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concluding that a "Gift Deed," in consideration of "Love of, and affection for, Grantee," was unambiguous and barred consideration of parole evidence that the property conveyed by the deed was purchased
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No. 04-17-00155-CV
06-06-2018
James Douglas SCOTT, Jr., Appellant v. Chriselda Sue Colvin SCOTT, Appellee
MEMORANDUM OPINION
From the 38th Judicial District Court, Uvalde County, Texas
Trial Court No. 13-11-29640-CV
The Honorable Camile G. Dubose, Judge Presiding Opinion by: Rebeca C. Martinez, Justice Sitting: Karen Angelini, Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice AFFIRMED IN PART; REVERSED AND REMANDED IN PART
In this divorce proceeding, appellant James Douglas Scott, Jr. challenges the trial court's division of the marital estate and complains of the award of spousal maintenance to appellee Chriselda Sue Colvin Scott. We affirm the award of spousal maintenance, but because the trial court's mischaracterization of separate property as community property constitutes reversible error, we reverse the property division and remand the cause to the trial court for a new division of the community estate.
BACKGROUND
James and Chriselda were married in 1992. No children were born or adopted during the marriage. In November 2013, Chriselda filed for divorce and James was ordered to pay her $6,000 per month in spousal maintenance pursuant to temporary orders. Before trial, Chriselda moved for partial summary judgment on the characterization of two tracts of land acquired during the marriage. She claimed that (1) an 8.64-acre tract of land was community property despite the fact that the land was conveyed by gift deed to both her and James and that (2) a 16.80-acre tract of land was her separate property despite conveyance by way of a general warranty deed reflecting that consideration was paid for the land. The trial court granted Chriselda's motion as to the 16.80 acres. The trial court denied the motion as to the 8.64 acres, but subsequently awarded the 8.64 acres to Chriselda in dividing the community estate at the conclusion of the bench trial. In the final decree of divorce, the trial court also ordered James to pay Chriselda spousal maintenance in the amount of $3,000 per month for a period of three years.
On appeal, James argues the trial court erred in: granting Chriselda's no-evidence motion for partial summary judgment; dividing the community estate; and awarding spousal maintenance.
CHARACTERIZATION OF PROPERTY AND DIVISION OF THE COMMUNITY ESTATE
In his first and second issues, James contends the trial court erred in characterizing the 16.80 and 8.64-acre tracts of land. James first contends the trial court erred in granting the no-evidence motion for partial summary judgment and "converting a cash warranty deed acquired during the marriage into a gift deed and making the 16.80 acres conveyed therein into the separate property of" Chriselda.
We review a trial court's granting of a summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). "A no-evidence motion for summary judgment must be granted if, after an adequate time for discovery, the moving party asserts there is no evidence of one or more essential elements of a claim or defense on which an adverse party has the burden of proof at trial and the non-movant fails to produce more than a scintilla of summary judgment evidence raising a genuine issue of material fact on those elements." Medistar Corp. v. Schmidt, 267 S.W.3d 150, 157 (Tex. App.—San Antonio 2008, pet. denied); see also TEX. R. CIV. P. 166a(i). We examine the entire record in the light most favorable to the non-movant, indulging every reasonable inference and resolving any doubts against the movant. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006).
Property possessed by either spouse during or on dissolution of the marriage is presumed to be community property unless it is shown to be separate property by clear and convincing evidence. TEX. FAM. CODE ANN. § 3.003 (West 2006). Separate property includes "property owned or claimed by the spouse before marriage" and "property acquired by the spouse during marriage by gift, devise, or descent." Id. at § 3.001(1), (2) (West 2006).
James argues Chriselda "made no effort to rebut the presumption that the [16.80-acre tract] was community property." In an attempt to meet her burden and overcome the community presumption, Chriselda attached to her motion for partial summary judgment a general warranty deed for the 16.80 acres. The deed lists the grantor as Fay Colvin, Chriselda's mother. The grantee is Chriselda. The deed recites that $10 was paid in consideration. Chriselda also attached to the motion her own affidavit in which she avers she never paid any money or consideration to her mother for the 16.80 acres and that the conveyance was intended to be a gift from her mother. She also attached an affidavit from attorney Stephen M. Gerdes, II, who advised Ms. Colvin with respect to her estate planning and prepared the deed in question. Gerdes stated he understood the conveyance to be a gift to Chriselda, subject to Ms. Colvin's reservation of an Enhanced Life Estate interest in the 16.80 acres. He further stated that to his knowledge, no money was paid to purchase the property from Ms. Colvin.
A court's primary goal when construing a deed is to determine the intent of the parties, as expressed in the document. Lane Bank Equip. Co. v. Smith S. Equip. Inc., 10 S.W.3d 308, 321 (Tex. 2000). We determine the parties' intent from the language of the instrument. See Luckel v. White, 819 S.W.2d 459, 461-62 (Tex. 1991) (the "four corners" rule requires a court to determine the parties' intent from the language of the deed); see also CenterPoint Energy Houston Elec., L.L.P. v. Old TJC Co., 177 S.W.3d 425, 430 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (extrinsic evidence of the parties' intent is admissible only when an ambiguity is apparent on the face of the deed, in a suit for reformation, or when a party alleges fraud, accident, or mistake). The construction of an unambiguous deed is a question of law for the court which we review de novo. Wenske v. Ealy, 521 S.W.3d 791, 794 (Tex. 2017); Kardell v. Acker, 492 S.W.3d 837, 842 (Tex. App.—San Antonio 2016, no pet.). In this case, neither party contends the deed is ambiguous, and we agree it is unambiguous. "When construing an unambiguous deed, our primary duty is to ascertain the intent of the parties from all of the language within the four corners of the deed." Wenske, 521 S.W.3d at 794. The Texas Supreme Court has recently instructed that if a court can ascertain the parties' intent from the language of the deed, "that should [generally] be the end of our analysis." Id.
This court recently held that parol evidence is not admissible to contradict the recital of consideration in a deed when a party is seeking to establish a deed reciting consideration is a gift deed. See Jenschke v. Claussen, No. 04-17-00132-CV, 2018 WL 733807, at *3 (Tex. App.—San Antonio Feb. 7, 2018, no pet. h.) (mem. op.); see also Johnson v. Driver, 198 S.W.3d 359, 363-64 (Tex. App.—Tyler 2006, no pet.). Based on that prohibition, we conclude the trial court erred in considering the parol evidence offered by Chriselda and in granting her motion for partial summary judgment as to the 16.80 acres.
We likewise conclude the trial court erred in considering parol evidence regarding the 8.64-acre tract. Although the trial court denied Chriselda's motion for partial summary judgment as to the 8.64 acres, the trial court awarded the 8.64 acres to Chriselda in dividing the community estate, thereby determining the property was jointly owned separate property. In his second issue, James contends the trial court erred in awarding the property to Chriselda, thereby depriving James his one-half interest in the separate property. See Roberts v. Roberts, 999 S.W.2d 424, 431 (Tex. App.—El Paso 1999, no pet.) ("Where a gift is made to the spouses jointly, each spouse retains an undivided one-half interest owned as his or her separate estate."). At the bench trial, the deed for the 8.64 acres was admitted into evidence. The deed reflects that on August 15, 2006, Fay Colvin deeded 8.64 acres of land by way of a "Gift Deed" to James and Chriselda in consideration of "Love of, and affection for, Grantee." Chriselda testified that, contrary to the express gift recital, she and James purchased the land from her mother. She testified that her mother told her, "I'm going to sell [the property] to you for $1,500 an acre but I'm going to put it in a gift deed to you so you don't have to pay closing costs but you're still going to pay me for them." Bank records were admitted into evidence showing Chriselda and James paid Ms. Colvin $1,500 per acre for the land.
James argues the trial court erred in allowing parol evidence to contradict the unambiguous gift recital in the deed. We agree. Without parol evidence to show the grantor's intent, we are left to examine the gift deed itself, in which Ms. Colvin expressly conveyed the property at issue to both James and his wife Chriselda in consideration of love and affection. Accordingly, we hold the trial court erred in awarding the property to Chriselda. See Jenschke, 2018 WL 733807 at *3; Roberts, 999 S.W.2d at 431; see also Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 140 (Tex. 1977) (a court has no authority to award the separate personal property of one spouse to the other, and it is reversible error to do so because it unconstitutionally divests a party of separate property).
The mischaracterization of community property as separate property is not reversible unless the mischaracterization had more than a de minimus effect on the just and right division. Viera v. Viera, 331 S.W.3d 195 (Tex. App.—El Paso 2011, no pet.); McElwee v. McElwee, 911 S.W.2d 182, 189 (Tex. App.—Houston [1st Dist.] 1995, writ denied). However, the mischaracterization of separate property as community property is not subject to a harm analysis because divestiture of separate property constitutes reversible error. McElwee, 911 S.W.2d at 189 (citing Eggemeyer, 554 S.W.2d at 140); see also Rivas v. Rivas, 452 S.W.3d 49, 55 (Tex. App.—El Paso 2014, no pet). If reversible error affecting the "just and right" division of the community estate is found, an appellate court must remand the entire community estate for a new division. Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex. 1985); McElwee, 911 S.W.2d at 189. In this singular instance, there is no need to demonstrate that the overall property division constitutes an abuse of discretion. Rivas, 452 S.W.3d at 55. Because the 8.64-acre tract was a gift to both James and Chriselda, half of the property belongs to James's separate estate as a matter of law. Because he has been fully divested of his interest therein, reversible error has been demonstrated. Accordingly, James's first, second, and sixth issues are sustained.
In his sixth issue, James argues the trial court erred in dividing the community property of the parties in a manner that is so disproportionate as to be inequitable.
SPOUSAL SUPPORT
In his third issue, James challenges the trial court's award of spousal maintenance. Specifically, he argues the trial court erred in awarding Chriselda spousal maintenance because (1) she did not rebut the presumption of section 8.053 of the Family Code; (2) she had sufficient property to provide for her minimum reasonable needs; and (3) he lacked income from which spousal maintenance could be paid.
We review the trial court's decision to award spousal maintenance for an abuse of discretion. Roberts v. Roberts, 531 S.W.3d 224, 227 (Tex. App.—San Antonio 2017, pet. denied); Diaz v. Diaz, 350 S.W.3d 251, 254 (Tex. App.—San Antonio 2011, pet. denied). We will not disturb the trial court's decision to award spousal maintenance unless the assessment of maintenance was arbitrary or unreasonable. Roberts, 531 S.W.3d at 227. Under the abuse of discretion standard, legal and factual sufficiency of the evidence are not independent grounds for asserting error, but they are relevant factors in assessing whether the trial court abused its discretion. Wiedenfeld v. Markgraf, 534 S.W.3d 14, 18 (Tex. App.—San Antonio 2017, no pet.). A trial court does not abuse its discretion if there is some evidence of a substantive and probative character to support the decision. Tellez v. Tellez, 345 S.W.3d 689, 691 (Tex. App.—Dallas 2011, no pet.).
A court may order spousal maintenance for a spouse only if the spouse seeking maintenance will lack sufficient property, including separate property, on dissolution of the marriage to provide for the spouse's minimum reasonable needs and the spouse has been married to the other spouse for ten or more years and lacks the ability to earn sufficient income to provide for minimum reasonable needs. TEX. FAM. CODE ANN. § 8.051(2)(B) (West Supp. 2017). Section 8.052 lists the factors the trial court may consider in determining whether a spouse is eligible to receive maintenance, including: (1) each spouse's ability to provide for that spouse's minimum reasonable needs independently, considering that spouse's financial resources on dissolution of the marriage; (2) the education and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to earn sufficient income, and the availability and feasibility of that education or training; (3) the duration of the marriage; (4) the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance; (5) the effect on each spouse's ability to provide for that spouse's minimum reasonable needs while providing periodic child support payments or maintenance; (6) acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property; (7) the contribution by one spouse to the education, training, or increased earning power of the other spouse; (8) the property brought to the marriage by either spouse; (9) the contribution of a spouse as homemaker; (10) marital misconduct, including adultery and cruel treatment by either spouse during the marriage; and (11) any history or pattern of family violence. TEX. FAM. CODE ANN. § 8.052 (West Supp. 2017).
There is a rebuttable presumption that spousal maintenance under section 8.051(2)(B) is not warranted unless the spouse seeking maintenance has exercised diligence in: (1) earning sufficient income to provide for the spouse's minimum reasonable needs; or (2) developing the necessary skills to provide for the spouse's minimum reasonable needs during a period of separation and during the time the suit for dissolution of the marriage is pending. Id. at § 8.053 (West Supp. 2017).
At trial, Chriselda testified that she is 67 years old and James is 55 years old. She has a high school diploma and attended, but did not complete, junior college. Her monthly bills total $5,976.95. She now works full time in an antiques consignment shop and her income for the past year was $7,001; she testified she receives three-fourths of the commissions of the business. She also receives $652 per month from Social Security, for a total of $7,824 per year; however, she also introduced evidence that her benefit was being reduced to $491 per month after deductions. During the marriage, she occasionally worked part-time earning minimum wage; she worked part-time because James wanted her free to travel with him when he was off work. Chriselda testified that James earns $17,000 per month. James introduced evidence showing his gross annual income was over $150,000.
James argues Chriselda has sufficient property after the dissolution of the marriage to provide for her minimum reasonable needs. Although Chriselda was awarded half of James's retirement benefits and a new home, she was also named the party responsible for paying the remainder of the home loan balance, which was approximately $200,881. Chriselda's equity in the home was minimal, and, in any event, she was not required to liquidate it to gain income. "[C]ourts, in considering if a spouse is eligible for spousal maintenance, have upheld the award in situations where the spouse receiving the maintenance obtained substantial property in the divorce proceeding when those capital assets provided insufficient support." In re Marriage of McFarland, 176 S.W.3d 650, 658 (Tex. App.—Texarkana 2005, no pet.). "When considering whether the spouse seeking spousal maintenance will have sufficient property after the divorce to provide for her minimum reasonable needs, the trial court may consider the liquidity of the assets awarded to her and their ability to produce income." Everitt v. Everitt, No. 01-11-00031-CV, 2012 WL 3776343, at *8 (Tex. App.—Houston [1st Dist.] Aug. 31, 2012, no pet.) (mem. op.); Dunaway v. Dunaway, No. 14-06-01042-CV, 2007 WL 3342020, at *3 (Tex. App.—Houston [14th Dist.] Nov. 13, 2007, no pet.) (mem. op.) ("In considering assets awarded in the divorce, the law does not require a spouse to spend down long-term assets, liquidate all available assets, or incur new debt simply to obtain job skills and meet needs in the short term."). Given the minimal equity in the home, we are unpersuaded that Chriselda had sufficient property with which to meet her minimum reasonable needs.
James also argues he did not have income at the time of the divorce from which maintenance could be paid because he had undergone knee replacement surgery in February 2016 and, as of the December 2016 trial, had not yet been cleared to return to work. The evidence at trial did not conclusively show, however, that James would be unable to return to work. Further, the evidence showed that James was able to make additional voluntary contributions to his 401(k) account after the surgery. On March 31, 2016, his 401(k) account balance was $480,007.01, and on December 9, 2016, it was $513,907.66. We are thus unpersuaded that he lacked income with which to pay spousal maintenance.
Our review of the record leads us to conclude that evidence of a substantive and probative character supports the trial court's findings that Chriselda lacked sufficient property, including the awarded separate property, on dissolution of the marriage to provide for her minimum reasonable needs, and that she exercised diligence in earning sufficient income and developing the necessary skills to provide for her minimum reasonable needs during the separation and suit. See Tellez, 345 S.W.3d at 691. Thus, the section 8.053 presumption was rebutted by Chriselda, and we cannot conclude the trial court abused its discretion in ordering James to pay spousal maintenance. We thus overrule James's third issue.
In his fourth issue, James argues the trial court erred in ordering spousal support in the amount of $3,000.00 per month for a period of three years, in contravention of "the Family Code requirement that the duration of maintenance shall be the shortest reasonable time that allows the spouse to earn sufficient income to provide for her minimum reasonable needs." James provides no citations in support of his argument, thus waiving his complaint on appeal. See TEX. R. APP. P. 38.1(i). Even if his issue had been preserved, we nonetheless conclude the trial court did not abuse its discretion in ordering maintenance for a three-year period. Because the parties were married for at least twenty years but not more than thirty years, the maintenance order may not remain in effect for more than seven years after the date of the order, and the duration of the maintenance order shall be limited to the shortest reasonable period that allows the spouse seeking maintenance to earn sufficient income to provide for the spouse's minimum reasonable needs. TEX. FAM. CODE ANN. § 8.054(a)(1)(B), (2) (West Supp. 2017). As discussed above, the trial court considered Chriselda's age, education and employment skills, duration of the marriage, as well as James's financial resources in determining that Chriselda was eligible for spousal maintenance. Chriselda asked the trial court to award her maintenance for three or four years and stated she hoped to be able to support herself by the end of that time. We cannot conclude the trial court abused its discretion in making an award of spousal maintenance that was within the guidelines of section 8.054. We thus overrule James's fourth issue.
In his fifth issue, James contends the trial court erred in ordering him responsible for the entire amount of spousal support ordered regardless of his ability to pay. Section 8.055 provides that a court may not order maintenance that requires an obligor to pay monthly more than the lesser of $5,000 or 20 percent of the spouse's average monthly gross income. TEX. FAM. CODE ANN. § 8.055(a) (West Supp. 2017). The trial court found James's gross resources were $15,000 per month. Twenty percent of $15,000 is $3,000. Again, James provides no support for his contention that the trial court erred in ordering him to pay spousal maintenance. We conclude the amount of spousal maintenance awarded was within the guidelines of section 8.055, and there was no evidence that James does not have income from which the maintenance can be paid. Accordingly, we overrule James's fifth issue.
CONCLUSION
We reverse the portion of the trial court's judgment pertaining to the property division and remand the cause to the trial court with instructions that the trial court make a just and right division consistent with this opinion. On remand, the holdings of this court in this opinion with regard to the characterization of property and the trial court's ability to consider certain facts in making a just and right division will be considered law of the case. See Loram Maintenance of Way, Inc. v. Ianni, 210 S.W.3d 593, 596 (Tex. 2006) ("The 'law of the case' doctrine is defined as that principle under which questions of law decided on appeal to a court of last resort will govern the case throughout its subsequent stages."). In all other respects, the judgment of the trial court is affirmed.
Rebeca C. Martinez, Justice