Texas Divorce Attorney Blog
Characterization of property can be a significant issue in a Texas divorce. The Texas Family Code includes a presumption that property owned by a spouse at the time of divorce is community property, but this presumption can be overcome by clear and convincing evidence the property is the spouse’s separate property. Separate property includes property owned by a spouse before the marriage and property inherited during the marriage. In a recent case, a former husband challenged the trial court’s award of certain property to the wife after declaring it had become community property.
The husband owned certain real property before the parties married in July 2020. The wife filed for divorce in December 2021. The wife conceded that property had been the husband’s separate property. In March, 2021, the husband signed a general warranty deed. That deed listed husband, “a single man,” as the grantor and husband, “a married man,” as the grantee, with consideration of 10.00 “and other good and valuable consideration.”
The wife asked the court to grant a partial summary judgment determining the property was converted to community property. She submitted a copy of the deed and an affidavit from her attorney as summary judgment evidence.
The attorney’s affidavit stated a printout from the county appraisal district received from the wife’s counsel showed two deeds in which the husband had been the grantee. Those deeds had not been produced in discovery, but the wife obtained a copy of the later deed from the courthouse. The attorney ‘s affidavit stated regarding the deed that “it became apparent that the community purchased the property during the marriage and the real property described in the deed is community property.”
The husband did not respond to the motion or object to the documents.
The trial court granted the partial summary judgment and declared the property was community property. The decree awarded the property to the wife as her “sole and separate property” and divested the husband of his interest in it. He appealed.
The husband argued the deed did not show that the property was converted to community property.
No-Evidence Motion for Summary Judgment
The wife argued it had been a “no-evidence” motion for summary judgment pursuant to Tex. R. Civ. P. 166a(i). This rule allows a party to move for summary judgment after an adequate time for discovery on the ground that there is not any evidence supporting an essential element of the other party’s claim or defense for which the other party would have the burden of proof. The rule requires the motion to identify the elements that do not have evidence. The court must then grant summary judgment if the other party does not produce summary judgment evidence that raises a genuine issue of material fact.
The appeals court rejected the wife’s argument, however, noting the motion had not referenced the rule or identified the elements without evidence.
Because the appeals court concluded it was not a no-evidence motion for summary judgment, the wife had the burden of proof.
Conversion
The husband argued the deed and affidavit were not sufficient to prove that the property was converted to community property.
The wife conceded it was the husband’s separate property before the 2021 deed was executed. She argued that the language in the deed conveying the property from the husband as a single man to the husband as a married man converted the property into community property. The wife argued the property was community property because the husband acquired it as a “married man” during the marriage.
The appeals court noted that the community property presumption does not apply in a summary judgment proceeding. The appeals court pointed out that the funds used to purchase property is an important factor in determining its character. If a spouse uses separate property funds to buy property during the marriage, the newly purchase property is also separate property.
The stated consideration in the deed was $10 “and other good and valuable consideration. . .paid by [husband], A MARRIED MAN.” The appeals court pointed out that the transaction could have converted the property or created a right of reimbursement if the consideration was paid with community funds. The source of the funds was not identified in deed or the attorney’s affidavit, however, so there was no summary judgment evidence of the source of the funds.
The appeals court concluded the summary judgment evidence did not conclusively show the property was community property. Divesting the husband of his interest in his separate property would be reversible error. The trial court therefore erred in granting the wife’s motion for summary judgment and subsequently awarding the property to the wife based on the summary judgment order. The appeals court reversed the property division portion of the divorce decree and remanded to the trial court.
Contact a Dallas Divorce Lawyer
If your marriage is ending and you have a complex estate in which one or both spouses brought significant assets into the marriage, you should consult with a knowledgeable Texas family law attorney. If McClure Law Group represents you, we will fight zealously to protect your assets and pursue a favorable outcome. Call us at 214.692.8200 to set up a consultation.