James Edward Kibodeaux, Jr. v. Mary Katherine Musslewhite ( 2005 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-04-00223-CV

in the matter of

the marriage of

James Edward Kibodeaux, Jr.,

                                                                      Appellant

AND

Mary Katherine Musslewhite,

                                                                      Appellee

From the 1A District Court

Jasper County, Texas

Trial Court No. 24764

DISSENTING AND CONCURRING Opinion

          Appellee does not contest appellant’s issues 5-8 and does not ask the judgment as to that amount be affirmed.  There is no evidence as to the amount of the depreciation of the trailer.  I concur that the judgment as to this amount needs to be reformed.

          However, there are substantial problems with the Court’s analysis of issues 1-4.  The most fundamental problem is that included in the list of items which total $4,015.98, is an amount of $500.00 identified merely as “deductible.”  We have to make some assumptions because the evidence of what is on the list is so inadequate, but this appears to be the deductible amount on the insurance policy covering the trailer repairs.

Thus, regardless of what can be said about the other amounts included in the list, the $500.00 deductible is directly related to the trailer repairs, the decline in the value of the trailer, if any, and whether or not this payment, which was apparently made during the marriage, had been paid with community property.  There is simply no evidence to show this payment was made from separate property.  Further, this amount also appears to be duplicated as a separate line item in the trial court’s judgment.  (“H-1 $500 (insurance deduction)”).  Finally, this may be the only time I have ever seen a reimbursement for “groceries, can goods, etc. & necessary items such as candles, bottled water, matches, etc., toiletries” that a party brought to the marriage but with which the party did not leave the marriage, thus entitling that party to reimbursement.  The mere listing of items alleged to have been brought into a marriage with a dollar amount next to each item or group of items is simply inadequate evidence of the character and value for which the separate estate of Musslewhite should be reimbursed.  I would reverse this part of the trial court’s judgment and remand the case for further proceedings consistent with this opinion.[1]

          Accordingly, I dissent to the Court’s disposition of issues 1-4.

                                                                   TOM GRAY

                                                                   Chief Justice

Dissenting and concurring opinion delivered and filed July 13, 2005

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[1] I note that the judgment made no distinction about what property on hand was actually separate property or community property and whether these amounts were being awarded as reimbursement from one marital estate to another.  But I responded to the issues as they have been presented on appeal by the parties.