                               Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                         No. 04-17-00701-CV

                                            Vicki A. GIL,
                                              Appellant

                                                  v.

                                       John R. HOLDERMAN,
                                               Appellee

                     From the 224th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2013-CI-20199
                              Honorable Renée Yanta, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: August 15, 2018

AFFIRMED

           Vicki A. Gil, pro se, appeals from a final decree of divorce. We construe her numerous

issues on appeal as a complaint that the trial court erred by failing to order the partition-by-sale of

a house that she and her former spouse, John R. Holderman, had purported to convey to

Holderman’s mother prior to the divorce proceeding. We affirm the trial court’s judgment.

                                            BACKGROUND

           In December 2013, Gil filed an original petition, alleging the parties had an informal or

common-law marriage before August 2007 and there were no children from the marriage. Gil
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sought a dissolution of the marriage on the grounds of insupportability and cruelty, a division of

community property, temporary orders, and her attorney’s fees. Holderman, who was pro se in the

trial court and is pro se on appeal, generally denied Gil’s allegations.

           At a bench trial, the primary issues were whether and when the parties had an informal

marriage and ownership of the houses where Gil and Holderman resided. We refer to the house

Gil lived in as the Bunker Hill House, and the house Holderman lived in as the Madeleine House. 1

The trial court signed a final decree of divorce, granted the divorce on both grounds alleged,

divided the community property, and awarded $1,000 to Gil’s lawyer as attorney’s fees. In the

final decree of divorce, the trial court found the Bunker Hill House was Gil’s separate property

and the Madeleine House belonged to neither Gil nor Holderman.

           The trial court also made findings of fact and conclusions of law. The following is a

summary of those findings and conclusions:

           Gil and Holderman began their relationship in 2003. The relationship was
           tumultuous, and they lived together sporadically. Gil purchased the Bunker Hill
           House before 2003. Gil and Holderman purchased the Madeleine House in 2010,
           with a loan from Holderman’s mother. The Bunker Hill House, not the Madeleine
           House, was Gil’s homestead, and Gil no longer lived in the Madeleine House after
           2013. In separate deeds executed in 2013, Gil and Holderman conveyed their
           interests in the Madeleine House to Holderman’s mother. The parties’ informal
           marriage commenced in February 2012, which is when Holderman gave Gil a
           wedding ring, Gil started helping Holderman raise his children from a prior
           marriage, and they started holding themselves out as being married.

Gil filed a motion for new trial on several grounds, including that the trial court erred by finding

the wrong date for the commencement of an informal marriage and by not voiding the deeds to the

Madeleine House. In the motion for new trial, Gil argued the deeds violated restrictions on the




1
    Gil’s issues on appeal relate to the Madeleine House.

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transfer of homestead property and were not validly executed in favor of Holderman’s mother. The

trial court denied the motion for new trial, and Gil timely appealed.

                                    ACCEPTANCE OF BENEFITS

       In his appellee’s brief, Holderman asserts without explanation that “applying the

Acceptance of the Benefits Doctrine renders the appeal moot, and must be dismissed for want of

jurisdiction. As a result of the divorce decree, [Gil] received $1000 in attorney’s fees and has

enjoyed the benefits of the decree thereafter.” The acceptance-of-benefits doctrine only “bars an

appeal if the appellant voluntarily accepts the judgment’s benefits and the opposing party is

thereby disadvantaged.” Kramer v. Kastleman, 508 S.W.3d 211, 217 (Tex. 2017). The burden of

proof rests on the party asserting the doctrine, and “[t]he failure to prove all essential elements is

fatal.” Id. Holderman has not provided any evidence or cited to any evidence in the record that Gil

accepted the benefits of the final decree of divorce. This failure of proof is fatal to Holderman’s

assertion of the acceptance-of-benefits doctrine. See id. We therefore conclude this appeal is not

moot, and proceed to address Gil’s issues.

                                     THE MADELEINE HOUSE

       Gil raises numerous issues, all of which challenge directly or indirectly the trial court’s

determination that neither Gil nor Holderman owned the Madeleine House. In her issues, Gil posits

that she is entitled to a judgment ordering a partition-by-sale of the Madeleine House, free and

clear of a 2012 deed of trust and two 2013 deeds that Gil and Holderman executed in favor of

Holderman’s mother. Gil further argues she is entitled to an equal distribution of the proceeds from

the sale of the Madeleine House. In support of her position, Gil challenges the 2012 deed of trust

and the 2013 deeds by which she and Holderman purported to convey their interests in the

Madeleine House to Holderman’s mother. We first address Gil’s challenge to the 2012 deed of

trust and then address her challenges to the 2013 deeds.
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A. 2012 Deed of Trust

       Gil argues the 2012 deed of trust is void or invalid because she went through bankruptcy

in 2010, she discharged the debt she owed to Holderman’s mother for the loan for the Madeleine

House during a bankruptcy 2010 proceeding, and there was no new consideration for the 2012

deed of trust. “The covenants in a deed of trust . . . are contractual.” Gregory v. Bank of Am., N.A.,

No. 04-16-00435-CV, 2017 WL 2561561, at *3 (Tex. App.—San Antonio June 14, 2017, no pet.)

(mem. op.). To have a valid enforceable contract, consideration is necessary. In re Estate of Childs,

No. 04-15-00623-CV, 2016 WL 3452624, at *3 (Tex. App.—San Antonio June 22, 2016, no pet.)

(mem. op.). “Consideration is a bargained-for exchange of promises or return performance and

consists of benefits and detriments to the contracting parties.” Id. “The party alleging lack of

consideration has the burden to rebut the presumption that a written contract is supported by

consideration.” Id.

       Initially, we note that in her pleadings, Gil did not request a declaration from the trial court

that the 2012 deed of trust was void or invalid. See In re Marriage of Day, 497 S.W.3d 87, 90-91

(Tex. App.—Houston [14th Dist.] 2016, pet. denied) (explaining judgments in divorce proceedings

must be supported by the pleadings). And although the evidence shows Gil discharged her debt to

Holderman’s mother in bankruptcy and Holderman’s mother released a lien on the Madeleine

House, both the bankruptcy and the release of the lien occurred in 2010, which is two years before

the 2012 deed of trust was executed. The evidence therefore does not show that the subsequently

executed 2012 deed of trust is void or invalid for lack of consideration.

       The 2012 deed of trust was admitted into evidence at the hearing. The deed of trust is a

written document containing an exchange of promises and rights. The deed of trust also recites it

is supported by consideration. Although Gil argues Holderman produced no evidence that there

was consideration, the burden was on Gil to rebut the presumption that the deed of trust was
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supported by consideration. See In re Estate of Childs, 2016 WL 3452624, at *3. Gil cites to no

evidence rebutting the presumption that the deed of trust was supported by valid consideration.

We therefore hold Gil has not established her entitlement to a declaration that the 2012 deed of

trust is void or invalid.

B. The 2013 Deeds

        Gil argues the 2013 deeds to the Madeleine House, which she and Holderman executed in

favor of Holderman’s mother, are void or invalid for several reasons. First, she argues the

Madeleine House was her homestead and the 2013 deeds did not comply with requirements to

convey an interest in homestead property. Second, Gil argues the Madeleine House was

community property because: (1) the house was purchased in 2010 and, contrary to the trial court’s

findings, the beginning date of the parties’ informal marriage was in 2007; and (2) although both

she and Holderman executed different deeds in 2013 conveying their own interests in the

Madeleine House to Holderman’s mother, the deeds were ineffective because neither deed was

executed by both her and Holderman.

        1. Whether the Madeleine House is Gil’s Homestead

        Gil argues the trial court erred by finding the Madeleine House was not her homestead

because she asserted the property was her homestead in a 2010 bankruptcy filing and she and

Holderman executed a joint affidavit in 2010 stating the Madeleine House was Gil’s homestead.

“To establish homestead rights, the claimant must show a combination of both overt acts of

homestead usage and the intention on the part of the owner to claim the land as a homestead.”

Dominguez v. Castaneda, 163 S.W.3d 318, 330 (Tex. App.—El Paso 2005, pet. denied). The party

claiming property is a homestead has the burden to establish the homestead character of the

property. Id. To establish a property as a homestead, “there must be proof of concurrence of usage

and intent on the part of the owner to claim the land as a homestead.” Salomon v. Lesay, 369
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S.W.3d 540, 554 (Tex. App.—Houston [1st Dist.] 2012, no pet.). “Possession and use of land by

one who owns it and who resides upon it makes it the homestead in law and in fact.” Sanchez v.

Telles, 960 S.W.2d 762, 770 (Tex. App.—El Paso 1997, pet. denied). However, mere ownership

of or residing in a house over a period of time alone does not convert property into a homestead.

Id.

       In its findings of fact and conclusions of law, the trial court found the Madeleine House

“was not the homestead of Ms. Gil; Bunker Hill was Ms. Gil’s homestead and remains her

homestead at the time of trial.” The trial court further found Gil left the Madeleine House “for the

last time in 2013,” and she conveyed her interest in the Madeleine House to Holderman’s mother

in 2013. Gil testified she moved out of the Madeleine House in January 2013. She also testified

she deeded her interest in the Madeleine House to Holderman’s mother in April 2013. Even if the

Madeleine House was Gil’s homestead in 2010, the evidence supports the trial court’s finding that

the Madeleine House was not Gil’s homestead at the time of trial. See Salomon, 369 S.W.3d at

554; Dominguez, 163 S.W.3d at 330; Sanchez, 960 S.W.2d at 770.

       2. Whether the Madeleine House Was Community Property

       Gil argues the trial court erred by finding that the beginning date of the parties’ informal

marriage was in February 2012, and that before being married, she and Holderman purchased the

Madeleine House as a non-married couple on April 29, 2010. In a judicial proceeding, an informal

marriage of two individuals may be proven by evidence that the individuals agreed to be married

and, after the agreement, they lived together in this state as spouses and represented to others that

they were married. TEX. FAM. CODE ANN. § 2.401(a)(2) (West Supp. 2017). “It is well-established

that the agreement to marry need not be shown by direct evidence, but may be implied or inferred

from evidence that establishes the elements of cohabitation and holding out to the public as

husband and wife.” Collora v. Navarro, 574 S.W.2d 65, 69 (Tex. 1978).
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       In its findings of fact, the trial court found that in February 2012, Holderman gave Gil a

ring they both considered a wedding ring; Gil raised Holderman’s children beginning in February

2012; Holderman started referring to Gil as his wife in 2012; Gil and Holderman held themselves

out as a married couple to numerous friends “[f]rom 2012 on”; in March 2013, Holderman gave

Gil permission to represent to DISH network that she was Vicki Holderman; and Holderman

allowed Gil to make such a representation in order to address a billing issue related to his DISH

Network account.

       Gil does not argue there is no evidence to support these findings. Instead, she argues

Holderman judicially admitted that he and Gil were married as of 2007 when he signed, under

oath, his Inventory and Appraisement. Holderman filed his Inventory and Appraisement in the trial

court to list all community and separate assets and liabilities. “A judicial admission is a formal

waiver of proof that dispenses with the production of evidence on an issue.” Restrepo v. All.

Riggers & Constructors, Ltd., 538 S.W.3d 724, 740 (Tex. App.—El Paso 2017, no pet.). “A

judicial admission must be a clear, deliberate, and unequivocal statement, and it occurs when an

assertion of fact is conclusively established in live pleadings, making the introduction of other

pleadings or evidence unnecessary.” Id.

       The trial court admitted the Inventory and Appraisement into evidence, but when asked

whether the document was an admission showing the parties were married, Holderman responded,

“Absolutely not.” Furthermore, the Inventory and Appraisement does not clearly or unequivocally

state Gil and Holderman agreed to be married and after the agreement they lived together in Texas

as spouses. The Inventory and Appraisement, which Holderman executed in 2015, also does not

provide a date on which the parties agreed to be married or held themselves out as being married.

It also does not list the Madeleine House as community property. We hold Holderman’s Inventory

and Appraisement is not a judicial admission establishing that the parties had an informal marriage
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before they jointly purchased the Madeleine House in 2010 or that the Madeleine House was

community property. See id. Gil and Holderman each had the authority to convey their respective

separate property interests in the Madeleine House by separate deeds without the other’s signature.

See Rife v. Kerr, 513 S.W.3d 601, 613 (Tex. App.—San Antonio 2016, pet. denied). 2 Thus, the

2013 deeds effectively conveyed Gil’s and Holderman’s respective interests in the Madeleine

House to Holderman’s mother. Consequently, the trial court correctly found that neither Gil nor

Holderman owned the Madeleine House.

                                                   CONCLUSION

         We conclude Gil is not entitled to a judgment ordering a partition-by-sale of the Madeleine

House, free and clear of a 2012 deed of trust or the two 2013 deeds, which Gil and Holderman

executed in favor of Holderman’s mother. The record supports the trial court’s determination in

the final decree of divorce that the Madeleine House does not belong to either Gil or Holderman. 3

We therefore affirm the trial court’s judgment. 4

                                                           Luz Elena D. Chapa, Justice




2
  Alternatively, Holderman’s deed, which he executed after Gil executed her deed to Holderman’s mother, was
evidence that he ratified Gil’s prior conveyance. Cf. Leyva v. Rodriguez, 195 S.W.2d 704, 710 (Tex. Civ. App.—San
Antonio 1946, writ ref’d n.r.e.).
3
  To the extent Gil intended to raise any other issues or challenge any other parts of the judgment, we hold Gil waived
the issues because she failed to present a clear and concise argument and cite appropriate authority. See TEX. R. APP.
P. 38.1(i).
4
  Holderman argues in his appellee’s brief that this is a frivolous appeal and that we should dismiss Gil’s appeal.
Exercising our discretion, we decline to dismiss this appeal. See Chapman v. Hootman, 999 S.W.2d 118, 124 (Tex.
App.—Houston [14th Dist.] 1999, no pet.) (holding sanctions for filing a frivolous appeal is within appellate court’s
discretion).

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