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Clark v. Clark

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

April 20, 2017


         On appeal from the 94th District Court of Nueces County, Texas.

          Before Chief Justice Valdez and Justices Rodriguez and Hinojosa


          Rogelio Valdez Chief Justice

         Appellant, Donna Kahla Clark, appeals the trial court's divorce decree. By two issues, appellant contends that the trial court improperly awarded certain property to appellee, Curtis Clark. We affirm.[1]

         I. Standard of Review and Applicable Law

         We review property division incident to divorce under an abuse of discretion standard. Garcia v. Garcia, 170 S.W.3d 644, 648 (Tex. App.-El Paso 2005, no pet.). A trial court abuses its discretion if it acts without reference to any guiding rules and principles. Id. at 649; Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Under the abuse of discretion standard applied in family law cases, legal and factual sufficiency of the evidence are not independent grounds of error, but are relevant factors for determining whether the trial court abused its discretion. Boyd v. Boyd, 131 S.W.3d 605, 611 (Tex. App.-Fort Worth 2004, no pet.).

         We presume that property possessed by either spouse during or on dissolution of marriage is community property unless clear and convincing evidence is presented to the contrary. See Tex. Fam. Code Ann. § 3.003 (West, Westlaw through 2015 R.S.); Warriner v. Warriner, 394 S.W.3d 240, 247 (Tex. App.-El Paso 2012, no pet.). "'Clear and convincing evidence' means the measure or degree of proof that 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." In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002) (quoting Tex. Fam. Code Ann. § 101.007) (West, Westlaw through 2015 R.S.)).

         A spouse's separate property consists of property owned or claimed by a spouse before marriage or acquired after marriage by gift, devise, or descent. Tex. Const. art. XVI, § 15; Tex. Fam. Code Ann. § 3.001(1)(2) (West, Westlaw through 2015 R.S.). A trial court has no authority to divest one spouse of separate property and award it to the other spouse. Cameron v. Cameron, 641 S.W.2d 210, 215-16 (Tex. 1982). A spouse must establish the separate origin of the property by showing the time and means by which the spouse originally obtained possession of the property. Warriner, 394 S.W.3d at 247.

         II. The Cullen Frost Bank Stock

         By her first issue, appellant contends that stock from Cullen Frost Bank (the Cullen Bank stock) that appellee transferred to her during the marriage constituted her separate property because it was a gift.

         At trial, appellee testified that in 1996, the couple filed for divorce. During the 1996 divorce, appellee, pursuant to a divorce settlement agreement, transferred the Cullen Bank stock to appellant. According to appellant and appellee, the settlement agreement was contingent on the divorce becoming final. However, the couple decided to remain in the marriage, and the 1996 divorce proceeding was dismissed with prejudice. Appellee stated that he never intended to gift the Cullen Bank stock to appellant and that he instead transferred it to her in order to comply with the 1996 divorce settlement agreement. Appellant testified that when the couple filed the 1996 divorce, their attorneys asked the couple to sign a settlement agreement prior to finalizing the divorce so that the couple "could just focus on the custody part" of the proceeding. Specifically appellant testified as follows:

So we agreed to do that. So at-the agreement from what I can remember and recall is that I was taking the condo and it had a balance-I mean, it had a loan on it. I was taking the condo. Curtis owed $70, 000 in child support. He had quit paying a long, long time ago when the divorce had been going on for three-and-a-half years and he owed some money. So he transferred $70, 000 worth of stock to me for the child support.[2]

         Appellant's argument on appeal is premised on a finding that the Cullen Bank stock was a gift.[3] Roberts v. Roberts, 999 S.W.2d 424, 431 (Tex. App.-El Paso 1999, no pet.) ("A gift is a voluntary transfer of property to another made gratuitously and without consideration."). Appellant does not dispute that the Cullen Bank stock was appellee's separate property at its inception prior to the 1996 divorce settlement agreement; however, citing Story v. Marshall, she argues that we must presume that the Cullen Bank stock was a gift because appellee gave it to her during the marriage. 24 Tex. 305 (1859) (holding that a deed from a husband to a wife creates a presumption that the property given is the wife's separate property); see also Pearson v. Pearson, No. 03-13-00802- CV, 2016 WL 240683, at *5 (Tex. App.-Austin Jan. 15, 2016, no pet.) (mem. op.) ("Interspousal transfers are presumed to be a gift and, thus, the separate property of the recipient spouse.").

         No one testified that the conveyance of the Cullen Bank stock was intended as a gift to appellant. See Pankhurst v. Weitinger & Tucker, 850 S.W.2d 726, 730 (Tex. App.- Corpus Christi 1993, writ. denied) ("A gift is a transfer of property made voluntarily and gratuitously" and requires "an intent to make a gift."). In fact, appellee testified that he did not intend it as a gift. Appellant points to no evidence supporting a finding that the Cullen Bank stock was a gift and relies only on the presumption that an inter-spousal conveyance is a gift. However, that presumption can be rebutted. Roberts v. Roberts, 999 S.W.2d 424, 431 (Tex. App.-El Paso 1999, no pet.) (explaining that an inter-spousal gift creates a rebuttable presumption that the property is the grantee's separate property; however, if the conveyance contains recitations that the grant is the grantee's separate property then the presumption of a gift cannot be rebutted with parol evidence unless there a showing of fraud, accident, or mistake).[4] And, after reviewing the record in the light most favorable to the trial court's ruling, appellant and appellee agreed that the transfer ...

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