Gerald Byron Barras v. Leslea Loring Barras , 396 S.W.3d 154 ( 2013 )

Affirmed and Opinion and Concurring Opinion filed January 24, 2013.
In the
Fourteenth Court of Appeals
NO. 14-11-00954-CV
GERALD BYRON BARRAS, Appellant
V.
LESLEA LORING BARRAS, Appellee
On Appeal from the 306th District Court
Galveston County, Texas
Trial Court Cause No. 10-FD-3077
OPINION
Appellant Gerald Byron Barras appeals from a final decree of divorce
ordering him to pay appellee Leslea Loring Barras $125,000, to be represented by
a promissory note and secured by a deed of trust against Gerald’s separate
property, and ordering his separate estate to reimburse the community estate for
$154,073 as part of the property division. On appeal, Gerald argues that (1) the
trial court committed fundamental error by attaching a lien to his separate property
to secure a money judgment for Leslea, (2) the evidence and law do not support the
trial court’s money judgment to Leslea, (3) the trial court improperly awarded
reimbursement to the community estate, and (4) the trial court improperly divided
the marital estate. Concluding that Gerald’s arguments lack merit, we affirm the
trial court’s judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Gerald and Leslea were previously married and divorced for the first time on
June 27, 2000. One of the community assets from the parties’ first marriage was a
house located on Sunset Drive (the Sunset property). In the June 2000 divorce
decree, the parties agreed that Gerald would pay to Leslea the sum of $150,000,
payable in installments of $25,000, due on or before December 15 of each year,
without interest. The parties agreed that after the $150,000 had been paid, Leslea
would transfer by warranty deed all her community interest in the Sunset property
to Gerald. They agreed that in the event of default, the house would be sold and
the balance due on the $150,000 would be paid to Leslea, with any remaining
monies to be paid to Gerald. The decree also provided that Gerald was to have
exclusive use and possession of the house. Gerald only paid Leslea one $25,000
installment in 2000, but upon his default, Leslea did not enforce the sale of the
house.
During 2002, the parties reconciled. In the time leading up to their second
marriage to one another in 2004, Leslea signed a document releasing her lien on
the Sunset property so that it could be sold. The sales proceeds were applied
toward the purchase of a house on Glenwood Drive (the Glenwood property). The
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closing on this property occurred a few weeks before the parties’ remarriage, and
the deed to the Glenwood property is solely in Gerald’s name. After the marriage,
the parties refinanced the mortgage; Leslea cosigned that note, and an additional
note in connection with a home equity loan.1 The parties also applied a joint tax
refund toward repairs on the Glenwood property in late 2009.
The parties separated again in 2010, and Gerald petitioned for a second
divorce. In his amended petition for divorce, Gerald asked the trial court to
confirm his separate property, award him a disproportionate share of the
community estate, and order his separate estate reimbursed from the community
estate and from Leslea’s separate estate. In her counter-petition, Leslea asked the
trial court to confirm her separate property and order the community estate
reimbursed from Gerald’s separate estate.
After a nonjury trial, the trial court issued its final decree on August 30,
2011. The court awarded Leslea as her sole and separate property $125,000
payable by Gerald, to be represented by a promissory note and secured by a deed
of trust against the Glenwood property. In the decree, the trial court also included
the following findings: the community estate is entitled to reimbursement from
Gerald’s estate for principal reduction on the Glenwood property and for a tax
refund in the amount of $25,111 used on home repairs to the Glenwood property; it
specifically had considered the community reimbursement claims in making its
property division; and the $125,000 award to Leslea from Gerald’s separate estate
“is a derivative of the monies awarded to [Leslea]” in the parties’ first divorce and
is a debt intended to survive any bankruptcy.
1
The parties used this home equity loan toward the down payment on a property in
Corpus Christi.
3
At Gerald’s request, the trial court also issued findings of fact and
conclusions of law. The trial court issued a finding awarding Leslea “[t]he sum of
$125,000.00, to be represented by a promissory note from Gerald Barras to Leslea
Barras, to be secured against the Glenwood property—as same is a derivative of
the monies awarded to Leslea Barras in the original decree of divorce that was
secured by the Sunset property”; ordering Gerald to make payments of $25,000
each July beginning in 2012, and continuing until the note is paid in full, at which
time Leslea is to release the lien; and providing that such debt shall survive
bankruptcy. The trial court found that Gerald had not paid Leslea the cash sum
due to her under the first divorce decree as of the date of second divorce trial, and
that Leslea produced clear and convincing evidence that the $125,000 cash sum
due from Gerald was her sole and separate property and she was entitled to a
money judgment. The court also found that the community estate was entitled to
reimbursement from Gerald’s estate in the amount of $154,073 ($128,962 in
principal reduction on the Glenwood property and $25,111 in a tax return used for
repairs to the Glenwood property) and such was considered in the court’s property
division. At Gerald’s request, the trial court issued additional findings of fact and
conclusions of law, which included the finding that the Glenwood property, subject
to the equitable lien attached to secure the promissory note, was Gerald’s separate
property. Gerald timely filed his notice of appeal.
II. ISSUES PRESENTED
Gerald presents four issues for our review. In his first issue, he contends
that the trial court committed a fundamental error by awarding Leslea a lien against
the Glenwood property, his separate-property homestead, to secure his payment of
the $125,000 judgment. In his second issue, Gerald attacks the $125,000 award,
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asserting that the trial court erred as a matter of law by even considering such
claim and by refusing his affirmative defenses of statute of limitations and release
of judgment. Also, as part of his second issue, Gerald contends that the $125,000
award to Leslea as her separate property is not supported by legally and factually
sufficient evidence, and therefore the trial court abused its discretion. In his third
issue, Gerald claims that the trial court abused its discretion in awarding
reimbursement to the community estate as part of its property division. And in his
fourth and final issue, Gerald argues that the trial court abused its discretion in its
community property division.
III. GOVERNING LAW FOR PROPERTY DIVISION
In a decree of divorce, the trial court shall order a division of the parties’
estate in a manner that the court deems just and right, having due regard for the
rights of each party. TEX. FAM. CODE ANN. § 7.001 (West 2006). “It is well
established that a trial court may exercise wide discretion in ordering a property
division.” Aduli v. Aduli, 368 S.W.3d 805, 819 (Tex. App.—Houston [14th Dist.]
2012, no pet.) (citing Bell v. Bell, 513 S.W.2d 20, 22 (Tex. 1974)). The property
division need not be equal, and it is presumed that the trial court properly exercised
its discretion in determining the value and division of marital property. Id. A trial
court’s division of community property may take into consideration factors such as
the spouses’ capabilities and abilities, business opportunities, education, relative
physical conditions, relative financial conditions and obligations, disparity in age,
size of separate estates, nature of the property, and disparity in income and earning
capacity. Knight v. Knight, 301 S.W.3d 723, 728 (Tex. App.—Houston [14th
Dist.] 2009, no pet.).
5
In dividing property, courts must begin with the presumption that all
property possessed by either spouse during or on dissolution of the marriage is
community property. TEX. FAM. CODE ANN. § 3.003(a) (West 2006); Stavinoha v.
Stavinoha, 126 S.W.3d 604, 607 (Tex. App.—Houston [14th Dist.] 2004, no pet.)
(citing Barnett v. Barnett, 67 S.W.3d 107, 111 (Tex. 2001)). To overcome this
presumption, the spouse claiming assets as separate property is required to
establish their separate character by clear and convincing evidence. TEX. FAM.
CODE ANN. § 3.003(b); Stavinoha, 126 S.W.3d at 607 (“‘Clear and convincing’
evidence means the measure or degree of proof that will produce in the mind of the
trier of fact a firm conviction or belief as to the truth of the allegations sought to be
established.”). Separate property is property owned by a spouse before marriage;
property acquired during the marriage by gift, devise, or descent; and the recovery
for personal injuries sustained during the marriage. TEX. FAM. CODE ANN. § 3.001
(West 2006). The spouse claiming the separate nature of certain property must
trace and clearly identify the property claimed to be separate. Graves v.
Tomlinson, 329 S.W.3d 128, 139 (Tex. App.—Houston [14th Dist.] 2010, pet.
denied) (citing Zagorski v. Zagorski, 116 S.W.3d 309, 316 (Tex. App.—Houston
[14th Dist.] 2003, pet. 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.” Id. As a general rule, the clear
and convincing standard is not satisfied by testimony that property possessed at the
time the marriage is dissolved is separate property when such testimony is
contradicted or unsupported by documentary evidence tracing the asserted separate
nature of the property. Id.
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IV. STANDARD OF REVIEW FOR PROPERTY DIVISION
We review alleged error in dividing marital property for an abuse of
discretion. Aduli, 368 S.W.3d at 819 (citing Bell, 513 S.W.2d at 22). To disturb a
trial court’s division of property, a party must show that the court clearly abused its
discretion by a division or an order that is manifestly unjust or unfair. Stavinoha,
126 S.W.3d at 607–08. “A trial court does not abuse its discretion if there is some
evidence of a substantive and probative nature to support the decision.” Knight,
301 S.W.3d at 728. A trial court abuses its discretion if it acted unreasonably or
arbitrarily, or without reference to any guiding rules or principles. Id. (citing
Swaab v. Swaab, 282 S.W.3d 519, 524 (Tex. App.—Houston [14th Dist.] 2008,
pet. dism’d w.o.j.)). Legal sufficiency and factual sufficiency are relevant factors,
rather than independent bases for reversal, in determining whether the trial court
abused its discretion in its property division. Aduli, 368 S.W.3d at 819; Stavinoha,
126 S.W.3d at 608 (citing Zieba v. Martin, 928 S.W.2d 782, 786 (Tex. App.—
Houston [14th Dist.] 1996, no writ)).2
V. ANALYSIS
A. Did the trial court err by imposing an equitable lien on the Glenwood
property?
In his first issue, Gerald asserts that the trial court committed fundamental
error by ordering that the $125,000 money judgment to Leslea be secured by a
deed of trust against Gerald’s separate-property homestead. Gerald bases his claim
on the protection afforded to homestead property by section 50 of article 16 of the
2
We discuss the standard of review for challenges to separate-property findings infra
section V.B.4, and other applicable standards of review as part of our analysis.
7
Texas Constitution and argues that the lien on the Glenwood property is invalid
pursuant to Heggen v. Pemelton, 836 S.W.2d 145 (Tex. 1992). We conclude,
however, that the lien imposed here falls within the list of constitutionally
permitted exceptions to homestead protection, and that Heggen therefore is
inapplicable.
The Texas Constitution provides that homestead property is exempt from
forced sale to pay debts, except for certain specified categories of debts. TEX.
CONST. art. XVI, § 50. The constitutionally allowed exceptions to the homestead
exemption include debts for: (1) purchase money of the property; (2) taxes due on
the property; (3) owelty of partition by court order or written agreement; (4)
refinance of a lien against the property; (5) certain work and material to improve,
renovate, or repair the property; (6) certain extensions of credit; (7) reverse
mortgages; and (8) conversion and refinance of a personal property lien secured by
a manufactured home to a lien on real property. Id. § 50(a). The constitution does
not contain an exception allowing a lien to be imposed simply to achieve a “just
and right” division of property upon divorce. See Heggen, 836 S.W.2d at 148.
In Heggen, the Texas Supreme Court considered whether the trial court
properly impressed an equitable lien on a spouse’s separate-property homestead.
836 S.W.2d at 145. In that case, the trial court ordered the ex-wife to pay
$150,000 to the ex-husband for his community interest in her separate-property
homestead (deeded to her as a gift from her parents) and imposed an equitable lien
on the ex-wife’s homestead to enforce the court’s judgment. Id. at 146 & n.1 (also
awarding separately a reimbursement claim to community estate from ex-wife’s
estate). The trial court granted the ex-husband this $150,000 money judgment and
lien “simply to ensure a just and right division” of the marital estate. Id. The
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supreme court ruled the lien invalid because (1) “it burdened [the ex-wife’s] real
property for reasons other than to secure [the ex-husband’s] reimbursement
interest; that is, the trial court impermissibly imposed it to secure a just and right
division,” id. at 148, and (2) “it imposed a lien on [the ex-wife’s] homestead that,
based on the record, did not fit into any of the categories allowed by the Texas
Constitution; that is, it was not a tax lien, it was not a purchase money lien, nor
was it an improvement lien,” id. (citing TEX. CONST. art. XVI, § 50). The Heggen
court recognized that the trial court, on remand, however, could impress an
equitable lien on the ex-wife’s separate-property homestead in favor of the ex-
husband if it found that his reimbursement claim satisfied a constitutional
exception. Id. at 147–48.
We apply a de novo standard of review where the parties’ assertions require
review of Texas constitutional provisions that involve matters of law. Harris
County Hosp. Dist. v. Tomball Regional Hosp., 283 S.W.3d 838, 842 (Tex. 2009);
see Ross v. Union Carbide Corp., 296 S.W.3d 206, 211 (Tex. App.—Houston
[14th Dist.] 2009, pet. denied). Citing Heggen, Gerald argues that trial court
imposed an unconstitutional lien on his separate-property homestead. But this case
differs from Heggen in that, here, the lien is supported by an implied finding that it
is a purchase-money lien, and thus, it was not imposed simply to achieve a “just
and right” division of the marital estate. The trial court found that Leslea produced
clear and convincing evidence that the $125,000 due from Gerald was Leslea’s
sole and separate property and expressly tied that $125,000 money judgment and
the lien on the Glenwood property back to the monies awarded to her in the
parties’ June 27, 2000 agreed divorce decree. This equitable lien reasonably fits
within the constitutional purchase-money lien exception to homestead protection.
See TEX. CONST. art. XVI, § 50(a)(1) (authorizing debts for “the purchase money
9
thereof, or a part of such purchase money”); see also Heggen, 836 S.W.2d at 147
(discussing cases involving “valid liens of the type which pass constitutional
muster, i.e., liens securing purchase money interests, taxes, or improvements”).
As the case of McGoodwin v. McGoodwin illustrates, a purchase-money lien
can be implied: “[W]hen no express lien is reserved in a deed and the purchase
money is not paid, a lien nevertheless arises by implication in favor of the vendor
to secure payment of the purchase money.” 671 S.W.2d 880, 882 (Tex. 1984). In
McGoodwin, the Supreme Court of Texas reviewed a trial court’s approval of an
agreed property settlement in which a husband agreed to pay his wife $22,500 as
consideration for her interest in real property. When the ex-husband failed to pay,
the ex-wife sought to foreclose on the property based on an implied vendor’s lien;
the trial court agreed, and ordered the lien foreclosed and the property sold. The
supreme court concluded the ex-wife was entitled to foreclosure of her implied
purchase-money lien that was superior to the ex-husband’s claim of constitutional
homestead protection. Id. at 882–83; see also Watson v. Heaton, No. 14-09-
00717-CV, 2010 WL 5132565, at *4 (Tex. App.—Houston [14th Dist.] Dec. 14,
2010, no pet.) (mem. op.) (recognizing ability of ex-wife as vendor’s lien holder to
foreclose on her interest in ex-husband’s separate property); Magallanez v.
Magallanez, 911 S.W.2d 91, 94–95 (Tex. App.—El Paso 1995, no writ) (affirming
validity of deed of trust executed against ex-wife’s separate homestead as equitable
purchase-money lien for “the interest in the house that [ex-husband] had ‘sold’”);
Bowden v. Knowlton, 734 S.W.2d 206, 208 (Tex. App.—Houston [1st Dist.] 1987,
no writ) (holding that, in aid of enforcement of money award to ex-wife in part for
her property interest, trial court had authority to impose equitable lien on ex-
husband’s residence); Stapler v. Stapler, 720 S.W.2d 271, 272–73 (Tex. App.—
Fort Worth 1986, no writ) (affirming enforcement of equitable implied vendor’s
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lien on ex-wife’s real property where she failed to pay tax debt in consideration for
being awarded ex-husband’s property interest); Colquette v. Forbes, 680 S.W.2d
536, 538 (Tex. App.—Austin 1984, no writ) (approving foreclosure on ex-wife’s
separate property where implied vendor’s lien arose in favor of ex-husband to
secure promissory note executed in exchange for his property interest).
Although the trial court did not label the lien at issue an implied, equitable
purchase-money lien, Rule 299 of the Texas Rules of Civil Procedure, Omitted
Findings, permits this court to presume such a finding. Omitted findings are
governed by Texas Rule of Civil Procedure 299. On appeal, an omitted element of
a ground of recovery presumptively will be found in support of the judgment if: (1)
the trial court included one or more elements of the ground of recovery in the
findings of fact; (2) the omitted element was not properly requested; and (3) the
omitted finding is supported by the evidence. Foley v. Capital One Bank, N.A.,
No. 14-11-00998-CV, —S.W.3d—, 2012 WL 3860445, at *3 (Tex. App.—
Houston [14th Dist.] Sept. 6, 2012, no pet.); see TEX. R. CIV. P. 299 (“[W]hen one
or more elements thereof have been found by the trial court, omitted unrequested
elements, when supported by evidence, will be supplied by presumption in support
of the judgment.”).
The elements of an implied, equitable purchase-money lien are: “when no
express lien is reserved in a deed and the purchase money is not paid, a lien
nevertheless arises by implication in favor of the vendor to secure payment of the
purchase money.” McGoodwin, 671 S.W.2d at 882. The trial court included in its
findings of fact that the $125,000 award, to be represented by a promissory note
and secured by a deed against the Glenwood property, was a derivative of the prior
divorce award to Leslea that had been secured by the Sunset property, had not been
11
paid by Gerald as of the second divorce trial, was Leslea’s sole and separate
property as established through clear and convincing evidence, and entitled her to a
judgment against Gerald. The trial court additionally found that the Glenwood
property was Gerald’s separate real property, subject to the equitable lien attached
to secure the note to Leslea. Although the court failed to include the finding that
this lien in favor of Leslea was an implied vendor’s or purchase-money lien, it
found the other elements of her claim for recovery. The trial court imposed an
equitable lien on the Glenwood property in favor of Leslea in order to secure
payment of the $125,000, which Gerald owed Leslea as her separate property as a
derivative of the prior divorce award and which he had not paid. Thus, the first
condition is met.
Second, although Gerald requested that the trial court issue findings of fact
and conclusions of law and additional findings and conclusions pursuant to Rules
296 and 298, respectively, of the Texas Rules of Civil Procedure, he did not
properly request any findings regarding the nature of the lien on the Glenwood
property. Nor did Leslea request any such findings. Thus, the second condition is
met.
And third, the evidence supports a finding that the trial court imposed an
implied, equitable purchase-money lien on the Glenwood property. The evidence
shows that in their first divorce, Gerald agreed to pay Leslea $150,000 for her
community interest in the Sunset property, and that Leslea was to transfer her
interest in the property to Gerald when the debt was paid. In the event of default,
the Sunset property was to be sold, with any balance due on the $150,000 award to
be paid to Leslea. Because Gerald defaulted after paying Leslea only $25,000, she
was entitled to $125,000 from the sale of the property; however, the parties
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reconciled before the Sunset property was sold, and the proceeds from the sale
went toward the purchase, in Gerald’s name, of the Glenwood property a few
weeks before the parties’ remarriage. When the Sunset property was sold,
inception of title occurred and Leslea’s right to the remaining $125,000, as her
separate property, vested.3 However, instead of paying off his debt, Gerald used
the proceeds from the sale of the Sunset property to purchase the Glenwood
property; the trial court expressly recognized the “derivative” aspect of this
$125,000 debt in its finding.
This alternative usage of the Sunset property sales proceeds to purchase
Gerald’s separate property did not alter the separate character of the $125,000 debt
due to Leslea. Property established to be separate remains separate property
regardless of the fact that it may undergo mutations or changes in form; its separate
character is not altered by the sale, exchange, or substitution of the property.
Harris v. Harris, 765 S.W.2d 798, 802–03 (Tex. App.—Houston [14th Dist.] 1989,
writ denied) (affirming continued separate nature of partnership interest awarded to
ex-husband in a previous divorce despite execution of additional partnership-
related agreement during subsequent marriage). Since Gerald failed to pay the
$125,000 debt for Leslea’s property interest and instead put the proceeds from the
sale of the Sunset property, which then included Leslea’s separate property, toward
a separate property for himself, a purchase-money lien in the Glenwood property in
Leslea’s favor “arose by implication, as a natural equity creating a constructive
trust in the vendee, that he should not keep the estate of another without paying for
it.” McGoodwin, 671 S.W.2d at 882 (citation omitted). The evidence supports that
3
“Property is characterized as ‘separate’ or ‘community’ at the time of the inception of
title to the property.” Smith v. Smith, 22 S.W.3d 140, 145 (Tex. App.—Houston [14th Dist.]
2000, no pet.) (explaining that inception of title occurs when party first has right of claim to the
property by virtue of which title is finally vested).
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the Glenwood property was purchased with money traceable to and derived from
the debt awarded to Leslea in the prior divorce for her property interest, which
came due to her as her sole and separate property when the Sunset property was
sold, and which Gerald had not yet paid as of the second divorce trial. Therefore,
all three conditions having been met in support of the omitted finding in the trial
court’s judgment, we supply by presumption the omitted element that the trial
court imposed an implied, equitable purchase-money lien on the Glenwood
property. Because we conclude that the constitution authorizes such a lien as an
exception to homestead protection, we overrule Gerald’s first issue.
B. Did the trial court err or abuse its discretion in awarding Leslea
$125,000 as her separate property?
In his second issue, Gerald presents four sub-issues. First, he asserts that the
trial court erred as a matter of law by awarding Leslea $125,000 as her separate
property from the parties’ prior agreed divorce decree because her pleadings were
deficient. Second, he contends that the trial court erred as a matter of law by
refusing his affirmative defense of limitations. Third, he argues that the trial also
erred by refusing his release defense. Fourth, Gerald contends that the evidence is
legally and factually insufficient to support the $125,000 award.
1. The parties tried Leslea’s $125,000 claim by consent.
As a threshold sub-issue, Gerald argues that Leslea cannot recover the
$125,000 judgment because she did not set forth sufficiently this theory of
recovery in her pleadings. Leslea responds that the parties tried by consent the
issue of her right to a reduction to money judgment of the $125,000 debt.
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A trial court’s judgment must conform to the pleadings. TEX. R. CIV. P. 301;
Moneyhon v. Moneyhon, 278 S.W.3d 874, 878 (Tex. App.-Houston [14 Dist.]
2009, no pet.). “If issues not raised by the pleadings are tried by express or
implied consent of the parties, these issues shall be treated as if they had been
raised by the pleadings.” Teel v. Shifflett, 309 S.W.3d 597, 602 (Tex. App.—
Houston [14th Dist.] 2010, pet. denied). To ascertain if an issue was tried by
consent, the reviewing court must examine the record “not for evidence of the
issue, but rather for evidence of trial of the issue.” Id. (citing Greene v. Young, 174
S.W.3d 291, 301 (Tex. App.—Houston [1st Dist.] 2005, pet. denied)).
Here, the record supports that the issue of Gerald’s nonpayment of $125,000
of the $150,000 award from the first divorce and Leslea’s entitlement to a
judgment confirming $125,000 as her separate property was tried by consent of
both parties. Leslea testified on both direct and cross-examination regarding the
prior divorce decree’s $150,000 award and its terms; how Gerald only paid her
$25,000 toward the award; and after they reconciled, how she released her lien on
the Sunset property because the money was going toward their new family home,
the Glenwood property. Leslea also testified that she was asking the trial court to
confirm the unpaid $125,000 as her separate property. Gerald testified regarding
the $150,000 that he was supposed to pay Leslea under their prior divorce decree
and his payment of only $25,000. He also testified that he purchased the
Glenwood property before their remarriage and that the money used for this
purchase could have come from the sale of the Sunset property. While Gerald’s
trial counsel objected to the $150,000 award from the prior divorce decree being
referred to as a judgment, this objection actually is not inconsistent with the relief
that Leslea sought at trial: to enforce the unpaid portion of the prior award through
a judgment. Although Leslea failed to include in her pleadings a claim that she
15
was seeking to enforce the prior divorce decree pursuant to section 9.010,
Reduction to Money Judgment, of the Texas Family Code, the evidence shows that
the parties tried precisely this issue: “If a party did not receive payments of money
as awarded in the decree of divorce or annulment, the court may render judgment
against a defaulting party for the amount of unpaid payments to which the party is
entitled.” TEX. FAM. CODE ANN. § 9.010(b) (West 2006). The relevance of the
admitted evidence particularly related to whether Leslea was entitled to a money
judgment on this unpaid $125,000 from the first divorce as her separate property,
as opposed to any pleaded issue of reimbursement or division of the community
estate. Moreover, although she did not reference section 9.010 in her request for
relief, Leslea explicitly requested that the trial court confirm the $125,000 awarded
to her in the prior divorce as her separate property and secure such money
judgment to the full extent of the law. We agree that the parties tried this issue by
consent. Therefore, the trial court did not err in addressing the issue.
2. Gerald waived any limitations defense.
Although he did not raise this affirmative defense in his pleadings or request
any findings from the trial court on his limitations defense, Gerald contends that
because the terms of divorce decrees are governed by contract law principles, the
four-year statute of limitations in section 16.051 of the Texas Civil Practice and
Remedies Code bars Leslea’s claim as a matter of law.4 Without deciding whether
4
Gerald has not provided, and we have not located, any case that applies the residual
limitations period in section 16.051 to a party’s enforcement of a divorce decree pursuant to the
Family Code. Gerald’s cited authority, Stine v. Stewart, does not apply because that case did not
involve an enforcement claim. 80 S.W.3d 586, 592–93 (Tex. 2002) (concerning a third-party
creditor beneficiary who was asserting a breach-of-contract claim based on her daughter’s
divorce decree).
16
or not the four-year statute applies, we conclude that Gerald has failed to preserve
this issue for appeal.
Statute of limitations is an affirmative defense, TEX. R. CIV. P. 94, where the
party asserting the defense bears the initial burden to plead, prove, and secure
findings to sustain his plea of limitations. Woods v. William M. Mercer, Inc., 769
S.W.2d 515, 517 (Tex. 1988). A party who fails to secure findings to sustain his
plea of limitations waives the defense. Cooper v. Cochran, 288 S.W.3d 522, 531
(Tex. App.—Dallas 2009, no pet.) (concluding that party waived statute of
limitations defense where he never requested any relevant findings of fact);
Medistar Cop. v. Schmidt, 267 S.W.3d 150, 162 (Tex. App.—San Antonio 2008,
pet. denied) (citing Woods, 769 S.W.2d at 517, in concluding same).
We can understand how Gerald initially may have failed to plead limitations
as a defense to Leslea’s counter-petition; however, during trial it became clear that
the parties were trying Leslea’s enforcement claim in which she sought a reduction
to money judgment of the unpaid $125,000 from the prior divorce. The trial court
then awarded Leslea relief on this claim and issued findings relevant to this claim.
But Gerald never requested findings from the court on his limitations defense. Nor
did he specifically request additional or amended findings of fact relevant to his
limitations defense after the trial court issued its original findings of fact and
conclusions of law. We conclude, therefore, that Gerald has waived any error with
respect to his affirmative defense to Leslea’s enforcement claim under any statute
of limitations. Therefore, we overrule this sub-issue.
3. Gerald’s release defense fails.
Gerald also contends that the evidence established, as a matter of law, that
the release Leslea signed in connection with the sale of the Sunset property, after
17
his only payment of $25,000 and prior to the parties’ remarriage, operated as a
release of judgment to the $125,000 debt remaining under their prior divorce
decree. However, the record does not include a copy of the actual signed release.
Although Gerald failed to include release as an affirmative defense in his
pleadings,5 the record supports that the issue of whether Leslea released the
$125,000 debt by her agreement to sell the Sunset property was tried by consent by
both parties. In addition to questioning regarding the terms of the $150,000 award
from the first divorce, both parties’ attorneys elicited testimony from Leslea
regarding her signing a release of lien in conjunction with the sale of the Sunset
property, despite Gerald’s only paying $25,000 of that award. Leslea also testified
regarding the circumstances surrounding her signing the release, whether she
signed it voluntarily, and to her intent and understanding of what the release
covered. The relevance of the admitted evidence particularly related to whether
Leslea’s signing of a release of lien operated as a release to Gerald’s nonpayment
of the remaining $125,000 from the prior divorce. Therefore, the parties tried this
defense by consent.
We construe Gerald’s argument as an attack on the legal sufficiency of the
trial court’s implied adverse finding on release—that Leslea did not release her
right to seek the $125,000 debt. This issue requires us to review the entire record
using the same legal sufficiency standard applicable to a jury’s answers. Hartis v.
Century Furniture Indus., Inc., 230 S.W.3d 723, 733 (Tex. App.—Houston [14th
Dist.] 2007, no pet.) (considering legal sufficiency challenge to trial court’s
implied findings). A party attacking the legal sufficiency of an adverse finding on
5
Release is an affirmative defense, TEX. R. CIV. P. 94, where the defendant bears the
burden to plead and prove the existence of an effective and valid release. See Williams v. Glash,
789 S.W.2d 261, 264 (Tex. 1990).
18
an issue on which he had the burden of proof must demonstrate on appeal that the
evidence establishes, as a matter of law, all vital facts in support of the issue. Id. at
733–34 (citing Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001)).
When reviewing a legal sufficiency, or no evidence, challenge, we review the
evidence in the light most favorable to the challenged finding and indulge every
reasonable inference that would support it. Harrison v. Harrison, 321 S.W.3d 899,
901 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (citing City of Keller v.
Wilson, 168 S.W.3d 802, 822 (Tex. 2005)). We credit favorable evidence if a
reasonable fact finder could, and disregard contrary evidence unless a reasonable
fact finder could not. Id. at 901–02 (citing City of Keller, 168 S.W.3d at 827);
Hartis, 230 S.W.3d at 733–34. The evidence is legally sufficient if it would enable
fair-minded people to reach the verdict under review, keeping in mind that the trier
of fact is the sole judge of the witnesses’ credibility and the weight to be given to
their testimony. Harrison, 321 S.W.3d at 902. “This court cannot substitute our
judgment for that of the trier of fact, so long as the evidence falls within the zone
of reasonable disagreement.” Id. But if the evidence allows only one inference,
we may not disregard it. Id.
In support of his argument that Leslea released her claim to judgment on the
unpaid $125,000 by signing a release of lien, Gerald relies on Rapp v. Mandell &
Wright, P.C., 123 S.W.3d 431 (Tex. App.—Houston [14th Dist.] 2003, pet.
denied). This court explained in Rapp that a release of judgment is an express
relinquishment by the judgment creditor of his rights in the judgment, which
operates as a bar because the one who might otherwise have asserted the right
expressly has surrendered it. Rapp, 123 S.W.3d at 434. There, the appellant had
signed an acknowledgment of payment and release of judgment where he expressly
acknowledged receipt of the full amount of the trial court’s judgment and he
19
“unconditionally and unambiguously acknowledged that the part of the judgment
he now attacks on appeal is satisfied and released.” Id. at 433, 435. This court
therefore concluded that the appellant had relinquished all rights in and to the
judgment and dismissed the appeal. Id. at 436. Rapp is distinguishable here. The
record does not contain the release of lien that Leslea admitted signing. Moreover,
Gerald points to no evidence that in such release Leslea expressly acknowledged
receipt of the $125,000 balance or that she unconditionally and unambiguously
acknowledged that such debt as described in the prior agreed divorce decree was
satisfied and released.
Reviewing the evidence in the light most favorable to the challenged implied
finding and indulging every reasonable inference that would support it, Gerald’s
legal sufficiency argument fails. The evidence here indicates that Leslea received
only one payment of $25,000 from Gerald, and the trial court found that as of the
second divorce trial, Gerald had not paid the $125,000 balance. There is also
evidence that Leslea agreed to release her interest in the Sunset property so that the
property could be sold and so that the proceeds could be used for a down payment
on the Glenwood property as their family home. Although Leslie at one point
during cross-examination agreed that her intent in signing the release on the Sunset
property was to release the debt, on two other occasions she testified instead to her
understanding that she still had a claim to the unpaid $125,000 debt as her separate
property. Thus, a reasonable fact finder could credit the evidence supporting that
Leslea only released her lien and not the underlying debt, and disregard any
conflicting evidence. Moreover, particularly in the absence of the release itself and
keeping in mind that the trier of fact is the sole judge of witness credibility and the
weight to be given to testimony, fair-minded people could find that Gerald failed to
establish release. We conclude that the record reveals sufficient evidence that
20
supports the trial court’s implied finding. As a result, the trial court did not err
when it refused Gerald’s release defense, and we overrule Gerald’s sub-issue.
4. Sufficient evidence supports the $125,000 award.
Finally, Gerald attacks the legal and factual sufficiency of the evidence
supporting the $125,000 award. He challenges the trial court’s finding that Leslea
still had a claim for $125,000 as her separate property by essentially reasserting his
limitations and release defenses, without arguing any particular alleged
deficiencies in Leslea’s tracing or identification of her separate property.
In light of the Texas Supreme Court’s view that the traditional legal and
factual sufficiency reviews are not adequate to accommodate the clear and
convincing burden of proof in parental termination proceedings, this court applies
the same heightened standard of review to separate-property findings in divorce
cases:
[W]hen we conduct a legal sufficiency review of a separate property
finding, we are instructed to look at all the evidence in the light most
favorable to the finding to determine whether a reasonable trier of fact
could have formed a firm belief or conviction that its finding was true.
Looking at the evidence in the light most favorable to the finding
means that we must (1) assume that the fact finder resolved disputed
facts in favor of its finding if a reasonable fact finder could do so, and
(2) disregard all contrary evidence that a reasonable fact finder could
have disbelieved or found to have been incredible. However, we are
not required to disregard undisputed facts that do not support the
finding, because that might skew a clear and convincing analysis. If
we determine that no reasonable fact finder could form a firm belief or
conviction of the truth of the matter to be proved, we must conclude
that the evidence is legally insufficient.
21
Stavinoha, 126 S.W.3d at 608 (citations to In re J.F.C., 96 S.W.3d 256, 266 (Tex.
2002), omitted); Zagorski, 116 S.W.3d at 314 (“When the burden of proof at trial
is by clear and convincing evidence, we apply a higher standard of legal and
factual sufficiency review.”). As for factual sufficiency review of a separate-
property finding,
[w]e must consider whether all of the evidence is such that a
factfinder could reasonably form a firm belief or conviction about the
truth of the allegations sought to be established. We should consider
whether disputed evidence is such that a reasonable fact finder could
not have resolved that disputed evidence in favor of its finding. If, in
light of the entire record, the disputed evidence that a reasonable fact
finder could not have credited in favor of the finding is so significant
that a fact finder could not reasonably have formed a firm belief or
conviction, then the evidence is factually insufficient. If we determine
the evidence is factually insufficient, we are to detail in our opinion
why we have concluded that a reasonable fact finder could not have
credited disputed evidence in favor of the finding.
Stavinoha, 126 S.W.3d at 609 (citations to J.F.C., 96 S.W.3d at 266–67, and In re
C.H., 89 S.W.3d 17, 25 (Tex. 2002), omitted); see Zagorski, 116 S.W.3d at 314.
“Even applying this heightened standard of review, a factual sufficiency point
requires the appellate court to examine all of the evidence in determining whether
the finding in question is so against the great weight and preponderance of the
evidence as to be manifestly unjust.” Zagorski, 116 S.W.3d at 314.
We first consider Gerald’s legal sufficiency challenge. Here, the trial
evidence consisted of: the parties’ prior agreed divorce decree describing the
$150,000 award to Leslea for her community interest in the Sunset property and
how, in the event of default, the house was to be sold, with Leslea entitled to the
balance on the debt from the sales proceeds; testimony by both parties that Gerald
22
only had paid $25,000 toward that debt; testimony by Leslea that she agreed to sell
the Sunset property and signed a release of lien prior to the parties’ remarriage, that
she released the lien because the proceeds of that sale were to go toward the
building and purchase of the Glenwood property as their family home, and that she
understood the remaining $125,000 was her separate property; and testimony by
Gerald that he purchased the Glenwood property before they were remarried and
that the proceeds to buy the Glenwood property could have come from the sale of
the Sunset property. Looking at it all the evidence in the light most favorable to
the separate-property finding, this documentary and testimonial evidence
sufficiently satisfies the clear and convincing standard; the trial court reasonably
could have formed a firm belief or conviction that Leslea was entitled to the
$125,000 as her separate property.
With regard to Gerald’s factual sufficiency challenge, the only evidence
arguably in dispute here concerns the circumstances of the release of lien Leslea
signed; however, the trial court reasonably could have resolved any disputed
evidence in favor of its implied finding that Leslea did not release the debt and of
its finding that she remained entitled to the $125,000 as her separate property.
Therefore, based on all the evidence, the trial court reasonably could have formed a
firm belief or conviction about the truth of Leslea’s claim to the $125,000 as her
separate property, and the court’s finding was not so against the great weight and
preponderance of the evidence as to be manifestly unjust.
We conclude that the evidence sufficiently supported the trial court’s
separate-property characterization of the $125,000. Because the trial court acted
within its discretion in making its property division, we overrule Gerald’s sub-
issue.
23
C. Did the trial court abuse its discretion by finding that the community
estate was entitled to reimbursement from Gerald’s separate estate?
In his third issue, Gerald contends that the trial court abused its discretion in
ordering him to reimburse the community estate for amounts allegedly expended to
improve the Glenwood property, which is part of Gerald’s separate estate. The
trial court found that the community estate was entitled to reimbursement in the
amount of $154,073 ($128,962 in principal reduction on the Glenwood property
and $25,111, which represents the use of the community tax return to pay for
repairs on Glenwood). Gerald argues that Leslea failed to present legally and
factually sufficient evidence of any enhancement in the Glenwood property’s
value.
Here, the evidence supports three types of reimbursements. First, the record
contains evidence showing how much the principal was paid down on the initial
mortgage and then on the refinanced mortgage taken out on the Glenwood
property. Second, the record also contains evidence showing that the parties took
out a home equity loan on the Glenwood property, which went toward a down
payment on a property in Corpus Christi, and showing how much the principal was
paid down on this loan. The amount of principal paid down on the three loans
totaled $128,962; Gerald does not dispute this amount or that the principal
reduction came from community funds. Third, Leslea testified that the parties’
2008 joint tax refund of $25,111 went toward debts related to window repairs on
the Glenwood property.
Reimbursement is an equitable right that arises when the funds or assets of
one estate are used to benefit and enhance another estate without itself receiving
some benefit. Vallone v. Vallone, 644 S.W.2d 455, 458–59 (Tex. 1982).
24
Reimbursement claims are governed by section 3.402 of the Texas Family Code
and can arise from a variety of expenditures or contributions. See TEX. FAM. CODE
ANN. § 3.402(a) (West Supp. 2012) (identifying nine categories of expenditures
that are included within the meaning of “a claim for reimbursement”). In a claim
for reimbursement, the trial court shall determine the rights of the parties and apply
equitable principles to determine whether to recognize the claim after considering
the parties’ relative circumstances and, in appropriate circumstances, order a
division of the claim in a just and right manner. TEX. FAM. CODE ANN. § 7.007
(West Supp. 2012). Because a trial court resolves claims for reimbursement under
equitable principles, claims for reimbursement may be offset against each other
where appropriate. Id. § 3.402(b). The party claiming the right of reimbursement
has the burden of pleading and proving that the expenditures were made and that
they are reimbursable. Vallone, 644 S.W.2d at 458–59. “[T]he payment by one
marital estate of the debt of another creates a prima facie right of reimbursement.”
Penick v. Penick, 783 S.W.2d 194, 196 (Tex. 1988). The party seeking an offset to
a claim for reimbursement bears the burden of proof with respect to the offset.
TEX. FAM. CODE. ANN. § 3.402(e). A trial court’s discretion in evaluating a claim
for reimbursement is equally as broad as that discretion exercised by a trial court in
making a just and right division of the community estate. Penick, S.W.2d at 198
(“In the final analysis, great latitude must be given to the trial court in applying
equitable principles to value a claim for reimbursement.”).
1. Section 3.402(d) does not apply to all claims under section
3.402(a).
Gerald contends that Leslea’s reimbursement claims fail because she failed
to meet the requirements of Texas Family Code section 3.402(d). Section 3.402(d)
25
provides: “Reimbursement for funds expended by a marital estate for
improvements to another marital estate shall be measured by the enhancement in
value to the benefitted marital estate.” TEX. FAM. CODE ANN. § 3.402(d) (emphasis
added). Gerald argues that the trial court abused its discretion in ordering
reimbursement because there is no evidence that the value of the Glenwood
property was enhanced. Gerald contends that in ordering his estate to reimburse
the community, the trial court was resolving a reimbursement claim under Texas
Family Code section 3.402(a)(5). Such a reimbursement claim consists of “the
reduction of the principal amount of that part of a debt, including a home equity
loan: (A) incurred during a marriage; (B) secured by a lien on property; and
(C) incurred for the acquisition of, or for capital improvements to, property.” Id.
§ 3.402(a)(5) (emphasis added).
We first will determine whether the trial court was bound by statute to
measure any of the reimbursement claims by the enhancement in value to the
Glenwood property; because Gerald’s assertion requires statutory review, we
review this claim de novo. Harris County Hosp. Dist., 283 S.W.3d at 842; see
Ross, 296 S.W.3d at 211.
“In construing a statute, our aim is to determine and give effect to the
Legislature’s intent, and we begin with the plain and common meaning of the
statute’s words.” Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex.
2012) (internal quotation marks and citations omitted). The legislature has
directed courts to employ the common usage rule, meaning that words and phrases
shall be read in context and construed according to the rules of grammar and
common usage, but also has directed that words in a statute be given a technical
meaning if such a meaning has been acquired by legislative definition or as a term
26
of art. Traxler v. Entergy Gulf States, Inc., No. 10-0970, 376 S.W.3d 742, 747
(Tex. 2012) (citing TEX. GOV’T CODE ANN. § 311.011 (West 2005)). We construe
statutes to give effect to every provision and ensure that no provision is rendered
meaningless or superfluous. Leordeanu v. Am. Prot. Ins. Co., 330 S.W.3d 239,
248 n.35 (Tex. 2010). And we presume that the legislature chooses a statute’s
language with care, including each word chosen for a purpose, while purposefully
omitting words not chosen. TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d
432, 439 (Tex. 2011) (citation omitted). If a statute is unambiguous, we adopt the
interpretation supported by its plain language, unless such an interpretation would
lead to absurd results. Id.
Although section 3.402(a) includes nine categories of reimbursement,
section 3.402(d) does not provide that claims for reimbursement generally shall be
measured by the enhancement in value to the benefited estate, but rather provides
that “[r]eimbursement for funds expended by a marital estate for improvements to
another marital estate shall be measured by the enhancement in value to the
benefited marital estate.” TEX. FAM. CODE ANN. § 3.402(d). The legislature
purposefully included the modifying phrase “for improvements to another marital
estate” to limit the type of reimbursement claim required to be measured by the
enhancement in value to the benefited estate. The term “improvements” also
appears in three of the nine enumerated categories of section 3.402 reimbursement
claims—subsections (a)(5), (a)(6),6 and (a)(8).7 In these three instances, the
precise phrase employed is “capital improvements.”
6
TEX. FAM. CODE ANN. § 3.402(a)(6) (covering “the reduction of the principal amount of
that part of a debt: (A) incurred during a marriage; (B) secured by a lien on property owned by a
spouse; (C) for which the creditor agreed to look for repayment solely to the separate marital
27
“Improvements” is not defined in the reimbursement subchapter, see id.
§ 3.401, or elsewhere in the Family Code. The Texas Supreme Court has provided
this definition: “An improvement includes all additions to the freehold except for
trade fixtures which can be removed without injury to the property.” Sonnier v.
Chisholm-Ryder Co., Inc., 909 S.W.2d 475, 479 (Tex. 1995) (interpreting section
16.009 of Texas Civil Practice and Remedies Code). Courts have treated items
such as home construction,8 renovations to a ranch house,9 and building stock tanks
on a farm10 as improvements for purposes of reimbursement. “Capital
improvements” also is not defined in the reimbursement subchapter, see TEX. FAM.
CODE ANN. § 3.401, or elsewhere in the Family Code. Leslea asserts that a
reduction in principal is not a “capital improvement to property.” In Nelson v.
Nelson, the Eastland court of appeals interpreted the former economic contribution
statute, which had included a statutory right of reimbursement for the reduction of
the principal amount of a prenuptial debt secured by a lien on property owned
before the marriage, and held that “[t]he payment of an antecedent debt for the
acquisition of property, without more, is not a capital improvement to property.”
193 S.W.3d 624, 629 (Tex. App.—Eastland 2006, no pet.). In cases applying the
former economic contribution statute, home repairs and maintenance also were not
capital improvements. See Garza v. Garza, 217 S.W.3d 538, 547 (Tex. App.—San
Antonio 2006, no pet.); Moroch v. Collins, 174 S.W.3d 849, 865 (Tex. App.—
estate of the spouse on whose property the lien attached; and (D) incurred for the acquisition of,
or for capital improvements to, property”).
7
Id. § 3.402(a)(8) (covering “capital improvements to property other than by incurring
debt”).
8
Nelson v. Nelson, 193 S.W.3d 624, 632–33 (Tex. App.—Eastland 2006, no pet.).
9
Zieba, 928 S.W.2d at 788–89.
10
Allen v. Allen, 704 S.W.2d 600, 606 (Tex. App.—Fort Worth 1986, no writ).
28
Dallas 2005, pet. denied). In contrast, for purposes of the former economic
contribution statute, courts have treated items such as the addition of tile to a
home11 and construction of a garage and home remodeling12 as capital
improvements.
Thus, a plain reading of section 3.402(d) indicates that where a claimant
particularly seeks reimbursement for funds expended by a marital estate for
improvements, which would include capital improvements, to another marital
estate, any reimbursement would be measured by the increase in value to the
benefited estate. Therefore, if Leslea sought reimbursement for funds expended by
the community estate for improvements, including capital improvements, to
Gerald’s separate estate, any reimbursement would have to be measured by the
enhancement in value to Gerald’s benefited estate.
2. The trial court did not find that Leslea sought reimbursement
for funds expended by the community estate for
improvements.
Here, the trial court found that the community estate was entitled to
reimbursement from Gerald’s separate estate in the amount of $154,073 ($128,962
in principal reduction on the Glenwood property and $25,111 for a tax refund used
for repairs to the Glenwood property), and specifically found that it had considered
the community-reimbursement claims in making its property division. The record
contains evidence showing how much the principal was paid down on the initial
mortgage and then on the refinanced mortgage taken out on the Glenwood
11
Zoller v. Zoller, No. 01-09-00992-CV, 2011 WL 1587358, at *5 (Tex. App.—Houston
[1st Dist.] Apr. 21, 2011, no pet.) (mem. op.).
12
Moroch, 174 S.W.3d at 863–64.
29
property. The record also contains evidence showing that the parties took out a
home equity loan on the Glenwood property, which went toward a down payment
on a property in Corpus Christi, and showing how much the principal was paid
down on this loan. Gerald does not dispute that the amount of principal paid down
on the three loans totaled $128,962 or that the principal reduction came from
community funds. Finally, Leslea testified that the parties’ 2008 tax refund of
$25,111 went toward debts related to window repairs on the Glenwood property;
Gerald testified that those repairs only totaled $13,000 and were covered by
warranty.
The trial court issued no finding acknowledging any improvements or
capital improvements to the Glenwood property; and to the extent Leslea sought
reimbursement based on any improvements or capital improvements, as opposed to
repairs, the court impliedly denied that claim.13
3. The trial court’s reimbursement award did not concern any
improvements under section 3.402(d).
Leslea contends that the bulk of the reimbursement award was based on a
claim under a different statutory provision, section 3.402(a)(3), applicable to “the
reduction of the principal amount of a debt secured by a lien on property owned
before marriage, to the extent the debt existed at the time of marriage.” See TEX.
FAM. CODE ANN. § 3.402(a)(3). We agree. The reduction in principal of the initial
and refinanced mortgages reasonably fall under subsections (a)(3) and (a)(7),14
13
Leslea provided further testimony regarding, and included in her trial inventory and
proposed property division, a $60,000 reimbursement claim for home remodeling to the
Glenwood property.
14
Section 3.402(a)(7) covers “the refinancing of the principal amount described by
Subdivisions (3)-(6), to the extent the refinancing reduces that principal amount in a manner
30
respectively, of section 3.402. In addition, the reduction in principal of the home
equity loan falls under subsection (a)(5), and the tax refund used for home repairs
reasonably falls under subsection (a)(1)15 or (a)(9).16 To the extent that a
reimbursement claim under subsection (a)(5) could involve any “capital
improvements,” the evidence here showed that the home equity loan went toward
the acquisition of—not any capital improvements to—property in Corpus Christi.
Thus, none of the reimbursement claims awarded concerned improvements, and
therefore, the trial court was not required to measure any of these claims by the
enhancement in value to Gerald’s separate estate under section 3.402(d). See id.
§ 3.402(d).
4. The trial court did not abuse its discretion.
Next, we consider whether the trial court abused its broad discretion in
evaluating the reimbursement claims. With regard to the reduction in principal
finding, aside from attacking the lack of evidence showing value enhancement to
the Glenwood property, Gerald presents no additional legal or factual sufficiency
challenge. Instead, Gerald argues that the court issued an improper “dollar for
dollar” reimbursement on the reduction of principal, without considering any tax or
community benefits. However, under section 3.402, if Gerald sought any offsets to
a claim for reimbursement, he was required to prove the offsets. See id. § 3.402(e).
Gerald presented no evidence tending to show the existence of, and his separate
described by the applicable subdivision.” TEX. FAM. CODE ANN. § 3.402(a)(7). Here, the
subsection (a)(7) refinancing concerned the initial mortgage on the Glenwood property under
subsection (a)(3).
15
Id. § 3.402(a)(1) (covering “payment by one marital estate of the unsecured liabilities
of another marital estate”).
16
Id. § 3.402(a)(9) (covering “the reduction by the community property estate of an
unsecured debt incurred by the separate estate of one of the spouses”).
31
estate’s entitlement to, any such offsets,17 much less their amounts. Moreover,
section 3.402(c) forecloses any complaint by Gerald about the trial court’s failure
to offset any community benefits for use and enjoyment of the Glenwood property.
Id. § 3.402(c) (“[T]he separate estate of a spouse may not claim an offset for use
and enjoyment of a primary or secondary residence owned wholly or partly by the
separate estate against contributions made by the community estate to the separate
estate.”).
With regard to the tax refund, Gerald contends that Leslea’s evidence
concerning the repairs to the Glenwood property was legally and factually
insufficient to support the trial court’s $25,111 reimbursement finding. We review
sufficiency challenges to trial court findings of fact by the same standards we apply
in reviewing a jury’s findings. Zagorski, 116 S.W.3d at 314. That is, we review
the evidence in the light most favorable to the challenged finding and indulge
every reasonable inference that would support it, crediting favorable evidence if a
reasonable fact finder could, and disregarding contrary evidence unless a
reasonable fact finder could not. Harrison, 321 S.W.3d at 901–02. Here, Leslea
testified she was “one hundred percent positive” that Gerald used all of their 2008
tax refund—in the amount of $25,111—to pay back debt on window repairs to the
Glenwood property. In contrast, Gerald testified that the repairs cost about
$13,000 and that they were covered under warranty. As trier of fact, the trial court
was entitled to credit Leslea’s testimony regarding the tax refund and its use
toward, and the amount of, Gerald’s separate-property repair debt. We conclude
17
Certain Texas appellate courts have concluded that no offsetting benefits even could
exist here, where the trial court only recognized reimbursement on the principal reduction for the
property, as opposed to reimbursement for interest, taxes, or insurance. See, e.g., Rogers v.
Rogers, 754 S.W.2d 236, 240 (Tex. App.—Houston [1st Dist.] 1988, no writ); Nelson v. Nelson,
713 S.W.2d 146, 148 (Tex. App.—Texarkana 1986, no writ).
32
that fair-minded people could find the community estate was entitled to
reimbursement for the $25,111 tax refund. Thus, Gerald’s legal sufficiency
argument fails. With regard to a factual sufficiency challenge, we examine the
entire record, and after considering and weighing all the evidence, we only set
aside the fact finding if it is so contrary to the overwhelming weight of the
evidence as to be clearly wrong and unjust. Ahmed v. Ahmed, 261 S.W.3d 190,
194 (Tex. App.—Houston [14th Dist.] 2008, no pet.). Here, based on such review,
we cannot say that the trial court’s $25,111 reimbursement award is so contrary to
the overwhelming weight of the evidence to be clearly wrong and unjust.
Accordingly, we cannot say that the trial court abused its discretion in
ordering the community reimbursed for amounts spent in repairing the Glenwood
property and reducing the principal amount of debt on it. We overrule Gerald’s
third issue.
D. Did the trial court abuse its discretion in its division of the community
estate?
In his final issue, Gerald essentially asserts that the trial court erred in
awarding Leslea $125,000 as her separate property and in making a $154,073
reimbursement award to the community estate, and that these errors prevented the
court from making a just and right division of the community estate.
Gerald has not presented this court with any specific complaints beyond
those described in detail and overruled above. Here, the trial court heard two days
of testimony, including from the parties, their tax preparer licensed by the Treasury
Department, and two expert CPAs; admitted over 30 exhibits; and issued a final
divorce decree, along with two sets of findings of fact and conclusions of law.
Based on our review of the record here, and not being presented with any specific
33
efforts to rebut the presumption of the trial court’s proper exercise of its broad
discretion, we cannot conclude that the court acted arbitrarily, unreasonably, or
without regard to any guiding rules or principles. Therefore, we overrule Gerald’s
fourth issue.
VI. CONCLUSION
Because the record supports the trial court’s express findings that the
$125,000 debt was due to Leslea as her separate property as a derivative of the
prior divorce award and that the community estate was entitled to reimbursement
from Gerald’s separate estate for reduction in principal of and repairs to the
Glenwood property, and its omitted finding that the equitable lien it was imposing
on the Glenwood property was an implied purchase-money lien, we conclude that
the trial court did not abuse its discretion in awarding Leslea a $125,000 money
judgment, to be secured against the Glenwood property, and in ordering that
Gerald’s separate estate reimburse the community estate in the amount of $154,073
as part of its property division. Finding no error in the trial court’s specific awards,
we further conclude that Gerald has failed to overcome the presumption that the
trial court did not abuse its discretion in dividing the community property. We
accordingly affirm the trial court’s judgment.
/s/ Tracy Christopher
Justice
Panel consists of Justices Frost, Christopher, and Jamison. (Frost, J., concurring).
34