Leticia Loya v. Miguel Angel Loya ( 2015 )

ACCEPTED
14-14-00208-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
8/12/2015 4:22:16 PM
CHRISTOPHER PRINE
CLERK
No. 14-14-00208-CV
In the FILED IN
14th COURT OF APPEALS
Fourteenth Court of Appeals HOUSTON, TEXAS
Houston, Texas 8/12/2015 4:22:16 PM
CHRISTOPHER A. PRINE
Clerk
LETICIA B. LOYA, Appellant
vs.
MIGUEL ANGEL LOYA, Appellee
Appeal
Arising from the 257th District Court
Harris County, Texas
No. 2012-32502
Hon. Judy Warne
LETICIA LOYA’S REPLY TO MIGUEL LOYA’S
MOTION FOR REHEARING
TO THE HONORABLE JUSTICES OF THE FOURTEENTH COURT OF APPEALS:
Miguel Loya has moved for rehearing, asking this Court to reconsider its decision that
any community property interest in the bonus was not partitioned in the divorce. He argues
that the community interest was partitioned to him as his separate property, either (i) as his
“future income” or (ii) as “past income.” As this Court explained in its
Miguel has shifted away from his legal argument that the community estate can have
no interest in a bonus received after divorce for work done during marriage. He is now
1
advancing a contractual argument that the compensation received after divorce for work
done during marriage constitutes “future earnings,” which where partitioned to him in the
divorce. The underpinning of Miguel’s contractual argument is the same as the underpinning
for his earlier legal argument. He is arguing that a bonus should be characterized based on
when it is received, and not based on the work that it compensates.
In his Brief, Miguel relied on Echols v. Austron, Inc., 529 S.W.2d 840, 846 (Tex.
App.–Austin 1975, writ ref’d n.r.e.), for the proposition that the character of a bonus received
after divorce depends on when it is received, and not whether it compensates work done
during marriage. As this Court noted in its Opinion, p. 10 n. 7, that decision is not binding
authority, and has been supplanted by a change in the common law made by Cearley v.
Cearley, 5444 S.W.2d 661, 662, 665-66 (Tex. 1976), and by the subsequent adoption of
Texas Family Code Section 7.003. Miguel’s argument about future income is based on the
same premise. He is saying that income is “past” or “future” based on when it is received,
and not based on when the work was done. His contractual argument is invalid for the same
reason that his legal argument was invalid.
Miguel also argues in his Motion for Rehearing that any part of the bonus received
after divorce, that compensated work done during marriage, was partitioned as “past income”
under a clause in the Agreement Incident to Divorce that said: “This Agreement Incident to
Divorce shall serve as a partition of community income, setting aside to each spouse all
income earned by each such spouse and/or attributable to property awarded to each such
2
spouse or contained as each such spouse’s separate property herein.” See Miguel Loya’s
Motion for Rehearing, p. 7. As this Court noted in its Opinion, p. 3 n. 3, the Agreement
Incident to Divorce was not signed by either party and has no effect as a partition agreement.
Miguel Loya’s arguments are without merit, and Leticia Loya prays that his Motion
for Rehearing be denied. Leticia Loya prays for relief generally.
Respectfully submitted,
RICHARD R. ORSINGER
State Bar No. 15322500
ORSINGER, NELSON, DOWNING &
ANDERSON, LLP
5950 Sherry Lane, Suite 800
Dallas, Texas 75225
Tel: (214) 273-2400
Fax: (214) 273-2470
E-mail: richard@ondafamilylaw.com
/s/ Richard R. Orsinger
ATTORNEYS FOR APPELLANT,
LETICIA LOYA
CERTIFICATE OF SERVICE
I certify that a true copy of Leticia Loya’s Reply to Miguel Loya’s Motion for
Rehearing was served by e-file, and email on the following:
Mr. Randall B. Wilhite
Fullenweider & Wilhite
4265 San Felipe Street
Houston, Texas 77027
rwilhite@fullenweider.com
3
on August 12, 2014.
/s/ Richard R. Orsinger
RICHARD R. ORSINGER
Attorney for Appellant, LETICIA LOYA
4