Robert G. Fisher v. Tina Masters Fisher

• Court: Court of Appeals of Texas
• Decided: June 14, 2021
• Docket: 05-19-01422-CV
• Status: Published

Opinion

AFFIRM; Opinion Filed June 14, 2021

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01422-CV

ROBERT G. FISHER, Appellant V. TINA MASTERS FISHER, Appellee

On Appeal from the 330th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-18-14341

MEMORANDUM OPINION Before Justices Schenck, Reichek, and Carlyle Opinion by Justice Schenck Robert G. Fisher appeals the trial court’s final decree of divorce. In three

issues, he argues the trial court erred by issuing a judgment affecting real property

without joining parties with ownership interests in that property. We affirm.

Because all issues are settled in the law, we issue this memorandum opinion. TEX.

R. APP. P. 47.4.

BACKGROUND

Robert and Tina Masters Fisher were married on February 7, 2011. On July

16, 2018, Tina filed a petition for divorce. On September 23, 2019, the trial court

conducted a bench trial at which both spouses appeared pro se. At trial, both spouses testified as to the property they sought to divide, including commercial real

properties located at 7536 South Lancaster Road and 7540 South Lancaster Road

and a residential home located at 2909 North El Centro Way. Robert denied owning

2909 and instead said the property should be divided five ways among himself and

his siblings and their children. Tina testified Robert purchased the house from his

cousins after they were unable to pay the taxes on the house. That same day as the

trial, the trial court signed a final decree of divorce that, among other things,

community property between the spouses. Each spouse was awarded “50% of the

community interest in the property located at 2909 El Centro Way,” Robert was

awarded 7536 South Lancaster Road, and Tina was awarded 7540 South Lancaster

Road. The decree also notes, “the wife shall have exclusive right to live in the

property at 2909 El Centro Way until such time as the property is disposed of or the

wife dies.”

A few days after the final divorce decree was signed, Tina filed a motion to

hold Robert in contempt, alleging he had damaged 2909 El Centro Way when he

moved out, that he continued to visit the house after moving out, and that when Tina

called the police to enforce her property rights, the police did not understand the

language in the decree awarding each spouse “50% of the community interest.” On

October 22, 2019, Robert filed a motion for new trial on the ground that “non

community property was divided.” Although the docket indicates the trial court

conducted a hearing on Robert’s motion, the record contains no transcript of that

–2– hearing, and the docket does not indicate the trial court ruled on the motion. Robert

timely filed his notice of appeal.

DISCUSSION

In three issues, Robert argues the trial court erred by failing to join as parties

to this action other individuals who had ownership interests in 2909 North El Centro

Way before awarding any interest in that property to either spouse.1

We review a trial court’s rulings on issues concerning joinder of parties for an

abuse of discretion. Crawford v. XTO Energy, Inc., 509 S.W.3d 906, 910–11 (Tex.

2017). The Texas Rules of Civil Procedure require the participation of any party

that can feasibly be joined if the party “claims an interest relating to the subject of

the action and is so situated that the disposition of the action in his absence may (i)

as a practical matter impair or impede his ability to protect that interest or (ii) leave

any of the persons already parties subject to a substantial risk of incurring double,

1 Robert’s three issues asked: 1. Did the trial Court abuse its discretion by issuing a [judgment] on realty when multiple joint owners in the Property were not joined as parties to the action under Rule 39a of the Texas Rules of Civil Procedure? 2. Did the trial Court abuse its discretion by issuing a [judgment] involving realty when the heirs of deceased persons with ownership interest in the realty were not joined under 17.002 of Texas Civil Practice and Remedies Code? 3. Was the trial court’s [judgment] fundamentally erroneous? Robert’s summary of his argument makes clear his third issue is whether the judgment was fundamentally erroneous because the trial court “lacked jurisdiction to render a [judgment] in the absence of the estate and heirs of deceased third party joint owners.” Additionally, despite the fact that Robert’s motion for new trial complains about the division of “non community property,” he does not challenge the trial court’s finding that the property at 2909 North El Centro Way is community property rather than his separate property. –3– multiple, or otherwise inconsistent obligations by reason of his claimed

interest.” TEX. R. CIV. P. 39(a). Texas law thus requires the joinder of any third

party that claims ownership of an asset that one or both parties to a divorce

proceeding seek to classify as community property. See Fuentes v. Zaragoza, 555

S.W.3d 141, 167 (Tex. App.—Houston [1st Dist.] 2018, no pet.).

Here, Robert argues the evidence in the record establishes there were third

parties that claimed ownership interest in 2909 North El Centro Way, such that it

was error for the court to award the property without first joining those other third

parties. Robert relies on Tina’s testimony that several of Robert’s family members

were listed as owners on the deed to the property and Robert’s testimony that the

community only owned a partial ownership interest in the house and that the

remaining ownership interest was divided among several of his family members and

their children. Robert also relies on exhibits admitted by the court, including (1) a

tax lien judgment dated March 26, 2014, and naming himself and several others as

defendants in an action seeking recovery of delinquent property taxes related to 2909

North El Centro Way, (2) a 2019 appraisal notice identifying “Estate of Myrtle

Johnson” as owning 100% of the interest in the property, and (3) a 1967 deed record

conveying the property to Edd Johnson and wife, Myrtle Johnson. However, the

record also contains a 2013 warranty deed conveying 2909 El Centro Way to Robert.

In light of the entire record, including the warranty deed conveying 2909 El

Centro Way to Robert, we conclude the trial court could have found Robert’s and

–4– Tina’s testimony not credible and instead found no third parties actually claimed an

interest in 2909 North El Centro Way such the trial court did not abuse its discretion

in not joining any third parties to this action. See Crawford, 509 S.W.3d at 913

(declining to interpret Rule 39 to require joinder of persons who potentially could

claim interest in subject of action and instead interpreting Rule 39 to require joinder

of persons who actually claim such interest); Weisfield v. Tex. Land Fin. Co., 162

S.W.3d 379, 380 (Tex. App.—Dallas 2005, no pet.) (holding trial judge as fact finder

is sole judge of credibility of witnesses and we may uphold judgment on any legal

theory supported by pleadings and evidence). We overrule Robert’s three issues.

CONCLUSION

We affirm the trial court’s judgment.

/David J. Schenck/ DAVID J. SCHENCK JUSTICE 191422F.P05

–5– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

ROBERT G. FISHER, Appellant On Appeal from the 330th Judicial District Court, Dallas County, Texas No. 05-19-01422-CV V. Trial Court Cause No. DF-18-14341. Opinion delivered by Justice TINA MASTERS FISHER, Appellee Schenck. Justices Reichek and Carlyle participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellee TINA MASTERS FISHER recover her costs of this appeal from appellant ROBERT G. FISHER.

Judgment entered this 14th day of June 2021.

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