Court of Appeals of Texas, Eighth District, El Paso
Petition for review filed by, 10/23/2014
Appeal from 65th District Court of El Paso County, Texas. (T.C. # 2009CM2794).
Before McClure, C.J., Rivera, and Rodriguez, JJ.
ANN CRAWFORD McCLURE, Chief Justice.
Guillermo Rivera appeals from a final decree of divorce alleging that the trial court mischaracterized his separate property as community property and divested him of his interest in the real estate in violation of constitutional and statutory mandates. Because we agree, we reverse and remand.
Even a cold reading of the reporter's record indicates that the trial was contentious and that Husband was at best an uncooperative witness. Because the outcome of this case is fact intensive, we recount the evidence in some detail.
Husband filed his original petition for divorce on April 20, 2009 and pled, rather generically:
10. Separate Property
Petitioner owns certain separate property that is not part of the community estate of the parties, and Petitioner requests the Court to confirm that separate property as Petitioner's separate property and estate.
Nine days later, Wife filed her original counter-petition for divorce and asked the court divide the community estate disproportionately in her favor. She amended her petition on July 22, 2010 and sought reimbursement for funds expended by the community estate for payment of unsecured liabilities of Husband's separate estate and reimbursement to her separate estate for funds paid toward community indebtedness. More apropos to our review, she alleged:
The community estate has expended funds or assets to make capital improvements on property claimed by [Husband] as separate property, giving rise to a claim for reimbursement in favor of the community estate and against [Husband's] separate estate. [Wife] requests the Court to reimburse the community estate for these expenditures, and, if necessary, impose an equitable lien on the property claimed by [Husband] as separate property to secure the claim.
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[Wife] is or was obligated on a debt secured by a lien on property claimed by [Husband] as separate property. The community estate has expended funds or assets for payment of that debt. Those expenditures have resulted in the reduction of the principal of that debt, giving rise to a claim for reimbursement in favor of the community estate and against [Husband's] separate estate. [Wife] requests the Court to grant [her] claim for reimbursement, order a division of the claim to [her], and, if necessary, impose an equitable lien on the property claimed by [Husband] as separate estate to secure the claim.
On September 3, 2009, Husband's attorney filed a request for admissions in which he asked Wife to admit or deny (1) that the property was purchased by Husband before marriage; and (2) that the property was purchased by Husband in 1981. Wife objected to the first inquiry because it asked the responding party " to admit to conclusions, opinions and statements of subjective intent." She denied that the
property was purchased in 1981.
The Inventories and Proposed Divisions
Wife filed her inventory on November 4, 2010 and her proposed division of property on May 2, 2011. Attached to her proposed division is a copy of Husband's inventory which he signed on September 30, 2010, but did not file with the trial court clerk. Husband's inventory identifies the real estate in issue as community property and states that he owns no separate property. Wife references that characterization in her proposed division in a section entitled " Economic Contribution/Reimbursement of Claims/Off Set." In the next section, she avers:
[Husband] admitted that the whole property, land and structure at 147 Sun Park was the homestead of the community property under Texas Property Code 41.005 and article XVI.50 of the Texas Constitution. Husband [sic] claim to separate property is waived.
Furthermore, when [Husband] asked [sic] if he could not identify what proportion or part of the loan belonged to the land and or to the structure he couldn't because it was so commingled that it was impossible to trace, the presumption is that the real estate and structure is community property, any doubt as to the characterized [sic] of property should be resolve [sic] in favor of the community estate.
Alternatively, she sought reimbursement for enhancement and then proposed that Husband's claim of separate property for the parcel of land " with a value of about $12,000.00 should be off set in favor of [Wife]" for Husband's wasting of assets.
Husband filed his proposed division of property on May 10, 2011. He alleged that the home and property at 147 Sun Park were separate property " with minimum reimbursement for wife" . This conclusion was based on the following facts which he outlined:
o Property purchased by Husband in 1982 ($12,000)
o Construction on home began in March 1983
o Warehouse built in 1983 ($22,000)
o Two mobile homes added to property in 1984 ($18,000)
o Storage facility built in 1985 ($5,000)
o Foundation for house poured in 1985 ($12,000 plus $18,000 in materials)
o Married Wife in 1992
o House valued at $140,000
Such was the procedural backdrop for the trial.
Trial to the Bench
At trial, Husband introduced into evidence without objection a real estate lien note dated January 7, 1983, whereby Husband purchased the land at 147 Sun Park for $12,000. By its terms, mortgage payments were due on the 24th of each month beginning February 24, 1983. The note was paid in full and the lien released on March 23, 1992. Husband testified that he began living with Wife in April 1992. They were ceremonially married on June 12, 2004. During the marriage, a 3360 square foot home was built on the property. It was appraised at $170,000 in 2008 and the couple filed a designation of homestead on September 18, 2008.
Husband was cross examined concerning his inventory which characterized the property as belonging to the community estate and identifying no separate property. Not surprisingly, there was a bit of a row between the attorneys.
[Mr. Chacon (counsel for Husband)] Judge, if it's listed as community property, Judge, ...