Opinion
No. 05-07-01338-CV
Opinion Filed April 2, 2009.
Appeal from the 330th Judicial District Court Dallas County, Texas, Trial Court Cause No. 04-21372-Y.
Before Justices MOSELEY, FITZGERALD, and MAZZANT.
MEMORANDUM OPINION
This is an appeal from a divorce decree. In three points of error, appellant Lori Ann Melton Dahl argues that the trial court erred when it (1) divided the parties' property, (2) denied appellant's request to change her name back to her maiden name, and (3) denied her motion for continuance. We sustain her first two points of error, overrule her third point of error, reverse the divorce decree in part, and remand the case for further proceedings.
I. Background
The parties were married in 1998. Appellant filed for divorce in 2004, and appellee filed an answer and a counterpetition for divorce. The case was tried to the bench in March 2007. The trial judge signed the final decree of divorce a few months later, and appellant timely filed her notice of appeal.
II. Property Division
In her first point of error, appellant complains of the trial court's division of the house in which the parties lived during their marriage (the "Coleridge property"). Under the heading " Division of Marital Estate," the trial court awarded appellee 60% of the net proceeds from the sale of the Coleridge property and appellant 40% of those net proceeds. Appellant argues that the trial court erred in dividing the house as part of the marital estate because the Coleridge property was her separate property rather than community property.
A.
Applicable law
In a decree of divorce, a trial court must "order a division of the estate of the parties in a manner that the court deems just and right." Tex. Fam. Code Ann. § 7.001 (Vernon 2006). The court may divide only the parties' community property. Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex. 1985). Community property is property, other than separate property, acquired by either spouse during marriage. Tex. Fam. Code Ann. § 3.002. Property possessed by either spouse during or on dissolution of marriage is presumed to be community property rather than separate property. Id. § 3.003(a). Separate property includes, among other things, property owned or claimed by a spouse before marriage. Id. § 3.001(1). The characterization of property as community or separate is determined by the inception of title, i.e., when a party first has a right of claim to the property by virtue of which title is finally vested. Id. § 3.404(a); Chavez v. Chavez, 269 S.W.3d 763, 767 (Tex.App. 2008, no pet.). A party who claims that property is separate property must prove the necessary facts by clear and convincing evidence in order to overcome the presumption of community property. Tex. Fam. Code Ann. § 3.003(b).
We review property-characterization rulings for abuse of discretion. See Chavez, 269 S.W.3d at 766. In family law cases, the traditional sufficiency standard of review overlaps with the abuse of discretion standard, so legal and factual sufficiency are not independent grounds of error but are relevant factors in our assessment of whether the trial court abused its discretion. Id.
B.
Application of the law to the facts
Appellee was the only witness to testify at trial. He testified that he and appellant were married on September 22, 1998. He also testified that the Coleridge property was purchased in July 1997. He admitted that appellant made the entire down payment for the Coleridge property at that time by borrowing $16,000 against her 401(k). He further acknowledged that he did not "pay a dime" for the house at the time of the purchase. No title documents regarding the purchase of the Coleridge property were introduced at trial. In short, the only evidence presented at trial relevant to the inception of title was appellee's own testimony that the Coleridge property was purchased before the parties were married and that appellant supplied the down payment. This undisputed evidence established that the Coleridge property was separate property. See Chavez, 269 S.W.3d at 767.
Appellee argues that the trial court's characterization is supported by a judicial admission in appellant's petition for divorce. In her petition, appellant alleged, "Petitioner and Respondent possess and own community property which requires a division of the marital estate, including, but not limited to, their residence on Coleridge Street, vehicle(s), savings, retirement savings, and personal property." Appellee argues that this statement is a judicial admission as to the proper characterization of the Coleridge property. We have held, however, that a party waives a judicial admission by introducing evidence on the disputed issue. Dallas Transit Co. v. Young, 370 S.W.2d 6, 11 (Tex.Civ.App. 1963, writ ref'd n.r.e.); accord Indus. Disposal Supply Co. v. Perryman Bros. Trash Serv., Inc., 664 S.W.2d 756, 764 (Tex.App. 1983, writ ref'd n.r.e.); see also Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 769 (Tex. 1983) (to rely on judicial admissions, a party "must protect his record by objecting to the introduction of evidence contrary to that admission of fact and by objecting to the submission of any issue bearing on the fact admitted"). Appellee's own testimony at trial established that the Coleridge property was separate property, so he waived appellant's judicial admission, if any. We conclude that the trial court abused its discretion by characterizing the Coleridge property as community property instead of separate property.
Appellee argues in the alternative that appellant fails to demonstrate that the trial court's erroneous characterization of the Coleridge property was harmful error. But the erroneous characterization of a spouse's separate property as community property is never harmless error. See Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 140-42 (Tex. 1977) (affirming reversal of mischaracterization of separate property as community property without conducting harm analysis); In re Marriage of Case, 28 S.W.3d 154, 161 (Tex.App.-Texarkana 2000, no pet.) ("When a court mischaracterizes separate property as community property, the error requires reversal because a spouse is divested of separate property."); Hodges v. Hodges, No. 05-92-00239-CV, 1993 WL 25347, at *7 (Tex.App. Feb. 4, 1993, no writ) (not designated for publication) ("Such divestiture of title [to separate property] is beyond the discretion of the court and cannot be harmless error."); Barbara A. Kazen, Division of Property at the Time of Divorce, 49 Baylor L.Rev. 417, 429 (1997) (describing mischaracterization of separate property as community property as "an error that will result in reversal"). Moreover, the Coleridge property appears to be the most substantial asset addressed in the proceedings, and "[w]hen the court mistakenly characterizes property that constitutes the main asset of the parties, the error is of such a magnitude that it materially affects the just and right division of the community estate." Evans v. Evans, 14 S.W.3d 343, 347 (Tex.App. 2000, no pet.); see also In re Marriage of Morris, 123 S.W.3d 864, 868 (Tex.App.-Texarkana 2003, no pet.) (stating that "any mischaracterization of a major asset of the parties' estate" is reversible error).
We conclude that the trial court abused its discretion in characterizing the Coleridge property as community property and that this error constitutes reversible error. This necessitates remand for a new division of the entire community estate. Jacobs, 687 S.W.2d at 732; Bufkin v. Bufkin, 259 S.W.3d 343, 350-51 (Tex.App. 2008, pet. denied).
III. Other Issues
In her second point of error, appellant complains that the trial court erred by denying her unopposed request to change her name back to her maiden name. At trial, appellee stated that he was unopposed to appellant's regaining her prior name. The trial judge said on the record that she would restore appellant's maiden name, but the decree of divorce is silent on the subject and denies all relief not expressly granted therein. The denial of appellant's request to change her name appears to have been a clerical error. We sustain appellant's second point of error, reverse the judgment to the extent it denies appellant's request for a name change, and remand for further proceedings not inconsistent with this opinion.
In her third point of error, appellant complains that the trial court erred by denying her counsel's oral motion for continuance on the day of the trial. As a result of the denial, appellant was not present at the trial. Appellant does not demonstrate that she was prejudiced by the denial of her motion, so we overrule this point of error. See Ngo v. Ngo, 133 S.W.3d 688, 693 (Tex.App. 2003, no pet.) ("The appellant must show that the denial [of a continuance] resulted in her prejudice and that she had a reasonable excuse for her absence."); Humphrey v. Ahlschlager, 778 S.W.2d 480, 483 (Tex.App. 1989, no writ) (stating that party complaining of denial of continuance must show "the materiality of the testimony to be offered by the absent witness").
IV. Disposition
We reverse the portion of the final decree of divorce that divides the marital estate and the denial of appellant's request to change her name. We remand for a new division of the community estate and other appropriate proceedings. We affirm the final decree of divorce in all other respects.