Matter of Marriage of Parker

• Decision Date: 23 July 1999
• Docket Number: No. 06-98-00084-CV,06-98-00084-CV
• Citation: 997 S.W.2d 833
• Parties: (Tex.App.-Texarkana 1999) IN THE MATTER OF THE MARRIAGE OF MARTHA ANN PARKER AND JIM C. PARKER
• Court: Texas Court of Appeals

Page 833

997 S.W.2d 833 (Tex.App.-Texarkana 1999)

IN THE MATTER OF THE MARRIAGE OF MARTHA ANN PARKER AND JIM C. PARKER

No. 06-98-00084-CV

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

Submitted June 25, 1999

Decided July 23, 1999

On Appeal from the 128th Judicial District Court Orange County, Texas, Trial Court No. A-920,543-AD

[Copyrighted Material Omitted]

Before Cornelius, C.J., Grant and Ross, JJ.

O P I N I O N

Opinion by Justice Ross

This appeal involves a dispute concerning a property division made by the trial court after the divorce of the parties. Jim Parker brings five points of error, complaining of (1) the legal and factual sufficiency of the evidence to support the award of a certain piece of real property to Martha Parker; (2) the legal and factual sufficiency of the evidence to support an award of $50,000 to Martha Parker; and (3) the division of some of the personal property.

Jim Parker and Martha Foreman were married on June 3, 1990. In February 1989, Jim Parker entered into a contract with Norman and Cheryl Journey to purchase real property at 3450 Tram Road in Vidor, Texas. Jim Parker moved onto the property immediately after signing the contract. The contract called for payment of $85,000 in the following increments: (a) payment of $5,000 at closing; (b) payment of $5,000 on August 15, 1989; (c) payment of $32,543¹ payable on February 1, 1990; and (d) payment of $42,457.09,² which Jim Parker contends was due on March 1, 1990. The contract stated that the sellers would deliver a general warranty deed to Jim Parker upon the completion of the terms of the contract. However, the contract also provided that failure to comply with the conditions of the contract would constitute a breach and the contract would be terminated.

Jim Parker made the two required $5,000 payments. When the $32,500 payment came due, he borrowed the money from Allen Thomason, a business associate, and paid the amount to the sellers. Shortly after Thomason had made the $32,500 loan to Jim Parker, Martha Foreman paid Thomason the principal amount Jim Parker had borrowed, plus interest. Martha Foreman paid Thomason this amount out of insurance proceeds she had received from a fire at her home in Iowa Park, Texas, which was her separate property. On March 1, 1990, Jim Parker assigned to Martha Foreman his rights under the contract for deed. Martha Foreman borrowed approximately $42,500 from Thomason to cover the last remaining payment due on the Tram Road property. Martha Foreman executed a deed of trust in favor of Thomason to secure the loan. Jim Parker also signed the note as a guarantor. Upon payment of the $42,500, the sellers executed a warranty deed in favor of Martha Ann Foreman in March 1990 conveying the property at 3450 Tram Road to her alone.

Jim Parker testified that he assigned his rights to Martha Foreman because he was negotiating with the Internal Revenue Service regarding his outstanding tax liability and did not want the property to become subject to IRS liens, as was possible if the property was deeded to him. He further testified that he and Martha had an oral agreement that she would convey the land to him after his tax liability to the IRS was resolved. Once his tax problems were resolved, Jim Parker asked Martha for the property, and she refused to convey it to him.

The two married on June 3, 1990. On January 12, 1991, the home on Tram Road burned. In settlement of this claim, the insurance company paid a total of $389,000, which consisted of $250,000 for the dwelling, $125,000 for contents, and $14,000 for additional living expenses. All of the checks were payable to both Jim and Martha Parker. Martha Parker took the $250,000 check which had been endorsed by Jim Parker and turned it over to Allen Thomason. Thomason returned a check of $201,000 to Martha Parker and extinguished the $42,500 debt (with interest) which Martha owed him for the purchase of the Tram Road property. She then deposited the $201,000 into her own separate account. Martha Parker also deposited a $20,000 check, which was an advance on the contents coverage, into her personal account. She then gave Jim Parker $9,500 of that amount, ostensibly to reimburse him for the $10,000 he had originally put down on the Tram Road property before he assigned the contract to her. Martha Parker claims that Jim Parker took the $125,000 contents money and the $14,000 additional living expense money to start a corporation, Lou-Tex, Inc., and to purchase equipment. It appears that Martha Parker later transferred $125,000 of the $201,000 she received back into the community property bank account. The house on Tram Road was rebuilt.

Jim Parker also testified that he paid Martha Parker the $32,500 that she had paid to Thomason to extinguish Jim Parker's debt for the payment on the house.

Martha Parker filed for divorce on August 20, 1992. The divorce was granted on October 16, 1997, and was severed from the remaining suit regarding the property division. After a number of hearings concerning the division of property, the final order on the property division was signed and entered on January 20, 1998. The Tram Road property was characterized as Martha Parker's separate property and therefore awarded to her. Martha Parker was also awarded $50,000 in the form of a judgment against Jim Parker "[f]or the purpose of a just and right division of property . . . ." Jim Parker now brings this appeal.

In the first and second points of error, Jim Parker complains that the evidence is legally or factually insufficient to support an award of the Tram Road property to Martha Parker.

In deciding a no evidence claim, we consider the evidence and inferences tending to support the finding. See Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex. 1992). We disregard all contrary evidence and inferences. Transport Ins. Co. v. Faircloth, 898 S.W.2d 269, 275-76 (Tex. 1995); Havner, 825 S.W.2d at 458. Any evidence of probative force supporting a finding requires us to uphold the verdict. See Southern States Transp., Inc. v. State, 774 S.W.2d 639, 640 (Tex. 1989). We sustain a no evidence point only when the record discloses: (1) a complete absence of evidence of a vital fact; (2) the rules of law or evidence bar consideration of the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence conclusively establishes the opposite of a vital fact. Anderson v. City of Seven Points, 806 S.W.2d 791, 795 n.3 (Tex. 1991). If there is more than a scintilla of evidence to support the finding, the claim is sufficient as a matter of law and any challenges go merely to the weight to be accorded the evidence. Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex. 1993).

An assertion that the evidence is factually insufficient to support a fact finding means that the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the answer should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). We are required to consider all of the evidence in the case in making this determination and, if reversing, to detail that evidence in the opinion. Jaffe Aircraft Corp. v. Carr, 867 S.W.2d 27, 29 (Tex. 1993).

Property possessed by either spouse during or on dissolution of marriage is presumed to be community property. TEX. FAM. CODE ANN. 3.003 (Vernon 1998). A party attempting to overcome this presumption must establish by clear and convincing evidence that the disputed property is separate. Id. The party claiming separate property must trace and identify the property claimed as separate property by clear and convincing evidence. Tracing involves establishing the separate origin of the property through evidence showing the time and means by which the spouse originally obtained possession of the property. Hilliard v. Hilliard, 725 S.W.2d 722, 723 (Tex. App.Dallas 1985, no writ). Separate property will retain its character through a series of exchanges so long as the party asserting separate ownership can overcome the presumption of community property by tracing the assets on hand during the marriage back to property that, because of its time and manner of acquisition, is separate in character. See Cockerham v. Cockerham, 527 S.W.2d 162, 167 (Tex. 1975).

In the present case, the evidence establishes that Jim Parker entered into a contract for deed for the property prior to the marriage. The inception of title occurs when a party has the right of claim to the property by virtue of which title is finally vested. Strong v. Garrett, 148 Tex. 265, 224 S.W.2d 471, 474 (1949). Both parties testified that Jim Parker had purchased the property under a contract for deed prior to the marriage. This determined the character of the property as Jim Parker's separate property. See Carter v. Carter, 736 S.W.2d 775 (Tex. App.Houston [14th Dist.] 1987, no writ); Roach v. Roach, 672 S.W.2d 524 (Tex. App.Amarillo 1984, no writ). However, Jim Parker assigned his rights under the contract for deed on the Tram Road property to Martha Foreman before their marriage. Martha Foreman then fulfilled the obligations under the contract, and the property was deeded to her prior to their marriage.

Property owned before marriage is characterized as a spouse's separate property. TEX. FAM. CODE ANN. 3.001 (Vernon 1998). Martha Foreman Parker met her burden to show by clear and convincing evidence that the Tram Road property was her separate property because Jim Parker relinquished his claim to the property as his separate property under the inception of title doctrine when he assigned his rights in the contract for deed to Martha Foreman.

Jim Parker argues that he and Martha Foreman Parker entered into an oral agreement that, once his problems with the IRS were resolved, she would convey the property to him. Martha Parker...