Wells v. Wells

• Decision Date: 27 March 2008
• Docket Number: No. 11-06-00269-CV.,11-06-00269-CV.
• Citation: 251 S.W.3d 834
• Parties: Richard Harrison WELLS, Appellant v. Jacqueline Kay WELLS, Appellee.
• Court: Texas Court of Appeals

251 S.W.3d 834

Richard Harrison WELLS, Appellant v. Jacqueline Kay WELLS, Appellee.

No. 11-06-00269-CV.

Court of Appeals of Texas, Eastland.

March 27, 2008.

Deborah Smith McClure, Deborah Smith McClure, P.C., Attorney At Law, Amarillo, Stephen L. Johnson, Attorney At Law, Lubbock, TX, for appellant.

Donald M. Hunt, Lawrence M. Doss, Mullin Hoard & Brown, L.L.P., Attorneys At Law, Lubbock, William E. Fulbright, Fulbright & Casselberry, Attorney At Law, Lamesa, TX, for appellee.

Panel consists of WRIGHT, C.J., McCALL, J., and STRANGE, J.

OPINION

RICK STRANGE, Justice.

This is a marital property distribution case. Following a bench trial, the trial court entered a divorce decree, confirmed that certain property was Jacqueline Kay Wells's separate property, and divided the community property and debts between the parties. Richard Harrison Wells filed this appeal complaining of the trial court's characterization of twelve items of farming equipment as Jacqueline's separate property and of the division of the community property. Finding no error, we affirm.

I. Background Facts

Jacqueline initiated divorce proceedings. Richard responded by requesting a disproportionate share of the marital assets. Jacqueline amended her petition to include allegations of fault in the breakup of the marriage and fraud on the community and to request an unequal distribution in her favor. The trial court conducted a bench trial and orally rendered judgment granting a divorce and awarding Jacqueline a disproportionate share of the marital assets. The trial court subsequently signed a divorce decree. The decree's division of the marital estate section included the following recitation:

The Court further finds that Respondent has threatened Petitioner with bodily harm at times when he was not out of control and when he knew what he was saying, that Respondent has threatened to kill Petitioner, that Respondent is not an innocent spouse, that Respondent's conduct forced Petitioner to leave the family home and land, that Petitioner is the innocent spouse, that Petitioner should receive a disproportionately large portion of the community estate of Petitioner and Respondent and that the disproportionate division of such community estate, with the assets and liabilities awarded to petitioner in this decree, is proper, just, fair and reasonable under the facts of this case and applicable law.

Richard filed a motion for new trial. Richard challenged the trial court's property division and also argued that a new trial was warranted because of newly discovered evidence.¹ Richard's motion was overruled by operation of law.

II. Issues

Richard challenges the trial court's property division with four issues. Richard contends that the trial court abused its discretion by making a grossly disproportionate award of the marital assets to Jacqueline, that the trial court abused its discretion by characterizing community assets as separate property, that the trial court abused its discretion in valuing the property of the marital estate, and that there are inherent conflicts in the trial court's judgment.

III. Standard of Review

We review a trial court's division of property under an abuse of discretion standard. Moroch v. Collins, 174 S.W.3d 849, 857 (Tex.App.-Dallas 2005, pet. denied). A trial court abuses its discretion when it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). The mere fact that a trial court may decide a matter within its discretionary authority in a different manner than an appellate court in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Sw. Bell Tel. Co. v. Johnson, 389 S.W.2d 645, 648 (Tex.1965).

When an appellant challenges the trial court's order on legal or factual sufficiency grounds, we do not treat these as independent grounds of reversible error but, instead, consider them as factors relevant to our assessment of whether the trial court abused its discretion. Boyd v. Boyd, 131 S.W.3d 605, 611 (Tex.App.-Fort Worth 2004, no pet.). To determine whether the trial court abused its discretion because the evidence is legally or factually insufficient, we consider whether the court (1) had sufficient evidence upon which to exercise its discretion and (2) erred in the application of that discretion. Lindsey v. Lindsey, 965 S.W.2d 589, 592 (Tex.App.-El Paso 1998, no pet.).

Richard did not request findings of fact. We must, therefore, presume that the trial court made all the necessary findings to support its judgment. Pharo v. Chambers County, Tex., 922 S.W.2d 945, 948 (Tex.1996). If the trial court's implied findings are supported by the evidence, we must uphold the judgment on any theory of law applicable to the case. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). In determining whether some evidence supports the judgment and implied findings of fact, we consider only that evidence most favorable to the issue and disregard entirely any contrary evidence. Id.

When the burden of proof at trial is by clear and convincing evidence, we apply a higher standard of legal sufficiency review. See In re J.F.C., 96 S.W.3d 256, 265-66 (Tex.2002). Clear and convincing evidence is that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. TEX. FAM.CODE ANN. § 101.007 (Vernon 2002). This intermediate standard falls between the preponderance standard of civil proceedings and the reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d 846, 847 (Tex.1980). While the proof must weigh heavier than merely the greater weight of the credible evidence, there is no requirement that the evidence be unequivocal or undisputed. Boyd, 131 S.W.3d at 611.

IV. Analysis

A. Jacqueline's Separate Property.

Richard argues that the trial court abused its discretion when it characterized twelve items of farming equipment as Jacqueline's separate property because she failed to produce clear and convincing evidence to support this characterization. Jacqueline responds that the evidence established that the farming equipment is separate property because it was gifted to her by her parents.

All property on hand at the dissolution of marriage is presumed to be community property. TEX. FAM.CODE ANN. § 3.003(a) (Vernon 2006). It is a rebuttable presumption requiring a spouse claiming assets as separate property to establish its separate character by clear and convincing evidence. TEX. FAM.CODE ANN. § 3.003(b) (Vernon 2006). The characterization of property as community or separate is determined by the inception of title. Boyd, 131 S.W.3d at 612.

Property acquired during marriage by gift is separate property. TEX. FAM.CODE ANN. § 3.001(2) (Vernon 2006). A gift is a voluntary transfer of property to another made gratuitously and without consideration. Hilley v. Hilley, 161 Tex. 569, 342 S.W.2d 565, 569 (1961). Three elements are required to establish the existence of a gift: (1) intent to make a gift; (2) delivery of the property; and (3) acceptance of the property. Long v. Long, 234 S.W.3d 34, 40 (Tex.App.-El Paso 2007, pet. denied). The intent must exist at the time of the transfer, not at the time of a subsequent divorce. Id.

To prevail on a mischaracterization challenge, Richard must establish not only that the trial court erred but that this error caused sufficient harm to constitute an abuse of discretion. Long, 234 S.W.3d at 37; see also Vandiver v. Vandiver, 4 S.W.3d 300, 302 (Tex.App.-Corpus Christi 1999, pet. denied) (mischaracterization of community property as separate property is not reversible unless the mischaracterization had more than a de minimis effect on the just and right division).

The lack of valuation findings prevents us from determining what impact the trial court's characterization had on the total distribution of assets; and, on that basis alone, we must affirm the trial court.² Richard, however, has also failed to establish that the trial court's characterization was in error. Jacqueline produced a list of twelve items of farming equipment that she claimed was her separate property. Richard agreed that these twelve items were a gift from Jacqueline's parents. The dispute was whether the gift was made to Jacqueline or to both parties.

Jacqueline's mother testified that, when her husband retired, he gave part of his farming equipment to Jacqueline and part to a son and sold part to Jacqueline and Richard. She testified that the gift was not to Jacqueline and Richard but to Jacqueline alone. She identified the twelve items of equipment in dispute as the equipment that her husband had given to Jacqueline. Richard argues that this testimony is insufficient to rebut the community property presumption, citing the general rule that mere testimony that property is separate without any tracing of the property is insufficient.³

The general rule is inapplicable because there was no need to trace assets. There was no dispute about what items of equipment were gifted, and there was no claim that any of this equipment had been sold, traded, or otherwise converted into any other asset. See Cockerham v. Cockerham, 527 S.W.2d 162, 168 (Tex.1975) (separate property will retain its character through a series of exchanges so long as the party asserting separate ownership can trace the assets on hand during the marriage back to property that is separate in character). The mere fact that this equipment may have been used in connection with other equipment or to help facilitate the production of crops whose proceeds were community property would not alter the character of the equipment. The trial court had sufficient evidence to conclude that the twelve pieces of equipment were gifted to Jacqueline and, therefore, did not abuse its discretion by confirming that they were Jacqueline's separate...