Roger Russell v. Tamara Russell

Opinion issued February 2, 2006

  In The

Court of Appeals

For The

First District of Texas

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  NO. 01-04-00984-CV

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ROGER RUSSELL, Appellant

V.

TAMARA RUSSELL, Appellee

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On Appeal from the 311th District Court

Harris County, Texas

Trial Court Cause No. 2003-36138

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MEMORANDUM OPINION

          Roger Russell, appellant and defendant in the trial court, appeals the trial court’s division of property in the final divorce decree. In his first issue, appellant asserts that the trial court erred by failing to state the value of the marital estate in its findings of fact and conclusions of law. In his second and third issues, appellant asserts that the trial court erred in characterizing his separate property as community property in making its just and right division of the property. We affirm in part, reverse in part, and remand.

BACKGROUND

          At the hearing on final divorce, appellant’s sworn inventory of the marital property was struck because it was not timely filed. Tamara Russell, appellee, timely filed her sworn inventory with the trial court well before the hearing. That inventory characterized as appellant’s separate property a savings account with Central Savings Bank in Michigan containing $140,000 (“Michigan Bank Account”), a 1946 Ford Coupe, a Wells Fargo account containing $32,000, an individual retirement account (IRA) containing $3,789.00, and a life insurance policy valued at $50,000.

          The inventory was not entered into evidence at trial, but the trial record indicates that the parties and the court referred to matters contained in the inventory during the trial. For instance, appellant testified that the Michigan Bank Account and the automobile were in his father’s name, although he wrote checks out of the bank account to pay bills. Appellee’s trial counsel asked appellant about the IRA that appellee had characterized as appellant’s separate property. Counsel also asked about the Ford Coupe and the certificates of deposit that were characterized as appellant’s separate property on appellee’s inventory. He also questioned appellee about her characterizations of this property and how she felt it should be divided.

          The final divorce decree characterized the funds in the IRA held in appellant’s name, the 1946 Ford Coupe appellant acquired prior to his marriage to appellee, and the funds in the Michigan Bank Account as community property. At a hearing on a motion for new trial, appellant introduced appellee’s inventory into evidence. After hearing arguments from both sides the trial court stated:

The Court finds that in the event that the sum of the property that would, in fact, be under the law of the [sic] separate property of Respondent was mischaracterized by the Court in the Court’s rendition, that the ultimate division of the estate and indebtedness of these parties is just and reasonable given the totality of the circumstances of this case and the Motion for New Trial is denied.

DISCUSSION

          The Family Code provides, “In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.” Tex. Fam. Code Ann. § 7.001 (Vernon 1998). In making a just and right division of the community estate, broad discretion is given to the trial court and this division will not be reversed on appeal unless the complaining party shows that the trial court clearly abused its discretion. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). The test for whether the trial court abused its discretion is whether the court acted arbitrarily or unreasonably. Alsenz v. Alsenz, 101 S.W.3d 648, 655 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (citation omitted). When a court mischaracterizes separate property as community property, the error requires reversal because the subsequent division divests a spouse of his or her separate property. McElwee v. McElwee, 911 S.W.2d 182, 189 (Tex. App.—Houston [1st Dist.] 1995, writ denied).

1. Failure to State Value of Marital Estate. 

          Appellant contends in his first issue that the trial court failed to assign values to appellant’s separate property—save for the IRA—when it entered its findings of fact and conclusions of law as required by section 6.711 of the Texas Family Code. Section 6.711 reads in the relevant part:

(a) In a suit for dissolution of a marriage in which the court has rendered a judgment dividing the estate of the parties, on request by a party, the court shall state in writing its findings of fact and conclusions of law concerning:

(1) the characterization of each party’s assets, liabilities, claims, and offsets on which disputed evidence has been presented; and

(2) the value or amount of the community estate’s assets, liabilities, claims, and offsets on which disputed evidence has been presented.

Tex. Fam. Code Ann. § 6.711 (Vernon 2005).

          From our review of the record, we conclude that neither the value of the property nor its characterization was a contested issue on which disputed evidence was presented—both appellee and appellant agreed that the correct characterization of the property at issue here was the separate property classification arrived at on the sworn inventory and testimony at trial. Appellant did not dispute appellee’s valuation of the property. Since there was no disputed evidence regarding the valuation or characterization of the property, the trial court was not required to provide such in its findings of fact and conclusions of law.

          We overrule appellant’s first issue.

2. Mischaracterizing Separate Property as Community Property

          In his second and third issues, appellant asserts that the trial court erroneously characterized separate property as community property in making the division of the marital property.

          The party attacking the characterization of the property has the burden of proof to show, by clear and convincing evidence, that the trial court mischaracterized the property. Vannerson v. Vannerson, 857 S.W.2d 659, 669–70 (Tex. App.—Houston [1st Dist.] 1993, writ denied). A spouse claiming certain property as separate rather than community property must trace and clearly identify property claimed to be separate. Zagorski v. Zagorski, 116 S.W.3d 309, 316 (Tex. App.—Houston [14th Dist.] 2003, pet. denied).

           Property possessed by either spouse on dissolution of marriage is presumed to be community property. Tex. Fam. Code Ann. § 3.003 (Vernon 1998). To overcome the presumption, a party must present clear and convincing evidence that the property is separate property. Id. “Clear and convincing evidence” means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).

          As an initial matter, appellee argues that appellant cannot rely on her inventory classifying the property at issue as separate to meet the clear and convincing evidentiary standard. In support of this argument she relies on a line of cases for the proposition that unless a party’s inventory is admitted into evidence, it cannot be relied upon as evidence. Barnard v. Barnard, 133 S.W.3d 782, 789 (Tex. App.—Fort Worth 2004, pet. den’d) (“While we agree that a trial court may take judicial notice of the fact that a party’s inventory has been filed, we hold that unless a party’s inventory is admitted into evidence at trial, it cannot be relied upon as evidence.”); Poulter v. Poulter, 565 S.W.2d 107, 110–111 (Tex. Civ. App.—Tyler 1978, no writ) (holding that appellate court would not consider inventory on appeal where it had not been introduced into evidence); Bokhoven v. Bokhoven, 559 S.W.2d 142, 144 (Tex. Civ. App.—Tyler 1977, no writ) (holding same as Poulter Court).

          However, appellant argues that appellee judicially admitted that the property at issue is appellant’s separate property. Judicial admissions estop the party who made them from challenging their truth. Dutton v. Dutton, 18 S.W.3d 849, 853 (Tex. App.—Eastland 2000). Four conditions must occur before a party’s admission is conclusive against her: (1) the declaration relied upon must have been made in the course of a judicial proceeding; (2) the declaration was contrary to an essential fact embraced in the theory of recovery or defense asserted by the party; (3) the statement was deliberate, clear, and unequivocal; and (4) giving conclusive effect to the declaration would not run contrary to public policy. Mapco, Inc. v. Carter, 817 S.W.2d 686, 687 (Tex. 1991); Griffin v. Superior Ins. Co., 338 S.W.2d 415, 419 (Tex. 1960).

          In the case before us: (1) appellee clearly designated the property at issue as appellant’s separate property; (2) the trial court had the inventory before it during trial and referred to it during trial; (3) the inventory was deliberately made, clear and unequivocal as to appellee’s characacterization; (4) appellee’s counsel relied on the inventory in eliciting testimony from appellant and appellee; and (5) at no time did appellee challenge the accuracy of the inventory. Moreover, appellee herself explicitly admitted that the Ford Coupe was appellant’s separate property during her testimony and implicitly gave her agreement to the her classification of the other property at issue as appellant’s separate property when she testified as to how the trial court should make its just and right division of the estate. See Roosevelt v. Rooselvelt, 699 S.W.2d 372, 374 (Tex. App.—El Paso 1985, writ dism’d) (stating that a “judicial admission establishes the issue in dispute as a matter of law in behalf of the adversary of the one making such admission”). It would be “absurd and manifestly unjust to allow a party to recover contrary to his clear and unequivocal sworn assertions.” Id. We hold that appellee is estopped from challenging her characterization of the property in question as appellant’s separate property because her inventory satisfies the requirements for a judicial admission.  

          Although appellant did not offer appellee’s inventory into evidence during the trial, appellant did present the trial court with the inventory at the hearing on the motion for new trial and notified the trial court that it had mischaracterized his separate property as community property. Such error requires reversal because the subsequent division divests a spouse of his or her separate property. McElwee, 911 S.W.2d at 189. Accordingly, we hold that the trial court erred in denying appellant’s motion for new trial and we sustain appellant’s second and third issues.

                                                     CONCLUSION

          We reverse the judgment and remand the cause for proceedings not inconsistent with this opinion.

                                                             Sam Nuchia

Justice

Panel consists of Justices Nuchia, Jennings, and Higley.