      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-17-00138-CV



                                 Shawn Hall Lecuona, Appellant

                                                  v.

                                   Mark R. Lecuona, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
        NO. D-1-FM-14-002342, HONORABLE KARIN CRUMP, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Shawn Hall Lecuona appeals from a final divorce decree that ended her marriage to

Mark R. Lecuona. We will affirm the decree.

                Mark was the petitioner below,1 and the sole ground for divorce on which he relied,

and which the district court subsequently found, was the no-fault “insupportability” ground.2 Shawn

opposed the divorce on religious grounds and urged that Mark’s suit, and particularly the no-fault

“insupportability” standard on which he relied, unconstitutionally infringed her protected interests




       1
           We refer to the parties by their first names because they share a surname.
       2
           See Tex. Fam. Code § 6.001 (“On the petition of either party to a marriage, the court may
grant a divorce without regard to fault if the marriage has become insupportable because of discord
or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents
any reasonable expectation of reconciliation.”). The parties had been married since 1994, but Mark
alleged, without dispute, that the couple had been separated for approximately six years before he
filed his petition in 2014 and had remained so during the proceedings below.
in what she viewed as an immutable “blood covenant” among the couple and the Almighty.3 Shawn

brings a version of this argument forward on appeal as her first issue and chief ground for

reversal—she insists that the United States Supreme Court’s decision Obergefell v. Hodges,4 the

decision striking down state prohibitions against same-sex marriage as violative of a “right to marry

[that] is a fundamental right inherent in the liberty of the person” and protected by the Due Process

and Equal Protection Clauses of the federal constitution,5 translates into a constitutional restriction

against Mark’s unilateral invocation of Texas’s no-fault divorce law to end a marriage that she, for

professed religious reasons, desires to continue.6 We cannot agree that Obergefell, whose analysis

is rooted in the Supreme Court’s view of personal liberty,7 either directly or by implication

recognizes what would effectively be an affirmative constitutional right of one spouse to compel an

unwilling other spouse to remain married, in derogation of both the other spouse’s liberty and state


       3
         Shawn presented her most elaborate articulation of this theory through a counterclaim for
declaratory relief. The district court denied that relief by a pretrial written order. Later at trial,
Shawn raised religion-based objections or arguments that appeared to allude to the earlier claims.

        Shawn’s notice of appeal expressly challenges both the final decree and the order denying
her declaratory relief, which became final and appealable when the divorce decree was signed. See,
e.g., Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (“A judgment is final for purposes
of appeal if it disposes of all pending parties and claims in the record, except as necessary to
carry out the decree.” (citations omitted)). For this reason, we deny what is substantively a motion
by Mark to dismiss this portion of Shawn’s appeal based on her asserted failure to timely appeal
the ruling.
       4
           135 S. Ct. 2584 (2015).
       5
           Id. at 2604.
       6
          Mark disputes whether Shawn preserved the arguments she now raises on appeal, but the
issue is sufficiently close that we will afford her the benefit of any such doubts.
       7
           See id. at 2597–605.

                                                  2
divorce laws.8 In the very least, Shawn’s theory represents a significant and novel expansion of

Obergefell that is not properly undertaken by this intermediate state appellate court.9 We accordingly

overrule Shawn’s first issue.

               Aside from her arguments derived from Obergefell, Shawn brings two additional

issues, each of which challenge the sufficiency of the evidence supporting the decree. In her

second issue, Shawn insists that Mark failed to prove up the ground of insupportability. The record,

including Mark’s testimony, belies that contention. Shawn’s assertions to the contrary ultimately

implicate instead the district court’s judgments as to the credibility and weight of the evidence

presented.10 We overrule Shawn’s second issue.

               Shawn’s third issue is predicated on her first two, urging that the district court lacked

authority to divide the community estate because it had no authority to grant the divorce in the first

place. This contention fails for the preceding reasons. Alternatively, Shawn asserts that the district


       8
          Cf. Pidgeon v. Turner, 538 S.W.3d 73, 86–87 (Tex. 2017) (observing, in context of holding
that Obergefell “did not address and resolve” the issue of “whether and the extent to which the
Constitution requires states or cities to provide tax-funded benefits to same-sex couples” or
invalidate Texas “Defense of Marriage” enactments, “‘[w]hatever ramifications Obergefell may have
for sexual relations beyond the approval of same-sex marriage are unstated at best . . .’” (quoting
Coker v. Whittington, 858 F.3d 304, 307 (5th Cir. 2017), and citing other authorities recognizing
Obergefell’s limited scope)).
       9
           See Ex parte Morales, 212 S.W.3d 483, 488 (Tex. App.—Austin 2006, pet. ref’d)
(observing, in context of novel constitutional challenge to Penal Code Section 21.12, that “as an
intermediate state appellate court, we must . . . defer to the authoritative pronouncements of higher
courts that currently define the scope of the constitutional principles we apply here” (citing Petco
Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 564–65 (Tex. App.—Austin 2004, no pet.))).
       10
           See City of Keller v. Wilson, 168 S.W.3d 802, 822, 827 (Tex. 2005) (discussing principle
that we view the evidence in the light most favorable to the decision, crediting favorable evidence
if a reasonable fact-finder could, and disregarding contrary evidence unless a reasonable fact-finder
could not).

                                                  3
court improperly characterized certain of her retirement accounts as community property despite her

having established their separate character through clear and convincing evidence.11 We review the

district court’s division of property under an overarching abuse-of-discretion standard.12 To establish

an abuse of discretion here, Shawn must demonstrate that she presented conclusive evidence that the

accounts were separate property and that the mischaracterization materially impacted the district

court’s division of the community estate.13 “Evidence is conclusive only if reasonable people

could not differ in their conclusions.”14 The evidence fell short of conclusively establishing the

separate-property status of the retirement accounts—it included a property inventory from Shawn




       11
            See Pearson v. Fillingim, 332 S.W.3d 361, 363 (Tex. 2011) (per curiam) (“Parties
claiming certain property as their separate property have the burden of rebutting the presumption of
community property. To do so, they must trace and clearly identify the property in question as
separate by clear and convincing evidence.” (citing McKinley v. McKinley, 496 S.W.2d 540, 543
(Tex. 1973); Tex. Fam. Code § 3.003(b) (“The degree of proof necessary to establish that property
is separate property is clear and convincing evidence.”))).
       12
          See, e.g., Roberts v. Roberts, 531 S.W.3d 224, 232 (Tex. App.—San Antonio 2017, pet.
denied) (citing Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981)).
       13
           See Shields Ltd. P’ship v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017) (where party
attacks legal sufficiency of adverse finding (or failure to find) on issue on which it bears the burden
of proof, judgment must be sustained unless the record conclusively establishes all vital facts in
support of the issue); see also Matter of Marriage of Ramsey & Echols, 487 S.W.3d 762, 766 (Tex.
App.—Waco 2016, pet. denied) (“It is [the] appellant’s burden to prove that any disparity in the
division was caused by the mischaracterization of property and that it was of such substantial
proportions that it constituted an abuse of the trial court’s discretion.”).
       14
            City of Keller, 168 S.W.3d at 816.

                                                  4
herself in which she indicated that the accounts in question were community assets.15 We overrule

Shawn’s third issue.


                                        CONCLUSION

              We affirm the district court’s final divorce decree.



                                             _________________________________________
                                             Bob Pemberton, Justice

Before Chief Justice Rose, Justices Pemberton and Goodwin

Affirmed

Filed: June 15, 2018




       15
          See, e.g., Barras v. Barras, 396 S.W.3d 154, 164 (Tex. App.—Houston [14th Dist.] 2013,
pet. denied) (“[T]he clear and convincing standard is not satisfied by testimony that property
possessed at the time the marriage is dissolved is separate property when such testimony is
contradicted or unsupported by documentary evidence tracing the asserted separate nature of the
property.”); Graves v. Tomlinson, 329 S.W.3d 128, 139 (Tex. App.—Houston [14th Dist.] 2010, pet.
denied) (same).

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