Kuehn v. Kuehn

• Decision Date: 09 January 1980
• Docket Number: No. A2210,A2210
• Citation: 594 S.W.2d 158
• Parties: Jimmie Lee KUEHN, Appellant, v. Anna Louise KUEHN, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 158

594 S.W.2d 158

Jimmie Lee KUEHN, Appellant, v. Anna Louise KUEHN, Appellee.

No. A2210.

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

Jan. 9, 1980.

Jack E. Urquhart, James H. Powers, Houston, for appellant.

Burta Rhoads Rabon, Beverly D. Rudy, Houston, for appellee.

Before J. CURTISS BROWN, C. J., and MILLER and PAUL PRESSLER, JJ.

PAUL PRESSLER, Justice.

This is an appeal challenging the property division made by the court in a divorce action.

Appellee, plaintiff below, requested conservatorship of the minor children, child support, and a property division. Appellee filed an inventory and appraisement of the properties pursuant to Rule 6B of the Rules of the Judicial District Court of Harris County, Family Trial Division (Rule 6B). Appellant failed either to answer or file an inventory. Appellee appeared at trial, both in person and by counsel, and testified. Appellant appeared by counsel only and offered no evidence during trial. The trial court granted the divorce, awarding the appellee the managing conservatorship of the minor children and child support and dividing the property. Appellant contests only the property division.

In appellant's first three points of error, he challenges the awarding of two contiguous one-acre tracts to appellee on three bases. First, he contends that the tracts were his separate property because the purchase money was derived from funds he had before the marriage. The evidence upon which he relies is the following testimony of appellee:

Q: (Mr. Urquhart) Mrs. Kuehn, when was the house purchased?

The two lots, were they both purchased after your marriage?

A: That is true.

Q: Were they both purchased with community funds?

A: What do you mean, "community funds"?

Q: Isn't it true, in fact, that both of the lots were purchased, the down payment for them was paid out of the funds that Mr. Kuehn had in a separate account prior to the time you were married?

A: If I remember right, I wrote the checks.

Q: Out of Mr. Kuehn's account?

A: No, out of the joint account.

Q: Is it your position that the property was not purchased with Mr. Kuehn's personal funds?

MS. RABORN: I object. She has answered the question.

It was paid for out of the joint account, and she wrote the check.

THE COURT: Do you understand the question?

THE WITNESS: Huh-uh

Q: (By Mr. Urquhart) Mrs. Kuehn, are you testifying that Mr. Kuehn did not purchase the property with funds he had prior to the time you were married?

A: He had put money in our joint account.

At the time we bought the property do we have that I think we had been married over a year.

Q: It is true, isn't it, the property was actually purchased with funds that Mr. Kuehn had before you were married?

A: I guess so.

Q: That is true?

A: He had some money, and it was put into a joint account.

Q: But, the money

MS. RABORN: Your honor, I object. He is continuing being argumentative with the witness.

Appellant claims this testimony conclusively establishes, as a judicial admission by appellee, that the lots were purchased with appellant's separate funds. We disagree. The rules governing a judicial admission require that the statement made during a judicial proceeding be deliberate, clear, and unequivocal. We hold that appellee's testimony, quoted above, falls short of that standard.

Appellant claims in the alternative that the evidence is sufficiently clear and direct to rebut the statutory presumption that all property possessed at the dissolution of the marriage is community property. Tex.Fam.Code Ann. § 5.02 (Vernon 1975). In Cockerham v. Cockerham, 527 S.W.2d 162 (Tex.1975) the Supreme Court reiterated, "In order to overcome the presumption, the party asserting separate ownership must clearly trace the original separate property into the particular assets on hand during the marriage." Appellee's testimony establishes that an unspecified amount of separate funds of appellant was placed in a joint account at one point in time and at a later date, funds were withdrawn from the account for the down payment on the lots in question. Appellant offered no evidence of how much of his separate funds was deposited in the account, whether funds from other sources were placed in the account, or what other expenditures were made therefrom. This gap in tracing is fatal to appellant's contention. Appellant points out that where an account contains both community and separate funds, the community funds are presumed to be withdrawn first. Sibley v. Sibley, 286 S.W.2d 657 (Tex.Civ.App.-Dallas 1955, writ dism'd). However, the application of this rule to the facts before us would buttress the presumption that the house and lots were paid for with community funds absent clear evidence that there were no community funds in the account at the time the withdrawals were made for the purchase of the lots. We hold that appellant has failed to introduce sufficient evidence to overcome the community property presumption under Tex.Fam.Code Ann. § 5.02 (Vernon 1975).

As a result of the above holdings it is clear that the trial court did not divest either spouse of a separate property interest in the tracts in question.

Appellant contends that the division of community property was "manifestly unfair and unjust to the rights of the appellant." In support of this contention appellant assigns twenty points of error wherein he alleges that there is no evidence or insufficient evidence to support certain findings of fact. In points five and six appellant contends there is no evidence or insufficient evidence that the real estate owned by the parties had a fair market value of $62,030.00. This contention is based on the allegation that the only evidence supporting such a finding is the testimony of appellee. Appellee's testimony was based solely upon the property valuation made by the school district taxing authorities. She admitted she had no independent opinion as to the value of the real estate. A well established rule is that the value placed upon real estate for taxation purposes without the participation of the owner cannot be used to determine the fair market value of that real estate. Houston Lighting and Power Co. v. Fisher, 559 S.W.2d 682, 686 (Tex.Civ.App.-Houston (14th Dist.) 1977, writ ref'd n.r.e.). Such evidence is hearsay, West v. Houston Lighting and Power Co., 483 S.W.2d 352, 358 (Tex.Civ.App.-Houston (1st Dist.) 1972, no writ) and consequently cannot support a finding of fact even though there was no objection to the testimony at trial. Perkins v. Springstun, 557 S.W.2d 343 (Tex.Civ.App.-Austin 1977, writ ref'd n.r.e.). However, the trial court is vested with broad discretion in dividing the property of parties in a divorce under Tex.Fam.Code Ann. § 3.63 (Vernon 1975) and its exercise of such discretion should be reversed on appeal only where it is shown that the disposition is manifestly unjust and unfair. Bell v. Bell, 540 S.W.2d 432, 439 (Tex.Civ.App.-Houston (1st Dist.) 1976, no writ). Appellant is correct that the trial court erred in arriving at its valuation of the real estate, but since he failed to introduce any evidence of his own as...