Ervin v. Ervin

624 S.W.2d 264, 1981 Tex. App. LEXIS 4115
CourtCourt of Appeals of Texas
DecidedSeptember 24, 1981
Docket5654
StatusPublished
Cited by6 cases

This text of 624 S.W.2d 264 (Ervin v. Ervin) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ervin v. Ervin, 624 S.W.2d 264, 1981 Tex. App. LEXIS 4115 (Tex. Ct. App. 1981).

Opinions

DICKENSON, Justice.

This is a divorce case in which the wife appeals the trial court’s division of property-

Patsy Ervin, petitioner, filed her petition for divorce from Gary Ervin, respondent. They were married on July 12, 1977, and they separated on May 17,1979. On July 2, 1979, the wife executed a quitclaim deed to the husband of her “right, title and interest” in a tract of land. The wife’s claim for reimbursement of that land’s “enhanced value from community funds and efforts” was denied by the trial court after a nonju-ry hearing on October 29, 1980, in which both parties testified. The wife appeals. We affirm.

The trial court made the following findings of fact in compliance with Tex.R.Civ.P. 296:

******
6. On February 9, 1979, Respondent received the real property described in the Judgment by gift from his parents.
[266]*2667. Petitioner and Respondent thereafter purchased a house and moved same onto the aforementioned real property. The cost of said house was $6,000.00.
8. After their moving said house onto the property, Petitioner and Respondent executed a mechanic’s lien note for $11,-000.00 for the cost of the house and improvements thereto.
9. After their moving said house onto the property, Petitioner and Respondent physically worked together on the improvements to said house.
10. On July 2, 1979, after Petitioner had vacated said property, Petitioner executed a “quit claim” deed to the aformen-tioned real property to Respondent. The consideration for said deed was from Respondent’s separate estate, including his sole assumption of the indebtedness against said real property.
11. The proceeds of a long-term note were utilized to liquidate the aforementioned mechanic’s lien note. The said long-term note was executed solely by Respondent with aforesaid real property being placed as security therefor. The long-term note was executed after July 2, 1979.
12. The sum of $982.44 was paid by Respondent as accrued interest due on the said mechanic’s lien note. There is no evidence concerning the source of these funds.
13. Respondent paid six payments of $132.16 each on the long-term note prior to the time of trial. There is no evidence of the source of these funds.
14. Although there is some evidence of the cost of improvements to the Respondent’s separate estate and of the current market value thereof, there is no evidence of the amount of enhancement, if any, directly attributable to community funds expended.
15. Respondent had assumed the indebtedness against the real property at the time of trial and said real property was the security therefor.
16. There was no pleading or proof of rescission, fraud, accident or mistake in connection with the “quit claim” deed executed by Petitioner to respondent.
17. Petitioner was not coerced to sign said “quit claim” deed to Respondent.
18. The following were the only items of community property:
a. table saw;
b. router;
e..357 magnum pistol;
d. Craig 8-track tape recorder;
e. washing machine;
f. savings account of $120.00;
g. checking account of $100.00;
h. 1965 Chevrolet automobile;
i. 1980 Chevrolet pickup;
j. pressure cooker;
k. gas cook stove;
l. blender; and
m. personal effects.
19. All community debts had been liquidated at the time of trial by Respondent with the exception of a debt on the 1980 Chevrolet pickup.

The trial court also made these additional findings of fact in compliance with Tex.R. Civ.P. 298:

1. The said house had a value of $24,-180.00 at the time of the hearing.
2. At the date of execution of the mechanic’s lien note, Petitioner and Respondent were married, although separated.
3. Payments made on the interim mechanic’s lien note and the long term note were made while the parties were married, although separated.
4. Household “belongings”, both separate and community, were valued at $4,500.00 to $5,500.00 at the time of trial.

The findings of fact which have not been properly challenged by points of error are conclusively established. This court is bound by those findings of fact. See, e. g., Whitten v. Alling & Cory Company, 526 S.W.2d 245, at 248 (Tex.Civ.App.—Tyler 1975, writ ref’d). We also note that omitted findings which relate to any ground of recovery or defense upon which findings were made, when supported by evidence, [267]*267must be presumed to have been found in support of the trial court’s judgment. See Tex.R.Civ.P. 299.

The wife has briefed seven points of error. Point One argues that the trial court erred “in considering the quitclaim deed and title to the land as the apparent sole issue, and that all the property must go with that title regardless of equity.” This point is overruled. The findings of fact clearly show that the trial court took other matters into consideration in exercising its discretion under Tex.Pam.Code Ann. § 3.63 (Vernon 1975) and dividing “the estate of the parties in a manner the court deems just and right.” There is no showing on this appeal that the trial court abused that discretion. See Bell v. Bell, 513 S.W.2d 20 (Tex.1974); Walker v. Walker, 608 S.W.2d 326 (Tex.Civ.App.—Eastland 1980, no writ). The Decree of Divorce shows that the wife was awarded all household furniture, furnishings, fixtures, goods, appliances and equipment in her possession or subject to her control; all clothing, jewelry and other personal effects in her possession or subject to her control; $300 in cash plus $350 in attorney fees; and a 1965 Chevrolet automobile. The record shows that the parties lived together less than two years and that most of the property was owned by the husband before the marriage or given to him during the marriage by his parents.

Point Two argues that the trial court erred “in holding, if it did so hold, that a quitclaim deed from the wife to the husband conveyed the homestead rights.” This point is overruled. There is no finding that the house which was moved upon the husband’s separate real estate was the parties’ homestead, and that fact is not conclusively established by the parties’ testimony. The record shows that the parties married on July 12, 1977, and that the land was given to the husband by his parents “as his sole and separate property” on February 9, 1979. After that date they purchased a house and moved it onto his property.

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Ervin v. Ervin
624 S.W.2d 264 (Court of Appeals of Texas, 1981)

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Bluebook (online)
624 S.W.2d 264, 1981 Tex. App. LEXIS 4115, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ervin-v-ervin-texapp-1981.