                                      NO. 07-10-00134-CV

                                IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                             PANEL A

                                        JULY 28, 2011


               IN THE MATTER OF THE MARRIAGE OF DAVID MICHAEL
                     LITTLE AND CHARLENE MCDOWELL LITTLE


              FROM THE 85TH DISTRICT COURT OF BRAZOS COUNTY;

            NO. 07-002205-CVD-85; HONORABLE J. D. LANGLEY, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                 MEMORANDUM OPINION

       Through one issue, appellant Charlene McDowell Little (wife) argues the trial

court erred by failing to render a money judgment in her favor against appellee David

Michael Little (husband) on the dissolution of their marriage. Finding no error by the

trial court, we will affirm its judgment.


                                            Background


       During her marriage to husband, wife was involved in a motor vehicle accident

and reached a settlement of her resulting injury claim. In August 2007, husband filed a

petition for divorce alleging no-fault grounds. The couple had no children. Husband

requested a just and right division of the “estate of [husband and wife],” and
confirmation of his separate property. Wife did not file an answer but appeared with

counsel for trial.


       Following a bench trial, the court signed a decree of divorce in December 2009.

The decree contains provisions dividing the marital estate, awarding to each spouse

items of tangible and intangible property including accounts. In the next section of the

decree, which is entitled “Confirmation of Separate Property,” after a list of several items

confirmed to be the husband’s separate property, the decree contains the statement,

“The Court further confirms the following as the wife’s separate property . . . [t]he

$75,000 personal injury settlement previously obtained by the wife.” At trial, wife offered

no proof of the amount of her personal injury settlement nor did she offer evidence that

the entire amount received was compensation for personal injuries.1 Wife filed a motion

for new trial arguing she was also entitled to a money judgment against husband for

$75,000. Findings of fact and conclusions of law were neither requested nor filed.

Wife’s motion for new trial was overruled by operation of law and this appeal followed.


                                     Issue and Analysis


       Wife argues the trial court erred by not awarding her a $75,000 money judgment

against husband, as a means of recovering from him the item confirmed as her

separate property.     As the sole authority for her argument, wife cites Rule of Civil

Procedure 301.2       Husband points out wife filed no pleadings for the recovery of

       1
           Husband does not complain of the judgment by cross-appeal. Tex. R. App. P.
25.1(c).
       2
           In pertinent part, Rule 301 provides:

                                              2
separate property.     In her reply brief, wife concedes she filed no pleading seeking

recovery of her separate property, or requesting a money judgment against husband.

Wife does not deny the requirement for such pleadings. Rather, relying exclusively on

Rule of Civil Procedure 67,3 she argues she was entitled to a money judgment against

husband, based on an unspecified theory of recovery, because the matter was tried by

consent.


       A court’s judgment must conform to the pleadings. Tex. R. Civ. P. 67. But

claims or defenses tried by implied or express consent are treated as though raised by

the pleadings. Roark v. Stallworth Oil & Gas, 813 S.W.2d 492, 495 (Tex. 1991). An

issue not raised by a party’s pleading may be tried by consent if evidence on the issue

was developed under circumstances indicating the parties understood the issue was

part of the case and the other party failed to properly complain. Johnson v. Oliver, 250


       The judgment of the court shall conform to the pleadings, the nature of the
       case proved and the verdict, if any, and shall be so framed as to give the
       party all the relief to which he may be entitled either in law or equity.

Tex. R. Civ. P. 301.
       3
           Rule 67 provides:

       When issues not raised by the pleadings are tried by express or implied
       consent of the parties, they shall be treated in all respects as if they had
       been raised in the pleadings. In such case such amendment of the
       pleadings as may be necessary to cause them to conform to the evidence
       and to raise these issues may be made by leave of court upon motion of
       any party at any time up to the submission of the case to the Court or jury,
       but failure so to amend shall not affect the result of the trial of these
       issues; provided that written pleadings, before the time of submission,
       shall be necessary to the submission of questions, as is provided in Rules
       277 and 279.

Tex. R. Civ. P. 67.
                                            3
S.W.3d 182, 186 (Tex.App.--Dallas 2008, no pet.). However, when the evidence of an

unpleaded matter is relevant to pleaded issues, the evidence could not be expected to

elicit an objection so the unpleaded matter is not tried by consent.            Moneyhon v.

Moneyhon, 278 S.W.3d 874, 879 n.6 (Tex.App.--Houston [14th Dist.] 2009, no pet.).

Trial by consent “is intended to cover the exceptional case where it clearly appears from

the record as a whole that the parties tried the unpleaded issue. It is not intended to

establish a general rule of practice and should be applied with care, and in no event in a

doubtful situation.” Jay Fikes & Associates v. Walton, 578 S.W.2d 885, 889

(Tex.Civ.App.--Amarillo 1979, writ ref’d n.r.e.). The court determines whether an issue

was tried by consent by examining the record, not for evidence of the issue, but for

evidence of trial of the issue. Beck v. Walker, 154 S.W.3d 895, 901 n.3 (Tex.App.--

Dallas 2005, no pet.).


      Wife did not file a pleading seeking a money judgment against husband. The

only trial reference to wife’s personal injury claim and its settlement occurred in the

following testimonial exchange between wife and her counsel:


      Q.     Tell the court about [wife’s motor vehicle accident].

      A.    I was hit by a truck from behind. There was primarily damage to
      my knee, and I hit my head.

      Q.     Did that put you on permanent disability?

      A.     It was not debilitating, but I certainly still feel the pain in my knee.

      Q.     Okay. Did you file a lawsuit in that case?

      A.     I did.

      Q.     And did you settle that lawsuit?

                                              4
       A.     Yes, we did.

       Q.   Okay. And the proceeds that you received in that settlement, what
       happened to it?

       A.     I don’t think I still have anything left from the lawsuit.

       Q.     No, I mean, when you received the money, what did you do with it?

       A.      [Husband] had it. I mean, it was turned over to [husband]; but I--I
       can’t tell you what he did with it.

       Q.     So you don’t know what happened to it yourself?

       A.     No.

       Q.     Okay. Has he ever told you what he did with the funds?

       A.     I never questioned him about it. I don’t know what he did.

       The primary issue for trial in this case was division of the community estate of

husband and wife. In a divorce decree, the trial court “shall order a division of the

estate of the parties in a manner that the court deems just and right, having due regard

for the rights of each party and any children of the marriage.” Tex. Fam. Code Ann. §

7.001 (West 2006); see § 3.003(a) (presumption that all property possessed by either

spouse during marriage or on hand at dissolution of marriage is community). Evidence

of property acquired or owned during marriage, such as wife’s personal injury

settlement, was therefore highly relevant to division of the community estate. Wife

never asked the court for relief by counterclaim, either prior to or during trial, related to

recovery of her separate property from husband.           Indeed, during closing argument,

while questioning counsel for wife about his fee arrangement, the court commented, “I

haven’t heard a tort claim in this case.”          We conclude the brief mention of wife’s

personal injury settlement, relevant to division of the marital estate, is no evidence the

                                               5
court tried an unpleaded, and as yet unspecified, theory for recovery of separate

property funds from husband.4 The doctrine of trial by consent has no application here.

Accordingly, the trial court did not err by refusing to render a money judgment in favor of

wife.

        We overrule wife’s sole issue and affirm the judgment of the trial court.




                                                         James T. Campbell
                                                              Justice




        4
        Cf. Schleuter v. Schleuter, 975 S.W.2d 584, 587 (Tex. 1998) (distinguishing
recovery of separate property from division of marital estate).
                                              6
