In Re the Estate of Cunningham , 2012 Tex. App. LEXIS 10381 ( 2012 )

REVERSED, RENDEREI), and REMAN1)E1); opinion issued I)ecember 13, 2012
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No. 05-1 1-01255-CV
IN RE THE ESTATE OF OLEN F. CUNNINGHAM, DECEASED
On Appeal from the County Court at Law No. 2
Kaufman County, Texas
Trial Court Cause No. 1OP-140
OPINION
Before Justices Morris, Francis, and Murphy
Opinion By Justice Francis
In this case of first impression, Elbert Cunningham appeals the trial court’s denial of his bill
of review. in a single issue, Elbert contends his bill of review should have been granted because he
alleged and proved substantial error by the trial court. We reverse the trial court’s judgment and
render judgment granting the bill of review.
Olen Cunningham and his first wife, Wanda, had six children but divorced in 1978. Olen
married his second wife, Helena, on March 15, 1985, and they remained married until Olen’s death
on November 28, 2008. During his life, Olen owned three tracts of land: 5 acres in Kaufman County
he acquired in 1967 from his parents where he built his home, known as 15375 County Road 342,
Wills Point, Texas; 24.2066 acres in Kaufian County he inherited from his parents in 1975
contiguous to the 5 acres noted above; and 54.3 acres in Van Zandt County he also inherited from
his parents. After Olen married Helena. he conveyed to her an undivided one-half interest in the 5-
acre tract and an undivided 34-acre tract from the Van Zandt County property. He later conveyed
5.7 10 acres of the Van Zandt County property to his daughter, DeAnn.
On September 25. 2008. about two months before Olen died, he and Helena executed a
document entitled ‘Agreement to Establish Right of Survivorship to Community Property between
Spouses.” Shortly after Olen’s death, Helena filed an “Application for Adjudication of Agreement
between Spouses Creating as Right of Survivorship in Community Property.” On September 14.
2010, the trial court signed an order approving the application. The order stated all the “real and
personal property” ofOlen and Helena owned at the time of his death was community property and
the September 25,2008 agreement created a right of survivorship in their community property in
favor of Helena.
Four months later. Elbert, one of Olen’s six children with Wanda, filed a bill of review. In
his bill, Elbert alleged Olen’s real property had been acquired by inheritance and was his separate
property. He further alleged the trial court’s order contained substantial error by finding that the
property owned at Olen’s death was community property. He also asserted he had not been served
with notice of Helena’s application or the hearing on the same. Following a bench trial, the trial
court concluded the “law and the facts supported the previousjudgment’ and denied Elbert’s bill of
review. This appeal ensued.
In his single issue, Elbert contends the trial court erred by denying his bill ofreview because
he established substantial error in the September 14,2010 order approving Helena’s application.
Specifically, Elbert challenges the trial court’s conclusions that the September 25,2008 agreement
(1) complied with the requirements of section 4.203 of the Texas Family Code (conclusion of law
#3) and (2) converted Olen’s separate property into the community property of Olen and Helena
(conclusion of law #8). We agree.
I he probate code provides a bill of review may he tiled in the probate court to revise or
correct an erroneous decision, order, or judgment rendered by that court. TEX. PROB. Cooi ANN.
31 (West 2003). In an appeal from the denial ofa statutory bill of review filed under section 31.
an appellate court must determine whether an interested person timely filed a bill of review and
showed subsuintial error. i feDonald v. Carroll. 783 S.W.2d 286. 288 (Tex. App.—Dallas 1989. writ
denied). The error need not appear on the face of the record; but if it does not, the party filing the
bill of review must prove the error at trial by a preponderance of the evidence. Id. Nadolney v.
Tao!,, 116 S.W.3d 273, 278 (Tex. App.—l-louston [14th Dist.] 2003, pet. denied). In this case, it is
undisputed that Elbert is an interested person and he timely filed the petition for bill of review. Thus.
the on! disputed element is whether Elbert showed substantial error.
The trial court filed findings of fact and conclusions of law in support of its order denying
Elbert’s petition lbr a bill of review. We review a trial court’s conclusions of law de novo: however.
if the trial court rendered the proper judgment, an erroneous conclusion of law does not require
reversal. 1
B
I JC So/lware Belgium, 1V J’ v. Marciiand. 83 S.W.3d 789. 794 (Tex. 2002).
The family code provides “spouses may agree that all or part of the separate property owned
by either or both spouses is converted to community prOperty.” TEx. FAM. CoDE ANN. § 4.202
(West 2006). An agreement to convert the separate property of one or both spouses to community
property must be in writing, be signed by the spouses. identify the property being converted, and
“specify that the property is being converted to the spouses’ community property.” Id. § 4.203(a).
A mere transfer of a spouse’s separate property to the name of the other spouse or to the name of
both spouses is insufficient to convert separate property to community property. Id. § 4.203(b). An
agreement to convert separate property to community property is not enforceable if the spouse
against \\hom enforcement is sought did not recei e a lair and reasonable disclosure of the legal
efTect of converting separate property to community property, Id 4.205( a)(2).
Ihe parties do not cite us to any cases addressing section 4.203. and our research has kund
none. In construing a statute, our primary objective is to determine and give effect to legislative
intent as expressed in the language of the statute. (‘itv o/RoLkl4 all v Hughes. 246 S.W.3d 62 I. 625
(lex. 2008). We use the definitions prescribed by the legislature and consider any technical or
particular meaning the words may have acquired. Id. Otherwise we construe the statute’s words
according to their plain and common meaning. TE:x. Gov ‘i’ CODE ANN. § 3 11 .011(a) (West 2005);
see Tooke v. City of Mexia. 197 S.W.3d 325. 356 (Tex. 2006).
The document in this case is a fIll-in-the-blank form, entitled “Agreement to Establish Right
of Survivorship to Community Property between Spouses.” It recites that the Texas Constitution
was amended in 1 987 to allow spouses to agree in writing that all or part of their community
property be passed on the death of one spouse to the surviving spouse and states ‘[t]his form is
intended for that purpose.” The record shows the form was completed by F-lelena’s son, Jeff. and
Olen’s brother. Martin. and signed by Olen and Helena. Under the first section. entitled ‘Statement
of Facts,” the form states:
Community Property The parties agree that the following is held as
-
their community property:
a. I-Tome and other real property locate[di at:
15375 County Road 342 Wills Point TX including
all inheritance property
The second section. entitled ‘Title on Death of Spouse,” states:
It is agreed that title to all community property of Husband and Wife,
specifically identified herein or held as community property shall pass
to the surviving SOUSC upon the death of the first of us to die,
without the necessity of probate court proceedings or other legal
action other than the recording of this Agreement in the records of the
(‘ount\ Clerk of County.
(Italics denote handvri Iten portions.)
After reviewing the record and considering the plain language of the statute, we conclude this
agreement fails to comply with sectionS 4.203 and 4.205 of the family code. Specifically, the
agreement does not state the spouses agree to convert all or a part of one spouse’s separate property
into community property. i\ssuming Olen intended to convert all three tracts of his real property
from separate to community. the agreement identifies only the 5-acre tract known as 1 5375 County
Road 342. Wills Point. and Ihils to identify the remaining two tracts. Finally, there is nothing in the
record to show Olen or Helena received a “fair and reasonable disclosure of the legal effect of
converting separate property to community property.” in fact, 1—lelena testified they did not discuss
the effect of converting Olen’s separate property to community property, nor did they have any
documentation explaining the same. Because the agreement signed by Olen and Helena did not
comply with the requirements of sections 4.203 and 4.205, it did not convert Olen’s separate
property into community property. The trial court erred in concluding to the contrary. We sustain
Elbert’s sole issue.
We reverse the trial court’s July 6, 2011 judgment denying Elbert’s bill of review, render
judgment that the bill of review be granted, and remand this case for further proceedings.
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JUDGMENT
IN JilL ESTATE OF OLEN F. Appeal from the County Court at Law No. 2
CUNNINGHAM, DECEASED of Kaufimin County, Texas. (Tr.Ct.No. lOP-
140).
No. 05-1 1-01255-CV Opinion delivered by Justice Francis.
Justices Morris and Murphy participating.
In accordance with this Court’s opinion ol’ this date, we REVERSE the trial court’s
judgment, RENDER judgment granting the bill of review, and REMAND this case for further
proceedings. We ORDER Elbert Cunningham recover his costs of this appeal from Helena
Cunningham.
Judgment entered December 13. 2012.
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