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Alcedo v. Alcedo

Court of Appeals of Texas, Second District, Fort Worth

May 30, 2019

Anthony Alcedo, Appellant
Janet Alcedo, Appellee

          On Appeal from the 233rd District Court Tarrant County, Texas Trial Court No. 233-591171-16

          Before Kerr and Pittman, JJ., and Gonzalez, J. [1]


          Mark T. Pittman Justice.

         The simple question presented by this unfortunately necessary appeal in a divorce case is whether a trial court can, without a plausible basis-ignoring or disregarding the parties' stipulations, admissions, sworn inventories, and uncontested evidence regarding their separate property-unilaterally treat all property as community and proceed to divide all the property as if it were community. Because it is fundamental to our family law jurisprudence that a trial court cannot make such an unsupported determination, for the reasons set forth below, we reverse and remand.


         The circumstances of this case and the underlying divorce proceedings are undisputed. Appellant Anthony Alcedo (Tony) and Janet Alcedo (Janet) were married on June 11, 2005. This was a later-in-life marriage for the couple; Tony was 57 years old and Janet was 42 when they married. Janet and Tony had both been married before; Janet was Tony's third wife and Tony was Janet's second husband. During the underlying proceedings and now on appeal, it was and is agreed or uncontested that both Janet and Tony brought separate property into their marriage.

         Throughout this divorce, filed on February 5, 2016, which should have been relatively straightforward, Janet and Tony continually and consistently asserted that they had extensive separate property. They pled and testified that they had separate property, and neither disputed that the other party had separate property. Indeed, they each submitted sworn inventories and appraisements admitting the other party had separate property. In addition, Janet and Tony submitted separate property documentation proving their separate property, and both filed proposed property divisions as required by Local Rule 4.05(3) of the Tarrant County Family Courts, judicially admitting that the other party had separate property. Tarrant (Tex.) Loc. R. 4.05(3); see, e.g., Gana v. Gana, No. 14-05-00601-CV, 2007 WL 1191904, at *6 (Tex. App.-Houston [14th Dist.] Apr. 24, 2007, no pet.) (mem. op. on reh'g). In fact, at no time during the divorce proceedings did any party dispute or contest the other party's separate property allegations. The only disputed issues before the trial judge at the bench trial on June 29, 2017 were how to divide Janet's retirement account- because it was earned during the marriage-and whether either party had reimbursement claims against the other's separate property.

         Perplexingly, at the conclusion of the divorce proceedings, the trial court issued a letter ruling on August 1, 2017 ("Letter Ruling") that divided all of Tony's and Janet's assets as if they were community property and ignored the parties' agreements, stipulations, and uncontested submissions. Quite flummoxed, Tony filed a motion asking the trial court to reconsider its Letter Ruling. Despite agreeing to or not contesting Tony's separate property throughout the proceedings, Janet, who received the lion's share of Tony's separate property in the Letter Ruling, filed a cursory half-page response in opposition, devoid of legal authority and merely contending, "Just because [Tony] is unhappy with the Court's decisions, does not give rise for the Court to reconsider all the evidence. This is a delay tactic on the part of [Tony], and such a tantrum should not be rewarded."[2]

         At the conclusion of the subsequent hearing on the motion to reconsider its Letter Ruling, the trial court declined to reconsider its ruling and said that neither party had proved up separate property by clear and convincing evidence, stating, "I did not find separate property. . . . I do not find that separate property has been proven by clear and convincing evidence." The trial court then entered a final decree of divorce in accordance with the Letter Ruling without confirming either party's undisputed and uncontested separate property.


         Not surprisingly since Janet was awarded a large percentage of Tony's undisputed separate property, Tony followed with this appeal. He presents three related, overlapping issues challenging the trial court's division of property. In Issue One, he contends that the trial court erred by failing to confirm separate property when the parties stipulated that they had separate property. Similarly, in Issue Three, he contends that the trial court improperly divested him of his separate property. In Issue Two, Tony contends that the trial court abused its discretion by failing to make a just and right division of the marital estate.

         Presumably hoping to keep her windfall, Janet filed a perfunctory response contesting Tony's issues on appeal, just as she did in response to his motion to reconsider the Letter Ruling in the trial court. But she makes no real attempt to distinguish Tony's recitation of the facts or the parties' stipulations and uncontested evidence regarding their separate property. Essentially, Janet argues that this court should ignore the parties' stipulations, agreements, and submissions and the uncontested evidence at the divorce trial and uphold the final decree of divorce because "neither party rebutted the community-property presumption by clear and convincing evidence."[3]

         Because the trial court clearly abused its discretion in ignoring the parties' stipulations and admissions and the uncontested evidence regarding their undisputed separate property, for the reasons set forth below, we reverse and remand this matter for further proceedings.

         I.A Trial Court Has Discretion to Divide the Community Estate But Has No Discretion to Deprive a Spouse ...

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