in the Matter of the Marriage of Herman Tyeskie and Inger Tyeskie , 558 S.W.3d 719 ( 2018 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-18-00020-CV
IN THE MATTER OF THE MARRIAGE OF
HERMAN TYESKIE AND INGER TYESKIE
On Appeal from the 307th District Court
Gregg County, Texas
Trial Court No. 2015-1636-DR
Before Morriss, C.J., Moseley and Burgess, JJ.
Opinion by Justice Moseley
OPINION
Herman and Inger Tyeskie were married on January 3, 2009. In 2015, Herman petitioned
for divorce, prompting a counterpetition for the same filed by Inger. In her counterpetition, Inger
filed a claim for reimbursement to her separate estate for assets expended by it for the benefit of
the community estate. The trial court entered a final decree of divorce and divided the community
estate. On appeal, Inger argues (1) that the trial court erred in failing to credit $52,576.21 to her
separate estate for the down payment made on the marital home and (2) that the trial court erred
in entering a turnover order without providing notice, which violated her constitutional right of
due process.
We find that evidence established that the down payment for the marital home, which was
acquired during the marriage, came from a bank account containing comingled funds. Because
Inger failed to trace those funds to her separate property by clear and convincing evidence, the trial
court properly concluded that the down payment was made by the community estate. We further
overrule Inger’s second point of error because nothing required the trial court to provide her with
notice prior to entry of the post-judgment turnover order and Inger failed to preserve her complaint
that she was entitled to such notice. Accordingly, we affirm the trial court’s judgment.
I. Factual and Procedural Background
At the final hearing, Herman sought a fifty percent interest in (1) the equity in the marital
home and (2) community funds that Inger had deposited into her savings account, withdrawn, and
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gifted her adult child from another marriage.1 With respect to the marital home purchased in 2013,
both parties agreed that its value was $245,900.00 and that a $52,576.21 down payment was made
to acquire the home. Herman testified that the down payment came from Inger’s savings account,
which had $162,168.61 before their marriage.
Although Herman acknowledged that the balance in Inger’s savings account before
marriage was her separate property, he testified that by the time the home was purchased in 2013,
Inger had comingled community property funds into the account and that the down payment had
come from the community funds. Herman explained that Inger worked for the United States Postal
Service, deposited checks earned as a result of her employment into her checking account, and
then transferred funds from her checking account into her savings account. The bank records
demonstrated that the withdrawal for the down payment was made in November 2013 and that the
bank balance before the withdrawal was $282,847.69. Thus, Herman testified that Inger had
deposited $90,000.00 to $120,000.00 of community funds by 2013 into her savings account from
income earned after the marriage.2 Herman also stated that he gave Inger cash with which to pay
most of the utilities associated with the use of the marital home in addition to one-half of the
mortgage payment. He clarified that he was seeking fifty percent of the equity in the home. When
questioned, Inger admitted that Herman was entitled to one-half equity in the home.
Next, Herman testified that Inger withdrew $299,681.93 of community funds on June 5,
2015, from her BancorpSouth checking account and that those funds, with interest, totaled
1
Herman testified that he and Inger both owned homes prior to the marriage and stipulated that those homes were
separate property.
2
Records from Inger’s Citizen’s Bank savings account were admitted into evidence to support Herman’s claims.
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$137,513.32. Inger acknowledged that the funds in the account were community funds, but
disagreed with the contention that Herman was entitled to share in the income she had earned from
work during their marriage. With respect to these funds, Herman testified that Inger had given her
adult daughter a $300,000.00 cashier’s check using those funds. According to Herman, Inger’s
former attorney requested that she place $300,000.00 in his trust account, but she did not comply.
When Herman requested an accounting of the $300,000.00, Inger’s counsel responded, “As I
previously advised, Mrs. Tyeskie did account for the cashier’s check. She gave it to her daughter,
period.” Herman sought one-half of those community funds.
Inger was served with a subpoena requesting documentation and bank statements related
to the $300,000.00. Inger acknowledged receipt of the subpoena, but failed to bring those records
to the final hearing. Her testimony further established that Inger lives with her adult daughter,
answered the door when a process server attempted to serve a subpoena on her daughter, claimed
that her daughter was not at the home, failed to give her daughter the process server’s contact
information as requested, and instructed her daughter not to attend the final hearing. Inger further
admitted that the funds were community property, decided to give them to her daughter anyway,
and failed to report the gift to the Internal Revenue Service.3
In a letter dated September 19, 2017, the trial court ordered that the marital residence be
placed on the market for sale and indicated that it would enter a judgment in Herman’s favor. In
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The record also demonstrated that the parties attempted to resolve conflicts during the pendency of the divorce by
entering into a Rule 11 agreement. Herman testified that Inger violated that agreement by, among other things,
ransacking his belongings, stealing his truck and failing to return its contents, assaulting him with an iron that caused
substantial burns to the arm, taking his guns, threatening to kill him, and causing thousands of dollars worth of damage
to his car by beating it with a poker.
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its January 2, 2018, final judgment, the trial court awarded, among other things, “[t]he sum of
sixty‐eight thousand seven hundred fifty‐two dollars and sixty‐six cents ($68,752.66) representing
[Herman]’s fifty percent (50%) of the community interest in the savings account . . . at Citizen’s
Bank, Longview, Texas[,] that was fraudulently removed by Respondent, Inger Tyeskie.” The
trial court determined that the marital home was community property, ordered that it be placed for
sale, and required the net sales proceeds to be equally distributed to Herman and Inger, provided
that Inger had already satisfied the judgment entered in Herman’s favor for the $68,752.66. The
order gave Inger fifteen days in which to either pay the judgment or deliver a promissory note and
security agreement to Herman cementing her obligation.
Inger did not comply with the trial court’s orders contained in the divorce decree. As a
result, on January 19, 2018, the trial court entered a turnover order and appointed a receiver to take
possession of and sell Inger’s leviable assets. Inger was ordered to “turnover to the Reciever within
five (5) days from [her] receipt of a copy of [the] Order” bank statements, tax returns, credit
applications, cashier’s checks representing gifts or payments to third parties, all documents and
financial records requested by the receiver, and all “all checks, cash, securities . . . promissory
notes, documents of title, and contracts” owned by her, which constituted leviable, non-exempt
property. The order was delivered to Inger on January 24.
Again, Inger did not comply with the trial court’s turnover order. On January 30, the
receiver filed a motion for enforcement by contempt. On the same day, Inger was served with an
order requiring her appearance in court. After she had fired her previous attorney, Inger appeared
in court on February 22, 2018, and requested that the trial court appoint her counsel to assist with
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the proceedings. The trial court determined that Inger was not indigent and warned her of the
consequences of failing to comply with its orders. On February 26, the receiver served on Inger a
motion compelling production of the documents referenced in the trial court’s turnover order. A
subpoena issued to Inger on February 27 for a March 8 hearing was served on Inger on March 2.
Although the subpoena informed Inger that her failure to appear would result in the trial court
holding her in contempt of court, Inger’s return of service contained a handwritten note indicating
that she would refuse to appear. On March 7, the trial court signed an order requiring Inger to sign
a real estate listing agreement and cooperate with the listing agent or face contempt of court.
Inger appeared at the March 8 hearing and provided testimony demonstrating that she did
not comply with the court’s orders. The evidence also showed that Inger endorsed a $299,681.93
cashier’s check made payable to her that was deposited into her brother-in law’s BancorpSouth
account. When asked about the transaction, Inger “ple[d] the fifth.” Inger had also deeded
property to a family member without notifying the receiver.
On March 9, 2018, the trial court held Inger in contempt of court and ordered her
commitment to county jail, but suspended the sentence on certain terms and conditions. The trial
court sent notice of a hearing on the receiver’s filing of the final accounting and motion to disburse
funds therefrom. The trial court approved the final accounting on March 22. Inger filed her notice
of appeal on March 29, 2018.
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II. The Trial Court Properly Concluded that the Down Payment Was Made From
Community Funds
In her first point of error on appeal, Inger argues that the trial court erred in failing to credit
the down payment for the marital home to her. We conclude that Inger failed to meet her burden
to prove that the down payment came from separate property funds.
“Community property consists of the property, other than separate property, acquired by
either spouse during marriage.” TEX. FAM. CODE ANN. § 3.002 (West 2006). “Property 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). “The degree of proof necessary to establish that
property is separate property is clear and convincing evidence.” TEX. FAM. CODE ANN. § 3.003(b).
“A party seeking to rebut the community presumption must trace the assets on hand during
the marriage back to property that is separate in character.” In re Marriage of Born, No. 06-08-
00066-CV, 2009 WL 1010876, at *2 (Tex. App.—Texarkana Apr. 16, 2009, no pet.) (mem. op.)
(citing Cockerham v. Cockerham, 527 S.W.2d 162, 167 (Tex. 1975); Boyd v. Boyd, 131 S.W.3d
605, 612 (Tex. App.—Fort Worth 2004, no pet.)). “Tracing involves establishing the separate
origin of the property through evidence showing the time and means by which the spouse originally
obtained possession of the property.” Id. (citing Boyd, 131 S.W.3d at 612). “The burden of tracing
is a difficult, but not impossible, burden to sustain.” Id. “We are to resolve any doubt as to the
character of property in favor of the community estate.” Id.
“Income earned during marriage is community property.” Id. at *3 (citing Bakken v.
Bakken, 503 S.W.2d 315, 317 (Tex. App.—Dallas 1973, no writ)). Evidence from the final hearing
established that Inger deposited over $90,000.00 of community funds into her savings account
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between the time the parties were married and the down payment was made. “Because community
property income had been commingled with the originally separate principal, [Inger] was obligated
to trace, by clear and convincing evidence, each account and its holdings from the date of divorce
back to the date of the marriage.” See id. (citing Cockerham, 527 S.W.2d at 167).
“Courts have no difficulty in following separate funds through bank accounts.” Id. “A
showing of community and separate funds existing in the same account does not divest the separate
funds of their identity and establish the entire amount as community, if the separate funds may be
traced and the trial court is able to determine accurately the interest of each party.” Id. However,
the record reveals that Inger made no attempt to establish that the down payment came from
separate funds. A mere assertion that “property was purchased with separate property funds,
without any tracing of the funds, is generally insufficient to rebut the community presumption.”
Daigle v. Daigle, No. 09-14-00399-CV, 2015 WL 5042145, at *4 (Tex. App.—Beaumont Aug. 27,
2015, pet. denied) (mem. op.) (citing McElwee v. McElwee, 911 S.W.2d 182, 188 (Tex. App.—
Houston [1st Dist.] 1995, writ denied)).
“Further, when separate and community funds are commingled in a single account and a
portion of those funds are withdrawn, it is presumed that the community funds are the first to be
withdrawn.” Marriage of Taylor, No. 06-14-00061-CV, 2015 WL 428121, at *3 (Tex. App.—
Texarkana Feb. 3, 2015, no pet.) (mem. op.) (citing Zagorski v. Zagorski, 116 S.W.3d 309, 319–
20 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (citing Smith v. Smith, 22 S.W.3d 140,
146 (Tex. App.—Houston [14th Dist.] 2000, no pet.)). Thus, since the evidence established that
community funds were last deposited into Inger’s account, and the amount of the community funds
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deposited exceeded the amount of the down payment, we conclude that Inger did not defeat the
presumption that the funds for the down payment on the marital home came from the community
estate.
Because Inger did not make any showing requiring the trial court to credit her separate
estate for the amount of down payment made on the marital home, we overrule Inger’s first point
of error.
III. We Overrule Inger’s Complaint that Notice Was Required Prior to Entry of the
Turnover Order
“In a decree of divorce . . . , the 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). “The court that rendered the decree of divorce . . .
retains the power to enforce the property division as provided by Chapter 7.” TEX. FAM. CODE
ANN. § 9.002 (West Supp. 2017). In relevant part, Section 31.002 of the Texas Civil Practice and
Remedies Code states,
(a) A judgment creditor is entitled to aid from a court of appropriate
jurisdiction through injunction or other means in order to reach property to obtain
satisfaction on the judgment if the judgment debtor owns property, including
present or future rights to property, that is not exempt from attachment, execution,
or seizure for the satisfaction of liabilities.
(b) The court may:
(1) order the judgment debtor to turn over nonexempt property
that is in the debtor’s possession or is subject to the debtor’s control,
together with all documents or records related to the property, to a
designated sheriff or constable for execution;
(2) otherwise apply the property to the satisfaction of the
judgment; or
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(3) appoint a receiver with the authority to take possession of
the nonexempt property, sell it, and pay the proceeds to the judgment
creditor to the extent required to satisfy the judgment.
(c) The court may enforce the order by contempt proceedings or by
other appropriate means in the event of refusal or disobedience.
TEX. CIV. PRAC. & REM. CODE ANN. § 31.002 (West Supp. 2017). Inger argues that the trial court
was required to provide notice before entering a turnover order. However, “[t]he turnover statute
itself does not require notice and a hearing prior to issuance of a turnover order.” Williams Farms
Produce Sales, Inc. v. R & G Produce Co., 443 S.W.3d 250, 256 (Tex. App.—Corpus Christi 2014,
no pet.) (citing TEX. CIV. PRAC. & REM. CODE ANN. § 31.002; see Ex parte Johnson, 654 S.W.2d
415, 418 (Tex. 1983) (stating that notice and hearing prior to issuance of the turnover order was
not required under predecessor statute); Sivley v. Sivley, 972 S.W.2d 850, 860 (Tex. App.—Tyler
1998, no pet.) (“The statute itself does not provide for notice or a hearing to be afforded a judgment
debtor in a turnover proceeding.”)); see also Thomas v. Thomas, 917 S.W.2d 425, 433–34 (Tex.
App.—Waco 1996, no writ); Plaza Court, Ltd. v. West, 879 S.W.2d 271, 276 (Tex. App.—Houston
[14th Dist.] 1994, no writ) (holding that Section 31.002 does not provide for notice to a defendant
in turnover proceedings); Ross v. 3D Tower Ltd., 824 S.W.2d 270, 272 (Tex. App.—Houston [14th
Dist.] 1992, writ denied).4
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The only conditions that must be met prior to the entry of a turnover order are, as follows:
(1) the entity that is to receive aid must be a judgment creditor;
(2) the court that would grant aid must be one of appropriate jurisdiction;
(3) the aid to be given must be in order to reach property to obtain satisfaction on the judgment;
and
(4) the judgment debtor must own property (including present or future rights to property) that:
(a) cannot be readily attached or levied on by ordinary legal process and
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Inger also argues, for the first time on appeal, that the trial court’s entry of a turnover order
without prior notice to her violated her constitutional right to due process.5 In order to preserve a
complaint for appellate review, the record must reflect that the “complaint was made to the trial
court by a timely request, objection, or motion” and that the trial court either “ruled on the request,
objection, or motion, either expressly or implicitly,” or “refused to rule . . . and the complaining
party objected to the refusal.” TEX. R. APP. P. 33.1(a); see In re Z.L.T., 124 S.W.3d 163, 165 (Tex.
2003). As an appellate court, we review a trial court’s ruling or an objection to its refusal to
rule. See TEX. R. APP. P. 33.1(a)(2). “Important prudential considerations underscore our rules on
preservation. Requiring parties to raise complaints at trial conserves judicial resources by giving
trial courts an opportunity to correct an error before an appeal proceeds.” In re B.L.D., 113 S.W.3d
340, 350 (Tex. 2003).
Even constitutional claims are waived by failure to raise the complaint at trial. Tex. Dep’t
of Protective & Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861 (Tex. 2001) (citing Dreyer v.
Greene, 871 S.W.2d 697, 698 (Tex. 1993)). Additionally, to preserve error, “[c]omplaints and
arguments on appeal must correspond with the complaint made at the trial court level.” Ferrara
v. Moore, 318 S.W.3d 487, 496 (Tex. App.—Texarkana 2010, pet. denied). “If an issue has not
(b) is not exempt from attachment, execution, or seizure for the satisfaction of
liabilities.
Williams Farms, 443 S.W.3d at 256. Inger does not contest that these conditions were met.
5
In Thomas, 917 S.W.2d at 433–34, our sister court held that “failure to provide prior notice and hearing before the
issuance of a turnover order under Section 31.002 does not compromise constitutional principles.”
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been preserved for appeal, we should not address it on the merits.” Knoderer v. State Farm Lloyds,
515 S.W.3d 21, 44 (Tex. App.—Texarkana 2017, pets. denied).
Although she had the opportunity, Inger failed to assert in the trial court that the entry of
the turnover order without notice deprived her of due process. Accordingly, we overrule Inger’s
last point of error.
IV. Conclusion
We affirm the trial court’s judgment.
Bailey C. Moseley
Justice
Date Submitted: July 26, 2018
Date Decided: August 2, 2018
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