First Huntsville Properties Co. v. Laster

• Decision Date: 09 August 1990
• Docket Number: No. A14-89-00958-CV,A14-89-00958-CV
• Citation: 797 S.W.2d 151
• Parties: FIRST HUNTSVILLE PROPERTIES COMPANY, Appellant, v. Melissa L. LASTER, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 151

797 S.W.2d 151

FIRST HUNTSVILLE PROPERTIES COMPANY, Appellant, v. Melissa L. LASTER, Appellee.

No. A14-89-00958-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

Aug. 9, 1990.

Rehearing Denied Oct. 4, 1990.

Edward M. Schulze, Jr., Huntsville, for appellant.

John E. Wright, Huntsville, for appellee.

Before J. CURTISS BROWN, C.J., and JUNELL and SEARS, JJ.

OPINION

SEARS, Justice.

First Huntsville Properties Company appeals from a judgment denying partition of the interests of appellant and appellee, Melissa L. Laster, in a residence. In its sole point of error, appellant claims the trial court erred in denying partition because appellee has no homestead interest in the undivided interest owned by appellant. We agree and reverse the judgment of the trial court.

The property in question was the marital residence of appellee and Richard Laster. When the couple divorced in 1976, the divorce decree separated the ownership of this residence into undivided interests, giving appellee a 73.83% interest and giving Richard Laster a 26.17% interest. The decree also awarded appellee an exclusive right of occupancy until the couple's youngest child reached the age of eighteen years or was no longer in school, whichever occurred first. Three years later, Richard Laster borrowed $10,516.66 from the First National Bank of Huntsville and executed a deed of trust giving the bank a lien against his interest in the residence. Upon default by Richard Laster, the bank foreclosed on the lien and purchased his interest in the residence. The bank later conveyed this interest to First Huntsville Realty Corporation, which in turn conveyed to appellant.

Appellee's exclusive right of occupancy terminated in September 1988 when the couple's youngest child attained the age of eighteen years, and appellant filed suit thereafter to partition its interest from that of appellee. In its original petition, appellant alleged the property was incapable of partition in kind and thus, appellant requested that the trial court order a sale and partition of the proceeds. Following a trial to the bench, the trial court denied appellant's request for partition. In its findings of fact and conclusions of law, the trial court found that appellant had acquired title to Richard Laster's interest in the residence subject to appellee's right of occupancy, that the residence was appellee's homestead, that the residence was not subject to partition in kind, and that the partition could be accomplished only by sale of the property. However, the trial court concluded that appellee's homestead interest was paramount, and thus, the court held that the property was not presently subject to forced sale.

In its sole point of error, appellant contends the trial court erred in denying partition because appellee has no homestead interest in the undivided 26.17% interest owned by appellant. Appellee responds that her homestead right was paramount to a cotenant's right of partition where the homestead right preceded the inception of the cotenancy. Although we find that appellee's homestead right preceded the inception of the cotenancy, we disagree that this prevents a cotenant's exercise of its right of partition.

Under the divorce decree, appellee became a joint owner with an exclusive right of occupancy until the date on which the youngest child reached age eighteen or was no longer in school. The decree also awarded appellee a homestead right in the property. A divorce court may set aside property as the wife's homestead even if the property is the husband's separate property. Villareal...