Lana Sue Calhoun v. Dana Rex Calhoun

Citation: Not availableDocket: 12-17-00032-CV

Court: Court of Appeals of Texas; October 25, 2017; Texas; State Appellate Court

Original Court Document: View Document

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Lana Sue Calhoun appeals a divorce decree from Dana Rex Calhoun, focusing solely on the property disposition, with no objections raised regarding the divorce itself. The couple was married for nearly thirty years before Rex filed for divorce. During a hearing on January 22, 2016, Sue, appearing pro se and by phone due to incarceration, submitted exhibits and settlement offers, with no objections recorded from Rex. The trial court finalized the divorce on December 19, 2016, ordering the sale of community real property, with proceeds to be split equally. 

The appellate review is based on an abuse of discretion standard, requiring sufficient evidence for the trial court's decisions. In the absence of specific findings of fact or conclusions of law, the court's implied findings are presumed valid if supported by the evidence. Sue argues in several issues that the trial court erred by not disposing of assets including the homestead, additional bank accounts, a retirement account, mineral rights, and burial plots. The marital home, located at 729 Rosehill Road, is identified in the decree, along with 3.06 acres of land.

The decree does not specify the acreage accompanying the home, and the deed is absent from the record. Sue claimed that the parties own an additional acre but provided no supporting documentation, leading the trial court to favor Rex's evidence. The decree mandates the sale of the property at 729 Rosehill, with proceeds divided equally between the parties. Rex reported having one bank account with $1,500 and denied other accounts, while Sue alleged the existence of additional accounts without evidence. Rex's two retirement accounts are part of one 'retirement plan' with contributions from two employers, and Sue did not provide evidence of an additional account. The decree awards Sue fifty percent of Rex's retirement savings and pension plans, both linked to the same identification number. 

The parties own 28.02 acres in Nacogdoches County, with Sue mentioning funds 'in escrow for mineral rights' without further discussion or evidence of mineral rights disposition. The decree orders the sale of this real property, and under Texas law, minerals in place are considered part of the real estate. Without specific exclusions or evidence of severance, the decree is interpreted as encompassing any mineral rights associated with the property.

Sue asserted payment for two burial plots but failed to provide evidence or testimony regarding them; thus, they are presumed community property. Texas law requires a certificate of ownership for cemetery plots, and in the absence of such evidence, the plots are treated as community property. The decree includes a provision for property not divided to be awarded to the party in possession, which in this case applies to the burial plots. As such, the trial court did not abuse its discretion regarding these items, leading to the overruling of Sue’s issues one through four and seven.

Sue argues that the trial court improperly awarded her separate property to Rex, which includes furniture, a diamond wedding band, a diamond cluster ring, and other items listed in her settlement offer. Under Texas law, separate property is defined as property owned or claimed before marriage and property acquired after marriage through gifts or inheritance. Community property encompasses all other property acquired during marriage, with a presumption that property possessed at dissolution is community. To assert a claim of separate property, the claimant must provide clear and convincing evidence, including tracing the property's origin.

At the hearing, Sue stated that all items in their home belonged to her as they were acquired prior to marriage. She referenced a potential inventory of her separate property but did not provide it. Her claims included items gifted by her parents and those purchased from her father's pawn shop, asserting that Rex entered the marriage with no property of his own. Sue's settlement offer included a detailed list of items she sought to retain, categorized by their location in the home, and she indicated that many were inherited from her mother. Certain items she acknowledged belonged to Rex or his family. The court's decision hinges on whether Sue can substantiate her claims of separate property against the presumption of community property.

Sue failed to provide any testimony at the hearing to support her claims of separate property, and the court found her post-hearing inventory insufficient to overcome the presumption of community property as outlined in TEX. FAM. CODE ANN. 101.007. Her vague notations did not clarify when or how she acquired the items, and she did not provide supporting documentation, such as her parents’ wills, to substantiate her claims. Additionally, her notes contained contradictions, asserting ownership of all household items while acknowledging some belonged to Rex. Any ambiguity regarding property classification favors the community estate. Consequently, Sue did not demonstrate that the trial court abused its discretion in awarding property to Rex.

In the fifth issue, Sue opposed the trial court's directive to reduce the asking price of the community property by three percent every ninety days, expressing concerns about outstanding mortgages and requesting guidance on debt payoff if sale proceeds were insufficient. She also sought an unbiased real estate agent and auctioneer for the sale. However, she did not identify any specific abuse of discretion by the trial court, leaving the appellate court with no basis for action. Thus, both her fifth and sixth issues were overruled, and the trial court's final decree of divorce was affirmed.