McElwee v. McElwee

• Decision Date: 02 November 1995
• Docket Number: No. 01-94-00456-CV,01-94-00456-CV
• Citation: 911 S.W.2d 182
• Parties: Edward M. MCELWEE, Appellant, v. Mary Louise MCELWEE, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 182

911 S.W.2d 182

Edward M. MCELWEE, Appellant, v. Mary Louise MCELWEE, Appellee.

No. 01-94-00456-CV.

Court of Appeals of Texas Houston (1st Dist.).

Nov. 2, 1995.

Rehearing Overruled Nov. 15, 1995.

Shawn Casey, Betty B. Homminga, Houston, for appellant.

Pamela E. George, Houston, for appellee.

Before OLIVER-PARROTT, C.J., and ANDELL, J., also sitting.

OPINION

HUTSON-DUNN, Justice.

Appellant, Edward M. McElwee, the respondent in the trial court below, appealed from a judgment of divorce and a property division. The three issues before this Court are: (1) whether the trial court erred in denying appellant's motion to recuse Judge Bill Elliott; (2) whether Judge Elliott was disqualified to hear the matter; and (3) whether the trial court committed reversible error in mischaracterizing community property as separate property of the appellee, Mary Louise McElwee. Because appellant has waived the issue of recusal and because appellant did not show Judge Elliott was disqualified, we affirm the trial court's denial of the motion to recuse and overrule appellant's point of error regarding disqualification. Because the trial court's mischaracterization of community property materially affected the property division, we sustain appellant's second point of error. Finally, having found merit in appellant's arguments, we overrule appellee's cross-point.

Summary of Facts

Edward M. McElwee (Edward) and Mary Louise McElwee (Mary) were married on October 8, 1949. At the time of their marriage, Edward worked as a United States Air Force jet fighter pilot and Mary attended college.

In 1982, Mary filed for divorce and employed Vern Thrower as her attorney. However, wishing to preserve the marriage, Mary reconciled with Edward, and the divorce action was dismissed. Mary filed for divorce, once again, in August 1991. Finding that Edward was guilty of cruel treatment toward Mary, the trial court rendered a judgment of divorce. Without including five properties which the court characterized as Mary's separate property, the court awarded approximately 60.8% of the community property to Mary and 39.2% to Edward.

The Parties' Pleadings

Edward raises two points of error. In his first point of error, he argues the court erred in denying Edward's motion to recuse Judge Elliott. In the alternative, he argues Judge Elliott was disqualified to hear the matter. Mary argues that Judge Elliott was qualified to hear the case and should not have been recused.

In his second point of error, Edward argues the trial court erred by mischaracterizing community property as Mary's separate property. He argues this error requires reversal because it deprived him of his interest in a substantial portion of the community estate. In reply points two through four, Mary asserts that Edward waived error with respect to mischaracterization because he did not object to the trial court's characterization of the property and because he did not brief his points of error in an abuse of discretion standard. In reply points five through seven, Mary asserts that the trial court's error, if any, does not require reversal because, despite any mischaracterization, the trial court's division was not an abuse of discretion. Mary also raises a cross-point asserting that she should be awarded damages because Edward took this appeal without sufficient cause and for delay pursuant to Texas Rule of Appellate Procedure 84.

Analysis

Edward argues that Judge Elliott was either disqualified or should have recused himself because, eight years before this action was filed, Vern Thrower, the father of Associate Judge Lynn Thrower, allegedly filed divorce papers against Edward on behalf of Mary. Edward asserts a two-tiered approach to Judge Elliott's disqualification. First Edward asserts that Judge Thrower was disqualified because he had been a practicing attorney in his father's firm when his father filed Mary's divorce action against Edward. A judge is disqualified to hear a matter if: (1) he personally served as a lawyer in the matter or (2) a lawyer with whom he previously practiced law served as a lawyer in the matter. TEX.R.CIV.P. 18b(1)(a). Consequently, Judge Thrower would be disqualified because a lawyer with whom he previously practiced law, his father, served as an attorney in the matter.

Second, Edward attempts to impute Judge Thrower's disqualification to Judge Elliott, asserting that the relationship between a presiding judge and his personally appointed associate judge is as close and interdependent as the relationship between partners in a law firm.

A trial court's denial of a motion to recuse is reviewed on an abuse of discretion standard. Petitt v. Laware, 715 S.W.2d 688, 692 (Tex.App.--Houston [1st Dist.] 1986, writ ref'd n.r.e.). Edward's point of error regarding disqualification, however, is raised for the first time on appeal, and therefore, is reviewed de novo.

Although he argues error both on grounds of disqualification and recusal, Edward waived the issue of recusal because his motion failed to comply with the mandates of the Texas Rules of Civil Procedure. Recusal may be waived if it is not raised by a proper motion. Sun Exploration & Prod. Co v Jackson, 729 S.W.2d 310, 315 (Tex.App.--Houston [1st Dist.] 1987), rev'd on other grounds, 783 S.W.2d 202 (Tex.1989); Humble Exploration Co. v. Browning, 677 S.W.2d 111, 114 (Tex.App.--Dallas 1984, writ ref'd n.r.e.), cert. denied, 475 U.S. 1065, 106 S.Ct. 1376, 89 L.Ed.2d 602 (1986); Autry v. Autry, 646 S.W.2d 586, 588 (Tex.App.--Tyler 1983, no writ); Ex parte Fernandez, 645 S.W.2d 636, 638 (Tex.App.--El Paso 1983, no writ). The rule requires that a motion for recusal "shall be verified and must state with particularity the grounds why the judge before whom the case is pending should not sit." TEX.R.CIV.P. 18a(a). If a party fails to comply, he waives his right to complain of a judge's failure to recuse himself. See Gulf Maritime v. Towers, 858 S.W.2d 556, 559-60 (Tex.App.--Beaumont 1993, writ denied) (hereinafter "Gulf Maritime"); Humble Exploration Co., 677 S.W.2d at 114; Autry, 646 S.W.2d at 588; Ex parte Fernandez, 645 S.W.2d at 638. The motion must be made on personal knowledge, "set[ting] forth such facts as would be admissible in evidence provided that facts may be stated upon information and belief if the grounds of such belief are specifically stated." TEX.R.CIV.P. 18a. Edward admits that his motion to recuse was both sketchy and unverified. He did not comply with rule 18a, and waived his right to complain of the court's denial of his motion to recuse.

Nevertheless, Edward argues his motion was probably misnamed, and should have been urged as a motion to disqualify Judge Elliott. Unlike recusal, disqualification cannot be waived. Sun Exploration & Prod. Co., 729 S.W.2d at 312; see also Gamez v. State, 737 S.W.2d 315, 317 (Tex.Cr.App.1987). If a judge is disqualified under the Texas Constitution, he is without jurisdiction to hear the case, and therefore, any judgment he renders is void and a nullity. Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 148 (Tex.1982); Gulf Maritime, 858 S.W.2d at 559. Disqualification may be raised at any time. See Buckholts Indep. Sch. Dist., 632 S.W.2d at 148. A trial court or an appellate court may raise the issue on its own motion. See Lee v. State, 555 S.W.2d 121, 122 (Tex.Crim.App.1977); City of Houston v. Houston Lighting & Power Co., 530 S.W.2d 866, 868 (Tex.Civ.App.--Houston [14th Dist.] 1975, writ ref'd n.r.e.). Moreover, if the question of disqualification is unclear on appeal, an appellate court may abate the appeal and return the matter to the trial court for an evidentiary hearing on the issue. See Sun Exploration & Prod. Co., 729 S.W.2d at 314; Gamez v. State, 644 S.W.2d 879, 880 (Tex.App.--San Antonio 1982), aff'd, 737 S.W.2d 315 (Tex.Crim.App.1987).

There are three constitutional grounds for disqualification in a civil case:

Judges shall disqualify themselves in all proceedings in which:

(a) they have served as a lawyer in the matter in controversy, or a lawyer with whom they previously practiced law served during such association as a lawyer concerning the matter; or

(b) they know that, individually or as a fiduciary, they have an interest in the subject matter in controversy; or

(c) either of the parties may be related to them by affinity or consanguinity within the third degree.

TEX.R.CIV.P. 18b(1) (Vernon Supp.1995). These are the sole constitutional grounds for disqualification which cannot be waived. ¹

Edward has not suggested that Judge Elliott has an interest in the matter, nor has he suggested the judge is related to either party. Consequently, his argument must rest upon rule 18b(1)(a). Judge Elliott has neither served as a lawyer in the matter, nor has he previously practiced law with an attorney who served as a lawyer in the matter. Appellant seeks to disqualify Judge Elliott because Judge Thrower previously practiced law with a person who served as a lawyer in the matter. The argument does not fit the rule. Therefore, we find Judge Elliott was not disqualified from hearing the case.

We overrule appellant's first point of error.

In point of error two, Edward argues the trial court erred by mischaracterizing certain community properties as Mary's separate property. Edward argues the evidence was legally insufficient, or in the alternative factually insufficient, to rebut the presumption that the property was community property. The five properties in question are: (1) a USAA Gold Fund Mutual Fund Account held in Mary's name and valued at approximately $7,553.54; (2) a Savings of America account listed in Mary's name and valued at approximately $4,489.73; (3) a Savings of America account in the name of Mary or Beulah Hoffpauir and valued at approximately $2,796.96; (4) a Savings of America account listed in Mary's name and valued at approximately $8,971.37; and (5) an America United Life annuity with a monthly...