Opinion
A-98-CA-798 AWA.
April 4, 2001.
MEMORANDUM OPINION AND ORDER
Before the Court is the above-referenced case, which was tried to the Court on January 14-15, 2000. The parties previously consented to the jurisdiction of the Magistrate Court pursuant to 28 U.S.C. § 636(c). After hearing the evidence at trial and considering the relevant case law as well as the entire record, the Court enters the following findings of fact and conclusions of law.
I. INTRODUCTION
This matter is before the Court pursuant to 28 U.S.C. § 1332, based on the diversity of the parties' citizenship and the fact that the amount in controversy exceeds $75,000. Plaintiff and Defendant Pierce were married from 1967 to 1983, and together they have two children. Their divorce decree required the Plaintiff to pay child support to Defendant Pierce, which, despite what appears to have been steady income, the Huggins failed in significant part to pay. As a result, numerous judgments were obtained against Plaintiff in both Colorado (the state of the marriage, and of the Defendants' residence) and Texas (the state in which the Plaintiff sometimes resided). In 1994, Plaintiff acquired a parcel of real property in Bastrop County, Texas, which he claims to be his homestead. Sometime after 1997, Plaintiff entered into a contract to sell the property to a third party, but that sale never closed due to judgment liens against the property which arise out of the numerous judgments against Plaintiff for unpaid child support. Plaintiff therefore filed this suit requesting that the Court enter a judgment declaring: (1) that the judgment liens placed upon his property are invalid because the property is his homestead; (2) that the judgments based upon past due child support are not enforceable because they are dormant; and (3) the net amount, if any, due and owing by the Plaintiff on the judgments. In response, the Defendants contend: (1) that the property is not the Plaintiff's homestead; (2) that the judgments are not dormant, and (3) that the Court lacks the jurisdiction to determine the amount due under the Texas and Colorado judgments.
The judgments are in favor of both Defendant Pierce and Defendant Delta County Department of Social Services. DCDSS became an assignee of the child support payments because it provided Pierce with welfare payments when Pierce went on welfare due to her failure to receive child support from the Plaintiff.
II. FINDINGS OF FACT
Charles and Lynette Huggins were divorced in 1983 in the State of Colorado. Tr. 18; 64. As part of their divorce decree, Charles Huggins was ordered to pay a total of $450 for each of his two children per month in child support and $500 per month in spousal support. Tr. 21. Mr. Huggins' parents built a home in 1985 on Rt. 4 Box 334, Elgin, Texas where they lived until their deaths. Tr. 18. Mr. Huggins lived there with his parents until approximately 1987, when he began his first of many jobs outside the continental United States and overseas. Tr. 18. From approximately 1985 through 1987, his daughter came to live with him, and attended boarding school in San Marcos, Texas. For this period, during vacations from the boarding school, she lived in the Plaintiff's parents' home. Tr. 18-19. For some of this time, Mr. Huggins also resided in the Elgin house, and was self-employed with a small excavation company. Tr. 20. Beginning in 1987, Huggins took employment in Prudhoe Bay, Alaska, where he worked until 1990. Tr. 21. During this time, he would return to his parents' home every six weeks for two weeks at a time. Tr. 21-24. While his parents were alive, he used their address as his mailing address and his parents would forward mail that required his attention to Alaska. Huggins completed his work in Alaska in 1990 and he moved to Southern California for a construction project which lasted approximately one year. Tr. 26-27. His project in California ended in 1991 and he returned to his parents' home in Elgin for about two months. Tr. 27-28. He then began a job in Saudi Arabia which lasted three years. He lived in corporate housing and returned to his parents' home every four months for two weeks at a time. Tr. 27-28. When this job was completed he returned to his parents' home for several months until, in 1994, he began a project in Baton Rouge. Tr. 31. When this was completed, he again stayed at his parents' home for approximately two months, and then moved to Saudi Arabia for one year. Tr. 33-34. During this time he returned to the Elgin house every four months for two weeks at a time. Tr. 33. This Saudi Arabian project ended in 1995. Huggins returned to his parents' home for about two months and then returned to Alaska for another project which lasted one year. Tr. 34. Upon completing the work in Alaska, Huggins lived and worked in Thailand until 1998, Tr. 71, and now lives and works in Saudi Arabia, Tr. 72. He has no plans to return to the United States. Tr. 75-76; 279-302.
"Tr." refers to the transcript of the trial before the Court, followed by the page number.
The Court notes the only relevant period for determining the homestead issue is from 1994 (the date he became the owner) to the present. However, this information is probative to the Defendant's intentions regarding his home, and the Court recites and relies on it for that purpose.
In 1994, Huggins purchased the Elgin house from his parents for $10. Tr. 35-37. The deed was executed on May 26, 1994. Tr. 318; Ex. P-36. A correction deed was executed on April 5, 1995. Tr. 318; Ex. P-4. The only significant differences between the original deed and the correction deed are the reservation of a life estate in the property for the Plaintiff's parents, and the addition of Plaintiff's signature to the correction deed. Tr. 320; Ex. P-4. Prior to the actual transfer of title to the property in 1994, on November 10, 1993, Plaintiff executed a "Memorandum" to Sharon Nors, Glenda Samuelson and Ronald Huggins (Plaintiff's siblings), stating that on that day he had purchased the Elgin property from his parents, that they could reside on that property until their death, and that in the event the Plaintiff were to sell the property, he would divide the net proceeds of the sale with his siblings in equal amounts. Tr. 38-39; Ex. P-6; Ex. P-7.
It is interesting to note what purports to be the Plaintiff's signature on the correction deed (Ex. P-4) does not appear to be his actual signature. Compare Ex. P-4 with Exs. P-3 and P-11; see also, Tr. 273-74.
In March of 1996, Huggins' father died, Tr. 35, and in November 1997, his mother passed away. Tr. 41. Immediately after his mother's death, Huggins put the Elgin house on the market. Tr. 43-44; 54; Ex. P-5. He granted his brother power of attorney to facilitate the sale of the house and also immediately changed his mailing address to his brother's house. Tr. 45; Ex. P-3. Plaintiff testified that the four bedroom house was too big for him, the real estate market had risen, and the memories of his parents made it too difficult for him to keep the house. Tr. 44. A third party entered into a contract for the sale of the house, but the sale was not completed because, in the interim, judgment liens had been placed on the property for past due child support. Tr. 46-47.
In 1992, Defendant Pierce filed suit against Huggins in Bastrop County, Texas to enforce the Colorado judgments. In the testimony of that case, his attorney, who in essence testified in place of Plaintiff at the hearing, specifically disavowed Huggins' Texas citizenship in an attempt to challenge the Texas court's jurisdiction over him. Tr. 302. In his brief, Mr. Huggins correctly points out that this was prior to his purchasing his parents' home. While the testimony of his legal representative disavowing Texas citizenship is not dispositive of this issue for precisely that reason, this statement, coupled with Huggins' testimony at the trial of this cause of action that he has no current plans to return to the United States is evidence which the Court may consider in determining his intentions regarding the Elgin house.
Plaintiff's attorney's testified at this November 17, 1992 hearing that: "And last week, I think it was Thursday night, it could have been Friday, I saw [Plaintiff] in Elgin, Texas, and he stated to me that he was there for purposes of seeing his mother, who was in the hospital. That he was leaving that Saturday to go back to Saudi Arabia. That he did not consider himself to be a resident of the State of Texas. That his residence was Saudi Arabia, and was employed by a company from — that did not have offices even in the State of Texas." Ex. D-16 at pp. 14-15.
Mr. Huggins testified that he specifically structures his visits to Texas in order to qualify for a $75,000 exemption in federal income tax. In order to qualify for this exemption, Huggins cannot be in the United States for more than thirty-five days out of the year. Tr. 71-72. Huggins chose to receive all of his income in cash. Tr. 66. He does not have a Texas driver's license but does have one from Saudi Arabia. Tr. 66. He testified that he is currently working in Saudi Arabia and has no plans to return to the United States. Tr. 75-76; 297-302. Huggins stated he understands the word "reside" to mean the "place where a person stays" and admitted that he now "resides" in Saudi Arabia. Tr. 89-91. He testified that the Elgin house is his permanent address, but uses his brother's home address as his mailing address. Tr. 86. He did not file an affidavit of homestead until September 2, 1999, four years after he bought the property, after this suit was filed, and after the child support liens were filed. Tr. 53-54; 89-91. The sole furnishings in the house have been minimal since Plaintiff's mother passed away. There is a bed and a dresser in one of the rooms which he agrees is similar to "what you would find in a hotel room." Tr. 100. While the electricity is turned on, the phone is disconnected, and the refrigerator is on only during the brief periods that the Plaintiff is there. Tr. 48-50.
There are several judgments from Colorado state courts for past due child support against Mr. Huggins: (1) April 22, 1985 for $3,525.00 which was filed in Texas on January 8, 1998; (2) November 9, 1987 for $38,050.00 filed in Texas on January 8, 1998; (3) December 19, 1994 for $16, 342.01 filed in Texas on December 15, 1997; and (4) December 19, 1994 for $2,199.54 filed in Texas on December 15, 1997. Tr. 78-81; Exs. 16; 18; 20; 21. Finally, his ex-wife sued Mr. Huggins in state court in Bastrop County for failure to pay child support resulting in a judgment dated September 13, 1994 for $20,044.39. Tr. 55-56; Ex. P-28.
III. CONCLUSIONS OF LAW
Because this case was tried before the Court, the Court determines the witnesses' credibility, the weight their testimony should be given, and is permitted to draw all reasonable inferences from established facts. FED. R. CIV. P. 52. The Court's determinations are reviewed on appeal under the clearly erroneous standard which gives deference to the trial court's observations of the witnesses' demeanor, tone of voice, and sincerity. Anderson v. Bessemer City, 470 U.S. 564, 575 (1985).
A. Homestead issues.
The Texas Constitution protects a person's homestead from creditors and foreclosure except in limited circumstances. TEX. CONST. ART. XVI § 50. A homestead is the dwelling house constituting the family residence, together with the land on which it is situated and the appurtenances connected therewith. See generally, Lifemark Corp. v. Merritt, 655 S.W.2d 310 (Tex.App.-Houston [14th Dist.] 1983, no writ). For property to properly be considered a homestead, the owner must intend to use the property as such. Id. The actual use of the property provides the best evidence of the owner's intent. Id. The actual use required includes possessing the property and residing on it. Id. Courts have generally given a liberal construction to the Constitution and statues to protect homestead rights. Id.
The initial burden of establishing that a piece of property is a homestead is on the person claiming the protection. Id. Once the claimant has established his homestead, the burden shifts to the creditor to disprove its continued existence. Id. The burden amounts to a presumption that the homestead continues to exist until its termination is proven. Id. It is well settled that in order to establish homestead rights, the proof must show a combination of both overt acts of homestead usage and the intention on the part of the owner to claim the land as a homestead. Id.
Applying the law to the above facts, the Court holds Huggins has not proven he intended to make the Elgin house his homestead. Even before the Plaintiff obtained title to the Elgin house, he had moved overseas, and had even used that fact in an attempt to avoid the jurisdiction of the Texas courts when the Defendants' attempted to collect past-due child support payments. None of his actions after title was transferred in 1994 reflect a change in his intentions. Indeed, if anything, the Plaintiff's actions after 1994 evidence a clear intent not to make the Elgin house his homestead. After his mother's death Huggins immediately placed the house up for sale, he stays at the house only on his infrequent visits to Texas, and has consciously regarded Texas not to be his home. Although Huggins did file an affidavit of homestead, he did not do so until after he filed this lawsuit and after he was aware of the child support judgment liens filed against the property. Furthermore, since 1997, Huggins has specifically structured his affairs to be outside of the United States for at least 330 days of each year, so that he can enjoy $75,000 of annual income exempt from federal income taxes. Huggins' transient lifestyle does not display "overt acts of homestead usage."
Moreover, the structure of the transfer of the property from Plaintiff's parents to Plaintiff, and the handling of the property after his parents' deaths, belies the claim that Plaintiff intended the property to be his homestead. As noted, even before the deed was executed, Plaintiff entered into a memorandum agreement with his siblings that if he ever sold the property, they would be entitled to one-fourth shares of the net proceeds of any sale of the property. From the signing of this document in November 1993, until the death of his mother in November 1997, the Plaintiff resided not at the Elgin house, but rather in Saudi Arabia, Baton Rouge, Alaska, and Thailand. During this four year period of time, the Plaintiff actually was physically present in the Elgin house, in intermittent periods, for a total of only approximately six months. When his mother passed away, Plaintiff returned to Texas to attend the funeral and take care of his mother's affairs. During this visit to Texas, rather than moving himself into the house, he immediately put the house on the market, executed a power of attorney to his brother to sign documents necessary to its transfer (because he would be in Thailand and would not be able to sign documents), and changed his mailing address to his brother's home. These are not signs that the Plaintiff intended to make the Elgin house his home.
Based on the facts found and recited above, the Court finds Huggins' conclusory testimony that he intended the Elgin house to be his homestead to be not credible in light of his actual treatment of the property and holds the evidence in the case is insufficient to establish Huggins intended the Elgin house to be his homestead.
A piece of property that was, at one time, entitled to homestead protection, can lose such protection if the claimant abandons his intent to occupy the property as his homestead. Abandonment is an affirmative defense. See generally, McFarland v. Rousseau, 667 S.W.2d 929, 931(Tex.App.-Corpus Christi 1984, no writ). The person relying upon the affirmative defense of abandonment has the burden of establishing the claimant moved from the homestead property with the intention of not returning to the property. Id. The evidence relied upon in establishing abandonment must make it undeniably clear that there has been a total abandonment with an intention not to return and claim the exemption. Id. Neither temporary absence from a homestead nor temporarily removing to another state alone constitutes abandonment. Id.
Even if the Elgin house did qualify as Huggins' homestead at one time, the Court finds that the Defendants carried their burden of proving that Plaintiff has since abandoned it. Texas courts have focused on physical absence and lack of occupancy in determining abandonment. Huggins' lack of intent to return and occupy the property is the controlling factor. Coury v. Prot, 85 F.3d 244, 253-254 (5th Cir. 1996); Coleman v. Banks, 349 S.W.2d 737, 741 (Tex.Civ.App.-Dallas 1961, writ ref'd n.r.e.). The house has not been occupied since his mother's death in 1997. Mr. Huggins' stated intent not to reside in or return to Texas, coupled with all of the above actions are inconsistent with his claimed intent to return to the property as his homestead. Accordingly, the Court holds that even if the property were his homestead at one time, he has now abandoned it as his homestead.
B. Judgment issues.
Mr. Huggins contends that two of the judgments for arrears against him out of the State of Colorado are dormant because the defendants did not execute or revive the judgments in Texas within ten years. See TEX. CIV. PRAC. REM. CODE § 34.001. The defendants assert that Colorado law applies to the enforcement of these judgments which would allow a party twenty years to execute a judgment. See COLO. REV. STAT. ANN. § 13-52-102(a)(2)(a). As the judgments were filed in Colorado in 1985 and 1987 respectively, under Colorado law, they remain alive and enforceable; however, had they been Texas judgments, under Texas law they would be dormant. Neither party cites the Court to any precedent as to which State's law controls on this point. The Court's research reveals that, generally, Texas courts are required to give full faith and credit to valid final judgments of sister states. U.S. CONST. ART IV § 1. Texas is therefore required to recognize the Colorado judgments. However, the local law of the forum state determines the manner of execution, and it follows, the dormancy of the judgment. Restatement 2d Conflict of Laws § 131. Therefore, a party may choose to execute a Colorado judgment in Texas, but Texas law regarding execution will control the method by which the judgment is executed. When, as here, the judgment to be executed was not dormant in the sister state at the time a party files that judgment in Texas, failure to give effect to that judgment because it is dormant under Texas law would "do violence to the full faith and credit clause of our federal Constitution." Roland v. Roland, 244 S.W.2d 318, 320 (Tex.Civ.App.-Texarkana 1951, writ ref'd n.r.e.). Accordingly, the Court concludes that neither judgment at issue here is dormant, and execution on those judgments is not barred by Texas law.
C. Controversy regarding the balance due on the judgments.
Although Huggins seeks a declaratory judgment on the amounts owed under the judgments, this Court declines to make a declaration on this issue. A trial court has discretion to enter a declaratory judgment so long as it will serve a useful purpose or will terminate the controversy between the parties. Bonham State Bank v. Beadle, 907 S.W.2d 465 (Tex. 1995). However, a suit to interpret a judgment is usually a guise to obtain review or modification of a judgment outside of the appellate process or an attempt to collaterally attack a judgment. Id.; See also, Segrest v. Segrest, 649 S.W.2d 610, 611-612 (Tex. 1983) cert. denied 464 U.S. 894 (1983) (disapproving use of a declaratory judgment as a tool to collaterally attack a final divorce decree.). The Court finds that Plaintiff's request for a declaration on the amounts owed on the unpaid judgments is an attempt to collaterally attack the judgments for which the Declaratory Judgment Act is an inappropriate vehicle.
Furthermore, for over one hundred years, it has been recognized that the federal courts are an inappropriate forum for the negotiation and resolution of domestic disputes, even where diversity jurisdiction exists. Cook v. Winters, 645 F. Supp. 158 (S.D.Tex. 1986) citing Barber v. Barber, 62 U.S. (21 How.) 582 (1858). The Supreme Court has held that federal district courts do not have the power to issue divorce, alimony, and child custody decrees. Ankenbrandt v. Richards, 504 U.S. 689 (1992); See also., McIntyre v. McIntyre, 771 F.2d 1316 (9th Cir. 1985) (holding the exception to jurisdiction arises in those cases where a federal court is asked to grant a decree of divorce or annulment, or to grant custody or fix payments for support). As a matter of judicial economy, state courts are better suited for these matters than are federal courts, which lack the close association with state and local government organizations dedicated to handling issues that arise out of conflicts over divorce, alimony, and child custody decrees. For this Court to attempt to review, clarify, or modify the state court judgments would invade the state court's jurisdiction to enforce their own judgments in the manner in which they were intended.
Finally, even if this Court had the jurisdiction, and inclination, to issue a declaration on the amount remaining due and payable on the judgments, the evidence on this issue was insufficient to permit the Court to do so. In general, the evidence regarding such matters as when payments have been made, to which judgment they have been (or should have been) credited, the potential overlap of judgments, and the correct rate of interest on the judgments, was so vague and unclear that even if the Court was able and desirous of stating how much the Plaintiff owes on the judgments, the Court would be unable to do so.
Therefore, the Court declines to issue a declaratory judgment on what amount of money Plaintiff continues to owe on the judgments.
III. CONCLUSION
For all of the reasons stated above the Court determines that Judgment should be entered in favor of Defendants Lynette Rose Huggins Pierce and Delta County Department of Social Services on the grounds recited above. The Court will enter a contemporaneous judgment this date.