Saldana v. Saldana

• Decision Date: 31 May 1990
• Docket Number: No. 13-89-249-CV,13-89-249-CV
• Citation: 791 S.W.2d 316
• Parties: Daniel SALDANA, Jr., Appellant, v. Laura Elena SALDANA, Appellee.
• Court: Texas Court of Appeals

Page 316

791 S.W.2d 316

Daniel SALDANA, Jr., Appellant, v. Laura Elena SALDANA, Appellee.

No. 13-89-249-CV.

Court of Appeals of Texas Corpus Christi.

May 31, 1990.

Maria Estella Perez, Brownsville, for appellant.

Laura Elena Saldana, Brownsville, pro se.

Before NYE, C.J., and KENNEDY and SEERDEN, JJ.

OPINION

NYE, Chief Justice.

Appellant, Daniel Saldana, Jr. sued Laura Elena Saldana, his wife and appellee herein, for divorce. The trial court granted the divorce, established conservatorship of the parties' two minor children, and divided the community property. We affirm the judgment of the trial court.

The pertinent issue in this case is whether the land upon which the parties established their home is properly characterized as community property. The record reveals that in August, 1965, appellant's father and mother, Tomasa Saldana, purchased a house in Brownsville, Texas, where they raised their six children. Appellant's father died intestate before the couple fully paid for this property. The mortgage company, upon Tomasa Saldana's completion of the mortgage obligation, issued a warranty deed in October, 1979, and a correction deed in April, 1980. Both documents indicated that appellant's mother, Tomasa Saldana, was the sole owner of the property.

In May 1982, Tomasa Saldana executed a general warranty deed transferring the property to Daniel and Laura Saldana, appellant and appellee herein. The couple then used the realty as collateral to obtain financing for the purchase of a Jim Walters home. They built their new home on the front half of the lot while Tomasa lived in the original home located at the rear of the lot.

Daniel Saldana filed for divorce on January 13, 1987. In his petition, he alleged that Tomasa deeded the property to Daniel and Laura so that they would have the collateral necessary to purchase a home. He alleged that the transfer of this realty into the couple's names was merely a "sham" transaction and that the couple did not pay any consideration for the transfer. Daniel also alleged that the couple held the lot in a resulting trust (a purchase money trust) for Tomasa.

Tomasa Saldana and all of Daniel's brothers and sisters filed a petition in intervention on April 7, 1987, alleging that Daniel and Laura obtained title to the lot for the sole purpose of inducing Jim Walter Homes, Inc. to build a house on the property. They alleged that Tomasa's transfer was neither a gift, nor a sale, nor an advancement on inheritance, but that Daniel and Laura held the land in a purchase money resulting trust for the benefit of the intervenors. The intervenors asked the court to rescind, void, annul, and cancel the Warranty Deed from Tomasa to Daniel and Laura and to not consider the realty as part of the marital estate. The petition also prayed for the divorce court to set aside, as void, and rescind the mechanic's lien between Daniel, Laura, and Jim Walter's Homes and reform the lien, either in law or in equity, "so that the proper parties and intentions be reflected therein."

The intervenors amended their petition in intervention on March 4, 1988. On March 7, 1988, they filed a motion for partial summary judgment regarding title to the property. The divorce court dismissed the entire intervention on October 10, 1988. With this action, the motion for partial summary judgment was also dismissed.

Trial on the merits began on January 20, 1989. The trial court granted the divorce, established child conservatorship, visitation, and support, and divided the marital estate. The court characterized the realty in question as community property and divided it equally between Daniel and Laura. Laura received the front half of the lot with the Jim Walter's home. Daniel received the back half of the lot with the old home in which Tomasa Saldana still lived. Daniel brings four points of error.

By his fourth point of error, appellant complains that the trial court failed to file findings of fact and conclusions of law in accordance with Tex.R.Civ.P. 296. Upon timely notice from either party, the trial court must file a statement indicating its fact findings and legal conclusions with 30 days from the date the judgment is signed. Tex.R.Civ.P. 296, 297. If the trial court fails to file its statement within the 30-day period, the requesting party must file a written complaint within 5 days from the expiration of that 30-day period in order to call the omission to the trial court's attention. Tex.R.Civ.P. 297.

The record indicates that the trial court signed the judgment on May 2, 1989. Appellant timely filed his Request for Findings of Fact and Conclusions of Law on May 9, 1989; thus, the 30-day preparation period expired on June 1, 1989. The trial court failed to submit its statement of findings of fact and conclusions of law by that date. At that time, appellant was then required to file a written reminder to the trial judge within five days, or by June 6, 1989. Tex.R.Civ.P. 297.

Harm is presumed when, after a proper request has been made, a trial court fails to file findings of fact and conclusions of law. Wagner v. Riske, 142 Tex. 337, 178 S.W.2d 117, 119 (1944); Anzaldua v. Anzaldua, 742 S.W.2d 782, 784 (Tex.App.--Corpus Christi 1987, writ denied). In the present case, appellant filed his written reminder on June 8, 1989, two days after the five-day period in which to file a timely reminder. Thus, appellant is precluded from complaining on appeal of the trial court's failure to file its findings and conclusions. Averyt v. Grande, Inc., 717 S.W.2d 891, 895 (Tex.1986); Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 255-56 (Tex.1984); Flowers v. Lavaca County Appraisal Dist., 766 S.W.2d 825, 828 (Tex.App.--Corpus Christi 1989, writ denied); see also National Bugmobiles, Inc. v. Jobi Properties, 773 S.W.2d 616, 617-18 (Tex.App.--Corpus Christi 1989, writ denied). Appellant's fourth point of error is overruled.

By his second point of error, appellant asserts that the trial court erred by characterizing the real property acquired during the marriage as community property. By his third point of error, appellant asserts that the court's division of the property was not just and right, thus constituting an abuse of discretion. When findings of fact and conclusions of law are not properly requested and none are filed, it is implied that the trial court made all the necessary findings to support its judgment. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.1989); In the Interest of W.E.R., 669 S.W.2d 716, 717 (Tex.1984); National Bugmobiles, 773 S.W.2d at 620; Martinez v. Ball 721 S.W.2d 580, 582 (Tex.App.--Corpus Christi 1986, no writ).

Community property consists of the property, other than separate property, acquired by either spouse during marriage. Tex.Fam.Code Ann. § 5.01(b) (Vernon 1975). Separate property includes that property which a spouse owned or claimed before marriage and that which the spouse acquired during marriage by gift, devise, or descent. Tex.Fam.Code Ann. § 5.01(a) (Vernon 1975). Property is characterized as "separate" or "community" at the time of the inception of that title. Inception of title occurs when a party first has 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 (1949); Dawson v. Dawson, 767 S.W.2d 949, 950-51 (Tex.App.--Beaumont 1989, no writ); see also Estate of Hanau v. Hanau, 721 S.W.2d 515, 517 (Tex.App.--Corpus Christi 1986), rev'd on other grounds, 730 S.W.2d 663 (Tex.1986).

A trial court is presumed to have properly exercised its discretion in dividing the fruits of a marriage. Murff v. Murff, 615 S.W.2d 696, 699 (Tex.1981); Bell v. Bell, 513 S.W.2d 20, 22 (Tex.1974); Dewey v. Dewey, 745 S.W.2d 514, 519 (Tex.App.--Corpus Christi 1988, writ denied). In this regard the trial court has wide discretion in dividing the parties' community estate and that division should not be corrected on appeal except when a clear abuse of discretion is shown. Murff, 615 S.W.2d at 698; Mata v. Mata, 710 S.W.2d 756, 760 (Tex.App.--Corpus Christi 1986, no writ); Dewey, 745 S.W.2d at 519.

Appellant asserts that the property is separate property because both parties testified that Tomasa deeded them the property for the sole purpose of purchasing a home. He specifically pleaded that Tomasa's transfer was not a gift; however, during the trial, he first characterized the transfer as a purchase money resulting trust, and then as a gift. ¹ In Hilley v. Hilley, 161 Tex. 569, 342 S.W.2d 565, 569 (1961) the Supreme Court discussed gifts and acquisitions by the community estate saying:

A gift is a transfer of property made voluntarily and gratuitously. When an inter vivos transfer is made to either or both of the spouses during marriage, the separate or community character of the property is determined by looking to the consideration given in exchange for it. Any right, title or interest acquired for a valuable consideration paid out of the community necessarily becomes community property, and this is so whether the transfer be made by some third person.... (emphasis added).

See also Carriere v. Bodungen, 500 S.W.2d 692, 694 (Tex.Civ.App.--Corpus Christi 1973, no writ).

In the present case, the evidence is uncontroverted that Tomasa Saldana conveyed title in the lot by a general warranty deed to her son and daughter-in-law during their marriage. Thus, the trial court had to examine the evidence and determine the nature of the transfer before it could characterize the property as separate or community. Laura testified that she paid Tomasa ten dollars at the time Tomasa executed...