Opinions, July 28, 2016: Reimbursement & Owelty Liens

The First District Court of Appeals released its memorandum opinion in Cox v. Cox, No. 01-15-00063-CV, affirming the trial court’s division and decree.

Patricia and Cara married in 2010. During the marriage, they lived in a house purchased by Patrick before the marriage. Cara alleged at trial that during the marriage, about $255,000 of community funds was spent on the house mortgage. In 2013, Cara filed for divorce. During the divorce proceedings, Patrick had a number of lawyers and partially represented himself. Due to discovery issues, Patrick was limited in the evidence he could present at trial. He did not provide an inventory per local rules and as a result, the trial court sanctioned him by precluding him from introducing evidence controverting Cara’s testimony.

The only witnesses during the one-day bench trial were Cara, Patrick, and their attorneys on attorneys’ fees. In the decree, the trial court awarded Cara a judgment of $135,000 as reimbursement to be secured by an owelty lien on the house (which was confirmed as Patrick’s separate property).

On appeal Patrick asserted five issues, all challenging the division and all overruled.

In his first issue, Patrick challenged the trial court’s exclusion of his inventory. The Court of Appeals reviewed Harris County’s local rule which requires the exchange of what we call “ten day docs” to be exchanged ten days before trial: inventory, FIS, etc. Patrick argued that the inventory was attached to a motion for partial summary judgment and should not have been excluded. The Court of Appeals found the inventory was not sworn and did not comply with local rules and therefore the trial court did not err in excluding it.

In his second issue, Patrick alleged the trial court erred in its ruling on other pretrial motions because the trial court was, according to Patrick, biased against him. Unfortunately, he evidently did not preserve the errors and the issues were not adequately briefed.

In his third issue, Patrick also challenged the $135,000 reimbursement judgment, arguing the evidence was not sufficient to support it. The Court of Appeals found there was evidence in the record to support the finding that the community estate spent at least $270,000 on the house.

In his fourth issue, Patrick challenged the owelty lien, arguing it violated his rights under the Texas Constitution. This argument is somewhat undermined by the fact that the Texas Constitution specifically provides that an owelty lien resulting from a divorce division may be placed on a homestead.

Finally, in his fifth issue, Patrick argued the trial court erred by failing to award him a judgment and owelty of partition in Cara’s separate property, but he failed to provide any legal argument or citation to any authority supporting his argument and the issue was waived.

 

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