      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-11-00253-CV



                                 Robert James Henry, Appellant

                                                  v.

                                     Gay Nell Henry, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT
          NO. 193,976A, HONORABLE FANCY H. JEZEK, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Robert James Henry appeals the district court’s final decree of divorce along

with various rulings in the underlying suit filed by Gay Nell Henry (Jones).1 Henry argues that the

district court erred by characterizing certain real property as community property, awarding personal

property to the parties in possession of same, voiding a gift warranty deed, denying disqualification

and recusal motions, declining to enter temporary orders for the protection of property pending

appeal, declining to enter findings of fact and conclusions of law, and declining to enter an order for

reimbursement or economic contribution from the community estate to Henry’s separate estate. We

will affirm the judgment.




       1
         As part of the divorce, Gay Nell Henry had her last name restored to “Jones,” which is how
she identifies herself. For clarity, we will refer to her as “Jones” and to appellant as “Henry.”
               The background of this case and evidence adduced at trial are well known to the

parties, and as such, we limit recitation of the facts. See Tex. R. App. P. 47.4 (generally requiring

issuance of memorandum opinion that is no longer than necessary to advise parties of Court’s

decision and basic reasons for it).


Characterization of real property in Temple, Texas

               A trial court must make a just and right division of the community estate upon

divorce. Tex. Fam. Code § 7.001. The trial court has broad discretion in its division of the marital

estate, and that division should be corrected on appeal only for an abuse of discretion. Murff

v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). We presume that the trial court properly exercised its

discretion, and appellant has the burden of proving from the record that the division was so

disproportionate, and thus unjust and unfair, as to constitute an abuse of discretion. Grossnickle

v. Grossnickle, 935 S.W.2d 830, 836 (Tex. App.—Texarkana 1996, writ denied). A trial court does

not abuse its discretion if there is some evidence of a substantive and probative nature supporting

its decision. Stout v. Christian, 593 S.W.2d 146, 151 (Tex. Civ. App.—Austin 1980, no writ).

               In his first issue, Henry argues that the court’s characterization of the home at

715 E. Downs in Temple, Texas as community property was incorrect because he purchased

the property in part with his social security or veteran’s disability funds. All property possessed by

either spouse during or on dissolution of marriage is presumed to be community property, and

overcoming this presumption requires clear and convincing evidence establishing the property is

separate. Tex. Fam. Code § 3.003. The spouse claiming certain property is separate must trace

and clearly identify the property claimed to be separate. Zagorski v. Zagorski, 116 S.W.3d 309,

                                                  2
316 (Tex. App.—Houston [14th Dist.] 2009, pet. denied). Jones testified that the house was built

with income that was earned or given to them during the marriage. Henry testified that he spent

social security or veteran’s disability funds on the Temple property and that he borrowed money

from a bank in Taylor to build the house. Henry put no evidence into the record proving or tracing

the source of funds used for the purchase of the Temple property or the house and improvements.

Mere testimony that property was purchased with separate property funds, without tracing,

is generally insufficient to rebut the community property presumption. Id.; see also In re Everse,

No. 07-11-00220-CV, 2013 Tex. App. LEXIS 7424, at *11 (Tex. App.—Amarillo June 18, 2013,

no pet.) (mem. op.) (noting decision in which court excluded from marital estate amount of wife’s

social security disability award that was traceable to purchase of modular home).

               Further, Henry’s testimony that he borrowed money to build the house in Temple

does not further his separate property claim. When a lender does not specifically look to the

borrower’s separate property for payment, a community debt has been incurred, and the money

borrowed or property bought is community property. Tedder v. Gardner Aldrich, LLP, No. 11-0767,

2013 Tex. LEXIS 393, at *9 (Tex. May 17, 2013) (quoting Joseph W. McKnight, Family Law:

Husband and Wife, 37 Sw. L.J. 65, 76-77 (1983)). There was no evidence that the bank agreed to

look solely to Henry’s separate property for payment of the house loan, and the district court found

that Henry failed to prove the house was built with his separate-property funds.

               Given the lack of evidence in the record to rebut the community-property

presumption, we conclude that Henry did not prove by clear and convincing evidence that




                                                 3
the Temple property was his separate property. As such, the court did not abuse its discretion by

determining that the Temple property was community property, and Henry’s first issue is overruled.


Award of personal property

                In his second issue, Henry argues that the court abused its discretion in awarding

each party the personal property in that respective party’s possession. Henry created a list of the

personal property items that he claimed, and the district court admitted that list into evidence. Henry

testified that the personal property on that list was left in the house in Temple and in his estimation

was worth $144,824. Jones disputed Henry’s allegation that she had possession of his items at

the house in Temple. The district court admitted an exhibit—to which Henry stated he had no

objection—containing Jones’s shorthand rendition of her testimony as to each of the items that

Henry claimed she had appropriated or sold. In that exhibit, Jones denied having the items that

Henry claimed and explained the whereabouts of items that were in existence.

                Considering the contradictory evidence, the district court could reasonably have

disregarded Henry’s testimony as not credible and not conclusive on the issue of the parties’ personal

property. It was within the court’s province to do so, as the trier of fact. See City of Keller v. Wilson,

168 S.W.3d 802, 819-20 (Tex. 2005) (noting factfinder is sole judge of witnesses’ credibility and

weight given to their testimony and may choose to believe one witness and disbelieve another);

Zagorski, 116 S.W.3d at 318 (reviewing court may not interfere with factfinder’s resolution

of conflicts in evidence or pass on weight or credibility of witnesses’ testimony). We cannot

conclude that Henry met his burden of showing the district court clearly abused its discretion by




                                                    4
awarding Jones and Henry the personal property in each party’s possession. Henry’s second issue

is overruled.


Validity of gift warranty deed on the couple’s home

                During the pendency of the divorce, Henry purported to transfer the couple’s

home by gift warranty deed to his daughters from a previous marriage, Valencia Tenell Henry and

Athela Rochelle Henry. The deed, which was recorded in the real property records of Bell County,

lists Henry as “grantor” and his daughters, who reside together at an address in Pflugerville,

as “grantee[s].” Jones asserted and the district court determined that the deed transferring the

home property from Henry to his daughters was void. Henry defends the property transfer in his

third issue, arguing that the deed was not void because there was no evidence that his daughters had

notice of his alleged intent to injure their stepmother’s rights.

                A spouse is prohibited from transferring community property pending a divorce

decree, and such transfer is void if it was made with the intent to injure the rights of the other spouse.

Tex. Fam. Code § 6.707(a). But a transfer is not void if a recipient of the transferred property lacked

notice of the intent to injure the other spouse’s rights. Id. § 6.707(b). The spouse seeking to void

a transfer incurred while a divorce suit was pending has the burden of proving such notice. Id.

§ 6.707(c).

                In reviewing a “no evidence” or legal-sufficiency complaint, we review the evidence

in the light most favorable to the challenged verdict, and indulge every reasonable inference that

would support it. City of Keller, 168 S.W.3d at 822. We credit favorable evidence if a reasonable

fact finder could and disregard contrary evidence unless a reasonable fact finder could not. Id.

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at 827. When the evidence falls within the zone of reasonable disagreement, we may not substitute

our judgment for that of the fact-finder. Id. at 822.

               Here, the district court heard undisputed evidence that during the pendency of the

divorce suit and while Jones still resided in the house, Henry unilaterally transferred the property to

his daughters. Henry and his daughters made payments on property taxes that became delinquent

after Henry stopped living there and the property was no longer in his name, but Henry did not

have any discussion about the taxes with Jones. Henry testified that he registered the home as a

church, but he did not give the Bell County Tax Appraisal District information about the church

registration because Jones was still living there. Henry and his daughter (who was a minister)

discussed their plan to use the house together as a church, and he hoped to hold services in the house

when the divorce was over and Jones was no longer occupying the house. We conclude that this

evidence—considered in the light most favorable to the district court’s judgment and after indulging

every reasonable inference in support of such judgment—tends to show that Henry and his daughter

talked about their plans for the house to function as a church, to the exclusion of Jones’s right to

continue occupying it as her home. The evidence further shows that Henry’s daughters never took

possession of the property that they purportedly owned. This evidence supports the district court’s

determination that Henry intended to injure Jones’s rights by transferring the property during the

pendency of their divorce and an inference that the property gifted to the daughters was transferred

with notice of Henry’s intent to injure Jones’s rights. See Tex. Fam. Code § 6.707; see also Wright

v. Wright, 280 S.W.3d 901, 909 (Tex. App.—Eastland 2009, no pet.) (trial court could infer that

purpose of husband’s stock transfer to third party during pendency of divorce was to deprive wife



                                                  6
of interest in company and husband’s actions demonstrated intent to deprive wife of as much

community property as possible). We overrule Henry’s third issue.


Motion to disqualify Jones’s counsel

               In his fourth issue, Henry argues that the district court erred in failing to

disqualify John Gauntt, Jones’s trial counsel. However, failure to timely seek disqualification

of counsel waives the complaint. Grant v. Thirteenth Court of Appeals, 888 S.W.2d 466, 468

(Tex. 1994); Vaughan v. Walther, 875 S.W.2d 690, 690 (Tex. 1994). We determine whether a

complaint is waived by considering the amount of time that elapsed between the date the aggrieved

party is aware of the possible conflict and the date that the party moves for disqualification. See

Vaughan, 875 S.W.2d at 690-91. Waiver also occurs by a party’s silence or inaction for an extended

period demonstrating the aggrieved party yielded a known right. Motor Vehicle Bd. of Tex. Dep’t

of Transp. v. El Paso Indep. Auto Dealers Ass’n, Inc., 1 S.W.3d 108, 111 (Tex. 1999).

               Here, Henry was aware of the basis for his disqualification complaint at the very

latest as of the date of the final hearing on the parties’ divorce, during which Henry testified

that Gauntt’s firm handled the execution of the deed to the Temple property. Henry never filed a

motion for Gauntt’s disqualification before the signing of the final decree. Instead, Henry waited

until two months after the decree was signed—eleven months after the final hearing—to file

the motion to disqualify. Henry’s untimely filing of his motion to disqualify counsel waived the

complaint. See Vaughan, 875 S.W.2d at 691 (concluding party waived disqualification complaint

by waiting six and one-half months from date when she had knowledge of basis for disqualification

before raising issue). We overrule Henry’s fourth issue.

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Recusal of District Court Judge

                 In his fifth issue, Henry argues that the district court judge erred in declining

to recuse herself.2 However, failure to file a timely motion to recuse waives the complaint. See

Tex. R. Civ. P. 18a; Blackwell v. Humble, 241 S.W.3d 707, 712-13 (Tex. App.—Austin 2007,

no pet.); see also McElwee v. McElwee, 911 S.W.2d 182, 185 (Tex. App.—Houston [1st Dist.] 1995,

writ denied) (concluding that party waived recusal complaint by failing to comply with civil

procedure rules).3 A motion is timely if filed at least “ten days before the date set for trial or other

hearing.” Tex. R. Civ. P. 18a(a); see Carmody v. State Farm Lloyds, 184 S.W.3d 419, 422

(Tex. App.—Dallas 2006, no pet.) (concluding that appellants’ recusal motion was untimely because

alleged grounds for recusal were known to appellants before hearing began but motion was not filed

until after judge heard argument and issued decision unfavorable to them).

                 Here, Henry did not file his motion to recuse ten days before the final hearing,

even though he was aware of the basis for his recusal complaint “early in this case.” See Tex. R.

Civ. P. 18a(a). At a hearing on his motion to recuse, Henry testified that when Judge Jezek was still

in private practice, he had a twenty-minute consultation with her about this divorce, but he disagreed

with her fees and decided not retain her legal services. Early in the divorce suit, Henry thought this

consultation provided grounds for recusal, yet he did not file his motion to recuse until after the final

decree was signed and after he had filed his notice of appeal. His untimely filing of the motion to




        2
            The record reflects that Judge William Bachus heard and denied Henry’s motion to recuse.
        3
         Henry filed his motion before amendments to Rule 18a became effective. See Tex. R. Civ.
P. 18a, 50 Tex. B.J. 850 (1987, amended 2011). As such, we apply the pre-amendment version.

                                                   8
recuse the district judge waived the complaint. See Tex. R. Civ. P. 18a(a); Carmody, 184 S.W.3d

at 422. We overrule Henry’s fifth issue.


Temporary orders

               In his sixth issue, Henry contends that the district court abused its discretion by

declining to enter his requested temporary orders pending appeal for protection of the Temple

property. Henry claimed that such orders were necessary because Jones was allowing the property

to deteriorate and was not paying property taxes. In support of his requested temporary orders,

Henry relied on sections 6.709 and 109.001 of the Family Code.

               The court did not abuse its discretion by declining to enter a temporary order under

section 109.001 of the Family Code, which applies to the protection of children, because Henry

and Jones did not have children together. See Tex. Fam. Code § 109.001. Further, temporary orders

under section 6.709 were not necessary because the final decree made adequate provision for the

protection of the Temple property. See id. § 6.709 (providing that within thirty days of date appeal

is perfected in suit for dissolution of marriage, trial court may render temporary order “necessary for

the preservation of the property and for the protection of the parties during the appeal”). The court’s

decree made Jones responsible for paying “all taxes and utilities on the property pending its sale”

and for “all maintenance and repairs necessary to keep the property in its present condition.” Henry

could have enforced the terms of this decree pertaining to protection of the property if they

were being violated pending appeal. See Tex. R. App. P. 25.1(h) (stating that unless judgment

is superseded or appellant is entitled to supersede judgment without security—neither of which apply

here—filing notice of appeal does not suspend enforcement of judgment). We cannot conclude

                                                  9
that Henry has shown a clear abuse of discretion based on the court’s declining to enter Henry’s

requested further orders for protection of the Temple property. We overrule Henry’s sixth issue.


Findings of fact and conclusions of law

               In his seventh issue, Henry complains of the district court’s declining to enter findings

of fact and conclusions of law. We conclude that any such error has been remedied by the court’s

filing of findings of fact and conclusions of law after this appeal was abated. See Tex. R. App.

P. 44.4; Brooks v. Housing Auth. of City of El Paso, 926 S.W.2d 316, 319 (Tex. App.—El Paso

1996, no writ) (trial court’s filing of findings of fact and conclusions of law after abatement

remedied appellee’s complaint about lack of findings and conclusions). Henry’s seventh issue is

overruled.


Reimbursement or economic contribution

               In his eighth and final issue, Henry argues that the district court erred by declining

to order reimbursement or economic contribution for funds that Henry’s separate estate spent

to improve the community estate.4 However, Henry failed to present the court with documentary

evidence of any expenditure by his separate estate on a community asset. See Vallone v. Vallone,

644 S.W.2d 455, 459 (Tex. 1982) (party claiming right of reimbursement has burden of pleading

and proving expenditures and improvements were made and that they are reimbursable); Hailey


       4
         The law applicable when the divorce petition was filed allowed such claims. See Act of
May 28, 2003, 78th Leg., R.S., ch. 230, § 1, 2003 Tex. Gen. Laws 1056, 1056, repealed by Act of
May 19, 2009, 81st Leg., R.S., ch. 768, § 11(3), 2009 Tex. Gen. Laws 1950, 1953 (former Tex. Fam.
Code § 3.403(a)) (“A marital estate that makes an economic contribution to the property owned by
another marital estate has a claim for economic contribution with respect to the benefited estate.”).

                                                  10
v. Hailey, 176 S.W.3d 374, 388 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (party seeking

economic contribution bears burden of proving that claim). Nor does the record contain any

pleading in which Henry makes a reimbursement or economic contribution claim. As such, we

overrule Henry’s eighth issue.


                                       CONCLUSION

               Having overruled all of Henry’s issues, we affirm the judgment.




                                             Jeff Rose, Justice

Before Justices Puryear, Rose, and Goodwin

Affirmed

Filed: April 18, 2014




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