Hunt v. Hunt

• Decision Date: 07 August 1997
• Docket Number: No. 11-96-117-CV,11-96-117-CV
• Citation: 952 S.W.2d 564
• Parties: Katherine T. HUNT, Appellant, v. Ernest W. HUNT, Jr., Appellee.
• Court: Texas Court of Appeals

Page 564

952 S.W.2d 564

Katherine T. HUNT, Appellant, v. Ernest W. HUNT, Jr., Appellee.

No. 11-96-117-CV.

Court of Appeals of Texas Eastland.

Aug. 7, 1997.

Donald L. Sweatt, Donald L. Sweatt P.C., Graham, for appellant.

Chad Williams, Seymour, for appellee.

Before ARNOT, C.J., and DICKENSON and WRIGHT, JJ.

OPINION

ARNOT, Chief Justice.

Katherine T. Hunt and Ernest W. Hunt, Jr. were married on December 26, 1992, and divorced on December 4, 1995. They had no children together. Katherine appeals, challenging several of the trial court's findings regarding property awarded to Ernest as separate property, regarding reimbursement of the community estate for funds expended to benefit Ernest's separate estate, and regarding offsets allowed against her claim for reimbursement. We affirm.

In her first six points of error, Katherine contends that the trial court erred in finding that various property belonged to Ernest as his separate property because Ernest failed to meet his burden of proof. Since it is not clear whether Katherine is challenging the legal or factual insufficiency, we will address both. In order to review a no evidence point, we must consider only the evidence and inferences that tend to support the finding, disregarding any evidence or inferences to the contrary. State v. $11,014.00, 820 S.W.2d 783 (Tex.1991). If there is any evidence of probative force to support the finding, the no evidence point must be overruled. Juliette Fowler Homes, Inc. v. Welch Associates, Inc., 793 S.W.2d 660 (Tex.1990); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (Tex.1951). In order to review an insufficient evidence point, we must review all of the evidence and determine whether the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175 (Tex.1986); In re King's Estate, supra.

All property possessed by a husband and wife during their marriage or at the time of dissolution of their marriage is presumed to be community property. TEX.FAM.CODE ANN. § 5.02 (Vernon 1993). However, all property owned or claimed by a spouse before marriage or acquired after marriage by gift, devise, or descent is the separate property of that spouse. TEX. CONST. art. XVI, § 15; TEX.FAM.CODE ANN. § 5.01 (Vernon 1993); Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 140 (Tex.1977). A spouse asserting that certain property is his separate property bears the burden of rebutting the community property presumption by clear and convincing evidence. Section 5.02. To rebut the presumption, the spouse must generally trace and clearly identify property claimed as separate property. McKinley v. McKinley, 496 S.W.2d 540, 543 (Tex.1973); Tarver v. Tarver, 394 S.W.2d 780, 783 (Tex.1965).

In the first point, Katherine complains of the trial court's finding that Ernest's interest in Hunt's Hashknife Helicopter, Inc. was his separate property and that the corporation was capitalized entirely with the helicopters. The record shows that the corporation was formed during the marriage on August 19, 1993. However, Ernest testified that the corporation owned two helicopters. Prior to the marriage and the formation of the corporation, these helicopters were owned by a partnership consisting of Ernest and his father. Upon his father's death, Ernest was awarded the helicopters and "created a corporation with the helicopters." The helicopters were Ernest's separate property. There is nothing in the record to indicate that community assets were used or that community debts were incurred in the formation of the corporation. When a corporation is funded with separate property, the corporation is separate property. Allen v. Allen, 704 S.W.2d 600 (Tex.App.--Fort Worth 1986, no writ). We hold that the trial court's finding is supported by sufficient evidence. The first point of error is overruled.

In the second point, Katherine contends that the trial court erred in finding that Ernest's interest in Hashknife Ranch, Inc. was his separate property. Ernest testified that he and his sister formed Hashknife Ranch prior to his marriage to Katherine. Pages from Ernest's ledgers, which were introduced by Katherine, show that Ernest received a salary from Hashknife Ranch prior to his marriage. Since Ernest acquired his interest in Hashknife Ranch prior to the marriage, it is his separate property. The second point of error is overruled.

In the third point, Katherine argues that the trial court erred in finding that the 1985 Chevrolet Windjammer motor home was Ernest's separate property. Ernest testified that he received $23,880.69 in life insurance proceeds upon his father's death and that he spent $13,658.72 of that money on a travel trailer/1985 Chevrolet motor home. Ernest's ledger sheets indicate that he deposited insurance proceeds of $20,505.20 and $3,375.49 into his checking account in February and March of 1994 and that he issued checks for more than $13,000.00 in March 1994 for the Windjammer and its tags, license, and insurance. Prior to depositing the life insurance proceeds, Ernest had less than $6,000.00 in his checking account. We hold that the evidence is sufficient to show that the motor home was purchased with the separate property proceeds from Ernest's father's life insurance. The third point of error is overruled.

In her fourth point, Katherine contends that the trial court erred in finding that the lake cabin at Lake Kemp in Baylor County, Texas (described as Block 1, Section B, on East Moonshine) was Ernest's separate property. Ernest testified that he purchased a lake cabin at Lake Kemp prior to his marriage to Katherine. The divorce decree from Ernest's previous marriage awarded the lake cabin to Ernest as his separate property on October 2, 1990. Thus, the evidence shows that the lake cabin was owned by Ernest prior to his marriage to Katherine. The fourth point of error is overruled.

In the fifth point, Katherine argues that the trial court erred in finding that a royalty interest in Young County was Ernest's separate property. Ernest testified that he owned an oil royalty and that he acquired it before he married Katherine. Ernest's father had given the oil royalty to Ernest. On rebuttal, Ernest testified regarding a document that was marked as an exhibit but was not offered into evidence. Ernest testified that the document "is where my father signed a royalty interest to myself." We hold that the evidence is sufficient to show that the royalty is Ernest's separate property, either because it was a gift from his father or because it was owned prior to marriage. The fifth point of error is overruled.

In the sixth point, Katherine contends that the trial court erred in finding that an individual retirement account at Modern Woodmen of America was Ernest's separate property. Ernest testified that he opened the account prior to his marriage. Petitioner's Exhibit No. 5, a document from Modern Woodmen of America, indicates that the account was opened on March 1, 1987. In December 1992, the balance in the account was over $16,000.00. The record shows that Ernest deposited $3,500.00 into the account during his marriage to Katherine and that the account accrued interest during that time. Retirement benefits that accrue during marriage are community property. Cearley v. Cearley, 544 S.W.2d 661 (Tex.1976); Hopf v. Hopf, 841 S.W.2d 898 (Tex.App.--Houston [14th Dist.] 1992, no writ).

Although a portion of Ernest's retirement account accrued during...