In the Matter of the Marriage of Andy Lane McClure and Gina Diane McClure and in the Interest of S.N.M., a child--Appeal from 249th District Court of Somervell County

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Laws-info.com » Cases » Texas » 10th District Court of Appeals » 2005 » In the Matter of the Marriage of Andy Lane McClure and Gina Diane McClure and in the Interest of S.N.M., a child--Appeal from 249th District Court of Somervell County

State: Texas

Court: Texas Northern District Court

Docket No: 10-04-00097-CV

Case Date: 07/06/2005

Plaintiff: The State of Texas

Defendant: Nancy Boyd Hays--Appeal from 173rd District Court of Henderson County

Preview:In the Matter of the Marriage of Andy Lane McClure
and Gina Diane McClure and in the Interest of S.N.M.,
a child--Appeal from 249th District Court of Somervell
County
IN THE
TENTH COURT OF APPEALS
No. 10-04-00097-CV
IN THE MATTER OF
THE MARRIAGE OF
ANDY LANE McCLURE
AND
GINA DIANE McCLURE
AND
In the Interest of S.N.M., a Child
From the 249th District Court
Somervell County, Texas
Trial Court No. D-04299
memorandum Opinion
Andy Lane McClure appeals the trial court s division of the community estate on Andy s divorce from Gina Diane
McClure. In two issues, Andy contends that the trial court erred in awarding certain funds to Gina as separate property.
We affirm.
Rebuttal of Community-Property Presumption
In Andy s first issue, he complains in three sub-issues that Gina did not rebut the community-property presumption.
Uncorroborated Testimony
In his first sub-issue, Andy argues that the testimony of Gina and her father was insufficient to rebut the community-
property presumption. Andy cites one case for the proposition that the uncorroborated testimony of a spouse is
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insufficient. Boyd v. Boyd, 131 S.W.3d 605 (Tex. App. Fort Worth 2004, no pet.). Assuming this is so, Boyd is not on
point, since Gina s testimony was corroborated.
Condition on Gift
In his second sub-issue, Andy argues that the funds at issue could not have constituted a gift from Gina s father to
Gina, because Gina s father put a condition on the transfer of certain real property. Andy s argument, however, does
not address why the funds were not properly characterized as separate property. Rather, Andy attempts to impose on
the funds a condition related to the tract of real property on which those funds were spent by the construction of the
house. He does not argue, however, that there was any condition on the funds or on what the funds could be spent for.
Gift Tax Return
In his third sub-issue, Andy argues that the trial court could only have considered the testimony of Gina s father that
he gave Gina the funds as false as a matter of law, since Gina s father did not produce federal gift tax returns. Andy
cites no authority for this argument, and thus waives the sub-issue. See Tex. R. App. P. 38.1(h); Cathey v. Meyer, 115
S.W.3d 644, 656 (Tex. App. Waco 2003, pet. filed). In any event, Andy s argument is closely related to the estoppel
argument that we rejected in Byrd v. Estate of Nelms. See Byrd v. Estate of Nelms, 154 S.W.3d 149, 159-60 (Tex.
App. Waco 2004, pet. filed).
We overrule Andy s first issue.
Intent of Donor s Spouse
In Andy s second issue, he argues that there was no evidence that Gina s mother intended that the funds at issue be a
gift to Gina. Andy cites no authority for this argument, and thus waives the issue. See Tex. R. App. P. 38.1(h); Cathey,
115 S.W.3d at 656. In any event, Andy s argument is essentially that Gina s father committed fraud on the community
estate of Gina s father and mother, an argument that Andy has no standing to make. We overrule Andy s second issue.
Having overruled Andy s issues, we affirm the judgment.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Justice Vance concurs in the result without a separate opinion)
Affirmed
Opinion delivered and filed July 6, 2005
[CV06]
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