Attaguile v. Attaguile, ____S.W.3d____, No. 08-16-00222-CV, 2018 WL 4659580 (Tex. App.-El Paso 2018, no pet. h.) (9/28/18) Husband failed to rebut community property presumption.
Facts: After a bench trial in the parties’ divorce, the court confirmed the parties’ separate property, and made orders for the child. In one of her issues on appeal, Wife complained that the trial court erred in confirming a certain house as Husband’s separate property.
Holding: Affirmed in Part; Reversed and Remanded in Part
Opinion: The disputed property was purchased during marriage. Even if a portion of if the note payment was made with Husband’s separate funds, the uncontroverted evidence showed tat some payment was made with community funds. Additionally, a later deed conveying the property to a third party listed Husband and Wife as grantors. Husband did not present evidence to rebut the community presumption. While he may have been entitled to a reimbursement claim, he did not plead for reimbursement. Further, based on the evidence presented at trial, Husband was already awarded a disproportionate share of the community estate and the house amounted to 18% of the community. Thus, the error was harmful and was remanded to the trial court for a new property division.
Emerson v. Emerson, ___S.W.3d___, No. 14-17-00064-CV, 2018 WL 4515872 (Tex. App.—Houston [14th Dist.] 2018, no pet. h.) (9-20-18) Wife waived right to appeal in Rule 11 agreement. Enforcement of order for H to refinance.
Facts: The parties’ divorce decree awarded the marital home to Husband and ordered Husband to refinance the home and pay Wife $30K within 60 days of the divorce. Six years later, Wife filed a motion to enforce the divorce decree and requested an owelty lien for the amount awarded to her in the decree at the “maximum lawful interest rate.” Additionally, Wife moved for attorney’s fees. On the date of final trial in the enforcement proceeding, the parties agreed to a settlement, and the trial court read into the record its understanding of the agreement. The only issues remaining to be decided by the trial court would be attorney’s fees and whether to impose interest. The parties’ attorneys indicated the parties would accept the trial court’s judgment with respect to attorney’s fees and post-judgment interest. The attorneys and trial court then discussed whether that acceptance meant that the parties were waiving their right to appeal. Wife’s attorney acknowledged “waiving appellate rights is a big waiver” and asked to confer with Wife before continuing. After conferring, Wife’s attorney stated Wife agreed, so long as the agreement was reciprocal. A few weeks later, the trial court entered an order that denied Wife’s requests for attorney’s and interest. Wife appealed, arguing in part that she was entitled to post-judgment interest and attorney’s fees. Husband moved to dismiss the appeal.
Opinion: Contrary to Wife’s assertions, the trial court did not dictate that the parties were required to reach a certain agreement, rather, he indicated that he dictated the parties’ terms as he understood them. Wife expressly agreed to waive her appellate rights after conferring with her attorney and after being afforded a break to consider the import of the agreement. Although Wife claimed on appeal that she had only agreed under duress, she failed to specify the nature of any alleged threat, and nothing in the record indicated the trial court would have treated Wife unfairly if the parties had proceeded to trial.