Court of Appeals of Texas, Twelfth District, Tyler
IN THE MATTER OF THE MARRIAGE OF STEPHANIE GWINN ARMSTRONG AND RONALD DEAN ARMSTRONG
FROM THE 87TH DISTRICT COURT ANDERSON COUNTY, TEXAS
Worthen, C.J., Hoyle, J., and Neeley, J.
Dean Armstrong appeals the trial court's final decree of
divorce. On appeal, he presents one issue. We modify the
final decree of divorce and, as modified, affirm.
Dean Armstrong and Stephanie Gwinn Armstrong were married on
August 21, 1993. On March 26, 2015, Stephanie filed a first
amended petition for divorce, and Ronald filed a
counterpetition for divorce. Both parties alleged that the
other spouse was guilty of cruel treatment and committed
adultery, and both parties requested that they be awarded a
disproportionate share of the parties' community estate.
a bench trial, the trial court granted the divorce. The trial
court awarded Ronald, as his sole and separate property, the
business known as Warehouse Hardware Enterprises, LLC,
including but not limited to all inventory, cash,
receivables, accounts, goods, and supplies. Further, the
trial court awarded to Stephanie, as her sole and separate
property, "[t]he Warehouse real estate and the Watkins
interest contiguous thereto, " which properties were
described in an exhibit to the divorce decree. This appeal
Standard of Review
decree of divorce, a court shall order a division of the
estate of the parties in a manner that the court deems just
and right, having due regard for the rights of each party.
Tex. Fam. Code Ann. § 7.001 (West 2006). 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); see also
Garza v. Garza, 217 S.W.3d 538, 548 (Tex. App.-San
Antonio 2006, no pet.). A trial court does not abuse its
discretion if there is some evidence of a substantive and
probative character to support the decision. Garza,
217 S.W.3d at 549; Moroch, 174 S.W.3d at 857.
Moreover, we should reverse a court's division of
property only if the error materially affects the court's
just and right division of the property. Henry v.
Henry, 48 S.W.3d 468, 475 (Tex. App.-Houston [14th
Dist.] 2001, no pet.). However, once reversible error
affecting the "just and right" division of the
community estate is found, an appellate court must remand the
entire community estate for a new division. Sheshtawy v.
Sheshtawy, 150 S.W.3d 772, 780 (Tex. App.-San Antonio
2004, pet. denied) (quoting Jacobs v. Jacobs, 687
S.W.2d 731, 733 (Tex. 1985)).
sole issue, Ronald argues that the trial court abused its
discretion by awarding the Warehouse real estate
("Warehouse Property") to Stephanie because it was
not within the trial court's authority. More
specifically, he contends that the "Warehouse
Property" was deeded to the limited liability company
that was awarded to him in the divorce decree. In the
alternative, Ronald argues that the "Warehouse
Property" was held in a partnership between him and his
mother-in-law, Dotie Adams, and was not part of the marital
possessed by either spouse during or on dissolution of
marriage is presumed to be community property. Tex. Fam. Code
Ann. § 3.003(a) (West 2006). Any doubt as to the
character of property should be resolved in favor of the
community estate. Sink v. Sink, 364 S.W.3d 340, 345
(Tex. App.-Dallas 2012, no pet.). The burden of proof
necessary to establish that property is separate property is
clear and convincing evidence. Id. § 3.003(b).
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." Id.
§ 101.007 (West 2014).
"tenancy in common" is a tenancy by two or more
persons, in equal or unequal undivided shares, each person
having an equal right to possess the whole property but no
right of survivorship. See Black's Law
Dictionary 1695 (10th ed. 2014). The question of whether a
partnership exists is primarily a question of fact. Ben
Fitzgerald Realty Co. v. Muller, 846 S.W.2d 110, 120
(Tex. App.-Tyler 1993, writ denied). A
"partnership" is an association of two or more
persons to carry on a business for profit as owners.
See Tex. Bus. Orgs. Code Ann. § 152.051 (b)
(West 2012). Co-ownership of property, regardless of whether
the co-ownership is a joint tenancy, tenancy in common,
tenancy by the entity, joint property, community property, or
part ownership, by itself, does not indicate that a person is
a partner in the business. See id. § 152.052
(b)(2)(A) (West 2012). In determining whether a partnership
was created, we consider several factors, including (1) the
parties' receipt or right to receive a share of profits
of the business; (2) any expression of an intent to be
partners in the business; (3) participation or right to
participate in control of the business; (4) any agreement to
share or sharing losses of the ...