Calhoun v. Calhoun
| Decision Date | 25 October 2017 |
| Docket Number | NO. 12-17-00032-CV,12-17-00032-CV |
| Parties | LANA SUE CALHOUN, APPELLANT v. DANA REX CALHOUN, APPELLEE |
| Court | Texas Court of Appeals |
Lana Sue Calhoun appeals from a final decree divorcing her from Dana Rex Calhoun. In seven issues, Sue complains of the disposition of property. We affirm.
The Calhouns had been married for almost thirty years when Rex filed for divorce. A hearing was held on January 22, 2016, at which Sue appeared pro se and by telephone due to her incarceration. At the close of the hearing, the trial court gave her fifteen days to file exhibits and allowed Rex an additional fifteen days to file objections to those exhibits. Within the time required, Sue sent copies of her exhibits and what she termed "settlement offers" to Rex's attorney. She sent a copy of the "settlement offers" and a list of the exhibits to the trial court, explaining that she only had one copy of the exhibits. The record does not contain any objections to anything Sue filed. On December 19, 2016, the trial court granted the divorce and ordered the community real property and certain specified items to be sold and the proceeds split equally between the parties. There is no explanation in the record for the lengthy delay between the hearing and the signing of the decree. In this appeal, Sue does not complain of the divorce, only of alleged mistakes regarding disposition of the parties' property.
A court, upon the dissolution of marriage, is authorized to divide the "estate of the parties." TEX. FAM. CODE ANN. § 7.001 (West 2006). The "estate" which the court is authorized to divide is the community estate; the court may not divide separately owned property. Walton v. Johnson, 879 S.W.2d 942, 945 (Tex. App.-Tyler 1994, writ denied). We review a trial court's division of property under an abuse of discretion standard. Granger v. Granger, 236 S.W.3d 852, 855 (Tex. App.-Tyler 2007, pet. denied). A trial court does not abuse its discretion if there is some evidence of a substantive and probative character to support the decision. Id. at 855-56. In family law cases, legal and factual sufficiency are factors relevant to our assessment of whether the trial court abused its discretion. Id. at 856. Thus, we apply a two prong test: (1) did the trial court have sufficient evidence upon which to exercise its discretion, and (2) did the trial court err in its application of that discretion? Id. We then consider whether, based on the evidence, the trial court made a reasonable decision. Id.
In a non-jury trial, where no findings of fact or conclusions of law are filed or requested, we must presume that the trial court made all the necessary findings to support the judgment. Sink v. Sink, 364 S.W.3d 340, 343 (Tex. App.-Dallas 2012, no pet.). If the trial court's implied findings are supported by the evidence, we must uphold its judgment on any theory of law applicable to the case. Id. at 343-44. We must assume the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could do so. Id. at 344. As the trier of fact, it is the role of the trial court to judge the credibility of the witnesses, weigh the testimony, accept or reject any testimony, and resolve conflicts in the evidence. In re Marriage of C.A.S. and D.P.S., 405 S.W.3d 373, 390 (Tex. App.-Dallas 2013, no pet.).
In issues one through four and seven, Sue contends the trial court abused its discretion by failing to dispose of the homestead and the acre of land it sits on, additional bank accounts, a retirement account, the mineral rights to twenty-eight acres in Nacogdoches County, and two burial plots.
The record shows that the parties' home is located at 729 Rosehill Road in Timpson, Texas. A Shelby County tax statement shows the parties own 3.06 acres at that address. The divorce decree identifies the marital residence as being located at that address and described in adeed from Paul Bailey to Sue and Rex. The decree does not mention acreage included with the home. The deed is not in the record. Although Sue testified that the parties' own an additional acre, her testimony was unsupported by documentation. The trial court was entitled to believe the evidence presented by Rex and disregard Sue's testimony. See id. The decree provides that the property at 729 Rosehill, as described in the deed conveying the property to the Calhouns, is to be sold and the proceeds of the sale are to be divided equally between the parties.
Rex testified that he has one bank account containing $1,500. He denied having other bank accounts. Sue alleged that Rex had other accounts but provided no documentary evidence of other current bank accounts. Again, the trial court was entitled to believe Rex. See id.
Rex testified that he has two retirement accounts but they are in one "retirement plan," and monthly payments are distributed to him from that plan. His attorney explained that there is one account and contributions are made into it from two entities Rex worked for. Sue provided no evidence of an additional retirement account. The decree awards to Sue fifty percent of the community interest in Rex's retirement system savings plan and his retirement system pension plan. Both plans are identified with the same identification number. The court was entitled to believe Rex's explanation and determine that he does not have an additional retirement account. See id.
The record shows that the parties own 28.02 acres in Nacogdoches County. At the hearing, Sue mentioned that they have money "in escrow for mineral rights" on that property but there was no discussion of, or testimony regarding, the disposition of those mineral rights. The deed to the property is not in the record. The decree orders the sale of "the real property consisting of approximately 28.02 acres situated in Nacogdoches County, Texas." The decree does not mention the mineral rights but Texas law provides that minerals in place are part of the realty. Wenske v. Ealy, 521 S.W.3d 369, 373 (Tex. App.-Corpus Christi 2016), aff'd 521 S.W.3d 791 (Tex. 2017). In the absence of clarifying language to the contrary, or evidence that the mineral estate has previously been severed, we interpret the decree as ordering the sale of the mineral rights, if any are reflected in the deed to the property, along with the 28.02 acres. See Sink, 364 S.W.3d at 343-44; Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 49 (Tex. 2017).
As part of her "settlement offer," Sue stated that she paid for two burial plots at Jacob's Chapel in Woden, Texas. No testimony or documentary evidence regarding burial plots waspresented at the hearing. The legislature regulates cemeteries, including the conveyance of cemetery plots. See TEX. HEALTH & SAFETY CODE ANN. §§ 711.038-.039 (West 2017). Cemetery organizations are required to provide a certificate of ownership evidencing the conveyance of the right of burial which must be filed and recorded in the cemetery organization's office. Id. § 711.038(b), (c). In the absence of evidence of the certificate of ownership, we presume the two plots, if they exist, are community property. See TEX. FAM. CODE ANN. § 3.003(a) (West 2006). The divorce decree includes a provision ordering that any property of the parties not awarded or divided by the decree is awarded to the party in possession of that property. We conclude that, in this instance, the party in possession of the certificate of ownership evidencing the right to possession of the plots, is the "party in possession" of the plots for purposes of the decree. See Soto v. Soto, 936 S.W.2d 338, 343 (Tex. App.-El Paso 1996, no writ) (held that "possession" as used in context of divorce decrees, means physical control of property or power of immediate enjoyment and disposition of property). Accordingly, the burial plots fall under the decree's catchall provision and have been disposed of.
Sue has not shown the trial court abused its discretion by failing to dispose of the specified items. We overrule Sue's issues one through four and seven.
In her sixth issue, Sue contends the trial court abused its discretion by awarding her separate property to Rex. She refers to the furniture, a diamond wedding band, a diamond cluster ring, and all other items in the "settlement offer" she submitted.
If the trial court mischaracterizes a spouse's separate property as community property and awards some of the property to the other spouse, then the trial court abuses its discretion. Sharma v. Routh, 302 S.W.3d 355, 360 (Tex. App.-Houston [14th Dist.] 2009, no pet.) (op. on reh'g). In the context of a divorce proceeding, characterization of property is determined by the time and circumstances of its acquisition. Rivera v. Hernandez, 441 S.W.3d 413, 420 (Tex. App.-El Paso 2014, pet. denied). Separate property consists of all the spouse's property, both real and personal, that is owned or claimed before marriage, and that is acquired after marriage by gift, devise, or descent. TEX. CONST. art. XVI, § 15. Community property consists ofproperty, other than separate property, acquired by either spouse during marriage. TEX. FAM. CODE ANN. § 3.002 (West 2006).
Property possessed by either spouse during or on dissolution of marriage is presumed to be community property. Id. § 3.003(a). To overcome this presumption, a party must present clear and convincing evidence that the property is separate. Id. § 3.003(b). "Clear and convincing evidence" means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Id. § 101.007 (West 2014); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). To overcome the community property presumption, the spouse claiming certain property as...
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