property to Appellee's mother. [81] The testimony of Appellee's
sister provides no evidence, or in the alternative, insufficient evidence to suppmi
the claim that a real estate transaction existed between appellee and Appellee's
mother.
iii. Unauthenticated Check Insufficient
The unauthenticated check which Appellee used to support her so RR, p. 91.
[81] RR, p. 43.
characterization is insufficient to rebut the presmnption of community property.
The date on the check is December 31, 2003. 82 The deed to the property located at
222 W. Twickenham Trail was signed on May 7, 2004. [83] The unauthorized check
does not prove the existence of a written purchase contract for the real estate
property located at 222 W. Twickenham Trail. The check represents hearsay and
is i1Televant to the issue of the property transfer as it was written several months
prior to the deed. The check also does not make any mention of or reference to the
real estate property located at 222 W. Twickenham Trail. The trial court e1Ted by
admitting the unauthorized check as evidence, and in relying on the check to
characterize any portion of the prope1iy located at 222 W. Twickenham Trail as the
separate property of Appellee.
II. TRIAL COURT ERRORED BY AW ARD ATTORNEY'S FEES
The trial court awarded $10,000.00 in attorney's fees to Petitioner. [84] The
award was made as pa1i of the trial comi's division of the marital estate. [85] The
comi e1Ted by awarding $10,000.00 in attorney fees because there is insufficient
evidence to support the award.
[82] PE 2; RR, p. 139.
[83] PE 5; RR, p. 147.
s4RR , p. 129.
8" 'CR, p. 100.
12
A. ERROR PRESERVED FOR APPEAL
A motion for new trial preserves en-or when it challenges the sufficiency of evidence used for the award of att01ney's fees. [86]
In the present matter, Mr. Lopez timely filed a motion for new trial on June 3, 2015. [87] The motion for new trial asserted that the evidence was factually and
legally insufficient to support the trial court's 1ulings for attorney's fees. [88]
B. STANDARD OF REVIEW
The amount of atton1ey's fees awarded by a trial court is reviewed under a sufficiency of the evidence standard.
C. ERROR IN THE AMOUNT OF FEES
A trial comi may award reasonable atton1ey's fees in a divorce action as pmi of a just and right division of propeiiy. [90]
Legal and factual sufficiency challenges m·e relevant factors when detennining whether a trial court abused its discretion. 91 When reviewing a matter
[86] See TEX.R. CIV. P. 324(b)(2)(West 2012); See Barker v. Eclanan, 213 S.W.3d 306, 311-12
(Tex. 2006).
[87] CR, p. 64.
[88] CR, p. 65.
89 Am. Risk Ins. Co. v. Abousway, No. 14-13-00124-CV, 2014 WL 2767402, at *5 (Tex. App.
Houston [14th Dist.] June 17, 2014, no pet.) (mem. op.); ~Messier v. lvfessier, No. 14-13-00572-
CV, 2014 WL 2767402, at *5 (Tex. App.-Houston [14th Dist.] June 17, 2014, no pet.) (mem.
~fl~e TEX. FAM. CODE ANN.§ 6.708(c) (West 2014); Phillips v. Phil/ips,_296 S.W.3d 656,
670-71 (Tex. App.-El Paso 2009, pet. denied); Carle v. Carle, 234 S.W.2d 1002 (Tex. 1950);
West v. West, No. 01-14-00350-CV (Tex.App- Houston [!st Dist.] July 14, 2015, Mtn. for
rehearing filed)(mem. op.); lvfandell v. lvfandell, 310 S.W.3d 531, 541 (Tex. App.-Fort Worth
20 I 0, pet. denied).
[91] lvfoore v. A1oore, 383 S.W.3d 190, 198 (Tex. App.-Dallas 2012, pet. denied).
13
for legal and factual sufiiciency, an appellate court should consider whether the
trial court had sufficient evidence to exercise its discretion and whether the court
properly applied its discretion. [92] An appellate court reviews the first prong of the
test by conducting the applicable sufficiency review. [93] The review court then
determines whether the trial court's decision was reasonable based on the
evidence. [94] There must be evidence of a substantive and probative nature to
support the trial court's decision.
There is insufficient evidence to suppori the amount of attorney fees awarded by the trial court. Appellee's testimony does not contain any discussion of
how the requested attorney's fees could be a pati of a just and fair division of the
mariial estate. Appellee's testimony regar·ding attorney's fees only states that she
believed that the fees were reasonable and necessary. [96] No stipulation was made
regarding whether the attorney's fees could or should be included as pari of a just
and fair division of the marital estate. No evidence or testimony was given proving
that an awar·d of attorney fees was needed for a just and right division. Therefore,
the Trial Comi abused its discretion by awarding such a large and disproportionate
share of the community estate to Petitioner.
[92] Morocli v. Collins, 174 S.W.3d 849, 857 (Tex. App.-Dallas 2005, pet. denied).
[93] Id.
[94] Id.
[95] Id.; West, No. 01-14-00350-CV.
[96] RR, p. 69.
14
III. TRIAL COURT ERRORED BY NOT GRANTING A NEW TRIAL
The trial court erred by not granting Mr. Lopez's motion for new trial. One purpose of a motion for new trial is to give the trial court a chance to correct what
the appellant will claim on appeal is reversible error. [97] When an error has occurred
in one portion of the property division, the entire cmrununity estate should be re-
divided in a just and right manner.
Mr. Lopez filed a motion for new trial on June 3, 2015. [99] In the motion, Mr.
Lopez asse1ied that the trial court erred when it awarded att0111ey fees, as well as
when it characterized and divided the community estate. [100] The motion for new
trial raised valid objections and preserved those objections for appeal. The
evidence presented by Appellee was insufficient to overcome the presumption of
cmrununity propetiy. The trial court erred by not granting a new trial in order to
properly examine the objection asserted by Mr. Lopez regarding the
characterization and division of the marital estate. The trial court should have
granted a new trial in order to re-divide the marital estate in a fair and just manner.
[97] Old Republic Ins. v. Scott, 846 S.W.2d 832, 833 (Tex. 1993).
[98] See Jacobs v. Jacobs, 687 S.W.2d 731, 732 (Tex.1985).
[99] RR, p. 64.
ioo RR, p. 64.
PRAYER For the foregoing reasons, JOSE RUMULO LOPEZ respectfully requests this Comi to reverse the judgment of the trial court and remand this matter for a
new trial and re-division of the cmmnunity estate.
Respectfully submitted, Selesky Law Finn
5225 Katy Freeway, Suite 605 Houston, Texas 77007 Tel: (713) 780-9595
Fax: (713) 782-5226
Isl Carl J. Selesky CARL SELESKY, SBOT# 00792121 *25 carlselesky@carlselesky.com ATTORNEY FOR JOSE RUMULO LOPEZ Certificate of Service
I hereby certify that a true and correct copy of the above and foregoing document has been forwarded via ce11ified mail return receipt requested to all
counsel of record on this the 7th day of October, 2015.
Sandra Kay Polk
1502 Augusta Dr., Suite 390
Houston, Texas 77057-2525
713-266-0846
713-266-9269
Isl Carl J. Selesky Carl J. Selesky
NO. 01-15-00618-CV
IN THE
COURT OF APPEALS
FOR THE FIRST JUDICIAL DISTRICT HOUSTON, TEXAS
JOSE RUMULO LOPEZ, Appellant, vs.
ANITA MICHELLE LOPEZ, Appe/lee. Appealed from the 308th Judicial District Court of Harris County, Texas
CERTIFICATE OF COMPLIANCE Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that this brief contains 3,758 words (excluding the caption, table of contents, table of
authorities, signature, proof of service, certification, and certificate of compliance).
This is a computer-generated document created in Microsoft Word, using 14-point
typeface for all text, except for footnotes which are in 12-point typeface. In making
this certificate of compliance, I ain relying on the word count provided by the
software used to prepare the document.
Respectfully Submitted, Selesky Law Firm 5225 Katy Freeway, Suite 605 Houston, TX 77007 Tel: (713) 780 9595 Fax: (713) 782 5226 By: /s/ Carl J. Selesky Carl J. Selesky, SBOT# 00792121 carlselesky@carlselesky.com ATTORNEY FOR APPELLANT *28 FAMILY CODE
TITLE 1. THE MARRIAGE RELATIONSHIP SUBTITLE B. PROPERTY RIGHTS AND LIABILITIES CHAPTER 3. MARITAL PROPERTY RIGHTS AND LIABILITIES SUBCHAPTER A. GENERAL RULES FOR SEPARATE AND COMMUNITY PROPERTY
Sec. 3.001. SEPARATE PROPERTY. A spouse's separate property
consists of:
(1) the property owned or claimed by the spouse before marriage;
(2) the property acquired by the spouse during marriage by gift, devise, or descent; and
(3) the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning
capacity during marriage.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.
Sec. 3.002. COMMUNITY PROPERTY. Community property consists of
the property, other than separate property, acquired by either spouse
during marriage.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.
Sec. 3.003. PRESUMPTION OF COMMUNITY PROPERTY. {a) Property
possessed by either spouse during or on dissolution of marriage is
presumed to be community property.
(b) The degree of proof necessary to establish that property is
separate property is clear and convincing evidence.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.
Sec. 3.004. RECORDATION OF SEPARATE PROPERTY. {a) A subscribed
and acknowledged schedule of a spouse's separate property may be
recorded in the deed records of the county in which the parties, or
one of them, reside and in the county or counties in which the real
property is located.
(b) A schedule of a spouse's separate real property is not
constructive notice to a good faith purchaser for value or a creditor
without actual notice unless the instrument is acknowledged and
recorded in the deed records of the county in which the real property
is located.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.
Sec. 3.005. GIFTS BETWEEN SPOUSES. If one spouse makes a gift
of property to the other spouse, the gift is presumed to include all
the income and property that may arise from that property.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.
Sec. 3.006. PROPORTIONAL OWNERSHIP OF PROPERTY BY MARITAL
ESTATES. If the community estate of the spouses and the separate
estate of a spouse have an ownership interest in property, the
respective ownership interests of the marital estates are determined
by the rule of inception of title.
Added by Acts 1999, 76th Leg., ch. 692, Sec. 1, eff. Sept. 1, 1999.
Amended by Acts 2001, 77th Leg., ch. 838, Sec. 3, eff. Sept. 1, 2001.
Sec. 3.007. PROPERTY INTEREST IN CERTAIN EMPLOYEE BENEFITS. (a)
Repealed by Acts 2009, 8lst Leg., R.S., Ch. 768, Sec. 11(1), eff,
September 1, 2009.
(b) Repealed by Acts 2009, 8lst Leg., R.S., Ch. 768, Sec. 11(1),
eff. September 1, 2009.
(c) The separate property interest of a spouse in a defined
contribution retirement plan may be traced using the tracing and
characterization principles that apply to a nonretirement asset.
(d) A spouse who is a participant in an employer-provided stock
option plan or an employer-provided restricted stock plan has a
separate property interest in the options or restricted stock granted
to the spouse under the plan as follows:
(1) if the option or stock was granted to the spouse before marriage but required continued employment during marriage before the
grant could be exercised or the restriction removed, the spouse's
separate property interest is equal to the fraction of the option or
restricted stock in which:
(A) the numerator is the sum of: (i) the period from the date the option or stock was granted until the date of marriage; and
(ii) if the option or stock also required continued employment following the date of dissolution of the marriage before
the grant could be exercised or the restriction removed, the period
from the date of dissolution of the marriage until the date the grant
could be exercised or the restriction removed; and
(B) the denominator is the period from the date the option or stock was granted until the date the grant could be
exercised or the restriction removed; and
(2) if the option or stock was granted to the spouse during the marriage but required continued employment following the date of
dissolution of the marriage before the grant could be exercised or the
restriction removed, the spouse's separate property interest is equal
to the fraction of the option or restricted stock in which:
(A) the numerator is the period from the date of dissolution of the marriage until the date the grant could be
exercised or the restriction removed; and
(B) the denominator is the period from the date the option or stock was granted until the date the grant could be
exercised or the restriction removed.
(ei The computation described by Subsection (d) applies to each
component of the benefit requiring varying periods of employment
before the grant could be exercised or the restriction removed.
(f) Repealed by Acts 2009, 8lst Leg., R.S., Ch. 768, Sec. 11(1),
eff. September 1, 2009.
Added by Acts 2005, 79th Leg., Ch. 490 (H.B. 410), Sec. 1, eff.
September 1, 2005.
Amended by:
Acts 2009, 8lst Leg., R.S., Ch. 768 (S.B. 866), Sec. 1, eff.
September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 768 (S.B. 866), Sec. 11(1), eff.
September 1, 2009.
Sec. 3.008. PROPERTY INTEREST IN CERTAIN INSURANCE PROCEEDS.
(a) Insurance proceeds paid or payable that arise from a casualty
loss to property during marriage are characterized in the same manner
as the property to which the claim is attributable.
(b) If a person becomes disabled or is injured, any disability
insurance payment or workers' compensation payment is community
property to the extent it is intended to replace earnings lost while
the disabled or injured person is married. To the extent that any
insurance payment or workers' compensation payment is intended to
replace earnings while the disabled or injured person is not married,
the recovery is the separate property of the disabled or injured
spouse.
Added by Acts 2005, 79th Leg., Ch. 490 (H.B. 410), Sec. 1, eff.
September 1, 2005.
SUBCHAPTER B. MANAGEMENT, CONTROL, AND DISPOSITION OF MARITAL PROPERTY
Sec. 3.101. MANAGING SEPARATE PROPERTY. Each spouse has the
sole management, control, and disposition of that spouse's separate
property.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.
Sec. 3.102. MANAGING COMMUNITY PROPERTX. (a) During marriage,
each spouse has the sole management, control, and disposition of the
community property that the spouse would have owned if single,
including:
(1) personal earnings;
(2) revenue from separate property; (3) recoveries for personal injuries; and (4) the increase and mutations of, and the revenue from, all property subject to the spouse's sole management, control, and
disposition.
(b) If community property subject to the sole management,
control, and disposition of one spouse is mixed or combined with
community property subject to the sole management, control, and
disposition of the other spouse, then the mixed or combined community
property is subject to the joint management, control, and disposition
of the spouses, unless the spouses provide otherwise by power of
attorney in writing or other agreement.
(c) Except as provided by Subsection (a), community property is
subject to the joint management, control, and disposition of the
spouses unless the spouses provide otherwise by power of attorney in
writing or other agreement.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.
Sec. 3.103. MANAGING EARNINGS OF MINOR. Except as provided by
Section 264.0111, during the marriage of the parents of an
unemancipated minor for whom a managing conservator has not been
appointed, the earnings of the minor are subject to the joint
management, control, and disposition of the parents of the minor,
unless otherwise provided by agreement of the parents or by judicial
order.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.
Amended by Acts 2001, 77th Leg., ch. 964, Sec. 1, eff. Sept. 1, 2001.
Sec. 3.104. PROTECTION OF THIRD PERSONS. (a) During marriage,
property is presumed to be subject to the sole management, control,
and disposition of a spouse if it is held in that spouse's name, as
shown by muQiment, contract, deposit of funds, or other evidence of
ownership, or if it is in that spouse's possession and is not subject
to such evidence of ownership.
(b) A third person dealing with a spouse is entitled to rely, as
against the other spouse or anyone claiming from that spouse, on that
spouse's authority to deal with the property if:
(1) the property is presumed to be subject to the sole management, control, and disposition of the spouse; and
(2) the person dealing with the spouse: (A) is not a party to a fraud on the other spouse or another person; and
(B) does not have actual or constructive notice of the spouse's lack of authority.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.
SUBCHAPTER C. MARITAL PROPERTY LIABILITIES Sec. 3.201. SPOUSAL LIABILITY. (a) A person is personally
liable for the acts of the person's spouse only if:
(1) the spouse acts as an agent for the person; or (2) the spouse incurs a debt for necessaries as provided by Subchapter F, Chapter 2.
(b) Except as provided by this subchapter, community property is
not subject to a liability that arises from an act of a spouse.
(c) A spouse does not act as an agent for the other spouse
solely because of the marriage relationship.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.
Sec. 3.202. RULES OF MARITAL PROPERTY LIABILITY. (a) A
spouse's separate property is not subject to liabilities of the other
spouse unless both spouses are liable by other rules of law.
(b) Unless both spouses are personally liable as provided by
this subchapter, the community property subject to a spouse's sole
management, control, and disposition is not subject to:
(1) any liabilities that the other spouse incurred before marriage; or
(2) any nontortious liabilities that the other spouse incurs during marriage.
(c) The community property subject to a spouse's sole or joint
management, control, and disposition is subject to the liabilities
incurred by the spouse before or during marriage.
(d) All community property is subject to tortious liability of
either spouse incurred during marriage.
(e) For purposes of this section, all retirement allowances,
annuities, accumulated contributions, optional benefits, and money in
the various public retirement system accounts of this state that are
community property subject to the participating spouse's sole
management, control, and disposition are not subject to any claim for
payment of a criminal restitution judgment entered against the
nonparticipant spouse except to the extent of the nonparticipant
spouse's interest as determined in a qualified domestic relations
order under Chapter 804, Government Code.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.
Amended by:
Acts 2009, Blst Leg., R.S., Ch. 1244 (S.B. 2324), Sec. 1, eff.
September 1, 2009.
Sec. 3.203. ORDER IN WHICH PROPERTY IS SUBJECT TO EXECUTION.
(a) A judge may determine, as deemed just and equitable, the order in
which particular separate or community property is subject to
execution and sale to satisfy a judgment, if the property subject to
liability for a judgment includes any combination of:
(1) a spouse's separate property; (2) community property subject to a spouse's sole management, control, and disposition;
(3) community property subject to the other spouse's sole management, control, and disposition; and
(4) community property subject to the spouses' joint management, control, and disposition.
(b) In determining the order in which particular property is
subject to execution and sale, the judge shall consider the facts
surrounding the transaction or occurrence on which the suit is based.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.
SUBCHAPTER D. MANAGEMENT, CONTROL, AND DISPOSITION OF MARITAL PROPERTY
UNDER UNUSUAL CIRCUMSTANCES Sec. 3.301. MISSING, ABANDONED, OR SEPARATED SPOUSE. (a) A
spouse may file a sworn petition stating the facts that make it
desirable for the petitioning spouse to manage, control, and dispose
of community property described or defined in the petition that would
otherwise be subject to the sole or joint management, control, and
disposition of the other spouse if:
(1) the other spouse has disappeared and that spouse's location remains unknown to the petitioning spouse, unless the spouse
is reported to be a prisoner of war or missing on public service;
(2) the other spouse has permanently abandoned the petitioning spouse; or
(3) the spouses are permanently separated.
(b) The petition may be filed in a court in the county in which
the petitioner resided at the time the separation began, or the
abandonment or disappearance occurred, not earlier than the 60th day
after the date of the occurrence of the event. If both spouses are
nonresidents of this state at the time the petition is filed, the
petition may be filed in a court in a county in which any part of the
described or defined community property is located.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.
Amended by Acts 2001, 77th Leg., ch. 217, Sec. 23, eff. Sept. 1, 2001.
Sec. 3.302. SPOUSE MISSING ON PUBLIC SERVICE. (a) If a spouse
is reported by an executive department of the United States to be a
prisoner of war or missing on the public service of the United States,
the spouse of the prisoner of war or missing person may file a sworn
petition stating the facts that make it desirable for the petitioner
to manage, control, and dispose of the community property described or
defined in the petition that would otherwise be subject to the sole or
joint management, control, and disposition of the imprisoned or
missing spouse.
(b) The petition may be filed in a court in the county in which
the petitioner resided at the time the report was made not earlier
than six months after the date of the notice that a spouse is reported
to be a prisoner of war or missing on public service. If both spouses
were nonresidents of this state at the time the report was made, the
petition shall be filed in a court in a county in which any part of
the described or defined property is located.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.
Sec. 3.303. APPOINTMENT OF ATTORNEY. (a) Except as provided by
Subsection (b), the court may appoint an attorney in a suit filed
under this subchapter for the respondent.
(b) The court shall appoint an attorney in a suit filed under
this subchapter for a respondent reported to be a prisoner of war or
missing on public service.
(c) The court shall allow a reasonable fee for an appointed
attorney's services as a part of the costs of the suit.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.
Sec. 3.304. NOTICE OF HEARING; CITATION. (a) Notice of the
hearing, accompanied by a copy of the petition, shall be issued and
served on the attorney representing the respondent, if an attorney has
been appointed.
(b) If an attorney has not been appointed for the respondent,
citation shall be issued and served on the respondent as in other
civil cases.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.
Sec. 3.305. CITATION BY PUBLICATION. (a) If the residence of
the respondent, other than a respondent reported to be a prisoner of
war or missing on public service, is unknown, citation shall be
published in a newspaper of general circulation published in the
county in which the petition was filed. If that county has no
newspaper of general circulation, citation shall be published in a
newspaper of general circulation in an adjacent county or in the
nearest county in which a newspaper of general circulation is
published.
(b) The notice shall be published once a week for two
consecutive weeks before the hearing, but the first notice may not be
published after the 20th day before the date set for the hearing.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.
Sec. 3.306. COURT ORDER FOR MANAGEMENT, CONTROL, AND DISPOSITION
OF COMMUNITY PROPERTY. (a) After hearing the evidence in a suit
under this subchapter, the court, on terms the court considers just
and equitable, shall render an order describing or defining the
community property at issue that will be subject to the management,
control, and disposition of each spouse during marriage.
(b) The court may:
(1) impose any condition and restriction the court deems necessary to protect the rights of the respondent;
(2) require a bond conditioned on the faithful administration of the property; and
(3) require payment to the registry of the court of all or a portion of the proceeds of the sale of the property, to be disbursed
in accordance with the court's further directions.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.
Sec. 3.307. CONTINUING JURISDICTION OF COURT; VACATING ORIGINAL
ORDER. (a) The court has continuing jurisdiction over the court's
order rendered under this subchapter.
(b) On the motion of either spouse, the court shall amend or
vacate the original order after notice and hearing if:
(1) the spouse who disappeared reappears; (2) the abandonment or permanent separation ends; or (3) the spouse who was reported to be a prisoner of war or missing on public service returns.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.
Amended by Acts 2001, 77th Leg., ch. 217, Sec. 24, eff. Sept. 1, 2001.
Sec. 3.308. RECORDING ORDER TO AFFECT REAL PROPERTY. An order
authorized by this subchapter affecting real property is not
constructive notice to a good faith purchaser for value or to a
creditor without actual notice unless the order is recorded in the
deed records of the county in which the real property is located.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.
Sec. 3.309. REMEDIES CUMULATIVE. The remedies provided in this
subchapter are cumulative of other rights, powers, and remedies
afforded spouses by law.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.
SUBCHAPTER E. CLAIMS FOR REIMBURSEMENT Sec. 3.401. DEFINITIONS. In this subchapter:
(1) Repealed by Acts 2009, 8lst Leg., R.S., Ch. 768, Sec.
11(2), eff. September 1, 2009.
(2) Repealed by Acts 2009, 8lst Leg., R.S., Ch. 768, Sec.
11(2), eff. September 1, 2009.
(3) Repealed by Acts 2009, 8lst Leg., R.S., Ch. 768, Sec.
11(2), eff. September 1, 2009.
(4) ''Marital estate'' means one of three estates: (A) the community property owned by the spouses together and referred to as the community marital estate;
(B) the separate property owned individually by the husband and referred to as a separate marital estate; or
(C) the separate property owned individually by the wife, also referred to as a separate marital estate.
(5) "Spouse" means a husband, who is a man, or a wife, who is a woman. A member of a civil union or similar relationship entered
into in another state between persons of the same sex is not a spouse.
Added by Acts 1999, 76th Leg., ch. 692, Sec. 2, eff. Sept. 1, 1999.
Amended by Acts 2001, 77th Leg., ch. 838, Sec. 2, eff. Sept. 1, 2001.
Amended by:
Acts 2009, 8lst Leg., R.S., Ch. 768 (S.B. 866), Sec. 11(2), eff.
September 1, 2009.
Sec. 3.402. CLAIM FOR REIMBURSEMENT; OFFSETS. (a) For purposes
of this subchapter, a claim for reimbursement includes:
(1) payment by one marital estate of the unsecured liabilities of another marital estate;
(2) inadequate compensation for the time, toil, talent, and effort of a spouse by a business entity under the control and
direction of that spouse;
(3) the reduction of the principal amount of a debt secured by a lien on property owned before marriage, to the extent the debt
existed at the time of marriage;
(4) the reduction of the principal amount of a debt secured by a lien on property received by a spouse by gift, devise, or descent
during a marriage, to the extent the debt existed at the time the
property was received;
(5) the reduction of the principal amount of that part of a debt, including a home equity loan:
(A) incurred during a marriage; (B) secured by a lien on property; and (C) incurred for the acquisition of, or for capital improvements to, property;
(6) the reduction of the principal amount of that part of a debt:
(A) incurred during a marriage; (B) secured by a lien on property owned by a spouse; (C) for which the creditor agreed to look for repayment solely to the separate marital estate of the spouse on whose property
the lien attached; and
(D) incurred for the acquisition of, or for capital improvements to, property;
(7) the refinancing of the principal amount described by Subdivisions (3)-(6), to the extent the refinancing reduces that
principal amount in a manner described by the applicable subdivision;
(8) capital improvements to property other than by incurring debt; and
(9) the reduction by the community property estate of an unsecured debt incurred by the separate estate of one of the spouses.
(b) The court shall resolve a claim for reimbursement by using
equitable prrnciples, including the principle that claims fdr
reimbursement may be offset against each other if the court determines
it to be appropriate.
(c) Benefits for the use and enjoyment of property may be offset
against a claim for reimbursement for expenditures to benefit a
marital estate, except that the separate estate of a spouse may not
claim an offset for use and enjoyment of a primary or secondary
residence owned wholly or partly by the separate estate against
contributions made by the community estate to the separate estate.
(d) Reimbursement for funds expended by a marital estate for
improvements to another marital estate shall be measured by the
enhancement in value to the benefited marital estate.
(e) The party seeking an offset to a claim for reimbursement has
the burden of proof with respect to the 9ffset.
Added by Acts 1999, 76th Leg., ch. 692, Sec. 2, eff. Sept. 1, 1999.
Amended by Acts 2001, 77th Leg., ch. 838, Sec. 2, eff. Sept. 1, 2001.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 768 (S.B. 866), Sec. 3, eff.
September 1, 2009.
Sec. 3.404. APPLICATION OF INCEPTION OF TITLE RULE; OWNERSHIP
INTEREST NOT CREATED. (a) This subchapter does not affect the rule
of inception of title under which the character of property is
determined at the time the right to own or claim the property arises.
(b) A claim for reimbursement under this subchapter does not
create an ownership interest in property, but does create a claim
against the property of the benefited estate by the contributing
estate. The claim matures on dissolution of the marriage or the death
of either spouse.
Added by Acts 1999, 76th Leg., ch. 692, Sec. 2, eff. Sept. 1, 1999.
Amended by Acts 2001, 77th Leg., ch. 838, Sec. 2, eff. Sept. 1, 2001.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 768 (S.B. 866), Sec. 4, eff.
September 1, 2009.
Sec. 3.405. MANAGEMENT RIGHTS. This subchapter does not affect
the right to manage, contrGl, or dispose of marital property as
provided by this chapter.
Added by Acts 1999, 76th Leg., ch. 692, Sec. 2, eff. Sept. 1, 1999.
Amended by Acts 2001, 77th Leg., ch. 838, Sec. 2, eff. Sept. 1, 2001.
Sec. 3.406. EQUITABLE LIEN. (a) On dissolution of a marriage,
the court may impose an equitable lien on the property of a benefited
marital estate to secure a claim for reimbursement against that
property by a contributing marital estate.
(b) On the death of a spouse, a court may, on application for a
claim for reimbursement brought by the surviving spouse, the personal
representative of the estate of the deceased spouse, or any other
person interested in the estate, as defined by Section 3, Texas
Probate Code, impose an equitable lien on the property of a benefited
marital estate to secure a claim for reimbursement against that
property by a contributing marital estate.
(c) Repealed by Acts 2009, 8lst Leg., R.S., Ch. 768, Sec. 11(4),
eff. September 1, 2009.
Added by Acts 1999, 76th Leg., ch. 692, Sec. 2, eff. Sept. 1, 1999.
Amended by Acts 2001, 77th Leg., ch. 838, Sec. 2, eff. Sept. 1, 2001.
Amended by:
Acts 2009, 8lst Leg., R.S., Ch. 768 (S.B. 866), Sec. 5, eff.
September 1, 2009.
Acts 2009, 8lst Leg., R.S., Ch. 768 (S.B. 866), Sec. 11(4), eff.
September 1, 2009.
Sec. 3.409. NONREIMBURSABLE CLAIMS. The court may not recognize
a marital estate's claim for reimbursement for:
(1) the payment of child support, alimony, or spousal maintenance;
(2) the living expenses of a spouse or child of a spouse; ( 3) contributions of property of a nominal value; ( 4) the payment of a liability of a nominal amount; or (5) a student loan owed by a spouse.
Added by Acts 2001, 77th Leg., ch. 838, Sec. 2, eff. Sept. 1, 2001.
Sec. 3.410. EFFECT OF MARITAL PROPERTY AGREEMENTS. A premarital
or marital property agreement, whether executed before, on, or after
September 1, 2009, that satisfies the requirements of Chapter 4 is
effective to waive, release, assign, or partition a claim for economic
contribution, reimbursement, or both, under this subchapter to the
same extent the agreement would have been effective to waive, release,
assign, or partition a claim for economic contribution, reimbursement,
or both under the law as it existed immediately before September 1,
2009, unless the agreement provides otherwise.
Added by Acts 2001, 77th Leg., ch. 838, Sec. 2, eff. Sept. 1, 2001.
Amended by:
Acts 2009, 8lst Leg., R.S., Ch. 768 (S.B. 866), Sec. 6, eff.
September 1, 2009.
TEXAS RULES OF APPELLATE PROCEDURE Table of Contents
SECTION ONE.
GENERAL PROVISIONS
Rule 5. Fees in Civil Cases Rule 1. Scope of Rules; Local Rules of Courts of Appeals Rule 6. Representation by Counsel
1.1. Scope. 6.1. Lend Counsel
1.2. Local Rules (a) For Appellant. (a) Pro11111/gatio11. (b) For a Party Other Thon Appellant. (b) Copies. (c) Ho1v ta Designate. (c) Party's Nonco111plia11ce. 6.2. Appearance of Other Attorneys Rule 2. Suspension of Rules 6.3. To \Vhom Comn1unicntions Sent 6.4. Nonrepresentation Notice
Rule 3. Definitions; Uniform Terminology (a) In General. (b) Appointed Counsel.
3.1. Definitions 6.5. Withdrawal
3.2. Uniform Terminology in Criminal Cases (a) Contents of Motion.
(b) Delive,y to Party. (c) If Motion Granted.
Rule 4. Time and Notice Provisions (d) Exception for Substitution of Counsel.
4.1. Computing Time 6.6. Agreements of Parties or Counsel (a) In General.
(b) Clerk's Office Closed or Inaccessible. Rule 7. Substituting Parties
4.2. No Notice of Trial Court's Judgment in Civil Case 7.1. Parties Who Are Not Public Officers (a) Additional Thne to File Doc11n1ents. (a) Death of a Party. (I) In general. (I) Civil Cases. (2) Exception for restricted appeal. (2) Criminal Cases. (b) Procedure to Gain Additional Ti111e. (b) Substitution for Other Reasons. (c) The Court's Order. 7.2. Public Officers
4.3. Periods Affected by Modified Judgment in Civil (a) Auto111atic Substitution"Of Officer. Case (b) Abatement. (a) During Plena1y-Po1ver Period. (b) After Plena,y Po1ver Expires. Rule 8. Bankruptcy in Civil Cases 4.4. Periods Affected When Process Served by 8.1. Notice of Bankruptcy Publication 8.2. Effect of Bankruptcy
4.5. No Notice of Judgment or Order of Appellate
Court; Effect on Time to File Certain Documents 8.3. Motion to Reinstate or Sever Appeal Suspended (a) Additional Tilne to File Docun1e11ts. by Bankruptcy (b) Procedure to Gain Additional Tilne. (a) Afotion to Reinstate. (c) Where to File. (b) A,fotion to Sever. (d) Order of the Court.
TEXAS RULES OF APPELLATE PROCEDURE Pa c37
(2) the date of filing of any contest; (l) whether a reporter's record has been or ,vill be requested, and ,vhether the trial was electronically (3) the date of any order on the contest; and recorded; ( 4) \Vhether the contest \Vas sustained or overruled; (m) the name of the court reporter; (1) whether the appellant has filed or will file a (n) (I) the dates of filing of any motion and affidavit supersedeas bond; and of indigence;
(m) any other information the appellate court requires. (2) the date of any hearing;
32.2. Criminal Cases (3) the date of any order; and Upon perfecting the appeal in a criminal case, the (4) ,vhetherthe motion was granted or denied; and
appellant must file in the appellate court a docketing statement
that includes the follo\ving information: {o) any other information the appellate court requires.
(a) (1) if the appellant has counsel, the name of the 32.3. Supplen1ental Statenients appellant and the name, address, telephone
number, fax number, if any, and State Bar of Any party may file a statement supplementing or Texas identification number of the appellant's correcting the docketing statement. counsel, and \Vhether the counsel is appointed or retained; or 32.4. Purpose of Statement (2) if tl1e appellant is not represented by an attorney, that party's name, address, telephone number, and fax number, any; if s jurisdiction. does not affect the appellate court [1] The docketing statement is for administrative purposes and Notes and Comments (b) the date the notice of appeal was filed in the trial
court and, if mailed to the trial court clerk, the date Comment to 1997 change: The rule is new. of mailing;
(c) the trial court's name and county, and the name of Rule 33. Preservation of Appellate the judge who tried the case; Complaints
(d) the date the trial court imposed or suspended 33.1. Preservation; Ho,v Sho,vn sentence in open court, or the date the judgment or order appealed from ,vas signed; (a) In General. As a prerequisite to presenting a complaint for appellate review, the record must sho,v
(e) the date of filing any motion for ne,v trial, motion in that: arrest of judgment, or any other filing that affects the time for perfecting the appeal; (1) the complaint ,vas made to the trial court by a timely request, objection, or motion that: (f) the offense charged and tl1e date of the offense; (A) stated the grounds for the ruling that the
(g) the defendant's plea; complaining party sought from the trial court ,vith sufficient specificity to make
(h) ,vhether the trial ,vas jury or non jury; the trial court a,vare of the complaint, unless the specific grounds ,vere apparent
(i) the punishment assessed; from the context; and
U) whether the appeal is from a pretrial order; (B) complied ,vith the requirements of the Texas Rules of Civil or Criminal
(k) ,vhether the appeal involves the validity of a statute, Evidence or the Texas Rules of Civil or ordinance, or rule; Appellate Procedure; and (2) tl1e trial court: *45 Page 38 TEXAS RULES OF APPELLATE PROCEDURE
(A) ruled on the request, objection, or 111otion, must - after notice and hearing - do one of either expressly or implicitly; or the following things: (B) refused to rule on the request, objection, (A) sign the bill of exception and file it with or motion, and the complaining party the trial court clerk if the judge finds that objected to the refusal. it is correct; (b) Ruling by Operation of La1v. In a civil case, the (BJ suggest to the complaining party those overruling by operation of law of a motion for new corrections to the bill that the judge trial or a motion to modify the judgment preserves believes are necessary to make it for appellate review a complaint properly made in accurately reflect the proceedings in the the motion, unless taking evidence \Vas necessary to trial court, and if the party agrees to the properly present the complaint in the trial court. corrections, have the corrections made, sign the bill, and file it with the trial court
(c) Fonna/ Exception and Separate Order Not Required. clerk; or Neither a formal exception to a trial court ruling or order nor a signed, separate order is required to (C) if the complaining party will not agree to preserve a complaint for appeal. the corrections suggested by the judge, (d) Sufficiency of Evidence Co111plaints in Nonjury including a complaint that the damages found by the legal or factual insufficiency of the evidence - court are excessive or inadequate, as distinguished from a complaint that the trial court erred in refusing In a nonjury case, a complaint regarding the Cases. [1] s refusal written on it, and return the bill to the complaining party prepare, sign, and file ,vith the trial court clerk such bill as will, in the judge's op1n1on, accurately reflect proceedings in the trial court. with the judge the
to amend a fact finding or to make an additional (3) If the complaining party is dissatisfied with the finding of fact - may be made for the first time on bill of exception filed by the judge under appeal in the complaining party's brief. (2)(C), the party may file with the trial court clerk the bill that was rejected by the judge. 33.2. Formal Bills of Exception That party must also file the affidavits of at least three people ,vho observed the matter to To complain on appeal about a matter that would not ,vhich the bill of exception is addressed. The otherwise appear in the record, a party must file a formal bill of affidavits must attest to the correctness of the exception. bill as presented by the party. The matters
(a) Fann. No particular form of words is required in a bill of exception. But the objection to the court s [1] be stated with sufficient specificity to make the trial ruling or action, and the ruling complained of, must court aware of the complaint. contained in that bill of exception may be controverted and maintained by additional affidavits filed by any party within ten days after the filing of that bill. The truth of the bill of exception \Vill be determined by the appellate court.
(b) Evidence. When the appellate record contains the (d) Conflict. If a formal bill of exception conflicts with evidence needed to explain a bill of exception, the the reporter's reco~d, the bill controls. bill itself need not repeat the evidence, and a party
may attach and incorporate a transcription of the (e) Time to file. evidence certified by the court reporter. (1) Civil Cases. In a civil case, a formal bill of
(c) Procedure. exception must be filed no later than 30 days after the filing party's notice of appeal is filed. (I) The complaining party must first present a formal bill of exception to the trial court. (2) Criminal Cases. In a criminal case, a formal bill of exception must be filed: (2) If the parties agree on the contents of the bill of exception, the judge must sign the bill and file (A) no later than 60 days after the trial court it with the trial court clerk. If the parties do not pronounces or suspends sentence in open agree on the contents of the bill, the trialju<lge court; or *46 Texas Rules of Civil Procedure Table of Contents
PART I - GENERAL RULES
RULE 1. OBJECTIVE OF RULES
RULE 2. SCOPE OF RULES
RULE 3. CONSTRUCTION OF RULES
RULE 3a. LOCAL RULES
RULE 4. COMPillATION OF TIME
RULE 5. ENLARGEMENT OF TIME
RULE 6. SUJTS COMMENCED ON SUNDAY
RULE 7. MAY APPEAR BY ATTORNEY
RULE 8. ATTORNEY IN CHARGE
RULE 9. NUMBER OF COUNSEL HEARD
RULE 10. WITHDRAWAL OF ATTORNEY
RULE 11. AGREEMENTS TO BE IN WRITING
RULE 12. ATTORNEY TO SHOW AUTHORITY
RULE 13. EFFECT OF SIGNING PLEADINGS, MOTIONS AND OTHER PAPERS; SANCTIONS
RULE 14. AFFIDAVIT BY AGENT
RULE 14b. RETURN OR OTHER DISPOSITION OF EXHIBITS RULE 14c. DEPOSIT IN LIEU OF SURETY BOND
PART II - RULES OF PRACTICE IN DISTRICT AND COUNTY COURTS *47 actions may be placed for consideration as above provided and may either confine the calendar to jury actions or extend it to all actions.
Pretrial proceedings in multidistrict litigation may also be governed by Rules 1 I and 13 of the Rules of Judicial Administration.
RULE 166a. SUMMARY JUDGMENT ( a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the adverse party has appeared or answered, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to amount of damages.
(b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.
( c) Motion and Proceedings Thereon. The motion for summary judgment shall state the specific grounds therefor. Except on leave of court, with notice to opposing counsel, the motion and any supporting affidavits shall be filed and served at least twenty-one days before the time specified for hearing. Except on leave of court, the adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response. No oral testimony shall be received at the hearing. The judgment sought shall be rendered forthwith if (i) the deposition transcripts, interrogatory answers, and other discovery responses referenced or set forth in the motion or response, and (ii) the pleadings, admissions, affidavits, stipulations of the parties, and authenticated or certified public records, if any, on file at the time of the hearing, or filed thereafter and before judgment with permission of the court, show that, except as to the amount of damages, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of Jaw on the issues expressly set out in the motion or in an answer or any other response. Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal. A summary judgment may be based on uncontroverted testimonial evidence of an interested witness, or of an expert witness as to subject matter concerning which the trier of fact must be guided solely by the opinion testimony of experts, if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted.
(d) Appendices, References and Other Use of Discovery Not Otherwise on File. Discovery products not on file with the clerk may be used as summary judgment evidence if copies of the material, appendices containing the evidence, or a notice containing specific references to the discovery or specific references to other instruments, are filed and served on all parties together with a statement of intent to use the specified discovery as swnmary judgment proofs: (i) at least twenty-one days before the hearing if such proofs are to be used to support the summary judgment; or (ii) at least seven days before the hearing if such proofs are to be used to oppose the summary judgment.
(e) Case Not Fully Adjudicated on Motion. If summary judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the judge may at the hearing examine the pleadings and the evidence on file, interrogate counsel, ascertain what material fact issues exist and make an order specifying the facts that are established as a matter of law, and directing such further proceedings in the action as are just.
(J) Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits. Defects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend.
(g) When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
(h) Affidavits Made in Bad Faith. Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt. No-Evidence Motion. After adequate time for discovery, a party without presenting
(i) summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.
[RULE 166b. Repealed effective January 1, 1999] [RULE 166c. Repealed effective January 1, 1999] RULE 167. OFFER OF SETTLEMENT; AWARD OF LITIGATION COSTS 167.1. Generally.
Certain litigation costs may be awarded against a party who rejects an offer made substantially in accordance with this rule to settle a claim for monetary damages - including a counterclaim, crossclaim, or third-party claim - except in:
Texas Rules of Civil Procedure *49 Table of Contents
PART I-GENERAL RULES
RULE I. OBJECTIVE OF RULES
RULE 2. SCOPE OF RULES
RULE 3. CONSTRUCTION OF RULES
RULE 3a. LOCAL RULES
RULE 4. COMPUTATION OF TIME
RULE 5. ENLARGEMENT OF TIME
RULE 6. SUITS COMMENCED ON SUNDAY
RULE 7. MAY APPEAR BY ATTORNEY
RULE 8. ATTORNEY IN CHARGE
RULE 9. NUMBER OF COUNSEL HEARD
RULE 10. WITHDRAWAL OF ATTORNEY
RULE 11. AGREEMENTS TO BE IN WRITING
RULE 12. ATTORNEY TO SHOW AUTHORITY
RULE 13. EFFECT OF SIGNING PLEADINGS, MOTIONS AND OTHER PAPERS; SANCTIONS
RULE 14. AFFIDAVIT BY AGENT RULE 14b. RETURN OR OTHER DISPOSITION OF EXHIBITS RULE 14c. DEPOSIT IN LIEU OF SURETY BOND
PART II - RULES OF PRACTICE IN DISTRICT AND COUNTY COURTS jury is contrary to law, and the like - shall not be considered by the court.
[RULE 323. Repealed effective January 1, 1978] RULE 324. PREREQUISITES OF APPEAL (a) Motion for New Trial Not Required. A point in a motion for new trial is not a prerequisite to a complaint on appeal in either a jury or a nonjury case, except as provided in subdivision (b).
(b) Motion for New Trial Required. A point in a motion for new trial is a prerequisite to the following complaints on appeal:
( 1) A complaint on which evidence must be heard such as one of jury misconduct or newly discovered evidence or failure to set aside a judgment by default; (2) A complaint of factual insufficieucy of the evidence to support a jury finding; (3) A complaint that a jury finding is against the overwhehning weight of the evidence; ( 4) A complaint of inadequacy or excessiveness of the damages found by the jury; or (5) Incurable jury argument if not otherwise ruled on by the trial court.
(c) Judgment Notwithstanding Findings; Cross-Points. When judgment is rendered non obstante verdicto or notwithstanding the findings of a jury on one or more questions, the appellee may bring forward by cross-point contained in his brief filed in the Court of Appeals any ground which would have vitiated the verdict or would have prevented an affirmance of the judgment had one been rendered by the trial court in harmony with the verdict, including although not limited to the ground that one or more of the jury's findings have insufficient support in the evidence or are against the overwhelming preponderance of the evidence as a matter of fact, and the ground that the verdict and judgment based thereon should be set aside because of improper argument of counsel.
The failure to bring forward by cross-points such grounds as would vitiate the verdict shall be deemed a waiver thereof; provided, however, that if a cross-point is upon a ground which requires the taldng of evidence in addition to that adduced upon the trial of the cause, it is not necessary that the evidentiary hearing be held until after the appellate court determines that the cause be remanded to consider such a cross-point.
[RULE 325. Repealed effective January 1, 1978] RULE 326. NOT MORE THAN TWO