Opinion
No. 10-05-00133-CV
Opinion delivered and filed December 6, 2006
From the 82nd District Court Falls County, Texas Trial Court No. 35,157-D.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
In two issues appellant, Randy Bailey, attacks the trial court's division of property upon the dissolution of his marriage from Jean Bailey. Appellant's brief contains a good discussion of the law applicable to the determination of the character of property as separate or community, the burden of proof at trial, our standard of review on appeal, the difference between an ordinary challenge to the legal and factual sufficiency of the trial court's findings, as compared to a challenge to the just and right division of the community estate on which our review of the trial court's decision is an abuse of discretion, and various other issues relevant to the disposition of this appeal. Because we find the law as stated in appellant's brief more than adequate for the disposition of the issues on appeal, we find it unnecessary to repeat it herein.
The appellee waived the filing of a brief.
The issues raised by the appellant are straightforward. In Randy's first issue, he challenges what he characterizes as an implied determination that property referred to as the peach orchard was Jean's separate property. Randy's second issue contends that the trial court's error in the characterization of the peach orchard resulted in a division of the community estate that was not just and right. Thus, the second issue is entirely dependent upon a favorable determination on the first issue.
THE PEACH ORCHARD
There was extensive testimony about the acquisition, payment for, and payment of taxes on the peach orchard. The peach orchard is a 90' x 130' lot in the City of Rosebud. The peach orchard lot is adjacent to the home located on two other lots owned by Jean's parents. The peach orchard lot was acquired during the marriage of Randy and Jean. The original purchase price was $2,500. The peach orchard lot was sold before the dissolution of the marriage in this divorce proceeding. The peach orchard lot was sold to the buyers who purchased the two lots and home owned by Jean's parents as part of the same transaction. As discussed below, the evidence is not clear who paid what to acquire the lot, what the sales proceeds related to the lot were, or what happened to the sales proceeds.
The title to the peach orchard was taken in only Jean's name. The evidence raised the issue of whether Jean's parents had acquired the property for Jean. The evidence also raised the issue of whether the property, when Jean and Randy were unable or unwilling to make the payments on it or pay property taxes on it, was given or sold to Jean's parents but title left in Jean's name. The evidence also raised the issue of whether Jean's parents made payments on a note for the purchase of the property.
When the peach orchard was sold, Jean and both her parents signed the general warranty deed conveying the peach orchard to a third party. It was conveyed to the person buying Jean's parents' home. As stated above, there was no allocation of the proceeds of the sale between Jean's parents' home and the peach orchard.
The trial court found, based upon all the evidence, as summarized above "that both parties [to the divorce proceeding] knew of the purchase with funds from Petitioner's [Jean's] Step-father, and of payments made during the marriage, and the Court finds no fraud was committed by Petitioner, Shelby Jean Bailey." On appeal, there has been no attack on the finding of fact that "no fraud was committed" on the community estate by Jean regarding the purchase, payment, ownership, or sale of this tract. Such an attack would be fruitless because the record fully supports this finding. No funds from the sale were shown to have been received by Jean from the sale, but any funds she received, to the extent they were still in her possession, were not awarded to her as her separate property. There was no award, or setting aside, of any property in the decree as either party's separate property. Thus, all property on hand was presumed community property and was part of the just and right division made by the trial court.
Because no assets were set aside as Jean's separate property, and because the trial court determined that Jean did not commit fraud on the estate with regard to the ownership and sale of the peach orchard, and because all property was thus presumed to be community property and divided by the trial court, Randy has not shown that the trial court impliedly mischaracterized the peach orchard as Jean's separate property or that if the trial court did impliedly characterize it as such, that it in any way impacted the just and right division of the community estate.
Accordingly, we overrule both of Randy's issues and affirm the trial court's judgment.
Affirmed