Maria De Los Angeles Rojas v. Pedro Rojas ( 2004 )

  NUMBER 13-02-167-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG  

MARIA DE LOS ANGELES ROJAS,                  Appellant,

v.

PEDRO ROJAS,                                                                             Appellee.

On appeal from the 138th District Court

of Cameron County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Castillo, and Wittig

Opinion by Justice Wittig  

          In a divorce trial to the bench, the judge awarded the couple’s home to appellee, Pedro Rojas, as his separate property. Appellant, Maria de los Angeles Rojas, appeals the separate property characterization of the home. In six issues, she challenges the legal and factual sufficiency of the separate property finding, and the fact appellee had no pleadings to support the trial court’s award of the home to appellee as his separate property. We affirm.

I.

          Appellant and appellee were married September 2, 1989. Just weeks before their wedding, appellee entered into an earnest money contract to purchase the house in question. Although the contract was undated, both his testimony and a written receipt for the five hundred dollar earnest money dated August 18, 1989 showed this portion of the transaction occurred before the marriage. The house was paid off a few months after the wedding with money appellee had accumulated, “working hard” for many years. Appellant admitted the money came from appellee’s retirement account while appellee also testified that the pay-off money came from “our savings.”

          The trial court made findings of fact and conclusions of law. He found that appellee purchased the house and lot prior to the marriage. The court also found the house was purchased with monies owned by appellee prior to the marriage. The court further found that the down payment was made before marriage, and that the down payment was made with monies owned by appellee prior to the marriage. Finally, the court found that the final payment for the house purchase was made with monies owned by appellee prior to the marriage. The conclusions of law tracked the factual findings, that the house was not community property of the spouses and that it was the separate property of appellee. The monies used to purchase the property were not community, and were the separate property of appellee.

II.

          One who complains of the trial court's division of property must be able to demonstrate from evidence in the record that the division was so unjust and unfair as to constitute an abuse of discretion. Finch v. Finch, 825 S.W.2d 218, 221 (Tex. App.–Houston [1st Dist.] 1992, no writ); Wallace v. Wallace, 623 S.W.2d 723, 725 (Tex. Civ. App.–Houston [1st Dist.] 1981, writ dism'd). A trial court's division will not be disturbed on appeal unless it appears from the record that the division was clearly the result of an abuse of discretion. Mogford v. Mogford, 616 S.W.2d 936, 944 (Tex. Civ. App.–San Antonio 1981, writ ref'd n.r.e). The test for whether the trial court abused its discretion is whether the court acted arbitrarily or unreasonably. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 24143 (Tex. 1985); see Wilson v. Wilson, 44 S.W.3d 597, 600 (Tex. App.–Fort Worth 2001, pet. denied). Under this type of review, legal and factual insufficiency are not independent grounds of error, but rather relevant factors in assessing whether the trial court abused its discretion. Zorilla v. Wahid, 83 S.W.3d 247, 252 (Tex. App.–Corpus Christi 2002, no pet.).

               When a party attacks the legal sufficiency of an adverse finding on an issue on which she has the burden of proof, she must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of appellant’s issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241-42 (Tex. 2001). In reviewing a matter of law challenge, the reviewing court must first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Id. If there is no evidence to support the finding, then the reviewing court will examine the entire record to determine if the contrary proposition is established as a matter of law. Id.   

             If the findings are supported by legally sufficient evidence, we must then review the factual sufficiency of the evidence. When we review an "insufficient evidence" or factual sufficiency of the evidence issue, we consider, weigh, and examine all of the evidence which supports or undermines the finding. Plas-Tex, Inc. v. United States Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). We must consider whether the finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986). Because the trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony, we may not substitute our judgment for that of the fact finder's conclusions. Id. at 634; Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 796 (1951). Where there is conflicting evidence, the trial court's determination on such matters is generally regarded as conclusive. Montgomery Ward & Co. v. Scharrenbeck, 146 Tex. 153, 204 S.W.2d 508, 512 (1947); Adams v. H & H Meat Prods., Inc., 41 S.W.3d 762, 770 (Tex. App.–Corpus Christi 2001, no pet.).

          The trial judge has wide discretion in dividing the parties' community estate. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981); Winkler v. Winkler. 951 S.W.2d 80, 87 (Tex. App.–Corpus Christi 1997, pet. denied). The party attacking the property division bears the heavy burden of showing that the trial court's property division was not just and right. Goetz v. Goetz, 567 S.W.2d 892, 896 (Tex. Civ. App.–Dallas 1978, no writ). We must indulge every reasonable presumption in favor of the trial court's proper exercise of its discretion. Vannerson v. Vannerson, 857 S.W.2d 659, 669 (Tex. App.–Houston [1st Dist.] 1993, writ denied).

III.

          In appellant’s first two issues, she challenges the legal and factual sufficiency of the characterization of the home as separate property. In issues three and four, she challenges the trial court’s findings of fact and conclusions of law that the home was the separate property of appellee and that the home was not community property. Because issues three and four are redundant of the first two issues, we will address these findings and conclusions in our analysis of issues one and two.

          In her first issue, appellant argues that, considering only the evidence “putatively supporting” the judgment, there was legally insufficient evidence to overcome the presumption that the property was paid for and acquired during the marriage. She advances four reasons why the evidence is legally insufficient. First, reasonable and fair-minded people could not reach different conclusions about the import of “a mere $500 advance payment on a house before marriage.” That is, appellee’s payment of the advance does not mean he had all the money to pay for the house before marriage. Second, such evidence does not overcome the presumption that property held at the time of divorce is community property. Third, such evidence does not overcome the presumption that property paid for during marriage is community property. And fourth, the dual inference rule applies and therefore no fact may be inferred.

          We accept this as true. We also agree with appellant’s argument that property possessed by either spouse during or on dissolution of marriage is presumed to be community property. See Tex. Fam. Code Ann. § 3.003 (Vernon 1998). As a general rule, any property possessed by either spouse during or on dissolution of marriage is presumed to be community property, and a spouse must present clear and convincing evidence to establish that such property is separate property. Id. Clear and convincing evidence is the degree of proof that will produce in the mind of the trier of fact a firm belief or conviction about the allegations sought to be established. Tex. Fam. Code Ann. § 101.007 (Vernon 1998); Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 31 (Tex.1994). To overcome this presumption, the spouse claiming certain property as separate property must trace and clearly identify the property claimed to be separate. McElwee v. McElwee, 911 S.W.2d 182, 189 (Tex. App.–Houston [1st Dist.] 1995, writ denied). Tracing involves establishing the separate origin of the property through evidence showing the time and means by which the spouse originally obtained possession of the property. Hilliard v. Hilliard, 725 S.W.2d 722, 723 (Tex. App.–Dallas 1985, no writ); see Smith v. Smith, 22 S.W.3d 140, 144 (Tex. App.–Houston [14th Dist.] 2000, no pet.).

          However, appellant ignores much of the evidence that supports the seminal findings of the court, as well as his conclusions of law. The trial court found that appellee purchased the home before the marriage and he did so with monies owned by him before marriage. Evidence supporting these findings begins with the earnest money contract which was entered into in August 1989, some weeks before the couple’s September 2, 1989 wedding. Although appellant is correct that the earnest contract is undated, the receipt for the same five hundred dollar earnest money, introduced into evidence without objection, is dated August 18, 1989. The title policy was issued in appellee’s name alone. Appellee testified that the ten thousand dollars used to pay off the house in January 1990 came from his savings. Appellee further testified he worked forty-three years and saved the money he earned. “I had money in the bank that I had saved up. I made good money.” A cashier’s check from MBank in the same amount bore appellee’s name and that of the seller. The only tax records introduced into the record showed the property taxed to appellee.

          Property is characterized as "separate" or "community" at the time of the inception of title to the property. Parnell v. Parnell, 811 S.W.2d 267, 269 (Tex. App.–Houston [14th Dist.] 1991, no writ). Inception of title occurs when a party first has right of claim to the property by virtue of which title is finally vested. Strong v. Garrett, 148 Tex. 265, 271, 224 S.W.2d 471, 474 (1949); Winkle v. Winkle, 951 S.W.2d 80, 88 (Tex. App.–Corpus Christi 1997, pet. denied). Here, appellee’s first right of claim arose before the marriage. Thus, there is legally sufficient evidence to overcome both of the presumptions argued by appellant. Appellant’s first issue is overruled.

IV.

          Appellant next argues factual insufficiency. She contends that both appellee’s testimony and the documentary evidence is weak and the countervailing weight of the evidence is overwhelming because appellee admitted on the stand that the home was paid for after the marriage began. This is partially true, because the final ten thousand dollar payment was made four months after coverture. She points to cross examination showing that appellee brought no documentation to the trial showing where the money came from. According to her argument, applying the presumption that the property was acquired during the marriage is community, then the determination the home was separate property was against the great weight and preponderance as to be manifestly unjust and wrong. We disagree.

          The presumption of community property was overcome, not only with documentary evidence we outlined above, but also the testimony of the parties. Appellant testified she thought appellee purchased the home with money he won in the Mexican lottery. However, she later contradicted herself stating that the purchase money was “withdrawn from his retirement account.” Because the trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony, we may not easily substitute our judgment for that of the fact finder's conclusions. See Pool, 715 S.W.2d at 634. Appellant’s issues two, three, and four are overruled.

          In her fifth issue, appellant argues that the trial court abused its discretion in dividing the community estate. This argument is predicated upon an improper characterization of the home by the trial court. Because we held the trial court did not err in its characterization of the separate estate of appellee, this argument must also fail. Appellant does not demonstrate how the trial court abused its discretion. See Downer, 701 S.W.2d 241, 243. Appellant’s fifth issue is overruled.

          Finally appellant contends appellee had no pleadings to support his evidence. Appellant argues from Jacobs v. Jacobs, 687 S.W.2d 731, 732 (Tex. 1985). The case stands for the proposition that once reversible error affecting the "just and right" division of the community estate is found, the court of appeals must remand the entire community estate for a new division. Id. at 733. Neither Jacobs nor appellant’s other published authority, Vickery v. Vickery, 999 S.W.2d 342, 361 (Tex. 1999) (Justice Hecht’s dissent to the denial of petition for review), supports this argument. Rather, no objection was made at the trial to any of the material evidence referenced above or the testimony of appellee. Further, the Texas Rules of Civil Procedure state that a party waives appeal for “[e]very defect, omission or fault in a pleading either of form or of substance, which is not specifically pointed out by exception in writing and brought to the attention of the judge in the trial court before the instruction or charge to the jury or, in a non-jury case, before the judgment is signed.” Tex. R. Civ. P. 90; Harlingen Irrigation Dist. Cameron County No. 1 v. Caprock Communications Corp., 49 S.W.3d 520, 534 (Tex. App.–Corpus Christi 2001, pet. denied). In any event, appellant’s own pleadings petitioned the court to make a property division. We hold that any defect or absence of pleading by appellee is waived. See id. Appellant’s final issue is overruled.

          The judgment of the trial court is affirmed.                                                     

                                                                                                                                          Don Wittig                                                                                       Justice          

Opinion delivered and filed 

this 8th Day of January, 2004.