Harris v. Harris

• Decision Date: 20 January 1989
• Docket Number: No. B14-87-00716-CV,B14-87-00716-CV
• Citation: 765 S.W.2d 798
• Parties: Ann Thompson HARRIS, Appellant, v. Paul HARRIS, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 798

765 S.W.2d 798

Ann Thompson HARRIS, Appellant, v. Paul HARRIS, Appellee.

No. B14-87-00716-CV.

Court of Appeals of Texas Houston (14th Dist.).

Jan. 20, 1989.

Rehearing Denied March 3, 1989.

Robert J. Piro, Pamela E. George, Houston, for appellant.

Donn C. Fullenweider, Houston, for appellee.

Before PAUL PRESSLER, DRAUGHN and ELLIS, JJ.

OPINION ON MOTION FOR REHEARING

DRAUGHN, Justice.

On Motion forRehearing we withdraw our opinion of October 20, 1988, and substitute the following therefor.

Appellant Ann Harris and Appellee Paul Harris were twice married and twice divorced. Their first marriage was terminated in 1972; their last marriage began in 1979 and ended in a final judgment of divorce on May 28, 1987. Ann Harris now appeals this latter judgment on the ground that the trial judge mischaracterized certain of her husband's assets as his separate property.

Appellant's challenge is directed at the distributions of her husband's partnership interest in his former law firm and his interest in that firm's contingent fee arrangement for its representation of the heirs of the Howard Hughes estate. Based on the jury's answers to special issues, the trial judge ruled these assets were the husband's separate property. Appellant contends that there was insufficient evidence to support such a finding and that to divide the marital estate based on it was an abuse of discretion. She also asserts that the court erred in defining separate property in its charge to the jury. Further she contends that the court erred in disregarding the jury's answer to one special issue and its refusal to set aside the jury's answers to two others.

Specifically, in her first point of error, appellant contends that the trial court erred in defining separate property in the charge to the jury by including aspects of the definition which were not raised by the evidence and by excluding an instruction regarding the community property character of compensation for services under a separate property contract of employment. Appellant objected to the instruction on these grounds.

The definition of separate property included in the charge by the court was as follows:

Separate property means (1) all property a spouse owned or claimed before marriage and (2) all property the spouse acquired after marriage by gift, devise, or descent.

Property is "claimed before marriage" if the right to the property accrued before marriage even though the legal title or evidence of title might not be obtained until after marriage.

Property is "acquired before marriage" if the inception of the right, rather than the completion or ripening thereof, occurs before marriage.

If a contract to purchase is entered into before marriage, although the legal title is not finally perfected until after marriage, the property becomes the separate property of the purchaser-spouse. It is immaterial that part of the purchase price is thereafter paid from community funds.

Property acquired with separate-property moneys, property, or credit is separate property. The character of separate property will not be altered by the sale, exchange, or substitution of the property. As long as separate property can be definitely traced and identified from clear and convincing evidence, it remains separate property regardless of the fact that the separate property may undergo any number of mutations and changes in form.

"Community property" consists of the property, other than separate property, acquired by either spouse during marriage. Property possessed by either spouse during or on dissolution of marriage is presumed to be community property, but this presumption may be rebutted by clear and convincing evidence.

It is appellant's position that there was no evidence raising an issue of (1) acquisition of property after marriage by gift, devise or descent, (2) inception of title, (3) a contract to purchase prior to marriage, or (4) acquisition of property with separate monies or credit. Appellant therefore concludes that the inclusion of those parts of the definition referring to such issues was confusing to the jury and resulted in reversible error. We do not agree.

The only function of an explanatory instruction or definition in the charge is to aid and assist the jury in answering the issues submitted. First State Bank and Trust Co. v. George, 519 S.W.2d 198, 207 (Tex.Civ.App.--Corpus Christi 1975, writ ref'd n.r.e.). The trial court has considerably more discretion in submitting instructions and definitions than it has in submitting special issues. Id. at 207; Houston National Bank v. Biber, 613 S.W.2d 771, 775-776 (Tex.Civ.App.--Houston [14th Dist.] 1981, writ ref'd n.r.e.). Definitions shall be given as necessary to enable jurors to understand legal words or phrases used so that they may properly answer the special issues and render a verdict in the case. Id. at 775. The test of the sufficiency of a definition is its reasonable clarity in performing this function. Id. at 776; Gulf Insurance Company v. Vela, 361 S.W.2d 904, 906 (Tex.Civ.App.--Austin 1962, writ ref'd n.r.e.). An explanatory instruction is improper only if it is a misstatement of the law as applicable to the facts. Wakefield v. Bevly, 704 S.W.2d 339, 350 (Tex.App.--Corpus Christi 1985, no writ).

The definition given by the court is the correct legal definition of marital property. TEX. CONST. Art. XVI § 15; TEX.FAM.CODE § 5.01. While appellant complains that the evidence did not raise issues involving the acquisition of property after marriage by gift, devise or descent, special issues number three and four inquire about an alleged oral gift of property from husband to wife. Furthermore, while inclusion of the example regarding a pre-marital contract to purchase was not mandated by the facts, there was testimony about separate real property as well as the pre-marriage acquisition of other property interests arising from contracts. (In this regard, see Allen v. Allen, 704 S.W.2d 600, 604 (Tex.App.--Fort Worth 1986, no writ) which applies the inception of title rule to the incorporation of a business.) The example also aids in an understanding of the distinction between property "claimed" or "acquired" before marriage. It is highly possible, therefore, that the jury's understanding of the concept of separate property would be aided by such an example and the neutral example used avoided a comment on the evidence. To show reversible error, appellant must demonstrate harm from the definition complained of. Wakefield, supra, 704 S.W.2d at 348. While appellant speculates as to confusion which may have been created by the examples submitted, there was no showing of such confusion as demonstrated by inconsistent or contradictory answers by the jury. Id. The court did not commit reversible error in giving the instruction. Appellant's first point of error is overruled.

In points of error two and three, appellant challenges the sufficiency of the evidence to support the jury's characterization of the previously mentioned financial assets as the separate property of appellee. The second point of error challenges the jury's separate property characterization of appellee's interest in the "Reserved Capital Agreement" of Andrews and Kurth, an agreement providing for the distribution of proceeds from the "AK/FRL Contingent Fee Agreement" between Andrews and Kurth and the maternal heirs of Howard Hughes. Point of error three challenges the characterization of payments to appellee under a buy-out agreement (the A-K Interest Buy-out) entered into among the partners of appellee's former law partnership, Andrews and Kurth. It was alleged at trial that the A-K Interest Buy-out was worth approximately $500,000.00 while the value of appellee's interest in the AK/FRL fee was estimated to be several million dollars.

Property possessed by either spouse during or on dissolution of marriage is presumed to be community property. Section 5.02, TEX.FAM.CODE. The party claiming property as separate has the burden to overcome this presumption by clear and convincing evidence. Id.; Horlock v. Horlock, 614 S.W.2d 478, 480 (Tex.Civ.App.--Houston [14th Dist.] 1981, writ ref'd n.r.e.). To discharge this burden a spouse must trace and clearly identify the property claimed as separate. Cockerham v. Cockerham, 527 S.W.2d 162, 167 (Tex.1975); McKinley v. McKinley, 496 S.W.2d 540, 543 (Tex.1973). If separate property and community property have been so commingled as to defy resegregation and identification, the statutory presumption prevails. Tarver v. Tarver, 394 S.W.2d 780 (Tex.1965). However, when separate property has not been commingled or its identity as such can be traced, the statutory presumption is dispelled. Peaslee-Gaulbert Corp. v. Hill, 311 S.W.2d 461, 463 (Tex.Civ.App.--Dallas 1958, no writ). The presumption, which is not evidence, ceases to exist upon introduction of positive evidence to the contrary and is not then to be weighed or treated as evidence. Empire Gas and Fuel Co. v. Muegge, 135 Tex. 520, 143 S.W.2d 763, 767 (1940); Roach v. Roach, 672 S.W.2d 524, 530 (Tex.App.--Amarillo 1984, no writ); In re: Estate of Glover, 744 S.W.2d 197, 200 (Tex.App.--Amarillo 1987, writ denied). Once determined, the character of the property is not altered by the sale, exchange or substitution of the property. Norris v. Vaughn, 152 Tex. 491, 260 S.W.2d 676, 679 (1953); Horlock v. Horlock, 533 S.W.2d 52, 60 (Tex.Civ.App.--Houston [14th Dist.] 1975, writ dism.). Property established to be separate remains separate property regardless of the fact that it may undergo any number of mutations and changes in form. Id. With these rules in mind, we first consider point of error three challenging the characterization of the A-K partnership buy-out payments.

Under the entity theory of partnership, adopted by Texas in the Uniform Partnership Act, TEX.REV.CIV.STAT.ANN. art. 6132b (Vernon 1970), partnership property is owned by the partnership...