Robert James Henry v. Gay Nell Henry

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-11-00253-CV
Robert James Henry, Appellant
v.
Gay Nell Henry, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT
NO. 193,976A, HONORABLE FANCY H. JEZEK, JUDGE PRESIDING
MEMORANDUM OPINION
Robert James Henry appeals the district court’s final decree of divorce along
with various rulings in the underlying suit filed by Gay Nell Henry (Jones).1 Henry argues that the
district court erred by characterizing certain real property as community property, awarding personal
property to the parties in possession of same, voiding a gift warranty deed, denying disqualification
and recusal motions, declining to enter temporary orders for the protection of property pending
appeal, declining to enter findings of fact and conclusions of law, and declining to enter an order for
reimbursement or economic contribution from the community estate to Henry’s separate estate. We
will affirm the judgment.
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As part of the divorce, Gay Nell Henry had her last name restored to “Jones,” which is how
she identifies herself. For clarity, we will refer to her as “Jones” and to appellant as “Henry.”
The background of this case and evidence adduced at trial are well known to the
parties, and as such, we limit recitation of the facts. See Tex. R. App. P. 47.4 (generally requiring
issuance of memorandum opinion that is no longer than necessary to advise parties of Court’s
decision and basic reasons for it).
Characterization of real property in Temple, Texas
A trial court must make a just and right division of the community estate upon
divorce. Tex. Fam. Code § 7.001. The trial court has broad discretion in its division of the marital
estate, and that division should be corrected on appeal only for an abuse of discretion. Murff
v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). We presume that the trial court properly exercised its
discretion, and appellant has the burden of proving from the record that the division was so
disproportionate, and thus unjust and unfair, as to constitute an abuse of discretion. Grossnickle
v. Grossnickle, 935 S.W.2d 830, 836 (Tex. App.—Texarkana 1996, writ denied). A trial court does
not abuse its discretion if there is some evidence of a substantive and probative nature supporting
its decision. Stout v. Christian, 593 S.W.2d 146, 151 (Tex. Civ. App.—Austin 1980, no writ).
In his first issue, Henry argues that the court’s characterization of the home at
715 E. Downs in Temple, Texas as community property was incorrect because he purchased
the property in part with his social security or veteran’s disability funds. All property possessed by
either spouse during or on dissolution of marriage is presumed to be community property, and
overcoming this presumption requires clear and convincing evidence establishing the property is
separate. Tex. Fam. Code § 3.003. The spouse claiming certain property is separate must trace
and clearly identify the property claimed to be separate. Zagorski v. Zagorski, 116 S.W.3d 309,
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316 (Tex. App.—Houston [14th Dist.] 2009, pet. denied). Jones testified that the house was built
with income that was earned or given to them during the marriage. Henry testified that he spent
social security or veteran’s disability funds on the Temple property and that he borrowed money
from a bank in Taylor to build the house. Henry put no evidence into the record proving or tracing
the source of funds used for the purchase of the Temple property or the house and improvements.
Mere testimony that property was purchased with separate property funds, without tracing,
is generally insufficient to rebut the community property presumption. Id.; see also In re Everse,
No. 07-11-00220-CV, 2013 Tex. App. LEXIS 7424, at *11 (Tex. App.—Amarillo June 18, 2013,
no pet.) (mem. op.) (noting decision in which court excluded from marital estate amount of wife’s
social security disability award that was traceable to purchase of modular home).
Further, Henry’s testimony that he borrowed money to build the house in Temple
does not further his separate property claim. When a lender does not specifically look to the
borrower’s separate property for payment, a community debt has been incurred, and the money
borrowed or property bought is community property. Tedder v. Gardner Aldrich, LLP, No. 11-0767,
2013 Tex. LEXIS 393, at *9 (Tex. May 17, 2013) (quoting Joseph W. McKnight, Family Law:
Husband and Wife, 37 Sw. L.J. 65, 76-77 (1983)). There was no evidence that the bank agreed to
look solely to Henry’s separate property for payment of the house loan, and the district court found
that Henry failed to prove the house was built with his separate-property funds.
Given the lack of evidence in the record to rebut the community-property
presumption, we conclude that Henry did not prove by clear and convincing evidence that
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the Temple property was his separate property. As such, the court did not abuse its discretion by
determining that the Temple property was community property, and Henry’s first issue is overruled.
Award of personal property
In his second issue, Henry argues that the court abused its discretion in awarding
each party the personal property in that respective party’s possession. Henry created a list of the
personal property items that he claimed, and the district court admitted that list into evidence. Henry
testified that the personal property on that list was left in the house in Temple and in his estimation
was worth $144,824. Jones disputed Henry’s allegation that she had possession of his items at
the house in Temple. The district court admitted an exhibit—to which Henry stated he had no
objection—containing Jones’s shorthand rendition of her testimony as to each of the items that
Henry claimed she had appropriated or sold. In that exhibit, Jones denied having the items that
Henry claimed and explained the whereabouts of items that were in existence.
Considering the contradictory evidence, the district court could reasonably have
disregarded Henry’s testimony as not credible and not conclusive on the issue of the parties’ personal
property. It was within the court’s province to do so, as the trier of fact. See City of Keller v. Wilson,
168 S.W.3d 802, 819-20 (Tex. 2005) (noting factfinder is sole judge of witnesses’ credibility and
weight given to their testimony and may choose to believe one witness and disbelieve another);
Zagorski, 116 S.W.3d at 318 (reviewing court may not interfere with factfinder’s resolution
of conflicts in evidence or pass on weight or credibility of witnesses’ testimony). We cannot
conclude that Henry met his burden of showing the district court clearly abused its discretion by
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awarding Jones and Henry the personal property in each party’s possession. Henry’s second issue
is overruled.
Validity of gift warranty deed on the couple’s home
During the pendency of the divorce, Henry purported to transfer the couple’s
home by gift warranty deed to his daughters from a previous marriage, Valencia Tenell Henry and
Athela Rochelle Henry. The deed, which was recorded in the real property records of Bell County,
lists Henry as “grantor” and his daughters, who reside together at an address in Pflugerville,
as “grantee[s].” Jones asserted and the district court determined that the deed transferring the
home property from Henry to his daughters was void. Henry defends the property transfer in his
third issue, arguing that the deed was not void because there was no evidence that his daughters had
notice of his alleged intent to injure their stepmother’s rights.
A spouse is prohibited from transferring community property pending a divorce
decree, and such transfer is void if it was made with the intent to injure the rights of the other spouse.
Tex. Fam. Code § 6.707(a). But a transfer is not void if a recipient of the transferred property lacked
notice of the intent to injure the other spouse’s rights. Id. § 6.707(b). The spouse seeking to void
a transfer incurred while a divorce suit was pending has the burden of proving such notice. Id.
§ 6.707(c).
In reviewing a “no evidence” or legal-sufficiency complaint, we review the evidence
in the light most favorable to the challenged verdict, and indulge every reasonable inference that
would support it. City of Keller, 168 S.W.3d at 822. We credit favorable evidence if a reasonable
fact finder could and disregard contrary evidence unless a reasonable fact finder could not. Id.
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at 827. When the evidence falls within the zone of reasonable disagreement, we may not substitute
our judgment for that of the fact-finder. Id. at 822.
Here, the district court heard undisputed evidence that during the pendency of the
divorce suit and while Jones still resided in the house, Henry unilaterally transferred the property to
his daughters. Henry and his daughters made payments on property taxes that became delinquent
after Henry stopped living there and the property was no longer in his name, but Henry did not
have any discussion about the taxes with Jones. Henry testified that he registered the home as a
church, but he did not give the Bell County Tax Appraisal District information about the church
registration because Jones was still living there. Henry and his daughter (who was a minister)
discussed their plan to use the house together as a church, and he hoped to hold services in the house
when the divorce was over and Jones was no longer occupying the house. We conclude that this
evidence—considered in the light most favorable to the district court’s judgment and after indulging
every reasonable inference in support of such judgment—tends to show that Henry and his daughter
talked about their plans for the house to function as a church, to the exclusion of Jones’s right to
continue occupying it as her home. The evidence further shows that Henry’s daughters never took
possession of the property that they purportedly owned. This evidence supports the district court’s
determination that Henry intended to injure Jones’s rights by transferring the property during the
pendency of their divorce and an inference that the property gifted to the daughters was transferred
with notice of Henry’s intent to injure Jones’s rights. See Tex. Fam. Code § 6.707; see also Wright
v. Wright, 280 S.W.3d 901, 909 (Tex. App.—Eastland 2009, no pet.) (trial court could infer that
purpose of husband’s stock transfer to third party during pendency of divorce was to deprive wife
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of interest in company and husband’s actions demonstrated intent to deprive wife of as much
community property as possible). We overrule Henry’s third issue.
Motion to disqualify Jones’s counsel
In his fourth issue, Henry argues that the district court erred in failing to
disqualify John Gauntt, Jones’s trial counsel. However, failure to timely seek disqualification
of counsel waives the complaint. Grant v. Thirteenth Court of Appeals, 888 S.W.2d 466, 468
(Tex. 1994); Vaughan v. Walther, 875 S.W.2d 690, 690 (Tex. 1994). We determine whether a
complaint is waived by considering the amount of time that elapsed between the date the aggrieved
party is aware of the possible conflict and the date that the party moves for disqualification. See
Vaughan, 875 S.W.2d at 690-91. Waiver also occurs by a party’s silence or inaction for an extended
period demonstrating the aggrieved party yielded a known right. Motor Vehicle Bd. of Tex. Dep’t
of Transp. v. El Paso Indep. Auto Dealers Ass’n, Inc., 1 S.W.3d 108, 111 (Tex. 1999).
Here, Henry was aware of the basis for his disqualification complaint at the very
latest as of the date of the final hearing on the parties’ divorce, during which Henry testified
that Gauntt’s firm handled the execution of the deed to the Temple property. Henry never filed a
motion for Gauntt’s disqualification before the signing of the final decree. Instead, Henry waited
until two months after the decree was signed—eleven months after the final hearing—to file
the motion to disqualify. Henry’s untimely filing of his motion to disqualify counsel waived the
complaint. See Vaughan, 875 S.W.2d at 691 (concluding party waived disqualification complaint
by waiting six and one-half months from date when she had knowledge of basis for disqualification
before raising issue). We overrule Henry’s fourth issue.
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Recusal of District Court Judge
In his fifth issue, Henry argues that the district court judge erred in declining
to recuse herself.2 However, failure to file a timely motion to recuse waives the complaint. See
Tex. R. Civ. P. 18a; Blackwell v. Humble, 241 S.W.3d 707, 712-13 (Tex. App.—Austin 2007,
no pet.); see also McElwee v. McElwee, 911 S.W.2d 182, 185 (Tex. App.—Houston [1st Dist.] 1995,
writ denied) (concluding that party waived recusal complaint by failing to comply with civil
procedure rules).3 A motion is timely if filed at least “ten days before the date set for trial or other
hearing.” Tex. R. Civ. P. 18a(a); see Carmody v. State Farm Lloyds, 184 S.W.3d 419, 422
(Tex. App.—Dallas 2006, no pet.) (concluding that appellants’ recusal motion was untimely because
alleged grounds for recusal were known to appellants before hearing began but motion was not filed
until after judge heard argument and issued decision unfavorable to them).
Here, Henry did not file his motion to recuse ten days before the final hearing,
even though he was aware of the basis for his recusal complaint “early in this case.” See Tex. R.
Civ. P. 18a(a). At a hearing on his motion to recuse, Henry testified that when Judge Jezek was still
in private practice, he had a twenty-minute consultation with her about this divorce, but he disagreed
with her fees and decided not retain her legal services. Early in the divorce suit, Henry thought this
consultation provided grounds for recusal, yet he did not file his motion to recuse until after the final
decree was signed and after he had filed his notice of appeal. His untimely filing of the motion to
2
The record reflects that Judge William Bachus heard and denied Henry’s motion to recuse.
3
Henry filed his motion before amendments to Rule 18a became effective. See Tex. R. Civ.
P. 18a, 50 Tex. B.J. 850 (1987, amended 2011). As such, we apply the pre-amendment version.
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recuse the district judge waived the complaint. See Tex. R. Civ. P. 18a(a); Carmody, 184 S.W.3d
at 422. We overrule Henry’s fifth issue.
Temporary orders
In his sixth issue, Henry contends that the district court abused its discretion by
declining to enter his requested temporary orders pending appeal for protection of the Temple
property. Henry claimed that such orders were necessary because Jones was allowing the property
to deteriorate and was not paying property taxes. In support of his requested temporary orders,
Henry relied on sections 6.709 and 109.001 of the Family Code.
The court did not abuse its discretion by declining to enter a temporary order under
section 109.001 of the Family Code, which applies to the protection of children, because Henry
and Jones did not have children together. See Tex. Fam. Code § 109.001. Further, temporary orders
under section 6.709 were not necessary because the final decree made adequate provision for the
protection of the Temple property. See id. § 6.709 (providing that within thirty days of date appeal
is perfected in suit for dissolution of marriage, trial court may render temporary order “necessary for
the preservation of the property and for the protection of the parties during the appeal”). The court’s
decree made Jones responsible for paying “all taxes and utilities on the property pending its sale”
and for “all maintenance and repairs necessary to keep the property in its present condition.” Henry
could have enforced the terms of this decree pertaining to protection of the property if they
were being violated pending appeal. See Tex. R. App. P. 25.1(h) (stating that unless judgment
is superseded or appellant is entitled to supersede judgment without security—neither of which apply
here—filing notice of appeal does not suspend enforcement of judgment). We cannot conclude
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that Henry has shown a clear abuse of discretion based on the court’s declining to enter Henry’s
requested further orders for protection of the Temple property. We overrule Henry’s sixth issue.
Findings of fact and conclusions of law
In his seventh issue, Henry complains of the district court’s declining to enter findings
of fact and conclusions of law. We conclude that any such error has been remedied by the court’s
filing of findings of fact and conclusions of law after this appeal was abated. See Tex. R. App.
P. 44.4; Brooks v. Housing Auth. of City of El Paso, 926 S.W.2d 316, 319 (Tex. App.—El Paso
1996, no writ) (trial court’s filing of findings of fact and conclusions of law after abatement
remedied appellee’s complaint about lack of findings and conclusions). Henry’s seventh issue is
overruled.
Reimbursement or economic contribution
In his eighth and final issue, Henry argues that the district court erred by declining
to order reimbursement or economic contribution for funds that Henry’s separate estate spent
to improve the community estate.4 However, Henry failed to present the court with documentary
evidence of any expenditure by his separate estate on a community asset. See Vallone v. Vallone,
644 S.W.2d 455, 459 (Tex. 1982) (party claiming right of reimbursement has burden of pleading
and proving expenditures and improvements were made and that they are reimbursable); Hailey
4
The law applicable when the divorce petition was filed allowed such claims. See Act of
May 28, 2003, 78th Leg., R.S., ch. 230, § 1, 2003 Tex. Gen. Laws 1056, 1056, repealed by Act of
May 19, 2009, 81st Leg., R.S., ch. 768, § 11(3), 2009 Tex. Gen. Laws 1950, 1953 (former Tex. Fam.
Code § 3.403(a)) (“A marital estate that makes an economic contribution to the property owned by
another marital estate has a claim for economic contribution with respect to the benefited estate.”).
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v. Hailey, 176 S.W.3d 374, 388 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (party seeking
economic contribution bears burden of proving that claim). Nor does the record contain any
pleading in which Henry makes a reimbursement or economic contribution claim. As such, we
overrule Henry’s eighth issue.
CONCLUSION
Having overruled all of Henry’s issues, we affirm the judgment.
Jeff Rose, Justice
Before Justices Puryear, Rose, and Goodwin
Affirmed
Filed: April 18, 2014
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