                                  NO. 12-17-00034-CV

                          IN THE COURT OF APPEALS

                  TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

IN THE MATTER OF THE                            §      APPEAL FROM THE 1ST
MARRIAGE OF NAINA LYNNE
GREEN AND JOHN BERNICE                          §      JUDICIAL DISTRICT COURT
MCDANIEL
                                                §      SABINE COUNTY, TEXAS

                                 MEMORANDUM OPINION
        Naina Lynne Green appeals the trial court’s final divorce decree, which characterized
certain real property known as “God’s Country RV Park” (the RV park) as part of the
community property of her marital estate with John Bernice McDaniel. In one issue, Green
argues that the RV park was her separate property, which McDaniel gave her as a gift during
their marriage. We affirm.


                                         BACKGROUND
        Green and McDaniel were married for over fifteen years when Green filed for divorce in
July 2015. The undisputed evidence at trial showed that they established the RV park during
their marriage. Green introduced into evidence a recorded quitclaim deed from McDaniel to her,
dated October 23, 2012, transferring his interest in the RV park to her. The quitclaim deed stated
the consideration given was “cash and other good and valuable consideration, a receipt and
sufficiency of which are hereby acknowledged, paid from grantee’s separate property.” But, at
trial, Green testified that McDaniel’s intent in signing the quitclaim deed was to give her the RV
park as a gift.
        McDaniel testified that at the time he executed the quitclaim deed, he had been having
heart problems.     He further testified that he had seen numerous heart doctors about this
condition. McDaniel stated that at the conclusion of his appointments with these doctors, Green
stayed behind to talk with the doctors. McDaniel further stated that what was said during these
conversations was not audible to him, but afterward, Green would tell him that “the doctor said it
really wasn’t good[;] you may not be with us very long.” McDaniel testified that after a number
of these conversations with Green, he agreed to sign the quitclaim deed.
         Green arranged for an attorney, whom McDaniel never had met, to prepare the quitclaim
deed. McDaniel testified that when he signed the quitclaim deed, he told the drafting attorney he
was doing so “just in case I pass away or something happens to me.” McDaniel further testified
that he told the attorney that it was not his intention to transfer his interest in the RV park to
Green unless something terrible happened to him.
         Ultimately, the trial court rendered a Final Decree of Divorce, which characterized the
RV park as community property and awarded one-half of it to Green and one-half of it to
McDaniel. The trial court entered the following conclusions of law regarding its division of the
RV park:

                   12.       Respondent denied execution of the deed for the property known as “God’s
         Country R.V. Park” and testified that it was procured through forgery or fraud, and the deed
         purported to be dated October 23, 2012, lacked an acknowledgment or notary. The Notary did not
         testify to assert otherwise.

                  13.      Grantor spouse was a party to the deed and subject to the parole evidence rule.

                  14.      Grantor spouse was not involved in having or directing the preparation of the
         deed. The deed recited only a cash consideration. The deed failed to state the property was
         conveyed as spouse’s sole and separate property. Grantor spouse did not intend to make a gift of
         property to grantee spouse. Although, a deed from one spouse as grantor to the other spouse as
         grantee creates a presumption that the grantee spouse received the property as separate property,
         the presumption was rebutted by fraud, allegations of forgery, the plain language of the deed, the
         lack of donative intent from the grantor and the lack of a recitation in the deed as grantee[’]s sole
         and separate property.


This appeal followed.


                                  CHARACTERIZATION OF THE RV PARK
         In her sole issue, Green contends that the trial court abused its discretion in characterizing
the RV park as community property instead of as her separate property.
Standard of Review
         We review the trial court’s characterization of the property at issue for abuse of
discretion. See In re Marriage of Skarda, 345 S.W.3d 665, 671 (Tex. App.–Amarillo 2011, no
pet.).   Property possessed by either spouse during or upon dissolution of the marriage is



                                                          2
presumed to be community property, and a spouse wishing to overcome the community property
presumption must prove the separate character of the property by clear and convincing evidence.
Viera v. Viera, 331 S.W.3d 195, 206 (Tex. App.–El Paso 2011, no pet.). Clear and convincing
evidence means the measure or degree of proof that will produce in the mind of the trier of fact a
firm belief or conviction as to the truth of the allegations sought to be established. See TEX.
FAM. CODE ANN. § 101.007 (West 2014).
        In conducting a legal sufficiency review under the clear and convincing evidence
standard, an appellate court reviews all of the evidence in the light most favorable to the trial
court’s finding to determine whether a reasonable trier of fact could have formed a firm belief or
conviction that its finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). Looking at
the evidence in the light most favorable to the judgment means that a reviewing court must
assume that the fact finder resolved disputed facts in favor of the finding if a reasonable fact
finder could do so. See id.
        When considering factual sufficiency of the evidence under the clear and convincing
evidence standard, we give due consideration to evidence the fact finder reasonably could have
found to be clear and convincing. See Magness v. Magness, 241 S.W.3d 910, 912 (Tex. App.–
Dallas 2007, pet. denied). We then consider whether disputed evidence is such that a reasonable
fact finder could not have resolved that disputed evidence in favor of its finding. In re J.F.C.,
96 S.W.3d at 266.
        A trial court’s findings of fact are of the same force and dignity as a jury’s answers to
jury questions. See York v. Boatman, 487 S.W.3d 635, 644 (Tex. App.–Texarkana 2016, no
pet.). The trial court’s findings of fact are reviewable for legal and factual sufficiency by the
same standards that are applied in reviewing legal or factual sufficiency of the evidence
supporting a jury’s answer to a jury question. Id. We conduct a de novo review of the trial
court’s conclusions of law. Id. Although a trial court’s conclusions of law are not reviewable for
factual sufficiency, we may review the trial court’s legal conclusions drawn from the facts to
determine whether the conclusions are correct. Id. We will uphold conclusions of law if the
judgment can be sustained on any legal theory supported by the evidence. City of Houston v.
Cotton, 171 S.W.3d 541, 546 (Tex. App.–Houston [14th Dist.] 2005, pet. denied).1


        1
           Regardless of the label, the trial court’s designation of a finding of fact or conclusion of law is not
controlling on appeal. See Ray v. Farmers’ State Bank of Hart, 576 S.W.2d 607, 608 n.1 (Tex. 1979); Banker v.


                                                        3
Governing Law
       In Texas, all marital property is characterized as either “separate” or “community.” See
Pace v. Pace, 160 S.W.3d 706, 711 (Tex. App.–Dallas 2005, pet. denied). As noted previously,
property possessed by either spouse during or upon the dissolution of their marriage is presumed
to be community property. TEX. FAM. CODE ANN. § 3.003(a) (West 2006). Property owned or
claimed by a spouse before marriage remains that spouse’s separate property during and after the
marriage. TEX. CONST. ANN. XVI, § 15 (West Supp. 2016); TEX. FAM. CODE ANN. § 3.001
(West 2006). A trial court may not divest a party of his separate property by a divorce decree.
Pace, 160 S.W.3d at 711.
       A gift is a voluntary transfer of property to another made gratuitously and without
consideration. Magness, 241 S.W.3d at 912. 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. Skarda, 345 S.W.3d at 671. The presumption may be
rebutted by proof the deed was procured by fraud, accident, or mistake. Magness, 241 S.W.3d at
912–13. The intent of the donor is the principle issue in determining whether a gift was made.
Skarda, 345 S.W.3d at 671.
       A husband and wife owe each other special fiduciary duties. See Vickery v. Vickery, 999
S.W.2d 342, 357 (Tex. 1999).         All transactions between a fiduciary and her principal are
presumptively fraudulent and void. See Jordan v. Lyles, 455 S.W.3d 785, 792 (Tex. App.–Tyler
2015, no pet.). Moreover, where a fiduciary relationship exists, the fiduciary must demonstrate
she acted fairly and informed the principal of all material facts relating to the alleged transaction.
Id. Even in the case of a gift between parties with a fiduciary relationship, equity indulges the
presumption of unfairness and invalidity, and requires proof at the hand of the party claiming
validity of the transaction that it is fair and reasonable. Id.; Estate of Townes v. Townes, 867
S.W.2d 414, 417 (Tex. App.–Houston [14th Dist.] 1993, writ denied).                In establishing the
fairness of a transaction involving a fiduciary, some of the most important factors are (1) whether
there was full disclosure regarding the transaction, (2) whether the consideration, if any, was
adequate, and (3) whether the beneficiary had the benefit of independent advice. Jordan, 455
S.W.3d at 792.


Banker, 517 S.W.3d 863, 870 (Tex. App.–Corpus Christi 2017, pet. denied). Conclusions which are actually
findings will be treated as findings, and vice versa. Banker, 517 S.W.3d at 870.


                                                   4
Analysis
       In the instant case, McDaniel testified that he executed the quitclaim deed to Green in
case he were to die from his heart condition. He argued that she now is attempting to use the
quitclaim deed to have the property characterized as separate property in their divorce
       Green contends that McDaniel could not testify during the divorce trial about any terms
that contradicted the quitclaim deed. We disagree. In determining whether a gift was intended
by the execution of a deed, we must look to the facts and circumstances surrounding the
execution, in addition to the recitations in the deed itself. Williams v. Kaufman, 275 S.W.3d
637, 641 (Tex. App.–Beaumont 2009, no pet.). The testimony of a party to a suit is competent to
raise an issue of fact. Id. The intent of the donor is the principle issue in determining whether a
gift was made. See Skarda, 345 S.W.3d at 671.
       Here, McDaniel testified that his purpose in signing the quitclaim deed was for the RV
park to go to Green in the event of his death. On the contrary, Green introduced the quitclaim
deed into evidence during trial in an attempt to demonstrate that the RV park was her separate
property. It is the province of the trier of fact to resolve such conflicts. See Williams, 275
S.W.3d at 641. The trial court may believe one witness and disbelieve others and may resolve
any inconsistencies in a witness’s testimony. Id. (citing McGalliar v. Kuhlmann, 722 S.W.2d
694, 697 (Tex. 1986)).
       Further, the quitclaim deed stated that Green paid McDaniel for the RV park out of her
separate property. But in contradiction to this language in the quitclaim deed, Green testified
that McDaniel gave her the RV park. Additionally, contrary to the language of the quitclaim
deed, McDaniel testified that after he signed the deed, the couple continued to use community
funds for the upkeep and maintenance of the RV park. See Jordan, 455 S.W.3d at 792 (in
establishing fairness of transaction involving a fiduciary, factors include adequacy of
consideration). Further still, there is no evidence that McDaniel had the benefit of independent
advice, but rather, only discussed the matter with Green’s attorney, a person whom he never had
met previously. See id. (fairness factors include independent advice). Lastly any evidence that
McDaniel received full disclosure concerning the transaction is suspect considering his
testimony that Green routinely had private conversations with his doctors prior to informing him
that his prognosis was dire.      See id. (fairness factors include full disclosure regarding
transaction).



                                                5
         Based on our review of the record, we conclude that there was not clear and convincing
evidence that McDaniel, in executing the quitclaim deed, intended to give the RV park to Green
as her separate property, except upon the condition of his death. See TEX. FAM. CODE ANN.
§ 101.007; see also J.F.C., 96 S.W.3d at 266; Magness, 241 S.W.3d at 912. Therefore, we hold
that the trial court did not abuse its discretion in characterizing the RV park as community
property. See Skarda, 345 S.W.3d at 671. Green’s sole issue is overruled.


                                                   DISPOSITION
         Having overruled Green’s sole issue, we affirm the trial court’s judgment.


                                                                 JAMES T. WORTHEN
                                                                    Chief Justice



Opinion delivered July 31, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                   (PUBLISH)




                                                          6
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             JULY 31, 2017


                                         NO. 12-17-00034-CV


                     IN THE MATTER OF THE MARRIAGE OF
               NAINA LYNNE GREEN AND JOHN BERNICE MCDANIEL


                                  Appeal from the 1st District Court
                             of Sabine County, Texas (Tr.Ct.No. 4258)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the Appellant, NAINA LYNNE GREEN, for which execution may issue, and that this
decision be certified to the court below for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
