Gianna Driver v. James G. Conley, Sr. ( 2010 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00004-CV
______________________________
GIANNA DRIVER, Appellant
V.
JAMES G. CONLEY, SR., Appellee
On Appeal from the 71st Judicial District Court
Harrison County, Texas
Trial Court No. 01-0416
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Chief Justice Morriss
OPINION
James G. Conley, Sr., has previously been convicted of, and is serving time for, sexual
assaults against Gianna Driver.1 For those torts, Driver obtained a civil money judgment against
Conley. As part of Driver‘s efforts to collect that judgment, she appeals from the denial of her
request for a turnover order2 on a house and lot that Conley claims as his homestead. Driver
argues that ―someone who intentionally commits criminal acts of sexual assault within a home
against a minor child may [not] be entitled to claim continuing homestead exemption‖ since
―imprisonment in a new residence‖ should be deemed abandonment of homestead. Because we
hold that Conley‘s imprisonment for his crimes does not constitute abandonment of his homestead,
we affirm the trial court‘s denial of Driver‘s request for a turnover order concerning the house and
lot in question.3
1
Conley was convicted of two counts of aggravated sexual assault, three counts of sexual assault, and four counts of
indecency with a child. He was sentenced to thirty-five years‘ incarceration on both counts of aggravated sexual
assault and twenty years‘ incarceration on all remaining counts, all to be served concurrently.
2
To try to collect on the judgment, Driver filed with the trial court a motion for turnover order asking the court to order
Conley to turn over his home and lot along with other unimproved lots, all in Harrison County. While the trial court
ordered turnover of the unimproved lots, it agreed with Conley that the property containing his home remained his
homestead.
3
Driver also claims that Conley was improperly bench warranted to allow for his presence at the turnover hearing.
We do not address the merits of that claim because that issue was waived. ―As a prerequisite to presenting a
complaint for appellate review, the record must show that‖ a ―complaint was made to the trial court by a timely
request, objection, or motion.‖ TEX. R. APP. P. 33.1. ―A ‗timely‘ objection is one interposed at a point in the
proceedings which gives the trial court the opportunity to cure any alleged error.‖ Solomon v. Steitler, 312 S.W.3d
46, 58 (Tex. App.—Texarkana 2010, no pet.). Moreover, ―a party will not be allowed to complain on appeal of an
action or ruling which she invited or induced.‖ Boufaissal v. Boufaissal, 251 S.W.3d 160, 162 (Tex. App.—Dallas
2008, no pet.).
At an earlier attempted hearing on the turnover motion, the question of notice to Conley was addressed.
After a short discussion, the trial court suggested, ―[L]et‘s . . . see whether or not we can bench warrant [Conley] back‖
2
―Homestead rights have historically enjoyed great protection in our jurisprudence.‖
Florey v. Estate of McConnell, 212 S.W.3d 439, 443 (Tex. App.—Austin 2006, pet. denied)
(prisoner who murdered his wife was entitled to claim homestead exemption). Our Texas
Constitution provides that ―[t]he homestead of . . . a single adult person, shall be, and is hereby
protected from forced sale, for the payment of all debts‖ not specifically enumerated within. TEX.
CONST. art. XVI, § 50. Homestead rights are liberally construed to prevent citizens from losing
their homes. Florey, 212 S.W.3d at 443. The party seeking a turnover order must prove that the
property is not exempt. Hanif v. Clarksville Oil & Gas Co., No. 06-09-00110-CV, 2010
WL 2105936, at *3 (Tex. App.—Texarkana May 27, 2010, no pet.) (mem. op.); see TEX. CIV.
PRAC. & REM. CODE ANN. § 31.002(a)(2), (b)(1) (Vernon 2008); Tanner v. McCarthy, 274 S.W.3d
311, 322 (Tex. App.—Houston [1st Dist.] 2008, no pet.).
We review the granting or denial of a turnover order for an abuse of discretion. Beaumont
Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); Tanner, 274 S.W.3d at 320. A trial court
abuses its discretion if it acts in an unreasonable or arbitrary manner. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238 (Tex. 1985). A trial court‘s issuance of a turnover order, even if
predicated on an erroneous conclusion of law, will not be reversed for an abuse of discretion if the
for the hearing. Driver‘s counsel replied, ―Okay. That would certainly be easier for me, because I don‘t represent
him.‖ At the hearing, counsel agreed to, and did, send a letter to Conley advising him that the court was issuing a
bench warrant for his appearance at the next hearing date. No objection to the court‘s decision to issue a bench
warrant was made. Only after the trial court ruled Conley was entitled to exercise his homestead exemption did
Driver‘s counsel file a motion to reconsider, raising an objection to the issuance of the bench warrant for the first time.
This point of error was waived. It is also worth noting that issuing a bench warrant is a matter within the discretion of
the trial court. See In re Z.L.T., 124 S.W.3d 163, 164 (Tex. 2003).
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judgment is sustainable for any reason. Buller, 806 S.W.2d at 226. A trial court does not abuse
its discretion if there is some evidence of a substantive and probative character to support the
decision. Tanner, 274 S.W.3d at 321–22. Driver‘s points of error question whether there was
―some evidence‖ supporting the trial court‘s conclusion that Conley did not ―abandon his
homestead Property.‖
All parties agree that the property in question was the homestead of Conley at some point.
―Once acquired, homestead rights are not easily lost. Property may lose its homestead character
only by the claimant‘s death, abandonment, or alienation.‖ Duran v. Henderson, 71 S.W.3d 833,
842 (Tex. App.—Texarkana 2002, pet. denied). Driver argues that Conley‘s incarceration
constituted an abandonment of his homestead. ―Abandonment of a homestead requires both the
cessation or discontinuance of use of the property as a homestead, coupled with the intent to
permanently abandon the homestead.‖ Womack v. Redden, 846 S.W.2d 5, 7 (Tex.
App.—Texarkana 1992, writ denied). Evidence relied on as establishing ―abandonment of a
homestead must make it undeniably clear that there has been a total abandonment with an intention
not to return and claim the exemption.‖ Id.
Driver‘s first argument is that Conley‘s homestead was abandoned due to his long-term
imprisonment. Driver had the burden of proving abandonment with legally and factually
sufficient evidence. Florey, 212 S.W.3d at 446. Conley was married and divorced several
times. The home was purchased as his separate property in 1985. He testified, ―I‘ve lived there
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ever since. I have supported it fully. I have not abandoned it or anything of that type . . . . I
have never left my home with the intention of not going back.‖ Records from the appraisal
district list the property as Conley‘s homestead. On advice of counsel, Conley filed for
bankruptcy after the civil judgment in Driver‘s favor. He declared the property as his homestead
in that bankruptcy. Conley‘s responses to discovery establish that his books and records are still
kept at his home and that his daughter lived in the home from time to time. 4 Conley testified he
planned on living in the home on his release from incarceration.
Abandonment of a homestead must be voluntary. Id. at 444 (citing King v. Harter, 70
Tex. 579, 8 S.W. 308, 309 (1888)). ―An act of necessity is not a voluntary abandonment of the
homestead.‖ R.B. Spencer Co. v. Green, 203 S.W.2d 957, 959 (Tex. Civ. App.—El Paso 1947, no
writ). While Conley voluntarily committed the crime, he did not voluntarily change his
residence. A homestead is not abandoned merely because a person does not occupy the home
during a prison sentence. Florey, 212 S.W.3d at 447. We conclude that there was some
evidence to support the trial court‘s finding that Conley‘s homestead was not abandoned.
Driver did not attempt to contest Conley‘s claims that he considered the home as
homestead and planned to return to it when released from incarceration. Instead, Driver
complained that ―immediate transfer of [nonexempt] property‖ to pay legal fees was conducted in
4
We also note that a major point of contention in this case was Conley‘s claim that he was common-law married to
Marta Moncoda. The Constitution currently provides that ―[a]n owner or claimant of the property claimed as
homestead may not sell or abandon the homestead without the consent of each owner and the spouse of each owner.‖
TEX. CONST. art. XVI, § 50(b). Because Conley could make his homestead claim as a single adult, we need not
address the issue of whether he was common-law married.
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bad faith with the design of keeping Driver from collecting on her judgment. We are unsure of
how transfer of nonexempt property to pay legal fees could affect Conley‘s homestead status.
The trial court‘s finding of fact was that nonexempt property was transferred to pay legal fees and
was not conducted in bad faith. We will not disturb this finding, which has no bearing on the
issue of abandonment of homestead.5
Driver next argued that the filing of a ―sham bankruptcy‖ recommended to Conley by
counsel, coupled with his assertion that he may have been married according to common law,
suggested that Conley ―should be stopped from making such an exemption claim.‖6 The trial
court found, based on Conley‘s uncontested testimony, that bankruptcy was filed on advice of
counsel and that Conley was unsure of the status of his relationship with Moncoda. Again,
Driver‘s contentions and the evidence presented to support them did not establish that Conley
abandoned his homestead and voluntarily left without intention to return.
Because there was some evidence supporting the trial court‘s denial of Driver‘s motion for
turnover, we overrule Driver‘s remaining points of error.
5
In any event, ―it is well settled that a conveyance of exempt property may not be attacked on the ground that it was
made in fraud of creditors.‖ Duran, 71 S.W.3d at 842–43 (emphasis added).
6
For the first time on appeal, Driver contends Conley has ―unclean hands‖ because ―[i]t is unconscionable for a party
to claim the benefit of a homestead exemption while using the very home at issue to commit sexual assaults of a
minor.‖ This issue was not presented to the trial court, and we need not consider it.
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We affirm the trial court‘s judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: July 27, 2010
Date Decided: August 11, 2010
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