AFFIRM; Opinion issued December 13, 2012
in The
G!tinrt rif Apprahi
Fifti! itrirt rf xas at 1a11a
No. 05-11 -00648-CV
KAY MOTLEY, Appellant
V.
THOMAS D. MOTLEY, Appellee
On Appeal from the 429th .Judicial District Court
Collin County, Texas
Trial Court Cause No. 429-52578-2010
OPINION
Before Justices Morris. Francis, and Murphy
Opinion By Justice Morris
This is an appeal from ajudgment making a property division incident to the divorce of Kay
Motley and Thomas 1). Motley. Appellant Kay Motley challenges the trial court’s judgment
claiming the trial court abused its discretion in making its award. Concluding that appellant failed
to establish reversible error on the part of the trial court, we affirm the trial court’s judgment.
Appellant and appellee married in January 2005. It is undisputed that. before the marriage.
appellant owned real property in Farmersville, Texas as her separate property. A few months after
the marriage, appellant attempted to refinance the Farmersville property. When appellant was unable
to complete the transaction on her own, appellee agreed to sign the note. Appellant acknowledged
executing a deed that granted appellee an undivided one—halt interest in the Farmersville property
as part of the rcflnaiicing transaction. 1 he deed was recorded in the property records of (‘ohm
(‘ountv Appellant testified, however, that she did not understand appellee was getting an interest
.
in the Farmersville property as part ol the refinancing transaction and that she would not have
relinanced had she known he was going to receive an interest in the property. She also denied giving
him an interest in the property.
During the marriage, the parties purchased real property in Merit, Texas on which they
operated an organic farming business. Appellee apparently used some cash from the sale of his
separate real property to close the purchase of this property. The couple lived, however, on the
Farmersville property during the marriage. Appellant tiled for divorce in May 2010.
On June 1 8. 201 0, the parties appeared fbr a hearing. At that time. appellants attorney
represented that although the parties had reached a Rule I I agreement. it had not yet been signed.
The trial court then heard evidence on temporary spousal support and attorney’s fees. The trial court
ordered appellee to pay appellant $250 per week for 9() days, but denied her request for attorney’s
fees. Later that day, the parties signed the Rule 11 agreement. Among other things, the Rule 11
agreement provided that the Farmersville house and property be listed for sale with a licensed realtor
mutually agreed upon by the parties. In August of 2010, appellant moved to set aside the Rule 11
agreement. Appellee filed a motion to compel compliance with the Rule 11 agreement. After a
hearing on December 10, 2010. the trial court denied appellant’s motion to set aside the Rule 11
agreement. granted appellee’s motion to compel compliance with the agreement, and ordered the
matter to proceed to trial.
The case was tried before the court without a jury in February 2011. After hearing the
evidence, the trial court signed a final divorce decree that included an order for sale of the
Farmersville property. 1 he trial court awarded appellant sixty—live percent of the net proceeds of
that sale and appellee the remaining thirty—five percent. The trial court also ordered the sale of the
Merit property, awarded appellee $11,760.44 as reimbursement for his separate property
contributions to the property, and awarded each party fifty percent of the net sale proceeds. The trial
court further awarded appellee all retirement accounts, employee pensions. annuities, and variable
annuity Ii Ic insurance benefits held in his name.
The trial court filed findings of fact and conclusions of law. Notably, the trial court found
that although appellant acquired and owned the Farmersville property before the marriage as her
separate property. she knowingly and intentionally conve ed to appellee an undivided one-half
interest in the property as a gift during the marriage. The trial court further found that appellee
accepted the conveyance of the interest in the Farmersville property and that the deed evidencing
the conveyance was recorded in the real property records of Collin County. Additionally, the trial
court found that appellant benefitted in conveying an undivided one-half interest in the Farmersville
property to appellee by being able to refinance the mortgage on the property and substantially lower
the monthly payment. Noting the Farmcrsville property was the separate property ofboth parties,
the trial court further found the only remedy available to the court was to order its sale “thereby
converting the property from undivided separate real property to cash to be divided as the separate
property of the parties pursuant to the formula set forth in the decree.”
The trial court also made fact findings relating to the parties’ Rule 11 agreement including:
(1) the parties voluntarily entered into the agreement to sell the Farmersville property and intended
the agreement to be irrevocable; (2) the agreement was enforceable as a contract and this issue was
tried by consent; and (3) the trial court would have ordered the sale of the Farmersville property
regardless of the existence or enforceability of the Rule 11 agreement.
Relevant to appcllee’s retirement account. the trial court found that although community
contributions were made to his retircn ent fund with the Dallas County Community College District.
appellee withdrew at least $5 1,977 tiom his retirement funds to support the lifestyle of the parties
and improve the Merit property. Ihe trial court further found that this withdrawal amount iar
exceeded ihe amount of community contributions to the retirement fund and that applying the
communi ly-out- first presumption. there were no community funds remaining in appellee’ s
retirement account. Moreover. to the extent any community funds remained in appellees retirement
fund. appellee should receive one hundred percent of such funds as a just and right division of the
community estate. Additionally, the trial court found: (1) appellee’s retirement account on the date
of marriage was valued at $688,913: (2) the retirement account was worth $703,396 on the date of
divorce: (3) the account increased in value $1 4.483 during the marriage: (4) the total value of the
community contribution withheld from the paychecks of appellec and applied to the retirement
account during the marriage was about $25,000; and (5) the total value of the community
contribution remaining in the retirement account was zero due to the withdrawal of more than
$95,997 of appellee’s retirement savings during the marriage.
Appellant timely appealed and, in eight issues, generally argues that the trial court abused
its discretion in: (1) ordering the sale of real property that was her separate property; (2) ordering that
the proceeds from the sale be used to pay general community creditors; (3) undervaluing appellee’s
retirement account and awarding him the retirement account’s entire community interest; and (4)
awarding appellee a reimbursement claim in favor of his separate estate for a down payment on real
property purchased by the parties during the marriage.
II.
We begin our analysis with appellant’s challenges to the trial court’s characterization and
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disposition of the 1armersville property. Appellant contends that the Earmersville property was her
separate propert\ entirely, that appellee had no interest in it. and the trial court erred by ordering the
properly sold. When reviewing an alleged property characterization error, we must determine
whether the trial courts linding is supported by clear and convincing evidence. See Trx. FAr’.i.
CODE ANN. 3.003(1)) (West 2006) (degree ol proof necessary to establish separate property is “clear
and convincing”). ha characterization error is established, we determine whether the error caused
the trial court to abuse its discretion. Magness v. Magness, 241 S.W 3d 910, 912 (Tex.
App.—Dallas 2007, pet. denied). In conducting our analysis, we give due consideration to evidence
that the finder of fact could have reasonably found to be clear and convincing and then determine
whether, based Ofl the entire record, a fact finder could form a firm conviction or belief that the fact
was proven, hi. There is no abuse of discretion if there is some substantive and l)rObative evidence
to support the finding, Id. A deed for property from one spouse as grantor to the other spouse as
grantee creates a presumption that the grantee spouse received the property as separate property by
gift. Id. The presumption may be rebutted by Proof the deed was procured by fraud, accident, or
mistake. Id. at 912—13.
The facts and issue before us are very similar to those in Magness. See Id. Appellant
contends the Farmersville property was her separate property but does not dispute that she signed
a deed transferring an undivided one-half interest in the Farmersville property to appellee. The deed,
with her signature. was admitted as an exhibit at trial. However, appellant testified that she did not
understand appellee was getting an interest in the Farmersville property as part of the refinancing
transaction and that she would not have refinanced had she known he was going to receive an
interest in the property’. She also denied giving him an interest in the property. As fact finder.
however, the trial court was free to disbelieve any or all of appellant’s testimony and conclude that
appellant failed to the rebut the gift presumption. Id. at 913. Based on the record before us. the trial
court did not abuse its discretion in awarding appellee an undivided one-half interest in the
Farmersville property. See itt at 913. We resolve appellant’s fifth issue against her.
Having concluded that the trial court did not err in finding each party owned an undivided
one-half interest in the Farmersville property, we now turn to appellant’s contention that the trial
court erred in ordering the sale of the property. In her second issue, appellant claims that because
she revoked her consent to the Rule 11 agreement, and she did not otherwise agree or consent, the
trial court was without authority to order the sale. Appellant argues specifically that even if each
party owns a one-halfseparate property interest in the Fannersville property, the trial court could not
order its sale because the community had no interest in the property. To preserve a complaint for
appeal, the record must show the complaint was made with sufficient specificity to make the trial
court aware ofthe complaint. TEx. R. An. P.33.1(a). In the trial court, appellant complained about
the order for sale of the Fannersville property asserting it was entirely her separate property. She
did not challenge the order for sale on the grounds she now raises on appeal. Accordingly, she has
not preserved this issue for appellate review. See itt
Even if we assume the issue was properly preserved below, we are not persuaded that
appellant has shown any reversible error in connection with her complaint. In support of her
position, appellant cites Cameron v. Cameron, 641 S.W.2d 210 (Tex. 1982); Eggemeyer v.
Eemeyer. 554 S.W.2d 137 (Tex. 1977); Mogfordv. Mogford. 616 S.W.2d 936 (Ta. App.—San
Antonio 1981. writ ref’dn.r.e.); and Germani i’. Gerami. 666 S.W.2d 241 (Tex. App.—Houston th
14
[
Dist] 1984, no writ). After reviewing the cases cited, we conclude they do not support appellant’s
position. Mogford stands for the proposition that an order ofsale ofproperty in which the appellant
held a one-half separate property interest and the community held a one-halfinterest did not divest
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appellant of title hut merck changed the flrm of his separate property from realty to personalty. Id.
at 945. (ie,unIi, unlike here, involved the order or sale ola homestead that was husband’s properly
in which the wi li did not own any interest whatsoever. Id. at 24 1 —242 .Si in ilarlv. Eggeinever and
( uniei’on are inapp site in that both of these cases address the unconstitutionality of the trial court’s
action in divesting a spouse of his or her separate property and transferring title to the other spouse.
See Eggerneyer. 554 S.W.2d at 138 (separate real property); camerni, 641 S.W2d at 213—220
(separate personal property).
The issue before us is whether the trial court can order the sale of property in which each
spouse owns an undivided one-half interest. The trial court found that the mortgage was solely in
appellee’s name, that appellant was unable to qualify to assume the note or refinance the note in her
own name, and had insufficient income to pa the mortgage. taxes, and insurance on the Farmersville
property. To the extent appellant argues that the sale was improper because the community has no
interest in the property. appellant has cited no legal authority for her position . Although a
partitioning of separate property is not part ofa divorce proceeding, it can he done concurrently with
the divorce proceeding. See Halamka v. Hahi,nku, 799 S.W.2d 351, 354 (Tex. App.—Texarkana
1990, no writ) (in divorce action where parties held property as joint owners, it was appropriate for
trial court to apply partition principles and ultimately order the sale of the property and a division
of the proceeds). Because appellant has failed to show the trial court abused its discretion in
ordering the sale of the Farmersville property based on each party’s ownership of an undivided one-
half interest in the property. we need not address appellant’s first, third, and fourth issues in which
she challenges the Rule 11 agreement, the trial court’s alternative basis for its order for sale.
In her sixth issue, appellant contends that the trial court abused its discretion in ordering
unsecured general community liabilities be paid out of the proceeds of the sale of her separate
property interest in the larmersville property. ‘1 he divorce decree provided that the Iarmersville
property be sold and the net sales proceeds (defined in the decree as the gross sales price less costs
of sale and full payment olany mortgage indebtedness or liens on the property) be distributed first
to certain unpaid community debts and then sixty—five percent to appellant and thirty —five percent
to appellee.
in three paragraphs, appellant summarily argues with no analysis that Texas law prohibits
a court from divesting a spouse of title by awarding it to the other spouse: that a lien cannot be
placed on separate property to secure the just and right division of the community estate; and the
proceeds from the sale of a homestead may not be used to pay unsecured creditors. As noted above.
we have already concluded that the trial court did not divest appellant of her title to the Farmersville
property. Likewise. appellant has cited to no place in the record where the trial court placed a lien
on her separate property. Finally, our review of the record indicates that the issue of whether the
Farmersville property was appellant’s homestead was not raised or established at trial and that the
trial court macIc no finding with respect to whether the property was appellant’s homestead. See
Mcintyre v.Mc In! yre. 722 S.W.2d 533. 538 (Tex. App.—San Antonio 1986. no writ) (party must
assert and prove existence of homestead exemption). At best, the record indicates that she was
currently living on the property and had been since 1987. Based on the record and the trial court
findings, we cannot conclude the Farmersville property was appellant’s homestead. Accordingly.
her homestead objection to unsecured community liabilities being paid from the Farmersville sale
proceeds is not well-taken. We resolve appellant’s sixth issue against her.
In her seventh issue, appellant complains that the trial court erred in awarding appellee the
entire community contribution to his retirement account. Under this issue. appellant asserts that
there was insufficient evidence to support the trial court’s finding that the community interest in the
account was $1 4.484 and argues that the community interest in the account was actually $50.000.
In support other position. appellant cites appellecs trial testimony that the approximate value of his
retirement as of the date of the marriage was about ‘650 —-— something like that.”
Appellant also challenges the factual sufficiency ol the evidence supporting the fullowing
trial court findings: (1) applying the community-out-first presumption, the only funds remaining in
the account were appellee’s separate property; (2) appellee’s withdrawals from his retirement funds
during the marriage far exceeded the amount of community contributions; and (3) to the extent any
community funds remain in his retirement funds, appellee should be awarded one hundred percent
of those hinds as a just and right division of the community estate. Appellant asserts that the account
in question was a defined contribution account from which appehlee could not make any withdrawals
until he retired.
In a divorce proceeding. trial courts are afforded broad discretion in dividing the community
estate and we nnist indulge every reasonable presumption in favor of the trial court’s proper exercise
of its discretion. See Mantle/I v. MuncIe/i, 310 S.W.3d 531, 538—39 (Tex. App.—Fort Worth 2010,
pet. denied). We may reverse the trial court’s division of marital property only if. after reviewing
the record, it is clear that the trial court’s decision is an abuse of discretion or is manifestly unjust
and unfair. Stavinoha v. Stavinoha, 126 S.W.3d 604, 607—08 (Tex. App.—Houston [14th Dist.]
2004. no pet.). Appellee’s financial statement dated May 2005 was admitted into evidence and
showed various investment assets totaling $688,913. Appellee testified that although he
Althouuh appellant directs her challenge to a pectticretirernent account, the evidence reveals that appellce had several retirement savings
or i n\-estlnent accounts. ,\lthouah sonic accounts weredepleted at the time of trial, the trial court I und the value of’ appellce’s retirement account
on the date ut trial was $703396. The trial court appears to ha’e valued appellee’s retirement funds in various accounts collectielv rather than
separately.
accumulated i’otihlv $5000 per rear in retirement contributions during the marriage, he had taken
about twice that or more to par toxvards the Merit propert>. In its findings of tact, the trial court
found that appellee withdrew at least $5 1 ,977 from his retirement funds to support the parties’
lifestyle and improve the Merit property: Additionally, the trial court found that appellant sold
community assets (a flat bed trailer and horse trailer) worth $1 3.E00 without the consent ofappellee
or permission 1mm the court. The trial court Further Found that there were insufficient comrnumtv
proceeds to satisfy all community debts and that it would have ordered the proceeds from the flat bed
trailer and horse trailer to be applied toward community debts. Because appellant does not challenge
these findings, they are binding unless the contrary is established as a matter of law or there is no
evidence to support the finding. See McGalliard i Auh/munn, 722 S.W.2d 694. 696 (Tex. I 986).
Even if we assume the community interest in appellees retirement account was $50.000.
based on the record before us appellant has not established the trial court abused its discretion in its
division of community assets.
4 As noted above, the trial court found appellee withdrew over $5 1 .997
from his retirement funds to support the parties’ lifestyle and make improvements to the Merit
property. Appellant has cited no authority that would prohibit the trial court from taking this
evidence into consideration in dividing any existing community interest in appellee’s remaining
retirement funds. Because appellant has not established the trial court abused its discretion in its
division of the marital property. we resolve appellant’s seventh issue against her.
2
This amount was changed from the trial courts original finding that appelice withdrew 595,977 from his retirement funds during the marriage
Although appellant argues that appellee was not entitled to reimhursemerttof’retiremcnt funds used to support the lifestylesofthe parties, we
do not view the trial court’s division of the community interest ofappellee’s retirement fund as a reimbursement. Moreover, neither the trial court
nor appellant identify what amount of the $5l,977 was used solely to support the lifest les of the parties
Under issue sesen. appellanthas a single sentence asserting the trial court abused its discretion in tsiIing to grant her motion for new trial based
on appelleestestimonv at the hearing tbrthe motion trnew trial. Because appellant has thiled to provide any legal authorit or analysis with respect
to this issue, she has w aived it on appeal .S’e’ lEx. fr APP. P 38. l( if
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Appellants brief also contains an issue asserting the trial court abused its discretion in
awardiii appellee S I I 7644 as a reimbursement claim. At oral argument. appellants counsel
abandoned this issue. Accordingly. we do not address it.
We affirm the trial courts judgment.
I 9
LOFPlI B MORRIS
-4IJ STI CE
II 0648F.P05
—1 1
Gtiitrt Api.ictk
t1f
Fift1i t)i&ürirt nf xa at htI1a
JUDGMENT
KAY MOTLEY. Appellant Appeal from the 429
th
Judicial District Court
of Collin County. Texas. (Tr.C’t.No. 429—
No. 05-I I-00648-CV V 52578-2010).
Opinion delivered by Justice Morris,
THOMAS D. MOTLEY. Appellee Justices Francis and Murphy participating.
In accordance with this CourEs opinion of this date, the judgment of the trial court is
AFFIRMED. It is ORDEREI) that appellee Thomas D. Motley recover his costs of this appeal
from appellant Kay Motley.
.Judgment entered I)ecember 13. 2012.
JOSEPJ(B MtRR1S
1LS-TICL