Barras v. Barras

• Decision Date: 11 April 2013
• Docket Number: No. 14–11–00954–CV.,14–11–00954–CV.
• Citation: 396 S.W.3d 154
• Parties: Gerald Byron BARRAS, Appellant v. Leslea Loring BARRAS, Appellee.
• Court: Texas Court of Appeals

396 S.W.3d 154

Gerald Byron BARRAS, Appellant

v.Leslea Loring BARRAS, Appellee.

No. 14–11–00954–CV.

Court of Appeals of Texas,

Houston (14th Dist.).

Jan. 24, 2013.

Rehearing Overruled April 11, 2013.

Kristen Black, Marcia L. Zimmerman, Webster, for Appellant.

Owen Lockwood, Tamara Pacini Bibb, Allison Jones, Houston, for Appellee.

Panel consists of Justices FROST, CHRISTOPHER, and JAMISON.

OPINION

TRACY CHRISTOPHER, Justice.

Appellant Gerald Byron Barras appeals from a final decree of divorce ordering him to pay appellee Leslea Loring Barras $125,000, to be represented by a promissory note and secured by a deed of trust against Gerald's separate property, and ordering his separate estate to reimburse the community estate for $154,073 as part of the property division. On appeal, Gerald argues that (1) the trial court committed fundamental error by attaching a lien to his separate property to secure a money judgment for Leslea, (2) the evidence and law do not support the trial court's money judgment to Leslea, (3) the trial court improperly awarded reimbursement to the community estate, and (4) the trial court improperly divided the marital estate. Concluding that Gerald's arguments lack merit, we affirm the trial court's judgment.

I. Factual and Procedural Background

Gerald and Leslea were previously married and divorced for the first time on June 27, 2000. One of the community assets from the parties' first marriage was a house located on Sunset Drive (the Sunset property). In the June 2000 divorce decree, the parties agreed that Gerald would pay to Leslea the sum of $150,000, payable in installments of $25,000, due on or before December 15 of each year, without interest. The parties agreed that after the $150,000 had been paid, Leslea would transfer by warranty deed all her community interest in the Sunset property to Gerald. They agreed that in the event of default, the house would be sold and the balance due on the $150,000 would be paid to Leslea, with any remaining monies to be paid to Gerald. The decree also provided that Gerald was to have exclusive use and possession of the house. Gerald only paid Leslea one $25,000 installment in 2000, but upon his default, Leslea did not enforce the sale of the house.

During 2002, the parties reconciled. In the time leading up to their second marriage to one another in 2004, Leslea signed a document releasing her lien on the Sunset property so that it could be sold. The sales proceeds were applied toward the purchase of a house on Glenwood Drive (the Glenwood property). The closing on this property occurred a few weeks before the parties' remarriage, and the deed to the Glenwood property is solely in Gerald's name. After the marriage, the parties refinanced the mortgage; Leslea cosigned that note, and an additional note in connection with a home equity loan.¹ The parties also applied a joint tax refund toward repairs on the Glenwood property in late 2009.

The parties separated again in 2010, and Gerald petitioned for a second divorce. In his amended petition for divorce, Gerald asked the trial court to confirm his separate property, award him a disproportionate share of the community estate, and order his separate estate reimbursed from the community estate and from Leslea's separate estate. In her counter-petition, Leslea asked the trial court to confirm her separate property and order the community estate reimbursed from Gerald's separate estate.

After a nonjury trial, the trial court issued its final decree on August 30, 2011. The court awarded Leslea as her sole and separate property $125,000 payable by Gerald, to be represented by a promissory note and secured by a deed of trust against the Glenwood property. In the decree, the trial court also included the following findings: the community estate is entitled to reimbursement from Gerald's estate for principal reduction on the Glenwood property and for a tax refund in the amount of $25,111 used on home repairs to the Glenwood property; it specifically had considered the community reimbursement claims in making its property division; and the $125,000 award to Leslea from Gerald's separate estate “is a derivative of the monies awarded to [Leslea]” in the parties' first divorce and is a debt intended to survive any bankruptcy.

At Gerald's request, the trial court also issued findings of fact and conclusions of law. The trial court issued a finding awarding Leslea “[t]he sum of $125,000.00, to be represented by a promissory note from Gerald Barras to Leslea Barras, to be secured against the Glenwood property—as same is a derivative of the monies awarded to Leslea Barras in the original decree of divorce that was secured by the Sunset property”; ordering Gerald to make payments of $25,000 each July beginning in 2012, and continuing until the note is paid in full, at which time Leslea is to release the lien; and providing that such debt shall survive bankruptcy. The trial court found that Gerald had not paid Leslea the cash sum due to her under the first divorce decree as of the date of second divorce trial, and that Leslea produced clear and convincing evidence that the $125,000 cash sum due from Gerald was her sole and separate property and she was entitled to a money judgment. The court also found that the community estate was entitled to reimbursement from Gerald's estate in the amount of $154,073 ($128,962 in principal reduction on the Glenwood property and $25,111 in a tax return used for repairs to the Glenwood property) and such was considered in the court's property division. At Gerald's request, the trial court issued additional findings of fact and conclusions of law, which included the finding that the Glenwood property, subject to the equitable lien attached to secure the promissory note, was Gerald's separate property. Gerald timely filed his notice of appeal.

II. Issues Presented

Gerald presents four issues for our review. In his first issue, he contends that the trial court committed a fundamental error by awarding Leslea a lien against the Glenwood property, his separate-property homestead, to secure his payment of the $125,000 judgment. In his second issue, Gerald attacks the $125,000 award, asserting that the trial court erred as a matter of law by even considering such claim and by refusing his affirmative defenses of statute of limitations and release of judgment. Also, as part of his second issue, Gerald contends that the $125,000 award to Leslea as her separate property is not supported by legally and factually sufficient evidence, and therefore the trial court abused its discretion. In his third issue, Gerald claims that the trial court abused its discretion in awarding reimbursement to the community estate as part of its property division. And in his fourth and final issue, Gerald argues that the trial court abused its discretion in its community property division.

III. Governing Law for Property Division

In a decree of divorce, the trial court shall order a division of the parties' estate in a manner that the court deems just and right, having due regard for the rights of each party. Tex. Fam.Code Ann. § 7.001 (West 2006). “It is well established that a trial court may exercise wide discretion in ordering a property division.” Aduli v. Aduli, 368 S.W.3d 805, 819 (Tex.App.-Houston [14th Dist.] 2012, no pet.) (citing Bell v. Bell, 513 S.W.2d 20, 22 (Tex.1974)). The property division need not be equal, and it is presumed that the trial court properly exercised its discretion in determining the value and division of marital property. Id. A trial court's division of community property may take into consideration factors such as the spouses' capabilities and abilities, business opportunities, education, relative physical conditions, relative financial conditions and obligations, disparity in age, size of separate estates, nature of the property, and disparity in income and earning capacity. Knight v. Knight, 301 S.W.3d 723, 728 (Tex.App.-Houston [14th Dist.] 2009, no pet.).

In dividing property, courts must begin with the presumption that all property possessed by either spouse during or on dissolution of the marriage is community property. Tex. Fam.Code Ann. § 3.003(a) (West 2006); Stavinoha v. Stavinoha, 126 S.W.3d 604, 607 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (citing Barnett v. Barnett, 67 S.W.3d 107, 111 (Tex.2001)). To overcome this presumption, the spouse claiming assets as separate property is required to establish their separate character by clear and convincing evidence. Tex. Fam.Code Ann. § 3.003(b); Stavinoha, 126 S.W.3d at 607 (“ ‘Clear and convincing’ evidence means the measure or degree of proof that will produce in the mind of the trier of fact a firm conviction or belief as to the truth of the allegations sought to be established.”). Separate property is property owned by a spouse before marriage; property acquired during the marriage by gift, devise, or descent; and the recovery for personal injuries sustained during the marriage. Tex. Fam.Code Ann. § 3.001 (West 2006). The spouse claiming the separate nature of certain property must trace and clearly identify the property claimed to be separate. Graves v. Tomlinson, 329 S.W.3d 128, 139 (Tex.App.-Houston [14th Dist.] 2010, pet. denied) (citing Zagorski v. Zagorski, 116 S.W.3d 309, 316 (Tex.App.-Houston [14th Dist.] 2003, pet. denied)). “Tracing involves establishing the separate origin of the property through evidence showing the time and means by which the spouse originally obtained possession of the property.” Id. As a general rule, the clear and convincing standard is not satisfied by testimony that property possessed at the time the marriage is dissolved is separate property when such testimony is contradicted or unsupported by documentary evidence tracing the asserted separate nature of the property. Id.

IV. Standard of Review for Property Division

We review alleged error in dividing marital property...