In Re Anthony Leon Summers--Appeal from 128th District Court of Orange County

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State: Texas

Court: Texas Northern District Court

Docket No: 09-04-00448-CV

Case Date: 11/04/2004

Plaintiff: Travis Wade Johnson

Defendant: The State of Texas--Appeal from 402nd District Court of Wood County

Preview:Harshad Panchal v. Sonali Panchal--Appeal from 366th District Court of Collin County
11th Court of Appeals Eastland, Texas Memorandum Opinion Harshad Panchal Appellant Vs. No. 11-02-00234-CV -- Appeal from Collin County Sonali Panchal Appellee This appeal arises from a divorce proceeding. Harshad Panchal raises four points of error on appeal. Appellant asserts in his first point that the trial court failed to enter sufficient findings of fact and conclusions of law. The second point addresses the trial court=s division of community property. Appellant=s third point attacks the trial court=s confirmation of various investment accounts as being Sonali Panchal=s separate property. The fourth point challenges the issuance of a permanent injunction against appellant. We affirm in part and reverse and remand in part. We have previously addressed appellant=s first point in an order issued on July 10, 2003. Appellant asserted in the first point that the trial court failed to enter findings of fact and conclusions of law as required by TEX. FAM. CODE ANN. ' 6.711 (Vernon Supp. 2004). We sustained appellant=s contention by entering an order which abated the appeal and remanded the proceedings to the trial court for the filing of proper findings of fact and conclusions of law. The trial court has complied with our previous order by filing amended findings and conclusions. Appellant has not raised any complaints regarding the adequacy of the amended findings and conclusions. Accordingly, we need not consider appellant=s first point any further.

In his fourth point, appellant complains that the trial court erred in granting a permanent injunction against him. The trial court permanently enjoined appellant from committing the following acts: (1) causing physical contact or bodily injury to appellee or threatening appellee with imminent bodily injury; (2) communicating in person, by telephone, or in writing with appellee; (3) coming within 500 feet of, entering, or remaining on the premises of appellee=s residence or place of employment; (4) communicating with any patrons, creditors, associates, affiliates, debtors, landlord, or any other like persons associated with the business which the trial court awarded to appellee. A successful applicant for injunctive relief must demonstrate the following four elements: (1) the existence of a wrongful act; (2) the existence of imminent harm; (3) the existence of irrep-arable injury; and (4) the absence of an adequate remedy at law. Walter v. Walter, 127 S.W.3d 396, 398 (Tex.App. - Dallas 2004, no pet=n). The grant or refusal of a permanent or temporary injunction is ordinarily within the sound discretion of the trial court; and, on appeal, review of the trial court=s action is limited to the question of whether the action constituted a clear abuse of discretion. Walter v. Walter, supra at 398. There are several references in the record to instances wherein appellant threatened or ver-bally abused appellee and others. Appellee offered into evidence several letters to appellant from the landlord of the building where the parties= business was located. Among other things, these letters detailed instances wherein appellant threatened customers and other tenants of the building and used profanity loudly in the lobby of the building. The landlord warned appellant in these letters that his conduct violated the terms of his lease and would result in eviction if his behavior did not cease.

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We find that the trial court did not abuse its discretion in entering the injunction. Appellant=s fourth point of error is overruled. Appellant=s third point of error attacks the evidence supporting the trial court=s characterization of four investment accounts as being appellee=s separate property.[1] Property pos-sessed by either spouse during or on dissolution of marriage is presumed to be community property. TEX. FAM. CODE ANN. ' 3.003(a) (Vernon 1998). To rebut this presumption, the person seeking to prove the separate character of the property must do so by clear and convincing evidence. Section 3.003(a).

The Texas Supreme Court has recently clarified the standard of review applicable to sufficiency challenges of findings that must be established by clear and convincing evidence. See In re J.F.C., 96 S.W.3d 256, 264 68 (Tex.2002)(discussing legal sufficiency review); In re C.H., 89 S.W.3d 17, 25 (Tex.2002)(discussing factual sufficiency review). In these parental termination cases, the court reasoned that the traditional legal and factual sufficiency reviews were inadequate to accommodate the clear and convincing burden of proof, concluding that Athe burden of proof at trial necessarily affects appellate review of the evidence.@ In re J.F.C., supra at 264 (quoting In re C.H., supra at 25). Texas courts of appeals have subsequently applied the heightened standards of review announced in J.F.C. and C.H. in the context of addressing evidentiary challenges to separate property characterizations. See Boyd v. Boyd, 131 S.W.3d 605, 611 (Tex.App. - Fort Worth 2004, no pet=n); Stavinoha v. Stavinoha, 126 S.W.3d 604, 608-09 (Tex.App. - Houston [14th Dist.] 2004, no pet=n). When we conduct a legal sufficiency review of a separate property finding, we are instructed to look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. In re J.F.C., supra at 266. This means that we must (1) assume that the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could do so and (2) disregard all contrary evidence that a reasonable fact finder could have disbelieved or found to have been incredible. In re J.F.C., supra at 266. However, we are not required to disregard undisputed facts that do not support the finding because that might skew a clear and convincing analysis. In re J.F.C., supra at 266. If we determine that no reasonable fact finder could form a firm belief or conviction of the truth of the matter to be proved, we must conclude that the evidence is legally insufficient. In re J.F.C., supra at 266. When we conduct a factual sufficiency review of a separate property finding, we must consider whether all of the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the allegations sought to be established. In re C.H., supra at 25. We should consider whether disputed evidence is such that a reasonable fact finder could not have resolved that disputed evidence in favor of its finding. In re J.F.C., supra at 266 (citing In re C.H., supra at 25). If, in light of the entire record, the disputed evidence that a reasonable fact finder could not have credited in favor of the finding is so significant that a fact finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. In re J.F.C., supra at 266. If we determine that the evidence is factually insufficient, we are to detail in our opinion why we have concluded that a reasonable fact finder could not have credited disputed evidence in favor of the finding. In re J.F.C., supra at 266-67.

The evidence pertaining to the four accounts was sparse. Appellant appeared at trial pro se while appellee was represented by counsel. Although both parties appeared for trial, the trial proceedings were very brief. Appellee prepared an inventory and appraisement which she did not sign. Her counsel offered the unsigned inventory into evidence Asimply as a trial aid to assist the Court in its findings.@ The inventory listed the four accounts on an exhibit under the heading of AWife=s Separate Property.@ Appellee=s counsel made a passing reference to the four accounts during the following exchange with appellee: Q: Okay. [Appellee, in the inventory] you have listed numerous Keogh accounts and retirement Keoghs and stocks that are your separate property, and essentially the other community property interest that you had would be your >99 Ford Explorer and you=re asking the Court for you to keep that; is that correct?

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A: Yes. Appellant subsequently asked appellee the following question during cross-examination which appeared to address the four accounts: Q: Do you have an idea of your husband -- previous husband=s funds and how much is it? A: It=s -- I don=t remember, but its in the paper. [APPELLANT]: [to appellee=s counsel] Can you show me, sir? [APPELLEE=S COUNSEL]: Sure. Here it is. [APPELLANT]: Yeah. There was no additional testimony concerning the accounts.

Well established case law requires that the party seeking to rebut the community presumption must trace the assets on hand during the marriage back to property that, because of its time and manner of acquisition, is separate in character. Cockerham v. Cockerham, 527 S.W.2d 162, 167 (Tex.1975); Boyd v. Boyd, supra at 612. Tracing involves establishing the separate origin of the property through evidence showing the time and means by which the spouse originally obtained possession of the property. Boyd v. Boyd, supra at 612. Appellant=s reference to appellee=s Apre-vious husband=s funds@ suggested that appellee owned some or all of the accounts prior to marriage. See TEX. FAM. CODE ANN. ' 3.001(1) (Vernon 1998)(AA spouse=s separate property consists of the property owned or claimed by the spouse before marriage.@) However, the parties were married for almost 14 years prior to trial. There is no evidence which traces the history of these accounts with respect to the deposit or withdrawal of funds or the disposition of income generated by the accounts after marriage. As a general rule, testimony that funds are separate property without any tracing of the funds is insufficient to rebut the community presumption. Boyd v. Boyd, supra at 612. Accordingly, while there is evidence suggesting that some portion of the accounts are appellee=s separate property, there is factually insufficient evidence to support the trial court=s determination that the entire balances of the accounts are her separate property. When we are asked to review an alleged characterization error, we must determine not only whether the trial court=s finding of separate property is supported by clear and convincing evidence but also whether the characterization error, if established, caused the trial court to abuse its discretion. Boyd v. Boyd, supra at 617. Mere mischaracterization of community property as separate property does not require reversal. Boyd v. Boyd, supra at 617. If the mischaracterization has only a de minimus effect on the trial court=s division of the community estate, then the trial court did not abuse its discretion. Boyd v. Boyd, supra at 617. However, if property is mischaracterized and the mischaracterization is of such magnitude that it affects the just and right division of the community estate, we must remand the entire case to the trial court for a just and right division based upon the correct characterization of the property. Boyd v. Boyd, supra at 617. The trial court awarded appellee community property worth approximately $189,000. The trial court awarded appellant community property worth approximately $180,000. According to appellee=s inventory, the four accounts had a combined value of approximately $134,000. The inclusion of the value of the four accounts into the portion of the community estate awarded to appellee would significantly alter the trial court=s division of the community estate. Accordingly, a mischaracterization of the four accounts would have had more than a de minimus effect on the trial court=s division of the community estate.

Appellant=s third point of error is sustained. The trial court=s characterization of the two TransAmerica Life Insurance Company accounts, the Life Investor Insurance Company of America account, and the Fidelity Investments account as

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being appellee=s separate property is reversed and remanded for a redetermination of their proper characterization. We need not consider appellant=s second point of error seeking a remand of the property division in light of our disposition of the third point. We affirm the parties= divorce and the trial court=s entry of a permanent injunction against appellant, but we reverse and remand this case to the trial court for a just and right division of the community estate. W. G. ARNOT, III CHIEF JUSTICE September 9, 2004 Not designated for publication. See TEX.R.APP.P. 47.2(a). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J.

[1]The trial court also confirmed numerous items of furniture and jewelry as appellee=s separate property. Appellant does not challenge the trial court=s characterization of these items as being appellee=s separate property.

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