In the Matter of the Marriage of Victoria Nicole Ustanik and Anthony Michael-Ross Ustanik and in the Interest of H.E.U. and J.M.U., Children v. the State of Texas ( 2023 )

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-22-00077-CV
IN THE MATTER OF THE MARRIAGE OF
VICTORIA NICOLE USTANIK AND ANTHONY MICHAEL-ROSS USTANIK
AND IN THE INTEREST OF H.E.U. AND J.M.U., CHILDREN
On Appeal from the 18th District Court
Johnson County, Texas
Trial Court No. DC-D202101006
Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Chief Justice Stevens
MEMORANDUM OPINION
Anthony Michael-Ross Ustanik appeals a final decree divorcing him from Victoria
Nicole Ustanik. In his sole point of error, Anthony argues that he received, as a gift from his
parents, the land on which the marital home was built and that, as a result, the trial court
mischaracterized the marital home as community property.1 Based on the unambiguous
language of the general warranty deed executed during the marriage, the trial court found that
Anthony did not meet his burden to rebut the community property presumption. Because we
agree with the trial court, we affirm the trial court’s judgment.
I. The Relevant Facts
Anthony and Victoria were married on July 17, 2010. During the marriage, Anthony
acquired property located at 4833 East Renfro Street, Alvarado, Texas (the Property), from his
parents, Mike and Teresa Ustanik. The original deed to the Property was filed with the county
clerk on October 29, 2014. It was labeled as a warranty deed, listed Mike and Teresa as grantors,
and recited that “ANTHONY USTANIK, A MARRIED PERSON,” was the grantee. The
original deed stated that consideration of $10.00 “and other good and valuable consideration”
had been made to acquire the Property. It further stated, “Grantor, for the consideration . . . ,
grants, sells, and conveys to Grantee the property.” On February 9, 2015, a “Correction”
warranty deed was “re-recorded to correct [the Property’s] legal description,” but nothing else
was changed.
1
Originally appealed to the Tenth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. We follow the precedent of
the Tenth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.
2
At trial, Victoria testified that $1,750.00 was paid to Anthony’s parents for the Property’s
conveyance from a joint bank account.2 Anthony denied this, and both Anthony and Mike
testified that only $10.00 was paid in consideration for the Property. Victoria and Anthony were
both listed on the construction loan application obtained to build the marital home on the
Property, and their application reflected that title would be held “Jointly with Spouse.”
Anthony claimed the Property as his separate property, characterized it as his
“inheritance,” and said his “family had always planned on giving [him] an acre of land.”
Anthony, Mike, and Teresa testified that other family members owned ninety acres of land in the
area and that, to keep the family close together, the Property was intended to be a gift to
Anthony. Mike added that the original and correction deeds (collectively the Deeds)
intentionally left off Victoria’s name because he and Teresa wanted to gift the Property to
Anthony “as like an early inheritance.”
After hearing this evidence, the trial court found that the Deeds were unambiguous and
did not reflect any intent to gift the Property. The trial court further found that parol evidence
suggesting that the Property was a gift was barred by the four corners of the Deeds.3 As a result,
the trial court concluded that Anthony had failed to rebut the community property presumption.
II. Standard of Review
“The Texas Family Code requires the trial court to divide a marital estate in a ‘just and
right’ manner, considering the rights of the parties.” In re Marriage of Moncey, 404 S.W.3d 701,
2
Victoria introduced a joint bank account statement showing that a $1,750.00 check was written on the day after a
survey on the Property was completed, but the bank statement failed to list the payee of the check.
3
The trial court wrote, “[Anthony] may wish that the language of the deed was different now . . . ; however, that
does not open the instrument to second guessing by the Court.”
3
706 (Tex. App.—Texarkana 2013, no pet.) (citing TEX. FAM. CODE ANN. § 7.001); see Scott v.
Scott, 805 S.W.2d 835, 841 (Tex. App.—Waco 1991, writ denied). “Trial courts can only divide
community property, and the phrase ‘estate of the parties’ encompasses the community property
of a marriage . . . .” Pearson v. Fillingim, 332 S.W.3d 361, 363 (Tex. 2011) (per curiam).
“Property possessed by either spouse during or on dissolution of marriage is presumed to
be community property.” TEX. FAM. CODE ANN. § 3.003(a). To rebut this presumption, the
person seeking to prove the separate character of the property must do so by clear and
convincing evidence.4 TEX. FAM. CODE ANN. § 3.003(b). Separate property is the property
owned before marriage as well as “property acquired . . . during marriage by gift, devise, or
descent.” TEX. FAM. CODE ANN. § 3.001. All other property belonging to the parties that is not
separate property is community property. TEX. FAM. CODE ANN. § 3.002. “Any doubt as to the
character of property should be resolved in favor of the community estate.” In re Marriage of
Price, No. 10-14-00260-CV, 2015 WL 6119457, at *7 (Tex. App.—Waco Oct. 15, 2015, no pet.)
(mem. op.).
“The characterization of property as either community or separate is determined by the
inception of title to the property.” Id. at *6; see In re Marriage of Taylor, No. 06-14-00061-CV,
2015 WL 428121, at *3 (Tex. App.—Texarkana Feb. 3, 2015, no pet.) (mem. op.) (citing Barnett
v. Barnett, 67 S.W.3d 107, 111 (Tex. 2001)). “Inception of title occurs when a party first has a
4
“‘Clear and convincing evidence’ means the measure or degree of proof that will produce in the mind of the trier of
fact a firm belief or conviction as to the truth of the allegations sought to be established.” TEX. FAM. CODE ANN.
§ 101.007.
4
right of claim to the property by virtue of which title is finally vested.” In re Marriage of Price,
2015 WL 6119457, at *6.
“In order to overcome the community presumption, the burden is on the spouse claiming
certain property as separate to trace and clearly identify the property claimed to be separate.” Id.at *7 (citing Estate of Hanau v. Hanau, 730 S.W.2d 663, 667 (Tex. 1987)); see Cockerham v.
Cockerham, 527 S.W.2d 162, 167 (Tex. 1975).
III. Anthony Did Not Meet His Burden to Rebut the Community Property Presumption
Because the Property was acquired during the marriage, Anthony bore the burden to
show that the marital home was his separate property. See TEX. FAM. CODE ANN. § 3.003(b).
Anthony argues that he accomplished this feat because the Deeds were “gift deeds” and created a
presumption that the Property was a gift. We disagree.
Our analysis requires us to first review the language of the Deeds. “The construction of
an unambiguous deed is a question of law for the court,” which we review de novo. Wenske v.
Ealy, 521 S.W.3d 791, 794 (Tex. 2017) (quoting Luckel v. White, 819 S.W.2d 459, 461 (Tex.
1991)). “When construing an unambiguous deed, our primary duty is to ascertain the intent of
the parties from all of the language within the four corners of the deed.”5 Id. (citing Luckel, 819
S.W.2d at 461). “What controls is the intent that was actually expressed in the language of the
deed, not what the parties privately intended but failed to express.” Aaron v. Fisher, 645 S.W.3d
299, 307 (Tex. App.—Eastland 2022, no pet.).
5
Anthony advances no appellate argument alleging that the Deeds are ambiguous. After reviewing the Deeds, we
agree with the trial court’s conclusion that they are unambiguous.
5
“A gift is a voluntary transfer of property to another made gratuitously and without
consideration.” Lopez v. Lopez, 271 S.W.3d 780, 788 (Tex. App.—Waco 2008, no pet.). The
original and correction deeds contain no language indicating that the Property was given to
Anthony as a gift. Instead, they recite that consideration was exchanged and that, “for the
consideration,” the Property was granted, sold, and conveyed to Anthony.6
Even so, in support of his argument that the Deeds created a presumption of gift,
Anthony cites to Kyles v. Kyles, 832 S.W.2d 194 (Tex. App.—Beaumont 1992, no pet.), but his
reliance on that case is mistaken. In Kyles, three deeds conveying property to the wife during the
marriage contained separate property recitals specifying that the property was being conveyed as
the wife’s “sole and separate property.”7 Id. at 196. The Beaumont Court of Appeals correctly
concluded that those separate property recitals “displaced the normal presumption of community
property, and create[d] a new presumption that the property [wa]s [the wife’]s separate
property.” Id. (citing Hodge v. Ellis, 277 S.W.2d 900, 904 (Tex. 1955)); see In re Marriage of
Nash, 644 S.W.3d at 702–03; see also In re Marriage of Crist, 661 S.W.3d 623, 627–28 (Tex.
App.—El Paso 2023, no pet.) (discussing the separate property recitals). Here, however, a plain
reading of the Deeds reveal that there was no separate property recital and that, as a result, the
normal presumption of community property prevailed, even if Victoria was not named as a
grantee, because the Property was acquired during the marriage and “the community
6
There was no evidence that the consideration paid by Anthony came from his separate property funds.
7
“A ‘separate property recital’ is a recital in an instrument that the consideration comes from the separate property of
a spouse or that the property is transferred to a spouse as the transferee’s separate property or for the transferee’s
separate use.” In re Marriage of Nash, 644 S.W.3d 683, 703 (Tex. App.—Texarkana 2022, no pet.) (quoting
Cardenas v. Cardenas, No. 13-16-00064-CV, 2017 WL 1089683, at *2 (Tex. App.—Corpus Christi–Edinburg
Mar. 23, 2017, no pet.) (mem. op.)).
6
presumption is not contradicted by legal title in just one spouse.” In re Marriage of Nash, 644
S.W.3d at 700 (quoting Tipps v. Chinn Expl. Co., No. 06-13-00033-CV, 2014 WL 4377813, at
*2 (Tex. App.—Texarkana Sept. 5, 2014, pets. denied) (mem. op.)).
Next, Anthony argues that the community presumption was rebutted by testimony at trial
stating that the Property was a gift from his parents. Yet, “parol evidence is not admissible to
contradict the recital of consideration in a deed if a party seeks to prove that the deed is actually
a ‘gift’ deed.” Aaron, 645 S.W.3d at 307 (citing Johnson v. Driver, 198 S.W.3d 359, 363–64
(Tex. App.—Tyler 2006, no pet.); Massey v. Massey, 807 S.W.2d 391, 405 (Tex. App.—
Houston [1st Dist.] 1991, writ denied)); see Scott v. Scott, No. 04-17-00155-CV, 2018 WL
2694817, at *2 (Tex. App.—San Antonio June 6, 2018, no pet.) (mem. op.). This is because,
when we can ascertain the parties’ intent from the language of the deed, “that should [generally]
be the end of our analysis.” Wenske, 521 S.W.3d at 794.
We find that the trial court was correct in determining that the community property
presumption prevailed because Anthony failed to rebut it with clear and convincing evidence.
As a result, we overrule Anthony’s sole point of error.
IV. Conclusion
We affirm the trial court’s judgment.
Scott E. Stevens
Chief Justice
Date Submitted: May 17, 2023
Date Decided: May 24, 2023
7