Richard Eugne Barton v. Dora Camille Barton ( 2007 )

In The

Court of Appeals

Ninth District of Texas at Beaumont ____________________

NO. 09-06-349 CV ____________________

RICHARD EUGENE BARTON, Appellant

V.

DORA CAMILLE BARTON, Appellee

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On Appeal from the County Court at Law No. 3 Montgomery County, Texas Trial Cause No. 04-12-10031-CV

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MEMORANDUM OPINION

In this appeal, Richard Eugene Barton challenges the property division in his divorce from Dora Camille Barton. In three issues, Richard Barton complains that, the trial court ordered an unjust division of the marital estate, that the trial court abused its discretion in its valuation of the property, and that his trial counsel provided ineffective assistance. The primary areas in dispute concern the value assigned to the home and land awarded to Dora, and a claim for credit against the marital assets for the expenditure of $307,300 in net proceeds from Dora's personal injury settlement.

Richard contends the trial court made an unjust distribution of the marital estate. His argument primarily concerns the substantial disparity in value placed on the parties' home and land by Richard and Dora. Richard claims the trial court failed to give equal consideration to his testimony regarding the market value of that property. On his inventory, Richard claims the property is worth $200,000. He produced no documentary evidence to support his claim. At trial, Richard testified the property across the street sold for $17,000 per acre. Richard testified the home is a double-wide mobile home and that he improved the property by building a "32 by 8 foot" greenhouse, a well house, and by planting 28 pallets of grass. Richard also testified that he continued to make mortgage payments on the property even after Dora received her personal injury settlement.

Dora testified that their mobile home and the land on which it stands has a fair market value of $62,320, because "that's what's on the appraisal papers that we got from off the internet from the tax appraisal office." Printouts Dora accessed from the website for the Montgomery Central Appraisal District on November 28, 2005, stated that the 2006 "Work in Progress" "Values Breakdown" for the 12 acre tract was $36,000 "Timber Market," $3,840 "Timber Use," and $28,320 "Improvement HS." Dora testified that she had no idea whether tax appraisals always accurately reflect the value of the land and property. The Bartons purchased the property in 1993 and financed the mobile home for $64,000. They harvested the trees twice while they lived on the property. Dora could not recall what the timber sold for, and the trees are currently ten to fifteen feet tall. She spent $60,000 out of her personal injury settlement to pay off the debt on the mobile home. She also spent $11,500 on a fence and $3,000 on siding. Dora admitted the existence of neighborhood gossip that the neighbors paid $17,000 an acre.

An owner may be qualified to testify to the market value of her property. See Porras v. Craig, 675 S.W.2d 503, 504-05 (Tex. 1984). In this case, however, Dora did not state that she was familiar with the market value of their property. Dora expressed her opinion that the property was worth $62,320, but she also testified that she based her opinion entirely upon the printout from the tax appraisal district and that she did not know if tax appraisals accurately reflect property value. In her brief, Dora claims the printout proves the trailer and land were valued at $66,160 on the tax rolls for 2006, but the exhibit in the record does not prove the value of the property on the tax rolls for 2006 or any other year. The document states "Work in Progress" and was printed before January 1, 2006. Dora did not produce a tax statement for 2005, and the record does not reveal the actual taxable value of the property or its market value as a residence as opposed to timberland. Dora testified that she was not able to relate the appraisal district's value to actual market value. Although they financed the mobile home for $64,000, there is no evidence in the record of the 1993 purchase price for the real property. The home and land by far comprised the parties' largest asset. The trial court apparently accepted Dora's valuation of the property, but her opinion testimony is not shown to be reliable.

Richard also complains that the trial court failed to consider his contributions to the marital estate and failed to presume that any equity in the parties' property was community property. Dora testified that during their marriage the parties received and spent the entire proceeds of her personal injury settlement. Richard testified that part of Dora's recovery was for lost wages because she had to shut down their nursing home business. Dora testified that she has not worked since the settlement, but she could not recall whether she recovered for lost wages. A personal injury recovery for loss of earning capacity during marriage is not the separate property of the injured spouse. Tex. Fam. Code Ann. § 3.001(3) (Vernon 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) (Vernon 2006). To overcome this presumption, a party must present clear and convincing evidence that the property is separate. Tex. Fam. Code Ann. § 3.003(b) (Vernon 2006). Dora simply stated that she did not recall whether she recovered for lost wages, and that statement alone would not be sufficient to establish a firm belief that the entire recovery was Dora's separate property. Nonetheless, if Dora's values are applied to the marital estate, the value of the property awarded to Richard is within a few thousand dollars of the value of the property awarded to Dora. It appears the trial court did not consider contribution by either party's separate estate in dividing the community estate.

Dora Barton's valuation of the parties' home was not supported by sufficient evidence. Because the trial court evidently relied on her valuation in dividing the marital estate, we conclude the trial court abused its discretion in the division of property. We reverse that portion of the final decree of divorce which divided the community estate and remand the case for a new property division. See McClary v. Thompson, 65 S.W.3d 829, 839 (Tex. App.--Fort Worth 2002, pet. denied) (Appellate courts may sever the divorce action from the property division by affirming the divorce action and remanding only the property division.). In all other respects, we affirm the final decree of divorce.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

_____________________________

STEVE McKEITHEN

Chief Justice

Submitted on February 23, 2007

Opinion Delivered April 26, 2007

Before McKeithen, C.J., Gaultney and Kreger, JJ.