                                   NO. 07-12-00084-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL A

                                     AUGUST 30, 2012


                 IN THE MATTER OF THE MARRIAGE OF LEANNE
               FARRELL COLLIER AND ROBERT GREG COLLIER AND
                      IN THE INTEREST OF R.C.C., A CHILD


             FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2007-539,120; HONORABLE DON EMERSON, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.

                                MEMORANDUM OPINION


       This appeal follows a previous appeal resulting in a reversal and remand by this

Court. See In re Collier, No. 07-09-00146-CV, 2011 Tex.App. LEXIS 13 (Tex.App.—

Amarillo Jan. 4, 2011, no pet.) (“Collier I”). Both the opinion and mandate this Court

issued in Collier I reversed “the visitation, child support, and just and right division of the

community estate portions of the divorce decree.” 1 Id. at *37. However, we held that,

“[i]n all other respects, we affirm the divorce decree.” Id. Having reversed a portion of

the trial court’s judgment, this Court “remand[ed] the case to the trial court for further

proceedings consistent with this opinion.” Id. at *38.

       1
          Greg’s appeal presents no issues relating to the trial court’s determinations of
visitation or child support. As such, this appeal will address only those issues germane
to the trial court’s just and right division of the marital estate.
       In the present appeal, appellant, Robert Greg Collier, contends that the trial court

erroneously construed the scope of this Court’s prior remand regarding the just and

right division of the community estate. Appellee, Leanne Farrell Collier, responds that

the trial court correctly construed the scope of this Court’s remand. Because each of

Greg’s three issues relate to either the characterization or valuation of property that this

Court did not find to be erroneous in Collier I, the scope of the remand in Collier I is

determinative of this appeal.      Because we conclude that the trial court correctly

construed the scope of this Court’s remand in Collier I, we will affirm the trial court’s

judgment.


                                        Background


       Greg and Leanne married in October of 2005. In early May 2007, Leanne filed

for divorce. Trial was held on April 23 and 24 of 2008, after which the trial court orally

granted the divorce. On February 5, 2009, the trial court signed its final decree of

divorce. After Greg requested findings of fact and conclusions of law, the trial court

issued findings and conclusions on April 2, 2009.         Greg appealed the trial court’s

divorce decree, which resulted in this Court’s opinion in Collier I.


       In that appeal, Greg challenged the trial court’s characterization and valuation of

horses that the trial court awarded to Greg. Id. at *21-22. After analyzing the record

evidence on both of these issues, we concluded that the trial court did not abuse its

discretion in characterizing the horses as community property, see id. at *27, or in

assessing the value of the horses at $520,000, see id. at *29-30. Greg also challenged

the trial court’s alleged inclusion of certain debts of Lea Acres, Inc., in the community

estate. Id. at *25. However, we held that the divorce decree did not divide these debts
                                              2
as part of the community estate. Id. at *26. Greg presented no issue in Collier I

challenging the trial court’s valuation of Lea Acres, Inc. The specific property issue that

resulted in this Court reversing the trial court’s just and right division of the community

estate was the trial court’s $100,000 reimbursement award to Leanne. Specifically, we

found that the trial court abused its discretion by awarding Leanne $100,000 in

reimbursement. Id. at *34-35. Because this error was such that it materially affected

the trial court’s just and right division of the community estate, we remanded the entire

community estate for a new division of the property. Id. at *35-36.


      On remand, the trial court sustained Leanne’s objections to the introduction of

new evidence regarding the proper characterization of the horses.          The trial court

explained that its ruling was necessitated because the original trial court found the

horses to be community property and this finding was affirmed by this Court in Collier I.

Greg requested and was allowed to make an offer of proof regarding the proper

characterization of the horses. Subsequently, Greg offered evidence regarding a lien

against the horses. Leanne objected to this evidence on the basis that the lien was a

separate property debt and that the trial court’s finding that the horses were valued at

$520,000 was affirmed by this Court in Collier I. The trial court sustained Leanne’s

objection. As to the value of the horses awarded to Greg, Greg made another offer of

proof regarding the lien against the horses. Later, Greg attempted to elicit testimony

regarding the value of Lea Acres, Inc., at the time of the trial court’s division of the

community estate. Leanne objected to this questioning on the basis that the trial court

had already found that the shares of Lea Acres, Inc., were valued at $1,000, and this

finding was not appealed by Greg in Collier I. The trial court sustained the objection,


                                            3
but let Greg make another offer of proof regarding the value of the shares of Lea Acres,

Inc.


       On December 9, 2011, the trial court entered its final decree of divorce after

hearing on remand.       As relevant to this appeal, this decree essentially mirrors the

decree reviewed by this Court in Collier I except that it removes an award of a 2006

GMC Sierra pick up to Leanne, 2 made Greg responsible for two credit card debts that

had been previously assessed against Leanne, made Greg responsible for two

additional debts, awarded a judgment against Greg and in favor of Leanne for $200,000

with five percent per annum interest, and denied both parties’ claims for reimbursement.


       From the divorce decree entered after remand, Greg appeals. By his first issue,

Greg contends that the trial court abused its discretion in denying admission of evidence

related to the characterization of the horses as separate property. By his second issue,

Greg contends that the trial court erred by basing its findings of fact and conclusions of

law regarding the characterization and value of the horses and the value of Lea Acres,

Inc., on prior findings of the trial court which were not part of the record on remand. By

his third issue, Greg contends that the evidence on remand was legally or factually

insufficient to support the trial court’s findings regarding the character and value of the

horses and the value of Lea Acres, Inc. Leanne responds contending that the issues

challenged by Greg in this appeal exceed the scope of the remand in Collier I and are

barred from relitigation by the law of the case doctrine, and that the trial court did not

improperly rely on the initial trial court’s findings and statements made by this Court in

its Collier I opinion.

       2
         The original decree’s award of this truck to Leanne appears to have been in
error since that decree also awarded the truck to Greg.
                                            4
                                    Scope of Remand


       Due to the property issues raised by Greg, the dispositive issue in this appeal is

the scope of this Court’s remand in Collier I. Our opinion in Collier I concludes that the

trial court erred in awarding Leanne $100,000 as reimbursement for community

contributions to Greg’s separate property, that this erroneous award materially affected

the just and right division of the community, and that the entire community estate must

be remanded for a new division of the community. Id. at *35-36. Consequently, our

opinion and mandate expressly reversed and remanded the just and right division of the

community estate. Id. at *37. Greg contends that our reversal and remand of “the

entire community estate for a new division” entitled him to a new trial on all community

property division issues. We disagree.


       As an initial matter, we note that the factual determinations of the character and

value of property are distinct from the judicial determination of the just and right division

of the community estate. See Cockerham v. Cockerham, 527 S.W.2d 162, 173 (Tex.

1975); Marr v. Marr, 905 S.W.2d 331, 333-34 (Tex.App.—Waco 1995, no writ). Thus,

our remand of the just and right division of the community estate in Collier I simply

remanded the judicial issue of the appropriate division of the community to the trial

court. However, as the task that we remanded to the trial court was to divide the “entire

community estate” in a just and right manner, it was necessary that the “entire

community estate” be remanded and subjected to the new division. See Jacobs v.

Jacobs, 687 S.W.2d 731, 732-33 (Tex. 1985) (citing McKnight v. McKnight, 543 S.W.2d

863, 867 (Tex. 1976), for proposition that remand for new just and right division of

community estate must be by remand of the entire community estate rather than

                                             5
remand of specific properties). As such, our remand of “the entire community estate for

a new division of the property,” see Collier, 2011 Tex.App. LEXIS 13, at *35-36, did not

entitle Greg to a new trial as to all property issues.


       This Court’s reversal and remand of the division of the community estate in

Collier I was necessitated solely by our determination that the trial court had made an

erroneous reimbursement award of $100,000. A court of appeals cannot make original

findings of fact; it can only unfind facts. Tex. Nat’l Bank v. Karnes, 717 S.W.2d 901, 903

(Tex. 1986); Halbert v. Halbert, 794 S.W.2d 535, 537 (Tex.App.—Tyler 1990, no writ).

Clearly, our opinion in Collier I unfound the trial court’s determination that Leanne was

entitled to a $100,000 award as reimbursement to the community. See Collier, 2011

Tex.App. LEXIS 13, at *35-36.        Further, our opinion in Collier I affirmed “all other”

property issues decided by the divorce decree. See id. at *37. One common means by

which a trial court’s just and right division of a community estate can constitute an

abuse of discretion is when it was based on an erroneous factual determination

regarding the character or value of specific property. See Jacobs, 687 S.W.2d at 732-

33 (remanding entire community estate for a new division due to erroneous

reimbursement awards and characterizations of specific properties); McKnight, 543

S.W.2d at 868 (error in characterizing partnership interest required remand of the

community estate for a new division). In such instances, a remand of the community

estate for a new division necessarily includes a remand of those specific factual

determinations which led the appellate court to determine that the just and right division

of the community estate was an abuse of discretion. Consequently, as applicable to the

present case, our unfinding of the trial court’s $100,000 reimbursement award in Collier

I necessarily remanded the issue of reimbursement to the trial court.
                                              6
       That Collier I remanded the parties’ reimbursement claims and the entire

community estate for a new just and right division is not disputed by the parties. Rather,

the dispute arises regarding whether our remand in Collier I went beyond these issues

and remanded all property issues for a new trial. Greg’s current appeal specifically

challenges the trial court’s refusal to reconsider the character and value of the horses

awarded to Greg in the first divorce decree, and the value of Lea Acres, Inc. As these

are the specific property issues raised by Greg in this appeal, we will limit our

discussion of the scope of the remand in Collier I to whether it encompassed these

issues.


       In Collier I, Greg specifically challenged the trial court’s characterization of the

horses as community property. See Collier, 2011 Tex.App. LEXIS 13, at *26-27. We

held that Greg failed to meet his burden to overcome the statutory presumption that the

horses were community property. Id. at *27. Greg also specifically challenged the trial

court’s finding that the horses awarded to Greg were valued at $520,000. Id. at *27.

We held that there was record evidence which supported the trial court’s valuation of

the horses and that Greg failed to establish that the trial court abused its discretion in its

valuation of the horses. See id. at *29-30. Finally, we note that Greg wholly failed to

challenge the valuation of Lea Acres, Inc., by his appeal in Collier I.


       When an appellate court is presented with a sufficiency challenge to a trial

court’s specific factual determination, the appellate court affirms the factual

determination, and the affirmation is not appealed to the Texas Supreme Court, that

factual determination becomes the law of the case and governs all subsequent

proceedings.    See Weynand v. Weynand, 990 S.W.2d 843, 845 (Tex.App.—Dallas

                                              7
1999, pet. denied) (affirmed factual determinations of existence and character of stock

that was not appealed to Texas Supreme Court constitutes law of the case and governs

all subsequent proceedings); Lee v. Lee, 44 S.W.3d 151, 154 (Tex.App.—Houston [1st

Dist.] 2001, pet. denied).   In the present case, this Court affirmed the trial court’s

characterization and valuation of the horses over Greg’s challenge to the sufficiency of

the evidence. See Collier, 2011 Tex.App. LEXIS 13, at *27, *29-30. Greg did not

appeal these holdings to the Texas Supreme Court.               As such, these factual

determinations became the law of the case and the trial court could not alter them on

remand. Similarly, Greg’s failure to appeal the trial court’s determination of the value of

Lea Acres, Inc. in the first appeal meant that it was a factual determination which was

affirmed by this Court in Collier I. See id. at *37 (“In all other respects, we affirm the

divorce decree.”).


       Greg argues that the law of the case doctrine does not apply to the factual issues

of the characterization and value of the horses because the law of the case of doctrine

applies only to questions of law. See Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex.

1986); Lifshutz v. Lifshutz, 199 S.W.3d 9, 20 (Tex.App.—San Antonio 2006, pet.

denied). We agree with Greg that issues of characterization of property and valuation of

property are factual issues at trial. See Cockerham, 527 S.W.2d at 173; Marr, 905

S.W.2d at 333-34.      However, our review of the trial court’s characterization and

valuation determinations in Collier I was under an abuse of discretion standard. See

Collier, 2011 Tex.App. LEXIS 13, at *21-36. Review of a trial court’s action under an

abuse of discretion standard is a question of law. In re B.G.D., 351 S.W.3d 131, 145

(Tex.App.—Fort Worth 2011, no pet.) (citing Landerman v. State Bar of Tex., 247

S.W.3d 426, 433 (Tex.App.—Dallas 2008, pet. denied)). Thus, our determination that
                                            8
the trial court did not abuse its discretion in characterizing and valuing the horses in

Collier I was the resolution of a question of law to which the law of the case doctrine

applies.


       Due to our resolution of the scope of our remand in Collier I, Greg has failed to

allege error relating to any issue that was properly before the trial court on remand. As

such, his appeal presents nothing for our review.


                                        Conclusion


       Having determined that Greg’s appeal of the divorce decree entered after

hearing on remand fails to present any issues that were properly before the trial court,

we affirm the judgment of the trial court.




                                                 Mackey K. Hancock
                                                    Justice


Campbell, J., concurring.




                                             9
