                                 NO. 07-09-00191-CV

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL A

                                    JUNE 23, 2011


                 IN THE MATTER OF THE MARRIAGE OF VICKI SKARDA
                          AND GREGORY WAYNE SKARDA


           FROM THE COUNTY COURT AT LAW NO. 3 OF LUBBOCK COUNTY;

              NO. 2008-544,204; HONORABLE JUDY C. PARKER, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                       OPINION

       In this appeal from a divorce proceeding, appellant Gregory Skarda challenges

the trial court=s characterization of a tract of real property as one-half his separate

property and one-half the separate property of appellee Vicki Skarda.1 We will affirm.


                                      Background


       In June 2003, Gregory purchased real property located at 7913 FM 1264 in

Lubbock County. Payment was by promissory note secured by a vendor=s lien and

deed of trust.

       1
         For simplicity, we will refer to the parties by their given names. While not
material to the merits of this appeal, the decree granted Vicki=s request for name
change.
       Gregory and Vicki married in May 2004. They occupied a house on the FM 1264

property. On January 17, 2006, Gregory obtained refinancing of the FM 1264 property.

In connection with the refinancing, on that date he and Vicki signed a warranty deed

conveying the FM 1264 property to Gregory and Vicki as Ajoint tenants with right of

survivorship.@2 A deed of trust executed the same date identified Gregory and Vicki

jointly as Aborrower.@


       Vicki filed for divorce in July 2008, and the case was assigned to County Court at

Law No. 3 of Lubbock County. No children were born to the marriage and their dispute

on divorce concerned division of their marital estate. Following a bench trial, a decree

of divorce was rendered which included the following finding concerning the FM 1264

property:


       The court finds that [Gregory] owned the real property located at 7913 FM
       1264 . . . before marriage. After marriage [Gregory and Vicki] refinanced
       that property. During the refinancing process [Gregory] executed a deed
       transferring, by gift, a one-half interest to [Gregory] and a one-half
       separate property interest to [Vicki].

       No separate findings of fact and conclusions of law were requested.3           This

appeal followed.



       2
        The deed’s granting clause identified the grantor as “Gregory Skarda, a married
man and joined by his spouse Vicki Skarda,” and its grantee as “Gregory Skarda and
Vicki Skarda, husband and wife as joint tenants with right of survivorship.”
       3
        On the request of a party, a trial court rendering a decree of divorce dividing the
marital estate shall make findings of fact and conclusions of law. The findings and
conclusions must characterize and value each asset and liability on which disputed
evidence was presented. Tex. Fam. Code Ann. ' 6.711 (West 2006).

                                            2
                                             Issues


       Through three issues, Gregory challenges the decree=s finding concerning the

FM 1264 property. First, he assails the subject-matter jurisdiction of the trial court.

Second, he argues the finding of joint ownership of the FM 1264 property was in

derogation of a Rule 11 agreement between him and Vicki. Finally, he challenges the

factual sufficiency of the evidence supporting the finding that Gregory gifted a one-half

interest in the FM 1264 property to Vicki.


                                         Analysis


       In his first issue, Gregory asserts the trial court lacked subject-matter jurisdiction

to characterize his separate real property as the joint property of the parties.         His

jurisdictional challenge is founded on Government Code ' 26.043(8), which provides

that in civil matters a county court lacks jurisdiction in a suit for recovery of land. Tex.

Gov=t Code Ann. ' 26.043(8) (West 2004).


       Whether a trial court possesses subject-matter jurisdiction is a question of law we

review de novo. Texas Natural Res. Conservation Comm=n v. IT-Davy, 74 S.W.3d 849,

855 (Tex. 2002). In Title 2 of the Government Code, regarding the judicial branch of our

state government, the phrase Acounty court@ means the court created in each county by

Article V, Section 15 of the Texas Constitution. Tex. Gov=t Code Ann. ' 21.009(1) (West

2004); Tex. Const. art. V, ' 15.       Because it is a court enumerated in the Texas

Constitution, such a court often is referred to as the Aconstitutional county court.@ See

Tex. Gov’t Code Ann., ch. 26 (West 2004 & Supp. 2010) (entitled Constitutional County

                                               3
Courts); Santana v. Tex. Workforce Comm=n, No. 03-05-0452-CV, 2007 Tex. App. Lexis

6561, at *4 (Tex.App.--Austin Aug. 16, 2007, pet. denied) (mem. op.) (citing 1 Roy W.

McDonald & Elaine A. Grafton Carlson, Texas Civil Practice ' 3:3 (2d ed. 2004)).

Conversely, a Astatutory county court,@ such as Lubbock County Court at Law No. 3, is a

county court created by the Legislature under Article V, Section 1, of the Texas

Constitution. See Santana, 2007 Tex. App. Lexis 6561 at *7; Tex. Gov=t Code Ann. '

21.009(2) (West 2004); Tex. Gov=t Code Ann. ' 25.1541(a)(3) (West 2004) (providing

that County Court at Law No. 3 of Lubbock County is a statutory county court).


      The general grant of jurisdiction of a statutory county court includes concurrent

jurisdiction with constitutional county courts and district courts in civil cases with an

amount in controversy between $500 and $100,000.              Tex. Gov=t Code Ann. '

25.0003(a),(c)(1) (West Supp. 2010). Additionally, in family law cases and proceedings

the Legislature has specifically granted the county courts at law of Lubbock County

concurrent jurisdiction with the district court. Tex. Gov=t Code Ann. ' 25.1542 (West

2004). In Government Code Chapter 25 (Statutory County Courts) the phrase Afamily

law cases and proceedings@ incorporates suits for divorce “including the adjustment of

property rightsA and “every other matter incident to divorce . . . proceedings.@ Tex. Gov=t

Code Ann. ' 25.0002 (West 2004).


      Gregory cites Loville v. Loville as supporting his argument. 944 S.W.2d 818

(Tex.App.--Beaumont 1997, writ denied) (per curiam).          There, the appellate court

dismissed the appeal from a Jefferson County court at law, finding the underlying suit

was for recovery of land. Id. at 819. Looking to Government Code ' 25.0003(a) and

                                            4
(c)(1), the court found the county court at law was vested with the same jurisdiction as

the constitutional county court in original civil proceedings. Id. The court found that

since the constitutional county court lacked jurisdiction of a suit for recovery of land

because of the restriction of § 26.043(8), the statutory county court also lacked such

jurisdiction. Id.


       Government Code ' 26.043 is part of Government Code Chapter 26

(Constitutional County Courts). It contains no reference to statutory county courts, and

by its plain language thus affects the jurisdiction only of constitutional county courts. In

Loville, as noted, the court found § 26.043 applicable to the statutory county court only

by virtue of the provisions of § 25.0003(a) granting those courts the jurisdiction

prescribed by law for constitutional county courts. 944 S.W.2d at 819.4


       In Santana, the Austin court pointed out that the jurisdiction given statutory

county courts in Travis County exceeded that given similar courts in Jefferson County,

so the logic employed in Loville did not apply to restrain the jurisdiction of the Travis

County court. Santana, 2007 Tex. App. Lexis 6561, at *9; see Tex. Gov=t Code Ann. '

25.1252 & statutory history (West 2004) (Jefferson County court at law provisions). For

the same reason, Loville is inapposite here.      The Legislature has given the county

courts at law of Lubbock County concurrent jurisdiction with the district courts in family

law cases and proceedings. Resolution of disputed characterizations of property held


       4
        See Merit Mgmt. Partners I, L.P. v. Noelke, 266 S.W.3d 637, 643 (Tex.App.--
Austin 2008, no pet.) (applying same logic to jurisdiction of statutory county court in
Tom Green County).

                                             5
by the parties on divorce is a matter incident to divorce.5 The trial court did not lack

subject-matter jurisdiction. See generally Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71,

75 (Tex. 2000) (“jurisdiction” refers to authority of a court to adjudicate the type of

controversy involved in the action).


       Gregory’s first issue is overruled.


       In his second issue, Gregory urges the trial court abused its discretion by

ignoring the parties= Rule 11 agreement concerning the FM 1264 property. See Tex. R.

Civ. P. 11.


       The community estate of the parties was divided through a contested hearing.

The only Rule 11 agreement we find in the record is in the clerk=s record. Neither side

placed it in evidence at the hearing. AA trial judge is presumed to consider only the

testimony and exhibits properly in evidence. When reviewing the merits of the trial

court=s decision, we are limited to considering the material that was before the trial court

at the time that it ruled.@ Barnard v. Barnard, 133 S.W.3d 782, 789 (Tex.App.--Fort

Worth 2004, pet. denied) (citations omitted).


       5
         In a decree of divorce, a trial court 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
(West 2006). Inherent in this process is the characterization of each party’s assets.
See Tex. Fam. Code Ann. § 6.711(a)(1) (West 2006) (in suit for divorce where court has
divided marital estate of parties, on request court shall make written findings of fact and
conclusions of law concerning inter alia the characterization of each party’s assets);
Boyd v. Boyd, 131 S.W.3d 605, 617 (Tex.App.--Fort Worth 2004, no pet.) (if
mischaracterization of property is to degree affecting just and right division of
community estate appellate court must remand for just and right division based on
correct characterization).

                                             6
       But even had the agreement been in evidence, the trial court could not have

abused its discretion by failing to take its terms into account in characterizing and

dividing the parties= marital estate. We construe a Rule 11 agreement according to the

rules for construction of contracts. Dallas County v. Rischon Development Corp., 242

S.W.3d 90, 93 (Tex.App.--Dallas 2007, pet. denied). In so doing, we look to the plain

meaning of the words used to determine the extent of the parties’ agreement. Cross

Timbers Oil Co. v. Exxon Corp., 22 S.W.3d 24, 26 (Tex.App.--Amarillo 2000, no pet.).


       The agreement is expressly conditioned on the trial court finding the FM 1264

property was not included in the parties’ community estate. On that happening, the

agreement specifies that Vicki will sign a Acorrection deed stating that such real property

is the sole and separate property of [Gregory].@ The Rule 11 agreement does not

purport to be a stipulation to a particular characterization of the property, nor does it limit

or constrain the trial court in its task of resolving the parties’ dispute over its

characterization. Regardless whether the trial court’s characterization required some

action by the parties under the Rule 11 agreement, a matter not presented and on

which we express no opinion, the agreement does not demonstrate an abuse of

discretion by the trial court in its characterization. Gregory=s second issue is overruled.


       By his third issue, Gregory asserts the evidence was factually insufficient to

support the trial court=s finding that Gregory gifted a one-half interest in the FM 1264

property to Vicki.


       In a decree of divorce, a trial court 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
                                              7
(West 2006). Only the community property of the parties is subject to division. Jacobs

v. Jacobs, 687 S.W.2d 731, 733 (Tex. 1985). To determine whether the trial court erred

in characterizing property, we apply an abuse of discretion standard.      Raymond v.

Raymond, 190 S.W.3d 77, 80 (Tex.App.--Houston [1st Dist.] 2005, no pet.). Gregory

challenges the factual sufficiency of the evidence supporting the finding of gift. But

under the abuse of discretion standard we employ, the legal and factual sufficiency of

the evidence are not independent grounds of error, but relevant factors for determining

whether the trial court abused its discretion. Zieba v. Martin, 928 S.W.2d 782, 786

(Tex.App.--Houston [14th Dist.] 1996, no writ); Crawford v. Hope, 898 S.W.2d 937, 940-

41 (Tex.App.--Amarillo 1995, writ denied). If an abuse of discretion is shown, we then

consider whether the error was harmless. See Tex. R. App. P. 44.1(a).


      It is presumed that property possessed by spouses on the dissolution of marriage

is community property.       Tex. Fam. Code Ann. ' 3.003(a) (West 2006).        But the

presumption is overcome by clear and convincing evidence that the asset is the

separate property of a spouse. Id. at ' 3.003(b). Property a spouse owns before

marriage or acquires during marriage by gift is separate property. Tex. Const. art. XVI,

' 16; Tex. Fam. Code Ann. ' 3.001(2) (West 2006).         The separate or community

character of property is determined by the inception of title to the property. Jensen v.

Jensen, 665 S.W.2d 107, 109 (Tex. 1984).


      A deed for property from one spouse as grantor to the other spouse as grantee

creates a rebuttable presumption that the grantee spouse received the property as

separate property by gift.    Magness v. Magness, 241 S.W.3d 910, 913 (Tex.App.--

                                           8
Dallas 2007, pet. denied) (citing Raymond, 190 S.W.3d at 81; Dyer v. Dyer, 616 S.W.2d

663, 665 (Tex.Civ.App.--Corpus Christi 1981, writ dism=d w.o.j.). A gift is a transfer of

property made voluntarily and gratuitously, without consideration.              Ellebracht v.

Ellebracht, 735 S.W.2d 658, 662 (Tex.App.--Austin 1987, no writ). The existence of a

gift requires sufficient proof of: (1) intent to make a gift; (2) delivery of the property; and

(3) acceptance of the property. Hayes v. Rinehart, 65 S.W.3d 286, 289 (Tex.App.--

Eastland 2001, no pet.); In re Estate of Hamill, 866 S.W.2d 339, 344 (Tex.App.--

Amarillo 1993, no writ). The intent of the donor is the principal issue in determining

whether a gift was made. Hayes, 65 S.W.3d at 289.


       “[Joint] tenants have one and the same interest, accruing by one and the same

conveyance, commencing at one and the same time, and held by one and the same

undivided possession. Neither can be exclusively seised of any particular part of the

property, and is cotenant of the other; but each has an undivided moiety of the whole,

and not the whole of an undivided moiety.” Calvert v. Wallrath, 457 S.W.2d 376, 377-

378 (Tex. 1970) (quoting In re Tilley’s Estate, 166 App. Div. 240, 151 N.Y.S. 79, 80-81

(1915), aff’d 215 N.Y. 702, 109 N.E. 1094 (1915)). “[J]oint tenancy is a form of separate

property ownership and is wholly incompatible with community property concepts.”

Holmes v. Beatty, 290 S.W.3d 852, 859 (Tex. 2009) (quoting W. Reed Quilliam, Jr., A

Requiem for Hilley: Is Survivorship Community Property a Solution Worse than the

Problem?, 21 Tex. Tech L. Rev. 1153, 1167 (1990)).


       AWhether property given by one spouse to the other is a gift and the recipient=s

separate property is a fact-intensive decision.@ Hardy v. Hardy, No. 03-02-0780-CV,

                                              9
2003 Tex. App. Lexis 5106, at *11 (Tex.App.--Austin June 19, 2003, no pet.) (mem.

op.).   A trial court, sitting as trier of fact, is the sole judge of the credibility of the

witnesses and the weight assigned their testimony. Hatteberg v. Hatteberg, 933 S.W.2d

522, 530 (Tex.App.--Houston [1st Dist.] 1994, no writ). As such, the trial court may

consider all the facts and surrounding circumstances in connection with the testimony of

each witness and accept or reject all or any part of that testimony. Id.


        Here, trial began with the presumption that the FM 1264 property was community

property. Without dispute from Vicki, inception of title in Gregory before marriage was

established. The January 17 deed created a joint tenancy in the FM 1264 property in

Gregory and Vicki.     Otherwise, evidence of characterization was meager.         Gregory

testified he intended only to refinance the property and not give a half interest to Vicki.

Vicki agreed she received a one-half interest in the property by gift Aor otherwise@ but

also agreed the property was community in which she owned a one-half interest by

deed. There was no evidence the January 17 deed was procured by fraud, accident, or

mistake. By its nature, the joint tenancy created in Vicki by the January 17 deed was

her separate property. On this record, we are unable to say the trial court abused its

discretion in finding Vicki received a one-half interest in the FM 1264 property by gift.

See Magness, 241 S.W.3d at 913 (reaching same conclusion on similar facts).

Gregory=s third issue is overruled.




                                             10
                                       Conclusion


         Having overruled each of Gregory=s issues, we affirm the judgment of the trial

court.




                                                      James T. Campbell
                                                           Justice




                                           11
