Opinion issued=20
February 2, 2006
In=20
The
Court of =
Appeals
For The
First District of=20
Texas
NO. =
01-04-00984-CV
ROGER RUSSELL,=20
Appellant
V.
TAMARA RUSSELL,=20
Appellee
On Appeal from the 311th District=20
Court
Harris County, =
Texas
Trial Court Cause No.=20
2003-36138
MEMORANDUM =
OPINION
<=
/SPAN>Roger Russell, appellant and defendant =
in the=20
trial court, appeals the trial court=E2=80=99s division of =
property in the final=20
divorce decree. In his first issue, appellant asserts that the =
trial court=20
erred by failing to state the value of the marital estate in its =
findings=20
of fact and conclusions of law. In his second and third issues, =
appellant=20
asserts that the trial court erred in characterizing his separate =
property=20
as community property in making its just and right division of the =
property. We affirm in part, reverse in part, and=20
remand.
BACKGROUND
<=
/SPAN>At=20
the hearing on final divorce, appellant=E2=80=99s sworn inventory =
of the marital=20
property was struck because it was not timely filed. Tamara =
Russell,=20
appellee, timely filed her sworn inventory with the trial court =
well=20
before the hearing. That inventory characterized as =
appellant=E2=80=99s separate=20
property a savings account with Central Savings Bank in Michigan=20
containing $140,000 (=E2=80=9CMichigan Bank Account=E2=80=9D), a =
1946 Ford Coupe, a Wells=20
Fargo account containing $32,000, an individual retirement account =
(IRA)=20
containing $3,789.00, and a life insurance policy valued at =
$50,000.=20
<=
/SPAN>The=20
inventory was not entered into evidence at trial, but the trial =
record=20
indicates that the parties and the court referred to matters =
contained in=20
the inventory during the trial. For instance, appellant testified =
that the=20
Michigan Bank Account and the automobile were in his =
father=E2=80=99s name,=20
although he wrote checks out of the bank account to pay bills. =
Appellee=E2=80=99s =
trial counsel=20
asked appellant about the IRA that appellee had characterized as=20
appellant=E2=80=99s separate property. Counsel also asked about =
the Ford Coupe and=20
the certificates of deposit that were characterized as =
appellant=E2=80=99s=20
separate property on appellee=E2=80=99s inventory. He also =
questioned appellee=20
about her characterizations of this property and how she felt it =
should be=20
divided.
<=
/SPAN>The=20
final divorce decree characterized the funds in the IRA held in=20
appellant=E2=80=99s name, the 1946 Ford Coupe appellant acquired =
prior to his=20
marriage to appellee, and the funds in the Michigan Bank Account =
as=20
community property. At a hearing on a motion for new trial, =
appellant=20
introduced appellee=E2=80=99s inventory into evidence. After =
hearing arguments=20
from both sides the trial court stated:
The Court finds that in the event that =
the sum of=20
the property that would, in fact, be under the law of the [sic] =
separate=20
property of Respondent was mischaracterized by the Court in the =
Court=E2=80=99s=20
rendition, that the ultimate division of the estate and =
indebtedness of=20
these parties is just and reasonable given the totality of the=20
circumstances of this case and the Motion for New Trial is=20
denied.
DISCUSSION
<=
/SPAN>The=20
Family Code provides, =E2=80=9CIn a decree of divorce or =
annulment, the court=20
shall order a division of the estate of the parties in a manner =
that the=20
court deems just and right, having due regard for the rights of =
each party=20
and any children of the marriage.=E2=80=9D Tex. Fam. Code Ann. =
=C2=A7 7.001=20
(Vernon 1998). In making a just and right division of the =
community=20
estate, broad discretion is given to the trial court and this =
division=20
will not be reversed on appeal unless the complaining party shows =
that the=20
trial court clearly abused its discretion. Murff v. Murff, =
615=20
S.W.2d 696, 698 (Tex. 1981). The test for whether the trial court =
abused=20
its discretion is whether the court acted arbitrarily or =
unreasonably.=20
Alsenz v. Alsenz, 101 S.W.3d 648, 655 (Tex. =
App.=E2=80=94Houston [1st=20
Dist.] 2003, no pet.) (citation omitted). When a court =
mischaracterizes=20
separate property as community property, the error requires =
reversal=20
because the subsequent division divests a spouse of his or her =
separate=20
property. McElwee v. McElwee, 911 S.W.2d 182, 189 (Tex.=20
App.=E2=80=94Houston [1st Dist.] 1995, writ denied). =
1. =
Failure to=20
State Value of Marital=20
Estate.
<=
/SPAN>Appellant=20
contends in his first issue that the trial court failed to assign =
values=20
to appellant=E2=80=99s separate property=E2=80=94save for the =
IRA=E2=80=94when it entered its=20
findings of fact and conclusions of law as required by section =
6.711 of=20
the Texas Family Code. Section 6.711 reads in the relevant=20
part:
(a) In a suit for dissolution of a =
marriage in=20
which the court has rendered a judgment dividing the estate of the =
parties, on request by a party, the court shall state in writing =
its=20
findings of fact and conclusions of law =
concerning:
(1) the characterization of each =
party=E2=80=99s assets,=20
liabilities, claims, and offsets on which disputed evidence has =
been=20
presented; and
(2) the value or amount of the community =
estate=E2=80=99s=20
assets, liabilities, claims, and offsets on which disputed =
evidence has=20
been presented.
Tex. Fam.=20
Code Ann. =C2=A7 6.711 (Vernon 2005).
<=
/SPAN>From=20
our review of the record, we conclude that neither the value of =
the=20
property nor its characterization was a contested issue on which =
disputed=20
evidence was presented=E2=80=94both appellee and appellant agreed =
that the correct=20
characterization of the property at issue here was the separate =
property=20
classification arrived at on the sworn inventory and testimony at =
trial.=20
Appellant did not dispute appellee=E2=80=99s valuation of the =
property. Since=20
there was no disputed evidence regarding the valuation or =
characterization=20
of the property, the trial court was not required to provide such =
in its=20
findings of fact and conclusions of law.
<=
/SPAN>We=20
overrule appellant=E2=80=99s first issue.
2.=20
Mischaracterizing Separate Property as Community=20
Property
<=
/SPAN>In=20
his second and third issues, appellant asserts that the trial =
court=20
erroneously characterized separate property as community property =
in=20
making the division of the marital property.
<=
/SPAN>The=20
party attacking the characterization of the property has the =
burden of=20
proof to show, by clear and convincing evidence, that the trial =
court=20
mischaracterized the property. Vannerson v. Vannerson, 857 =
S.W.2d=20
659, 669=E2=80=9370 (Tex. App.=E2=80=94Houston [1st Dist.] 1993, =
writ denied). A spouse=20
claiming certain property as separate rather than community =
property must=20
trace and clearly identify property claimed to be separate. =
Zagorski v.=20
Zagorski, 116 S.W.3d 309, 316 (Tex. App.=E2=80=94Houston [14th =
Dist.] 2003,=20
pet. denied).
<=
/SPAN> Property=20
possessed by either spouse on dissolution of marriage is presumed =
to be=20
community property. Tex. =
Fam. Code=20
Ann. =C2=A7 3.003 (Vernon 1998). To overcome the =
presumption, a party=20
must present clear and convincing evidence that the property is =
separate=20
property. Id. =E2=80=9CClear and convincing =
evidence=E2=80=9D means the measure or=20
degree of proof that will produce in the mind of the trier of fact =
a firm=20
belief or conviction as to the truth of the allegations sought to =
be=20
established. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).=20
<=
/SPAN>As=20
an initial matter, appellee argues that appellant cannot rely on =
her=20
inventory classifying the property at issue as separate to meet =
the clear=20
and convincing evidentiary standard. In support of this argument =
she=20
relies on a line of cases for the proposition that unless a =
party=E2=80=99s=20
inventory is admitted into evidence, it cannot be relied upon as =
evidence.=20
Barnard v. Barnard, 133 S.W.3d 782, 789 (Tex. =
App.=E2=80=94Fort Worth 2004,=20
pet. den=E2=80=99d) (=E2=80=9CWhile we agree that a trial court =
may take judicial notice=20
of the fact that a party=E2=80=99s inventory has been filed, we =
hold that unless a=20
party=E2=80=99s inventory is admitted into evidence at trial, it =
cannot be relied=20
upon as evidence.=E2=80=9D); Poulter v. Poulter, 565 S.W.2d =
107, 110=E2=80=93111=20
(Tex. Civ. App.=E2=80=94Tyler 1978, no writ) (holding that =
appellate court would=20
not consider inventory on appeal where it had not been introduced =
into=20
evidence); Bokhoven v. Bokhoven, 559 S.W.2d 142, 144 (Tex. =
Civ.=20
App.=E2=80=94Tyler 1977, no writ) (holding same as Poulter =
Court).=20
<=
/SPAN>However,=20
appellant argues that appellee judicially admitted that the =
property at=20
issue is appellant=E2=80=99s separate property. Judicial =
admissions estop the=20
party who made them from challenging their truth. Dutton v. =
Dutton,=20
18 S.W.3d 849, 853 (Tex. App.=E2=80=94Eastland 2000). Four =
conditions must occur=20
before a party=E2=80=99s admission is conclusive against her: (1) =
the declaration=20
relied upon must have been made in the course of a judicial =
proceeding;=20
(2) the declaration was contrary to an essential fact embraced in =
the=20
theory of recovery or defense asserted by the party; (3) the =
statement was=20
deliberate, clear, and unequivocal; and (4) giving conclusive =
effect to=20
the declaration would not run contrary to public policy. Mapco, =
Inc. v.=20
Carter, 817 S.W.2d 686, 687 (Tex. 1991); Griffin v. =
Superior Ins.=20
Co., 338 S.W.2d 415, 419 (Tex. 1960).
&nbs=
p;In=20
the case before us: (1) appellee clearly designated the property =
at issue=20
as appellant=E2=80=99s separate property; (2) the trial court had =
the inventory=20
before it during trial and referred to it during trial; (3) the =
inventory=20
was deliberately made, clear and unequivocal as to =
appellee=E2=80=99s=20
characacterization; (4) appellee=E2=80=99s counsel relied on the =
inventory in=20
eliciting testimony from appellant and appellee; and (5) at no =
time did=20
appellee challenge the accuracy of the inventory. Moreover, =
appellee=20
herself explicitly admitted that the Ford Coupe was =
appellant=E2=80=99s separate=20
property during her testimony and implicitly gave her agreement to =
the her=20
classification of the other property at issue as =
appellant=E2=80=99s separate=20
property when she testified as to how the trial court should make =
its just=20
and right division of the estate. See Roosevelt v.=20
Rooselvelt, 699 S.W.2d 372, 374 (Tex. App.=E2=80=94El Paso =
1985, writ=20
dism=E2=80=99d) (stating that a =E2=80=9Cjudicial admission =
establishes the issue=20
in dispute as a matter of law in behalf of the adversary of the =
one making=20
such admission=E2=80=9D). It would be =E2=80=9Cabsurd and =
manifestly unjust to allow a=20
party to recover contrary to his clear and unequivocal sworn =
assertions.=E2=80=9D=20
Id. We hold that appellee is estopped from challenging her=20
characterization of the property in question as =
appellant=E2=80=99s separate=20
property because her inventory satisfies the requirements for a =
judicial=20
admission.
<=
/SPAN>Although=20
appellant did not offer appellee=E2=80=99s inventory into evidence =
during the=20
trial, appellant did present the trial court with the inventory at =
the=20
hearing on the motion for new trial and notified the trial court =
that it=20
had mischaracterized his separate property as community property. =
Such=20
error requires reversal because the subsequent division divests a =
spouse=20
of his or her separate property. McElwee, 911 S.W.2d at =
189.=20
Accordingly, we hold that the trial court erred in denying =
appellant=E2=80=99s=20
motion for new trial and we sustain appellant=E2=80=99s second and =
third=20
issues.
&=
nbsp; &n=
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p; CONCLUSION
<=
/SPAN>We=20
reverse the judgment and remand the cause for proceedings not =
inconsistent=20
with this opinion.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Sam=20
Nuchia
Justice
Panel consists of Justices Nuchia, =
Jennings, and=20
Higley.
|