In the Matter of the Marriage of Cheryl Dyer and Waylon L. Dyer and in the Interest of L.K.D. and L.P.D. , Children--Appeal from 52nd District Court of Coryell County

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Laws-info.com » Cases » Texas » 10th District Court of Appeals » 2001 » In the Matter of the Marriage of Cheryl Dyer and Waylon L. Dyer and in the Interest of L.K.D. and L.P.D. , Children--Appeal from 52nd District Court of Coryell County

State: Texas

Court: Texas Northern District Court

Docket No: 10-01-00064-CV

Case Date: 10/24/2001

Preview:In the Matter of the Marriage of Cheryl Dyer and Waylon L. Dyer and in the Interest of L.K.D. and L.P.D. , Children--Appeal from 52nd District Court of Coryell County
IN the Matter of the Marriage of Dyer and in the interest of LKD and LPD, CHildren /**/ IN THE TENTH COURT OF APPEALS

No. 10-01-064-CV

IN THE MATTER OF THE MARRIAGE OF CHERYL DYER AND WAYLON L. DYER AND IN THE INTEREST OF L.K.D. AND L.P.D., CHILDREN

From the 52nd District Court Coryell County, Texas Trial Court # CD-97-31116 OPINION Waylon L. Dyer appeals from a suit for divorce filed by Cheryl Dyer on October 17, 1997. Specifically, Waylon challenges the divorce decree and claims that the court erred in awarding the marital home to Cheryl because: (1) The real property did not belong to either party. Instead, it was the homestead of Waylon s parents, Jan and Sharon Dyer; (2) If the property did belong to Cheryl and Waylon, it was a gift from Waylon s parents and therefore each spouse owned a one-half undivided separate property interest, which is not subject to division by the court; or (3) If the property was community property, the court did not make a just and right equitable division of the marital property.

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We affirm the judgment of the trial court. FACTS Cheryl and Waylon married in 1991. During the marriage, the couple moved onto land owned by Waylon s parents, first in a mobile home and then in a house that the couple completed in April 1997. Waylon, his family, and friends built the house with materials financed by a construction company owned by Cheryl s father. The couple lived in the house until October 1997, when they separated and Cheryl filed for divorce. Waylon s parents were made parties to the litigation by Cheryl s First Amended Original Petition, in which she asserted that the couple s community estate had expended community funds, time, effort, and talent pursuant to the representation of Waylon s parents that the title to the land upon which the house was built would be transferred to the couple. Cheryl further claimed that Waylon s parents had failed to fulfill their promise and had failed to sign a deed conveying the 1.727 acres of land and thirtyfoot access easement. The divorce decree was entered in November, 2000. The judgment recites that by surveying the property and constructing the residence on the property Cheryl and Waylon had expended (1) in excess of $30,000, which was comprised of Cheryl s separate funds as well as the couple s community funds and (2) in excess of $20,000 in community time, toil, and effort. The judgment further recites that Jan and Sharon Dyer knowingly accepted the benefits of the improvements that Cheryl and Waylon made to the property, benefits that they knew belonged to the couple s community estate. The court s judgment orders Waylon s parents to convey the 1.727 acres and the thirty-foot access easement to Cheryl. No findings of fact or conclusions of law were requested. Only Waylon appeals the court s judgment. ABUSE OF DISCRETION The trial court has wide discretion in dividing the marital estate. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). We will reverse the trial court s decision only if it appears from the record as a whole that the court abused its discretion. Gillespie, 644 S.W.2d at 451. A trial court abuses its discretion when it acts arbitrarily or unreasonably, without reference to any guiding rules or principles. Worford v. Stamper, 801 S.W.2d at 109. When a party does not request findings of fact, we infer that the trial court made all the necessary findings to support its judgment. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989). An abuse of discretion is shown with respect to factual issues if the trial court could reasonably have reached only one decision and failed to do so. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). COMMUNITY OR SEPARATE PROPERTY Any property in the possession of either spouse during or on dissolution of marriage is presumed to be community property. Clear and convincing evidence is required to successfully rebut this presumption. See Tex. Fam. Code Ann. 3.003. It is undisputed that during their marriage the couple made improvements to the 1.727 acres and took possession of the property with the full knowledge and consent of Waylon s parents. Furthermore, Waylon did nothing during the course of the litigation to rebut the community presumption. He failed to appear to testify regarding the character of the property. He did not plead that he had any separate property. He filed no inventory. We find that the trial court could have reasonably determined that Cheryl and Waylon had acquired an equitable interest in the property during their marriage and that the community presumption applied to that interest. We therefore overrule Waylon s first two issues. DIVISION OF THE MARITAL ESTATE Section 7.001 of the Family Code provides that a divorce decree shall order a division of the estate of the parties in a manner that the court deems just and right. Tex. Fam. Code Ann. 7.001. The estate of the parties has been construed to mean only community property. Cameron v. Cameron, 641 S.W.2d 210, 214-15 (Tex. 1982). A trial court is not required to divide marital property equally and in making its division may consider such factors as relative financial
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condition, size of the separate estates, and disparity in earning capacities or incomes. Murff, 616 S.W.2d at 698-99. The party attacking the property division bears the burden of showing why it is so unjust and unfair as to constitute abuse of discretion. Finch v. Finch, 825 S.W.2d 218, 221 (Tex. App. Houston [1st Dist.] 1993, writ denied). Our review of the record as a whole leads us to conclude that the court did not abuse its discretion in dividing the marital estate. Having overruled all of Waylon s issues, we therefore affirm the trial court s judgment. TOM GRAY Justice

Before Chief Justice Davis, Justice Vance, and Justice Gray Affirmed Opinion delivered and filed on October 24, 2001 Do not publish [CV06]

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