Tate v. Tate

• Decision Date: 03 August 2000
• Docket Number: No. 08-99-00006-CV,08-99-00006-CV
• Citation: 55 S.W.3d 1
• Parties: (Tex.App.--El Paso 2000) PERCY TATE, Appellant, v. PATSY BRASHIER TATE, Appellee
• Court: Texas Court of Appeals

Page 1

55 S.W.3d 1 (Tex.App.--El Paso 2000)

PERCY TATE, Appellant, v. PATSY BRASHIER TATE, Appellee.

No. 08-99-00006-CV

COURT OF APPEALS OF TEXAS, EL PASO

August 3, 2000

Appeal from 318th District Court of Midland County, Texas (TC# FM32,864) [Copyrighted Material Omitted] Before Panel No. 2 Barajas, C.J., McClure, and Chew, JJ.

O P I N I O N

ANN CRAWFORD McClure, Justice

In this appeal from a final decree of divorce, the only issue before us is whether certain assets were properly characterized as the separate property of Patsy Brashier Tate. We affirm.

FACTUAL SUMMARY

Patsy and Percy Tate were the only witnesses to testify during their divorce proceeding which was tried to the bench. Because the Tates have no minor children, the only issue presented was the division of marital property. Percy disputes the trial court's order confirming that certain assets were Patsy's separate property. The assets in question include a brokerage account at Salomon Smith Barney and $8,000 in travelers' checks.

The record reflects that the brokerage account was originally opened at Shearson Lehman Brothers with the funds of Patsy's father, John Brashier. Patsy helped her father open the account and her name appeared on the account as a joint tenant with the right of survivorship. In September 1991, Mr. Brashier died and Patsy became the sole owner of the account. Sometime between April 30, 1993 and August 28, 1994, Patsy became concerned about the fact that the account was in her name only. She obtained a signature card and had Percy sign it. Thereafter, Percy's name appeared on the account as a joint tenant with right of survivorship. Patsy testified that she decided to add Percy as a second signatory so that he could manage the account in the event she became incapacitated, or so that he would inherit it if she were to die. She and Percy did not discuss the matter and she did not intend to make a gift to Percy.

The record contains seven monthly statements from the brokerage account. The earliest statement available reflects that the original Shearson Lehman Brothers account had a net value of $101,631.69 on February 29, 1992. At that time, the names on the account were John Brashier, deceased, and Patsy Brashier Tate. By the time of trial, the account had been transferred from Shearson Lehman Brothers to Salomon Smith Barney, and had a net value of $50,172.60. After Mr. Brashier's death, Patsy received and reviewed all of the monthly statements, and she was the only one who wrote checks on the account. Patsy wrote checks to cover her living expenses, taxes, insurance, and gifts she bought her children and grandchildren. She also wrote a check for $9,000; $1,000 was taken in the form of cash, and the other $8,000 put into travelers' checks. Neither party made any deposits of community funds into the brokerage account.¹ On appeal, Percy complains that the evidence is insufficient to support a finding that the brokerage account and travelers' checks are Patsy's separate property because she failed to trace the assets she inherited from her father.

CHARACTERIZATION OF ASSETS

This appeal proceeds without the benefit of findings of facts and conclusions of law. We therefore presume that the trial court made all necessary findings to support its judgment,² and we will affirm based upon any legal theory finding support in the evidence. Wilkerson v. Wilkerson, 992 S.W.2d 719, 722 (Tex.App.--Austin 1999, no pet.).

The Presumption

All property on hand at the dissolution of marriage is presumed to be community property. Tex.Fam.Code Ann. § 3.003(a)(Vernon 1998). It is a rebuttable presumption, requiring a spouse claiming assets as separate property to establish their separate character by clear and convincing evidence. Tex.Fam.Code Ann. § 3.003(b). Property owned before marriage, or acquired during marriage by gift, devise or descent, is separate property. Tex.Fam.Code Ann. § 3.001. Community property consists of all property, other than separate property, acquired by either spouse during marriage. Tex.Fam.Code Ann. § 3.002.

Standards of Review

Legal Sufficiency

A legal sufficiency challenge to a fact-finding requiring clear and convincing evidence does not mandate an alteration in the standard of review. In re B.R., 113, 118-19 (Tex.App.--El Paso 1997, no pet.). A "no evidence" or legal insufficiency point is a question of law which challenges the legal sufficiency of the evidence to support a particular fact finding. There are basically two separate "no evidence" claims. When the party having the burden of proof suffers an unfavorable finding, the point of error challenging the legal sufficiency of the evidence should be that the fact or issue was established as "a matter of law." When the party without the burden of proof suffers an unfavorable finding, the challenge on appeal is one of "no evidence to support the finding." See Kimsey v. Kimsey, 965 S.W.2d 690, 699-700 (Tex.App.--El Paso 1998, pet. denied). The latter applies here. In considering a legal sufficiency or "no evidence" point, an appellate court considers only the evidence which tends to support the challenged finding and disregards all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); Parallax Corp., N.V. v. City of El Paso, 910 S.W.2d 86, 89 (Tex.App.--El Paso 1995, writ denied). If any probative evidence supports the fact finder's determination, it must be upheld. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (Tex. 1951); Kimsey, 965 S.W.2d at 700; Parallax Corp., 910 S.W.2d at 89.

Factual Sufficiency

"Insufficient evidence" or factual insufficiency involves a finding that is so against the great weight and preponderance of the evidence as to be manifestly wrong. When the party having the burden of proof complains of an unfavorable finding, the point of error should allege that the findings "are against the great weight and preponderance of the evidence." The "insufficient evidence" point of error is appropriate only when the party without the burden of proof on an issue complains of the court's findings. Kimsey, 965 S.W.2d at 700; Neily v. Aaron, 724 S.W.2d 908, 913 (Tex.App.--Fort Worth 1987, no writ). Once again, the latter applies here.

When the burden of proof at trial is by clear and convincing evidence, we apply a higher standard of factual sufficiency review. In re B.R., 950 S.W.2d at 118-19. After considering all of the evidence, we must determine not whether the trier of fact could reasonably conclude that the existence of a fact is more probable than not, as in ordinary civil cases, but whether the trier of fact could reasonably conclude that the existence of the fact is highly probable. Under this standard, we must consider whether the evidence was sufficient to produce in the mind of the fact finder a firm belief or conviction as to the truth of the allegations sought to be established. We will sustain an insufficient evidence point of error only if the fact finder could not have reasonably found the fact was established by clear and convincing evidence. In re B.R., 950 S.W.2d at 119; see also, Neiswander v. Bailey, 645 S.W.2d 835, 835-36 (Tex.App.--Dallas 1982, no writ); Mezick v. State, 920 S.W.2d 427, 430 (Tex.App.--Houston [1st Dist.] 1996, no writ); In the Interest of P.S. and L.S., 766 S.W.2d 833, 835 (Tex.App.--Houston [1st Dist.] 1989, no writ).

Even applying the heightened standard of review, a factual sufficiency point requires us to examine all of the evidence in determining whether the finding in question is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re B.R., 950 S.W.2d at 120-21; Parallax Corp., 910 S.W.2d at 89; Tseo v. Midland American Bank, 893 S.W.2d 23, 25 (Tex.App.--El Paso 1994, writ denied). The reviewing court cannot substitute its conclusions for those of the fact finder. If sufficient competent evidence of probative force exists to support the finding, it must be sustained. In re B.R., 950 S.W.2d at 121; Parrallax Corp., 910 S.W.2d at 89; Tseo, 893 S.W.2d at 26; Texas Tech University Health Sciences Center v. Apodaca, 876 S.W.2d 402, 412 (Tex.App.--El Paso 1994, writ denied). We may not interfere with the fact finder's resolution of conflicts in the evidence or pass on the weight or credibility of the witnesses' testimony. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 796 (1951); Southwest Airlines Co. v. Jaeger, 867 S.W.2d 824, 829-30 (Tex.App.--El Paso 1993, writ denied). Where conflicting evidence is present, the fact finder's determination on such matters is generally regarded as conclusive. In re B.R., 950 S.W.2d at 121; Parallax Corp., 910 S.W.2d at 90.

Abuse of Discretion

An appeal directed toward demonstrating an abuse of discretion is one of the tougher appellate propositions. Most of the appealable issues in a family law case are evaluated against an abuse of discretion standard, be it the issue of property division incident to divorce or partition, conservatorship, visitation, or child support. While the appellant may challenge the sufficiency of the evidence to support findings of fact, in most circumstances, that is not enough. If, for example, an appellant is challenging the sufficiency of the evidence to support the court's valuation of a particular asset, he must also contend that the erroneous valuation caused the court to abuse its discretion in the overall division of the community estate.³ Here, however, we are asked to review an alleged characterization error. We must determine not only whether the trial court's finding of separate property is supported by clear and convincing evidence, we must also determine whether the characterization error, if established, caused the trial court to abuse its discretion. These two prongs require first, a showing of error, and second, a showing that the error was harmful. Tex.R.App.P. 44.1(a)(1)(no judgment may be reversed on appeal on the ground...