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Kirkconnell v. Kirkconnell

Court of Appeals of Texas, First District

November 14, 2019

KAMRON KIRKCONNELL, Appellant
v.
GAIL MARIE KIRKCONNELL, Appellee

          On Appeal from the 309th District Court Harris County, Texas, Trial Court Case No. 2018-19630

          Panel consists of Chief Justice Radack and Justices Landau and Hightower.

          MEMORANDUM OPINION

          Sherry Radack Chief Justice.

         Appellant, Kamron Kirkconnell, proceeding pro se, appeals from the trial court's final decree of divorce. In his sole issue, appellant asserts that the trial court's division of the community estate fails to take into account that appellee, Gail Marie Kirkconnell, breached her fiduciary duty to him, committed fraud on the community, and committed waste of the community property.

         We affirm.

         Background

         In 2018, after 33 years of marriage, appellant and appellee each filed a petition for divorce. On July 26, 2018, the trial court issued a temporary order, granting appellee the exclusive use and possession of the marital home, with the exception that appellant, after written notice and agreement with appellee as to the dates and times, was to have access to the house to remove and return equipment that appellant used in his business. The trial court further ordered that neither party was to sell community property without the other's written consent. In the event of such sale, the parties were to agree on the sales price and to divide the proceeds within three days.

         At trial on March 22, 2019, appellee testified that she and appellant had arrived at an agreed distribution of their estate. Their agreement included that appellant was to be awarded the house and that appellee was to be awarded the furniture and contents, with certain exceptions. One exception was that appellant was to be awarded "some of his tools that [were] in the garage" and a "container in the backyard that ha[d] some more of his work paraphernalia." Appellee agreed to vacate the house by April 8, 2019.

         Appellant testified at trial that appellee's testimony accurately represented the terms of their agreement and that their agreement represented a fair and equitable division of their estate.

         At the close of trial, the trial court orally granted the parties a divorce and found that, based on the testimony provided, their agreement represented a just and right division of the property and debt that they acquired during their marriage. The trial court set the matter for entry of judgment on April 12, 2019, noting, "Neither of you will need to appear for that hearing date and your attorneys will circulate an order that reflects the terms of the agreement here. And if it bears all signatures, this Court will sign the order on that day."

         On May 17, 2019, the trial court signed a final decree. In the decree, the trial court ordered that appellee deliver to appellant the "[t]ools remaining in the garage as of March 23, 2019." The copy of the decree in the record before us does not contain appellant's signature or that of his counsel.

         Breach of Fiduciary Duty, Fraud, and Waste

         On appeal, appellant asserts that, "on the day of trial when the agreement was reached it was assumed that all [of his] business and personal property [was] preserved" by the July 2018 temporary order. Once appellant regained possession of the house on April 8, 2019, however, he discovered that his business equipment and tools were missing. He asserts that appellee sold them, in violation of the trial court's temporary order. In his sole issue, appellant argues that the trial court's division of property in the final decree fails to take into account that appellee violated her fiduciary duty to him to preserve the estate, that she committed fraud on the community, and that she committed waste of the community property.

         A. Standard of Review ...


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