In Re the Marriage of Morris

12 S.W.3d 877, 2000 Tex. App. LEXIS 1197, 2000 WL 202085
CourtCourt of Appeals of Texas
DecidedFebruary 23, 2000
Docket06-98-00136-CV
StatusPublished
Cited by58 cases

This text of 12 S.W.3d 877 (In Re the Marriage of Morris) 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
In Re the Marriage of Morris, 12 S.W.3d 877, 2000 Tex. App. LEXIS 1197, 2000 WL 202085 (Tex. Ct. App. 2000).

Opinion

OPINION

Opinion by

Justice ROSS.

Donald Morris and Maryhelen Morris were divorced in a trial before the court. Donald appeals from the final decree, complaining of the trial court’s division of certain real and personal property. He contends the court erred by not following the parties’ premarital agreement and contends the court abused its discretion by making a property division that was not just or right based on the evidence. Donald further complains that the trial court erred by ordering him to pay $5,000.00 to Maryhelen to satisfy a debt owed by a third party. He also claims that the court prejudiced his rights on appeal by refusing to make specific findings as to the $180,-000.00 awarded to Maryhelen as part of the division of the community estate. We affirm the judgment to the extent it grants the divorce. However, we reverse the division of property and remand that part of the case for a new division consistent with the evidence presented at trial, and in accordance with the parties’ antenuptial agreement and the opinion of this Court.

Donald and Maryhelen were married in July 1984. Before getting married, they signed an antenuptial agreement. This agreement provided that separate property owned ■ at the time of marriage would remain separate property, that any other items bought with separate property would remain separate property, that income from separate property and increases of separate property would be treated as separate property, and that in the event of divorce the parties would only seek their, separate property estate and one half of the community estate, and that any right of reimbursement to a separate estate or the community estate would be a valid claim.

Maryhelen filed for divorce in December 1996. No children were born of this marriage, and the only dispute deals with the division of various pieces of property and the cash awards made to Mary-helen. There are four main pieces of property in dispute: the Graham, Texas, property; Morris Industries; the Highway 82 East property; and the Sesame Street property. 1 The court awarded the Graham, Texas, property, Morris Industries, Inc., and the Highway 82 East property to Donald as his separate property. 2 Mary-helen was awarded the Sesame Street property, as her separate property, and a cash payment of $180,000.00.

When a court mischaracterizes separate property as community property, the error requires reversal because a spouse is divested of separate property. See Eggemeyer v. Eggemeyer, 554 S.W.2d 137, *881 140 (Tex.1977). If the mischaracterized property would have affected the trial court’s just and right division, then the mischaracterization requires the appellate court to remand the entire community estate to the trial court for a just and right division of the properly characterized community property. McElwee v. McElwee, 911 S.W.2d 182, 189 (Tex.App.-Houston [1st Dist.] 1995, writ denied).

The Sesame Street Property

The Sesame Street property was purchased in 1985, during the marriage, but was paid for entirely with Donald’s separate funds. The deed to this land was placed in both parties’ names. After this land was paid for, Donald and Maryhelen contributed to the construction of a home on it. The court found that this property was presumptively community property and that Donald had not rebutted this community property presumption. The entire property was then awarded to Mar-yhelen as her separate property. This was error that requires reversal. See Eggemeyer, 554 S.W.2d at 140.

It is true that property possessed by either spouse during or on dissolution of marriage is presumed to be community property, and that a party attempting to overcome this presumption must establish by clear and convincing evidence that the disputed property is separate. Tex. Fam. Code Ann. § 3.003 (Vernon 1998). To overcome the presumption of community property, the spouse claiming certain property as separate property must trace and clearly identify the property claimed to be separate. Cockerham v. Cockerham, 527 S.W.2d 162, 167 (Tex.1975).

Donald testified that he bought this land with his separate funds, and presented evidence which purported to trace this property and prove this fact. Maryhelen also admitted that this land was purchased solely with Donald’s separate funds. Therefore, the undisputed evidence clearly shows that Donald rebutted the community property presumption.

The trial court may not characterize separate property as community property. Eggemeyer, 554 S.W.2d at 140; see Leighton v. Leighton, 921 S.W.2d 365, 368 (Tex.App.-Houston [1st Dist.] 1996, no writ). When a court mischaracterizes separate property as community property, the error requires reversal because a spouse is divested of separate property. Eggemeyer, 554 S.W.2d at 140; Leighton, 921 S.W.2d at 368. Additionally, since separate property was mischaracterized by the court as community property, the court did not divide the property in accordance with the premarital agreement.

However, when this land was purchased, the deed was placed in the names of both Donald and Maryhelen. It is well established law that when a spouse uses separate property to acquire property during marriage and takes title to that property in the names of both spouses, a presumption arises that the purchasing spouse intended to make a gift of one half of the separate funds to the other spouse. Cockerham, 527 S.W.2d at 168; Graham v. Graham, 836 S.W.2d 308, 310 (Tex.App.-Texarkana 1992, no writ). In order to rebut this presumption, evidence of the absence of an intent to make a gift must be shown. See Cockerham, 527 S.W.2d at 168. Donald did not rebut this presumption. Therefore, one half of this land is properly characterized as Maryhelen’s separate property.

After the land was purchased and the deed was placed in the names of both Donald and Maryhelen, both parties contributed separate and community funds to build a residence on the property. “Once separate property character attaches, that character does not change because community funds are spent to improve the property.” Leighton, 921 S.W.2d at 367, citing Carter v. Carter, 736 S.W.2d 775, 780 (Tex.App.-Houston [14th Dist.] 1987, no writ). Any improvements *882 made on separate property, including a residence, are considered the separate property of the land owner. See Leighton, 921 S.W.2d at 367.

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Bluebook (online)
12 S.W.3d 877, 2000 Tex. App. LEXIS 1197, 2000 WL 202085, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-morris-texapp-2000.