Roberts v. Roberts

Decision Date30 June 1999
Docket NumberNo. 08-97-00092-CV,08-97-00092-CV
Citation999 S.W.2d 424
Parties(Tex.App.-El Paso 1999) GEORGE EUGENE ROBERTS, Appellant, v. LINDA GAYLE ROBERTS, Appellee.
CourtTexas Court of Appeals

Appeal from 383rd District Court of El Paso County, Texas (TC# 94-4941) [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Panel No. 1 Larsen, McClure, and Chew, JJ.



George Eugene Roberts has appealed from a judgment in a divorce action. We affirm in part and reverse and remand in part.


In order to resolve the issues presented on appeal, we will review the procedural history in detail even though we repeat some of the facts stated in two earlier, albeit unpublished, opinions. See Roberts v. Roberts, No. 08-97-00092-CV (Tex.App.--El Paso January 8, 1998, no pet.); Roberts v. Roberts, No. 08-97-00092-CV (Tex.App.--El Paso July 2, 1998, no pet.).

The Pleadings

The parties were married on September 16, 1976 and separated in November 1989. Wife filed for divorce on May 3, 1994. In her first amended petition filed in 1995, Wife alleged statutory no-fault grounds and fault-based grounds including cruelty and conviction of a felony pursuant to former TEX.FAM.CODE ANN. 3.01, 3.02, and 3.04.1 The clerk's record does not reveal that she claimed any separate property,2 although she sought cancellation of a deed and a declaration that the deed was of no force and effect. Attached to the amended petition as an exhibit is a general warranty deed dated December 9, 1993 which provided for the conveyance of property located at 4500 Aries in El Paso:

THAT [Wife] for and in consideration of the sum of TEN DOLLARS cash, and other good and valuable consideration, to said Grantors [sic] in hand paid by [Husband], of 4500 Aries, EL PASO TEXAS 79924, called the Grantees [sic], the receipt of which is hereby acknowledged, has granted, sold and conveyed, and by these presents does hereby grant, sell and convey unto the said Grantee, one-half (l/2) of her said interest in the following described property [legal description deleted].

Wife's amended petition refers to the Aries property as "the parties' residence."

Husband's cross-action contended that he "owned substantial property before the marriage that should be awarded to him without any interest being awarded to [Wife]."

The Jury Trial and Verdict

The Honorable Kathleen Cardone, then-judge of the 383rd District Court, presided over the jury trial conducted on July 22 and 23, 1996. The jury was asked to determine:

whether the marriage had become insupportable;

whether Husband was guilty of cruel treatment;

whether Husband had been convicted of a felony, had been imprisoned for at least one year in a federal penitentiary, and had not been pardoned;

whether Wife made a conveyance to Husband of the property located at 4500 Aries, El Paso, Texas; and if so,

whether Wife executed the deed to the property under duress.

The jury found that the marriage had become insupportable, that Husband was not guilty of cruel treatment, that Husband had been convicted of a felony; and that Wife made the conveyance but had not executed the deed under duress.

The jury was also asked to recommend a percentage distribution of the community estate. Certain assets and liabilities were explicitly set forth in the charge, although the Aries property and another parcel of real estate (referred to in the record as the Apollo Heights property) were not enumerated. While the charge listed the face amount of various insurance policies, no cash surrender values were included. No values were set forth for any of the other assets. Current balances for all but one of the liabilities were identified. In response to the question asked, the jury made advisory findings which awarded Wife 100 percent of the enumerated marital assets, with the exception of some personalty in Husband's possession, and saddled her with 100 percent of the designated marital liabilities.

The Ruling

Judge Cardone was defeated in the general election of November 1996. On December 30, 1996, prior to leaving office, Judge Cardone filed a written "Report and Recommendation in Final Divorce." The report provided: "After a jury was selected and all questions of fact were submitted to the jury and a jury verdict was returned, the following findings and orders are made." Judge Cardone's "findings" tracked the binding jury responses on the grounds for divorce. She implemented the jury's advisory findings that awarded Husband the property in his possession and awarded Wife 100 percent of the remaining marital estate to the extent it was itemized in the charge. She additionally identified the Apollo Heights property as belonging to the community estate and awarded it to Wife. The marital residence at 4500 Aries, El Paso, Texas, without being characterized as either separate or community property, was ordered sold by a licensed real estate broker at a price acceptable to [Wife] or by court order; during the pendency of the sale, [Wife] shall have the exclusive use and possession of the home and shall be responsible for all maintenance and upkeep less than $250.00 -- any repairs over $250.00 shall be deducted from the gross proceeds of the sale of the property before division of the net proceeds to the parties; during the pendency of the sale, [Wife] shall be responsible for all payments for principal, interest, taxes, and insurance and shall be entitled to claim same for income tax purposes; upon sale, the proceeds shall be distributed as follows: reimbursement for repairs over $250.00, reimbursement for reduction of principal by [Wife] from date of judgment to closing, attorneys fees to [attorney for Wife] and [attorney for Husband]3 -- net proceeds to be divided as follows: $36,196.28 to [Husband] and balance to [Wife].

The liabilities which had been specifically enumerated in the jury charge were assessed against Wife. Husband was ordered to pay any community obligations incurred solely by him since the date of separation. Finally, Judge Cardone directed the parties to prepare a proposed judgment. She made no findings as to valuation of the assets, whether the evidence justified a disproportionate division of the estate, and if so, what factors were considered in the disproportionate division.

On January 2, 1997, Judge Cardone's successor, the Honorable W. Reed Leverton, entered the decree of divorce which had purportedly been prepared in accordance with Judge Cardone's findings. On January 13, 1997, Husband filed his initial request for findings of fact and conclusions of law pursuant to TEX.R.CIV.P. 296. In response to Husband's notice of past due findings, Judge Leverton informed the parties that he could not prepare findings since he had not heard the evidence and requested that Wife's attorney prepare proposed findings and set the matter for hearing. In a subsequent memo, he advised the parties that it would be inappropriate for him to enter findings at all since the matter had been tried to a jury.

The Appeal

Husband perfected this appeal on March 13, 1997, and the clerk filed her transcript on May 21, 1997. On June 6, 1997, Wife filed a motion to dismiss the appeal because Husband had failed to file a statement of facts.4 Husband responded by filing his brief in which he challenged Judge Leverton's failure to file findings of fact and conclusions of law as well as the court's division of the marital estate. In a letter filed contemporaneously with the brief, Husband maintained that he would file a statement of facts in the event we abated the appeal and directed Judge Leverton to prepare findings. By order and unpublished opinion, we abated and directed Judge Leverton to file findings of fact and conclusions of law no later than February 15, 1998. Roberts v. Roberts, No. 08-97-00092-CV (Tex.App.--El Paso January 8, 1998, no pet.)(not designated for publication).5 On February 13, 1998, Husband's counsel informed us that Husband had died. On that same date, Wife filed a motion in which she soughtto whitdraw her previous motion to dismiss and requested that we remand the cause to the trial court. Husband's counsel eventually joined in that motion. Finding that Husband's death did not render the appeal moot because the decree affected the parties' property rights and Husband challenged the trial court's distribution of the marital assets, we denied the "joint motion for remand" with an opinion.6 Roberts v. Roberts, No. 08-97-00092-CV (Tex.App.--El Paso July 2, 1998, no pet.)(not designated for publication), citing TEX.R.APP.P. 7.1; Dunn v. Dunn, 439 S.W.2d 830, 833-34 (Tex. 1969); Palomino v. Palomino, 960 S.W.2d 899 (Tex.App.--El Paso 1997, writ denied), and Novotny v. Novotny, 665 S.W.2d 171, 173-74 (Tex.App.--Houston [1st Dist.] 1983, writ dism'd). We also extended the time period for Judge Leverton to file his findings and conclusions. Judge Leverton, however, has been unable to comply since he did not preside over the trial, did not hear the evidence, and even more problematic, the parties have refused to prepare proposed findings.7 No statement of facts was ever filed.

To properly dispose of the appeal, the cause was scheduled for submission and both parties waived oral argument. Accordingly, we now consider the merits of the appeal on the basis of the briefs and the record, such as it is.


Simply stated, we are presented with an interesting hierarchy of shifting burdens of proof. As we will detail, we begin with the first presumption, i.e. that the property on hand at the time of divorce is community property. However, a presumption of separate property arises where (1) one spouse is the grantor and the other spouse is the grantee; (2) one spouse furnishes separate property consideration and title is taken in the name of the other spouse; or (3) the instrument of...

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