Rogers v. Rogers, 01-87-00070-CV

• Decision Date: 17 March 1988
• Docket Number: No. 01-87-00070-CV,01-87-00070-CV
• Citation: 754 S.W.2d 236
• Parties: Vivian L. ROGERS, Appellant, v. Fred Curtis ROGERS, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 236

754 S.W.2d 236

Vivian L. ROGERS, Appellant, v. Fred Curtis ROGERS, Appellee.

No. 01-87-00070-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

March 17, 1988.

Vivian L. Rogers, Ledbetter, pro se. for appellant.

Michale Simmang, Giddings, for appellee.

Before WARREN, COHEN and DUNN, JJ.

OPINION

DUNN, Justice.

This is an appeal from a judgment rendered in a divorce decree. Appellant, Vivian Rogers, filed a pro se brief, primarily challenging the court's division of the community property and the awarding of a $17,500 reimbursement to appellee, Fred Curtis Rogers. We reverse and remand.

The parties were married July 5, 1984. Appellant filed for divorce April 30, 1986, and the divorce was granted December 5, 1986. There are no children involved. Prior to marriage, appellant owned a condominium in Lubbock and 10 acres in Ledbetter, on which she had started building a home. She had entered into a contract with a builder for $81,000, $31,000 of which she paid prior to marriage. After marriage, she fired the contractor before the house was completed, and after filing a lawsuit, settled with him for $5,000, wiping out the remaining balance of $45,000. The parties moved into the incompleted house in January of 1985. The house was eventually completed, with some work contracted out and some work performed by the parties themselves and members of their families. During marriage, the parties borrowed approximately $3,800 to buy a barbecue business, which was run by appellee.

In their original pleadings, neither party pleaded a claim for reimbursement. However, after both sides had rested, the court allowed, over appellant's objection, appellee to amend his answer to include a request for reimbursement for community funds, separate funds, and the value of community time and effort expended to benefit appellant's separate estate.

At the trial before the court, there was conflicting testimony over whose money was spent for what, and what contributions, if any, appellee made to financially supporting the marriage or to benefitting appellant's separate estate, either financially or through his labor. Appellee was unemployed for approximately five months out of the two-year marriage. Appellant introduced pages of records she compiled showing all monies supposedly deposited, allegedly mostly by her, and spent during their two-year marriage. On cross-examination, the accuracy of many of appellant's alleged deposits and expenditures was successfully challenged. Most of the community funds and appellant's separate funds were deposited into a joint account. Appellee set up a money market account with $7,000 of his separate funds, much of which went into the Ledbetter house. Appellee testified only generally as to his claims for reimbursement, including the payment of the mortgage on appellant's condominium in Lubbock, and community and separate funds, as well as his labor, expended on appellant's house in Ledbetter.

In the divorce decree, the trial court awarded each party all the separate property they had claimed as such, except an oriental rug, which appellee claimed as his separate property, because allegedly it was paid primarily with his separate funds just four days after marriage. However, while the court characterized the rug as community property, it was awarded to appellee, along with the barbecue business, the only other community property of which there was evidence. The barbecue business consisted of a 10 x 12 portable building, a portable barbecue pit, and all assets of the business. The only community property awarded appellant was one-half of appliances and household items acquired after marriage. No inventory was filed with the court, nor were any values indicated in the divorce decree.

The divorce decree further awarded appellee $17,500 for "reimbursement for community efforts made to the separate estate" of appellant, to be paid within 30 days, secured by a lien on appellant's 10 acres in Ledbetter on which the house was located. No findings of fact and conclusions of law were filed, although requested by appellant in compliance with Tex.R.Civ.P. 296 and 197. However, appellant does not challenge the court's failure to file the findings of fact. While, in the absence of findings of fact, we do not know the exact basis upon which the $17,500 was awarded, the statement of facts includes a general explanation of the judgment by the trial judge that the money was awarded for work and monies expended on the house in Ledbetter, and the monies spent on the condominium in Lubbock. Therefore, it appears from the record that the court's award was based on three theories of reimbursement: (1) funds expended to discharge purchase money obligations on one spouse's separate property; (2) funds expended for improvements that enhanced the value of one spouse's separate property; and (3) the value of uncompensated community time and labor that enhanced one spouse's separate property.

Points of error three, four, and six all challenge the awarding of $17,500 for reimbursement under all three theories, on numerous grounds. Basically, appellant challenges the sufficiency of the evidence, arguing that appellee failed to meet his burden to establish his right to reimbursement. Without the court's findings of fact, we must determine whether there is any evidence to uphold the judgment on any theory of law applicable to the case. In the interest of W.E.R., 669 S.W.2d 716, 717 (Tex.1984) (per curiam).

The right to reimbursement is an equitable right and should be determined by equitable principles. Anderson v. Gilliland, 684 S.W.2d 673, 675 (Tex.1985). The burden under any theory of reimbursement is on the party claiming reimbursement to establish his right thereto and the elements thereof. See, e.g., Vallone v. Vallone, 644 S.W.2d 455, 459 (Tex.1982). We will address appellant's challenges separately under each of the three theories, each of which requires different elements to be proven.

In regards to any reimbursement for labor done by appellee on the house, appellant argues that appellee failed to prove (1) the amount and value of his labor, and (2) that any reimbursement that might be owing was greater than the benefits received by the community from living there rent free.

A right to reimbursement arises when community time, toil, and labor are utilized to benefit and enhance a spouse's separate estate, beyond that reasonably necessary for management and preservation, and for which the community did not receive adequate compensation. Jensen v. Jensen, 665 S.W.2d 107, 110 (Tex.1984); Vallone, 644 S.W.2d at 459 (Tex.1983). The contributing spouse is not entitled to the enhanced value of the separate property, but only to the value of the uncompensated time and labor. Jensen, 665 S.W.2d at 109. Jensen and Vallone both dealt with the enhancement by one spouse of his own separate property stock.

We need not decide whether the Vallone and Jensen reimbursement of time, toil, and labor would apply to the fact situation in this case. The burden would still be on the claimant to establish the value of community time and labor expended on the spouse's separate property, over that which was reasonably necessary for management and preservation, and over the value of any compensation or benefit received by the community. See Jensen, 665 S.W.2d at 110. Appellee fails to point to, nor do we find, any evidence establishing the value of appellee's alleged uncompensated labor, nor that any such labor was greater than any benefits received.

We therefore find that appellee failed to meet his burden to establish the elements necessary for reimbursement of his time and labor expended on appellant's separate property, and any reimbursement on this basis was in error.

In regards to reimbursement for any community or separate funds used to complete the house in Ledbetter, appellant argues that appellee failed to establish (1) the enhanced value of the property, and (2) that any reimbursement due was greater than the benefits received from living in the house rent free.

Any claim for reimbursement for funds expended by one estate for improvement to another estate is to be measured by the enhanced value to the benefitted estate. Anderson v. Gilliland, 684 S.W.2d 673, 675 (Tex.1985); Cook v. Cook, 693 S.W.2d 785 (Tex.App.--Fort Worth 1985, no writ) (applying Anderson, which dealt with probate, to divorce). The enhanced value is determined by the difference between the fair market value before and after improvements made during marriage.

While there is some evidence to establish the current market value, there is no evidence to establish the value of the property at the time of marriage, so as to determine the enhanced value. The fact that prior to marriage appellant had paid $31,000 on the subsequently cancelled $81,000 contract does not establish the market value of the house prior to any improvements that may have been paid for by community funds on separate funds of appellee. See Snider v. Snider, 613 S.W.2d 8, 9 (Tex.App.--Dallas 1981, no writ).

Furthermore, even if the enhanced value had been shown, this amount would have been contributed to by improvements resulting from several sources, including separate funds of both appellant and appellee, community funds, and uncompensated labor on the part of both parties. (We have already found that there was no right to reimbursement for appellee's labor, for which enhanced value is not even the proper measure of reimbursement.) Appellant, therefore, would have had the burden not only to show what improvements were paid for with his separate funds and any community funds, but also what portion of the enhanced value was attributable to these expenditures. See Jensen, 665 S.W.2d at 109 (explaining why cost rather than enhanced value was a better measure of reimbursement for community time and labor). This burden appellee has failed to meet. The fact that appellee brought...