West, Marcia v. West, David

NUMBER 13-98-522-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

MARCIA WEST

, Appellant,

v.

DAVID WEST

, Appellee.

___________________________________________________________________

On appeal from the 103rd District Court of Cameron County, Texas.

___________________________________________________________________

O P I N I O N

Before Justices Dorsey, Chavez, and Rodriguez Opinion by Justice Dorsey

Maria West appeals the trial court's final decree of divorce dated July 1, 1998. Specifically, she brings four points of error complaining of the trial court's distribution of marital property and one point complaining that she was denied due process by the court's manner of conducting the trial on the merits.

We first address Ms. West's constitutional concerns. Maria contends that her rights of due process were violated by the trial court's failure to allow her an adequate time to present her case. The divorce contained contested issues of property, domestic violence, custody of the parties' small children, special health issues related to the children, and tort claims based on physical abuse. The court also heard evidence regarding a motion for enforcement filed by David West, her ex-husband, contending that Maria violated an order requiring her to give him possession of the children for visitation.

The trial court set limits on the amount of time allowed for the trial. Originally, the matter was heard on October 2, 1997. Prior to taking testimony, the court informed each side that he would allow one hour per side for both direct and cross. Maria, who was the respondent below, was allowed to take the first witness out of turn, who was a police officer who testified that he had been called to her house for domestic violence and when he arrived, Maria's face was bloody and she had a bite mark.

David then called his witnesses: Maria and himself. Maria's attorney declined the opportunity to cross-examine Maria at that time, but conducted a lengthy cross-examination of David. At the end of the day on October 2nd, the court interrupted Maria's attorney's re-cross of David and stated:

. . . I am going to extend the time limit by one hour each. You have run over a little bit, Mr. Gilman (David's attorney), but I'll make a note of how much everybody has used. We are going to have to reset this matter . . . .

The trial resumed over two months later with David's attorney continuing direct examination of David. He conducted another moderately thorough direct examination, and then Maria's attorney, again, cross-examined David extensively. Near the end of her cross-examination, the court stated:

Counsel, let me warn you, you're getting close to the time limits that I had previously set. You are running out of time, you are about to not have any more.

She quickly wrapped up her cross examination. After redirect, the court informed the parties that Maria had five minutes remaining and David had twenty. At that point, Maria's attorney apparently realized that she only had five minutes in total remaining:

Counsel: [Your honor], . . . can we take my witnesses out of order that are here under subpoena?

Court: Sure.

David's

attorney: We're going to finish this case today, aren't we?

Court: I'm not sure how much we are going to do in five minutes, but whatever you can do in five minutes, we can do out of order.

Maria's

attorney: I haven't put on any witnesses yet, Your Honor.

Court: . . . We apparently have to deal with this problem . . . . At the--initially I gave y'all one hour to the side to present this. At some point fairly early on, I extended that to two hours to the side to give you ample opportunity to develop things. And how you used it was up to you. We are--both of y'all are fast approaching the end of your time, so how you choose to use it or not, if you want to put on somebody out of order because I know we have a bunch of witnesses here.

Maria's

attorney: Your Honor, when you announced the two hours to a side, I wasn't aware that my cross examination counted on my two hours.

Court: I made that absolutely clear, counsel. I'm not--I mean, why would I put a time limit and then . . . let you cross examine forever. You're putting on testimony when you're cross examining. I am not going to let you cross examine indefinitely.

Maria's

attorney: Well, I thought that I was limited to one hour on cross examination so that I could get at least my one hour to put on my case . . .

Court: Counsel[,] you used over an hour just cross examining Mr. West, and that's not counting what happened previously.

Maria's

attorney: Well, I need permission from the Court to put on my witnesses, and I think I can put my witnesses on by giving me at least five to twenty minutes each, but the qualifications on one of them is going to take a good five or ten minutes unless we can stipulate.

The court never responded to the request for five to twenty minutes per witness, but proceeded on with taking testimony from Maria's first witness.

Maria called the principal of the children's elementary school and a counselor from Texas Rehabilitation Commission (TRC) that had worked with Maria and testified about her depression. At the close of the TRC counselor's testimony, while the witness was searching for a document, the court informed Maria's attorney that she had one minute left. Before she found the document, the court announced that their time was up. The court refused to let her call her next witness.

She made an offer of proof that her next witness would have been a next door neighbor who called the police the day of the alleged assault. Also, she stated that she intended to call an additional witness who could testify about Maria's compliance with the visitation order and also about the physical abuse. She also proffered pictures taken of Maria after the incident of abuse. Later in the trial, she stated that she would have called Maria for direct if she had time left, to counter testimony offered by David's mother to the effect that David never physically abused Maria.

Again, the trial ran up until 5:00 p.m., when the Court stated:

. . . I am going to have to interrupt at this point because I have got some matters that have to be attended to. It is now 5:00, or it will be in a minute, I am going to, since the only thing we are doing now is the contempt, I can continue with that without reference to the divorce, is[sic] evidence has already been received. What I am going to do, because of a couple of reasons, one, because of the split thing, and to give everybody a chance to sort of summarize matters, I am going to take the matter under advisement on the divorce, and give Mr. Gilman ten days to respond. I know there are some legal issues here involved relative to separate and community property that need to be addressed. I'll give you ten days to give me anything you want on that, plus summarizing anything, you know, what you want and how you think I ought to dispose of the divorce part of this. I will give Ms. Perez (Maria's attorney) ten days after that to do the same, again, particularly requesting that y'all address the community property issue, and also just to bring into focus exactly what you want totally out of this, because in case some of this has slipped past me because it is unfortunate that we have had this delayed, part of which is my fault, part of which is not, and then as soon as I can get all of that and decide how I'm going to rule, I'll set a real quick hearing to one, render a judgment in open court, and two, give y'all a few more minutes to finish up this contempt proceeding and rule on that right on the spot. . . .

You have got ten days [in which to file] a letter brief, kind of responding, you know, what's your legal position on the, you know, the community property issue is a little tricky and how--what your theory is and how you think you complied with it by what your exhibits show, your various exhibits show, how you're tracing and so forth. And Ms. Perez (Maria's attorney) can respond, and then I'll give y'all a ruling as quickly as I can get all those things and get them ready.

Also, while it appears that David did comply with the court's request for a post-trial letter brief, neither her brief nor the record indicates that Maria complied. We also note that despite the time limitations, Maria offered forty-three exhibits into evidence, and David offered eight. During the trial, eight exhibits were received from David; forty-three from Maria.

Due process dictates that a litigant has a right to be heard and a court must protect that right. See In the Interest of J. (B.B.) M., 955 S.W.2d 405, 410 (Tex. App.--San Antonio 1997, no pet.). Both the U.S. and the Texas Constitutions provide that a person shall not be deprived of life, liberty, or property without due process of law. "Fundamental to the concept of due process is the right to be heard." Fuentes v. Shevin, 407 U.S. 67, 80, 92 S. Ct. 1983, 1994, 32 L. Ed. 2d 556 (1972).

The right to be heard assures a full hearing before a court having jurisdiction of the matter, the right to introduce evidence at a meaningful time and in a meaningful manner, and to have judicial findings based upon that evidence. Turcotte v. Trevino, 499 S.W.2d 705, 723 (Tex. Civ. App.--Corpus Christi 1973, writ ref'd n.r.e.).

Jordan v. Jordan, 653 S.W.2d 356, 357­59 (Tex. App.--San Antonio 1983, no writ).

Complete denial of the opportunity to present any evidence is a clear violation of due process. Producer's Const. Co. v. Muegge, 669 S.W.2d 717, 718­19 (Tex. 1984); Central Park Bank v. LeBlanc, 659 S.W.2d 872 (Tex. App.--San Antonio 1983, no writ); Tobola v. State, 538 S.W.2d 868, (Tex. Civ. App.--Houston [14th Dist.] 1976, no writ). However, the trial court is vested with broad discretion regarding the admission and presentation of evidence. Gee v. Liberty Mutual Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989).

We hold that the trial court did not abuse its discretion in setting limits on the amount of testimony it would hear. On two different occasions, Mrs. West was given one hour to present her case, and on both occasions, she used virtually all of her time on a fruitless cross-examination of Mr. West. It was the actions of her attorney rather than those of the court that handicapped her ability to present evidence. After the first hearing, Mrs. West had over two months to focus her case and condense it to the most relevant evidence before the next hearing where she would start fresh with another hour for her case. She simply did not take advantage of that opportunity. Furthermore, Mrs. West was able to admit forty-three exhibits for the trial court's consideration. That hardly amounts to such a severe curtailment of her ability to put on evidence that due process is offended.

Mrs. West ignored the opportunity to submit a post-trial letter brief. This Court has held in an injunction case that failing to comply with such a request by the trial court amounts to a waiver of error on that issue. Reading & Bates Const. Co. v. O'Donnell, 627 S.W.2d 239, 234­44 (Tex. App.--Corpus Christi 1982, writ ref'd n.r.e.).

Finally, Mrs. West has not shown how the trial court's limitations probably caused rendition of an improper judgment. See Tex. R. App. P. 44.1. She only identified one fact witness who could testify regarding the abuse incident. The other witness she mentioned was relevant only to the contempt matter, which was reset for a later time. She had already offered the evidence from the police officer regarding that incident, and she did not point out how the evidence from the omitted witness would have been more than cumulative. While she did mention the need to have Mrs. West testify on direct, she did not point out how that would have helped her case. We overrule her first point.

Next, Maria argues that the trial court erred by failing to include David's military retirement benefits that accrued during the marriage as a part of the community estate. However, she points to no evidence that David had accrued any military benefits. Although there was mention at trial of him serving in the military, his benefits were never discussed. An inventory of the parties' marital estate was not provided to the court by either party. The trial court made no findings of fact on that issue, but the decree states that "The Court finds that no community property other than personal effects has been accumulated by the parties."

The general rule for division of property is that upon divorce, the court shall order a division of the estate of the parties in a just and right manner, having due regard for the rights of each party and any children of the marriage. Tex. Fam. Code. Ann. § 7.001 (Vernon 1998). It is axiomatic that a party claiming an interest in the asset must offer some evidence of the existence of that asset before the court can divide it. Maria failed to show that retirement benefits existed.

The family code provides a procedure for division of property not divided at the time of divorce. See Tex. Fam. Code. Ann. § 9.201 (Vernon 1998). Upon entry of a divorce decree, the former spouses hold any undivided community property as tenants in common, and the proper method for addressing such an undivided asset is a partition suit. See Wilde v. Murchie, 949 S.W.2d 331, 332 (Tex. 1997). This is the proper remedy for Maria's claim of undivided military benefits, if any.

We overrule her second point of error.

Next, Maria contends that the trial court erred in granting a divorce without obtaining market values in determining a just and right division of the community estate. On the contrary, the court determined that no community property other than personal effects had been accumulated by the parties, and awarded each party's personal effects to the party having possession. We overrule her third point of error.

Finally, Maria argues that the trial court erred by finding that the house and lot acquired during the marriage was David's separate property. The undisputed testimony is that the house was purchased with the proceeds from a wrongful death recovery resulting from the death of David's father. Maria contends that David intended to make a gift of an interest in the house to her.

The trial court made the following findings regarding this issue:

1. David West acquired a separate estate by virtue of a recovery in a wrongful death action resulting from the death of his father.

2. Funds from that recovery were traced to the purchase of the house and lot which was primarily the subject of controversy herein.

3. Funds recovered in a lawsuit for the statutory cause of action for wrongful death is the separate property for the party receiving that recovery.

4. If separate property funds can be traced to the purchase of property during the marriage, that property is the separate property of the person whose separate funds were traced to the purchase.

Community property, the only property that is subject to a just and right distribution upon divorce, is all property other than separate property acquired by either spouse during marriage. Tex. Fam. Code Ann. § 3.002 (Vernon 1998). All property possessed by either spouse during or upon dissolution of the marriage is presumed to be community, and proof by clear and convincing evidence is necessary to establish that it is separate. Id. at § 3.003.

We begin with the presumption that the house is community property. The presumption that all property possessed at divorce is community may be rebutted by clear and convincing evidence tracing property and its mutations back to a spouse's separate estate. Id. at 3.002. The recovery for personal injuries sustained by the spouse during the marriage, excluding any recovery for loss of earning capacity during marriage, is separate property. Id. at § 3.001(3). Because the proceeds of the wrongful death lawsuit was David's separate property and both parties admitted the home was purchased with that money, the presumption that the house was community was effectively rebutted.

However, when a spouse uses separate property to acquire property during marriage and takes title to that property in the name of both spouses, a different presumption arises that the purchasing spouse intended to make a gift of one-half of the separate funds to the other spouse. Cockerham v. Cockerham, 527 S.W.2d 162, 168 (Tex.1975); Bahr v. Kohr, 980 S.W.2d 723, 726 (Tex. App.--San Antonio 1998, no pet.); Peterson v. Peterson, 595 S.W.2d 889, 892 (Tex. Civ. App.--Austin 1980, writ dism'd); Hampshire v. Hampshire, 485 S.W.2d 314 (Tex. Civ. App. Corpus Christi 1973, no writ). The presumption is rebuttable, and parol evidence is admissible to show that a gift was not intended. Galvan v. Galvan, 534 S.W.2d 398 (Tex. Civ. App. Austin 1976, writ dism'd); Cockerham, 527 S.W.2d at 168; Bahr, 980 S.W.2d at 726.

Maria testified that while the house was purchased with the proceeds from the lawsuit, David gave her an interest in the home for her and her children as a Christmas present in December of 1993. When asked what evidence she had that it was a gift, she stated that "When we signed, he said that [it was a gift to me] in front of the lady that was selling the house to us, Century or something like that." She offered extensive closing documents and title-related documents showing that the house was indeed taken in both of their names.

David testified that he never intended to make it a gift. We hold that is sufficient to rebut the presumption of gift raised by Maria's evidence.

A gift is a voluntary transfer of property to another made gratuitously and without consideration. Hilley v. Hilley, 161 Tex. 569, 342 S.W.2d 565, 569 (1961); Roberts v. Roberts, 999 S.W.2d 424, 436 (Tex. App.--El Paso 1999, no pet. h.). Three elements are required to establish the existence of a gift: (1) intent to make a gift; (2) delivery of the property; and (3) acceptance of the property. Roberts, 999 S.W.2d at 436. Generally speaking, one who is claiming the existence of a gift has the burden of proof. Grimsley v. Grimsley, 632 S.W.2d 174, 177 (Tex. App.--Corpus Christi 1982, no writ). However, where the conveyance is from one spouse to the other spouse presumptions of gift arise. Cockerham v. Cockerham, 527 S.W.2d 162, 168 (Tex.1975).

We hold that Maria failed to carry her burden of proving that the property was intended to be a gift. We affirm the judgment of the trial court in all respects.

______________________________

J. BONNER DORSEY,

Justice

Do not publish

.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 17th day of May, 2000.