                                                          Court of Appeals

                                                            DEC 2 i 2015
                        NO.05-15-O1362-CV                    Lisa Mate
                                                          Clerk, 5th District

     IN THE COURT OF APPEAL FOR THE FIFTH DISTRICT OF

                         TEXAS AT DALLAS

FOR THE 401st DISTRICT COURT OF COLLIN COUNTY, TEXAS




                       DIANA FAY BASS, APPELLANT

                                  VS.


                       RICHARD HILL BASS, APPELLEE



                         "APPELLANT'S BRIEF"



PARTY FILING BRIEF- DIANA FAY BASS

Appellant Diana Fay Bass                Pro Se Litigant
(972) 213-6095                          P.O. Box 432
db424fzfz@live.com                      McKinney, Texas 75070

Appellee Richard Hill Bass              Attorney Hannah Stroud
Philips & Epperson Attorneys            2301 Virginia Parkway
hstroud@philipandepperson.com           McKinney, Texas 75071

(972) 562-9440

APPELLANT REQUEST ORAL ARGUMENT, Trap 9.4 (g), 39.7.
 Request 20 minutes, Appellant may not be presenter
                       APPELLANT DIANA BASS




                       TABLE OF CONTENTS




 TABLE OF CONTENTS

1. Table of contents

4. Case Summary

5. Appellant's Summary

6.   Conclusion

7. Prayer
Honorable Judge Mark Rusch, Collin County 401st District Court, trial
judge, signed the orders for Emergency Ex Parte Motion for
Appointment of Receiver and, Alternative, Emergency Motion to
Compel Respondent to Comply with Terms of the Mediated Settlement
Agreement; Affidavit in Support of Emergency Ex Parte Motion for
Appointment of Receiver and, Alternatively, Emergency Motion to
Compel Respondent to Comply with Terms of the Mediated Agreement;
Order on Motion for Emergency Ex Parte Motion for Appointment of
Receiver; and Motion for Appointment of Receiver, and Alternatively,
Motion to Order Respondent to Comply with Terms of the Mediated
Settlement Agreement; dated November 2, 2015.

                          CASE SUMMARY

   WITH THIS BRIEF, Appellant, Diana Fay Bass (DFB), she argues the Ex
Parte Hearing gave Power of Attorney (for 30 days)   to sign anything
Richard Bass chose to sign, over to the very person that performed
intentional acts of fraud against her, including Mediated Settlement
Agreement (MSA) and the Divorce Settlement. Appellee claimed
imminent need to sell homestead due to foreclosure, not true, the
buyer just had to make sure he got the property cheap and for his
development. Richard Bass used that power of attorney to
continue with his fraud (and refuses to give all documents he signed),
illegal.

  Appellant's homestead and separate property were sold, with this
 Power of Attorney given to a buyer/developer and Richard Bass that
had committed fraud, and breach of contract to Diana Bass. Selling this
 property was totally against her will, and of which she refused to sign
any documents, which would have been more fraud committed
against her. Diana Bass Constitutional right to her sole and separate
property (by gift) was violated, and her homestead was given away.
Diana Bass received monies for. There was no emergency.

     The judge signed order Friday afternoon, therefore, Appellant was
not told until Monday, at 8:15 a.m., notice by telephone. The order
was signed for hearing Friday around 4:30 p.m. The Judge refused to
sign any of Appellants orders to oppose MSA. The only emergency
was, that would that the lender would foreclose (on one half of the
house). They needed Appellants signature to complete the fraud
against me, and the judge gave it to them, and Appellant claims serious
abuse of courts discretion. My rights were violated as a citizen and
defendant.

         Richard Bass refuses to give me copies of all the documents he
signed illegally without my permission. Demand for discovery will be
filed.

         Richard Bass agreed in settlement to pay $170,000.00 to
Appellant after illegally signing selling her sole, separate and
community properties, so he actually violated the agreement. MSA
void.

         Fraud, lies, coercion, duress, intentional misrepresentation of
material facts (such as Diana Bass was co-trustee, co-grantor, co-
 beneficiary), MSA void. Trust in Texas have very specific laws, any
 attorney should have known that, Richard Bass violated many trust
 laws, and the documents he signed with Power of Attorney was to close
trust, and cover up his fraud upon the estate.

     Appellee, gifted intentionally, during marriage of 17 plus years,
via Bass Living Trust, with recorded deeds, litigants as co-owners, joint
bank account to manage trust and its monies, and comingling of
everything,. Land was cleared of trees and brush, rental properties
remodeled together, and property rented many times. Character
changed when gifted to Appellant in trust documents, recorded
deeds, income taxes filed. There is no need for tracing as it was very
clear where funds went, there was a joint trust and business bank
account.


     Richard Bass breached contracts for sale of properties, but he
could not sell the homestead and Appellants separate property
without her signature, the contract on homestead was up that day.
We had jointly signed contracts to sell all significant assets,
Appellee sold illegally the land as one of the trustees, without
Appellants knowledge, violating trust laws and provisions. Texas
trust laws are very serious in this state.

     The Mediated Settlement Agreement is a legal contract, except
when obtained thru fraud, duress, coercion, threats, "no meeting of the
minds", and intentional lies. Separate or community property or
property division was intentionally not written into this contract, nor
Divorce Settlement. Property division and money division are the
essential elements MSA.

Common land and constructive fraud was committed by Richard Bass
   against Appellant. He sold the properties without informing Diana
Bass, took money and hid it, and then closed trust with Power of
Attorney. Well thought out crime, property and monies theft, and
stealing from trust. Property was not his sole and separate properties,
it was intentional fraud in MSA to state so. Not giving Diana Bass one-
half her share or basically any monies to date, with Appellant as
beneficiary, trustee, and grantor of Bass Living Trust is illegal, and
subject to further litigation.

        While theft of properties and monies has taken place against her,
Appellant has had to file indigency, cannot get an attorney pro
bono, and has affected her right to justice. Living cost, insurance
premiums, medical bills past and present (which need to be paid),
prescription cost, limited food, car expenses, clothing expenses, Diana
Bass living well below the means she did previously. Appellee
states "we were separated three years", not true, toxic mold in
homestead, she had to move. Diana Bass has serious exposure to toxic
mold, (see exhibit), and needs to move now to a clean non-toxic
environment now, and receive medical care, but cannot due to lack
of funds. Also, both of her homes were sold illegally, and she will be
evicted any moment, without any funds to move. Diana Bass r.n., Appellant is
on Social Security Disability only, and due to two very serious health conditions, requiring very expensive
treatments every three weeks., shecannot work. She needs serious medical and a clean non-toxic
environment now. Money received from this case will affect herfuture, and ability to even live day to
day. Lack of adequate attorney access is contributing to the injustice of
it all, including unneeded stress and increase in medical treatments due
to constant work on this case. Appellant request for court to order pro
bono attorney to defend.
                    APPELLANT'S ISSUES PRESENTED

!. Mediated Settlement Agreement is void due to fraud, lies,
"ambiguous in nature", did not include property division in written
contract, misrepresentation, malicious intent to deceive, and unfair
and unjust, coercion, and severe duress (torture) and threats by
mediatory and my own attorney. Seventeen plus years of marriage
at the minimum community. Judge did not have right to give Power of
Attorney. Hearing was illegal, unjust and unfair, and certainly not
protecting Diana Bass right as a defendant. Court abused its discretion.
2. Appellee committed (Diana Bass being all three) fraudulent
transfer of properties and monies, violating common and constructive
law.

3.     Unequal and unjust property division in a marriage via MSA.
4. Ex Parte Hearing violated Constitutional and Texas laws, violating
homestead and separate property rights, and right to equal justice,
under the law.

5.      Appellee, deliberately intended to cause tax liability to
Appellant's, by adding " innocent spouse" may not be used, put into
divorce decree after stating "he would pay all taxes." Again,
deliberate deception. The land was sold without her knowledge, and
allowing this deduction is important. Another example of fraud in
 MSA.

 6. This property was a major significant asset, and Richard Bass signed
 document on his half of the home and one acre to allow short sale and
foreclose. This was illegal for Richard Bass to do so, Diana Bass argues
continued fraud upon her. He was not the sole and separate owner of
the property.

7.    Cruelty in a divorce, including all proceeding, documents, Power
of Attorney, no spousal support, no community medical bills being paid,
fees being paid by the buyer/developer, while requiring Diana Bass to
represent herself, which is spousal abuse. Appellant argues "unfair,
unjust, and illegal" intentional actions of spouse against her, including
Ex Parte Hearing.

8. Power of Attorney was not in settlement Diana Bass signed, MSA
papers were substituted and added after the facts, note on initials, etc..

                       APPELLANT'S ARGUMENTS

    Appellant argues Mediated Settlement Agreement, are subject to
avoidance on the grounds iffraudulent agreement. (1) Fraudulent
inducement "is a particular species of fraud that arises only in the
context of a contract and requires the existence of a contract as part of
the proof,'. 12A Tex. Jur. 3d Compromise and Settlement 18 (see
App.l).

     Mediated Settlement Agreement must be complete and within the
contract, every material detail, which contain all the elements of the
contract. Not including what is separate, community, or both in
agreement immediately voids contract.
     Appellant raises general issue of material fact that Richard Bass
 claim that the acreage from Bass Living Trust (Exhibit B), was his sole
and separate property, from Bass Family trust (2004) to Richard Bass,
then Richard Bass to the Bass Family Living Trust to Vintage Place Funds
with sale of lands estimated 8.3 acres (sold $945,000.00, 7.3 acres sold
warranty deed for $10.00, dependent upon approval planning and
zoning.

     Someone need only point out evidence that raises a fact issue on
the challenged elements, Hamilton vs. Wilson, 249 S.W., 3d 425, 426
(Tex. 2008), (see App 2) is asserting claims in this case during
divorce proceedings, Barr v. Resolution Trust, 837 W. 2d, 627,631 (Tex.
1992) (see App 3). Any claims that arises out of these facts
should be litigated in the same lawsuit, subject matter is based on the
factual matter that makes up the complaint.

      Parties in this appeal had "joint management of the properties,"
which makes tort liabilities or contract liabilities of either spouse,
example-joint banking accounts, comingling of everything, joint
business, and trust, recorded deeds, etc..

       Richard Bass made argument that the character rules gave him
the property as sole and separate. The Bass Living Trust put into
writing designation the property (land and Graves property), and
the farm property that was sold, and the homestead which was
taken out of trust to borrow funds. This property was intentional gift,
acquired during marriage, and separate or community of both, not just
Appellee's.

          Inception of Title Rule in Texas determines the character at the
moment in time it is acquired. And because the rule looks to the time
that property is acquired, it does not matter if the deed names both
spouses as grantees.

       The character of an asset can be used, but community
presumption can do the work for you (5).     A spouse proving otherwise
that property is not community must prove with clear and convincing
evidence.

       Appellant has also claim for damages to community assets as
recovery for medical bills. (6).

      The Vernon's Texas Statues and Codes Annotated, Family Code,
3.3001, 3.001, Separate Property, (See App.4) defines separate
property as property that's "owned or claimed before marriage, and
property acquired afterward by gift, devise, or descent" (7). It also,
matters if it was intended, and in this case if was, married 17 plus years,
10 years properties in the trust and comingled, and co-managed.

       Texas is a community property state.

       Fraud, undue influence, accident, and mistake are grounds on
which a compromise settlement may be set aside. Avoidance of lump
sum settlement or release of bastardly claims on grounds of fraud, also
cause for fraud. 12A Tex. Jur. 3d Compromise and Settlement 18 (See
App 1).

         The Texas Supreme Court ruled that the MSA (mediated
settlement agreement) did not constitute a binding contract it appears
this is a matter of law, that the court in this case may have to decide.
A material misrepresentation by one party to another can
support repudiation or rescission by other party. Spouse failed to
make proper disclosures, and should have disclosed all that he had
sold, or was about to sell. Violations oftrust and marital laws should
support the argument for forced Alternative Dispute Resolution, which
other party refuses.

         Intentional fraud or inducement during MSA, Appellee
stating properties sold was his sole and separate property, S. Univ. v.
State Bank & Trust Co. 212 S.W. 3d, 813, 914, (See App 5); ad was
known to be false when made and was intended to be acted upon, and
was relied upon (in MSA), (see App 5). Acourt is not required to
enforce an MSA (or Hearing orders based on fraudulent nature) if illegal
in nature in nature, or procured by fraud, duress, coercion, or other
dishonest means, Court of Appeals, El Paso, Gary Edward Morse,
Appellant, v. Dana Ann Morse, Appellee, No. 08-09-0046-CV, (See App
6).

          Richard Bass received (in promissory notes majority of
property) estimated $945,000.00, he agree $170,000.00 should be his
just and right settlement to me. Appellant argues not just and right to
 her, as she is due one half as separate and community of net monies,
 with his legal cost coming out of his half. Appellant also request monies
 for attorneys fee to be given now, further litigation for real estate and
 trust fraud, against many properties, is likely to be necessary. MSA
 was changed after the fact, and not notarized. What Diana Bass signed
 cannot be proven, invalid contract. Under no circumstances did Diana
 Bass agree to give Appellee any Power of Attorney, repeat,
 under no circumstances. There is awitness and emails to support this.
                                     10
     MSA was torture, as though, and duress, coercion (the mediatory
threatened buyer/developer would be "waiting at the door with a
handful of lawsuit" if Appellant did not sign MSA. Diana Bass's
attorney stated "she would resign if MSA not signed tonight". The
attorney was later released by Diana Bass, hearing signed judge
immediately after signing order to release attorney, Twelve hours of
torture (MSA) for a person of poor health, is unjust and unfair, it just
led to confusion, despair, forgetfulness, extreme fatigue, unable to
think correctly. Diana Bass was already overwhelmed by selling
of her assets,      without her knowledge, and then the surprise
divorce. Threats of losing her "homes" while having no monies, or
home to go to, initiated "absolute fear, confusion, and despair."
Circumstances surrounding the documents was duress and coercion,
was unjust, unfair, and cruel.

Under Texas law, constructive fraud may be imposed when a party
breaches a fidicuiary-like duty relationship. Richard Bass breached this
when properties from trust and without knowledge given to Diana Bass,
illegally all properties, including monies, and land. Matter of Creating
Trust Westlaw, Matter of Carlin Paxton Advertising, Inc., C.A. 5,
Tex.)1991, 938 F 2d 595. (See App. 7).

      Conveyance between husband wife, property was conveyed by
deed, with intent to make a gift, Supreme Court in Jackson V.
Hernandez, 155 Tex. 249, 285 S. W. 2d 184, Opinion Chief Justice Bell,
(See App.8); and The Constitution as Amended in 1948, C. (a) Article 15,
?15, see (App 9).
                                     li
      Constructive fraud, is a community estate liability, Appellant
seeking declaratory judgement and title of homestead and other
properties returned to her, or $475,000.00 monies to her.

        Transmutation of separate property, interspousal transfer,
makes a gift of separate property of donee spouse, written
instrument partitions it. Wife given separate property thru gift,
and husband committed fraud on the community, allowing future
attorney's fees. Not having an attorney that understood estate and
real estate laws has been detrimental to Appellant. Another part of
fraud, Richard Bass assuring no monies for legal to Diana Bass,
therefore, fraud could continue.

        A contract is ambiguous in nature, if a provision of a contract
(property ownership and division) is susceptible to more than one
interpretation. This case would certainly apply this rule.

        Fraud on the community, spouse has no right to manage.

        When Richard Bass obtained Power of Attorney he was allowed
to act as Diana Bass, making him sole management of the community.
This was Fraud on Diana Bass. Jean v. Tyson-Jean, 119 S.W. 3d 1,5 (Tex.
App-Houston (14th District), pet. Denied), Famliy Code-Title !, Chapter
3.Family Code 3.102, (See App. 10).

      Appellee, engaged in fraudulent transfer of assets, and
monies. Diana Bass contested the MSA in motions never signed by
judge. The Honorable Judge violated her constitutional rights
during hearing, transcript of hearing will show judge was demeaning
and embarrassed her regarding her disability. Equal Opportunity law
                                      12
does not allow this in a court of law. Diana Bass has two serious
illnesses and should not be disgraced, because she is on disability. The
Judge possibly exhibited, unknowingly, possible favoritism to other
party.

      Just and right division of community property should be
awarded to each party, and having due regard, for the rights of each
party. Tex. Fam. Code 7.001 (Vernon 2006), (See App.4).
      Appellant not required to Marshall the proof, its response need
only point out evidence that raises a fact issue on the elements,
Hamilton vs. Wilson 249 S.W. 3d, 425, 426, Tex. 2008, (See App. 2).

         Contract is void if it calls for illegal action. Misrepresentation and
embellishment, and just plain fibbing is obfuscation. MSA fraud ad
dishonesty, Milner vs. Milner, 2012, Tex. (The Texas Supreme
Court, March 9, 2012, Cause No. 10-776.). Family Code-Title 1, Chap. 6,
Suit for Dissolution of Marriage, (See App. 11).

           Appellant asking for damages, which should be enacted into
this lawsuit. Where a twenty acre tract was conveyed to spouse prior
and on that date petition filed, husband conveyed interest in resident,
title, interest, claim, etc.. Court was entitled to consider in prior
divorce petition, Statue 7.001, General Rules of Property Division.
Appellant now asserting claims prior to divorce, Barr v. Resolution
 Trust 837 W. 2d 627, 631., Tex. 1992, (See App. 3).
            Richard Bass, signed trust, deeds, joint bank accounts, etc.,
 voluntarily. Selling the properties, breaching contracts, no lack of
 fiduciary responsibility to Diana Bass, spouse and co trustee, was
                                         13
 unconscionable; Appellant was not provided a fair and reasonable of
the selling and disclosure of properties sold, assets sold; Section 4.006,
                      Enforcement of Family Code.

       Conversion to community property methods, a spouse's
separate real property remains separate unless divested by deed, due
process of law, or the working of an estoppel.. Community property, a
presumption should arise that the names of both spouses on the title to
the property changes the character of the property from separate to
community. Community benefit was intended. Payments of a loan
made from joint bank accounts, of property 403/405 S. Graves,
McKinney, Texas, this was so done.

       The Constitution of 1876, states community presumption at
the minimum.     Constructive fraud arises when a spouse unfairly
disposes of the other spouses one-half interest in community property,
burden of proof on disposing spouse to prove fairness of disposition.

         Community funds comingling defy resignation and
identification. A recital states that the property is conveyed to a spouse
as his or her separate property. Privity-a non-grantee is a party to the
transaction if she is a grantor, parole evidence to contract the recital,
and such evidence is admissible.

         Richard Bass agreed to non-judicial against spouse, property
fraud. Both parties had contract on property, violated that contract.
Hearing never addressed this issue, norspousal support whether
marital asset or your separate property. Community acquired by gift,
but otherwise put in trust, is separate property.
                                     14
    Hearing took away my separate and homestead property. Was
illegal transfer of property. District courts cannot take away
separate property. Diana Bass has superior title to the property, and
would request court to return the property, or buyer pay $317,000.00
immediately to Appellant. Hearing illegal, improper, unjust, allowed
theft of properties and monies. Many papers were possibly signed
illegally thru Power of Attorney given to Richard Bass per judges order.
Due to this hearing there was fraudulent transfer of property belonging
to appellant, from spouse to buyer.

    Clear and convincing        evidence is not satisfied when
characterizing the property at issue as separate property which
requires surmise or speculation by the court. Any doubt must be in
favor of community property.

        All property possessed by either spouse during or on dissolution of
marriage is considered to be community, Tex. Fam. Code, Ann 3.003
(a), Vernon 2006, Barnett, (see App. 4).

        Method of tracing-community out first. Smith v. Smith 22. S.W.
3d 140, 146 (Tex.App. Houston (14th District.) 200, no pet.) (See App.
12). Argument during MSA was that tracing needed to be done, no
true.


        Recorded title is community, stating a gift is a transfer of property
made voluntarily and gratiously. Concluding wives acquisition of
trust Income from testamentary trust was by gift or devise). Fam.
3.006, Proportional Ownership of Property by Marital Estates. (See
App. 12).
                                       14
     An attempt by the parties to fix the character of marital property
by means different than the state constitution, and doctrine of
implied exclusion, held the agreement to be void and unenforceable.

      A material misrepresentation by one party to an agreement can
support rescission or repudiation by the other party. Afailure to
disclose material information by one contracting party can lead to the
rescission under what is essentially fraudulent inducement, such as
bank accounts, where monies after properties is located, trust
documents verifying Subtrust, etc., while claiming that was one of
the reasons property (land) was his sole and separate property. In the
case of Boyd v. Boyd the trial court denied enforcement of the
agreement, because if failed to include substantial assets of the parties,
including future earnings, and present income from sell of significant
assets, Boyd v. Boyd, Westlaw, 67 S. W. 3d 398, Court of Appeals of
Texas, Fort Worth, 9See App. 13). When one discloses information, he
has the duty to disclose the whole truth rather than making a partial
disclosure, that conveys a false impression. To date, no information
given where monies are located.
     Personal and business records, especially those signed illegally
thru Power of Attorney, are notto be concealed and family records,
property records, any records of income, debts or other obligations,
local rules of Travis County. Withholding information about substantial
marital assets will not save the MSA from being held unenforceable.
     Ex Parte Hearings are for temporary order requirements include
  nothing about order to give Power of Attorney to a husband that had
 committed serious fraud upon Defendant (Appellant). They are usually
                                     15
used in protective order. The only protection here was to ensure
buyer/developer stole Diana Bass properties that day.
          The sell of the properties had contingencies, based on getting
planning and zoning approval, and particular provisions of the
agreement were illegal and violated public policy. Selling properties
under such conditions, and still not paying any monies to Diana Bass is
theft and fraud of monies and properties.

          The Fort Worth Court of Appeals overturned the trial court's
holding, and the set aside the Final Decree of Divorce as there was no
meeting of the minds at the time of the entry of the MSA In this case
there was definitely no meeting of the minds, nor is there as of this
filing.

      Texas law, setting up a trust and retaining a revisionary interest
means that the donor has not retained a right of possession, because
he has given away as much as he could. Spouse has absolute right to
manage as long as no Fraud in the Community, which this case does
have. Appellee unlawfully sold properties to the exclusion of
Appellant's right. Conversion of the property to as he claims his "sole
 and separate property was intentional, wanton, willful, and without
 justification or excuse and was done with gross indifference.
        Appellant awarded by gift, separate property. If spouse
 acquires by gift, devise, than is spouse separate estate, revenues are
 separarate by virtue of which title is vested.
             Trustee is a fiduciary, a trust, once he has accepted
 appointment, has afiduciary relationship to the beneficiaries of the
                                         16
Trust.   Trustee are subject to the duties imposed by common law,
the duties imposed by Texas Trust Code, and the duties imposed by the
instrument creating the trust, Tex. Trust Code, Ann 113.051 (Vernon
1984), (See App. 4) Suit may be brought as an action for breach of
contract as an action in tort, as an action in equity, or as an action for
declaratory judgement.

        A beneficiary of a trust means that a person has a present or
future interest in a trust, vested or contingent. If more than one
person creates or contributes property to a trust, each person is a
settlor, except to the extent another person has the power to revoke
or withdraw that position.

         "Terms of a trust" means the manifestation of the settlor's
intent regarding the trust provisions as written in the trust instrument
or that may be established by other evidence (deeds, sell of other
 properties, contracts for sale, income taxes, franchise records, joint
 bank accounts).

       Duty of atrustee is to act in good faith, and in accordance with
 the purposed of the trusts and the interest of the beneficiaries. The
 power of the court has to adjust atrustee's compensation in the terms
 of the trust which is unreasonably high or low. The trustee must
 exercise discretionary power in good faith and in accordance with its
 terms and purposes and the interest of the beneficiaries. The terms of
 trust may not deny acourt authority to take such action as necessary in
 the interests of justice, including requiring that atrustee furnish a
  bond, subsection. The trustee remains accountable to the beneficiaries
  for the trustee's actions. Trusts involves common law and principles
                                       17
of equity supplement. A nonjudicial settlement agreement is valid
only to the extent it does not violate a material purpose of the trust,
Non Judicial Settlement Agreements, any interested party may request
the court to determine whether the representation was adequate to
determine whether the agreement contains terms and conditions the
court could have properly approved. Appellant disagrees as to whom
is beneficiary and grantor of Bass Living Trust, and whom violated the
trustagreement (Richard Bass). His attorneys stated numerous items
of the trust, Diana Bass disagreed with, such as ownership, whom
owned the properties, etc.. His attorney stated Richard Bass inherited
properties. Diana Bass also inherited properties, rules of construction
attribute intention to individual donors based on the assumptions of
common intention, also as to the meaning of "heirs" or 'issue" . The Ex
Parte Hearing was also given power to Richard Bass to revoke the trust
without Diana Bass consent. Trust termination requires beneficiaries
approval, not given by Diana Bass.

      Transfer of property to another person as trustee, during
settlor's lifetime, declaration by the owner of the property that the
owner holds identifiable property as trustee (both parties of this case
were trustees, grantors, and beneficiaries).. Atrust is not created until
it receives property, and property interest. Atrust and its terms must
be for the benefit of the beneficiaries.

        The MSA stated Richard Bass to pay "all the taxes", then in the
 divorce settlement, which was not in MSA, stated "no innocent spouse
 relief" may be used, therefore, indicating fraud by Richard Bass. The
 MSA did not include what was separate, community or both, and trust
                                     18
of economic value. Income Tax Laws and Trust are separate from
divorce laws, and the MSA would benefit Richard Bass and not
Appellant, beneficiaries of the trust hold the beneficial interest in the
trust property, Diana Bass was a beneficiary. Trust may be amended
only by joint action of both spouse, this is to preserve the community
character of property transferred to the trust. Joint tenancies in
real estate , each spouse would presumably be treated as having
made an equal contribution because of the right to sever the interest
and convert it into tenancy in common. Trust estate laws are
complicated with many laws affecting. Appellant claims one-half
interest separate or community, and therefore, contesting MSA and
divorce settlement.

       Whenever trustee has comingled the property, the right is so
defeated if the beneficiary can trace to the comingled fund,. If the
 comingling was wrongful, the burden othe trustee to establish which
 property is rightfully this trustee, if the trustee is unable to do so, the
 entire comingling of property is subject to the trust.
    Texas courts have held trusts to a"very high and strict standard of
 conduct which equity demands'. Trustees have duty and loyalty to
 beneficiaries, of good faith, good duty, loyalty, and a fidelity with
 respect to trust.

       There was no partition agreement. Trust did not specify that
 property were separate property.
        Recorded titles conveyed to one or both of the spouses during
  marriage, the conveyances places legal title into the spouses as
                                        19
grantees, and the equitable title is presumed to be in the community.
Deeds were executed, and tracing not necessary due to joint trust bank
account, and comingling of funds.

                            CONCLUSION

    This court should void Mediated Settlement Agreement, Divorce
Settlement, and Ex Parte Hearing. Intentional fraud, property and
monies theft, improper division of community, separate, or both
properties, voids the settlements, and therefore hearing.

    The MSA and first court hearing were "bait and switch" games, a
look "under the hood" of the details in this case shall prove. There is
no reason, nor law that should protect the person and or spouse
committing the fraud, especially with "greed and power" abuse the
theme in every contract, agreement, hearings, and illegally selling of
properties, ignoring the spouse rights, disability, loss of homes
(including homestead and separate property), and no monies for
medical treatments (including past due bills owed, which is
community), nor treatments needed now. Honesty, and good faith, fair
dealings should be the theme of all that takes place in the legal system.
      Attorney's fees in the future should be paid out of Richard Bass
monies. This case can be summed up "as truth vs. lies". Appellant is
the innocent spouse, and Diana Bass hopes the legal system will correct
the injustices. $450,000.00 is requested as declaratory judgment.
Richard Bass using exculpatory clause, did not act in good faith, and will
 not do so in future. Also, Diana Bass request Motion for a lawyer to
 represent me "in court" and in future, probono.
                                    20
      EX Parte Hearing should be dealt with by the courts, with justice
being served, fraud should not be allowed even if was spouse. MSA
should be voided and unenforceable. All community assets to be split
equally, and that means all monies included.



                                 PRAYER

      Based upon the foregoing facts and analysis, Appellant
respectfully requests that this Court:

  1. Reverse the trial court order of Ex Parte Hearing, granting MSA,
      and Power of Attorney to Richard Bass, Appellee.
   2. Declaratory judgement, due to illegal sell of Appellants sole or
      community properties, $450,00.00, to be paid as a lien on future
      final closing of properties, either with this buyer or another. Or
      fifty percent interest in future earnings from properties of sell to
      another buyer.
   3. Medical bills that are due now are to be paid immediately by
      Richard Bass and until closing of properties and Diana Bass paid
      from funds from sell of any properties or any other monies
      $450,000.00 lien to be paid to Appellant on properties, medical
      bills or to be paid by Richard Bass, until time all monies due are
      paid(which could be quite substantial due to serious mold toxicity
      issues.

   4. Appellants future attorney's fees to be paid Richard Bass, to
      prevent further fraud upon Appellant.
   5. Spousal maintenance of $3,500.00 monthly, ( not out of her
      $450,000.00 settlement) until all monies paid to Appellant
      (including disability maintenance); moving expenses to be paid
  now of $10,000.00 not out of settlement, any community bills to
  be paid not out of settlement, chandelier to be packed up and
  sent to Diana Bass immediately, Couch and mower sent to Diana
  Bass immediately, some of the patio furniture, one half of all
  stainless steel shelves in garage, and house, tax records of past
  years to Diana Bass, all taxes to be paid of both parties by Richard
  Bass, and Diana Bass may use innocent spouse relief, if necessary.
  This includes rollback and franchise tax, or any other taxes. Diana
  Bass also may use capital gains tax deduction from sell of her
  properties if necessary.
5. Diana Bass request divorce immediately, with name change to
   Diana Fay Spriggs. Voided MSA agreement. Voided divorce
   settlement, Diana Fay Bass attorney will write divorce papers,
  and after, both parties agree will be sign. Any other issue will
  have to go to Alternative Dispute Resolution. Any further
  property exchanges or sells, or future earnings Diana Bass entitled
  to one-half (including any portion of any and including Vintage
  Place Funds, and or development, or any other development.
7. All copies of anything, anywhere, at anytime signed as Power of
   Attorney by Richard Bass be given to Diana Bass immediately,
   sent certified copies by Fed Ex. And any that was illegal may again
   allow Diana Bass to further pursue litigation, including Gary
   Schnell, and Vintage Place Funds as also contributing to breach of
   contract, lack of fiduciary duty, unfair dealings, property and
   monies theft (this also includes broker).
8. Any further fraud, duress, or coercion in MSA is aserious matter,
                                     21
and all damages should be consider against Richard Bass, as was
intentional malicious intent to deceive, and fraud.

     A statement by the court should be made on what property is
     separate or community, or both during this marriage.


                  Respectfully submitted;-^           -   C?    \o«^n


                   By Diana Fay Bass, Appellant (Pro SE Litigant)
                           db424fzfz(5)|ive.com




                          CERTIFICATE OF SERVICE

   THIS IS TO CERTIFY THAT ATRUE AND CORRECT COPY OF THE ABOVE
   AD FOREGOING DOCUMENTS AND EXHIBITS HAS BEEN SERVED VIA


   DIANA FAY BASS, APPELLANT
               APPENDIX FOR APPELLANT DIANA BASS

APP   1       12 A TEX. JUR. 3D COMPROMISE AND SETTLEMENT

APP 2         HAMILTON V.WILSON, 249 S.W. 3D 425, 426

APP 3          BARR V RESOLUTION TRUST 837, W. 2D, 627, 623, 631 (TEX.

              1992


APP 4          V.T.C.A., FAMILY CODE 3.001, SEPARATE PROPERTY

APP 5          OPINION BY JUSTICE MARTIN RICHER, STATE BANK & TRUST

              212 S.W. 3D 813, 814

APP 6          COURT OF APPEALS OF TEXAS EL PASO, MORSE V.MORSE,

               NO. 08-09-00046-CV


APP   7        112.001-METHODS OF CREATING A TRUST-WESTLAW-

                CONSTRUCTIVE TRUSTS

APP       8     OPINION CHIEF JUSTICE BELL, 323 HAMBLEN V. HAMILTON

                PREELY WERLIEN, HOUSTON, FOR APPELLANT

APP       9     CHAP 1, THE TEXAS MARITAL PROPERTY SYSTEM, C(A),

                ARTICLE 16

APP 10          FAMILY CODE-TITLE 1, CHAP. 3 , 3.101-3102 JEAN V.

                JEAN TYSON, 118 S.W. 3D 1.5 (TEX. APP) HOUSTON (14th )
                 DISTRICT, 2003, PET DENIED

                                      A
            APPENDIX FOR APPELLANT DIANA BASS




APP   11    MILNER V. MILNER, 36, S.W. 3D 615, 618 (TEXAS 2012)

            APPENDIX PAGE 2, APPELLANT DIANA BASS

APP 11      (TEXAS 2012) FAMILY ORDER TITLE 1 CHAP 6, SUIT FOR

             DISSOLUTION OF MARRIAGE


APP   12     FAMILY CODE 3.006. PROPORTIONAL OWNERSHIP OF

             MARITAL ESTATES

APP   13     67. S.W. 3D 398, COURT OF APPEALS OF TEXAS,

             BOYD V. BOYD

APP    14    LOCAL RULES OF TRAVIS COUNTY
§ 18.Avoidance of compromise and settlement - Westlaw

Westlaw Next"
§ 18.Avoidance of compromise and settlement
Mary Ellen West,J.D   Texas Jurisprudence Third Edition f/ipprcx. 3 pages)                                         SELECTED TOPICS

                                       12A Tex. Jur. 3d Compromise and Settlement § 18                             Compromise and Settlement

                                                                                                                    Settlement of Litigation and Compromise of
                                                Texas Jurisprudence, Third Edition                                  Disputed Cialms
                                                 Database updated October 2015
                                                   Compromise and Settlement                                       Secondary Sources

                                                                                                                   Validity and effect of "Mary Carter" or
                                                       Mary Ellen West, J D
                                                                                                                   similar agreement setting maximum
                                                                                                                   liability of one cotortfeasor and
                                                            III. Avoidance                                         providing for reduction or
                                                                                                                   extinguishment thereof relative to
                                                                                                                   recovery against nonagreeing
                                        Topic Summary References Correlation Table
                                                                                                                   cotortfeasor


                                                                                                                   22 A L R.5th 483 (Originally published in
                                   § 18. Avoidance of compromise and settlement                                    1994)
                                                                                                                    This annotation collects and discusses the
                                                   West's Key Number Digest                                        cases addressing the validity and effect of
                                                                                                                   "Mary Carter" or similar agreements between
                                                                                                                   an injured plaintiff and one or more, but not
              West's Key Number Digest, Compromise and Settlement «= 6(3)                                          all, cotortfeasor defend. .

                                                            A.L.R. Library                                         Power of city, town, or county or their
                                                                                                                   officials to compromise claim
               Modern status of rules as to avoidance of release of personal injury claim on ground                15 A.L R 2d 1359 (Originally published in
              of mistake as to nature and extent of injuries, 13 A.L.R.4th 686                                     1951)

              Avoidance of lump-sum settlement or release of bastardy claim on grounds of fraud,                    ..(Supplementing annotation in 105 A.L R
                                                                                                                   170 ) This annotation deals with the power of
              mistake, or duress, 84 A.L.R.Zd 593                                                                  certain governmental subdivisions, namely,
              Right of action for fraud, duress, or the like, causing instant plaintiff to release or              cities, towns, and counties or their officials, to
                                                                                                                   compromise a claim in ..
              compromise a cause of action against third person, 58 A.L.R.2d 500
               Discretion of court to vacate its approval of settlement or release in respect of                   Settling the Case—Plaintiff
               personal injury to minor, 8 A.L.R,2d 460                                                            4 Am Jur. Trials 289 (Originally published in
                                                                                                                   1966)
                                                                 Forms                                             ..This article deals with settlement
                                                                                                                   techniques relating to personal injury, death,
               Texas Forms Legal and Business §§ 16:22 to 16:24 (Authorization to settle claim)                    and property damage cases. It omits other
                                                                                                                   related matters, such as obtaining information
               Texas Jur. Pleading and Practice Forms 2d § 66:28 (Answer—Affirmative                               about the case, preparing for..
               defense—Undue influence invalidating settlement agreement)
                                                                                                                   See More Secondary Sources
               Texas Jur. Pleading and Practice Forms 2d § 66:29 (Answer—Affirmative
               defense—Duress inducing agreement by threats to contest will on false grounds)
                                                                                                                   JOINT APPENDIX, VOL. I
               Fraud, undue influence, accident, and mistake are grounds on which a compromise
                                                                                                                   2002 WL 33933818
               settlement will be set aside by courts.1 Failure of consideration is also sufficient to vitiate a
                                                                                                                   State Farm Mutual Automobile Insurance
               compromise agreement 2                                                                              Company v Campbell
                                                                                                                   Supreme Court of the United States
                                                                                                                   August 19. 2002
               A compromise agreement will not be set aside merely on a showing that it is harsh or
                                                                                                                    ..WILLIAM B. BOHLING Plaintiff- CURTIS
               unequal in its operation'• or that the value of the property received bythe complaining party        B CAMPBELL Represented by: W SCOTT
               is disproportionate to that which he or she might legally have recovered.4 Itis also                 BARRETT Represented by ROGER P
                                                                                                                    CHRISTENSEN Represented by: L RICH
               immaterial if the compromise agreement turns outto be advantageous to the creditor.'- A              HUMPHERYS Defendant - STATE FARM
               settlement agreement is properly enforced, even though the defendant makes a unilateral              MUTUAL AUTOMOBILE Repres..

               mistake in determiningthe amount of benefits to whichthe plaintiff is entitled; a defendant is       Brief of Plaintiffs - Appellees
               not allowed to repudiate a settlement agreement after discoverythat the plaintiff is entitledto
                                                                                                                    2015 WL 694468
               a smaller sum than that allowed in the compromise.6                                                  In re: DEEPWATER HORIZON. LAKE
                                                                                                                    EUGENIE LAND & DEVELOPMENT,
               Defenses that would have been available in an action on the disputed claim are not available         INCORPORATED; Bon Secour Fisheries
                                                                                                                    Incorporated; Fort Morgan Realty,
               to avoid liability on the compromise and settlementagreement '                                       Incorporated; LFBP 1, L L.C., doing business
                                                                                                                    as GW Fins; Panama City Beach Dolphin
                                                                                                                    Tours & More, L L.C.; Zekes Charter Fleet.
                 Footnotes                                                                                          LLC; William Sellers; Kathleen Irwin,
                                                                                                                    Ronald Lundy, Corliss Gallo; John Tesvich,
                                                                                                                    Michael Guidry, on behalf of themselves and
                               Hines v Massachusetts Mut. Life Ins Co., 174 S.W.2d 94 (Tex Civ App. Fort            all others similarly situated, Henry Hutto.
                               Worth 1943); Ross v. Seip. 154 S W.2d958 (Tex Civ. App. Texarkana 1941),             Brad Friloux, Jerry J Kee,
                                                                                                                    United States Court of Appeals, Fifth Circuit
                               writrefused; Davenportv. Shepherd, 197 SW 729 (Tex Civ App Beaumont                  February 09, 2015
                               1917), writ refused, (Feb 6, 1918)                                                     FN2 ROA2421 [Settlement Agreement,
                                                                                                                    p 2] In addition to settling the private suits,
                               Economy Furniture. Inc v Jirasek, 345 S W.2d 951 (Tex Civ App Austin                 BP pled guiltyto numerous criminal charges
                                                                                                                    arising from the oil spill eleven felony counts
                               1961), writ refused n.r.e., (Oct. 3, 1961).                                          of seaman manslaughter .

                               Davenport v Shepherd, 197 S W. 729 (Tex Civ App Beaumont 1917), writ                 Joint Appendix

                                refused, (Feb. 6, 1918)                                                             1998 WL 34082180
                                                                                                                    CALIFORNIA PUBLIC EMPLOYEES'
                                                                                                                                                      ^tf
htt™-//a next west1awxom/Link/Document/FullText?findTvne=... 12/17/2015
Supreme Court of Texas.
249 S.W.3d 425 (Tex. 2008)




a HAMILTON V.WILSON


NADINE HAMILTON, NEE NADINE LAMBERT, PETITIONER, V. SELMA P. WILSON, M.D.,
RESPONDENT.        •   NO. 07-0164.   -SUPREME COURT OF TEXAS.            •   MARCH 28, 2008.
REHEARING DENIED MAY 2, 2008. • APPEAL FROM THE 237TH DISTRICT COURT, LUBBOCK

COUNTY, SAM MEDINA, J.




Fred Bowers, Forrest Bowers, Bowers Law Firm, Lubbock, TX, for Petitioner.

Jim Hund, Linda Ruth St. Clair Russell, Hund Harriger, LLP, Lubbock, TX, for Respondent.



PER CURIAM.


The trial court granted a provider's no-evidence summary judgment motion in at health care
liability suit, and the court of appeals affirmed. Because genuine issues of material fact preclude
summary judgment, we reverse the court of appeals' judgment and remand this case to the trial
 court for further proceedings.

 On September 16,2003, eighty-three-year-old Nadine Hamilton was admitted to Covenant Lakeside
 medical center in Lubbock for back surgery. Prior to the procedure, anesthesiologist Dr. Selma
 Wilson was summoned to intubate Hamilton and administer general anesthesia. Dr. Wilson
 attempted the intubation with a 75mm endotracheal tube, encountered resistance, and then ^
' inserted the tube i-2cm farther. When that tube did not reach the depth she expected, she removed
it and successfully inserted one that was 7.0mm in diameter. After the surgery, a recovery room
nurse extubated Hamilton and suctioned her throat. Hamilton later complained of chest pain, and
x-rays indicated that air was entering Hamilton's chest cavity. It was thendiscovered that Hamilton
had *426 suffered a tear in her esophagus. That night, Hamilton was transferred to another hospital
where she successfully underwent emergency corrective surgery by Dr. Donald Robertson, a
thoracic surgeon. Hamilton filed a health care liability claim against Dr. Wilson, alleging that she
negligently tore Hamilton's esophagus during intubation by forcing the endotracheal tube into her
esophagus after encountering resistance.

 Dr. Wilson moved for summary judgment, arguing that there was no evidence that she was
 negligent or that she caused the esophageal tear. Hamilton responded with portions of the
 depositions of the designated testifying experts (Dr. Robert Finnegan on behalf of Hamilton, Dr.
 Byron Brown for Dr. Wilson), her medical records, and Dr. Wilson's own deposition. Dr. Finnegan
 testified that the intubation probably caused the tear in Hamilton's esophagus, and Dr. Wilson and
 Dr. Brown admitted this was possible. The trial court granted the motion, and the court ofappeals
 affirmed. 223 S.W.3d 535 (/case/hamilton-v-wilson-i) . Hamilton argues that the court ofappeals
 erred in concluding that there was no evidence that Dr. Wilson negligently tore Hamilton's
 esophagus. We agree.

 In a no-evidence summary judgment motion, the movant contends that there is no evidence ofone
 or more essential elements ofthe claims for which the non-movant would bear the burden ofproof
 at trial. TEX.R. CIV. P. i66a(i). The trial court must grant the motion unless the respondent
 produces summaryjudgment evidence raising agenuine issue of material fact. Id. The respondent is
 "not required to marshal its proof; its response need only point out evidence that raises afact issue
 on the challenged elements." TEX.R. CIV. P. i66a(i) cmt. - 1997- We review a no-evidence
 summary judgment for evidence that would enable reasonable and fair-minded jurors to differ in
 their conclusions. City ofKeller v. Wilson, 168 S.W3d 802, 822 (/case/city-of-keller-v-wilson-2#p822)
     (Tex. 2005).




                                                                                            «f>P
In applying this standard, the court of appeals noted that, to recover for medical malpractice, the
complainant must prove: 1) the physician had a duty to act according to a certain standard, 2) she
breached that standard, and 3) the breachproximately caused the complainant to sustaininjury. 223
S.W.3d at 537 (/case/hamilton-v-wilson-i#p537)   ;see IHS Cedars Treatment Ctr. v. Mason, 143 S.W.3d
794, 798 (/case/ihs-cedars-treatment-ctr-of-desoto-v-mason#p798)        (Tex. 2004). After reviewing
the acts allegedly performed by Wilson, the court of appeals concluded that the mere possibility
and "belief by Dr. Finnegan that Wilson inserted an endotracheal tube into Lambert's esophagus
was "not evidence that proves the questioned fact." 223 S.W.3d at 538 (/case/hamilton-v-wilson-
i#P538)   •

However, Hamilton was not required to prove the facts as she alleged them. Rather, she was only
required to provide evidence that would enable reasonable and fair-minded jurors to differ in their
conclusions. After examining the evidence on each ofthe required elements, we conclude that she
met this burden.

In his expert report, Dr. Finnegan set out the general standard of care for an anesthesiologist
placing an endotracheal tube. She must: a) establish and maintain control of the patient's airway
during general anesthesia; b) establish this control in a safe manner; c) promptly recognize and
document injuries and complications related to airway management; and d) promptly seek
appropriate treatment, ifneeded, for such injuries and complications.
Hamilton contends that certain diagnostic tests (breath tests, C02 tests, and use ofa pressure bag)
should have been used to determine if the 7.5mm tube was in the esophagus and not the trachea
before Dr. Wilson attempted to pass the tube after ^7 encountering atight fit. Dr. Finnegan noted
that the tests take only ten to fifteen seconds and suggested that it was proper to use these
 measures to determine if the tube is in the airway and not the esophagus. Dr. Wilson's expert, Dr.
 Brown, disputed that breath tests should be used in this manner. But Dr. Finnegan noted that
 factors like the "[a]bsence of breath sounds, absence of C02 trace, [and] watching the stomach
 move instead of the chest wall" were measures he had used previously to determine ifatube was in
 the wrong location in previous intubations. Indeed, ultimately Dr. Wilson did use breath sounds to
 verify the placement ofthe second, smaller 7.0mm tube in Hamilton's trachea.
The available testimony provides some evidence of a breach of the applicable standard of care. Dr.
Finnegan testified that Dr. Wilson violated the standard of care by improperly calculating the tube's
location. When asked in what respect Dr. Wilson breached the standard of care, Dr. Finnegan
responded: "pushing the 7.5 endotracheal tube down into the esophagus."

Dr. Wilson testified that she inserted the tube in farther after encountering resistance. And Dr.
Finnegan testified that Dr. Wilson failed to ascertain whether the tube was positionedproperly. Dr.
Finnegan also concluded that Dr. Wilson's manipulation of the 7.5mm tube caused Hamilton's
esophageal tear, and Dr. Wilson and Dr. Brown conceded that was possible. The implication is that
breath tests, rather than feel alone, should have been performed to ensure proper placement in the
trachea before Dr. Wilson pushed the 7.5mm tube in farther.

We have held that conclusory statements, evenfrom experts, are not sufficient to support or defeat
summary judgment. Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (/case/wadewitz-v-montgomery-
i#p466)         (Tex. 1997); see also Burrow v. Arce, 997 S.W.2d 229, 235 (/case/burrow-v-arce#p235)
(Tex. 1999) (holding that "it is the basis of the witness's opinion, and not the witness's
qualificatiof^cMrJa^                                  sffi«KsfflB amatter of law; aclaim will not
stSicWrfafiOn the mere ipse dixit of acredentialed witness."). Dr. Finnegan's testimony, however,
was notbased on mere possibilities, speculation, or surmise. His opinion that the intubation caused
the f^y^ri^                                                                 the 7.5mm tube would have
be^n when it wag pushed in by Dr. Wilson; 2) his review ofthe medical records indicating that the
  Select your interests
tear was "probably related tointubation at the time ofsurgery;" and 3) his impression that the "tight
fit" encountered byDr. Wilson was the cricnnharyngeal ring ofthe esophagi •* Further, although Dr.
Wil i      " *ed her alflA^^ieory for|HfiNftar occurMpJ^SI stoning of Hamilton's
         ktubatiojBMB testimoBBHBi Pushed l^lWf                                   in 1-2Cm farther even
^nSiSSSSST« ""ti^Iifet:sSld SUPP°rtcM^an'S C°&!»na<
          Law                                                         Law
The basis for Dr. Finnegan's testimony stands in contrast to the attorney          Burrow v. Arce who,
                      lalpral^Wled onlyJH||Htory affi<HHHir innocence to defeat


    Consumer
 conji^SS&ith Dr. CoQvriqht
                  Wilson's Law
                            testimonyCivilandProcedure ,. . Securities Law
                                                the medical                       .
                                                            records, crea ; a genuine issue of(
material fact. As a result, we conclude that reasonable and impartial jurors could differ in, their
C(j)nGlusi(^^s^tejndi^Ga^se^ tfie tear in Hamilton's esophagus and that summary judgment was
therefore improper; Hamilton produced evidence sufficient to raise genuine issues of material *4is ^\
fact on each of the elements she would be required to prove at trial.

We therefore grant the petition for review and, without hearing argument, reverse the court of
appeals' judgment and remand this case to the trial court for further proceedings consistent with
this opinion. TEX.R.APP. P. 59.1 and 60.2(d).




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                                                                                                    o^X
BARR v. RESOLUTION TRUST CORP.
No. D-2082.                                                                                                  Email I Print I Comments (0)


837 S.W.2d 627 (1992)


George]. BARR, Petitioner, v. RESOLUTION TRUST CORP., exrel. SUNBELT FEDERAL SAVINGS, Respondent.

Supreme Court of Texas.

September 23,1992.



 View Case        Cited Cases       Citing Case

AlbertB. Greco, jr., BarbaraL. Wohkabe, Dallas, for petitioner.

JackN. Ross, II, Dallas, for respondent.
     ...                              ."»..       -   .....   .




OPINION


GONZALEZ, Justice.

The issue in this case is whether a claimby SunbeltFederalSavings against George Barrbased on a partnership promissory note and
guarantee agreement is barred bythe doctrine ofresjudicata. The trial court granted Barr's motion for summary judgment based on
res judicata. The court ofappeals, with one Justice dissenting, reversed the trial court's judgment, holding that the doctrine did not
apply. &2& S.W.2d 600. Wereverse the judgment of the court
                                                                                                                              [837 S.W.Id 628]

of appeals and affirm the trial court's judgment.
In 1985, Barr and Ron Knott were partners inthe Bar III Venture. On March 14,1985 Bar III executed a promissory note for $369,750 in
favor ofSunbelt's predecessor in interest. The same day, Barr and Knott executed a personal guarantee ofthe note. InMarch 1987, Bar
III defaulted on the note.

On May 24, 1988, Sunbelt filed two separate lawsuits on the note. In one suit, Sunbelt alleged liability against the partnership as
maker of the note and against Knott as guarantor of the note. In the other, Sunbelt alleged that Barr was personally liable because of
his unconditional guarantee of the note.

Barr moved for summary judgment inthe latter lawsuit on the grounds that the terms of the guaranty agreement were too uncertain
to be enforceable. Barr argued thatthe agreement, a standard form containing a number of options to choose and blanks tocomplete,
was not sufficiently completed to ascertain his liability. The trial court granted the motion, and rendered a final take-nothing
judgment. Sunbelt did not appeal the judgment.
Thereafter, Sunbelt amended its pleadings in the suit against the partnership and Knott by adding Barr as adefendant, alleging that
his status as a partner created liability for the note. Barr's answer asserted res judicata, among other defenses.
Barr moved for summary judgment on the grounds that the take-nothing judgment in the first lawsuit barred litigation of the claims
against him in the second lawsuit. Sunbelt also moved for summary judgment, requesting ajudgment on the note. The trial court
granted Barr's motion and denied Sunbelt's. This interlocutory judgment became final when the court rendered judgment for Sunbelt
 onitsclaims against thepartnership and Knott for thefull amount ofthenote.
 Sunbelt appealed, arguing that the trial court should have granted its summary judgment instead of Barr's. The court of appeals, with
 one justice dissenting, determined that the first suit did not bar the second. However, the court concluded that questions of fact
 prevented rendition in Sunbelt's favor, and thus remanded the case to the trial court. Both Barr and Sunbelt sought review in our
 court.


 Much of the difficulty associated with the doctrine of res judicata is due to the confusion of several related theories. Broadly speaking,
 res judicata is the generic term for agroup of related concepts concerning the conclusive effects given final judgments. Puga v. Donna
 Fruit Co fru SW.2d 677. 679 (Tex.1982). Within this general doctrine, there are two principal categories: (1) claim preclusion (also
 known as res judicata); and (2) issue preclusion (also known as collateral estoppel).5 Res judicata, or claims preclusion, prevents the
 relitigation of aclaim or cause of action that has been finally adjudicated, as well as related matters that, with the use of diligence,
 should have been litigated in the prior suit. Gratia v. RC Cola-7-Up Bottling Co., 667 S.W.2d 517, 519 (Tex.1984); Bonniwell v. Beech
                                                                                                                          O0A 3
Aircraft Corp., 663 S.W.2d 816, 818 (Tex.1984). Issuepreclusion, or collateral estoppel, prevents relitigation of particularissuesalready
resolved in a prior suit. 2 Bonniwell, 663
                                                                                                                               [837S.W.21I629I

S.W.2d at 818. Barr's argument, that Sunbelt should have brought all theories of liability in one suit, is the defense of claim
preclusion.

Claim preclusion prevents splitting a cause of action. Jeanes v. Henderson, 688 S.W.2d 100. 103 (Tex.1985). The policies behind the
doctrine reflect the need to bring all litigation to an end, prevent vexatious litigation, maintain stability of court decisions, promote
judicial economy, and prevent double recovery. Zollie Steakley &Weldon U. Howell, Jr., Ruminations on Res Judicata, 28 Sw.LJ. 355,
358-59 (1974).

The question that has given courts the most difficulty is determining what claims should have been litigated in the prior suit. Early
on, this Court held that res judicata "is not only final as to the matter actually determined, but as to every other matter which the
parties might litigate in the cause, and which they might have decided." Foster v. Wells, 4 Tex. 101,104 (1849)- We have never
repudiated this definition of claim preclusion, and it appears in some form in most definitions of res judicata. See, e.g., Jeanes v.
Henderson, 688 S.W.2d 100.103 (Tex.1985) (res judicata bars not only what was actually litigated but also claims thatcould have been
litigated inthe original cause ofaction). Iftaken literally, this definition ofthe rule would require thatall disputes existing between
parties be joined, regardless of whether the disputes have anything in common. This court has resorted to awide variety of theories
and tests to give res judicata a more restrictive application. *See generally 5 William V. Dorsaneo III, Texas Litigation Guide §
I3i.06[4l[b][ii] (1991); Steakley, 28 Sw.LJ. 355-

Even if only cases from more recent times are considered, our holdings with respect to res judicata are difficult to reconcile. In Griffin
v. Holiday Inns ofAmerica, 406 S.W.2d 53s (Tex.1973) the court determined that a take-nothing judgment in a suit to recover in
contract for services and materials did not preclude a subsequent suit to be compensated in quantum meruit. The court rejected the
view that a judgment as to one claim is res judicata of all claims or causes of action arising out of the same transaction, and stated
that, "[a]s ageneral rule ajudgment on the merits in asuit on one cause of action is not conclusive of asubsequent suit on adifferent
cause of action except as to issues of fact actually litigated and determined in the first suit." Id. at 538. The court acknowledged,
however, that alternative theories of recovery for the same "claim" may not be brought in different lawsuits. *
                                                                                                                               l837S.W.2d630]

Thus, in Griffin, the court determined that a "cause of action" for res judicata purposes is something more than the set of facts
necessary to establish a single theory of recovery but not necessarily the entire transaction between the parties. Id. at 537"38. The
court gave no guidance on the question of how to make this fine distinction between a mere alternative theory of recovery and a
different cause of action. Every theory of recovery has its unique elements of proof. As the Griffin case illustrates, only slight
variations of the facts to support different theories of the same incident can result in acourt finding different causes of action, thus
thwarting the purposes ofres judicata. SeeSteakley, 28Sw.LJ. at 361-62.
The court took an entirely different approach in Westinghouse Credit Corp. v. Kownslar, 406 S.W.2d 531 (Tex.1973). In that case
Kownslar had guaranteed all promissory notes by the maker. The issue was whether res judicata required that Westinghouse bring in
one suit its claims for all notes guaranteed by Kownslar that were then in default. Rather than decide whether there was more than
one cause of action involved, the court decided the case solely on whether itappeared that the policies of res judicata required such a
 result.5

This pure policy approach as exemplified by Westinghouse makes it virtually impossible to determine in advance what policy will win
out in any given case. Without any objective standards, each case is decided ad hoc, and therefore the doctrine is "inherently
unpredictable" and "affords little basis for consistency and formulation of precedent." Steakley, 28 Sw.LJ. at 362-63. Westinghouse is
 the onlycase we havedecided solely on policy grounds.
 Then in Texas Water Rights Comm. v. Crow Iron Works, 582 S.W.2d 768 (Tex. 1979), the court shifted the focus from the cause of
 action to the subject matter of the litigation. The question was whether amajor lawsuit instigated to sort out water rights to the lower
 Rio Grande river precluded asubsequent suit based on the claim that during the pendency of that suit the plaintiff had purchased
 additional rights. The court concluded that the subsequent claim was barred, noting that:
     The scope ofres judicata is not limited to matters actually litigated; the judgment in the first suitprecludes asecond action by
     the parties and theirprivies not only on matters actuallylitigated, but also on causes ofaction or defenses which arise out ofthe
    same subject matter and which might have been litigated in the first suit.
 Id at 771-72 (emphasis added). Accord, Gratia, 667 S.W.2d at 519. Thus this definition is not consistent with earlier formulations of
 the rule, such as in Griffin, that only issues related to asingle cause of action are barred in asubsequent suit. While we did not
 expressly overrule the Griffin test in either CrowIron Works or Gratia we do so now.
 Adetermination of what constitutes the subject matter of asuit necessarily requires an examination of the factual basis of the claim
  or claims in the prior litigation. It requires an analysis of the factual matters that make up the gist of the complaint, without regard to
  the form of action. Any cause of action which arises out of those same facts should, if practicable, be litigated in the same lawsuit.
  Gratia, 667 S.W.2d at 519; Crow Iron Works, 582 S.W.2d at 772-
The definition of res judicata in Gratia and Crow Iron Works is substantially similar to the rule of compulsory counterclaims embodied
in the rules of civil procedure. A party defending a claim must bring as a counterclaim any claim that "arises out of the transaction or
occurrence that is the subject matter of the opposing party's claim...." TEX.R.CIV.P. 97.

                                                                                                                                          [837 S.W.2d 631]

The Restatement of Judgments also takes the transactional approach to claims preclusion. It provides that a final judgment on an
action extinguishes the right to bring suit on the transaction, or series of connected transactions, out of which the action arose.
Restatement of Judgments § 24(1). A "transaction" under the Restatement is not equivalent to a sequence of events, however; the
determination is to be made pragmatically, "giving weight to such considerations as whether the facts are related in time, space,
origin, ormotivation, whether they form a convenient trial unit, and whether their treatment asa trial unit conforms tothe parties'
expectations or businessunderstanding or usage." 6Id. § 24(2).
We conclude that the transactional approach to claims preclusion of the Restatement effectuates the policy of res judicata with no
more hardship than encountered under rule 97(a) of the rules of civil procedure. Modern rules of procedure obviate the need to give
parties two bites at the apple, aswas done in Griffin, to ensure that a claim receives fulladjudication. Discovery should put a claimant
on notice ofany need for alternative pleading. Moreover, if success on one theory becomes doubtful because of developments during
trial, a party is free to seek a trial amendment.

In the case nowbefore us, there is novalid reason to subject Barr to two differentlawsuits. In the suit broughtpreviously againstBarr,
the bank alleged that he executed the guarantee on the same day and as part of the "same transaction" as the promissory note. In
both suits Sunbelt seeks to hold Barr primarily liable for payment of the note and seeks the same amount of damages. Both suits
require proof establishing the notes of the partnership, that the notes are due, and that the partnership has defaulted. The only
factual allegation that Sunbelt pleaded in the second suit thatwas notin thefirst is that Barr isa general partner ofBar III Venture.
It is clear that in this case the execution of the partnership note and Barr's guarantee of it were related in time and space and
motivation, and the parties considered it as a single transaction. The issues of both claims form a convenient trial unit, whereas
separate lawsuits would require significant duplication of effort of the court and the parties involved. With due diligence, the claim
that Barr was liablebecause he is a partner could havebeen joined in the suit on his guarantee of the partnership note.
We reaffirm the "transactional" approach tores judicata. Asubsequent suit will bebarred ifit arises out ofthe same subject matter of
aprevious suit and which through the exercise of diligence, could have been litigated in a prior suit. For these reasons, the judgment
of the courtof appeals is reversedand that of the trial court is affirmed.

FootNotes


1. Res judicata may be further categorized into merger and bar, because the doctrine has different applications depending on which party is
successful in the prior suit. If the party asserting aclaim prevails, the cause of action is merged into the judgment, and the cause of action as such
ceases to exist. Jeanes v. Henderson, 688 S.W.20 100.103 (Tex. 1985). Ifthe party defending aclaim prevails in the prior suit, the judgment acts as a
bar to matters which could have been litigated in the original suit. id.

                                                                                  reals' holding that "res judicata does not preclude relitigation of
                                                                                  lion of those issues was essential to the judgment in the first suit."
                                                                                  1982), which is entitled "Issue Preclusion—General Rule", i.e.,
                                                                 LEAGLE           aagein the case cited by the court, Faourv. Faour, 762S.W.2d36i


                                                                                  without elaboration that res judicata requires an "identity of
                                                                                  i of Cities for Affordable Utility Rates v. Public Utilities
                                                                                  V.2d 602. 606 (Tex. 1986); Bonniwell v. Beech Aircraft Corp.,
                                                                                   , then there is no basis for precluding issuesthat shouldhave
                                                                                   >etween claim preclusion and issue preclusion. See Flores v.



^^V ^^^B ^B*^^^^B Jfl| " ||f*                                                       ing the grievance and wrong complained of, must be identical in
^^•j j^^H ^M I ft ^H llll,, ^M&                                                    ;riet-93 Tex. 458, 56 S.W. 330,330 (1900), (all matters that could
^B^B^^B^BT ^^^L^L^&W ^fEjggttglra:                                                 ed in asucceeding suit); Freeman v. McAninch, 87 Tex. 132, 27 S.W.
^B^BjBBBr              ^^^^HB^                  ^ilippnr                           ;ame "subject matter" of the suit); Moore v. Snowball, 98 Tex. 16,
 ur^^iu q;u4; iuiuuS.^ uul i„ .uu.^im) uiuuuu uum piuui 01 Lquitable title so as to be different "cause of action" for res judicata
 nmZesyOgletreev. Crates, ^S.W.2dA3i. 436 (Tex. 1963) (while suit to modify adivorce decree and suit to set it aside for taud are technically
 different causes of action, they are the same "broad cause of action," and public policy requires all complaints concerning cusTScry could and should
 have been brought in the same suit).

 4The court did not attempt to apply any test for res judicata to the facts in Griffm. Ultimately, the Court based its decision on stare decisis,
 because other courts had held that quantum meru.t is not barred by ajudgment on the contract. Griffin, 496 S.W.2d at 538. The court did so without
 discussion ofthe reasoning inthecases upon which it relied.                                                                                            "**
                                                                                                                                          frfP
5. The court announced a two-step analysis. First the court looked to see if stare decisis decided the case, and determined that there was no
controlling case. Second, the court looked to see "whether the factual situa tion presented is such that the purposes of the doctrine of merger shall
be frustrated absent enforcement of the bar." 496 S.W.2d at 532.

6. In Jeanes v, Henderson, 688 S.W.2dloo. 103 (Tex.1985],we cited sectior 24(2) of the Restatement as authority for the definition of claims
preclusion. We did not clearly adopt the restatement in that case, howeve r.




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§ ;3.001. Separate Property - Westlaw                                                                                                                   29


WestlawNext"
§ 3.001. Separate Property
Vernon's Texas Statutes and Codes Annotated     Family Code   (Appmx 2 pages)                                  NOTES OF DECISIONS (1520)
             | 1 "]ota                                                                                         Validity
                                                                                                               In general
                Vernon's Texas Statutes and Codes Annotated                                                    Conflict of laws

                   Family Code (Refs & Annos)                                                                  Federal regulation, conflict of laws

                      Title i. The Marriage Relationship (Refs &Annos)                                         Contracts, conflict of laws

                         Subtitle B. Property Rights and Liabilities                                           Personal injury recoveries, conflict of laws
                                                                                                               Personal property
                                 Chapter 3. Marital Property Rights and liabilities (Refs &Annus)
                                                                                                               Real property
                                    Subchapter A. General Rules for Separate and Community Properly (Refs &    Successive communities
                              Annos)                                                                           Children, successive communities
                                                                                                               Determining character of property
                                                     V.T.C.A., Family Code § 3.001                             Time generally, determining character of
                                                                                                               property
                                                                                                               Acquisition, determining character of
                                                  § 3.001. Separate Property                                   property
                                                                                                               Nature of separate property, determining
                                                                Currentness                                    character of property
                                                                                                               Nature of community property,
                                                                                                               determining character of property
               A spouse's separate property consists of:                                                       Intent, determining character of property
                                                                                                               Consideration, determining character of
                  (1) the property owned or claimed by the spouse before marriage;                             property
                                                                                                               Proportionate interest, determining
                  (2) the property acquired by the spouse during marriage by gift, devise, or descent; and     character of property
                                                                                                               increase in vaiue, determining character
                  (3) the recovery for personal injuries sustained by the spouse during marriage, except any   of property
                  recovery for loss of earning capacity during marriage.                                       Intentions of parties, determining
                                                                                                               character of property

               Credits                                                                                         Premarital agreements, determining
                                                                                                               character of property
               Added by Acts 1997, 75th Leg , ch. 7, § 1, eff. April 17, 1997.
                                                                                                               Inception-of-title rule, generally
                                                                                                               Changing character of property
               Editors' Notes
                                                                                                               Tracing and identification, changing
                                                                                                               character of property
                                       TEXAS ANNOTATED CODE SERIES REFERENCES
                                                                                                               Agreements, changing character of
                                                                                                               property
               Gifts between spouses, Sampson &Tindall's Texas Family Code, Family § 3.005.
                                                                                                               Commingled property
               Recordation of separate property, Sampson &Tindall's Texas Family Code, Family §
                                                                                                               Devise or descent, changing character of
               3.004.                                                                                          property
                                                                                                                Exchanges
                                                       RESEARCH REFERENCES                                     Tenancy in common, generally
                                                                                                                Fraud
                                                               Encyclopedias
                                                                                                                Gifts

                37 Am. Jur Proof of Facts 2d 379, Transmutation of Separate Property Into Community             Tracing separate property, commingled
                                                                                                                property
                Property.                                                                                       Identification of separate property,
                39 Am Jur. Proof of Facts 2d 373, Gift of Corporate Stock.                                      commingled property

                TX Jur. 3d Family Law § 133, Property Acquired During Marriage by Gift.                         Consideration, gifts
                                                                                                                Spouse, gifts
                                                      Treatises and Practice Aids                               Findings, gifts
                                                                                                                inherited property
                Texas   Family Law Service § 17:2, Separate            Property.
                                                                                                                Trusts
                Texas   Family Law Service § 19:7, Separate            Property.                                Inter vivos trusts
                Texas   Family Law Service § 20:9, Separate            Property.                                Constructive trusts
                Texas   Family Law Service § 21:2, Separate            Property.                                Resulting trusts
                Texas Family Law Service§ 24:6,Agreements as to Income or Property Derived from                 Spend-thrrft trusts
                Separate Property                                                                               Powers of trustees, trusts

                Texas Family Law Service § 18:20, Separate Property.                                            Discharge of trustees, trusts
                Texas Family Law Service § 18:34, Gifts.                                                        Interest and title, trusts

                Texas Family Law Service § 19:27, Gifts.                                                        Income, trusts

                Texas Family Law Service§ 24:31, Gifts of Community Property to Spouse.                         Taxation, trusts

                Beyer, 9 Tex Prac Series § 3.7, Separate Property-Definition.                                   Competence of parties, trusts

                Elder, 33 Tex. Prac Series§ 9:3, Definitions-Community Property and Separate Property.          Deeds, trusts
                                                                                                                 Unlawful cohabitation, trusts
                                                                                                                 Prizes and awards

                  Relevant Notes of Decisions (710)                                                              Earnings
                                                                                                                 Services prior to marriage, earnings
                 Notes of Decisions listed beiow contain your search terms.
                                                                                                                 Bonuses, earnings




                                                                                                                                             <W4
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§ 15. Separate and community property of husband and wife - Westlaw                                                                                          28

WestlawNext"
         § 15. Separate and community property of husband and wife
     Vernon's Texas Statutes and Codes Annotated    Constitutionofthe State of Texas 1676 {Appmx 2 pages)          NOTES OF DECISIONS (700)
 Part:        [ 1 [of 3
                                                                                                                   Construction and application
                                                                                                                   Legislative intent
                 Vernon's Texas Statutes and Codes Annotated                                                       Purpose

                   Constitution of the State of Texas 1876 {Refs & Annos)                                          Equality of parties

                          Article XVI. General Provisions                                                          Marriages, void
                                                                                                                   Void marriages
                                                                                                                   Putative marriages
                   Proposed Legislation
                                                                                                                   Characterization of property
                                                                                                                   Separate property
                                            Vernon's Ann.Texas Const. Art. 16, § 15                                Inception of title, characterization of
                                                                                                                   property
                                                                                                                   Origin of title characterization of property
                          § 15. Separate and community property of husband and wife
                                                                                                                   Tracing, characterization of property
                                                                                                                   Appreciation, characterization of property
                                                             Currentness
                                                                                                                   Wills, characterization of property
                                                                                                                   Separation
               Sec. 15. All property, both real and personal, of a spouse owned or claimed before                  Divorce, characterization of property
               marriage, and that acquired afterward by gift, devise or descent, shall be the separate             Sufficiency of evidence
               property of that spouse; and laws shall be passed more clearly defining the rights of the           Just and right division of property
               spouses, in relation to separate and community property; provided that persons about to             Agreements
               marry and spouses, without the intention to defraud pre-existing creditors, may by written          Prenuptial agreements
               instrument from time to time partition between themselves all or part of their property, then       Postnuptial agreements
               existing or to be acquired, or exchange between themselves the community interest of one            Partition agreements
               spouse or future spouse in any property for the community interest of the other spouse or           Divorce agreements

                future spouse in other community property then existing or to be acquired, whereupon the           Separation and divorce agreements

                portion or interest set aside to each spouse shall be and constitute a part of the separate        Depriving spouse of separate property
                                                                                                                   Spousal gifts
                property and estate of such spouse or future spouse; spouses also may from time to time,
                                                                                                                   Undue influence, gifts
                by written instrument, agree between themselves that the income or property from all or part
                                                                                                                   Burden of proof
                of the separate property then owned or which thereafter might be acquired by only one of
                                                                                                                   Presumptions and burden of proof
                them, shall be the separate property of that spouse; ifone spouse makes a gift of property
                                                                                                                   Trusts
                to the other that gift is presumed to include all the income or property which might arise from
                                                                                                                   Resulting trusts
                that gift of property; spouses may agree in writing that all or part of their community property   Unlawful cohabitation, trusts
                becomes the property of the surviving spouse on the death of a spouse; and spouses may             Taxation, trusts
                agree in writing that all or part of the separate property owned by either or both of them         Prizes
                shall be the spouses' community property.                                                          Earnings
                                                                                                                   Gifts
                Credits                                                                                            Minors
                Amended Nov. 2, 1948; Nov. 4, 1980; Nov. 3, 1987; Nov. 2, 1999.                                     Unemployment compensation
                                                                                                                   Workers' compensation
                Editors' Notes
                                                                                                                    Public records

                                                   INTERPRETIVE COMMENTARY
                                                                                                                    Damage awards, generally
                                                                                                                    Personal injuries
                                                         1993 Main Volume                                           Consortium, personal injuries
                                                                                                                    Contributory negligence of spouse
                     Texas has what is known as the community system of property rights of husband                  personal injuries

                     and wife, that is, all property ofwhatsoeverkind acquired by the husband and wife,             Parties, personal injuries

                     or either of them, duringthe marriage other than that specifically declared to belong          Damages, personal injuries
                                                                                                                    Insurance
                     to the one or the other separately, becomes the community propertyof the two
                                                                                                                    Premiums paid with community property.
                                                                                                                    insurance
                     The community property system has lived sincethe days ofthe rudetribesof
                                                                                                                    Premiums paid with separate property.
                     Germany when the wives who sharedthe fighting werethought to be worthy ofa                     insurance
                     share inthe spoils. When the Germanic Gothsconquered and occupied Spain they                   Life insurance, generally
                     carried the concept ofcommunity property with them to that nation, and one ofthe               Death benefits, insurance
                     Gothic rulers ofSpain by statutemadecommunity of matrimonial gains the general                 Annuities

                     law ofSpain. Spain, in turn, introduced thecommunity property tothe New World,                 Bank accounts

                     and by this manner it became part of the lawof Texas.                                           Interest, bank accounts
                                                                                                                    Joint tenancy
                     The separate property of the husband orwife isthat which isowned orclaimed by                   Foreign jurisdictions, bank accounts
                     such spouse before the marriage andthatacquired afterward by gift, devise, or                   Stocks and bonds
                     descent. All other property, whether acquired actually by the husband orthewife or              United States savings bonds
                     by their joint efforts, orin any other way, becomes community property. This estate,            Partition

                      therefore, is a variable one; it begins at the marriage with nothing and ends at the           Bonds

                      dissolution ofthe marriage with everything, presumptively, ofwhich the parties are             Businesses




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§15. Separate and community property of husband and wife - Westlaw                                                                             28

          possessed. The character of the estate is determined by operation of law according         Revenue from property

          to the time and circumstances of acquisition.                                              Credit purchases
                                                                                                     Loans, generally
          Prior to the passage of the amendment to this section in 1948, attempted partitions        Title to property
          of the community estate were repeatedly held void, although the husband could              Abandonment, title to property
          make a gift to the wife of his share in the community property with the result that        Deeds and conveyances

          what had been community property became the separate property of the wife.                 Equitable title to property
                                                                                                     Estoppel, title to property
          The amendment permitting the husband and wife to partition their community                 Rights of survivorship, creating
          property, was a direct result of the decision of the Supreme Court in King v. Bruce,       Survivorship rights, creating
          145 T. 647, 201 S.W2d803, 171 AIR. 1328 (1947) certiorari denied 68 S Ct. 82,              Community property
          332 U.S. 769, 92 L.Ed. 355, rehearing denied 68 S Ct. 151 332 U S 820, 92 L.Ed             Intentions of parties

          396. The husband and wife had previously attempted to partition a portion of their         Recitations in deeds and conveyances
                                                                                                     Consideration
          community property. This partition having been foiled, they therefore devised a
                                                                                                     Source of funds, generally, deeds and
          scheme hoping to effect a partition. They went to New York and had $5800 of their
                                                                                                     conveyances
          community property transferred to a New York bank. There the husband withdrew
                                                                                                     Proportionate interest, deeds and
          $4,000 of the amount which he had paid to him in two containers, each consisting           conveyances

          of 2,000 silver dollars. The remainder of the money was drawn in 4 cashier's               Notice of separate ownership

          checks which were indorsed by the parties and placed in the respective containers.         Third party transactions

          The husband and wife then entered into a contract whereby each transferred to the          Family member transactions, deeds and
                                                                                                     conveyances
          other the contents of their container. They then deposited the $2,900 so acquired
                                                                                                     Remarriage, deeds and conveyances
          by the contract in the New York Bank. Upon her return to Texas, the wife deposited
                                                                                                     Conveyances between spouses
          her $2,900 in a Ft. Worth bank.
                                                                                                     Creditors' rights, conveyances between
                                                                                                     spouses
          A garnishment was run against this deposit by a judgment creditor of the husband.          Reimbursement
          The contract was held to contravene Texas public policy, and, as such, did not             Improvement of community property,
          effect the character of the property, and hence it was still community property.           reimbursement

                                                                                                     Purchase or improvement of community
          The defendant in this case contended that the policy of the state should be                property, reimbursement

          changed so that a husband could provide a substantial sum of money for his wife            Improvement of separate property
                                                                                                     Purchase or improvement of separate
          as her separate property so that she would have money on which to live in the
                                                                                                     property, reimbursement
          event the estate of her deceased husband was a substantial length of time in the           Status of improved properties,
          process of administration or was unduly burdened with debts so that very little            reimbursement

          could be realized in any reasonable time from the community estate. The defendant           Successive communities, reimbursement

          further contended that a husband should be able to partition the community estate          Amount of reimbursement

                                                                                                      Homestead
          without subjecting the community property to the federal gift tax.
                                                                                                      Foreclosure, homestead
          The court admitted the existence of these hardships, as well as the frequency with         Adverse possession
          which they occurred, but said:                                                              Expiration of limitation period during
                                                                                                      marriage, adverse possession

               If the electorate of the state desire a change of the state policy, under              Death of spouse

               consideration, it can be made through legislative and constitutional channels          Rents, revenue from property
                                                                                                      income, revenue from properly
               provided by law.
                                                                                                      Profits, revenue from property
          Thus the amendment was submitted to the electorate and upon approval brought                Crops, revenue from property
          about the changes contended for in this case.                                               Livestock offspring, revenue from
                                                                                                      property

                           TEXAS ANNOTATED CODE SERIES REFERENCES                                     Leases

                                                                                                      Mineral interests

      Gifts Between Spouses, Sampson &Tindall's Texas Family Code. Family § 3.005.                    Surviving spouses, death of spouse
      Managing Separate Property, Sampson &Tindall's Texas Family Code, Family § 3 101                Management and control of separate
                                                                                                      property
      Recordation of Separate Property, Sampson &Tindall's Texas Family Code, Family §
                                                                                                      Capacity to contract, management and
      3.004.                                                                                          control of separate property
      Separate andCommunity Property ofHusband and Wife, Sampson &Tindall's Texas Family              Capacity to sell and convey, management
      Code, Const. Art. 16, § 15.                                                                     and control of separate property
                                                                                                      Management and control of community
                                      LAW REVIEW COMMENTARIES                                         property
                                                                                                      Mortgages, management and control of
       Community time, talent, and industry: Effect upon separate property. 22 Baylor L.Rev. 527      community property
                                                                                                       Lifeestates, management and control of
       (1970).                                                                                        community property
       Family Code Symposium; Interstate spouses, interstate property, and divorce. John J.            Fraud, management and control of
       Sampson, 13 Tex.Tech L.Rev. 1285 (1982).                                                        community property
       Gifts ofcommunity property interests to spouse. 12Tex.Tech L.Rev. 376 (1981).                   Suretyship

       Legal effect of marital separation agreements upon community property status: Is it time to     Agency of spouse

       amend constitutional definition ofwife's separate property? 12St. Mary's L.J. 159(1980).        Absence of spouse agency of spouse

       Personal injury recovery as separate property ofmarried persons. 14S Texas L.J 110              Liability of spouses
                                                                                                       Notice, agency of spouse
       (1973).
                                                                                                       Service of process agency of spouse
                                                                                                       Power of attorney, agency of spouse


                                                                                                                              4k>&             4
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§ 15. Separate and community property of husband and wife - Westlaw                                                                                28

      Property division in Texas divorce of migrant spouse. J, Thomas Oldham, 19 Hous.L.Rev.               Torts

      1.                                                                                                   Ratification, agency of spouse
                                                                                                           Necessaries
      Reclassification of tort recoveries by spouses. 4 Tex.Tech L.Rev. 359 (1973).
                                                                                                           Attorneys' fees, liability of spouses
      Rights of a surviving spouse in Texas in marital property acquired while domiciled
                                                                                                           Liability of separate property
      elsewhere, 45 Tex L.Rev. 321 (1966).
                                                                                                           Liability of community property
      Should your spouse be compensated for putting you through school? Texas says no; is that
                                                                                                           Levy and garnishment, liability of
      just and right? 20 St. Mary's L.J. 897 (1989).                                                       community property
      Texas Family Code with commentaries-Title 1. Husband and Wife. Joseph W. McKnight, 21
      Tex.Tech L.Rev. 911 (1989-1990).
      Tortious conduct of spouse toward other's property rights. 20 Baylor L.Rev. 29, 30 (1968).

                                           RESEARCH REFERENCES


                                             2015 Electronic Update

                                                   ALR Library

      87 ALR 6th 495, Validity of Postnuptial Agreements in Contemplation of Spouse's Death.
      80 ALR 5th 533, Spouse's Cause of Action for Negligent Personal Injury, or Proceeds
      Therefrom, as Separate or Community Property.

                                                  Encyclopedias

      37 Am. Jur. Proof of Facts 2d 379, Transmutation of Separate Property Into Community
      Property.
      TX Jur.    3d     Decedents' Estates § 66, Death of Spouse as Terminating Community Estate.
      TX Jur.    3d     Decedents' Estates § 67, Rights of Surviving Spouse to Community Property.
      TX Jur,    3d     Family Law § 167, Damages for Personal Injury to Spouse.
      TX Jur.    3d     Family Law § 241, Agreement Concerning Income or Property Derived from
      Separate Property.

                                                      Forms


      Texas Forms Legal and Business i 32:47, Agreement on Income or Property from Separate
       Property.

                                           Treatises and Practice Aids


      Texas Family Law Service § 17:2, Separate Property.
       Texas Family Law Service § 19.7, Separate Property.
       Texas Family Law Service § 204, Right of Spouses to Divide Property.
       Texas Family Law Service § 20:9, Separate Property.
       Texas Family Law Service § 21.2, Separate Property.
       Texas Family Law Service§ 24:6,Agreementsas to Income or Property Derived from
       Separate Property
       Texas Family Law Service § 18:20, Separate Property.
       Texas Family Law Service § 46:43, Characterization as Community or Separate Property.
       Leopold, 4 Tex. Prac, Series § 20.4, Validity ofTexas Deeds Between Husband and Wife.
           Beyer, 9 Tex. Prac. Series § 3 7, Separate Property-Definition.
           Leopold, 3A Tex Prac. Series § 13.28, Interests in Texas Land Held by Multiple Owners-
           Doctrine of Survivorship Abolished-Survivorship of Husbandand Wife.
           Leopold and Beyer, 38Tex      Prac. Series§ 2.3, Separate Property-Before Marriage.
           Leopold and Beyer, 38Tex.     Prac. Series§ 2 4, Separate Property-During Marriage.
           Leopold and Beyer, 38 Tex.    Prac. Series§ 2.5, Separate Property-By Agreement.
           Leopold and Beyer, 38Tex      Prac. Series§ 11.3, Agreements Concerning Income or
           Properly from Separate Property-ln General.
           Leopold and Beyer, 38 Tex. Prac. Series § 12 4,Content of a Premarital Agreement-Making
           Separate Property.
           Leopold and Beyer, 38 Tex. Prac. Series § 11 22, Introduction to Agreements to Convert
           Separate Property to Community Property.
           Leopold and Beyer, 39 Tex. Prac. Series § 22.4, Recipients of Separate Property Upon
           Intestacy.
           Leopold and Beyer. 39 Tex Prac Series §18 11, Agreements Between Spouses and the
           Presumption.
           Leopold and Beyer, 39 Tex Prac Series § 18.13, Conveyances Between Spouses.

                                                                                            View all 700
             Relevant Notes of Decisions (674)




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Desta v. Anyaoha - Westlaw

              When reviewing factual findingsforfactual sufficiency, a finding will be overturned      RAMIREZ, Appellee.
                                                                                                       Court of Appeals of Texas, San Antonio
              only ifit is so against the great weight and preponderance of the evidence or so         January 15, 2014
              lacking in evidentiary support as to be clearly wrong and unjust.                         ..In assessing whether the evidence
                                                                                                       supporting a jury finding is legally sufficient,
                                                                                                       we only consider evidence favorable to the
                                                                                                       jury's decision and disregard all evidence and
              Appeal and Error Vs* Cases Triable inAppellate Court                                     inferences to the contrary. ..
              Conclusions of law are reviewed de novo.
                                                                                                       See More Briefs


                                                                                                       Trial Court Documents

         7    Marriage 4F3 Fraud, misrepresentation, or imposition                                     Zapf v. Texas Dept. of Transp
              Marriage annulment statute did not condition annulment of marriage upon finding
                                                                                                       2011 WL 7301777
              that wife's fraud went to the essentials of the marital relationship; trial court's      Zapf v. Texas Dept. of Transp
              finding that wife made material misrepresentations to induce husband to marry            District Court of Texas, Jefferson County
                                                                                                       August 01, 2011
              her was sufficient under annulment statute. VT.C.A. Family Code § 6.107.
                                                                                                        ..August 1, 2011 Dear Counsel: I have now
                                                                                                       had an opportunity to consider defendant's
                                                                                                       Motion for Judgment Notwithstanding the
                                                                                                       Verdict filed in connection with the above-
         8    Fraud    %'la     Elements of Actual Fraud
                                                                                                       captioned matter. As the parties ar.
              Fraudulent inducement is established by proving that a false material
              misrepresentation was made that: (1) was known to be false when it was made;             Billy Wayne SELLERS, v. Daniel L.
                                                                                                       FOSTER, DO.
              (2) was intended to be acted upon; (3) was relied upon; and (4) caused injury.
                                                                                                       2006 WL 3064769
                                                                                                       BillyWayne SELLERS, v. Daniel L FOSTER,
              1 Case that cites this headnote
                                                                                                       DO
                                                                                                       District Court of Texas, Tarrant County
                                                                                                       May 11,2006
         9    Fraud I?51 Materiality of matter represented or concealed
                                                                                                         This court has considered the record on
              A "material misrepresentation," as an element of fraud, means a reasonable               appeal in this case and holds that there was
              person would attach Importance to and would be induced to act on the                     no error in the thai court's judgment. It is
                                                                                                       ordered that the judgment of the trial court is
              information in determining his cause of action.                                          affirmed Itisfurthe..


                                                                                                       Dallas COUNTY, Appellant, v. Glen
                                                                                                       HOLMES, Appellee.
      Attorneys and Law Firms                                                                          2001 WL 35939063
                                                                                                       Dallas COUNTY, Appellant, v Glen
      '597Meijken Westenskow, Mosaic Family Services, Dallas, TX, for Appellant.                       HOLMES, Appellee.
                                                                                                       District Court of Texas.
                                                                                                       December 06, 2001
      Stephen V. Hartman, Dallas, TX, for Appellee.
                                                                                                       ...FN1. The Honorable David F. Farris
                                                                                                       Retired Justice, Second District Court of
      Before Justices O'NEILL, MARTIN RICHTER, and LANG-MIERS.                                         Appeals, Fort Worth, Texas, sitting by
                                                                                                       assignment FN2. The Honorable Barbara
                                                                                                       Rosenberg, Former Justice, Court of
                                                 OPINION
                                                                                                       Appeals, ...

      Opinion By Justice MARTIN RICHTER.                                                               See More Trial Court Documents


      The trial court annulled the marriage of Betelehem Desta (Wife) and Festus Anyaoha
      (Husband) based on fraud. In two issues on appeal, Wifeasserts the evidence was legally
      and factually insufficient to support an annulment and the trial court erred because there was
      no determination *588 as to whether the alleged fraud "went to the essentials of the
      marriage relationship." Concluding appellant's arguments are without merit, we affirmthe
      trial court's judgment.

      Background
      Husband, a resident of the United States, met Wife, an Ethiopian citizen, on an internet
      dating site. Wife told Husband she wanted a marital relationship withseveral children. The
      two were married in 2007, and began living together in October 2008 after Wife arrived in
      the United States. Wife claimed Husband abused her, and left him in May 2009 shortly after
      she received her "green card."

      Wife filed a petition fordivorce Husband filed a cross-petition requesting dissolution of the
      marriage, or alternatively, annulment based on fraud. Following a hearing, the trial judge
      ruled that the marriage should be annulled and madefindings offactand conclusions oflaw.
      This appeal followed.

      Discussion
         1 Appellant contends theevidence isinsufficient tosupport an annulment and thetrial
      court erred because it did not determinewhetherthe allegedfraud"went to the essentials of
      the marriage relationship." We disagree.

      Atrial court may grant a petitioner an annulment ofa marriage if (1) theother party used
      fraud, duress, or force to inducethe petitioner to enter intothe marriage; and (2)the
       petitioner has not voluntarily cohabited with theother party since learning ofthefraud or
                                                                                                                                                     5
                                                                                                                      •PP
https://a.next.westlaw.com/Document/I693e9d46befdllel9159... 12/17/2015
Desta v. Anyaoha - Westlaw

           We decline this invitation to expand the scope of § 6.107 to impose more than what the
           statute requires. See Phi Van Cao v. Hardy, 352 S.W.3d 218, 221 (Tex.App.-Houston (14th
           Dist] 2011, pet. denied) (stating court may not add language to a statute). It is not the
           function of the courts to expand the scope of a statute beyond the Legislature's intent as
           expressed in the plain language of the statute. See Consol. Reinforcement, LP. v. *600
           CarothersExec. Homes, Ltd., 271 S.W.3d 887, 892 (Tex.App -Austin 2008, no pet),
           overruled on other grounds byS&P Consulting Engineers, PLLC v. Baker. 334 S W.3d 390,
           403 (Tex.App -Austin 2011, no pet). The statute plainly provides that a trial court may grant            _
    <an annulment based on fraud. See TEX. FAM CODE ANN. §6.107. The meaning of fraud is ^^
           well-established in the jurisprudence of this state, and there is no indication the Legislature                  M
           intended the term connote anything more or less than the commonly accepted meaning                           4
           when used in the context of an annulment.


              8     9    Wife acknowledges that Texas courts determining whether to grant an
           annulment based on fraud typically look for evidence of fraudulent inducement. See
            Villarreal v. Villarreal, No. 09-09-00319-CV, 2010 WL 2854250 at *5 (Tex App -Beaumont
           May 17, 2010) (not designated for publication); see also Leax, 305 S.W 3d at 29. Fraudulent
            inducement is a species of fraud. See Tex. S. Univ. v. State Bank & TrustCo.. 212 S.W.3d
           893, 914 (Tex.App.-Houston [1st Dist] 2007, pet. denied). Fraudulent inducement is                   ^**>
           established by proving that a false material misrepresentation was made that (1) was known                M

    K      to be false when it was made; (2) was intended tobeacted upon; (3) was relied upon; and
           (4) caused injury. Id.;see also Montenegro v. Avila, 365 S.W.3d 822, 826-27 (Tex.App.-El
                                                                                                                    *

           Paso 2012) (not designated for publication) (concluding evidence sufficient to support finding
           that husband fraudulently induced wife to marry). Significantly, fraud requires a material
           misrepresentation. See Transport Ins. Co. v. Faircloth, 898 S.W.2d 269, 276 (Tex.1995). A
            material misrepresentation, as an element of fraud, means a reasonable person would
            attach importance to and would be induced to act on the information in determining his
            cause of action. Italian Cowboy Partners, Ltd., v. PrudentialIns. Co., 341 S.W 3d 323. 3' 7
            (Tex.2011). Wife fails to explain the distinction, ifany, between the materiality requirement
            imposed by the statute and the "essential to the relationship" standard she seeks to ha\ e us
            impose. The trial court found that Wifemade material misrepresentations to induce Hu:.band
            to marry her. Because the trialcourt was not required to also determine whether the frs.ud
            "went to the essentials of the marital relationship," we cannot conclude it erred in failir j to do
            so. Wife's first issue is overruled.


            The judgment of the trial court is affirmed.

            All Citations


            371 S.W.3d 596



              Footnotes


                           Wife states "there is little Texas case law defining this standard.' Wf have
                           found none.




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   Find Law       Caseiaw   Texas     TX Ct App    MORSE v. MORSE

 MORSE v. MORSE
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                                                                                                                               Attorney
                                        Court of Appeals ofTexas,El Paso.                                                      Corporate Counsel
                                                                                                                               Academic
                  Gary Edward MORSE, Appellant, v. Dana Ann MORSE, Appellee.                                                   Judicial Clerk
                                                                                                                               Summer Associate
                                                                                                                               Intern
                                                  No. 08-09-00046-CV.
                                                                                                                               Law Libranan
                                                  Decided: August 31, 2010
                                                                                                                               Search Jobs        Post a job | View Wore -ofcs
 Before CHEW, CJ., McCLURE, andRIVERA, JJ. Kevin Acker, for GaryEdward Morse. David W.Lindemood,
 for Dana Ann Morse.
 OPINION


 Gary Edward Morse appeals anorder entered ona motion tocompel execution ofclosing documents andan
 original petition forpost-divorce division ofproperty. This court ordered theparties toattend mediation
 pursuant toSection 154.021 oftheCivil Practice and Remedies Code and they entered into anirrevocable
 mediated settlement agreement (MSA). Among otherthings, theagreement required Gary todismiss this
 appeal. Gary hasinstead filed a motion tosetaside theMSA. For thereasons thatfollow, we deny themotion
 and dismiss the appeal.

 FACTUAL SUMMARY


 Dana Morse filed apetition fordivorce onJuly 20,2007. The trialcourt signed afinal decree onSeptember 25,
 2008.Neither oftheparties appealed. Dana laterfiled anoriginal petition forpost-divorce division ofproperty
  shealleged Gary had hidden during the pendency ofthedivorce. She also filed amotion tocompel execution of
  closing documents. On February 18,2009, the trial court entered anorder addressing both themotion to
  compel and the petition for post-divorce division ofproperty. Gary filed notice ofappeal indicating his intent
  toappeal from thatorder. Pursuant toour order, the parties attended mediation and, according tothe status
  report filed byDana, they resolved all matters ofcontroversy between them. Dana attached toher report a copy
  ofthe MSA signed bytheparties and their attorneys. Among other things, Gary agreed todismiss his appeal as
  part ofthe settlement agreement. He did not comply with the agreement but instead filed amotion to set it
  aside ontheground that Dana had intentionally breached theagreement bydamaging some items ofproperty
  awarded tohim. Dana responds that because the MSA satisfies the requirements ofSection 6.602 ofthe Family
  Code,it is not subjectto revocation byeither party.

  MEDIATED SETTLEMENT AGREEMENT

  Amediated settlement agreement isimmediately binding ontheparties iftheagreement: (1) provides ina
  prominently displayed statement that isin boldfaced type, capital letters, or underlined, that the agreement "is
  not subject torevocation"; (2) issigned bythe parties; and (3) issigned by the parties' attorneys who are
  present atthe time ofsigning. Tex.Fam.Code.Ann. §6.6o2(b)(Vernon 2006). Ifan MSA meets these
  requirements, aparty isentitled tojudgment notwithstanding Rule 11 ofthe Texas Rules ofCivil Procedure or
  another ruleoflaw. Tex.Fam.Code.Ann. §6.602(c). Compliance with Section 6.602 makes theagreement an
  exception toSections 7.001 and 7.006, which allow revision and repudiation ofsettlement agreements.
  Tex.Fam.Code Ann. §§ 7.001,7.006; InreJoyner, 196 S.\V.3d 883,889 (Tex-App.-Texarkana 2006, pet.
, denied). Acourt is not required to enforce an MSA ifitis illegal in nature or procured by fraud, duress,
  coercion, orother dishonest means. Joyner, 196 S.W.3d at890; Boyd v.Boyd, 67S.W.3d 398,404-05
   (TexApp.-Fort Worth 2002, no pet.)(holding that §6.602 mediated settlement agreement may be subject to
   rescission due tointentional nondisclosure.); InreKasschau, 11 S.W.3d 305, 312 (TexApp.-Houston [14th
   Dist.] 1999, orig. proceeding)(holding that amediated settlement agreement may be set aside on the ground of
   illegality).

   Gary does not dispute that the MSA meets all ofthe requirements of Section 6.602. Unless he can establish a
   ground for revocation, itis binding. The only ground Gary alleges is that Dana intentionallybreached the
   settlement agreement with malice by damaging certain items ofproperty. He cites no authority that an MSA
   can be revoked due to aparty's alleged intentional breach. Because Gary has failed to assert aviable ground for
   setting aside orrevoking theMSA, wedeny hismotion.
   The terms ofthe MSA require Gary to dismiss this appeal. Inthe interest ofjudicial economy, we will not
   require Gary to file aformal motion. Instead, we sua sponte dismiss the appeal.
   ANN CRAWFORD McCLURE, Justice.




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                                                                                                                  rW<>
§112.001. Methods of Creating Trust - Westlaw                                                                  23

      or when party breaches fiduciary-like relationship. Matter of Carolin Paxson Advertising, Inc,
     'c.A.5 (Tex.)1991, 938 F2d 595. Trusts w. 93; Trusts o-94.6; Trusts fc=- 102(1)
      Court cannot impose trust when parties contemplated another relationship. Stauffacher v,
      Coadum Capital Fund 1, LLC (App 14 Dist 2011) 344 S W.3d 684, rehearing overruled,
      review denied. Trusts ;•=-1


      Person who purchases property for another but purchases it in his own name holds it on a
      constructive trust for the other. Baxter v. Williams (Civ.App. 1976) 544 S.W 2d 192, ref.
      n.r.e.. Trusts <s~ 104


      Disappointment of a mere expectation does not give rise to a constructive trust- Linder v.
      Citizens State Bank of Malakoff. Texas (Civ.App. 1975) 528 S.W 2d 90, ref. n.r.e.. Trusts &»
      91


      Inasmuch as existence of constructive trust may be established by parol evidence, such
      trust should be imposed with caution. May v. Little (Civ.App 1971) 473 S.W.2d 632, ref.
      n.r.e.. Trusts -.;-- 109


      Defendants took title as constructive trustees where they took title pursuant to a contract to
      deliver to plaintiffsa deed to property after plaintiffspaid off a first lien note, assumed a
      principal note and secured defendants' release therefrom. Shenk v. Ziegler (Civ.App. 1964)
      382 S.W 2d 790. Trusts i»- 99


      Making of valuable or substantial improvements in reliance on agreement is not necessary
      for constructive trust, but is at most an evidentiary fact tending to prove reliance by plaintiff
      on defendant to keep agreement that plaintiff should have interest in land. Holland v.
       Lesesne (Civ.App 1961) 350 S W.2d 859, ref. n.r.e.. Trusts s~. 99

       A trust imposed by law irrespective of intention is a "constructive trust," and whereowner of
       interest in land transfers it inter vivos to another in trust for owner but no memorandum
       properly evidencing intention to create a trust is signed, and transferee refuses to perform
       trust, transferee holds interest on a "constructive trust" for owner, iftransfer was procured
       byfraud, duress, undue influence or mistake, or transfereewas in a confidential relation to
       owner or transfer was made as security for an indebtedness of owner Mills v. Gray (Sup.
       1948) 147 Tex. 33. 210 S W.2d 985. Trusts *»• 94

       Where employer claimed to have paid employee, ontermination ofemployment, an amount
       in excess of that due, and made an agreement withemployee pursuant to whichemployee
       deposited such amount in a bank in his own name as trustee, upon employer's agreement to
       makea prompt statement as to employee's account with employer, therewas notrust
       created between employer and employee either expressly, constructively, or byimplication
       of law. MexicanCoal &Coke Co. v. Ruckman (CivApp. 1921) 229 S.W. 347 Trusts «*. 34
       (2); Trusts ..--95

       — Application of trust code, constructive trusts

       Trust Actdid notapply to invalidate constructive trusts. Shenk v. Ziegler (Civ.App. 1964)
       382 SW 2d 790.

        Notwithstanding statute which declared express trusts in land invalid unless created by a
       writing, constructive trustas toreal property was enforceable. Erwin v. Hays (Civ App.
        1954) 267 S.W 2d 884, ref. n.r.e.. Trusts *» 92.5

        Aconstructive orresulting trust wasnot inhibited by statute. Toile v Sawtelle (Civ App.
        1952) 246S.W2d916, error refused. Trusts s<«- 63.5; Trusts ;•>•>• 92.5
        Statute did not prohibit enforcement ofconstructive trustof real estate based on parol
        agreement. Howard v. O'Neal (Civ App. 1952) 246 S.W.2d 907, ref. n.r.e. Trusts t- 92.5
        The rule thata constructive trust would be imposed toenforce breach ofa parol promise to
           reconvey land where a grantee refused to perform relying on the Statute of Frauds was not
           affected by the Texas Trust Act Gray v. Mills (Civ App 1947) 206 SW2d 278, affirmed 147
           Tex. 33, 210 S.W.2d 985. Trusts *- 94

           — Equitable remedy, constructive trusts

           Constructive trustis not in reality a trust, but isanequitable remedy Oak Cliff Bank &
           TrustCo v Steenbergen (Civ.App 1973) 497 S W.2d 489, ref. n.r.e., Baxter v Williams




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                                                                                                           «FP'7
                                                                                                          12/18/2015
§. 112.001. Methods of Creating Trust - Westlaw                                                                                                                         23

             (Civ.App.1976) 544 SW.2d 192, ref. n.r.e.; Lowther v Lowther (Civ.App.1979) 578 S W2d
             560, ref. n.r.e

             Under Texas law, constructive trust generally arises when person with legal title to property
             owes equitable duties to deal with property for benefit of another. Matter of Carolin Paxson
             Advertising, Inc., CA.5 (Tex.)1991, 938 F.2d 595. Trusts »« 91

             Constructive trust remedy, by its nature, is broad and flexible, and being remedial in
             character, constructive trusts have very broad function of redressing wrong or unjust
             enrichment in keeping with basic principles of equity and justice. First Nat Bank of AmariHo
             v. Bauert (App. 7 Dist. 1981) 622 S.W.2d 464. Trusts «•••-. 91

             Equitable remedy of constructive trust is broad and far reaching and is designed to
             circumvent technical legal principles of title and ownership in order to reach a just result.
             Peirce v. Sheldon Petroleum Co. (Civ.App 1979) 589 S.W.2d 849. Trusts %«• 91




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                                                                                                                                                                              1
                                                           2*8/201
 httns://a.next.westlaw.com/Document/NDAF78A80BE7411D9... 12/18/2015
Van Zandt v. Van Zandt - Westlaw

                 home on property and deed of       134               Divorce

                 trust to secure money              134V              Spousal Support, Allowances and
                 borrowed to construct home                           Disposition of Property
                 were executed by both              134V(D)           Allocation of Property and Liabilities;
                 husband and wife and both                            Equitable Distribution

                 husband and wife entered           134V(D)9          Proceedings for Divisionor
                 "safe keeping agreement" with                        Assignment

                 bank as to proceeds from sale.     134kB76           Evidence

                                                    134k876 5         Weight and Sufficiency
                 1 Case that cites this headnote
                                                    134k876 5(4)      Gifts, inheritance, and change of forrr
                                                                          (Formerly 134k876, 134k2S3(2),
                                                                      134k253)


                 Divorce                             %~
                 Trial court has broad discretion   134               Divorce
                 in partitioning property in
                                                    134V              Spousal Support, Allowances, and
                 divorce proceedings.                                 Disposition of Property
                                                    134V(D)          Allocation of Property and Liabilities;
                                                                      Equitable Distribution

                                                    134V(D)1          In General

                                                    134k653           Discretion of court in general
                                                                          (Formerly 134k252 1. 134k252)



      Attorneys and Law Firms

      '323 Hamblen &Hamblen, Presley E. Werlein, Jr., Houston, forappellant.

      George W. Eddy, Edgar E. Townes, Jr., Houston, for appellee.

      Opinion

      BELL, Chief Justice.

      In this case the trial court awarded a divorce to appellant and made a division of the property
      claimed by the parties. The only question on appeal is whether there was error in the jury
      verdict when the jury failed to find that certain property came to appellant in settlement of her
      deceased's mother's estate.


      Appellant contended in the trial court by proper pleadings, and contends here, that her
      father, R. H. Fonviiie, in 1937, gave her $2500.00 with which she purchased five acres of
      land on Sage Road in Harris County. It is her position that this $2500.00 was given her in
      partial settlement of her interest in her deceased mother's estate and thus the land
      purchased with such money became her separate property. The tract was sold in 1963 for
      $438,000.00. The net proceeds from the sale, less taxes and expenses, are now
      represented by assets in an Investment Advisory Agency Account with Texas National Bank
      of Commerce.


      Appellee contends that the Agency Accounts are community property or at least jointly
      owned.


      The court submitted Special Issue No. 3 to the jury, which read as follows:

             'Do you find from a preponderance of the evidence that the sum of $2500 00
             paid to William H. Wilson and wife as consideration for the conveyance of the 5
             acres of land at the northwest corner of Sage and Westheimer, known as 2530
             Sage Road, was delivered to the Plaintiff, Beverly Fonviiie Van Zandt, by her
             father. R. H. Fonviiie, in partial settlement of her interest in the estate of her
             deceased mother, Lillian Henrietta Racke Fonviiie?'

      The jury answered, 'We do not'

      In its judgment the court divided the Investment Advisory Account equally between the
      parties.

      Appellant asserts three points of error, contending as follows:
                                                                                                                fr« %
                                                                                                                 thru* °^

httrm-//a npvt westlaw r.nm/F)nmiment/Tr.hSH7h25eha611 HQ8^e7                                                   19/1 8/901 S
Van Zandt v. Van Zandt - Westlaw

         1.Thecourt erred in submitting theissue because there was nocompetent evidence to
        support its submission, but the evidence conclusively and as a matterof lawestablishedthe
        affirmative of the fact inquired about.

        2. Theanswer ofthe jury is so against the overwhelming weight and preponderance ofthe
        evidence as to be manifestlywrong.

        3. Wherea case is triedon the wrong theoryjustice requiresa reversaland remandfor
        retrial. The contention here is that appellee tried the case on the theory thatthe property was
        community whenitcould notas a matteroflawbe such butwas eitherthe separate property
        ofappellant '324 orwas jointly owned by the parties, the interest ofeach constituting a part
        of their respective separate estates.

        Appellant was the daughter of R. H. Fonviiie and Lillian Henrietta Racke Fonviiie. Her
         motherdied intestate in 1916 whenappellantwas seven years old.She had a younger
        sister, Irma, who is now Mrs . Julius Garrett. Mr. Fonviiie married Clara McCormick in 1925.
        To this marriage was born a daughter, Clarita, who is now Mrs. Neil Buie.

        In July, 1916, Mr. Fonviiie received authority from the County Courtto act as community
        survivor. He filed withthe court an inventory of the community estate It, together withits
        appraisal, was approved by the court. It showed several pieces of real estate valued in the
        aggregate at $14,900.00, personal property valued at $7,700.50 and cash of $500.00. The
        largest item of personal property was 'one drug store, stock, etc' valued at $4,150.50. The
        other personal property consisted of notes

        Appellant and appellee were married in 1935.

         On December 30, 1937, a deed to the five acre tract of land above mentioned was executed
         by Wm. H. Wilson and wife, as grantors, and appellee, W. K, Van Zandt, was named as
         grantee. It is this conveyance that gives rise to the real controversy here involved. In the
         latter part of 1938 the parties built their home on the tract employing borrowed money. This
         money would be community property. There is no controversy concerning the status of the
         improvements.

         The evidence all shows that the $2500.00 used to pay the purchase price of the five acre
         tract was furnished by Mr. Fonviiie by delivery of his check to appellant. No contention is
         made that this was a loan. We suppose appellee's contention that the land became               k
  <fcommunity property is based on the presumption that arises from the fact that it was acuired^^
       during the marriage under a deed in the form above noticed. However, under all the oral *^V
         testimony in thecase, itwaseither theseparate property ofappellant orwas equally owned JW
         as a part of the separate estate of the parties.                                                   W

         Appellant testified that her father handed her the money with which to pay for the property.
         She did not remember whether it was in cash or a check though as she best remembered it
         was represented by her father's check. She took the check to Judge Wilson from whom the
         purchase was made. She attended to having the deed executed. The reason appellee's
         name appeared as grantee was because he had told her if the deed was not in his name, he
         would not be able to borrow money with which to build their house. Later when the money
         was borrowed to build the home, and the mechanics' lien and deed of trust were executed,
         appellee handled the transactions though appellant joined in their execution.

         Appellee testified in person and part of the testimonyhe had given in a depositionwas read
         into evidence by appellant's counsel. In the depositiontestimony he stated that the estate of
         Mr. Fonviiie and his first wife, as shown by the records, was small. He stated the distribution
         to appellant and her sister was accomplished before his marriage to appellant. (Thiswas
         incorrect because in 1942 Mr. Fonviiie conveyed to his two daughters real estate
         apppearing on the inventory ) Hethen said that 'Mr Fonviiie being partial to Beverly and
         Irma,frequently handed them or gave them money and things of value with the joking
         remark, and withthe ever-present smile, This is a part of your mother's estate.'

         After stating that until three or fouryears beforethe timeof the deposition he and appellant
         occupied as theirhomethe propery on Sage Road, appellee was asked, 'Did you ownthat
         property?' He answered, The property was acquired bydeed in my name. Itremained in my
          name until the date of the sale to Lewis Funeral *325 Home.' The property was bought from
          Judge Wilson for$2500.00. When asked the source ofthe $2500.00, appellee stated, 'Prior
          to the purchase * ** Mr. Fonviiie told us that he would be very glad to give us a lotso we
          might build a home on it. He set an amount ofsome$4,000,00 We looked at lots in various
          parts of the city and ***we decided itwould be advantageous to buyacreage ***'
                                                                                                                fc« *
V,ff«c.//o r,Pvt «r*»ct1aw rr»m/nnrnmpnt/TphSfl7h9Sphflfi1 1 dQ83e7                                             1 9/1 8/901 5
Van Zandt v. Van Zandt - Westlaw

      Fonviiie Van Zandt, her heirs and assigns' all their right, titleand interest. The habendum
      clause named 'Beverly Fonviiie Van Zandt'.

      Itis,we think, of significance that neither inthe agreement above noted norin the quitclaim
      deed was there a recital that the property was conveyedto appellantas a part of her
      separate property.

      Special Issue No. 3, as worded, cast the burden on appellant to showbya preponderance of
      the evidence that the $2,500.00 paidforthe Sage Road property was delivered to her by her
      father in partial settlement of her interest in her deceased mother's estate. The effect of the
      jury's answer was to find that she had not discharged that burden to the satisfaction of the
      jury.

      Appellant's position is that all evidence shows that the $2,500.00 was given appellant as
      partial settlement of her mother's estate. The approach is twofold. First, it is contended that
      the agreement of November 17,1955, whichcontains the provisionswe have quoted, is
      contractual in nature and establishes the fact that the $2,500.00 came to appellant in partial
      settlement of the estate and therefore parol evidence cannot be employed to prove
      otherwise. Secondly, it is contended that even if parol evidence may be considered, all the
      evidence shows as a matter of law that the money employed to purchase the Sage Road
      property was transmitted to appellant by her father in partial settlement of her mother's
      estate


        1      2 The deed from Wm. H. Wilson and his wife in 1937 to appellee presumptively
      vested title in the community estate of appellant and appellee, it being executed and
      delivered during the marriage relationship and there being no recital that the conveyance
      was to the separate estate of the grantee. Van et al. v. Webb, 147 Tex. 299, 215 S.W.2d
      151. All cases hold that under such circumstances parol evidence is admissible to show the
      true consideration for the deed. Were this the only instrument involved, clearly it would be
      permissible to consider parol evidence that in fact the consideration was the payment of
      money that came to appellant as an inheritance from her mother. However, appellant urges
      that the agreement of 1955 was contractual in nature and it in effect recited '327 that the
      property on Sage Road was conveyed to appellant in partial settlement of her mother's
      estate and the parties to the agreement contracted not to question the conveyance of the
      Sage Road property to appellant from her father and therefore parol evidence cannot be
      considered.


      We hold that under the facts of this case parol evidence was admissible on the issue as to
      whether the $2,500.00 with which the land was purchased was delivered to appellant in
      partial settlement of her interest in her mother's estate.

         3     The character of the title is determined as of the date it vested. It vested upon
      execution of the deed from Wilson and his wife to appellee in 1937. Lindsay v. Clayman, 151
      Tex. 593, 254 S.W.2d 777, Bianchard v. Blanchard, 293 S.W.2d 825 (CCA), ref., n.r.e.;
      Speers Marital Rights in Texas, 4th Edition, Sec. 388. As above stated the titlewas
      presumptively in the community, but this could be rebutted

         4       5   This was not changed by the 1955 agreement. That agreement, though
      appellee was a partyto it, did not result in the acquisition of the title. Too, itis noted that the
      agreement merely made a recitation of past fact, that is, that Mr. Fonviiie had conveyed or
       caused to be conveyed to appellant the property on Sage Road in partial settlement of her
       mother's estate. There is no recital at all concerning the source of the $2,500.00. The parol
       evidence rule does not preclude evidence which refutes the recitationof a past fact.
       McCormick and Ray, Texas Lawof Evidence, Second Edition, Sec .1612, pp. 454—455.
       The recitation is but evidentiary. A statement in a deed that the considerationwas separate
       or community is butan evidential fact. McCormick and Ray, Texas Law ofEvidence, Second
       Edition, Sec. 1641, p. 495. McCormick and Rayfurther state inthe same section that
       consequences which thelaw attaches toa set offacts cannot be prevented bya writing
       which states facts of a transaction erroneously.

         6 Applying these rules to thefactsofthiscase parol evidence was admissible, because
       the recital we noticed is of a past fact coming afterthe deed into appellee. The agreement,
       as shown bythe documentary evidence recites facts incorrectly. Mr. Fonviiie did notconvey
       theproperty toappellant, nor did hecauseitto beconveyed to her. Shecaused it to be
       conveyed by Mr. and Mrs. Wilson to appellee. Theproperty was never a part ofthefirst
       community.



                                                                                                            fcw   a
Vittr»c-//a nevt westlaw r.nrn/T)r>ci]ment/Tcb5d7b25eba61 Id983e7... 12/18/2015
Van Zandt v. Van Zandt - Westlaw                                                                                  7

      In the testimony given in person at the trial appellee was asked who first brought up the
      matter ofpurchasing theland and hestated itwas by mutual agreement with appellant. He
      andappellant looked over several sites and agreed ontheSageRoad property. When the
      property was actually transferred he was notpresent. Hedid notprocure the deed. Mr.
      Fonvile furnished the money. Hedenied he hadanydiscussion with appellant inwhich he
      told her he should be namedas grantee in the deed from Judge Wilson.

      Documentary evidence reflects joint action bythe parties with regard to the property. The
      mechanics' lien contract for the construction of the home and the deed of trust to secure
      money borrowed to constructthe home were executed by both parties. In 1959,when the
      parties were considering selling, appellant wrote appellee, 'Mr. Saidus came down yesterday
      and said he had a buyerforour place. How muchdo youwant? He thinks we should sell. He
      said for you to phonehim.' In 1960the parties executed a 'listing' agreementto Saidusand
      Rowe, giving them the exclusive rightto sell the property. They both, in 1963, executed a
      contract to sell. The deed to Lewis Funeral Home in 1963 referred to the consideration as
      paid to 'us' and to the $438,000.00 'paid to Grantors.' In May, 1963,the partiesentered into
      a 'Safe Keeping Agreement' with the Texas National Bank of Commerce with regardto the
      money received. Itwas signed by both parties and required that any instructions to the Bank
      must be in writing and signed byboth parties. On May 15, 1963, an 'Investment Advisory
      Agency Agreement,' involving the net proceeds from the sale was entered into with the
      same Bank. In it the parties together were referred to as 'Principal'.

      In January, 1966, appellant attempted to have the assets of the AgencyAccounttransferred
      to a trust over whichshe had sole control. She did this on the advice of a representative of
      the Bank that the assets belonged to her. Appellant notified appellee of the action. Appellee
      demaned a termination of the trust and a return of the assets to the jointaccount. The Bank
      acceded to the demand. In 1945, while appellee was serving in the UnitedStates Navy, Mr.
      Fonviiie wrote him a friendly letter and at one point in it referred to 'your nice home'.

      Mr. Fonviiiedied testate in 1954. For some reason, which is not reflected by the record, his
      will was not offered for probate. Instead of having the will offered for probate, his widow,
      Mrs. Clara McCormick Fonviiie, and his three daughters, Beverly Van Zandt, Irma Garrett
      and Clarita Buie, executed an agreement not to probate the will but to take under the laws of
      descent and distribution. It was agreed that all property possessed by Mr. Fonviiie at his
      death belonged to the community estate of Mr. Fonviiie and his surviving spouse. Mrs.
      Fonviiie received one-half of the estate and each daughter received one-sixth. A partition
      was also effected. The husband of each daughter executed the agreement as a party.

      The part of the agreement that is of primary importance here is that which deals with
      distribution of the estate of appellant's mother. After dealing with the second community, the
      agreement made the following provisions:

      'It is understood and agreed that during the lifetime of R, H. Fonviiie there was a settlement
      of the Estate of Lillian Henrietta Racke Fonviiie, mother of Beverly Fonviiie Van Zandt and
      Irma "326 Fonviiie Garrett, and that transfers of property, in absolute fee simple, and other
      things of value included:

      To Beverly Fonviiie Van Zandt he conveyed or caused to be conveyed the following:

      '(a) Five (5) acres of land at the northwest corner of Sage and Brownway (Westheimer)
      Roads, upon which W. K. Van Zandt's residence (known as 2530 Sage Road) is located.'

      Then other properties and moneys that were transferred to Beverly or Irma are listed.
      Following such listing is the following provision:

             'It is distinctly understood and agreed that the conveyance of property above
             mentioned from R. H. Fonviiie to his daughters Beverly Fonviiie Van Zandt and
             Irma Fonviiie Garrett are hereby recognized and approved and are not to be
             questioned by any of the parties hereto, their heirs or assigns. In likemanner
             the proceeds of the life insurance policiesabove referred to in favor of Beverly
             Fonviiie Van Zandt, Irma Fonviiie Garrett and Mrs. Clara McCormick Fonviiie
             are recognized to be fully owned by the above named parties, free from any
             claim of any party hereto.'

      On the same day the above agreement was signed, the parties to it, except for appellee,
      executed a quitclaim deed to Beverly Fonviiie Van Zandt. The instrument expressed as
      consideration the sum of $10 .00 paid by 'Beverly Fonviiie Van Zandt, wifeof W. K. Van
      Zandt'. The grantors did 'bargain, sell, release and foreverquitclaim unto the said Beverly
                                                                                                       k$> %
Vi«™-/7ci n^vf wPctlQw ™m/nnriiment/TrhSH7h9Sehafi1 1 HQ83e7                                           1 9/1 8/901 ^
Van Zandt v. Van Zandt - Westlaw

            Further, with regard to the contention that the agreementwas contractual as to the property,
            it is noted that there is nowherea conveyanceto appellantof the property as a part of her
            separate estate.

              7 There are many cases dealing with conveyances between husband and wife. All of
            the leading cases are analyzed and discussed by our Supreme Court in Jackson v
            Hernandez, 155 Tex. 249, 285 S.W 2d 184. As we understand these cases from reading all
            of them and from the Supreme Court's interpretationof them in the last cited case, the parol
            evidence rule is operative to preclude parol evidence not merely because of a contractual
            consideration in the deed but because the deed from the husband or wife to the other
            contains the legally operative clauses conveying property to the grantee's separate estate.
            The same rule is applicable where a spouse though not named as a grantor was
            instrumental in procuring the deed to be so drawn. The reasoning is that the spouse
            conveying or causing to be conveyed by deed containing the legally operative granting and
            habendum clauses conclusivelyevidences an intent to make a giftto the grantee.

            In none of the instruments here involved were there these legallyoperative clauses.

              8 Considering all the evidence, we hold there was an issue of fact as to whether the
            $2,500.00 was in partial settlement of appellant's mother's estate. Also considering all of the
            evidence, the material part of which we have recited herein, we cannot "328 say that the
            jury's answer to Special Issue No. 3 was so contrary to the overwhelming weight and
            preponderance of the evidence as to be clearly wrong or manifestly unjust.

              9   As previously stated, the court divided the Investment Advisory Account equally with
            no statement as to whether he considered it community property or the property of both
            owned in equal proportions. As above stated, we are of the view that under the evidence it
            could not be community property. Whatever the court's theory the trial court has a broad
            discretion in partitioning the property. No contention is made that the division made was
            inequitable.

            Affirmed.


            All Citations

            451 S.W.2d 322



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                                                                                                                                                 frtf             S
i_^„„.//                „4-„^+1„„, ~~™/7^™lrv,0«+/T,4>^7V'KpKa61 1HQ8^e7                                                                   19/18/901^
Chapter 1: The Texas Marital Property System                                                   55

                     barred her entire cause of action.^ If he had no interest in the recovery,
                    his contributory negligence would not bar her cause of action,
       m. Gorman v. Gause: Doctrine of implied exclusion keeps two people from making an
          agreement to change the character of property.$ Doctrine of implied exclusion was
          applied to a prenuptial agreement, which had declared that no property acquired
          during the marriage would be community.^ The Court viewed this as an attempt by
          the parties to fix the character of marital property by means different from that
          recognized in the state constitution, and held the agreement to be void and
          unenforceable,
       n. Strickland v. Webster: Wife had purchased property from her husband with money
          she earned as a school teacher.^ The couple had entered into an agreement that her
          personal earnings would be her separate property.$ While that agreement was
          found to be invalid, because community property law cannot be changed by contract,
          the deed executed by the husband conveying the property was effective as a gift,
       o. King v. Bruce: A husband and wife attempted to partition their community property
          into the separate property of each via an elaborate series of transactions.^ The court
          held that the couplers attempt was ineffective, as it was not recognized by the
          constitution as a means of acquiring separate property.
                    i. Article 16 was amended to include $15 after this case.
  C. The Constitution as Amended in 1948
        a. Article 16 $15: Separate and Community Property of Husband and Wife: All
           property, both real and personal, of the wife, owned or claimed by her before
           marriage, and that acquired afterward by gift, devise, or descent, shall be the
           separate property of the wife; and laws shall be passed more clearly defining the
           rights of the wife, in relation as well to her separate property as that held in common
           with her husband; provided that husband and wife, without prejudice to preexisting
           creditors, may from time to time by written instrument as if the wife were a feme
          sole partition between themselves in severalty or into equal undivided interests all or
          any part of their existing community property, or exchange between themselves the
           community interest of one spouse in any property for the community interest of the
           other spouse in other community property, whereupon the portion or interest set
           aside to each spouse shall be and constitute a part of the separate property of such
           spouse.
                      i. Partition^ H and W hold Whiteacre as community property.^ They
                     decide to split it and one half becomes H$s separate property and one half
                     becomes W$s separate property.
                      ii.   Exchanged H and W hold Greenacre and Blackacre as separate
                     property.$ H exchanges his community property interest in Blackacre for
                     W$s community property interest in Greenacre, and so then all of
                     Greenacre is H$s separate property and all of Blackacre is W$s separate
                     property.
        b. These are two new ways to create separate property.
        c. Creditors are protected in that if the partition or exchange that creates separate
           property prejudices creditors, it$s held invalid.$ Fact question.
        d. These cannot be done in a prenuptial agreement^ the couple must be married.
        e. Must be done on existing community property
                     i. Can partition a bank account, but cannot partition future interest earned
                     on it.$ Interest earned next year will be community and will have to be
                     partitioned again.
                     ii. If they separated the accounts so each spouse had their own account,
                     the interest earned will still be community property.
                     iii. What do you do to make the interest separate property?^ Do an
                      exchange at the end ofeach year, after the interest has been earned.



httns://www.stcl.edu/students/SBA%20Outline%20Bank/Marit...
                                                                                 ft?? *1
                                                                                     12/17/2015
                                                       Family Code—Title 1
                              Chapter 3. Marital Property Rights & Liabilities
                                                                 §§3.101 - 3.102




by one of the spouses after marriage by toil, talent, in                           constitutes his sole-management community property.
dustry or other productive faculty belongs to the com                              [H's] credit reputation is also his sole-management
munity estate. Nevertheless, the law contemplates that                             community property, asitwas acquired, atleast inpart,
aspouse may expend a reasonable amount of talent or                                during the marriage and would have belonged solely to
labor inthemanagement and preservation ofhis orher                                 him were he not married."
separate estate without impressing acommunity char                                    Medenco, Inc. v. Myklebust, 615 S.W.2d 187,189
acter upon that estate."                                                           (Tex.1981). "During marriage, community property
   Whittlesey v. Miller, 572 S.W.2d 665, 669 (Tex.                                 employment benefits acquired through employment
1978). "In the absence of evidence showing authority,                              are subject to the sole management, control and dispo
the mere relationship of husband and wife does not                                 sition ofthe employee spouse."
give the husband authority to contract with regard to                                Valdez v. Ramirez, 574 S.W.2d 748,750 (Tex.1978).
thewife's separate property."                                                      "While [W] was employed by the federal government
 FAM §3.102. MANAGING COMMUNITY                                                    and earning future rights to aretirement annuity, those
                           PROPERTY                                                contingent rights were community property, but such
    (a) During marriage, each spouse has the sole                                  inchoate rights are characterized by the Family Code as
management, control, and disposition of the commu                                  'special community' under [W's] sole management and
nity property that the spouse would have owned if                                  control. At 751: Thus, while being earned, the rightto a
                                                                                   future Civil Service retirement annuity was thespecial
 single, including:
                                                                                    community of [W], subject to her sole management,
     (1) personal earnings;                                                         control and disposition. As manager of this 'special
     (2) revenue from separateproperty;                                             community' asset, she had the contract right to select a
    (3) recoveries for personal injuries; and                                       mode of payment."
    (4) the increase and mutations of, and the revenue                                Jean v. Tyson-Jean, 118 S.W.3d 1, 5 (Tex.App.—
 from, all property subject tothe spouse's sole manage                              Houston [14th Dist.] 2003, pet. denied). "In general,
 ment,control, and disposition.                                                     community property is subject to the 'joint manage
    (b) Ifcommunity property subject to the sole man                                ment, control and disposition of the spouses unless the
 agement, control, and disposition of one spouse is                                 spouses provide otherwise by power of attorney in writ
 mixed orcombined with community property subject to                                ing or other agreement.' To effectuate avalid convey
 the sole management, control, and disposition of the                               ance, both spouses must necessarily be joined in a
 other spouse, then the mixed or combined community                                 transaction, [f ] However, where community property
 property is subject to the joint management, control,                              is held in one spouse's name only, there is a presump
 and disposition ofthespouses, unless thespouses pro                                tion that the property is sole-management community
 vide otherwise by power of attorney in writing or other                            property. [Family Code] §3.104 therefore trumps [Fam.
 agreement.
                                                                                    Code] §3.102. Absent a showing of fraud or notice on
      (c) Except as provided by Subsection (a), commu                                the part of persons dealing with the named spouse, this
  nity property is subject to thejoint management, con
                                                                                     sole-management presumption protects third parties
  trol, and disposition of the spouses unless the spouses                            who rely on the spouse's authority to deal with the prop
  provide otherwise by power of attorney in writing or                               erty."
  otheragreement.                                                                      Madrigal v. Madrigal, 115 S.W.3d 32, 34-35 (Tex.
     History of Fam. Code §3.102: Acts 1997, 75th Leg., ch. 7, §1, eff. Apr. 17,     App.—San Antonio 2003, no pet.). "Proceeds from alife
  1997.Source: Former Fam. Code §5.22.
      See also O'Connor's Texas Family Law Handbook (2015), "Manage
                                                                                     insurance policy acquired as a benefit of employment
  ment Rights over Community Property," ch. 2-B, §2, p. 138.                         during marriage are community property. The policy is
                               ANNOTATIONS
                                                                                     the sole management community property of the em
                                                                                     ployee spouse, and that spouse may designate the ben
                                                                                     eficiary of the policy. [I] Asurviving spouse estab
                            Sole Management
     Douglas v. Delp, 987 S.W.2d 879, 883 (Tex.1999).                                lishes aprima facie case of constructive fraud on the      GP9
  "[H's] loss of earning capacity during the marriage                                community by proof that the life insurance policy was
                                                                                                      O'CONNOR'S TEXAS FAMILY CODE         39   10
                                                              Family Code—Title 1
                                         Chapter 6.               Suit for Dissolution of Marriage
                                                                                  §6.602




$k Suit for dissolution of amarriage to mediation on the                                 settlementagreementand, since noallegation waspre
Stasis of family violence having been committed against                                  sented that the agreement was illegal, or procured by
^ the'objecting party by the other party. After an objection                             fraud, duress, or coercion, and there is no indication
  is-filed, the suit may not be referred to mediation un-                                the trialcourt sua sponte questioned the legality ofthe
 •i(,SSi on the request of the other party, ahearing is held                             agreement, the trial court was required toentera judg
  and the court finds that a preponderance of the evi                                    ment based on the mediated agreement. ... We hold
     dence does not support the objection. Ifthe suitis re                               that the judgment granting the divorce was rendered
     ferred to mediation, the court shall order appropriate                              [by oral pronouncement], and since thetrial court had
     measures be taken to ensure the physical and emo                                    no authority (absent an issue on illegality, duress, etc.
     tional safety of the party who filed the objection. The or                          raised either by the parties or the court sua sponte) to
     der shall provide that the parties not be required to                               do otherwise, the mediated settlement agreement was
     have face-to-face contact and that theparties be placed                             a part ofthedivorce rendition." See also Toler v. Sand
     in separate rooms during mediation.                                                 ers, 371 S.W.3d 477, 479-80 (Tex.App.—Houston [1st
         'rliitory of Fam. Code §6.602: Acts 1997, 75th Leg., ch. 7, §1, eff. Apr. 17,   Dist.] 2012, no pet.) (court cannot alter ormodify prop
     1997 Amended by Acts 1999,76th Leg., ch. 178, §2 (eff. Aug. 30,1999), ch. 1351,
     Si (i-ffSept. 1,1999).                                                              erty division in valid MSA).
          Sc;also O'Connor's Texas Family LawHandbook (2015), "Mediation,"
     c'i i\ §13.1.1, p. 240; "Mediation," ch.4-D, §10.1.1, p. 414.                          Leev. Lee, 158 S.W.3d 612, 613-14 (Tex.App.—Fort
         * "                      ANNOTATIONS
                                                                                         Worth 2005, no pet.). "Given that [Fam. Code]
                                                                                         §7.006(a) ... already allows divorcing parties to enter
 •       Milner v.Milner, 361 S.W.3d 615, 618 (Tex.2012).                                into written agreements without requiring mediation
     "Unlike other settlement agreements in family law, the                              concerning thedivision of thecommunity assets and li
     trial court is not required to determine if the property                            abilities as well as spousal maintenance, we decline to
     division is 'just and right' before approving an MSA                                carve a common-law exception into [Fam. Code]
     [under §6.602]. And once signed, [the] MSA cannot be                                §6.602(b) that allows an unmediated settlement agree
     revoked like other settlement agreements. At 618 n.2:                               ment to morph into a mediated settlement agreement
     {MSAs ] thatcomply with ... §6.602 are an exception to                              based on mere form. We hold that a mediated settle
     [the] general rule [that a party can revoke consent to a                            ment agreement necessarily requires mediation and a
     settlement agreement anytime before thecourt renders                                 mediator. [%] Because therewas no third party present
     judgment on the agreement]." After evaluating the                                    at the settlement conference between [parties], there
     MSA the Court remanded the property-division issue                                   was no mediated settlement agreement. Instead, the
     so the MSA's ambiguity could be resolved and a judg                                   couple's agreement is simply an agreement under
     ment could be rendered.
                                                                                           §7.006(a). Such agreements may be revised or repudi
          Morse v. Morse, 349 S.W.3d 55, 56 (Tex.App.—El                                   ated before the divorce is rendered unless the agree
     Paso 2010, no pet.)." [H] does not dispute that the MSA                               ment is binding under another rule oflaw. The trial
     meets all ofthe requirements of §6.602. Unless he can                                 court abused its discretion in preventing [H] from re
     establish a ground for revocation, it is binding. The                                 voking his consent to the settlement on the basis that
     only ground [H] alleges is that [W] intentionally                                     the agreement was a binding mediated settlement
     breached the [MSA] with malice by damaging certain                                    agreement."
      items of property. He cites no authority thatanMSA can
      be revoked due to a party's alleged intentional breach.                                 Mailhot v. Mailhot, 124 S.W.3d 775, 777 (Tex.
      Because [H] has failed to assert a viable ground for                                 App.—Houston [1st Dist.] 2003, no pet.). "It is well-
      setting aside or revoking the MSA, we deny his mo                                    settled that a judgment entered on the agreement of
      tion "                                                                               the parties cures all non-jurisdictional defects. Aparty
          in re Marriage of Joyner, 196 S.W.3d 883, 891                                    who asks the trial court to accept a settlement agree
      (Tex.App.—Texarkana 2006, pet. denied). "Section                                     ment and to enter judgment accordingly may not later
      6-602 has been classified as a 'procedural shortcut' for                             attack that judgment. To preserve error for appeal, a
      enforcement ofmediated settlement agreements in di                                   party who signs ajudgment must specify that his agree
                                                                                           ment with the judgment is as to form, but not as to sub
      vorce cases. ... Here, the parties were entitled to a
     -judgment incorporating the provisions of the mediated                                stance and outcome."

                                                                                                            O'CONNOR'S TEXAS FAMILY CODE
                                                                                                                                                     M
                                                       Family Code—Title 1
                               Chapter 3.             Marital Property Rights & liabilities
                                                                 §§3.005 - 3.007




    See also O'Connor's Texas Family Law Handbook (2015), "Income              riage before the grant could be exercised or the restric
from separate-property gift," ch. 2-A, §7.2.2(1), p. 106.
                                                                               tion removed, the period from the date of dissolution of
                            ANNOTATIONS
                                                                               the marriage until the date the grant couldbe exercised
                                                                               or the restriction removed; and
    Roberts v. Roberts, 999 S.W.2d 424, 432 (Tex.
App.—El Paso 1999, no pet.). "Generallyspeaking, one                              (B) the denominator is the periodfrom the date the
who is claiming the existence of a gift has the burden                         option or stock was granted until the date the grant
of proof. However, where the conveyance is from one                            could be exercised or the restriction removed; and
spouse to the other spouse, there is a presumption of                              (2) if the option or stock was granted to the spouse
gift, [f ] A gift by one spouse to another may be set                          during the marriage but required continued employ
aside if it is induced by duress or undue influence. In                        ment following the date ofdissolution of the marriage
such a case, the burden rests with the donee to show                           before the grant could be exercised or the restriction
that the gift was fair and equitable."                                         removed, the spouse's separate property interest is
                                                                               equal to the fraction of the option or restricted stock in
        FAM §3.006. PROPORTIONAL
         OWNERSHIP OF PROPERTY
                                                                               which:
           BY MARITAL ESTATES
                                                                                  (A) the numeratoris the periodfrom the date ofdis
    If the community estate of the spouses and the                             solution ofthe marriage until the date the grant couldbe
separate estate of a spouse have an ownershipinterest                          exercised or the restriction removed; and
in property, the respective ownership interests of the
                                                                                   (B) the denominator is the period from the date
marital estates are determined bythe rule of inception
                                                                               the option or stock was granted until the date the grant
of title.
                                                                               could be exercised or the restriction removed.
    History ofFam. Code §3.006: Acts 1999,76th Leg., ch.692, §1,eff.Sept. 1,
1999. Amended byActs 2001,77thLeg., ch.838,§3,eff.Sept.1,2001.                    (e) The computation described by Subsection (d)
                                                                               applies to each component of the benefit requiring
FAM §3.007. PROPERTY INTEREST IN
      CERTAIN EMPLOYEE BENEFITS                                                varying periods of employment before the grant could
                                                                               be exercised or the restriction removed.
   (a), (b) Repealed byActs 2009, 81st Leg., ch. 768,
§11(1), eff. Sept. 1,2009.                                                        (f) Repealed by Acts 2009, 81st Leg., ch. 768,
   (c) The separate property interest ofa spouse in a                          §11(1), eff. Sept. 1,2009.
                                                                                    History of Fam. Code §3.007: Acts 2005,79th Leg., ch.490, §1,eff. Sept. 1,
defined contribution retirement plan may be traced us                          2005. Amended byActs 2009,81st Leg., ch.768, §§1,11(1),eff. Sept. 1,2009.
ing the tracing and characterization principles that ap                            Author's comment: The 2009repeal ofFamily Code§3.007(a)and (b) ef
plyto a nonretirement asset.                                                   fectively reinstates the common-law formula forcalculating the community's
                                                                               interestindefined-benefit plansas described inBerry o.Berry, 647 S.W.2d 945
    (d) Aspouse who is a participant in an employer-                           (Tex.1983), and Taggart o. Taggart, 552S.W.2d 422(Tex.1977).
                                                                                    See alsoO'Connor's Texas FamilyLawHandbook (2015), "Dividing &
provided stock option plan or an employer-provided re                          Confirming Qualified Private Retirement Benefits," ch. 7-E, p.836.
stricted stock plan has a separate property interest in
the options or restricted stock granted to the spouse                                                       annotations


under the plan as follows:
                                                                                                               Generally
   (1) ifthe option or stock wasgranted to the spouse
before marriage but required continued employment                                 In re Marriage ofReinauer, 946 S.W.2d 853, 857
during marriage before the grantcould be exercised or                          (Tex.App—Amarillo 1997, writ denied). "[Retire
the restriction removed, the spouse's separate property
                                                                               ment pay ... connotes an earned property right that ac
interest is equal to the fraction of the option or re                          crued by reason ofyears ofservice ordeferred compen
                                                                               sation earned during each month of service. In other
stricted stock in which:
                                                                               words, the payment must, atthe very least, be aform of
      (A) the numerator is the sum of:                                         compensation accruing to the individual due to his
   (i) theperiod from thedate theoption orstock was                            years ofservice with the employer. Discretionary pay
granted until the date ofmarriage; and                                         ments made for purposes other than as compensation
   (ii) if the option or stock also required continued                         earned during an employee's tenure do not satisfy
employment following thedate ofdissolution ofthemar-                           these criteria and, thus, are not retirement payor ben-

 36    O'Connor's Texas Family Code


                                                                                                                   °i»                   U
          ^^^^^^%"
Boyd v. Boyd - Westlaw                                                                                                                                                 17


WestlawNext"
   Boyd v. Boyd
   Court ofAppealsofTexas,FortWorth.      January 3, 2002     67S.W.3d396 ifipprox 23 pages)                              SELECTED TOPICS

           >    Distinguished by Milner v Milner. Tex, March 9, 2012                                                      Divorce

                                                                                                                           Alimony, Allowances, and Disposition of
           °S Original Image of67S w 3d398(PDF)                                                                            Property
                                                                                                                              Military Retirement Pension Benefits of
                                                            67 S.W.3d 398                                                     Spouse
                                                  Court of Appeals of Texas,                                                  Interpreting Broad Release Provisions of
                                                             Fort Worth.                                                      Property Settlement Agreement


                                                                                                                          Disposition of Property
                                            Randall Cary BOYD,Appellant,
                                                                                                                           Property Division Portions of Divorce
                                                                  v.                                                        Decree

                                                 Ginger BOYD,Appellee.
                                                                                                                          Secondary Sources
                                            No. 2-00-218-CV.              Jan. 3, 2002.                                   Pension or retirement benefits as
                                                                                                                          subject to award or division by court in
          Wife filed for divorce. Parties entered into a mediated settlement agreement (MSA) that wife                    settlement of property rights between
                                                                                                                          spouses
          later rejected. The 322nd District Court, Tarrant County, Frank W Sullivan, III, J., held the
          MSA was unenforceable and signed divorce decree after trial on property issues. Husband                         94 A.L R.3d 176 (Originally published in
                                                                                                                          1979)
          appealed. The Court of Appeals, Livingston, J., held that: (1) failure to disclose bonus in
                                                                                                                          ...This annotation collects the cases
           MSA rendered it unenforceable; (2) award of half of retirement benefits to wife did not                        addressed to the issue whether a spouse's
                                                                                                                          pension or retirement benefits are subject to
           constitute division of husband's separate property; (3) husband lacked standing to complain
                                                                                                                          award or division by the court in settlement of
           that decree improperly imposed duties on Internal Revenue Service and his employer; and                        property rights between spouse...
           (4) amounts withheld from bonus payments for taxes, insurance, and interest were
                                                                                                                          § 10.10.Apportionment of retirement
           community property subject to division.                                                                        benefits

                                                                                                                          38 Tex. Prac, Marital Property And
           Affirmed.
                                                                                                                          Homesteads § 10.10
                                                                                                                          . .Retirement benefits are regarded as
                                                                                                                          employee compensation earned during a
               West Headnotes (29)
                                                                                                                          certain employment period. As such,
                                                                                                                          retirement benefits "earned by either spouse
                                                                                                        Change View       during the marital relationship are part of th...

                                                                                                                          § 22:38. When benefits are payable
                     Compromise and Settlement
                                                                                                                          3 Tex. Fam L. Serv. § 22:38
                     Ordinarily, settlement                                       Compromise and Settlement
                                                                                                                          . .Early retirement is generally subsidized by
                     agreements arising from                   89!                In General                              the employer. A qualified domestic relations
                     mediation are not binding                                                                            order (QDRO) provides for payment of the
                                                               89k1               Nature and Requisites                   actuarial amount of the early retirement
                     where one party withdraws                                                                            benefit. It does not provide f...
                                                               89k5               Making and Form of Agreement
                     consent to the agreement,
                                                               89kS(1             In general                              See More Secondary Sources
                      unless the other party
                      successfully sues to enforce
                      the settlement agreement as a                                                                       BRIEF OF PETITIONER ON THE
                      contract that complies with rule                                                                    MERITS

                      governing enforceable                                                                               1996 WL 694154
                      agreements. Vernon's                                                                                Boggs v. Boggs
                                                                                                                          United States Supreme Court Petitioners
                      Ann Texas Rules Civ.Proc .                                                                          Brief.
                                                                                                                          December 03, 1996
                       Rule 11.
                                                                                                                          ...FN* Counsel of Record The opinion of the
                                                                                                                          United Stales Court of Appeals for the Fifth
                       10 Cases that cite this
                                                                                                                          Circuit Is reported at 82 F.3d 90 (5th
                       headnote                                                                                           Cir.1996) and is reprinted in the Appendix to
                                                                                                                           Petition for Certiorari at Cer..


                       Divorce                                                                                             BRIEF OF THE EMPLOYERS COUNCIL
                                                                                                                           ON FLEXIBLE COMPENSATION AS
                       Unilateral withdrawal of                 134               Divorce
                                                                                                                           AMICUS CURIAE SUPPORTING
                       consent does not, however,               134V              Spousal Support. Allowances, and         PETITIONER

                       negate the enforceability of a                              Disposition of Property                 1996 WL 708046
                       mediated settlement                                        Settlement Agreements and                Boggs v. Boggs
                                                                134V(E)
                                                                                                                           United States Supreme Court Amicus Brief
                       agreement in a divorce                                      Stipulations                            December 06, 1996
                       proceeding, and a separate                                  Revocation, Rescission and              ...The Employers Council on Flexible
                       suit for enforcement of a                                   Repudiation by Acts or Agreements of    Compensation ("ECFC") submits this brief
                                                                                                                           amicus curiae supporting Petitioner. The
                                                                                   Parties
                       contract is not necessary.                                                                          parties have consented to the filing of this
                                                                                                                           brief    Correspondence reflecting the p...
                       V.T.C A., Family Code § 6.602.                              Unilateral withdrawal

                                                                                       (Formerly 205k279(2))               BRIEF FOR THE UNITED STATES AS
                       13 Cases that cite this                                                                             AMICUS CURIAE SUPPORTING
                       headnote                                                                                            PETITIONER
                                                                134



                                                                                                                                                        %*
                                                                                                                           1996 WL 714742
                                                                134V                                                       Boggs v. Boggs




u++-„.//„ «av+urMtlo„, ™™/r»^nm^r.t/Tn761 14np7h?1 IHQhffif)                                                                                    12/17/2015
                                                LOCAL. RULES
                                                TRAVIS COUNTY




    3.3 Damaging or destroying the tangible property               4. PERSONAL AND BUSINESS RECORDS IN
,f one or both of the parties, including any document           DIVORCE CASE. If this isa divorce case, both parties
hat represents or embodies anything of value.                   to the marriage are ORDERED to refrain from doing the
                                                                following acts:
   3.4 Tampering with the tangible property of one or              4.1 Concealing or destroying any family records,
ooth of the parties, including any document that repre          property records, financial records, business records or
sents or embodies anything of value, and causing pecu           any records of income, debts, or other obligations.
niary loss totheother party.
   3.5 Selling, transferring, assigning, mortgaging,               4.2 Falsifying any writing or record relating to the
                                                                property ofeitherparty.
encumbering, or in any other manner alienating any of
the property of either party, whether personal property             4.3 "Records" include e-mail or other digital or
or real estate property, and whether separate orcom             electronic data, whether stored on a computer hard
munity, except as specifically authorized by this order.        drive, diskette or other electronic storage device.
   3.6 Incurring any indebtedness, other than legal                 5. INSURANCE IN DIVORCE CASE. If this is a
expenses in connection with this suit, except as spe            divorce case, both parties to the marriage are OR
                                                                 DERED to refrain from doing the following acts:
cifically authorized by this order.
    3.7 Making withdrawals from any checking or sav                 5.1 Withdrawing or borrowing in any manner all or
 ings account in any financial institution for any pur           any part of the cash surrender value of life insurance
 pose, except as specifically authorized by this order.          policies on the life ofeither party, except as specifically
                                                                 authorized bythis order.
    3.8 Spending any sum of cash in either party's pos               5.2 Changing or in any manner altering the benefi
 session or subject to either parry's control for any pur        ciary designation on any life insurance on the life of
 pose, except as specifically authorized by this order.          either party or the parties' children.
    3.9 Withdrawing or borrowing in any manner for                   5.3 Canceling, altering, or in any manner affecting
 any purpose from any retirement, profit-sharing, pen             any casualty, automobile, or health insurance policies
 sion, death, or other employee benefit plan or employee          insuring the parties' property of persons including the
 savings plan or from any individual retirement account
 or Keogh account, except as specifically authorized by           parties' minor children.
                                                                    6. SPECIFIC AUTHORIZATIONS IN DIVORCE
 this order.
                                                                  CASE. If this is adivorce case, both parties to the mar
     3.10 Signing or endorsing the other party's name             riage are specifically authorized to do the following:
  on any negotiable instrument, check, or draft, such as              6.1 To engage in acts reasonable and necessary to
  tax refunds, insurance payments, and dividends, or at
  tempting to negotiate any negotiable instrument pay             the conduct of that party's usual business and occupa
  able to the other party without the personal signature          tion.
                                                                       62 To make expenditures and incur indebtedness
  of the other party.
     3.11 Taking any action to terminate or limit credit           for reasonable attorney's fees and expenses in connec
  or charge cards in the name of the other party.                  tion with this suit.
                                                                       6.3 To make expenditures and incur indebtedness
      3.12 Entering, operating, or exercising control over         for reasonable and necessary living expenses for food,
   the motor vehicle inthe possession of the other party.          clothing, shelter, transportation and medical care.
      3.13 Discontinuing or reducing the withholding for               64 To make withdrawals from accounts in finan
   federal income taxes on wages or salary while this suit         cial institutions only for the purposes authorized by this
   is pending.
      3.14 Terminating or in any manner affecting the
   service ofwater, electricity, gas, telephone, cable televi
                                                                   0n1\ SERVICE AND APPLICATION OF THIS OR-
                                                                    DER
   sion, or other contractual services, such as security,
   pest control, landscaping, or yard maintenance at the
                                                                       7.1 The Petitioner shall attach acopy^f this order
   other party's residence or in any manner attempting to
                                                                   to the original petition and to.each, copy £*£*£
   withdraw any deposits for service in connection with             At the time the petition is filed if thFe»l °" d
                                                                    failed to attach acopy of this order to the petition
    such services.                                                                                                         1463
                                                                                   O'CONNORS TEXAS FA«.LY CODE
CERTIFICATE OF SERVICE

EFILED


WITH FIFTH COURT OF APPEALS

DATED                     J^I^OlCkpJT
SIGNED                     a% Qg*o
                  \^>U>ho lOUx
         APPELLANT DIANA FAY BASS
