Opinion filed May 27, 2010




                                             In The


   Eleventh Court of Appeals
                                            __________

                                       No. 11-08-00296-CV
                                           __________

                      EDWARD LEROY SIKES, JR., Appellant

                                                V.

                             MOLLY KAY SIKES, Appellee


                             On Appeal from the 91st District Court

                                       Eastland County, Texas

                              Trial Court Cause No. CV-07-40858



                             MEMORANDUM OPINION
       This is a divorce proceeding. The trial court granted the parties a divorce and divided
their assets and liabilities. We affirm in part, modify and affirm in part, reverse and render in
part, and vacate and remand in part.
                                        I. Background Facts
       Edward Leroy Sikes, Jr. filed a petition for divorce against Molly Kay Sikes. Molly
responded with a counter-petition. Edward claimed a residence as his separate property. Molly
claimed unidentified property as her separate property, requested a disproportionate share of the
community property, and requested reimbursement and economic contribution.
       The trial court set the case for a final hearing. Molly and her counsel appeared, but
Edward and his counsel did not. The trial court was advised that Edward’s counsel was in the
hospital; however, at Molly’s request, it proceeded with the final hearing. The trial court heard
testimony and then entered a final divorce decree. The trial court awarded the residence to
Edward and awarded Molly two tracts of land, thirteen oil and gas leases, an $8,500 lien for
economic contribution, and a $25,000 lien for reimbursement.
                                                II. Issues Presented
       Edward challenges the divorce decree with three issues. Edward contends that the trial
court abused its discretion by not resetting the final hearing when it learned that his counsel was
hospitalized, that the trial court erred when it awarded his separate property to Molly, and that
the trial court erred when it awarded Molly economic contribution.
                                                 III. Resetting the Hearing
       When neither Edward nor his counsel appeared for the final hearing, Molly’s counsel
advised the trial court that he had provided opposing counsel notice of the final hearing by
certified mail; that he had a signed receipt; and that, when Edward’s counsel did not appear, he
contacted his office and was told that counsel was on the way. Molly’s counsel stated that, when
he later heard that Edward’s counsel might be hospitalized, he contacted him and learned that he
was waiting in the hospital. Molly’s counsel said that he offered to reset the hearing for the
afternoon but that Edward’s counsel declined because he was waiting on the doctor for a test and
was unsure when he would be out of the hospital. Molly’s counsel then requested the trial court
to proceed with the final hearing.
       The trial court stated that ordinarily it would not conduct a hearing when counsel was
hospitalized or seeking medical treatment but:
       [H]aving approximately 20 years of experience with [trial counsel],1 having
       witnessed many times when at the last minute when he’s not prepared for
       proceedings, he will go to a doctor, go to the hospital, call and say that he has to
       attend a funeral or make some other excuse, lie, engage in some other kind of
       deception, I’m very skeptical of his situation and have decided that we will
       proceed this morning, but with an understanding (footnote added).


       1
        Edward retained separate counsel for this appeal.

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       The trial court announced that, upon proper proof that Edward’s counsel was suffering a
medical crisis or condition that prevented him from attending the final hearing, it would grant a
new trial.
       Edward filed a motion for new trial and asserted that his counsel had been ill and
hospitalized for over four days. The motion was supported by the affidavit of Edward’s sister
and was sworn to by counsel; however, Edward tendered no medical records or other
independent confirmation of counsel’s medical condition or treatment. Edward’s motion was
overruled by operation of law. Edward does not challenge the denial of his motion for new trial
but, instead, contends that the trial court abused its discretion by not resetting the final hearing
after learning that his counsel was hospitalized.
       A trial court abuses its discretion when it acts without reference to any guiding rules or
principles or acts in an arbitrary or unreasonable manner. Downer v. Aquamarine Operators,
Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). The trial court did not abuse its discretion by
proceeding with the final hearing. First, TEX. R. CIV. P. 253 specifically provides that absence of
counsel is not good cause for a continuance except as allowed in the discretion of the trial court
upon cause shown. Second, the trial court was skeptical of counsel’s medical excuse. We must
give appropriate deference to the trial court’s credibility determination. Henry Schein, Inc. v.
Stromboe, 102 S.W.3d 675, 691 (Tex. 2002).              In this case, the record supports the court’s
skepticism because it establishes that Edward and his counsel also failed to attend two pretrial
hearings. Finally, even though the trial court announced that it would favorably consider a
motion for new trial supported by evidence other than counsel’s own affidavit, Edward never
provided any medical records or other documentation confirming his counsel’s medical problem.
Thus, the trial court did not act in an arbitrary or unreasonable manner. Issue one is overruled.
                                 IV. Separate Property Characterization
       Edward next argues that the trial court erred by awarding his separate real property to
Molly pointing to her testimony that he inherited this land before their marriage. Molly responds
that this issue has not been preserved because Edward did not request findings of fact or
conclusions of law. We cannot agree that Edward waived his ability to challenge the trial court’s
property division by not requesting findings of fact. When findings have not been filed or
requested, the judgment of the trial court after a bench trial implies all necessary findings of fact
to support itself. Schoeffler v. Denton, 813 S.W.2d 742, 744 (Tex. App.—Houston [14th Dist.]

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1991, no writ). It is Edward’s burden to show that the trial court’s judgment cannot be supported
by any legal theory raised by the evidence. Point Lookout W., Inc. v. Whorton, 742 S.W.2d 277,
279 (Tex. 1987).
         Trial courts must order a division of the estate of the parties in a manner that the court
deems just and right. TEX. FAM. CODE ANN. § 7.001 (Vernon 2006). However, the trial court
may divide only the parties’ community property. Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex.
1985).    Property possessed by either spouse in the course of marriage is presumed to be
community property. TEX. FAM. CODE ANN. § 3.003(a) (Vernon 2006). To overcome the
community property presumption, a party claiming marital property as separate property must
prove the claim with clear and convincing evidence. Section 3.003(b). Separate property
includes property owned by a spouse before marriage. See TEX. CONST. art. XVI, § 15. The
characterization of property as community or separate is determined by the inception of title, i.e.,
when a party first has a right of claim to the property by virtue of which title is finally vested.
TEX. FAM. CODE ANN. § 3.404(a) (Vernon Supp. 2009).
         Molly identified a 30.7-acre tract of land and a 73.8-acre tract of land during her
testimony. She testified that they were originally Edward’s and that they were given to him
when his father died. This testimony establishes that the two tracts were Edward’s separate
property. The trial court, however, awarded both tracts to Molly. It is well settled that trial
courts may not divest a party of its separate property when ordering a division of property. See
Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 142 (Tex. 1977). The trial court, therefore, erred
when it mischaracterized the two tracts.
         Mischaracterization of separate property as community property does not necessarily
require reversal of a judgment. Magill v. Magill, 816 S.W.2d 530, 533 (Tex. App.—Houston
[1st Dist.] 1991, writ denied). But, in this instance, it is clear that the mischaracterization had
more than a de minimis effect because Molly’s testimony established that the two tracts
represented a sizeable portion of the couple’s assets. See Vandiver v. Vandiver, 4 S.W.3d 300,
302 (Tex. App.—Corpus Christi 1999, pet. denied) (mischaracterization is not reversible unless
it has more than a de minimis effect on a just and right division). Edward’s second issue is
sustained.




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                                            V. Economic Contribution
         Edward complains in his third issue that the trial court erred by awarding Molly an
$8,500 lien for economic contribution of the community estate to Edward’s estate because there
was insufficient evidence to justify the award. When the community estate enhances property
owned by a separate estate, the community estate may make a claim for economic contribution.2
Molly testified that, when she and Edward separated, she was required to leave several personal
items that belonged to her before the marriage, that they were worth $8,500, and that they had
been disposed of because they were no longer at the residence.
         Capital improvements and debt reduction can give rise to an economic contribution
claim. There was some evidence of both. Molly testified that she and her sons built fences on
the tracts. She also testified that Edward’s property was mortgaged when they were married and
that she helped pay off his mortgage. But, there was no evidence to quantify either form of
economic contribution. When the economic contribution represents capital improvements, the
spouse seeking a recovery must produce evidence of the net equity of the separate property as of
the date of the first economic contribution by the community estate, the amount of economic
contributions by the marital estate, and the net equity of the separate property as of the date of
divorce. See Garcia v. Garcia, 170 S.W.3d 644 (Tex. App.—El Paso 2005, no pet.) (explaining
how to calculate an economic contribution award).                       When the contribution is from debt
payments, the claim is measured by the reduction of the principal amount of the debt secured by
a lien on property owned before marriage, to the extent the debt existed at the time of marriage.
In re Marriage of Cigainero, 305 S.W.3d 798, 799 (Tex. App.—Texarkana 2010, no pet.).
Molly’s testimony is insufficient to establish a claim for economic contribution because she did
not provide the court with any equity evidence, the value of the improvements, or the amount of
debt that was paid by the community estate.
         The trial court could, however, have concluded that the lost personal items were Molly’s
separate property and that Edward disposed of them during the pendency of the divorce. If so,
this would support a reimbursement award. See Garcia, 170 S.W.3d at 650 (an equitable right of
reimbursement arises when the funds or assets of one estate are used to benefit and enhance
another estate without itself receiving some benefit). The trial court did award Molly a $25,000

          2
            The statute providing for claims based upon economic contribution has been recently repealed. TEX. FAM. CODE
§ 3.403, repealed by Act of May 29, 2009, 81st Leg., R.S., ch. 768, § 11(3), 2009 Tex. Gen. Laws 1950, 1953 (eff. Sept. 1,
2009). The repealed text of the statute is effective for this case because it was filed before September 1, 2009.

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lien for reimbursement – an award Edward does not challenge on appeal. But there was sufficient
evidence to distinguish this award from the $8,500 claim. Molly testified that she had a house
and five acres of land prior to the marriage, that her equity was approximately $25,000, and that
this property was sold to pay Edward’s criminal defense costs.
        In Garcia, 170 S.W.3d at 652, the court held that mislabeling an award as
reimbursement rather than economic contribution did not require reversal because there were
pleadings supporting the evidence, the evidence supported the implied findings of fact, and the
findings support the judgment. The same situation is present in this case. Molly pleaded a
reimbursement claim, and the evidence supports an implied finding that her separate estate
benefitted his and that it did not receive a reciprocal benefit. This implied finding supports the
trial court’s division of the marital estate. Edward’s third issue is overruled.
                                              VI. Conclusion
       The portion of the divorce decree awarding Molly Kay Sikes a $25,000 lien for
reimbursement is affirmed. The portion of the divorce decree awarding Molly a lien for $8,500
representing economic contribution of the community estate to Edward Leroy Sikes, Jr.’s
separate estate is modified to reflect that the lien is for reimbursement to Molly’s separate estate.
As modified, that portion of the divorce decree is affirmed. The portions of the divorce decree
awarding Molly the 30.7-acre tract of land and the 73.8-acre tract of land are reversed. This
court renders judgment that these tracts are Edward’s separate property. To the extent that our
holding affects the just and right division of the community estate, the remaining portions of the
divorce decree pertaining to the division of property are vacated and remanded to the trial court.




                                                       RICK STRANGE
                                                       JUSTICE


May 27, 2010
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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