Kyles v. Kyles, 09-91-185

• Decision Date: 18 June 1992
• Docket Number: No. 09-91-185,09-91-185
• Parties: Deloris White KYLES, Appellant, v. Charles H. KYLES, Appellee. CV.
• Court: Texas Court of Appeals

Page 194

832 S.W.2d 194

Deloris White KYLES, Appellant, v. Charles H. KYLES, Appellee.

No. 09-91-185 CV.

Court of Appeals of Texas,

Beaumont.

June 18, 1992.

Theodore R. Johns, Sr., Beaumont, for appellant.

Andrew L. Jefferson, Jr., Jefferson & Mims, Houston, for appellee.

Before WALKER, C.J., and BROOKSHIRE and BURGESS, JJ.

OPINION

WALKER, Chief Justice.

This is a divorce case filed by Deloris White Kyles, appellant, against Charles H. Kyles, appellee. There were no children born to or adopted by the parties during marriage. The trial court dissolved the marriage and awarded various properties to the respective parties. The trial court also filed lengthy Findings of Fact and Conclusions of Law. The primary thrust of appellant's appeal has to do with the trial court's characterization of certain real and personal property, and the division of same.

Appellant contends in her point of error number one that the trial court erred in characterizing as community property certain real property that had been deeded to appellant as her separate property. Appellant contends that the recitals in the deeds created a presumption of separate property and that there was no evidence, or in the alternative, insufficient evidence to rebut the presumption.

Appellant introduced four deeds into evidence, all of which were deeds executed during her marriage to appellee. Even though appellant makes reference to one of the four deeds, which was a quitclaim deed, appellant makes no specific complaints on appeal regarding this deed; therefore, the trial court's characterization of same as community is sustained.

It appears that appellant's concern focuses on three warranty deeds which were admitted into evidence as Petitioner's Exhibits 10, 11 and 13.

Petitioner's Exhibit 10 is a warranty deed from "Isabella White, a single woman ... for and in consideration of the sum of Ten And No/100--($10.00)--Dollars out of Grantee's separate property and estate ... GRANT, SELL AND CONVEY unto Deloris White Kyles, as her sole and separate property and estate...."

Petitioner's Exhibit 11 is a warranty deed from "Isabella White, a single woman, and Elbert White, a single man ... for and in consideration of the sum of Ten And No/100--($10.00)--Dollars out of Grantee's separate property and estate ... do GRANT, SELL AND CONVEY unto Deloris White Kyles, as her sole and separate property and estate...." Petitioner's Exhibit 13 is a warranty deed reciting that "I, Isabella White, along with the Grantee being the sole heirs of Elbert White, deceased ... for and in consideration of Ten And No/100--($10.00)--Dollars, out of grantee's separate property and estate ... do SELL, GRANT, AND CONVEY unto the above named GRANTEE as her sole and separate property and estate...." Petitioner's Exhibit 13 was executed only by Isabella White. Beneath Isabella White's signature to Petitioner's Exhibit 13, the following words are typed: "ISABELLA WHITE, Along with the Grantee being the sole heirs of Elbert White, Deceased...."

The trial court refused to characterize the properties described in Petitioner's Exhibits 10, 11 and 13 as separate property on several grounds. The trial court found that there was no evidence that appellant had separate funds in her possession to pay the consideration recited in the warranty deeds; that appellant failed to prove that Elbert White, appellant's brother, one of the grantors in one of the deeds to appellant, owned the property conveyed; that appellee did not participate in the transactions conveying this property to appellant; that the trial court was not bound by the recitals in the deeds; that appellant had the burden to prove that the consideration was paid out of her separate funds and finally, that appellant failed to carry her burden of proof to show that the property deeded to her was her separate property.

As a general rule, property conveyed to one spouse during a marriage is presumed to be community property unless that presumption be displaced by a different or contrary presumption that would show that the property so conveyed was in fact, separate property. The recitals in Petitioner's Exhibits 10, 11 and 13 displaced the normal presumption of community property, and creates a new presumption that the property is appellant's separate property. See Hodge v. Ellis, 154 Tex. 341, 277 S.W.2d 900, 904 (Tex.1955); Little v. Linder, 651 S.W.2d 895, 898 (Tex.App.--Tyler 1983, writ ref'd n.r.e.). Once these recitals are introduced into evidence, the community property presumption is negated and such recitals become prima facie evidence that the property is separate property. Henry S. Miller Company v. Evans, 452 S.W.2d 426, 430-431 (Tex.1970). When this triggering event occurs, the spouse claiming that the property is community, must then come forward with evidence to sufficiently rebut this separate property presumption and a failure to do so conclusively establishes that such property is separate property. Trawick v. Trawick, 671 S.W.2d 105, 111 (Tex.App.--El Paso 1984, no writ). According to the trial court's findings of fact, the court, after the presumption of community property was sufficiently rebutted by the introduction of the warranty deeds, found that appellant had failed to offer any evidence to show clearly and convincingly that the subject properties were acquired by appellant with property owned by her before marriage, given to or inherited by her during the marriage, or derived from the exchange of property acquired in such manner. In other words, as we view it the trial court continued to require appellant to prove the recitals were true, instead of imposing upon appellee the burden of proving that such recitals were false. We hold this to be error. Appellee, a non-participating spouse in the deed transaction, was not precluded from disputing the recital, and had the burden to do so. We believe that the closest appellee came to meeting his burden of proving that such recitals were false, was in showing that appellant could not produce evidence that the stated consideration contained in the deeds came from her separate property. Let us accept as true that appellant could not produce evidence as to where the stated "$10.00" came from. Does this, in and of itself, defeat the transfer by warranty deed of the subject property as appellant's separate property? We think not. When a person conveys property to a natural object of the grantor's bounty, such as a parent to a child, it creates a presumption that the property conveyed is a gift. Somer v. Bogart, 749 S.W.2d 202, 204 (Tex.App.--Dallas) writ denied per curiam, 762 S.W.2d 577 (Tex.1988) (opinion on rehearing of denial of writ ); Equitable Trust Company v. Roland, 721 S.W.2d 530, 533 (Tex.App.--Corpus Christi 1986, writ ref'd n.r.e.) We quickly admit, however, that this presumption is also rebuttable, but the person claiming that the property was not a gift, must prove lack of donative intent by clear and convincing evidence. Bogart v. Somer, supra.

In reviewing the relationship between the grantors of the deed and appellant as grantee, we find that in Petitioner's Exhibit 10, Isabella White was appellant's mother. In Petitioner's Exhibit 11, the grantors were Isabella White and Elbert White, being appellant's brother. In Petitioner's Exhibit 13, Isabella White is also grantor. We believe that this sufficiently establishes a presumption of gift and this presumption was not rebutted by any evidence concerning the donative intent on the part of Isabella or Elbert White. From this we conclude that the three general warranty deeds were conclusively established to be the separate property of appellant. We sustain appellant's point of error number one.

In point of error number two, appellant contends that the trial court erred in characterizing the proceeds from a personal injury settlement received by appellee as his separate property. Appellant contends that the proceeds are presumed to be community property and that there is no evidence, or in the alternative, insufficient evidence, to rebut such presumption.

On or about June 26, 1984, while married to appellant, appellee was injured in a car accident. Appellee, husband, filed a lawsuit contending that he suffered various damages from the accident including lost wages and lost earning capacity. Husband eventually settled that lawsuit for $190,000.00.

During the divorce trial, the trial court admitted into evidence Petitioner's Exhibit 3 which is titled, "RELE...