In re Cumpton
| Decision Date | 02 June 1983 |
| Docket Number | No. CA 3-82-1747-G,Bankruptcy No. 382-00180-G-7.,CA 3-82-1747-G |
| Citation | 30 BR 49 |
| Parties | In re Jerry Bob CUMPTON, d/b/a the Casual Image, Inc., d/b/a Cumpton's Exxon Service Center, Inc. |
| Court | U.S. District Court — Northern District of Texas |
G. Scott Damuth, Dallas, Tex., for plaintiff.
Allan Brent Diamond, Dallas, Tex., for defendant.
This appeal from Bankruptcy Court turns on a single legal issue: whether the bankrupt (Cumpton), a divorced man currently living in the home of his second wife, can claim a homestead exemption under Texas law for a residence previously occupied by him, even though his divorce decree provided that Cumpton had no further right to occupy that residence. Dempsey, a judgment creditor, opposed Cumpton's application to amend his schedules under 11 U.S.C.A. Rule 110 (1977) to reflect the claimed exemption. The bankruptcy judge held that Cumpton could not amend his schedules to list an exemption for his former residence (the Limetree property). The judgment of the Bankruptcy Court is affirmed.
Before Cumpton separated from his former wife in November 1979, the couple and their child occupied the Limetree property as their residential homestead. The couple later executed a contractual agreement incident to divorce which the judge incorporated into the divorce decree dated November 25, 1980. That decree provided that the parties had no intention of living together again; that Cumpton's ex-wife and child had the exclusive right to occupy the property; and that the property would be sold upon the child's eighteenth birthday or graduation from high school, unless the ex-wife elected an earlier sale or unless she ceased to occupy the premises. The Cumpton child will graduate this summer. Under the agreement, Cumpton and his ex-wife each own a one-half interest in the Limetree residence.1
On January 31, 1981, Cumpton remarried and moved to Palmer, Texas. Since that time he has resided with his second wife, Janet, and her two daughters in a house (the Palmer property) which all parties agree belongs to Janet as her separate property.
The bankruptcy judge's findings of fact cannot be disturbed unless clearly erroneous, but the district court must independently determine the correctness of his legal conclusions. 11 U.S.C.A. Rule 810 (1977); In re Visiting Home Services, Inc., 643 F.2d 1356, 1359 (9th Cir.1979). Since the facts in this case are undisputed, this Court need review only the conclusions of law and their application to the facts.
The bankruptcy judge concluded that the terms of the divorce agreement prevented Cumpton from establishing a homestead in the Limetree property. In the opinion of this Court, the bankruptcy judge reached the correct result because, under Texas law, Cumpton could acquire no homestead rights apart from his new family, and there was no evidence that the Limetree property was the homestead of Cumpton's new family. His claim of exemption must therefore fail. Burk Royalty Co. v. Riley, 475 S.W.2d 566, 567 (Tex.1972). Cumpton's homestead rights in the Palmer property owned by his second wife reinforce the conclusion that only Cumpton's first wife, as a constituent member of the family, retained homestead rights in the Limetree property.
Cumpton's former wife and child have occupied the Limetree property since the divorce in 1980. The homestead exemption protects a constituent member of the family who remains in the home after divorce. Woods v. Alvarado State Bank, 118 Tex. 586, 19 S.W.2d 35 (1929).
Cumpton's interest in the property, however, stands on a different footing. The Texas Supreme Court in Riley, supra, recognized a distinction between the homestead rights of a surviving spouse and those of a divorced person. A widow who still uses land on which she formerly resided is entitled to a presumption that her homestead rights in it continue,2 but a divorced wife is required to prove that the property for which she claims exemption is the homestead of her current family. Riley, 475 S.W.2d at 568. Although the Court's rationale in that case rested in part on the right of the husband to designate the family homestead, this Court finds it equally applicable to a situation in which the husband has tacitly designated the property belonging to his second wife as homestead by use and occupancy of it. Like the divorced wife in Riley, Cumpton did not allege, nor has he established, use and occupancy of his former family's homestead by his present family and an intent to make it their home.
Furthermore, Cumpton's newly acquired homestead rights in the Palmer property are incompatible with his assertion of homestead in the Limetree property. That the Palmer property belongs to Janet Cumpton as her separate estate has no bearing on Cumpton's homestead rights in that property. It is well established that the homestead may be the separate property of either the husband or the wife, or community property. Crowder v. Union National Bank, 114 Tex. 34, 261 S.W. 375, 377 (Tex.Comm...
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