Diana Fay Bass v. Richard H. Bass

Court of Appeals

DEC 2 i 2015
NO.05-15-O1362-CV Lisa Mate
Clerk, 5th District

IN THE COURT OF APPEAL FOR THE FIFTH DISTRICT OF

TEXAS AT DALLAS

FOR THE 401st DISTRICT COURT OF COLLIN COUNTY, TEXAS

DIANA FAY BASS, APPELLANT

VS.

RICHARD HILL BASS, APPELLEE

"APPELLANT'S BRIEF"

PARTY FILING BRIEF- DIANA FAY BASS

Appellant Diana Fay Bass Pro Se Litigant
(972) 213-6095 P.O. Box 432
db424fzfz@live.com McKinney, Texas 75070

Appellee Richard Hill Bass Attorney Hannah Stroud
Philips & Epperson Attorneys 2301 Virginia Parkway
hstroud@philipandepperson.com McKinney, Texas 75071

(972) 562-9440

APPELLANT REQUEST ORAL ARGUMENT, Trap 9.4 (g), 39.7.
Request 20 minutes, Appellant may not be presenter
 APPELLANT DIANA BASS

TABLE OF CONTENTS

TABLE OF CONTENTS

1. Table of contents

4. Case Summary

5. Appellant's Summary

6. Conclusion

7. Prayer
Honorable Judge Mark Rusch, Collin County 401st District Court, trial
judge, signed the orders for Emergency Ex Parte Motion for
Appointment of Receiver and, Alternative, Emergency Motion to
Compel Respondent to Comply with Terms of the Mediated Settlement
Agreement; Affidavit in Support of Emergency Ex Parte Motion for
Appointment of Receiver and, Alternatively, Emergency Motion to
Compel Respondent to Comply with Terms of the Mediated Agreement;
Order on Motion for Emergency Ex Parte Motion for Appointment of
Receiver; and Motion for Appointment of Receiver, and Alternatively,
Motion to Order Respondent to Comply with Terms of the Mediated
Settlement Agreement; dated November 2, 2015.

CASE SUMMARY

WITH THIS BRIEF, Appellant, Diana Fay Bass (DFB), she argues the Ex
Parte Hearing gave Power of Attorney (for 30 days) to sign anything
Richard Bass chose to sign, over to the very person that performed
intentional acts of fraud against her, including Mediated Settlement
Agreement (MSA) and the Divorce Settlement. Appellee claimed
imminent need to sell homestead due to foreclosure, not true, the
buyer just had to make sure he got the property cheap and for his
development. Richard Bass used that power of attorney to
continue with his fraud (and refuses to give all documents he signed),
illegal.

Appellant's homestead and separate property were sold, with this
Power of Attorney given to a buyer/developer and Richard Bass that
had committed fraud, and breach of contract to Diana Bass. Selling this
property was totally against her will, and of which she refused to sign
any documents, which would have been more fraud committed
against her. Diana Bass Constitutional right to her sole and separate
property (by gift) was violated, and her homestead was given away.
Diana Bass received monies for. There was no emergency.

The judge signed order Friday afternoon, therefore, Appellant was
not told until Monday, at 8:15 a.m., notice by telephone. The order
was signed for hearing Friday around 4:30 p.m. The Judge refused to
sign any of Appellants orders to oppose MSA. The only emergency
was, that would that the lender would foreclose (on one half of the
house). They needed Appellants signature to complete the fraud
against me, and the judge gave it to them, and Appellant claims serious
abuse of courts discretion. My rights were violated as a citizen and
defendant.

Richard Bass refuses to give me copies of all the documents he
signed illegally without my permission. Demand for discovery will be
filed.

Richard Bass agreed in settlement to pay $170,000.00 to
Appellant after illegally signing selling her sole, separate and
community properties, so he actually violated the agreement. MSA
void.

Fraud, lies, coercion, duress, intentional misrepresentation of
material facts (such as Diana Bass was co-trustee, co-grantor, co-
beneficiary), MSA void. Trust in Texas have very specific laws, any
attorney should have known that, Richard Bass violated many trust
laws, and the documents he signed with Power of Attorney was to close
trust, and cover up his fraud upon the estate.

Appellee, gifted intentionally, during marriage of 17 plus years,
via Bass Living Trust, with recorded deeds, litigants as co-owners, joint
bank account to manage trust and its monies, and comingling of
everything,. Land was cleared of trees and brush, rental properties
remodeled together, and property rented many times. Character
changed when gifted to Appellant in trust documents, recorded
deeds, income taxes filed. There is no need for tracing as it was very
clear where funds went, there was a joint trust and business bank
account.

Richard Bass breached contracts for sale of properties, but he
could not sell the homestead and Appellants separate property
without her signature, the contract on homestead was up that day.
We had jointly signed contracts to sell all significant assets,
Appellee sold illegally the land as one of the trustees, without
Appellants knowledge, violating trust laws and provisions. Texas
trust laws are very serious in this state.

The Mediated Settlement Agreement is a legal contract, except
when obtained thru fraud, duress, coercion, threats, "no meeting of the
minds", and intentional lies. Separate or community property or
property division was intentionally not written into this contract, nor
Divorce Settlement. Property division and money division are the
essential elements MSA.

Common land and constructive fraud was committed by Richard Bass
against Appellant. He sold the properties without informing Diana
Bass, took money and hid it, and then closed trust with Power of
Attorney. Well thought out crime, property and monies theft, and
stealing from trust. Property was not his sole and separate properties,
it was intentional fraud in MSA to state so. Not giving Diana Bass one-
half her share or basically any monies to date, with Appellant as
beneficiary, trustee, and grantor of Bass Living Trust is illegal, and
subject to further litigation.

While theft of properties and monies has taken place against her,
Appellant has had to file indigency, cannot get an attorney pro
bono, and has affected her right to justice. Living cost, insurance
premiums, medical bills past and present (which need to be paid),
prescription cost, limited food, car expenses, clothing expenses, Diana
Bass living well below the means she did previously. Appellee
states "we were separated three years", not true, toxic mold in
homestead, she had to move. Diana Bass has serious exposure to toxic
mold, (see exhibit), and needs to move now to a clean non-toxic
environment now, and receive medical care, but cannot due to lack
of funds. Also, both of her homes were sold illegally, and she will be
evicted any moment, without any funds to move. Diana Bass r.n., Appellant is
on Social Security Disability only, and due to two very serious health conditions, requiring very expensive
treatments every three weeks., shecannot work. She needs serious medical and a clean non-toxic
environment now. Money received from this case will affect herfuture, and ability to even live day to
day. Lack of adequate attorney access is contributing to the injustice of
it all, including unneeded stress and increase in medical treatments due
to constant work on this case. Appellant request for court to order pro
bono attorney to defend.
 APPELLANT'S ISSUES PRESENTED

!. Mediated Settlement Agreement is void due to fraud, lies,
"ambiguous in nature", did not include property division in written
contract, misrepresentation, malicious intent to deceive, and unfair
and unjust, coercion, and severe duress (torture) and threats by
mediatory and my own attorney. Seventeen plus years of marriage
at the minimum community. Judge did not have right to give Power of
Attorney. Hearing was illegal, unjust and unfair, and certainly not
protecting Diana Bass right as a defendant. Court abused its discretion.
2. Appellee committed (Diana Bass being all three) fraudulent
transfer of properties and monies, violating common and constructive
law.

3. Unequal and unjust property division in a marriage via MSA.
4. Ex Parte Hearing violated Constitutional and Texas laws, violating
homestead and separate property rights, and right to equal justice,
under the law.

5. Appellee, deliberately intended to cause tax liability to
Appellant's, by adding " innocent spouse" may not be used, put into
divorce decree after stating "he would pay all taxes." Again,
deliberate deception. The land was sold without her knowledge, and
allowing this deduction is important. Another example of fraud in
MSA.

6. This property was a major significant asset, and Richard Bass signed
document on his half of the home and one acre to allow short sale and
foreclose. This was illegal for Richard Bass to do so, Diana Bass argues
continued fraud upon her. He was not the sole and separate owner of
the property.

7. Cruelty in a divorce, including all proceeding, documents, Power
of Attorney, no spousal support, no community medical bills being paid,
fees being paid by the buyer/developer, while requiring Diana Bass to
represent herself, which is spousal abuse. Appellant argues "unfair,
unjust, and illegal" intentional actions of spouse against her, including
Ex Parte Hearing.

8. Power of Attorney was not in settlement Diana Bass signed, MSA
papers were substituted and added after the facts, note on initials, etc..

APPELLANT'S ARGUMENTS

Appellant argues Mediated Settlement Agreement, are subject to
avoidance on the grounds iffraudulent agreement. (1) Fraudulent
inducement "is a particular species of fraud that arises only in the
context of a contract and requires the existence of a contract as part of
the proof,'. 12A Tex. Jur. 3d Compromise and Settlement 18 (see
App.l).

Mediated Settlement Agreement must be complete and within the
contract, every material detail, which contain all the elements of the
contract. Not including what is separate, community, or both in
agreement immediately voids contract.
Appellant raises general issue of material fact that Richard Bass
claim that the acreage from Bass Living Trust (Exhibit B), was his sole
and separate property, from Bass Family trust (2004) to Richard Bass,
then Richard Bass to the Bass Family Living Trust to Vintage Place Funds
with sale of lands estimated 8.3 acres (sold $945,000.00, 7.3 acres sold
warranty deed for $10.00, dependent upon approval planning and
zoning.

Someone need only point out evidence that raises a fact issue on
the challenged elements, Hamilton vs. Wilson, 249 S.W., 3d 425, 426
(Tex. 2008), (see App 2) is asserting claims in this case during
divorce proceedings, Barr v. Resolution Trust, 837 W. 2d, 627,631 (Tex.
1992) (see App 3). Any claims that arises out of these facts
should be litigated in the same lawsuit, subject matter is based on the
factual matter that makes up the complaint.

Parties in this appeal had "joint management of the properties,"
which makes tort liabilities or contract liabilities of either spouse,
example-joint banking accounts, comingling of everything, joint
business, and trust, recorded deeds, etc..

Richard Bass made argument that the character rules gave him
the property as sole and separate. The Bass Living Trust put into
writing designation the property (land and Graves property), and
the farm property that was sold, and the homestead which was
taken out of trust to borrow funds. This property was intentional gift,
acquired during marriage, and separate or community of both, not just
Appellee's.

Inception of Title Rule in Texas determines the character at the
moment in time it is acquired. And because the rule looks to the time
that property is acquired, it does not matter if the deed names both
spouses as grantees.

The character of an asset can be used, but community
presumption can do the work for you (5). A spouse proving otherwise
that property is not community must prove with clear and convincing
evidence.

Appellant has also claim for damages to community assets as
recovery for medical bills. (6).

The Vernon's Texas Statues and Codes Annotated, Family Code,
3.3001, 3.001, Separate Property, (See App.4) defines separate
property as property that's "owned or claimed before marriage, and
property acquired afterward by gift, devise, or descent" (7). It also,
matters if it was intended, and in this case if was, married 17 plus years,
10 years properties in the trust and comingled, and co-managed.

Texas is a community property state.

Fraud, undue influence, accident, and mistake are grounds on
which a compromise settlement may be set aside. Avoidance of lump
sum settlement or release of bastardly claims on grounds of fraud, also
cause for fraud. 12A Tex. Jur. 3d Compromise and Settlement 18 (See
App 1).

The Texas Supreme Court ruled that the MSA (mediated
settlement agreement) did not constitute a binding contract it appears
this is a matter of law, that the court in this case may have to decide.
A material misrepresentation by one party to another can
support repudiation or rescission by other party. Spouse failed to
make proper disclosures, and should have disclosed all that he had
sold, or was about to sell. Violations oftrust and marital laws should
support the argument for forced Alternative Dispute Resolution, which
other party refuses.

Intentional fraud or inducement during MSA, Appellee
stating properties sold was his sole and separate property, S. Univ. v.
State Bank & Trust Co. 212 S.W. 3d, 813, 914, (See App 5); ad was
known to be false when made and was intended to be acted upon, and
was relied upon (in MSA), (see App 5). Acourt is not required to
enforce an MSA (or Hearing orders based on fraudulent nature) if illegal
in nature in nature, or procured by fraud, duress, coercion, or other
dishonest means, Court of Appeals, El Paso, Gary Edward Morse,
Appellant, v. Dana Ann Morse, Appellee, No. 08-09-0046-CV, (See App
6).

Richard Bass received (in promissory notes majority of
property) estimated $945,000.00, he agree $170,000.00 should be his
just and right settlement to me. Appellant argues not just and right to
her, as she is due one half as separate and community of net monies,
with his legal cost coming out of his half. Appellant also request monies
for attorneys fee to be given now, further litigation for real estate and
trust fraud, against many properties, is likely to be necessary. MSA
was changed after the fact, and not notarized. What Diana Bass signed
cannot be proven, invalid contract. Under no circumstances did Diana
Bass agree to give Appellee any Power of Attorney, repeat,
under no circumstances. There is awitness and emails to support this.
10
 MSA was torture, as though, and duress, coercion (the mediatory
threatened buyer/developer would be "waiting at the door with a
handful of lawsuit" if Appellant did not sign MSA. Diana Bass's
attorney stated "she would resign if MSA not signed tonight". The
attorney was later released by Diana Bass, hearing signed judge
immediately after signing order to release attorney, Twelve hours of
torture (MSA) for a person of poor health, is unjust and unfair, it just
led to confusion, despair, forgetfulness, extreme fatigue, unable to
think correctly. Diana Bass was already overwhelmed by selling
of her assets, without her knowledge, and then the surprise
divorce. Threats of losing her "homes" while having no monies, or
home to go to, initiated "absolute fear, confusion, and despair."
Circumstances surrounding the documents was duress and coercion,
was unjust, unfair, and cruel.

Under Texas law, constructive fraud may be imposed when a party
breaches a fidicuiary-like duty relationship. Richard Bass breached this
when properties from trust and without knowledge given to Diana Bass,
illegally all properties, including monies, and land. Matter of Creating
Trust Westlaw, Matter of Carlin Paxton Advertising, Inc., C.A. 5,
Tex.)1991, 938 F 2d 595. (See App. 7).

Conveyance between husband wife, property was conveyed by
deed, with intent to make a gift, Supreme Court in Jackson V.
Hernandez, 155 Tex. 249, 285 S. W. 2d 184, Opinion Chief Justice Bell,
(See App.8); and The Constitution as Amended in 1948, C. (a) Article 15,
?15, see (App 9).
li
 Constructive fraud, is a community estate liability, Appellant
seeking declaratory judgement and title of homestead and other
properties returned to her, or $475,000.00 monies to her.

Transmutation of separate property, interspousal transfer,
makes a gift of separate property of donee spouse, written
instrument partitions it. Wife given separate property thru gift,
and husband committed fraud on the community, allowing future
attorney's fees. Not having an attorney that understood estate and
real estate laws has been detrimental to Appellant. Another part of
fraud, Richard Bass assuring no monies for legal to Diana Bass,
therefore, fraud could continue.

A contract is ambiguous in nature, if a provision of a contract
(property ownership and division) is susceptible to more than one
interpretation. This case would certainly apply this rule.

Fraud on the community, spouse has no right to manage.

When Richard Bass obtained Power of Attorney he was allowed
to act as Diana Bass, making him sole management of the community.
This was Fraud on Diana Bass. Jean v. Tyson-Jean, 119 S.W. 3d 1,5 (Tex.
App-Houston (14th District), pet. Denied), Famliy Code-Title !, Chapter
3.Family Code 3.102, (See App. 10).

Appellee, engaged in fraudulent transfer of assets, and
monies. Diana Bass contested the MSA in motions never signed by
judge. The Honorable Judge violated her constitutional rights
during hearing, transcript of hearing will show judge was demeaning
and embarrassed her regarding her disability. Equal Opportunity law
12
does not allow this in a court of law. Diana Bass has two serious
illnesses and should not be disgraced, because she is on disability. The
Judge possibly exhibited, unknowingly, possible favoritism to other
party.

Just and right division of community property should be
awarded to each party, and having due regard, for the rights of each
party. Tex. Fam. Code 7.001 (Vernon 2006), (See App.4).
Appellant not required to Marshall the proof, its response need
only point out evidence that raises a fact issue on the elements,
Hamilton vs. Wilson 249 S.W. 3d, 425, 426, Tex. 2008, (See App. 2).

Contract is void if it calls for illegal action. Misrepresentation and
embellishment, and just plain fibbing is obfuscation. MSA fraud ad
dishonesty, Milner vs. Milner, 2012, Tex. (The Texas Supreme
Court, March 9, 2012, Cause No. 10-776.). Family Code-Title 1, Chap. 6,
Suit for Dissolution of Marriage, (See App. 11).

Appellant asking for damages, which should be enacted into
this lawsuit. Where a twenty acre tract was conveyed to spouse prior
and on that date petition filed, husband conveyed interest in resident,
title, interest, claim, etc.. Court was entitled to consider in prior
divorce petition, Statue 7.001, General Rules of Property Division.
Appellant now asserting claims prior to divorce, Barr v. Resolution
Trust 837 W. 2d 627, 631., Tex. 1992, (See App. 3).
Richard Bass, signed trust, deeds, joint bank accounts, etc.,
voluntarily. Selling the properties, breaching contracts, no lack of
fiduciary responsibility to Diana Bass, spouse and co trustee, was
13
 unconscionable; Appellant was not provided a fair and reasonable of
the selling and disclosure of properties sold, assets sold; Section 4.006,
Enforcement of Family Code.

Conversion to community property methods, a spouse's
separate real property remains separate unless divested by deed, due
process of law, or the working of an estoppel.. Community property, a
presumption should arise that the names of both spouses on the title to
the property changes the character of the property from separate to
community. Community benefit was intended. Payments of a loan
made from joint bank accounts, of property 403/405 S. Graves,
McKinney, Texas, this was so done.

The Constitution of 1876, states community presumption at
the minimum. Constructive fraud arises when a spouse unfairly
disposes of the other spouses one-half interest in community property,
burden of proof on disposing spouse to prove fairness of disposition.

Community funds comingling defy resignation and
identification. A recital states that the property is conveyed to a spouse
as his or her separate property. Privity-a non-grantee is a party to the
transaction if she is a grantor, parole evidence to contract the recital,
and such evidence is admissible.

Richard Bass agreed to non-judicial against spouse, property
fraud. Both parties had contract on property, violated that contract.
Hearing never addressed this issue, norspousal support whether
marital asset or your separate property. Community acquired by gift,
but otherwise put in trust, is separate property.
14
 Hearing took away my separate and homestead property. Was
illegal transfer of property. District courts cannot take away
separate property. Diana Bass has superior title to the property, and
would request court to return the property, or buyer pay $317,000.00
immediately to Appellant. Hearing illegal, improper, unjust, allowed
theft of properties and monies. Many papers were possibly signed
illegally thru Power of Attorney given to Richard Bass per judges order.
Due to this hearing there was fraudulent transfer of property belonging
to appellant, from spouse to buyer.

Clear and convincing evidence is not satisfied when
characterizing the property at issue as separate property which
requires surmise or speculation by the court. Any doubt must be in
favor of community property.

All property possessed by either spouse during or on dissolution of
marriage is considered to be community, Tex. Fam. Code, Ann 3.003
(a), Vernon 2006, Barnett, (see App. 4).

Method of tracing-community out first. Smith v. Smith 22. S.W.
3d 140, 146 (Tex.App. Houston (14th District.) 200, no pet.) (See App.
12). Argument during MSA was that tracing needed to be done, no
true.

Recorded title is community, stating a gift is a transfer of property
made voluntarily and gratiously. Concluding wives acquisition of
trust Income from testamentary trust was by gift or devise). Fam.
3.006, Proportional Ownership of Property by Marital Estates. (See
App. 12).
14
 An attempt by the parties to fix the character of marital property
by means different than the state constitution, and doctrine of
implied exclusion, held the agreement to be void and unenforceable.

A material misrepresentation by one party to an agreement can
support rescission or repudiation by the other party. Afailure to
disclose material information by one contracting party can lead to the
rescission under what is essentially fraudulent inducement, such as
bank accounts, where monies after properties is located, trust
documents verifying Subtrust, etc., while claiming that was one of
the reasons property (land) was his sole and separate property. In the
case of Boyd v. Boyd the trial court denied enforcement of the
agreement, because if failed to include substantial assets of the parties,
including future earnings, and present income from sell of significant
assets, Boyd v. Boyd, Westlaw, 67 S. W. 3d 398, Court of Appeals of
Texas, Fort Worth, 9See App. 13). When one discloses information, he
has the duty to disclose the whole truth rather than making a partial
disclosure, that conveys a false impression. To date, no information
given where monies are located.
Personal and business records, especially those signed illegally
thru Power of Attorney, are notto be concealed and family records,
property records, any records of income, debts or other obligations,
local rules of Travis County. Withholding information about substantial
marital assets will not save the MSA from being held unenforceable.
Ex Parte Hearings are for temporary order requirements include
nothing about order to give Power of Attorney to a husband that had
committed serious fraud upon Defendant (Appellant). They are usually
15
used in protective order. The only protection here was to ensure
buyer/developer stole Diana Bass properties that day.
The sell of the properties had contingencies, based on getting
planning and zoning approval, and particular provisions of the
agreement were illegal and violated public policy. Selling properties
under such conditions, and still not paying any monies to Diana Bass is
theft and fraud of monies and properties.

The Fort Worth Court of Appeals overturned the trial court's
holding, and the set aside the Final Decree of Divorce as there was no
meeting of the minds at the time of the entry of the MSA In this case
there was definitely no meeting of the minds, nor is there as of this
filing.

Texas law, setting up a trust and retaining a revisionary interest
means that the donor has not retained a right of possession, because
he has given away as much as he could. Spouse has absolute right to
manage as long as no Fraud in the Community, which this case does
have. Appellee unlawfully sold properties to the exclusion of
Appellant's right. Conversion of the property to as he claims his "sole
and separate property was intentional, wanton, willful, and without
justification or excuse and was done with gross indifference.
Appellant awarded by gift, separate property. If spouse
acquires by gift, devise, than is spouse separate estate, revenues are
separarate by virtue of which title is vested.
Trustee is a fiduciary, a trust, once he has accepted
appointment, has afiduciary relationship to the beneficiaries of the
16
Trust. Trustee are subject to the duties imposed by common law,
the duties imposed by Texas Trust Code, and the duties imposed by the
instrument creating the trust, Tex. Trust Code, Ann 113.051 (Vernon
1984), (See App. 4) Suit may be brought as an action for breach of
contract as an action in tort, as an action in equity, or as an action for
declaratory judgement.

A beneficiary of a trust means that a person has a present or
future interest in a trust, vested or contingent. If more than one
person creates or contributes property to a trust, each person is a
settlor, except to the extent another person has the power to revoke
or withdraw that position.

"Terms of a trust" means the manifestation of the settlor's
intent regarding the trust provisions as written in the trust instrument
or that may be established by other evidence (deeds, sell of other
properties, contracts for sale, income taxes, franchise records, joint
bank accounts).

Duty of atrustee is to act in good faith, and in accordance with
the purposed of the trusts and the interest of the beneficiaries. The
power of the court has to adjust atrustee's compensation in the terms
of the trust which is unreasonably high or low. The trustee must
exercise discretionary power in good faith and in accordance with its
terms and purposes and the interest of the beneficiaries. The terms of
trust may not deny acourt authority to take such action as necessary in
the interests of justice, including requiring that atrustee furnish a
bond, subsection. The trustee remains accountable to the beneficiaries
for the trustee's actions. Trusts involves common law and principles
17
of equity supplement. A nonjudicial settlement agreement is valid
only to the extent it does not violate a material purpose of the trust,
Non Judicial Settlement Agreements, any interested party may request
the court to determine whether the representation was adequate to
determine whether the agreement contains terms and conditions the
court could have properly approved. Appellant disagrees as to whom
is beneficiary and grantor of Bass Living Trust, and whom violated the
trustagreement (Richard Bass). His attorneys stated numerous items
of the trust, Diana Bass disagreed with, such as ownership, whom
owned the properties, etc.. His attorney stated Richard Bass inherited
properties. Diana Bass also inherited properties, rules of construction
attribute intention to individual donors based on the assumptions of
common intention, also as to the meaning of "heirs" or 'issue" . The Ex
Parte Hearing was also given power to Richard Bass to revoke the trust
without Diana Bass consent. Trust termination requires beneficiaries
approval, not given by Diana Bass.

Transfer of property to another person as trustee, during
settlor's lifetime, declaration by the owner of the property that the
owner holds identifiable property as trustee (both parties of this case
were trustees, grantors, and beneficiaries).. Atrust is not created until
it receives property, and property interest. Atrust and its terms must
be for the benefit of the beneficiaries.

The MSA stated Richard Bass to pay "all the taxes", then in the
divorce settlement, which was not in MSA, stated "no innocent spouse
relief" may be used, therefore, indicating fraud by Richard Bass. The
MSA did not include what was separate, community or both, and trust
18
of economic value. Income Tax Laws and Trust are separate from
divorce laws, and the MSA would benefit Richard Bass and not
Appellant, beneficiaries of the trust hold the beneficial interest in the
trust property, Diana Bass was a beneficiary. Trust may be amended
only by joint action of both spouse, this is to preserve the community
character of property transferred to the trust. Joint tenancies in
real estate , each spouse would presumably be treated as having
made an equal contribution because of the right to sever the interest
and convert it into tenancy in common. Trust estate laws are
complicated with many laws affecting. Appellant claims one-half
interest separate or community, and therefore, contesting MSA and
divorce settlement.

Whenever trustee has comingled the property, the right is so
defeated if the beneficiary can trace to the comingled fund,. If the
comingling was wrongful, the burden othe trustee to establish which
property is rightfully this trustee, if the trustee is unable to do so, the
entire comingling of property is subject to the trust.
Texas courts have held trusts to a"very high and strict standard of
conduct which equity demands'. Trustees have duty and loyalty to
beneficiaries, of good faith, good duty, loyalty, and a fidelity with
respect to trust.

There was no partition agreement. Trust did not specify that
property were separate property.
Recorded titles conveyed to one or both of the spouses during
marriage, the conveyances places legal title into the spouses as
19
grantees, and the equitable title is presumed to be in the community.
Deeds were executed, and tracing not necessary due to joint trust bank
account, and comingling of funds.

CONCLUSION

This court should void Mediated Settlement Agreement, Divorce
Settlement, and Ex Parte Hearing. Intentional fraud, property and
monies theft, improper division of community, separate, or both
properties, voids the settlements, and therefore hearing.

The MSA and first court hearing were "bait and switch" games, a
look "under the hood" of the details in this case shall prove. There is
no reason, nor law that should protect the person and or spouse
committing the fraud, especially with "greed and power" abuse the
theme in every contract, agreement, hearings, and illegally selling of
properties, ignoring the spouse rights, disability, loss of homes
(including homestead and separate property), and no monies for
medical treatments (including past due bills owed, which is
community), nor treatments needed now. Honesty, and good faith, fair
dealings should be the theme of all that takes place in the legal system.
Attorney's fees in the future should be paid out of Richard Bass
monies. This case can be summed up "as truth vs. lies". Appellant is
the innocent spouse, and Diana Bass hopes the legal system will correct
the injustices. $450,000.00 is requested as declaratory judgment.
Richard Bass using exculpatory clause, did not act in good faith, and will
not do so in future. Also, Diana Bass request Motion for a lawyer to
represent me "in court" and in future, probono.
20
 EX Parte Hearing should be dealt with by the courts, with justice
being served, fraud should not be allowed even if was spouse. MSA
should be voided and unenforceable. All community assets to be split
equally, and that means all monies included.

PRAYER

Based upon the foregoing facts and analysis, Appellant
respectfully requests that this Court:

1. Reverse the trial court order of Ex Parte Hearing, granting MSA,
and Power of Attorney to Richard Bass, Appellee.
2. Declaratory judgement, due to illegal sell of Appellants sole or
community properties, $450,00.00, to be paid as a lien on future
final closing of properties, either with this buyer or another. Or
fifty percent interest in future earnings from properties of sell to
another buyer.
3. Medical bills that are due now are to be paid immediately by
Richard Bass and until closing of properties and Diana Bass paid
from funds from sell of any properties or any other monies
$450,000.00 lien to be paid to Appellant on properties, medical
bills or to be paid by Richard Bass, until time all monies due are
paid(which could be quite substantial due to serious mold toxicity
issues.

4. Appellants future attorney's fees to be paid Richard Bass, to
prevent further fraud upon Appellant.
5. Spousal maintenance of $3,500.00 monthly, ( not out of her
$450,000.00 settlement) until all monies paid to Appellant
(including disability maintenance); moving expenses to be paid
 now of $10,000.00 not out of settlement, any community bills to
be paid not out of settlement, chandelier to be packed up and
sent to Diana Bass immediately, Couch and mower sent to Diana
Bass immediately, some of the patio furniture, one half of all
stainless steel shelves in garage, and house, tax records of past
years to Diana Bass, all taxes to be paid of both parties by Richard
Bass, and Diana Bass may use innocent spouse relief, if necessary.
This includes rollback and franchise tax, or any other taxes. Diana
Bass also may use capital gains tax deduction from sell of her
properties if necessary.
5. Diana Bass request divorce immediately, with name change to
Diana Fay Spriggs. Voided MSA agreement. Voided divorce
settlement, Diana Fay Bass attorney will write divorce papers,
and after, both parties agree will be sign. Any other issue will
have to go to Alternative Dispute Resolution. Any further
property exchanges or sells, or future earnings Diana Bass entitled
to one-half (including any portion of any and including Vintage
Place Funds, and or development, or any other development.
7. All copies of anything, anywhere, at anytime signed as Power of
Attorney by Richard Bass be given to Diana Bass immediately,
sent certified copies by Fed Ex. And any that was illegal may again
allow Diana Bass to further pursue litigation, including Gary
Schnell, and Vintage Place Funds as also contributing to breach of
contract, lack of fiduciary duty, unfair dealings, property and
monies theft (this also includes broker).
8. Any further fraud, duress, or coercion in MSA is aserious matter,
21
and all damages should be consider against Richard Bass, as was
intentional malicious intent to deceive, and fraud.

A statement by the court should be made on what property is
separate or community, or both during this marriage.

Respectfully submitted;-^ - C? \o«^n

By Diana Fay Bass, Appellant (Pro SE Litigant)
db424fzfz(5)|ive.com

CERTIFICATE OF SERVICE

THIS IS TO CERTIFY THAT ATRUE AND CORRECT COPY OF THE ABOVE
AD FOREGOING DOCUMENTS AND EXHIBITS HAS BEEN SERVED VIA

DIANA FAY BASS, APPELLANT
 APPENDIX FOR APPELLANT DIANA BASS

APP 1 12 A TEX. JUR. 3D COMPROMISE AND SETTLEMENT

APP 2 HAMILTON V.WILSON, 249 S.W. 3D 425, 426

APP 3 BARR V RESOLUTION TRUST 837, W. 2D, 627, 623, 631 (TEX.

1992

APP 4 V.T.C.A., FAMILY CODE 3.001, SEPARATE PROPERTY

APP 5 OPINION BY JUSTICE MARTIN RICHER, STATE BANK & TRUST

212 S.W. 3D 813, 814

APP 6 COURT OF APPEALS OF TEXAS EL PASO, MORSE V.MORSE,

NO. 08-09-00046-CV

APP 7 112.001-METHODS OF CREATING A TRUST-WESTLAW-

CONSTRUCTIVE TRUSTS

APP 8 OPINION CHIEF JUSTICE BELL, 323 HAMBLEN V. HAMILTON

PREELY WERLIEN, HOUSTON, FOR APPELLANT

APP 9 CHAP 1, THE TEXAS MARITAL PROPERTY SYSTEM, C(A),

ARTICLE 16

APP 10 FAMILY CODE-TITLE 1, CHAP. 3 , 3.101-3102 JEAN V.

JEAN TYSON, 118 S.W. 3D 1.5 (TEX. APP) HOUSTON (14th )
DISTRICT, 2003, PET DENIED

A
 APPENDIX FOR APPELLANT DIANA BASS

APP 11 MILNER V. MILNER, 36, S.W. 3D 615, 618 (TEXAS 2012)

APPENDIX PAGE 2, APPELLANT DIANA BASS

APP 11 (TEXAS 2012) FAMILY ORDER TITLE 1 CHAP 6, SUIT FOR

DISSOLUTION OF MARRIAGE

APP 12 FAMILY CODE 3.006. PROPORTIONAL OWNERSHIP OF

MARITAL ESTATES

APP 13 67. S.W. 3D 398, COURT OF APPEALS OF TEXAS,

BOYD V. BOYD

APP 14 LOCAL RULES OF TRAVIS COUNTY
§ 18.Avoidance of compromise and settlement - Westlaw

Westlaw Next"
§ 18.Avoidance of compromise and settlement
Mary Ellen West,J.D Texas Jurisprudence Third Edition f/ipprcx. 3 pages) SELECTED TOPICS

12A Tex. Jur. 3d Compromise and Settlement § 18 Compromise and Settlement

Settlement of Litigation and Compromise of
Texas Jurisprudence, Third Edition Disputed Cialms
Database updated October 2015
Compromise and Settlement Secondary Sources

Validity and effect of "Mary Carter" or
Mary Ellen West, J D
similar agreement setting maximum
liability of one cotortfeasor and
III. Avoidance providing for reduction or
extinguishment thereof relative to
recovery against nonagreeing
Topic Summary References Correlation Table
cotortfeasor

22 A L R.5th 483 (Originally published in
§ 18. Avoidance of compromise and settlement 1994)
This annotation collects and discusses the
West's Key Number Digest cases addressing the validity and effect of
"Mary Carter" or similar agreements between
an injured plaintiff and one or more, but not
West's Key Number Digest, Compromise and Settlement «= 6(3) all, cotortfeasor defend. .

A.L.R. Library Power of city, town, or county or their
officials to compromise claim
Modern status of rules as to avoidance of release of personal injury claim on ground 15 A.L R 2d 1359 (Originally published in
of mistake as to nature and extent of injuries, 13 A.L.R.4th 686 1951)

Avoidance of lump-sum settlement or release of bastardy claim on grounds of fraud, ..(Supplementing annotation in 105 A.L R
170 ) This annotation deals with the power of
mistake, or duress, 84 A.L.R.Zd 593 certain governmental subdivisions, namely,
Right of action for fraud, duress, or the like, causing instant plaintiff to release or cities, towns, and counties or their officials, to
compromise a claim in ..
compromise a cause of action against third person, 58 A.L.R.2d 500
Discretion of court to vacate its approval of settlement or release in respect of Settling the Case—Plaintiff
personal injury to minor, 8 A.L.R,2d 460 4 Am Jur. Trials 289 (Originally published in
1966)
Forms ..This article deals with settlement
techniques relating to personal injury, death,
Texas Forms Legal and Business §§ 16:22 to 16:24 (Authorization to settle claim) and property damage cases. It omits other
related matters, such as obtaining information
Texas Jur. Pleading and Practice Forms 2d § 66:28 (Answer—Affirmative about the case, preparing for..
defense—Undue influence invalidating settlement agreement)
See More Secondary Sources
Texas Jur. Pleading and Practice Forms 2d § 66:29 (Answer—Affirmative
defense—Duress inducing agreement by threats to contest will on false grounds)
JOINT APPENDIX, VOL. I
Fraud, undue influence, accident, and mistake are grounds on which a compromise
2002 WL 33933818
settlement will be set aside by courts.1 Failure of consideration is also sufficient to vitiate a
State Farm Mutual Automobile Insurance
compromise agreement 2 Company v Campbell
Supreme Court of the United States
August 19. 2002
A compromise agreement will not be set aside merely on a showing that it is harsh or
..WILLIAM B. BOHLING Plaintiff- CURTIS
unequal in its operation'• or that the value of the property received bythe complaining party B CAMPBELL Represented by: W SCOTT
is disproportionate to that which he or she might legally have recovered.4 Itis also BARRETT Represented by ROGER P
CHRISTENSEN Represented by: L RICH
immaterial if the compromise agreement turns outto be advantageous to the creditor.'- A HUMPHERYS Defendant - STATE FARM
settlement agreement is properly enforced, even though the defendant makes a unilateral MUTUAL AUTOMOBILE Repres..

mistake in determiningthe amount of benefits to whichthe plaintiff is entitled; a defendant is Brief of Plaintiffs - Appellees
not allowed to repudiate a settlement agreement after discoverythat the plaintiff is entitledto
2015 WL 694468
a smaller sum than that allowed in the compromise.6 In re: DEEPWATER HORIZON. LAKE
EUGENIE LAND & DEVELOPMENT,
Defenses that would have been available in an action on the disputed claim are not available INCORPORATED; Bon Secour Fisheries
Incorporated; Fort Morgan Realty,
to avoid liability on the compromise and settlementagreement ' Incorporated; LFBP 1, L L.C., doing business
as GW Fins; Panama City Beach Dolphin
Tours & More, L L.C.; Zekes Charter Fleet.
Footnotes LLC; William Sellers; Kathleen Irwin,
Ronald Lundy, Corliss Gallo; John Tesvich,
Michael Guidry, on behalf of themselves and
Hines v Massachusetts Mut. Life Ins Co., 174 S.W.2d 94 (Tex Civ App. Fort all others similarly situated, Henry Hutto.
Worth 1943); Ross v. Seip. 154 S W.2d958 (Tex Civ. App. Texarkana 1941), Brad Friloux, Jerry J Kee,
United States Court of Appeals, Fifth Circuit
writrefused; Davenportv. Shepherd, 197 SW 729 (Tex Civ App Beaumont February 09, 2015
1917), writ refused, (Feb 6, 1918) FN2 ROA2421 [Settlement Agreement,
p 2] In addition to settling the private suits,
Economy Furniture. Inc v Jirasek, 345 S W.2d 951 (Tex Civ App Austin BP pled guiltyto numerous criminal charges
arising from the oil spill eleven felony counts
1961), writ refused n.r.e., (Oct. 3, 1961). of seaman manslaughter .

Davenport v Shepherd, 197 S W. 729 (Tex Civ App Beaumont 1917), writ Joint Appendix

refused, (Feb. 6, 1918) 1998 WL 34082180
CALIFORNIA PUBLIC EMPLOYEES'
^tf
htt™-//a next west1awxom/Link/Document/FullText?findTvne=... 12/17/2015
Supreme Court of Texas.
249 S.W.3d 425 (Tex. 2008)

a HAMILTON V.WILSON

NADINE HAMILTON, NEE NADINE LAMBERT, PETITIONER, V. SELMA P. WILSON, M.D.,
RESPONDENT. • NO. 07-0164. -SUPREME COURT OF TEXAS. • MARCH 28, 2008.
REHEARING DENIED MAY 2, 2008. • APPEAL FROM THE 237TH DISTRICT COURT, LUBBOCK

COUNTY, SAM MEDINA, J.

Fred Bowers, Forrest Bowers, Bowers Law Firm, Lubbock, TX, for Petitioner.

Jim Hund, Linda Ruth St. Clair Russell, Hund Harriger, LLP, Lubbock, TX, for Respondent.

PER CURIAM.

The trial court granted a provider's no-evidence summary judgment motion in at health care
liability suit, and the court of appeals affirmed. Because genuine issues of material fact preclude
summary judgment, we reverse the court of appeals' judgment and remand this case to the trial
court for further proceedings.

On September 16,2003, eighty-three-year-old Nadine Hamilton was admitted to Covenant Lakeside
medical center in Lubbock for back surgery. Prior to the procedure, anesthesiologist Dr. Selma
Wilson was summoned to intubate Hamilton and administer general anesthesia. Dr. Wilson
attempted the intubation with a 75mm endotracheal tube, encountered resistance, and then ^
' inserted the tube i-2cm farther. When that tube did not reach the depth she expected, she removed
it and successfully inserted one that was 7.0mm in diameter. After the surgery, a recovery room
nurse extubated Hamilton and suctioned her throat. Hamilton later complained of chest pain, and
x-rays indicated that air was entering Hamilton's chest cavity. It was thendiscovered that Hamilton
had *426 suffered a tear in her esophagus. That night, Hamilton was transferred to another hospital
where she successfully underwent emergency corrective surgery by Dr. Donald Robertson, a
thoracic surgeon. Hamilton filed a health care liability claim against Dr. Wilson, alleging that she
negligently tore Hamilton's esophagus during intubation by forcing the endotracheal tube into her
esophagus after encountering resistance.

Dr. Wilson moved for summary judgment, arguing that there was no evidence that she was
negligent or that she caused the esophageal tear. Hamilton responded with portions of the
depositions of the designated testifying experts (Dr. Robert Finnegan on behalf of Hamilton, Dr.
Byron Brown for Dr. Wilson), her medical records, and Dr. Wilson's own deposition. Dr. Finnegan
testified that the intubation probably caused the tear in Hamilton's esophagus, and Dr. Wilson and
Dr. Brown admitted this was possible. The trial court granted the motion, and the court ofappeals
affirmed. 223 S.W.3d 535 (/case/hamilton-v-wilson-i) . Hamilton argues that the court ofappeals
erred in concluding that there was no evidence that Dr. Wilson negligently tore Hamilton's
esophagus. We agree.

In a no-evidence summary judgment motion, the movant contends that there is no evidence ofone
or more essential elements ofthe claims for which the non-movant would bear the burden ofproof
at trial. TEX.R. CIV. P. i66a(i). The trial court must grant the motion unless the respondent
produces summaryjudgment evidence raising agenuine issue of material fact. Id. The respondent is
"not required to marshal its proof; its response need only point out evidence that raises afact issue
on the challenged elements." TEX.R. CIV. P. i66a(i) cmt. - 1997- We review a no-evidence
summary judgment for evidence that would enable reasonable and fair-minded jurors to differ in
their conclusions. City ofKeller v. Wilson, 168 S.W3d 802, 822 (/case/city-of-keller-v-wilson-2#p822)
(Tex. 2005).

«f>P
In applying this standard, the court of appeals noted that, to recover for medical malpractice, the
complainant must prove: 1) the physician had a duty to act according to a certain standard, 2) she
breached that standard, and 3) the breachproximately caused the complainant to sustaininjury. 223
S.W.3d at 537 (/case/hamilton-v-wilson-i#p537) ;see IHS Cedars Treatment Ctr. v. Mason, 143 S.W.3d
794, 798 (/case/ihs-cedars-treatment-ctr-of-desoto-v-mason#p798) (Tex. 2004). After reviewing
the acts allegedly performed by Wilson, the court of appeals concluded that the mere possibility
and "belief by Dr. Finnegan that Wilson inserted an endotracheal tube into Lambert's esophagus
was "not evidence that proves the questioned fact." 223 S.W.3d at 538 (/case/hamilton-v-wilson-
i#P538) •

However, Hamilton was not required to prove the facts as she alleged them. Rather, she was only
required to provide evidence that would enable reasonable and fair-minded jurors to differ in their
conclusions. After examining the evidence on each ofthe required elements, we conclude that she
met this burden.

In his expert report, Dr. Finnegan set out the general standard of care for an anesthesiologist
placing an endotracheal tube. She must: a) establish and maintain control of the patient's airway
during general anesthesia; b) establish this control in a safe manner; c) promptly recognize and
document injuries and complications related to airway management; and d) promptly seek
appropriate treatment, ifneeded, for such injuries and complications.
Hamilton contends that certain diagnostic tests (breath tests, C02 tests, and use ofa pressure bag)
should have been used to determine if the 7.5mm tube was in the esophagus and not the trachea
before Dr. Wilson attempted to pass the tube after ^7 encountering atight fit. Dr. Finnegan noted
that the tests take only ten to fifteen seconds and suggested that it was proper to use these
measures to determine if the tube is in the airway and not the esophagus. Dr. Wilson's expert, Dr.
Brown, disputed that breath tests should be used in this manner. But Dr. Finnegan noted that
factors like the "[a]bsence of breath sounds, absence of C02 trace, [and] watching the stomach
move instead of the chest wall" were measures he had used previously to determine ifatube was in
the wrong location in previous intubations. Indeed, ultimately Dr. Wilson did use breath sounds to
verify the placement ofthe second, smaller 7.0mm tube in Hamilton's trachea.
The available testimony provides some evidence of a breach of the applicable standard of care. Dr.
Finnegan testified that Dr. Wilson violated the standard of care by improperly calculating the tube's
location. When asked in what respect Dr. Wilson breached the standard of care, Dr. Finnegan
responded: "pushing the 7.5 endotracheal tube down into the esophagus."

Dr. Wilson testified that she inserted the tube in farther after encountering resistance. And Dr.
Finnegan testified that Dr. Wilson failed to ascertain whether the tube was positionedproperly. Dr.
Finnegan also concluded that Dr. Wilson's manipulation of the 7.5mm tube caused Hamilton's
esophageal tear, and Dr. Wilson and Dr. Brown conceded that was possible. The implication is that
breath tests, rather than feel alone, should have been performed to ensure proper placement in the
trachea before Dr. Wilson pushed the 7.5mm tube in farther.

We have held that conclusory statements, evenfrom experts, are not sufficient to support or defeat
summary judgment. Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (/case/wadewitz-v-montgomery-
i#p466) (Tex. 1997); see also Burrow v. Arce, 997 S.W.2d 229, 235 (/case/burrow-v-arce#p235)
(Tex. 1999) (holding that "it is the basis of the witness's opinion, and not the witness's
qualificatiof^cMrJa^ sffi«KsfflB amatter of law; aclaim will not
stSicWrfafiOn the mere ipse dixit of acredentialed witness."). Dr. Finnegan's testimony, however,
was notbased on mere possibilities, speculation, or surmise. His opinion that the intubation caused
the f^y^ri^ the 7.5mm tube would have
be^n when it wag pushed in by Dr. Wilson; 2) his review ofthe medical records indicating that the
Select your interests
tear was "probably related tointubation at the time ofsurgery;" and 3) his impression that the "tight
fit" encountered byDr. Wilson was the cricnnharyngeal ring ofthe esophagi •* Further, although Dr.
Wil i " *ed her alflA^^ieory for|HfiNftar occurMpJ^SI stoning of Hamilton's
ktubatiojBMB testimoBBHBi Pushed l^lWf in 1-2Cm farther even
^nSiSSSSST« ""ti^Iifet:sSld SUPP°rtcM^an'S C°&!»na<
Law Law
The basis for Dr. Finnegan's testimony stands in contrast to the attorney Burrow v. Arce who,
lalpral^Wled onlyJH||Htory affietween claim preclusion and issue preclusion. See Flores v.

^^V ^^^B ^B*^^^^B Jfl| " ||f* ing the grievance and wrong complained of, must be identical in
^^•j j^^H ^M I ft ^H llll,, ^M& ;riet-93 Tex. 458, 56 S.W. 330,330 (1900), (all matters that could
^B^B^^B^BT ^^^L^L^&W ^fEjggttglra: ed in asucceeding suit); Freeman v. McAninch, 87 Tex. 132, 27 S.W.
^B^BjBBBr ^^^^HB^ ^ilippnr ;ame "subject matter" of the suit); Moore v. Snowball, 98 Tex. 16,
ur^^iu q;u4; iuiuuS.^ uul i„ .uu.^im) uiuuuu uum piuui 01 Lquitable title so as to be different "cause of action" for res judicata
nmZesyOgletreev. Crates, ^S.W.2dA3i. 436 (Tex. 1963) (while suit to modify adivorce decree and suit to set it aside for taud are technically
different causes of action, they are the same "broad cause of action," and public policy requires all complaints concerning cusTScry could and should
have been brought in the same suit).

4The court did not attempt to apply any test for res judicata to the facts in Griffm. Ultimately, the Court based its decision on stare decisis,
because other courts had held that quantum meru.t is not barred by ajudgment on the contract. Griffin, 496 S.W.2d at 538. The court did so without
discussion ofthe reasoning inthecases upon which it relied. "**
frfP
5. The court announced a two-step analysis. First the court looked to see if stare decisis decided the case, and determined that there was no
controlling case. Second, the court looked to see "whether the factual situa tion presented is such that the purposes of the doctrine of merger shall
be frustrated absent enforcement of the bar." 496 S.W.2d at 532.

6. In Jeanes v, Henderson, 688 S.W.2dloo. 103 (Tex.1985],we cited sectior 24(2) of the Restatement as authority for the definition of claims
preclusion. We did not clearly adopt the restatement in that case, howeve r.

Comment

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ieagle com reserves the right to edii orremove comments but is under r . obligation to do so, or to explain individual moderation decision^

°ft
§ ;3.001. Separate Property - Westlaw 29

WestlawNext"
§ 3.001. Separate Property
Vernon's Texas Statutes and Codes Annotated Family Code (Appmx 2 pages) NOTES OF DECISIONS (1520)
| 1 "]ota Validity
In general
Vernon's Texas Statutes and Codes Annotated Conflict of laws

Family Code (Refs & Annos) Federal regulation, conflict of laws

Title i. The Marriage Relationship (Refs &Annos) Contracts, conflict of laws

Subtitle B. Property Rights and Liabilities Personal injury recoveries, conflict of laws
Personal property
Chapter 3. Marital Property Rights and liabilities (Refs &Annus)
Real property
Subchapter A. General Rules for Separate and Community Properly (Refs & Successive communities
Annos) Children, successive communities
Determining character of property
V.T.C.A., Family Code § 3.001 Time generally, determining character of
property
Acquisition, determining character of
§ 3.001. Separate Property property
Nature of separate property, determining
Currentness character of property
Nature of community property,
determining character of property
A spouse's separate property consists of: Intent, determining character of property
Consideration, determining character of
(1) the property owned or claimed by the spouse before marriage; property
Proportionate interest, determining
(2) the property acquired by the spouse during marriage by gift, devise, or descent; and character of property
increase in vaiue, determining character
(3) the recovery for personal injuries sustained by the spouse during marriage, except any of property
recovery for loss of earning capacity during marriage. Intentions of parties, determining
character of property

Credits Premarital agreements, determining
character of property
Added by Acts 1997, 75th Leg , ch. 7, § 1, eff. April 17, 1997.
Inception-of-title rule, generally
Changing character of property
Editors' Notes
Tracing and identification, changing
character of property
TEXAS ANNOTATED CODE SERIES REFERENCES
Agreements, changing character of
property
Gifts between spouses, Sampson &Tindall's Texas Family Code, Family § 3.005.
Commingled property
Recordation of separate property, Sampson &Tindall's Texas Family Code, Family §
Devise or descent, changing character of
3.004. property
Exchanges
RESEARCH REFERENCES Tenancy in common, generally
Fraud
Encyclopedias
Gifts

37 Am. Jur Proof of Facts 2d 379, Transmutation of Separate Property Into Community Tracing separate property, commingled
property
Property. Identification of separate property,
39 Am Jur. Proof of Facts 2d 373, Gift of Corporate Stock. commingled property

TX Jur. 3d Family Law § 133, Property Acquired During Marriage by Gift. Consideration, gifts
Spouse, gifts
Treatises and Practice Aids Findings, gifts
inherited property
Texas Family Law Service § 17:2, Separate Property.
Trusts
Texas Family Law Service § 19:7, Separate Property. Inter vivos trusts
Texas Family Law Service § 20:9, Separate Property. Constructive trusts
Texas Family Law Service § 21:2, Separate Property. Resulting trusts
Texas Family Law Service§ 24:6,Agreements as to Income or Property Derived from Spend-thrrft trusts
Separate Property Powers of trustees, trusts

Texas Family Law Service § 18:20, Separate Property. Discharge of trustees, trusts
Texas Family Law Service § 18:34, Gifts. Interest and title, trusts

Texas Family Law Service § 19:27, Gifts. Income, trusts

Texas Family Law Service§ 24:31, Gifts of Community Property to Spouse. Taxation, trusts

Beyer, 9 Tex Prac Series § 3.7, Separate Property-Definition. Competence of parties, trusts

Elder, 33 Tex. Prac Series§ 9:3, Definitions-Community Property and Separate Property. Deeds, trusts
Unlawful cohabitation, trusts
Prizes and awards

Relevant Notes of Decisions (710) Earnings
Services prior to marriage, earnings
Notes of Decisions listed beiow contain your search terms.
Bonuses, earnings

& 4
https://a.next.westlaw.com/Document/N5A7DC2F0BE7611D9.. 12/18/2015
§ 15. Separate and community property of husband and wife - Westlaw 28

Property division in Texas divorce of migrant spouse. J, Thomas Oldham, 19 Hous.L.Rev. Torts

1. Ratification, agency of spouse
Necessaries
Reclassification of tort recoveries by spouses. 4 Tex.Tech L.Rev. 359 (1973).
Attorneys' fees, liability of spouses
Rights of a surviving spouse in Texas in marital property acquired while domiciled
Liability of separate property
elsewhere, 45 Tex L.Rev. 321 (1966).
Liability of community property
Should your spouse be compensated for putting you through school? Texas says no; is that
Levy and garnishment, liability of
just and right? 20 St. Mary's L.J. 897 (1989). community property
Texas Family Code with commentaries-Title 1. Husband and Wife. Joseph W. McKnight, 21
Tex.Tech L.Rev. 911 (1989-1990).
Tortious conduct of spouse toward other's property rights. 20 Baylor L.Rev. 29, 30 (1968).

RESEARCH REFERENCES

2015 Electronic Update

ALR Library

87 ALR 6th 495, Validity of Postnuptial Agreements in Contemplation of Spouse's Death.
80 ALR 5th 533, Spouse's Cause of Action for Negligent Personal Injury, or Proceeds
Therefrom, as Separate or Community Property.

Encyclopedias

37 Am. Jur. Proof of Facts 2d 379, Transmutation of Separate Property Into Community
Property.
TX Jur. 3d Decedents' Estates § 66, Death of Spouse as Terminating Community Estate.
TX Jur. 3d Decedents' Estates § 67, Rights of Surviving Spouse to Community Property.
TX Jur, 3d Family Law § 167, Damages for Personal Injury to Spouse.
TX Jur. 3d Family Law § 241, Agreement Concerning Income or Property Derived from
Separate Property.

Forms

Texas Forms Legal and Business i 32:47, Agreement on Income or Property from Separate
Property.

Treatises and Practice Aids

Texas Family Law Service § 17:2, Separate Property.
Texas Family Law Service § 19.7, Separate Property.
Texas Family Law Service § 204, Right of Spouses to Divide Property.
Texas Family Law Service § 20:9, Separate Property.
Texas Family Law Service § 21.2, Separate Property.
Texas Family Law Service§ 24:6,Agreementsas to Income or Property Derived from
Separate Property
Texas Family Law Service § 18:20, Separate Property.
Texas Family Law Service § 46:43, Characterization as Community or Separate Property.
Leopold, 4 Tex. Prac, Series § 20.4, Validity ofTexas Deeds Between Husband and Wife.
Beyer, 9 Tex. Prac. Series § 3 7, Separate Property-Definition.
Leopold, 3A Tex Prac. Series § 13.28, Interests in Texas Land Held by Multiple Owners-
Doctrine of Survivorship Abolished-Survivorship of Husbandand Wife.
Leopold and Beyer, 38Tex Prac. Series§ 2.3, Separate Property-Before Marriage.
Leopold and Beyer, 38Tex. Prac. Series§ 2 4, Separate Property-During Marriage.
Leopold and Beyer, 38 Tex. Prac. Series§ 2.5, Separate Property-By Agreement.
Leopold and Beyer, 38Tex Prac. Series§ 11.3, Agreements Concerning Income or
Properly from Separate Property-ln General.
Leopold and Beyer, 38 Tex. Prac. Series § 12 4,Content of a Premarital Agreement-Making
Separate Property.
Leopold and Beyer, 38 Tex. Prac. Series § 11 22, Introduction to Agreements to Convert
Separate Property to Community Property.
Leopold and Beyer, 39 Tex. Prac. Series § 22.4, Recipients of Separate Property Upon
Intestacy.
Leopold and Beyer. 39 Tex Prac Series §18 11, Agreements Between Spouses and the
Presumption.
Leopold and Beyer, 39 Tex Prac Series § 18.13, Conveyances Between Spouses.

View all 700
Relevant Notes of Decisions (674)

httDs://a.next.westlaw.com/Document/N5A7DC2F0BE7611D9... 12/18/2015
Desta v. Anyaoha - Westlaw

When reviewing factual findingsforfactual sufficiency, a finding will be overturned RAMIREZ, Appellee.
Court of Appeals of Texas, San Antonio
only ifit is so against the great weight and preponderance of the evidence or so January 15, 2014
lacking in evidentiary support as to be clearly wrong and unjust. ..In assessing whether the evidence
supporting a jury finding is legally sufficient,
we only consider evidence favorable to the
jury's decision and disregard all evidence and
Appeal and Error Vs* Cases Triable inAppellate Court inferences to the contrary. ..
Conclusions of law are reviewed de novo.
See More Briefs

Trial Court Documents

7 Marriage 4F3 Fraud, misrepresentation, or imposition Zapf v. Texas Dept. of Transp
Marriage annulment statute did not condition annulment of marriage upon finding
2011 WL 7301777
that wife's fraud went to the essentials of the marital relationship; trial court's Zapf v. Texas Dept. of Transp
finding that wife made material misrepresentations to induce husband to marry District Court of Texas, Jefferson County
August 01, 2011
her was sufficient under annulment statute. VT.C.A. Family Code § 6.107.
..August 1, 2011 Dear Counsel: I have now
had an opportunity to consider defendant's
Motion for Judgment Notwithstanding the
Verdict filed in connection with the above-
8 Fraud %'la Elements of Actual Fraud
captioned matter. As the parties ar.
Fraudulent inducement is established by proving that a false material
misrepresentation was made that: (1) was known to be false when it was made; Billy Wayne SELLERS, v. Daniel L.
FOSTER, DO.
(2) was intended to be acted upon; (3) was relied upon; and (4) caused injury.
2006 WL 3064769
BillyWayne SELLERS, v. Daniel L FOSTER,
1 Case that cites this headnote
DO
District Court of Texas, Tarrant County
May 11,2006
9 Fraud I?51 Materiality of matter represented or concealed
This court has considered the record on
A "material misrepresentation," as an element of fraud, means a reasonable appeal in this case and holds that there was
person would attach Importance to and would be induced to act on the no error in the thai court's judgment. It is
ordered that the judgment of the trial court is
information in determining his cause of action. affirmed Itisfurthe..

Dallas COUNTY, Appellant, v. Glen
HOLMES, Appellee.
Attorneys and Law Firms 2001 WL 35939063
Dallas COUNTY, Appellant, v Glen
'597Meijken Westenskow, Mosaic Family Services, Dallas, TX, for Appellant. HOLMES, Appellee.
District Court of Texas.
December 06, 2001
Stephen V. Hartman, Dallas, TX, for Appellee.
...FN1. The Honorable David F. Farris
Retired Justice, Second District Court of
Before Justices O'NEILL, MARTIN RICHTER, and LANG-MIERS. Appeals, Fort Worth, Texas, sitting by
assignment FN2. The Honorable Barbara
Rosenberg, Former Justice, Court of
OPINION
Appeals, ...

Opinion By Justice MARTIN RICHTER. See More Trial Court Documents

The trial court annulled the marriage of Betelehem Desta (Wife) and Festus Anyaoha
(Husband) based on fraud. In two issues on appeal, Wifeasserts the evidence was legally
and factually insufficient to support an annulment and the trial court erred because there was
no determination *588 as to whether the alleged fraud "went to the essentials of the
marriage relationship." Concluding appellant's arguments are without merit, we affirmthe
trial court's judgment.

Background
Husband, a resident of the United States, met Wife, an Ethiopian citizen, on an internet
dating site. Wife told Husband she wanted a marital relationship withseveral children. The
two were married in 2007, and began living together in October 2008 after Wife arrived in
the United States. Wife claimed Husband abused her, and left him in May 2009 shortly after
she received her "green card."

Wife filed a petition fordivorce Husband filed a cross-petition requesting dissolution of the
marriage, or alternatively, annulment based on fraud. Following a hearing, the trial judge
ruled that the marriage should be annulled and madefindings offactand conclusions oflaw.
This appeal followed.

Discussion
1 Appellant contends theevidence isinsufficient tosupport an annulment and thetrial
court erred because it did not determinewhetherthe allegedfraud"went to the essentials of
the marriage relationship." We disagree.

Atrial court may grant a petitioner an annulment ofa marriage if (1) theother party used
fraud, duress, or force to inducethe petitioner to enter intothe marriage; and (2)the
petitioner has not voluntarily cohabited with theother party since learning ofthefraud or
5
•PP
https://a.next.westlaw.com/Document/I693e9d46befdllel9159... 12/17/2015
Desta v. Anyaoha - Westlaw

We decline this invitation to expand the scope of § 6.107 to impose more than what the
statute requires. See Phi Van Cao v. Hardy, 352 S.W.3d 218, 221 (Tex.App.-Houston (14th
Dist] 2011, pet. denied) (stating court may not add language to a statute). It is not the
function of the courts to expand the scope of a statute beyond the Legislature's intent as
expressed in the plain language of the statute. See Consol. Reinforcement, LP. v. *600
CarothersExec. Homes, Ltd., 271 S.W.3d 887, 892 (Tex.App -Austin 2008, no pet),
overruled on other grounds byS&P Consulting Engineers, PLLC v. Baker. 334 S W.3d 390,
403 (Tex.App -Austin 2011, no pet). The statute plainly provides that a trial court may grant _

established by proving that a false material misrepresentation was made that (1) was known M

K to be false when it was made; (2) was intended tobeacted upon; (3) was relied upon; and
(4) caused injury. Id.;see also Montenegro v. Avila, 365 S.W.3d 822, 826-27 (Tex.App.-El
*

Paso 2012) (not designated for publication) (concluding evidence sufficient to support finding
that husband fraudulently induced wife to marry). Significantly, fraud requires a material
misrepresentation. See Transport Ins. Co. v. Faircloth, 898 S.W.2d 269, 276 (Tex.1995). A
material misrepresentation, as an element of fraud, means a reasonable person would
attach importance to and would be induced to act on the information in determining his
cause of action. Italian Cowboy Partners, Ltd., v. PrudentialIns. Co., 341 S.W 3d 323. 3' 7
(Tex.2011). Wife fails to explain the distinction, ifany, between the materiality requirement
imposed by the statute and the "essential to the relationship" standard she seeks to ha\ e us
impose. The trial court found that Wifemade material misrepresentations to induce Hu:.band
to marry her. Because the trialcourt was not required to also determine whether the frs.ud
"went to the essentials of the marital relationship," we cannot conclude it erred in failir j to do
so. Wife's first issue is overruled.

The judgment of the trial court is affirmed.

All Citations

371 S.W.3d 596

Footnotes

Wife states "there is little Texas case law defining this standard.' Wf have
found none.

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MORSE v. MORSE
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Attorney
Court of Appeals ofTexas,El Paso. Corporate Counsel
Academic
Gary Edward MORSE, Appellant, v. Dana Ann MORSE, Appellee. Judicial Clerk
Summer Associate
Intern
No. 08-09-00046-CV.
Law Libranan
Decided: August 31, 2010
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Before CHEW, CJ., McCLURE, andRIVERA, JJ. Kevin Acker, for GaryEdward Morse. David W.Lindemood,
for Dana Ann Morse.
OPINION

Gary Edward Morse appeals anorder entered ona motion tocompel execution ofclosing documents andan
original petition forpost-divorce division ofproperty. This court ordered theparties toattend mediation
pursuant toSection 154.021 oftheCivil Practice and Remedies Code and they entered into anirrevocable
mediated settlement agreement (MSA). Among otherthings, theagreement required Gary todismiss this
appeal. Gary hasinstead filed a motion tosetaside theMSA. For thereasons thatfollow, we deny themotion
and dismiss the appeal.

FACTUAL SUMMARY

Dana Morse filed apetition fordivorce onJuly 20,2007. The trialcourt signed afinal decree onSeptember 25,
2008.Neither oftheparties appealed. Dana laterfiled anoriginal petition forpost-divorce division ofproperty
shealleged Gary had hidden during the pendency ofthedivorce. She also filed amotion tocompel execution of
closing documents. On February 18,2009, the trial court entered anorder addressing both themotion to
compel and the petition for post-divorce division ofproperty. Gary filed notice ofappeal indicating his intent
toappeal from thatorder. Pursuant toour order, the parties attended mediation and, according tothe status
report filed byDana, they resolved all matters ofcontroversy between them. Dana attached toher report a copy
ofthe MSA signed bytheparties and their attorneys. Among other things, Gary agreed todismiss his appeal as
part ofthe settlement agreement. He did not comply with the agreement but instead filed amotion to set it
aside ontheground that Dana had intentionally breached theagreement bydamaging some items ofproperty
awarded tohim. Dana responds that because the MSA satisfies the requirements ofSection 6.602 ofthe Family
Code,it is not subjectto revocation byeither party.

MEDIATED SETTLEMENT AGREEMENT

Amediated settlement agreement isimmediately binding ontheparties iftheagreement: (1) provides ina
prominently displayed statement that isin boldfaced type, capital letters, or underlined, that the agreement "is
not subject torevocation"; (2) issigned bythe parties; and (3) issigned by the parties' attorneys who are
present atthe time ofsigning. Tex.Fam.Code.Ann. §6.6o2(b)(Vernon 2006). Ifan MSA meets these
requirements, aparty isentitled tojudgment notwithstanding Rule 11 ofthe Texas Rules ofCivil Procedure or
another ruleoflaw. Tex.Fam.Code.Ann. §6.602(c). Compliance with Section 6.602 makes theagreement an
exception toSections 7.001 and 7.006, which allow revision and repudiation ofsettlement agreements.
Tex.Fam.Code Ann. §§ 7.001,7.006; InreJoyner, 196 S.\V.3d 883,889 (Tex-App.-Texarkana 2006, pet.
, denied). Acourt is not required to enforce an MSA ifitis illegal in nature or procured by fraud, duress,
coercion, orother dishonest means. Joyner, 196 S.W.3d at890; Boyd v.Boyd, 67S.W.3d 398,404-05
(TexApp.-Fort Worth 2002, no pet.)(holding that §6.602 mediated settlement agreement may be subject to
rescission due tointentional nondisclosure.); InreKasschau, 11 S.W.3d 305, 312 (TexApp.-Houston [14th
Dist.] 1999, orig. proceeding)(holding that amediated settlement agreement may be set aside on the ground of
illegality).

Gary does not dispute that the MSA meets all ofthe requirements of Section 6.602. Unless he can establish a
ground for revocation, itis binding. The only ground Gary alleges is that Dana intentionallybreached the
settlement agreement with malice by damaging certain items ofproperty. He cites no authority that an MSA
can be revoked due to aparty's alleged intentional breach. Because Gary has failed to assert aviable ground for
setting aside orrevoking theMSA, wedeny hismotion.
The terms ofthe MSA require Gary to dismiss this appeal. Inthe interest ofjudicial economy, we will not
require Gary to file aformal motion. Instead, we sua sponte dismiss the appeal.
ANN CRAWFORD McCLURE, Justice.

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rW<>
§112.001. Methods of Creating Trust - Westlaw 23

or when party breaches fiduciary-like relationship. Matter of Carolin Paxson Advertising, Inc,
'c.A.5 (Tex.)1991, 938 F2d 595. Trusts w. 93; Trusts o-94.6; Trusts fc=- 102(1)
Court cannot impose trust when parties contemplated another relationship. Stauffacher v,
Coadum Capital Fund 1, LLC (App 14 Dist 2011) 344 S W.3d 684, rehearing overruled,
review denied. Trusts ;•=-1

Person who purchases property for another but purchases it in his own name holds it on a
constructive trust for the other. Baxter v. Williams (Civ.App. 1976) 544 S.W 2d 192, ref.
n.r.e.. Trusts •>• 92.5
Statute did not prohibit enforcement ofconstructive trustof real estate based on parol
agreement. Howard v. O'Neal (Civ App. 1952) 246 S.W.2d 907, ref. n.r.e. Trusts t- 92.5
The rule thata constructive trust would be imposed toenforce breach ofa parol promise to
reconvey land where a grantee refused to perform relying on the Statute of Frauds was not
affected by the Texas Trust Act Gray v. Mills (Civ App 1947) 206 SW2d 278, affirmed 147
Tex. 33, 210 S.W.2d 985. Trusts *- 94

— Equitable remedy, constructive trusts

Constructive trustis not in reality a trust, but isanequitable remedy Oak Cliff Bank &
TrustCo v Steenbergen (Civ.App 1973) 497 S W.2d 489, ref. n.r.e., Baxter v Williams

httDs://a.next.westlaw.com/Document/NDAF78A80BE7411D9...
«FP'7
12/18/2015
§. 112.001. Methods of Creating Trust - Westlaw 23

(Civ.App.1976) 544 SW.2d 192, ref. n.r.e.; Lowther v Lowther (Civ.App.1979) 578 S W2d
560, ref. n.r.e

Under Texas law, constructive trust generally arises when person with legal title to property
owes equitable duties to deal with property for benefit of another. Matter of Carolin Paxson
Advertising, Inc., CA.5 (Tex.)1991, 938 F.2d 595. Trusts »« 91

Constructive trust remedy, by its nature, is broad and flexible, and being remedial in
character, constructive trusts have very broad function of redressing wrong or unjust
enrichment in keeping with basic principles of equity and justice. First Nat Bank of AmariHo
v. Bauert (App. 7 Dist. 1981) 622 S.W.2d 464. Trusts «•••-. 91

Equitable remedy of constructive trust is broad and far reaching and is designed to
circumvent technical legal principles of title and ownership in order to reach a just result.
Peirce v. Sheldon Petroleum Co. (Civ.App 1979) 589 S.W.2d 849. Trusts %«• 91

Westlaw. C 2015 Thomson Reuters Privacy Statement Accessibility Supplier Terms ContadUs 1-800-REF-ATTY (1-800-733-2889) Improve Westlaw £ ^ T,,0VSON sturcss

1
2*8/201
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Van Zandt v. Van Zandt - Westlaw

home on property and deed of 134 Divorce

trust to secure money 134V Spousal Support, Allowances and
borrowed to construct home Disposition of Property
were executed by both 134V(D) Allocation of Property and Liabilities;
husband and wife and both Equitable Distribution

husband and wife entered 134V(D)9 Proceedings for Divisionor
"safe keeping agreement" with Assignment

bank as to proceeds from sale. 134kB76 Evidence

134k876 5 Weight and Sufficiency
1 Case that cites this headnote
134k876 5(4) Gifts, inheritance, and change of forrr
(Formerly 134k876, 134k2S3(2),
134k253)

Divorce %~
Trial court has broad discretion 134 Divorce
in partitioning property in
134V Spousal Support, Allowances, and
divorce proceedings. Disposition of Property
134V(D) Allocation of Property and Liabilities;
Equitable Distribution

134V(D)1 In General

134k653 Discretion of court in general
(Formerly 134k252 1. 134k252)

Attorneys and Law Firms

'323 Hamblen &Hamblen, Presley E. Werlein, Jr., Houston, forappellant.

George W. Eddy, Edgar E. Townes, Jr., Houston, for appellee.

Opinion

BELL, Chief Justice.

In this case the trial court awarded a divorce to appellant and made a division of the property
claimed by the parties. The only question on appeal is whether there was error in the jury
verdict when the jury failed to find that certain property came to appellant in settlement of her
deceased's mother's estate.

Appellant contended in the trial court by proper pleadings, and contends here, that her
father, R. H. Fonviiie, in 1937, gave her $2500.00 with which she purchased five acres of
land on Sage Road in Harris County. It is her position that this $2500.00 was given her in
partial settlement of her interest in her deceased mother's estate and thus the land
purchased with such money became her separate property. The tract was sold in 1963 for
$438,000.00. The net proceeds from the sale, less taxes and expenses, are now
represented by assets in an Investment Advisory Agency Account with Texas National Bank
of Commerce.

Appellee contends that the Agency Accounts are community property or at least jointly
owned.

The court submitted Special Issue No. 3 to the jury, which read as follows:

'Do you find from a preponderance of the evidence that the sum of $2500 00
paid to William H. Wilson and wife as consideration for the conveyance of the 5
acres of land at the northwest corner of Sage and Westheimer, known as 2530
Sage Road, was delivered to the Plaintiff, Beverly Fonviiie Van Zandt, by her
father. R. H. Fonviiie, in partial settlement of her interest in the estate of her
deceased mother, Lillian Henrietta Racke Fonviiie?'

The jury answered, 'We do not'

In its judgment the court divided the Investment Advisory Account equally between the
parties.

Appellant asserts three points of error, contending as follows:
fr« %
thru* °^

httrm-//a npvt westlaw r.nm/F)nmiment/Tr.hSH7h25eha611 HQ8^e7 19/1 8/901 S
Van Zandt v. Van Zandt - Westlaw

1.Thecourt erred in submitting theissue because there was nocompetent evidence to
support its submission, but the evidence conclusively and as a matterof lawestablishedthe
affirmative of the fact inquired about.

2. Theanswer ofthe jury is so against the overwhelming weight and preponderance ofthe
evidence as to be manifestlywrong.

3. Wherea case is triedon the wrong theoryjustice requiresa reversaland remandfor
retrial. The contention here is that appellee tried the case on the theory thatthe property was
community whenitcould notas a matteroflawbe such butwas eitherthe separate property
ofappellant '324 orwas jointly owned by the parties, the interest ofeach constituting a part
of their respective separate estates.

Appellant was the daughter of R. H. Fonviiie and Lillian Henrietta Racke Fonviiie. Her
motherdied intestate in 1916 whenappellantwas seven years old.She had a younger
sister, Irma, who is now Mrs . Julius Garrett. Mr. Fonviiie married Clara McCormick in 1925.
To this marriage was born a daughter, Clarita, who is now Mrs. Neil Buie.

In July, 1916, Mr. Fonviiie received authority from the County Courtto act as community
survivor. He filed withthe court an inventory of the community estate It, together withits
appraisal, was approved by the court. It showed several pieces of real estate valued in the
aggregate at $14,900.00, personal property valued at $7,700.50 and cash of $500.00. The
largest item of personal property was 'one drug store, stock, etc' valued at $4,150.50. The
other personal property consisted of notes

Appellant and appellee were married in 1935.

On December 30, 1937, a deed to the five acre tract of land above mentioned was executed
by Wm. H. Wilson and wife, as grantors, and appellee, W. K, Van Zandt, was named as
grantee. It is this conveyance that gives rise to the real controversy here involved. In the
latter part of 1938 the parties built their home on the tract employing borrowed money. This
money would be community property. There is no controversy concerning the status of the
improvements.

The evidence all shows that the $2500.00 used to pay the purchase price of the five acre
tract was furnished by Mr. Fonviiie by delivery of his check to appellant. No contention is
made that this was a loan. We suppose appellee's contention that the land became k
ci]ment/Tcb5d7b25eba61 Id983e7... 12/18/2015
Van Zandt v. Van Zandt - Westlaw 7

In the testimony given in person at the trial appellee was asked who first brought up the
matter ofpurchasing theland and hestated itwas by mutual agreement with appellant. He
andappellant looked over several sites and agreed ontheSageRoad property. When the
property was actually transferred he was notpresent. Hedid notprocure the deed. Mr.
Fonvile furnished the money. Hedenied he hadanydiscussion with appellant inwhich he
told her he should be namedas grantee in the deed from Judge Wilson.

Documentary evidence reflects joint action bythe parties with regard to the property. The
mechanics' lien contract for the construction of the home and the deed of trust to secure
money borrowed to constructthe home were executed by both parties. In 1959,when the
parties were considering selling, appellant wrote appellee, 'Mr. Saidus came down yesterday
and said he had a buyerforour place. How muchdo youwant? He thinks we should sell. He
said for you to phonehim.' In 1960the parties executed a 'listing' agreementto Saidusand
Rowe, giving them the exclusive rightto sell the property. They both, in 1963, executed a
contract to sell. The deed to Lewis Funeral Home in 1963 referred to the consideration as
paid to 'us' and to the $438,000.00 'paid to Grantors.' In May, 1963,the partiesentered into
a 'Safe Keeping Agreement' with the Texas National Bank of Commerce with regardto the
money received. Itwas signed by both parties and required that any instructions to the Bank
must be in writing and signed byboth parties. On May 15, 1963, an 'Investment Advisory
Agency Agreement,' involving the net proceeds from the sale was entered into with the
same Bank. In it the parties together were referred to as 'Principal'.

In January, 1966, appellant attempted to have the assets of the AgencyAccounttransferred
to a trust over whichshe had sole control. She did this on the advice of a representative of
the Bank that the assets belonged to her. Appellant notified appellee of the action. Appellee
demaned a termination of the trust and a return of the assets to the jointaccount. The Bank
acceded to the demand. In 1945, while appellee was serving in the UnitedStates Navy, Mr.
Fonviiie wrote him a friendly letter and at one point in it referred to 'your nice home'.

Mr. Fonviiiedied testate in 1954. For some reason, which is not reflected by the record, his
will was not offered for probate. Instead of having the will offered for probate, his widow,
Mrs. Clara McCormick Fonviiie, and his three daughters, Beverly Van Zandt, Irma Garrett
and Clarita Buie, executed an agreement not to probate the will but to take under the laws of
descent and distribution. It was agreed that all property possessed by Mr. Fonviiie at his
death belonged to the community estate of Mr. Fonviiie and his surviving spouse. Mrs.
Fonviiie received one-half of the estate and each daughter received one-sixth. A partition
was also effected. The husband of each daughter executed the agreement as a party.

The part of the agreement that is of primary importance here is that which deals with
distribution of the estate of appellant's mother. After dealing with the second community, the
agreement made the following provisions:

'It is understood and agreed that during the lifetime of R, H. Fonviiie there was a settlement
of the Estate of Lillian Henrietta Racke Fonviiie, mother of Beverly Fonviiie Van Zandt and
Irma "326 Fonviiie Garrett, and that transfers of property, in absolute fee simple, and other
things of value included:

To Beverly Fonviiie Van Zandt he conveyed or caused to be conveyed the following:

'(a) Five (5) acres of land at the northwest corner of Sage and Brownway (Westheimer)
Roads, upon which W. K. Van Zandt's residence (known as 2530 Sage Road) is located.'

Then other properties and moneys that were transferred to Beverly or Irma are listed.
Following such listing is the following provision:

'It is distinctly understood and agreed that the conveyance of property above
mentioned from R. H. Fonviiie to his daughters Beverly Fonviiie Van Zandt and
Irma Fonviiie Garrett are hereby recognized and approved and are not to be
questioned by any of the parties hereto, their heirs or assigns. In likemanner
the proceeds of the life insurance policiesabove referred to in favor of Beverly
Fonviiie Van Zandt, Irma Fonviiie Garrett and Mrs. Clara McCormick Fonviiie
are recognized to be fully owned by the above named parties, free from any
claim of any party hereto.'

On the same day the above agreement was signed, the parties to it, except for appellee,
executed a quitclaim deed to Beverly Fonviiie Van Zandt. The instrument expressed as
consideration the sum of $10 .00 paid by 'Beverly Fonviiie Van Zandt, wifeof W. K. Van
Zandt'. The grantors did 'bargain, sell, release and foreverquitclaim unto the said Beverly
k$> %
Vi«™-/7ci n^vf wPctlQw ™m/nnriiment/TrhSH7h9Sehafi1 1 HQ83e7 1 9/1 8/901 ^
Van Zandt v. Van Zandt - Westlaw

Further, with regard to the contention that the agreementwas contractual as to the property,
it is noted that there is nowherea conveyanceto appellantof the property as a part of her
separate estate.

7 There are many cases dealing with conveyances between husband and wife. All of
the leading cases are analyzed and discussed by our Supreme Court in Jackson v
Hernandez, 155 Tex. 249, 285 S.W 2d 184. As we understand these cases from reading all
of them and from the Supreme Court's interpretationof them in the last cited case, the parol
evidence rule is operative to preclude parol evidence not merely because of a contractual
consideration in the deed but because the deed from the husband or wife to the other
contains the legally operative clauses conveying property to the grantee's separate estate.
The same rule is applicable where a spouse though not named as a grantor was
instrumental in procuring the deed to be so drawn. The reasoning is that the spouse
conveying or causing to be conveyed by deed containing the legally operative granting and
habendum clauses conclusivelyevidences an intent to make a giftto the grantee.

In none of the instruments here involved were there these legallyoperative clauses.

8 Considering all the evidence, we hold there was an issue of fact as to whether the
$2,500.00 was in partial settlement of appellant's mother's estate. Also considering all of the
evidence, the material part of which we have recited herein, we cannot "328 say that the
jury's answer to Special Issue No. 3 was so contrary to the overwhelming weight and
preponderance of the evidence as to be clearly wrong or manifestly unjust.

9 As previously stated, the court divided the Investment Advisory Account equally with
no statement as to whether he considered it community property or the property of both
owned in equal proportions. As above stated, we are of the view that under the evidence it
could not be community property. Whatever the court's theory the trial court has a broad
discretion in partitioning the property. No contention is made that the division made was
inequitable.

Affirmed.

All Citations

451 S.W.2d 322

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Chapter 1: The Texas Marital Property System 55

barred her entire cause of action.^ If he had no interest in the recovery,
his contributory negligence would not bar her cause of action,
m. Gorman v. Gause: Doctrine of implied exclusion keeps two people from making an
agreement to change the character of property.$ Doctrine of implied exclusion was
applied to a prenuptial agreement, which had declared that no property acquired
during the marriage would be community.^ The Court viewed this as an attempt by
the parties to fix the character of marital property by means different from that
recognized in the state constitution, and held the agreement to be void and
unenforceable,
n. Strickland v. Webster: Wife had purchased property from her husband with money
she earned as a school teacher.^ The couple had entered into an agreement that her
personal earnings would be her separate property.$ While that agreement was
found to be invalid, because community property law cannot be changed by contract,
the deed executed by the husband conveying the property was effective as a gift,
o. King v. Bruce: A husband and wife attempted to partition their community property
into the separate property of each via an elaborate series of transactions.^ The court
held that the couplers attempt was ineffective, as it was not recognized by the
constitution as a means of acquiring separate property.
i. Article 16 was amended to include $15 after this case.
C. The Constitution as Amended in 1948
a. Article 16 $15: Separate and Community Property of Husband and Wife: All
property, both real and personal, of the wife, owned or claimed by her before
marriage, and that acquired afterward by gift, devise, or descent, shall be the
separate property of the wife; and laws shall be passed more clearly defining the
rights of the wife, in relation as well to her separate property as that held in common
with her husband; provided that husband and wife, without prejudice to preexisting
creditors, may from time to time by written instrument as if the wife were a feme
sole partition between themselves in severalty or into equal undivided interests all or
any part of their existing community property, or exchange between themselves the
community interest of one spouse in any property for the community interest of the
other spouse in other community property, whereupon the portion or interest set
aside to each spouse shall be and constitute a part of the separate property of such
spouse.
i. Partition^ H and W hold Whiteacre as community property.^ They
decide to split it and one half becomes H$s separate property and one half
becomes W$s separate property.
ii. Exchanged H and W hold Greenacre and Blackacre as separate
property.$ H exchanges his community property interest in Blackacre for
W$s community property interest in Greenacre, and so then all of
Greenacre is H$s separate property and all of Blackacre is W$s separate
property.
b. These are two new ways to create separate property.
c. Creditors are protected in that if the partition or exchange that creates separate
property prejudices creditors, it$s held invalid.$ Fact question.
d. These cannot be done in a prenuptial agreement^ the couple must be married.
e. Must be done on existing community property
i. Can partition a bank account, but cannot partition future interest earned
on it.$ Interest earned next year will be community and will have to be
partitioned again.
ii. If they separated the accounts so each spouse had their own account,
the interest earned will still be community property.
iii. What do you do to make the interest separate property?^ Do an
exchange at the end ofeach year, after the interest has been earned.

httns://www.stcl.edu/students/SBA%20Outline%20Bank/Marit...
ft?? *1
12/17/2015
 Family Code—Title 1
Chapter 3. Marital Property Rights & Liabilities
§§3.101 - 3.102

by one of the spouses after marriage by toil, talent, in constitutes his sole-management community property.
dustry or other productive faculty belongs to the com [H's] credit reputation is also his sole-management
munity estate. Nevertheless, the law contemplates that community property, asitwas acquired, atleast inpart,
aspouse may expend a reasonable amount of talent or during the marriage and would have belonged solely to
labor inthemanagement and preservation ofhis orher him were he not married."
separate estate without impressing acommunity char Medenco, Inc. v. Myklebust, 615 S.W.2d 187,189
acter upon that estate." (Tex.1981). "During marriage, community property
Whittlesey v. Miller, 572 S.W.2d 665, 669 (Tex. employment benefits acquired through employment
1978). "In the absence of evidence showing authority, are subject to the sole management, control and dispo
the mere relationship of husband and wife does not sition ofthe employee spouse."
give the husband authority to contract with regard to Valdez v. Ramirez, 574 S.W.2d 748,750 (Tex.1978).
thewife's separate property." "While [W] was employed by the federal government
FAM §3.102. MANAGING COMMUNITY and earning future rights to aretirement annuity, those
PROPERTY contingent rights were community property, but such
(a) During marriage, each spouse has the sole inchoate rights are characterized by the Family Code as
management, control, and disposition of the commu 'special community' under [W's] sole management and
nity property that the spouse would have owned if control. At 751: Thus, while being earned, the rightto a
future Civil Service retirement annuity was thespecial
single, including:
community of [W], subject to her sole management,
(1) personal earnings; control and disposition. As manager of this 'special
(2) revenue from separateproperty; community' asset, she had the contract right to select a
(3) recoveries for personal injuries; and mode of payment."
(4) the increase and mutations of, and the revenue Jean v. Tyson-Jean, 118 S.W.3d 1, 5 (Tex.App.—
from, all property subject tothe spouse's sole manage Houston [14th Dist.] 2003, pet. denied). "In general,
ment,control, and disposition. community property is subject to the 'joint manage
(b) Ifcommunity property subject to the sole man ment, control and disposition of the spouses unless the
agement, control, and disposition of one spouse is spouses provide otherwise by power of attorney in writ
mixed orcombined with community property subject to ing or other agreement.' To effectuate avalid convey
the sole management, control, and disposition of the ance, both spouses must necessarily be joined in a
other spouse, then the mixed or combined community transaction, [f ] However, where community property
property is subject to the joint management, control, is held in one spouse's name only, there is a presump
and disposition ofthespouses, unless thespouses pro tion that the property is sole-management community
vide otherwise by power of attorney in writing or other property. [Family Code] §3.104 therefore trumps [Fam.
agreement.
Code] §3.102. Absent a showing of fraud or notice on
(c) Except as provided by Subsection (a), commu the part of persons dealing with the named spouse, this
nity property is subject to thejoint management, con
sole-management presumption protects third parties
trol, and disposition of the spouses unless the spouses who rely on the spouse's authority to deal with the prop
provide otherwise by power of attorney in writing or erty."
otheragreement. Madrigal v. Madrigal, 115 S.W.3d 32, 34-35 (Tex.
History of Fam. Code §3.102: Acts 1997, 75th Leg., ch. 7, §1, eff. Apr. 17, App.—San Antonio 2003, no pet.). "Proceeds from alife
1997.Source: Former Fam. Code §5.22.
See also O'Connor's Texas Family Law Handbook (2015), "Manage
insurance policy acquired as a benefit of employment
ment Rights over Community Property," ch. 2-B, §2, p. 138. during marriage are community property. The policy is
ANNOTATIONS
the sole management community property of the em
ployee spouse, and that spouse may designate the ben
eficiary of the policy. [I] Asurviving spouse estab
Sole Management
Douglas v. Delp, 987 S.W.2d 879, 883 (Tex.1999). lishes aprima facie case of constructive fraud on the GP9
"[H's] loss of earning capacity during the marriage community by proof that the life insurance policy was
O'CONNOR'S TEXAS FAMILY CODE 39 10
 Family Code—Title 1
Chapter 6. Suit for Dissolution of Marriage
§6.602

$k Suit for dissolution of amarriage to mediation on the settlementagreementand, since noallegation waspre
Stasis of family violence having been committed against sented that the agreement was illegal, or procured by
^ the'objecting party by the other party. After an objection fraud, duress, or coercion, and there is no indication
is-filed, the suit may not be referred to mediation un- the trialcourt sua sponte questioned the legality ofthe
•i(,SSi on the request of the other party, ahearing is held agreement, the trial court was required toentera judg
and the court finds that a preponderance of the evi ment based on the mediated agreement. ... We hold
dence does not support the objection. Ifthe suitis re that the judgment granting the divorce was rendered
ferred to mediation, the court shall order appropriate [by oral pronouncement], and since thetrial court had
measures be taken to ensure the physical and emo no authority (absent an issue on illegality, duress, etc.
tional safety of the party who filed the objection. The or raised either by the parties or the court sua sponte) to
der shall provide that the parties not be required to do otherwise, the mediated settlement agreement was
have face-to-face contact and that theparties be placed a part ofthedivorce rendition." See also Toler v. Sand
in separate rooms during mediation. ers, 371 S.W.3d 477, 479-80 (Tex.App.—Houston [1st
'rliitory of Fam. Code §6.602: Acts 1997, 75th Leg., ch. 7, §1, eff. Apr. 17, Dist.] 2012, no pet.) (court cannot alter ormodify prop
1997 Amended by Acts 1999,76th Leg., ch. 178, §2 (eff. Aug. 30,1999), ch. 1351,
Si (i-ffSept. 1,1999). erty division in valid MSA).
Sc;also O'Connor's Texas Family LawHandbook (2015), "Mediation,"
c'i i\ §13.1.1, p. 240; "Mediation," ch.4-D, §10.1.1, p. 414. Leev. Lee, 158 S.W.3d 612, 613-14 (Tex.App.—Fort
* " ANNOTATIONS
Worth 2005, no pet.). "Given that [Fam. Code]
§7.006(a) ... already allows divorcing parties to enter
• Milner v.Milner, 361 S.W.3d 615, 618 (Tex.2012). into written agreements without requiring mediation
"Unlike other settlement agreements in family law, the concerning thedivision of thecommunity assets and li
trial court is not required to determine if the property abilities as well as spousal maintenance, we decline to
division is 'just and right' before approving an MSA carve a common-law exception into [Fam. Code]
[under §6.602]. And once signed, [the] MSA cannot be §6.602(b) that allows an unmediated settlement agree
revoked like other settlement agreements. At 618 n.2: ment to morph into a mediated settlement agreement
{MSAs ] thatcomply with ... §6.602 are an exception to based on mere form. We hold that a mediated settle
[the] general rule [that a party can revoke consent to a ment agreement necessarily requires mediation and a
settlement agreement anytime before thecourt renders mediator. [%] Because therewas no third party present
judgment on the agreement]." After evaluating the at the settlement conference between [parties], there
MSA the Court remanded the property-division issue was no mediated settlement agreement. Instead, the
so the MSA's ambiguity could be resolved and a judg couple's agreement is simply an agreement under
ment could be rendered.
§7.006(a). Such agreements may be revised or repudi
Morse v. Morse, 349 S.W.3d 55, 56 (Tex.App.—El ated before the divorce is rendered unless the agree
Paso 2010, no pet.)." [H] does not dispute that the MSA ment is binding under another rule oflaw. The trial
meets all ofthe requirements of §6.602. Unless he can court abused its discretion in preventing [H] from re
establish a ground for revocation, it is binding. The voking his consent to the settlement on the basis that
only ground [H] alleges is that [W] intentionally the agreement was a binding mediated settlement
breached the [MSA] with malice by damaging certain agreement."
items of property. He cites no authority thatanMSA can
be revoked due to a party's alleged intentional breach. Mailhot v. Mailhot, 124 S.W.3d 775, 777 (Tex.
Because [H] has failed to assert a viable ground for App.—Houston [1st Dist.] 2003, no pet.). "It is well-
setting aside or revoking the MSA, we deny his mo settled that a judgment entered on the agreement of
tion " the parties cures all non-jurisdictional defects. Aparty
in re Marriage of Joyner, 196 S.W.3d 883, 891 who asks the trial court to accept a settlement agree
(Tex.App.—Texarkana 2006, pet. denied). "Section ment and to enter judgment accordingly may not later
6-602 has been classified as a 'procedural shortcut' for attack that judgment. To preserve error for appeal, a
enforcement ofmediated settlement agreements in di party who signs ajudgment must specify that his agree
ment with the judgment is as to form, but not as to sub
vorce cases. ... Here, the parties were entitled to a
-judgment incorporating the provisions of the mediated stance and outcome."

O'CONNOR'S TEXAS FAMILY CODE
M
 Family Code—Title 1
Chapter 3. Marital Property Rights & liabilities
§§3.005 - 3.007

See also O'Connor's Texas Family Law Handbook (2015), "Income riage before the grant could be exercised or the restric
from separate-property gift," ch. 2-A, §7.2.2(1), p. 106.
tion removed, the period from the date of dissolution of
ANNOTATIONS
the marriage until the date the grant couldbe exercised
or the restriction removed; and
Roberts v. Roberts, 999 S.W.2d 424, 432 (Tex.
App.—El Paso 1999, no pet.). "Generallyspeaking, one (B) the denominator is the periodfrom the date the
who is claiming the existence of a gift has the burden option or stock was granted until the date the grant
of proof. However, where the conveyance is from one could be exercised or the restriction removed; and
spouse to the other spouse, there is a presumption of (2) if the option or stock was granted to the spouse
gift, [f ] A gift by one spouse to another may be set during the marriage but required continued employ
aside if it is induced by duress or undue influence. In ment following the date ofdissolution of the marriage
such a case, the burden rests with the donee to show before the grant could be exercised or the restriction
that the gift was fair and equitable." removed, the spouse's separate property interest is
equal to the fraction of the option or restricted stock in
FAM §3.006. PROPORTIONAL
OWNERSHIP OF PROPERTY
which:
BY MARITAL ESTATES
(A) the numeratoris the periodfrom the date ofdis
If the community estate of the spouses and the solution ofthe marriage until the date the grant couldbe
separate estate of a spouse have an ownershipinterest exercised or the restriction removed; and
in property, the respective ownership interests of the
(B) the denominator is the period from the date
marital estates are determined bythe rule of inception
the option or stock was granted until the date the grant
of title.
could be exercised or the restriction removed.
History ofFam. Code §3.006: Acts 1999,76th Leg., ch.692, §1,eff.Sept. 1,
1999. Amended byActs 2001,77thLeg., ch.838,§3,eff.Sept.1,2001. (e) The computation described by Subsection (d)
applies to each component of the benefit requiring
FAM §3.007. PROPERTY INTEREST IN
CERTAIN EMPLOYEE BENEFITS varying periods of employment before the grant could
be exercised or the restriction removed.
(a), (b) Repealed byActs 2009, 81st Leg., ch. 768,
§11(1), eff. Sept. 1,2009. (f) Repealed by Acts 2009, 81st Leg., ch. 768,
(c) The separate property interest ofa spouse in a §11(1), eff. Sept. 1,2009.
History of Fam. Code §3.007: Acts 2005,79th Leg., ch.490, §1,eff. Sept. 1,
defined contribution retirement plan may be traced us 2005. Amended byActs 2009,81st Leg., ch.768, §§1,11(1),eff. Sept. 1,2009.
ing the tracing and characterization principles that ap Author's comment: The 2009repeal ofFamily Code§3.007(a)and (b) ef
plyto a nonretirement asset. fectively reinstates the common-law formula forcalculating the community's
interestindefined-benefit plansas described inBerry o.Berry, 647 S.W.2d 945
(d) Aspouse who is a participant in an employer- (Tex.1983), and Taggart o. Taggart, 552S.W.2d 422(Tex.1977).
See alsoO'Connor's Texas FamilyLawHandbook (2015), "Dividing &
provided stock option plan or an employer-provided re Confirming Qualified Private Retirement Benefits," ch. 7-E, p.836.
stricted stock plan has a separate property interest in
the options or restricted stock granted to the spouse annotations

under the plan as follows:
Generally
(1) ifthe option or stock wasgranted to the spouse
before marriage but required continued employment In re Marriage ofReinauer, 946 S.W.2d 853, 857
during marriage before the grantcould be exercised or (Tex.App—Amarillo 1997, writ denied). "[Retire
the restriction removed, the spouse's separate property
ment pay ... connotes an earned property right that ac
interest is equal to the fraction of the option or re crued by reason ofyears ofservice ordeferred compen
sation earned during each month of service. In other
stricted stock in which:
words, the payment must, atthe very least, be aform of
(A) the numerator is the sum of: compensation accruing to the individual due to his
(i) theperiod from thedate theoption orstock was years ofservice with the employer. Discretionary pay
granted until the date ofmarriage; and ments made for purposes other than as compensation
(ii) if the option or stock also required continued earned during an employee's tenure do not satisfy
employment following thedate ofdissolution ofthemar- these criteria and, thus, are not retirement payor ben-

36 O'Connor's Texas Family Code

°i» U
^^^^^^%"
Boyd v. Boyd - Westlaw 17

WestlawNext"
Boyd v. Boyd
Court ofAppealsofTexas,FortWorth. January 3, 2002 67S.W.3d396 ifipprox 23 pages) SELECTED TOPICS

> Distinguished by Milner v Milner. Tex, March 9, 2012 Divorce

Alimony, Allowances, and Disposition of
°S Original Image of67S w 3d398(PDF) Property
Military Retirement Pension Benefits of
67 S.W.3d 398 Spouse
Court of Appeals of Texas, Interpreting Broad Release Provisions of
Fort Worth. Property Settlement Agreement

Disposition of Property
Randall Cary BOYD,Appellant,
Property Division Portions of Divorce
v. Decree

Ginger BOYD,Appellee.
Secondary Sources
No. 2-00-218-CV. Jan. 3, 2002. Pension or retirement benefits as
subject to award or division by court in
Wife filed for divorce. Parties entered into a mediated settlement agreement (MSA) that wife settlement of property rights between
spouses
later rejected. The 322nd District Court, Tarrant County, Frank W Sullivan, III, J., held the
MSA was unenforceable and signed divorce decree after trial on property issues. Husband 94 A.L R.3d 176 (Originally published in
1979)
appealed. The Court of Appeals, Livingston, J., held that: (1) failure to disclose bonus in
...This annotation collects the cases
MSA rendered it unenforceable; (2) award of half of retirement benefits to wife did not addressed to the issue whether a spouse's
pension or retirement benefits are subject to
constitute division of husband's separate property; (3) husband lacked standing to complain
award or division by the court in settlement of
that decree improperly imposed duties on Internal Revenue Service and his employer; and property rights between spouse...
(4) amounts withheld from bonus payments for taxes, insurance, and interest were
§ 10.10.Apportionment of retirement
community property subject to division. benefits

38 Tex. Prac, Marital Property And
Affirmed.
Homesteads § 10.10
. .Retirement benefits are regarded as
employee compensation earned during a
West Headnotes (29)
certain employment period. As such,
retirement benefits "earned by either spouse
Change View during the marital relationship are part of th...

§ 22:38. When benefits are payable
Compromise and Settlement
3 Tex. Fam L. Serv. § 22:38
Ordinarily, settlement Compromise and Settlement
. .Early retirement is generally subsidized by
agreements arising from 89! In General the employer. A qualified domestic relations
mediation are not binding order (QDRO) provides for payment of the
89k1 Nature and Requisites actuarial amount of the early retirement
where one party withdraws benefit. It does not provide f...
89k5 Making and Form of Agreement
consent to the agreement,
89kS(1 In general See More Secondary Sources
unless the other party
successfully sues to enforce
the settlement agreement as a BRIEF OF PETITIONER ON THE
contract that complies with rule MERITS

governing enforceable 1996 WL 694154
agreements. Vernon's Boggs v. Boggs
United States Supreme Court Petitioners
Ann Texas Rules Civ.Proc . Brief.
December 03, 1996
Rule 11.
...FN* Counsel of Record The opinion of the
United Stales Court of Appeals for the Fifth
10 Cases that cite this
Circuit Is reported at 82 F.3d 90 (5th
headnote Cir.1996) and is reprinted in the Appendix to
Petition for Certiorari at Cer..

Divorce BRIEF OF THE EMPLOYERS COUNCIL
ON FLEXIBLE COMPENSATION AS
Unilateral withdrawal of 134 Divorce
AMICUS CURIAE SUPPORTING
consent does not, however, 134V Spousal Support. Allowances, and PETITIONER

negate the enforceability of a Disposition of Property 1996 WL 708046
mediated settlement Settlement Agreements and Boggs v. Boggs
134V(E)
United States Supreme Court Amicus Brief
agreement in a divorce Stipulations December 06, 1996
proceeding, and a separate Revocation, Rescission and ...The Employers Council on Flexible
suit for enforcement of a Repudiation by Acts or Agreements of Compensation ("ECFC") submits this brief
amicus curiae supporting Petitioner. The
Parties
contract is not necessary. parties have consented to the filing of this
brief Correspondence reflecting the p...
V.T.C A., Family Code § 6.602. Unilateral withdrawal

(Formerly 205k279(2)) BRIEF FOR THE UNITED STATES AS
13 Cases that cite this AMICUS CURIAE SUPPORTING
headnote PETITIONER
134

%*
1996 WL 714742
134V Boggs v. Boggs

u++-„.//„ «av+urMtlo„, ™™/r»^nm^r.t/Tn761 14np7h?1 IHQhffif) 12/17/2015
 LOCAL. RULES
TRAVIS COUNTY

3.3 Damaging or destroying the tangible property 4. PERSONAL AND BUSINESS RECORDS IN
,f one or both of the parties, including any document DIVORCE CASE. If this isa divorce case, both parties
hat represents or embodies anything of value. to the marriage are ORDERED to refrain from doing the
following acts:
3.4 Tampering with the tangible property of one or 4.1 Concealing or destroying any family records,
ooth of the parties, including any document that repre property records, financial records, business records or
sents or embodies anything of value, and causing pecu any records of income, debts, or other obligations.
niary loss totheother party.
3.5 Selling, transferring, assigning, mortgaging, 4.2 Falsifying any writing or record relating to the
property ofeitherparty.
encumbering, or in any other manner alienating any of
the property of either party, whether personal property 4.3 "Records" include e-mail or other digital or
or real estate property, and whether separate orcom electronic data, whether stored on a computer hard
munity, except as specifically authorized by this order. drive, diskette or other electronic storage device.
3.6 Incurring any indebtedness, other than legal 5. INSURANCE IN DIVORCE CASE. If this is a
expenses in connection with this suit, except as spe divorce case, both parties to the marriage are OR
DERED to refrain from doing the following acts:
cifically authorized by this order.
3.7 Making withdrawals from any checking or sav 5.1 Withdrawing or borrowing in any manner all or
ings account in any financial institution for any pur any part of the cash surrender value of life insurance
pose, except as specifically authorized by this order. policies on the life ofeither party, except as specifically
authorized bythis order.
3.8 Spending any sum of cash in either party's pos 5.2 Changing or in any manner altering the benefi
session or subject to either parry's control for any pur ciary designation on any life insurance on the life of
pose, except as specifically authorized by this order. either party or the parties' children.
3.9 Withdrawing or borrowing in any manner for 5.3 Canceling, altering, or in any manner affecting
any purpose from any retirement, profit-sharing, pen any casualty, automobile, or health insurance policies
sion, death, or other employee benefit plan or employee insuring the parties' property of persons including the
savings plan or from any individual retirement account
or Keogh account, except as specifically authorized by parties' minor children.
6. SPECIFIC AUTHORIZATIONS IN DIVORCE
this order.
CASE. If this is adivorce case, both parties to the mar
3.10 Signing or endorsing the other party's name riage are specifically authorized to do the following:
on any negotiable instrument, check, or draft, such as 6.1 To engage in acts reasonable and necessary to
tax refunds, insurance payments, and dividends, or at
tempting to negotiate any negotiable instrument pay the conduct of that party's usual business and occupa
able to the other party without the personal signature tion.
62 To make expenditures and incur indebtedness
of the other party.
3.11 Taking any action to terminate or limit credit for reasonable attorney's fees and expenses in connec
or charge cards in the name of the other party. tion with this suit.
6.3 To make expenditures and incur indebtedness
3.12 Entering, operating, or exercising control over for reasonable and necessary living expenses for food,
the motor vehicle inthe possession of the other party. clothing, shelter, transportation and medical care.
3.13 Discontinuing or reducing the withholding for 64 To make withdrawals from accounts in finan
federal income taxes on wages or salary while this suit cial institutions only for the purposes authorized by this
is pending.
3.14 Terminating or in any manner affecting the
service ofwater, electricity, gas, telephone, cable televi
0n1\ SERVICE AND APPLICATION OF THIS OR-
DER
sion, or other contractual services, such as security,
pest control, landscaping, or yard maintenance at the
7.1 The Petitioner shall attach acopy^f this order
other party's residence or in any manner attempting to
to the original petition and to.each, copy £*£*£
withdraw any deposits for service in connection with At the time the petition is filed if thFe»l °" d
failed to attach acopy of this order to the petition
such services. 1463
O'CONNORS TEXAS FA«.LY CODE
CERTIFICATE OF SERVICE

EFILED

WITH FIFTH COURT OF APPEALS

DATED J^I^OlCkpJT
SIGNED a% Qg*o
\^>U>ho lOUx
APPELLANT DIANA FAY BASS