Todd v. Todd

173 S.W.3d 126, 2005 WL 1792001

• Court: Court of Appeals of Texas
• Decided: August 31, 2005
• Docket: 2-04-328-CV
• Status: Published

Opinions

OPINION

LEE ANN DAUPHINOT, Justice.

In three issues, Appellant Sammie Joe Todd appeals from a divorce and the related division of the community estate. The couple has no children. Because we hold that the trial court properly confirmed the separate property of Appellee Billie Evelyn Todd and did not abuse its discretion in dividing the community estate, we affirm the trial court’s judgment.

In his first two issues, Appellant contends that the trial court erred in confirming the “home and acreage located in Gainesville, Cooke County, Texas, together with all improvements thereon, further described as follows: 137 acres of land in Cooke County, Texas, out of the Thomas Hardeway Survey, Abstract No. 464,” (“the farm”) as Appellee’s separate property because (1) no evidence supports its characterization as separate property and (2) insufficient evidence was introduced at trial to overcome the community presumption.

“Property possessed by either spouse during or on dissolution of marriage is presumed to be community property.” ¹ This presumption can be rebutted by clear and convincing evidence.² Clear and convincing evidence is defined as that “measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.”³

Appellee testified that she lived on road 2117, 550, had a farm out there, and owned the farm before the marriage. Appellant testified that “[w]hen I came there, there was no tractor there.” He also testified,

When I went there, and here’s the witness, this lady [Appellant’s sister] knew the woman before I did, and she has been in this woman’s house before I was ever there.

When I went into her house, we walked up three concrete steps to get in the house, and just as you got in the house, there was a hall light hanging by one wire. It was floating in the ah’ there, and her whole house looked like that, that represented her whole house.

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When I went there, there was two iron gates on that ranch. Today there is seven iron gates on that ranch, [emphasis added]

Appellant also referred to the house as “her” house several times and made a point of saying, “That house had suffered a fire years ago, and in other words it needed everything you could think of, that house needed, and that woman didn’t — it needed a man with some horsepower and some money and that is what I did.... ”

Appellant appears to argue that because Appellee did not refer to the legal description of her farm or offer into evidence some document, such as a deed, showing her separate ownership of the farm, she failed to defeat the community presumption. Appellee testified that she lived on road 2117, 550 and that she had a farm out there. No evidence was admitted at trial concerning any other farm or ranch. We conclude that under these facts, Appellee sufficiently described the location of the farm to identify it.⁴ Additionally, all the evidence at trial points to the conclusion that the farm belonged to Appellee before the marriage. In fact, at trial, Appellant never claimed the farm was community property; he spoke of the farm and the house on it as “hers.” No evidence controverts this conclusion. We therefore hold that Appellee defeated the community presumption by clear and convincing evidence.⁵ Consequently, the trial court did not abuse its discretion by confirming the farm as Appellee’s separate property.⁶ We overrule Appellant’s first two issues.

In his third issue, Appellant contends that the trial court abused its discretion in disproportionately dividing the community estate in a manner that was manifestly unfair. A trial court is charged with dividing the community estate in a “just and right” manner, considering the rights of both parties.⁷ If there is any reasonable basis for doing so, we must presume that the trial court exercised its discretion properly.⁸ We will not disturb the trial court’s division unless the record demonstrates “that the division was clearly the result of an abuse of discretion.”⁹ That is, we will not reverse the ease unless the record clearly shows that the trial court was acting arbitrarily or unreasonably.¹⁰ The complaining party has the burden of proving from the record that the division was so unjust that the trial court abused its discretion.¹¹ The values of individual items “are evidentiary to the ultimate issue of whether the trial court divided the properties in a just and right manner.”¹²

The trial court awarded Appellant all property in his possession or subject to his sole control. In the affidavit attached to his motion for new trial, he states that that property

consisted of [his] clothes and a 1997 pickup truck that is worth less than-$5,000. In addition, [he] kept a 1984 Ford automobile that is worth less than $1,000, and a shotgun[,] all of which [he] owned prior to marriage. [He] also had two cases of oil, one bed spread, two pillows, one headboard, a mattress, a chain saw[,] and weedeater.

The record contains no evidence concerning the value of the community assets awarded to Appellee. Consequently, we cannot say that Appellant has met his burden of proving that the division was so unjust that the trial court abused its discretion. We overrule Appellant’s third issue.

Having overruled Appellant’s three issues, we affirm the trial court’s judgment.

LIVINGSTON, J. filed a dissenting opinion.

1 . Tex Fam.Code Ann. § 3.003(a) (Vernon 2004).

2 . Id. § 3.003(b).

3 . Id. § 101.007 (Vernon 2002); Transp. Ins. Co. v. Morid, 879 S.W.2d 10, 31 (Tex.1994).

4 . See Am. Fin. and Inv. Co. v. Herrera, 20 S.W.3d 829, 832-33 (Tex.App.-El Paso 2000, no pet.); Davis v. Davis, 647 S.W.2d 781, 784 (Tex.App.-Austin 1983, no writ) ("Had the written decree simply described the property by its street address, it would clearly have been appropriate for the trial court to subsequently amend the decree to include a metes and bounds description of the property.”); Mizell v. Mizell, 624 S.W.2d 782, 784-85 (Tex.App.-Fort Worth1981, no writ).

5 . See In re Marriage of Case, 28 S.W.3d 154, 159-60 (Tex.App.-Texarkana 2000, no pet.); see also Mackey v. Lucey Prods. Corp., 150 Tex. 188, 239 S.W.2d 607, 608 (Tex.1951) ("The law does not require the doing of a vain and useless thing, and by our opinions and judgments we will not so require.”).

6 . Appellant made no claim for economic contribution at trial. See Tex. Fam.Code Ann. § 3.403.

7 . Tex. Fam.Code Ann. § 7.001 (Vernon 1998).

8 . Fletcher v. Goetz, 9 S.W.3d 442, 446 (Tex.App.-Fort Worth 1999, pet. denied) (op. on reh'g).

9 . Id.

10 . See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986).

11 . Pletcher, 9 S.W.3d at 446.

12 . Finch v. Finch, 825 S.W.2d 218, 221 (Tex.App.-Houston [1st Dist.] 1992, no writ); see Wallace v. Wallace, 623 S.W.2d 723, 725 (Tex.Civ.App.-Houston [1st Dist.] 1981, writ dism’d).