Dalecia L. Rivers v. Clay Veil Rivers, III ( 2018 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-17-00690-CV
Dalecia L. Rivers, Appellant
v.
Clay Veil Rivers, III, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. D-1-FM-16-005838, HONORABLE JAN SOIFER, JUDGE PRESIDING
MEMORANDUM OPINION
This is an appeal from the judgment of the district court of Travis County in a divorce
case. Appellant, Dalecia L. Rivers, challenges that part of the judgment dividing the property.
Appellee is Clay Veil Rivers, III. We will affirm the judgment.
The parties married in 2011, separated in 2016, and divorced in 2017. During the
marriage, the parties bought a house located on Wind Valley Way in Pflugerville. The purchase of
the house was funded by each spouse contributing separate-property funds and incurring community
debt. Dalecia’s separate-property contribution was $64,946, while Clay’s was $8,650. Title to the
Wind Valley Way property was taken in the names of both spouses.
The judgment vested an undivided fifty-percent interest in the house in each spouse
as their separate property and directed the house be sold. The district court filed findings of fact and
conclusions of law. The court concluded, among other things, that:
Dalecia Rivers failed to present clear and convincing evidence to overcome the
presumption that, despite using separate funds to purchase the marital residence, by
taking title to the marital residence in both parties’ names, she intended to gift
fifty percent (50%) of her separate property interest in the marital residence to
Clay Veil Rivers, III.
Likewise, the district court concluded that Clay failed to rebut the presumption that
he intended to gift fifty percent of his separate interest in the house to Dalecia.
By several issues, Dalecia complains of the district court’s refusal to reimburse her
separate estate for the funds she contributed as part of the down payment for the Wind Valley Way
house. But before Dalecia is entitled to reimbursement, she must first overcome the presumption
that she gifted these payments to Clay. See Cockerham v. Cockerham, 527 S.W.2d 162, 168 (Tex.
1975). Since at least 1856 the rule in Texas has been that when one spouse uses separate funds to
acquire property during marriage and takes title to that property in the names of both spouses, a
presumption arises that the purchasing spouse intended to make a gift of one half of the separate
funds to the other spouse. Smith v. Strahan, 16 Tex. 314, 322 (1856). That presumption, however,
may be rebutted by evidence clearly establishing that there was no intention to make a gift.
Cockerham, 527 S.W.2d at 168 (citing Strahan, 16 Tex. at 324).
Dalecia argues that the district court ignored “all of the evidence presented to rebut
the presumption of gift.” She then asserts that the district court’s conclusion “is contrary to
testimony presented by both Appellant and Appellee.” As support for these assertions she refers the
Court only to the following testimony:
Q. Ms. Rivers, why did you put a down payment on some property in October of
last year?
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A. Well, because I thought that Clay was going to come up with his—he was
going to pay me out, like the Judge said. I thought that he was going to pay
me out, so I thought that I would have the finances to move out. And then if
we had 30 days to move, we could—you know, move into a home. And my
daughter would not be displaced and moved out of her current neighborhood
where she’s going—attending school.
This Court is satisfied that the quoted testimony does not amount to evidence “clearly
establishing there was no intention to make a gift.” Id.; see Tex. Fam. Code § 3.003(b) (“The degree
of proof necessary to establish that property is separate property is clear and convincing evidence.”).
Dalecia’s final issue reads as follows: “The Family Code provisions pertaining to
Appellant’s property rights and the division of property among the parties unconstitutionally deprives
Appellant of her constitutional rights and impinges upon her expression and enjoyment of those
rights.” In the discussion following the issue, Dalecia refers to a constitutional right to “liberty in
the pursuit of happiness in the marital relationship and her free expression of love within that
tarnished relationship.” She suggests that her contribution of separate funds for property taken in
the name of both parties was an act of love deserving constitutional protection.
The issue is not supported by legal argument or authority. Texas Rule of Appellate
Procedure 38.1(i) requires the brief to contain a clear and concise argument for the contentions made,
with appropriate citations to authorities and the record. This issue is waived because it is not
supported by argument or authorities. Rayburn v. Giles, 182 S.W.2d 9, 13 (Tex. App.—San Antonio
1944, writ ref’d); Elite Towing, Inc. v. LSI Fin. Grp., 985 S.W.2d 635, 641 (Tex. App.—Austin
1999, no pet.).
The judgment is affirmed.
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__________________________________________
Bob E. Shannon, Justice
Before Chief Justice Rose, Justices Field and Shannon*
Affirmed
Filed: December 19, 2018
* Before Bob E. Shannon, Chief Justice (retired), Third Court of Appeals, sitting by assignment.
See Tex. Gov’t Code § 74.003(b).
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