Marriage of York, Matter of

• Decision Date: 25 February 1981
• Docket Number: No. 9203,9203
• Citation: 613 S.W.2d 764
• Parties: In the Matter of the MARRIAGE OF Marcene Mabry YORK And Marshall Ray York.
• Court: Texas Court of Appeals

Page 764

613 S.W.2d 764

In the Matter of the MARRIAGE OF Marcene Mabry YORK And Marshall Ray York.

No. 9203.

Court of Civil Appeals of Texas, Amarillo.

Feb. 25, 1981.

Gibson, Ochsner & Adkins, Marvin W. Jones, Amarillo, for appellant.

Miller & Miller, Dee Miller, Amarillo, for appellee.

DODSON, Justice.

In this divorce action, Marcene Mabry York is the appellant and Marshall Ray York is the appellee. After a bench trial, the court rendered judgment granting a divorce and dividing the estate of the parties. The two major items of property of the parties are the family residence and the business, York Tire Company, Inc. In the trial court, Mrs. York claimed the family residence as her separate property and estate and Mr. York claimed approximately 78% of the family business as his separate property and estate. In its findings of fact and conclusions of law the trial court concluded that the family residence was community property and that the business was 1/2 community property and that the remaining 1/2 was the separate property of Mr. York. It its judgment, the court granted the residence to Mrs. York and the business to Mr. York.

Appealing from the judgment, Mrs. York claims the evidence is legally and factually insufficient to support the trial court's conclusions that the residence was the community property of the parties and that the business was one-half community property and one-half the separate property of Mr. York. She further maintains that as a result of these allegedly erroneous determinations, the trial court abused its discretion in dividing the estate of the parties. Conversely, Mr. York claims that under the evidence the trial court properly classified the property in question and that the court did not abuse its discretion in dividing the estate of the parties. After reviewing the record under the applicable legal standards, we reverse the judgment and remand the action to the trial court.

In reversing and remanding the judgment we conclude: (1) that the evidence fails to conclusively establish that Mrs. York owned the residential property as her separate property; (2) that the trial court's conclusion that the residence was community property is not so against the great weight and preponderance of the evidence as to be manifestly wrong or unjust; (3) that the evidence is legally insufficient to support the trial court's conclusion that the business property in question is owned 1/2 by the community estate and 1/2 by Mr. York as his separate property; and (4) that under the circumstances of this case the trial court abused its discretion in dividing the estate of the parties.

Certain constitutional provisions, statutory enactments, and settled principles of law govern our determination of the questions presented by this appeal. Article 16, section 15 of the Texas Constitution states, in pertinent part:

All property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterward by gift, devise or descent shall be the separate property of the wife;

provided that husband and wife, without prejudice to pre-existing creditors, may from time to time by written instrument as if the wife were a feme sole partition between themselves in severalty or into equal undivided interests all or any part of their existing community property, or exchange between themselves the community interest of one spouse in any property for the community interest of the other spouse in other community property, whereupon the portion or interest set aside to each spouse shall be and constitute a part of the separate property of such spouse.

Texas Family Code section 5.01 (Vernon 1975) more clearly characterizes the relative separate and community interests of spouses, wherein it states:

(a) A spouse's separate property consists of:

(1) the property owned or claimed by the spouse before marriage;

(2) the property acquired by the spouse during marriage by gift, devise, or descent; and

(3) the recovery for personal injuries sustained by the spouse during marriage, except for any recovery for loss of earning capacity during marriage.

(b) Community property consists of the property, other than separate property, acquired by either spouse during marriage.

Section 5.02 of the Family Code further provides: "Property possessed by either spouse during or upon dissolution of marriage is presumed to be community property (emphasis added)." Real estate acquired in the name of the husband and wife also raises a presumption that the property is community. Gonzalez v. Gonzalez, 541 S.W.2d 865, 868 (Tex.Civ.App. Waco 1976, no writ); McCarthy v. Jesperson, 527 S.W.2d 825, 827 (Tex.Civ.App. El Paso 1975, no writ). The burden is on the party claiming separate ownership to "clearly trace the original separate property into the particular assets on hand during the marriage." Cockerham v. Cockerham, 527 S.W.2d 162, 167 (Tex.1975).

In her third point of error, Mrs. York maintains the judgment should be reversed because there is no evidence to support the trial court's conclusion that the residential property in question was the community property of the parties. Mrs. York, in essence, claims the residential property is her separate property and estate because such property was given to her by her parents. The evidence shows that Mr. and Mrs. York were married 20 December 1958. By a warranty deed dated 25 May 1961 and filed for record in the office of the county clerk, Potter County, Texas, on 29 May 1961, Mrs. York's parents, Glenn R. Mabry and wife, Bernice T. Mabry, conveyed the real property to "MARSHALL R. YORK and wife, MARCENE M. YORK." The consideration recited in the deed is "the sum of TEN AND NO/100 ($10.00) DOLLARS. (sic) AND OTHER GOOD AND VALUABLE CONSIDERATION." The deed contains no recitations that the property was conveyed to Mrs. York as a gift or that such property was conveyed to Mrs. York as her sole separate property and estate.

We must presume that the residential property is community. Claiming the property as her separate property and estate, Mrs. York had the affirmative burden of establishing that the residential property was her separate property as prescribed by article 16, section 15 of the Texas Constitution and section 5.01(a) of the Texas Family Code. Thus, for Mrs. York to prevail in this court on her "no evidence" challenge, the evidence must conclusively establish that the residential property is her separate property and estate.

Glenn R. Mabry testified that he intended to give the real property to Mrs. York as her sole separate property and estate. However, at the time of the conveyance, the Yorks contemplated building a house on the property to serve as their primary residence. Further contemplating community indebtedness to pay for a part of the construction of the residence, Mr. York told Mrs. York that he would not go into debt for the home construction unless he owned the property with her.

In further support of Mrs. York's separate property claim on the residential property, Mr. Mabry attempted to trace the ownership of the lot to the corpus of a trust held by Mrs. Mabry as trustee for Marcene, prior to the marriage. The record shows that three lots were acquired by him in 1956 and deeded to "BERNICE T. MABRY, TRUSTEE." Mr. Mabry testified that one of those lots was put into "Marcene Mabry's trust," the terms of which are not in the record before us. The record also fails to reflect which of the three lots was placed in that trust. Mr. Mabry further testified that Marcene's lot was traded for the lot in question on 15 September 1960. The deed is in the record and it shows that the lot in question was deeded to Mr. and Mrs. Mabry with no mention in its recitals that the Mabrys took title as trustees for Marcene. The subsequent deed of that lot to Mr. and Mrs. York recites that the conveyance was made by Mr. and Mrs. Mabry, and it also makes no mention that the grantors were trustees.

The evidence in support of Mrs. York's separate property claim as to the residential property creates no more than an issue for the trier of the facts. See, e. g., Galvan v. Galvan, 534 S.W.2d 398, 400 (Tex.Civ.App. Austin 1976, writ dism'd); Wohlenberg v. Wohlenberg, 485 S.W.2d 342, 346 (Tex.Civ.App. El Paso 1972, no writ); Hampshire v. Hampshire, 485 S.W.2d 314, 316 (Tex.Civ.App. Fort Worth 1972, no writ). Accordingly, we conclude that Mrs. York failed to conclusively establish that she owned the residential property as her separate property and estate. Her third point is overruled.

By her fourth point of error Mrs. York claims the trial court erred in determining that the residential property was community property because such finding is contrary to the great weight and preponderance of the evidence. In deciding this challenge, we must consider all of the evidence to ascertain if such finding is so against the great weight and preponderance of the evidence as to be manifestly wrong or unjust. Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex.1973); Parrish v. Hunt, 160 Tex. 378, 331 S.W.2d 304, 305-06 (1960). Having done so, we overrule Mrs. York's fourth point.

By her sixth point, Mrs. York maintains there is no evidence to support the trial court's conclusion that York Tire Company, Inc. was owned by the community estate to the extent of 50% of its value and Mr. York as his separate property to the extent of 50% of its value. Conversely, Mr. York claims there is evidence to support the court's challenged finding.

In deciding Mrs. York's legal sufficiency challenge, we must review the evidence and all reasonable inferences therefrom in a light most favorable to the court's conclusions and disregard any evidence contrary thereto. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). However, for evidence to be of probative force it must serve to prove the asserted proposition and it must be more than a mere surmise or suspicion. Joske v. Irvine, 91 Tex. 574...