Peck v. Peck, 05-04-00919-CV.
| Decision Date | 30 September 2005 |
| Docket Number | No. 05-04-00919-CV.,05-04-00919-CV. |
| Citation | 172 S.W.3d 26 |
| Parties | Michael A. PECK, Appellant, v. Pamela B. PECK, Appellee. |
| Court | Texas Supreme Court |
Georganna L. Simpson, Law Office of Georganna L. Simpson, Dallas, for Appellant.
Michelle May, The May Firm, Dallas, for Appellee.
Before Justices WRIGHT, BRIDGES, and FITZGERALD.
Michael Peck (Husband) appeals the property division and the injunction entered in the divorce decree terminating his marriage to Pamela Peck (Wife). In six issues, he asserts the trial court erred in (1) characterizing disability insurance benefits as community property and (2) in entering an injunction prohibiting him, when in possession of the child, from permitting any woman with whom he is in an intimate or dating relationship to remain overnight in the same residence or lodging. We conclude the trial court did not wrongly characterize the disability insurance benefits and that error, if any, in the entry of the injunction was harmless. We affirm the trial court's judgment.
The parties married in 1980. They separated in January 2003, and Wife filed for divorce. They have one child, born in February 1995.
Husband is a dentist specializing in periodontics and endodontics. In 1992, as Husband prepared to open his practice, he borrowed money from a bank, and at the bank's insistence, he took out a disability insurance policy. He subsequently purchased three more policies for a total of four disability policies. The premiums for the policies were not paid by Husband's dental practice but were paid out of the parties' joint account to avoid federal income taxation of the disability benefits. In late 1998, Husband's hearing began to seriously deteriorate, and by trial he had no speech recognition in one ear and only about twenty percent in the other ear. Although he continued to practice dentistry, the insurance company declared him presumptively disabled as of January 1, 2000. The four policies paid benefits of $8464 per month and, according to a letter from the insurance company's Senior Disability Benefits Specialist, will continue to do so for the rest of his life.1 Although he received disability insurance payments and had little hearing remaining, Husband testified he intended to keep practicing until he considered it unsafe or too frustrating due to his hearing loss. The trial court ruled the disability benefits were community property and ordered Husband and Wife each receive half of the monthly payments under the policies.
After the conclusion of the trial, Husband began cohabiting with a divorced woman who had an eleven-year-old son. Wife filed a motion requesting the trial court enjoin the parties from having a person of the opposite sex overnight when in possession of the child. Husband testified he opposed the motion, explained that his relationship with the woman was "happily monogamous," and stated that the child and the woman's child got along "excellently." Husband testified that the relationship was beneficial to the child and in his best interest. After hearing this evidence, the trial court imposed an injunction prohibiting the parties from:
Permitting an unrelated adult of the opposite sex with whom Petitioner and/or Respondent has or might have an intimate or dating relationship to remain overnight in the same residence or temporary lodging while in possession of the child.
Husband filed a motion for new trial challenging the trial court's characterization of the disability insurance benefits and the propriety of the injunction. The trial court denied the motion.
In the first issue, Husband contends the trial court erred in characterizing the disability insurance benefits as community property and dividing future payments between the parties.
Under Texas law, 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 any recovery for loss of earning capacity during marriage. Tex. Fam.Code Ann. § 3.001 (Vernon 1998); see Tex. Const. art XVI, § 15. All other property is community property. Tex. Fam.Code Ann. § 3.002. Property acquired after the dissolution of the marriage, including earnings from employment, is the spouse's separate property. The trial court has no discretion to divest spouses of their separate property and to distribute it as community property. Cameron v. Cameron, 641 S.W.2d 210, 220 (Tex.1982); Barnard v. Barnard, 133 S.W.3d 782, 789 (Tex.App.-Fort Worth 2004, pet. denied). However, all property possessed by the spouses is presumed to be community property, and a spouse must prove by clear and convincing evidence that property is that spouse's separate property. Tex. Fam.Code Ann. § 3.003. Under the inception of title doctrine, contractual property rights, acquired during the marriage with community funds or through employment that vest during the marriage are community property. See Barnett v. Barnett, 67 S.W.3d 107, 111 (Tex.2001).
In the first issue, Husband contends the trial court erred in characterizing the disability insurance benefits as community property and dividing future payments between the parties. Wife asserts Husband judicially admitted at trial that the disability policies were community property, estopping him from contending otherwise.
During the trial, Husband's attorney said in his opening statement that under Texas law, the disability policy "would be considered a community asset," and he asked the court to use its discretion in dividing that asset. During Wife's case in chief, Husband was called to testify, and he stated he did not agree the disability policy was community property, regardless of what the law was. During Husband's case in chief, Husband's Exhibit A was offered as a summary of his testimony of his proposal for division of the parties' community estate. In that exhibit, Husband proposed the insurance disability benefits be divided equally between the parties for three years or until he is unable to practice dentistry, whichever comes first, and that Husband then receive all the benefits. Husband also testified consistent with this part of Exhibit A.2 Husband's Exhibit E, his amended inventory and appraisement, also states the disability policy benefits were community property.3 During closing argument, Husband's attorney, referring to the disability policy benefits, stated, "So granted it is a piece of community property, but . . . this Court has the discretion to make an equitable distribution of the property. . . ." After trial, Husband filed a Brief on the Issue of the Disability Policy, which stated, "The evidence shows that the disability policy was purchased during marriage, with community funds, and is therefore pursuant to Texas law, community property." The brief then urged the court to divide the disability policy benefits equally for only three years or until Husband is unable to practice dentistry, whichever occurs first, and after the three years or Husband's inability to practice, to award all the disability insurance benefits to Husband.4 When Wife moved for judgment attaching a draft judgment, Husband did not object to the division of the disability insurance benefits. The trial court then rendered a decree dividing the disability payments equally.
A judicial admission is a formal waiver of proof that dispenses with the production of evidence on an issue. Lee v. Lee, 43 S.W.3d 636, 641 (Tex.App.-Fort Worth 2001, no pet.). A judicially admitted fact is established as a matter of law, and the admitting party may not dispute it or introduce evidence contrary to it. Id.; Dutton v. Dutton, 18 S.W.3d 849, 853 (Tex.App.-Eastland 2000, pet. denied); Roosevelt v. Roosevelt, 699 S.W.2d 372, 374 (Tex.App.-El Paso 1985, writ dism'd). This rule is based on the public policy that it would be absurd and manifestly unjust to permit a party to recover after he has sworn himself out of court by a clear and unequivocal statement. U.S. Fid. & Guar. Co. v. Carr, 242 S.W.2d 224, 229 (Tex.Civ.App.-San Antonio 1951, writ ref'd); Lee, 43 S.W.3d at 641; Roosevelt, 699 S.W.2d at 374. Five conditions must have occurred for a party's admission to be conclusive against him: (1) the declaration relied upon must have been made in the course of a judicial proceeding; (2) the declaration was contrary to an essential fact embraced in the theory of recovery or defense asserted by the party; (3) the statement was deliberate, clear, and unequivocal; (4) giving conclusive effect to the declaration would not run contrary to public policy; and (5) the declaration related to a fact upon which a judgment for the opposing party was based. U.S. Fid. & Guar. Co., 242 S.W.2d at 229; Lee, 43 S.W.3d at 641-42.
These facts meet the five requirements set out in U.S. Fidelity & Guaranty Co. for a judicial admission because (1) the admissions were made during the course of a judicial proceeding, (2) the admissions are contrary to the essential fact now argued by Husband that the policies are his separate property, (3) the admissions were deliberate, clear, and unequivocal in that they were prepared and made with the assistance and approval of counsel, (4) giving effect to the admissions of the community character of the disability policy benefits would be consistent with the public policy that a party should not be permitted to recover when he has sworn himself out of court by a clear and unequivocal statement, and (5) the admissions support judgment for Wife. See U.S. Fid. & Guar. Co., 242 S.W.2d at 229; Lee, 43 S.W.3d at 641-42.
Except for one contrary statement in his testimony, Husband made no assertion that the disability...
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