in the Matter of the Marriage of Andy Lane McClure and Gina Diane McClure and in the Interest of S.N.M., a Child ( 2005 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-04-00097-CV

IN THE MATTER OF

THE MARRIAGE OF

ANDY LANE McCLURE

AND

GINA DIANE McCLURE

AND

In the Interest of S.N.M., a Child

From the 249th District Court

Somervell County, Texas

Trial Court No. D-04299

memorandum Opinion

      Andy Lane McClure appeals the trial court’s division of the community estate on Andy’s divorce from Gina Diane McClure.  In two issues, Andy contends that the trial court erred in awarding certain funds to Gina as separate property.  We affirm.

Rebuttal of Community-Property Presumption

      In Andy’s first issue, he complains in three sub-issues that Gina did not rebut the community-property presumption.

Uncorroborated Testimony

      In his first sub-issue, Andy argues that the testimony of Gina and her father was insufficient to rebut the community-property presumption.  Andy cites one case for the proposition that the uncorroborated testimony of a spouse is insufficient.  Boyd v. Boyd, 131 S.W.3d 605 (Tex. App.—Fort Worth 2004, no pet.).  Assuming this is so, Boyd is not on point, since Gina’s testimony was corroborated.

Condition on Gift

      In his second sub-issue, Andy argues that the funds at issue could not have constituted a gift from Gina’s father to Gina, because Gina’s father put a condition on the transfer of certain real property.  Andy’s argument, however, does not address why the funds were not properly characterized as separate property.  Rather, Andy attempts to impose on the funds a condition related to the tract of real property on which those funds were spent by the construction of the house.  He does not argue, however, that there was any condition on the funds or on what the funds could be spent for.

Gift Tax Return

      In his third sub-issue, Andy argues that the trial court could only have considered the testimony of Gina’s father that he gave Gina the funds as “false as a matter of law,” since Gina’s father did not produce federal gift tax returns.  Andy cites no authority for this argument, and thus waives the sub-issue.  See Tex. R. App. P. 38.1(h); Cathey v. Meyer, 115 S.W.3d 644, 656 (Tex. App.—Waco 2003, pet. filed).  In any event, Andy’s argument is closely related to the estoppel argument that we rejected in Byrd v. Estate of Nelms.  See Byrd v. Estate of Nelms, 154 S.W.3d 149, 159-60 (Tex. App.—Waco 2004, pet. filed).

      We overrule Andy’s first issue.

Intent of Donor’s Spouse

      In Andy’s second issue, he argues that there was no evidence that Gina’s mother intended that the funds at issue be a gift to Gina.  Andy cites no authority for this argument, and thus waives the issue.  See Tex. R. App. P. 38.1(h); Cathey, 115 S.W.3d at 656.  In any event, Andy’s argument is essentially that Gina’s father committed fraud on the community estate of Gina’s father and mother, an argument that Andy has no standing to make.  We overrule Andy’s second issue.

      Having overruled Andy’s issues, we affirm the judgment.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

      (Justice Vance concurs in the result without a separate opinion)

Affirmed

Opinion delivered and filed July 6, 2005

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