Texas Judiciary Online - HTML Opinion

^{^[1]} =20 Because the issues in this case are not settled, Senior Justice = Edelman=20 opposes designation of this opinion as memorandum; but because he = has not=20 written a concurrence or dissent, the decision to designate it as=20 memorandum is determined by a majority of the panel. = See Tex.=20 R. App. P. 47.2(a), 47.4.

^{^[2]} =20 In a divorce decree, the trial court shall order a division of the = community property of the parties in a manner that the court deems = just=20 and right, having due regard for the rights of each party and any = children=20 of the marriage. Tex. Fam. Code Ann. ' 7.001 (Vernon = 2006). =20 Community property consists of the property, other than separate = property,=20 acquired by either spouse during marriage. Id. = ' 3.002 (Vernon = 2006). As=20 relevant here, separate property consists of the property owned by = a=20 spouse before marriage and that acquired by the spouse during = marriage by=20 gift, devise, or descent. Id. ' 3.001(1), = (2).

Property possessed by either spouse = during or upon=20 dissolution of marriage, is presumed to be community = property. =20 Id. ' 3.003(a). A party asserting that = property=20 is separate property must provide clear and convincing evidence to = rebut=20 the community property presumption. Id. ' 3.003(b). To make such a showing, = a spouse=20 must trace and clearly identify the property as separate = property. =20 See Estate of Hanau v. Hanau, 730 S.W.2d 663, 667 (Tex.=20 1987). Conversely, if the evidence shows that separate and = community=20 property have been commingled so as to defy segregation and=20 identification, the burden is not discharged, and the community = property=20 presumption prevails. Id.

^{^[3]} =20 Conversely, any mischaracterization of separate property as = community is=20 reversible because a divorce decree can only divide community = property,=20 and the rights of a spouse in his or her separate property are=20 constitutionally protected. See Eggemeyer v. = Eggemeyer, 554=20 S.W.2d 137, 139-140 (Tex. 1977).

^{^[4]} =20 To the extent that appeals court decisions, such as McElwee = or=20 Stavinoha, have held that a mischaracterization of more = than a=20 de minimis amount of community property as separate = property,=20 alone, is reversible error, without a showing by the appellant = that the=20 trial court=3Ds division of all of the community = property (if=20 all was properly characterized) would be manifestly unjust under = the=20 Murph factors, such holdings are incompatible with=20 Bell. See Stavinoha v. Stavinoha, 126 S.W.3d = 604, 607=20 (Tex. App.BHouston [14th Dist.] 2004, no pet.); = McElwee v.=20 McElwee, 911 S.W.2d 182, 189 (Tex. App.BHouston [1st Dist.] 1995, writ = denied). Any=20 such holdings would also suggest that a single overall property = division=20 can either be within or outside the discretion of the trial court, = depending arbitrarily on how the trial court labels the community = property=20 in the decree. Lastly, a greater-than-de minimis = standard is=20 directly at odds with the manifestly unfair = standard.

^{^[5]} =20 Neither the decree, the trial court=3Ds findings of fact, nor = Gerard=3Ds brief, reflect a total dollar value of = the=20 community estate. Instead, the decree and findings list the = various=20 items of property, mostly without dollar values, and one of the = trial=20 court=3Ds findings of fact merely states that = Athe division of property computes to 53% = of the=20 community estate to Cindy and 47% of the community estate to = Gerard . . .=20 .@ Although there are at least five = exhibits=20 in the record that contain different calculations of the property = values=20 and divisions, neither the parties=3D briefs, nor anything we can find in the = record,=20 indicate which, if any, of these exhibits the trial court adopted = in=20 making its property division.

^{^[6]} =20 The decree specifies that it considered the following factors in = making=20 the property division: (1) fault in the breakup of the marriage; = (2)=20 benefits the innocent spouse may have derived from the = continuation of the=20 marriage; (3) disparity of earning power of the spouses and their = ability=20 to support themselves; (4) education, training, and future = employability=20 of the spouses; (5) ages of the spouses; (6) earning power, = business=20 opportunities, capacities, and abilities of the spouses; (7) = custody of=20 the children and providing for the children=3Ds emotional needs; and (8) length of the = marriage. Gerard=3Ds brief addresses only the first of = these=20 factors.

^{^[7]} =20 Because we do not address the factual sufficiency challenge on the = merits,=20 we need not recite the factual sufficiency standard of=20 review.

^{^[8]} =20 In this regard, Cynthia=3Ds brother, Kevin Grace (AKevin@), the CEO of SEI, testified that he = believed=20 Cynthia=3Ds total interest in SEI was worth less = than the=20 amount of this debt.

^{^[9]} =20 See Young v. Young, 609 S.W.2d 758, 761 (Tex.=20 1980).

^{^[10]} =20 See Mohindra v. Mohindra, No. 14-06-00056-CV, 2007 WL = 3072057, at=20 *2 (Tex. App.BHouston [14th Dist.] Oct. 23, 2007, no = pet.) (mem.=20 op.); Bishop v. Bishop, No. 14-02-00132-CV, 2003 WL = 21229476, at *3=20 (Tex. App.BHouston [14th Dist.] May 29, 2003, no = pet.) (mem.=20 op.). Although Janik has also been cited in support = of this=20 proposition, Janik did not address this issue. See = Janik=20 v. Janik, 634 S.W.2d 323, 324-25 (Tex. App.BHouston [14th Dist.] 1982, no=20 writ).

^{^[11]} =20 See Phillips v. Phillips, 75 S.W.3d 564, 572-75 (Tex.=20 App.BBeaumont 2002, no = pet.).

^{^[12]} =20 See Tex. R. App. P. 38.3; Yazdchi v. Bank One, Texas, = N.A.,=20 177 S.W.3d 399, 404 (Tex. App.BHouston [1st Dist.] 2005, pet. denied), = cert=20 denied, 127 S.Ct. 206 (2006); Zamarron v. Shinko Wire = Co., 125=20 S.W.3d 132, 139 (Tex. App.BHouston [14th Dist.] 2003, pet.=20 denied).

^* =20 Senior Justice Richard H. Edelman sitting by=20 = assignment.