                                    11-0605
              FILED
       IN SUPREME COURT

         AUG 3.12011           mThe
                                                               ORIGINAL
                                                               v^l 1,v^
    BUKKEHAVfTHORNE^ClerK^ CourtofAppeah
                      Ninth District of Texas at Beaumont


                                  NO. 09-09-00519-CV




                           BETTY LOU JASPER, Appellant

                                            V.


                         THOMAS E. JASPER, Jr., Appellee


                       On Appeal from the 356th District Court
                              Hardin County, Texas
                                 Trial Cause No. 48884



                            MEMORANDUM OPINION


       Betty Lou Jasper appeals the trial court's judgment dividing the marital estate.

Betty claims the trial judge "lacked subject matter jurisdiction." Betty also contends the

trial court erred in not enforcing its own judgment, in denying her motion to strike, in

"failing to render judgmentf,]" and in awarding certain real property to Tommy Jasper.

       The trial court had subject matter jurisdiction. Appellant presents no error

requiring a reversal of the trial court's judgment. We therefore affirm the judgment.
                            I    i,' o




                                         Background


       Betty and Tommy lived at her house in Lumberton, and then they moved to the

property they purchased on Village Creek. They married. Over two years later, Tommy

filed a petition for divorce. The divorce decree confirmed separate property and divided

community property. Betty was ordered to vacate the Village Creek house within ten

days of the "execution" of the decree of divorce. Law enforcement officers forced Betty

to vacate the property. The trial court granted her motion for temporary injunction only in

part to preserve the status quo. Her request for sanctions and attorney's fees was denied

by the trial judge. Her motion for new trial was overruled by operation of law.

                                Subject Matter Jurisdiction


       Betty argues the judgment is void. She contends the assigned judge lacked subject

matter jurisdiction. Betty asks whether the judge was concerned with his compensation.

She questions his conduct. She asks for a new trial. Her brief on this issue does not cite

any authorities supporting her request. See Tex. R. App. P. 38.1(i) (Argument must

contain "appropriate citations to authorities[.]").

       The Presiding Judge for the Second Administrative Judicial Region of Texas

assigned a visiting judge to hear the case. See Tex. Gov't Code Ann. §§ 74.054, 74.056

(West 2005). Generally, visiting judges are assigned either to a particular case or for a

period of time. See In re Republic Parking Sys., Inc., 60 S.W.3d 877, 879 (Tex. App.—

Houston [14th Dist.] 2001, orig. proceeding). For the purpose of the assignment, an
assigned judge has the power of a judge of the court to which he was assigned. See Tex.

Gov't Code Ann. § 74.059(a) (West 2005); see also Ex parte Eastland, 811 S.W.2d 571,

572 (Tex. 1991) (orig. proceeding) (controlling effect of terms of assignment order).

       In this case, the district judge requested that the presiding judge assign a visiting

judge to the case. The order of assignment included in the clerk's record states that the

"assignment begins the 11th day of June, 2009 and is for the primary purpose of

presiding over Cause No. 48884; Thomas E. Jasper, Jr. v. Betty Lu Jasper [.]" The order

also provided the assignment "shall continue as may be necessary for the assigned Judge .

. . to complete trial of any case or cases begun during this assignment, and to pass on

motions for new trial and all other matters growing out of accumulated business or cases

heard before the Judge herein assigned, or until terminated by the Presiding Judge." The

assigned judge had authority to render judgment in this case; the trial court had subject

matter jurisdiction. Issue one is overruled.

                                         Execution


       Betty contends the trial court erred in not enforcing its own judgment, which

ordered Betty "to vacate the creek property home premises on or before ten (10) days

after the execution of this Final Decree of Divorce." Ten days after the trial court signed

the divorce decree, Betty was forced to leave the Village Creek property. She argues that

the phrase "execution of thejudgment" under Texas law means "afterthe mandate comes

down" from this Court, and that she was forced out prematurely.
       Betty relies on Rule 627 of the Texas Rules of Civil Procedure in arguing the writ

of execution could not issue ten days after the trial court signed the divorce decree. The

rule provides in part:

              If no supersedeas bond . . . has been filed and approved, the clerk of
       the court or justice of the peace shall issue the execution upon such
       judgment upon application of the successful party or his attorney after the
       expiration of thirty days from the time a final judgment is signed. If a
       timely motion for new trial or in arrest of judgment is filed, the clerk shall
       issue the execution upon the judgment on application of the party or his
       attorney after the expiration of thirty days from the time the order
       overruling the motion is signed or from the time the motion is overruled by
       operation of law.

Tex. R. Civ. P. 627.'

       "[Ejxecution of the judgment... is 'merely a direction to a ministerial officer to

permit enforcement of the judgment.'" In re Fischer-Stoker, 174 S.W.3d 268, 272 (Tex.

App.—Houston [1st Dist.] 2005, orig. proceeding) (quoting English v. English, 44

S.W.3d 102, 106 (Tex. App.—Houston [14th Dist.] 2001, no pet.)). The premature

issuance of a writ of execution is not the ultimate issue in this case. Assuming the trial

court used the word "execution" in the divorce decree in the same way the word is used

in Rule 627, '"premature issuance of a writ of execution does not render the writ void,

but is merely an irregularity, and the writ is voidable only.'" Thomas v. Thomas, 917

S.W.2d 425, 436 (Tex. App.—Waco 1996, no writ) (quoting Interstate Life Ins. Co. v.

Arrington, 307 S.W.2d 146, 148 (Tex. Civ. App.—Texarkana 1957, no writ)). The

       ^etty did not,file a supersedeas bond.
underlying issue presented is whether the trial court erred in awarding Tommy the

Village Creek property. If the judgment is correct, we should not reverse the judgment

only because an officer executed the writ prematurely. We therefore turn to Betty's

challenge to the award of the property.

                                 Division of Property


       Betty challenges the sufficiency of the evidence supporting the trial court's award

of the Village Creek property to Tommy. She maintains the trial court failed to

characterize the ownership interests of the parties in the Village Creek property and failed

to apply a clear-and-convincing requirement for proof. Betty claims the trial court abused

its discretion in giving the Village Creek property in its entirety to Tommy and in failing

to award reimbursement to Betty.

       Tommy testified that he was interested in the Village Creek property before he and

Betty met, and he told the property owners that he was interested in purchasing the

property. Prior to their marriage, the Village Creek property became available, and Betty

and Tommy bought the property for around $25,000. They paid notes to the owner. The

purchase included a 5.413 tract of land and an older mobile home.

       After Tommy and Betty married, Val Hickman, a friend and real estate broker for

whom Betty worked, told her about a newer mobile home that was for sale. Hickman

agreed to pay off the remaining $19,500 note on the Village Creek property, and

refinanced the property and the older mobile home for the Jaspers, along with the newer
mobile home and some renovation funds. Hickman paid Tommy's father, who helped

renovate the home.


       Hickman appraised the property at $65,000. At the time of trial, the Jaspers owed

about $56,000 on the note. Hickman did not recall any down payment, but he credited the

note with a commission check of $4,455 and then another "four or $5,000" commission

check Betty had earned. He said he received a monthly check towards the note, but did

not know who was making the payments.

       According to Betty, Hickman applied a $4500 commission check towards new

hardwood floors for the home. A commission check for $5,000 was applied for the down

payment. The monthly note on the Village Creek property at the time of trial was $800.

Betty claimed that payments for repairs to the home mostly came from her earnings, and

that 99.9% of the work came from her. She also claimed she invested $10,000 in the shed

on the property, and "cash" from the storage units to replace the windows in the old

trailer on the property.

       Tommy testified that he found the Village Creek property, and when asked if he

could only be awarded one asset in the divorce what would he want, he answered he

would want that property. Hetestified that Betty did not care as much about the property,

and she had made the statement that she did not want to livethere. Tommy improved the

property by cutting trees and doing dozer work. He built a large hill to put the house on,

and he added a storage building. He agreed that Betty initiated most of the improvements
to the mobile home, but explained that he and Betty made payments on the home and

property.

       In preparing for the divorce, Tommy told Betty he wanted the Village Creek

property and she agreed; he testified "she found her a place and she moved away" to a

house in Silsbee. Tommy explained that Betty then had a "total about-face" and moved

back into the house in April 2009. At the time of trial, Betty was living at the Village

Creek property with her grandchildren, who were placed in the home by Child Protective

Services. She testified that from late 2007 until trial, Tommy paid the electricity bills and

"things like that," and she paid the house note with her commissions. Later, she gave him

the checkbook. Tommy began paying the note on the Village Creek property and the

other bills out of their joint checking account.

       Hickman advanced funds for Betty and another person to purchase a restaurant

under the name of Laden Investments. The note to Hickman for the restaurant was for

$252,500, and Betty and her partner were "50/50 partners." At the time of trial, $247,294

was owed on the note. A business was leasing the restaurant for $5,500 per month

pursuant to a two-year lease agreement. Tommy introduced tax appraisal documents

reflecting the value of the real property where the restaurant was located at over

$250,000.

       Betty testified that at the time Laden Investments purchased the restaurant, it was

bringing in more than $80,000 a month, but within ten months of the purchase it was
unprofitable. She brokered the purchase and put $25,000 she received in commission

payments towards the down-payment on the restaurant. After Hurricane Ike, the

restaurant closed. She has heard that a lease contract is on the property for $5,500 per

month.


         Tommy testified that when he met Betty she was managing some storage

buildings, and prior to their marriage she purchased the storage buildings. Betty stated at

trial that when she purchased them "[tjhey were on the tax rolls for about 180 [thousand

dollars]." During the marriage, Tommy and Betty finished the fourth set of storage units

which amounted to around twenty or twenty-four units. Bettyowed an $800 monthly note

to the prior owners of the storage units. Betty told Tommy they were worth $400,000 or

more. Tommy said he did not think the storage units were worth quite that much, but he

consulted with other storage unit owners and "[t]hey thought that's what it was worth."

Tommy had heard a rumor that the storage units had been foreclosed on and sold, but he

did not know for sure. Tommy testified they made payments on the storage buildings

while they were married. According to Betty, when she began putting all her funds into

her failing restaurant, the foreclosure occurred because she could not pay the note on the
storage units.

       Tommy introduced a warranty deed for fourteen acres off Neyland Road in Hardin

County that Laden Investments purchased for $31,500. The appraisal district valued the

acreage at $42,390. Tommy's inventory showed that Betty and her partner each had


                                            8
equity of approximately $6,000 in the property. Betty testified Laden Investments had

only made eleven or twelve payments on the property and so she had minimal equity in

the property.

       Tommy testified that Betty has investment property "in the river bottom" and that

there is a lawsuit "with the timber company and then the Texas Forest Service" regarding

the property. Tommy assisted in the lawsuit by counting and measuring "a couple

thousand" stumps, traveling to Lufkin and College Station, and meeting with the Forest

Service. Betty explained that the 350 acres in the river bottom are worthless because "[i]t

gets 20 feet of water on it."

       Tommy introduced at trial an inventory of community property and separate

property with estimates of market value. Tommy testified that as far as he knew Betty

still owned her house in Lumberton. He described the house as a "[n]ice home in a

subdivision" that was "a good home[,] [but] needs some work[.]" He testified that "[a]s

far as [he] kn[e]w, [Betty] was making payments on it" and paying taxes on the property

while they were married.

       Betty testified she could not live at the home in Lumberton because it is

uninhabitable, although she testified her daughter was living at the home at the time of

trial. The plumbing is not working, there is no carpet, and the home contains black mold

and termites. Hickman has a lien on the home. A tree on the property could fall on her
roof at any time. She testified the plumbing is repairable, the black mold is treatable, and

for about $650 the tree could be cut down.

       Betty explained Tommy was behind on his bills when they met. She helped him

get out of debt. After they were married, she helped Tommy pay child support and

financial assistance to his ex-wife. According to Betty, she contributed about $2,000 to

$2,500 per month to a joint checking account, and he contributed $5,000 to $6,000 a

month. She testified that between 2006 and 2008 she made $5,000 a month in

commissions. She claimed she paid for the utilities and groceries. She testified they paid

for "a multitude of things" for Tommy's children.

       She testified she had between six and eight thousand dollars in the bank account at

DuPont Federal Credit Union prior to the divorce. She believed that there should have

been fifteen to sixteen thousand dollars in the account at the time of the divorce. Tommy

testified that he had about $900 in his DuPont Federal Credit Union checking account. He

asked the court to award him the checking account so he could pay bills.

       In the award of community propertyto Tommy, the trial court included the Village

Creek property, Tommy's retirement account, and the balance in his DuPont Federal

Credit Union checking account. The trial court included in the award of community

property to Betty the storage buildings in Lumberton, the restaurant business and

commercial property in Lumberton, her civil tort claim, her interest in 14.3 acres off

Neyland Road in Hardin County, and the interest in Laden Investments, Inc.


                                             10
       A trial court is charged with dividing the community estate in a just and right

manner. Tex. Fam. Code Ann. § 7.001 (West 2006); see also Schlueter v. Schlueter, 975

S.W.2d 584, 589 (Tex. 1998) (Trial courts have wide latitude and discretion in dividing

community property.). The trial court's division of property will not be disturbed on

appeal unless there is a clear showing of abuse of discretion. Cockerham v. Cockerham,

527 S.W.2d 162, 173 (Tex. 1975); see Mann v. Mann, 607 S.W.2d 243, 245 (Tex. 1980).

       Property possessed by either spouse on dissolution of marriage is presumed to be

community property. Tex. Fam. Code Ann. § 3.003 (West 2006); Tarver v. Tarver, 394

S.W.2d 780, 783 (Tex. 1965). Parties claiming certain property as their separate property

have the burden of rebutting the presumption of community property. McKinley v.

McKinley, 496 S.W.2d 540, 543 (TexJ 1973) (citing Tarver, 394 S.W.2d at 783); see also

Tex. Fam. Code Ann. § 3.003.

       Property acquired before marriage is separate property. See Tex. Fam. Code Ann.

§ 3.001(1) (West 2006). Separate property will retain its character through a series of

exchanges so long as the party asserting separate ownership can overcome the

presumption of community property by tracing the assets on hand during the marriage

back to property that, because of its time and manner of acquisition, is separate in

character. Cockerham, 527 S.W.2d at 167. If the separate estates of both spouses acquired

the property, then the property would be held by the two as tenants in common. See id. at

168.




                                           11
       Betty's arguments on appeal focus on the trial court's award of the Village Creek

property to Tommy. The record shows that Tommy and Betty comingled their funds, that

the property was refinanced during the marriage, that commissions Betty earned while

married were credited to the note that included the newer mobile home, and that monthly

payments were made on the note from comingled funds.

       The newer mobile home on the property was purchased after the marriage and is

presumed community property. Tex. Fam. Code Ann. § 3.003(a). Tommy and Betty

initially obtained the 5.413 acres of real property and the older mobile home prior to their

marriage. The property was refinanced after their marriage, and community property was

used to pay the debt on the property.

       When one marital estate improves another without receiving a benefit, a claim for

reimbursement may arise. See Tex. Fam. Code Ann. § 3.402 (West Supp. 2010); Vallone

v. Vallone, 644 S.W.2d 455, 458-59 (Tex. 1982). A trial court applies equitable principles

in deciding whether to recognize a claim for reimbursement. See id. at 458; Tex. Fam.

Code Ann. § 3.402(b). A decision to deny a claim for reimbursement is reviewed on

appeal for abuse of discretion. See Garcia v. Garcia, 170 S.W.3d 644, 649 (Tex. App.—

El Paso 2005, no pet.). Considering the circumstances of the joint purchase, the

refinancing, the payments from community property, the commingling of assets, and the

allocation of the debt to Tommy, Betty has not shown an abuse of discretion in the trial

court's application of equitable principles.



                                               12
       A mischaracterization of a portion of property as community property does not

require reversal of the judgment unless the mischaracterization had more than a de

minimis effect on the division of property. See Vandiver v. Vandiver, 4 S.W.3d 300, 302

(Tex. App.—Corpus Christi 1999, pet. denied). The judgment makes Tommy responsible

for the debt on the note. Betty does not provide a valuation of the entire marital estate that

demonstrates why the division should be considered unjust. On this record, even though

the trial court may have mischaracterized a portion of the property, Betty has failed to

show the division of the marital estate was not just under the circumstances, or that the

mischaracterization had more than a de minimis effect on the division. See id.

                                    Motion to Strike


       Betty argues that the trial court erred in not striking Tommy's testimony as to the

value of the Village Creek property, and in not granting her motion for new trial. Betty

argues Tommy's valuation of the property was insufficient because Tommy was asked on

cross-examination whether his inventory values were guesses. He stated, "I'll tell you

what, I'm a country boy, yeah, and if I was going to buy or sell something like that, yep,

that's what you want to call it, that's what it is." When asked again if the inventory

values were his best attempt at a guess, Tommy stated "Yes, sir. These right there, a

benefit of a doubt, a good, cheap selling price to everything that's there."

       An owner may be qualified to testify to the market value of his property. See

Porras v. Craig, 675 S.W.2d 503, 504-05 (Tex. 1984). Betty cites Porras and argues that


                                              13
Tommy's testimony should have been stricken because it was his personal valuation, and

not the market value, of the Village Creek property. See id. ("Even an owner's testimony,

however, is subject to some restrictions. In order for a property owner to qualify as a

witness to the damages to his property, his testimony must show that it refers to market,

rather than intrinsic or some other value of the property.") The Texas Supreme Court in

Porras noted that the requirement that the owner's testimony must refer to market value

"is usually met by asking the witness if he is familiar with the market value of his

property." Id. at 505.

       Tommy testified that he valued the items on his sworn inventory at what he

considered market value for those items, and that he understood market value to be what

a willing buyer would pay and a willing seller would take for the property. We are

confident the court gave the testimony no more consideration than that to which it was

entitled. The trial judge's refusal to strike the testimony is not reversible error under the

circumstances. See generally Redman Homes, Inc. v. Ivy, 920 S.W.2d 664, 669 (Tex.

1996) (legal sufficiency claim rejected where owner of property was instructed on the

legal definition of fair market value and owner testified as to the market value of the

damaged items).

       Betty's issues relating to the Village Creek property do not present grounds

requiring a reversal of the trial court's judgment. Issues two, three, four, five and six are

overruled.




                                             14
•   .,   ,   «




                                                 Rendering the Judgment


                        Betty maintains the trial court "failed to render a judgment and failed to enter a

                 correct judgment." At the end of the trial, the trial court stated it would fax to both parties

                 "what [the trial court] intend[ed] to do" no later than the next day. The record includes

                 the divorce decree signed by the trial court. A correct judgment was rendered. See

                 Samples Exterminators v. Samples, 640 S.W.2d 873, 875 (Tex. 1982); Comet Aluminum

                 Co. v. Dibrell, 450 S.W.2d 56, 59 (Tex. 1970).

                                                       Best Interests


                        Betty argues the trial court failed to consider the best interests of her

                 grandchildren, who began living with her after she and Tommy separated. She does not

                 include any record references indicating the court did not consider the best interests of the

                 grandchildren. She does not cite any cases holding that the trial court was required to

                 consider the best interests of grandchildren in dividing the marital estate. The award of

                 the Village Creek property to Tommy is an insufficient basis for a reversal of the trial

                 court's judgment. Issue seven is overruled. The judgment is affirmed.

                        AFFIRMED.



                                                                                  DAVID GAULTNEY
                                                                                          Justice




                 Submitted on November 29,2010
                 Opinion Delivered June 16, 2011
                 Before McKeithen, C.J., Gaultney and Horton, JJ.


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