separate property in the 1999 divorce decree. The Johnsons further asserted that the trial court had abused its discretion by altering the division of the property ex post facto in the 1999 divorce decree. 4 Because the Subject Property was not specifically described in the 1999 divorce decree, the trial court began by determining whether the Subject Property was separate or community property. Separate property 5 is defined as (1) property owned or claimed by a spouse before marriage; (2) property acquired by the spouse during marriage by gift, devise, or descent; or (3) the recovery for personal injuries sustained by the spouse during marriage, excepting any recovery for loss of earning capacity. 6 Community property consists of property, other than separate property, that either spouse acquires during marriage. 7 In this case, it was undisputed that the Subject Property was acquired during Dunham and the Decedent’s marriage. Further, the Johnsons did not assert that the Subject Property was acquired by gift, devise, or descent. Thus, the trial court determined that the Subject Property was community property and that it should have been divided equally between the Decedent and Dunham. 8 The Johnsons contended that the trial court abused its discretion when it awarded Dunham an undivided fifty percent interest in the Subject Property, creating an “unenforceable order.” 9 The Family Code, they argued, prohibits a trial court from substantively altering or modifying the division of property that was made in a divorce decree. However, the Court determined that this was not a modification , but rather a “ post-divorce partition ” of community property that was left undivided. 10 The Court relied on Haas v. Otto , 11 which stated that post-divorce partition is an appropriate vehicle to address an undivided or overlooked asset. 12 Thus, the Court deemed that the trial court had divided the Subject
Property in a just and right manner, and had not abused its discretion. 13 When examining title, it is not uncommon to encounter a divorce decree that improperly describes or omits a mineral or royalty interest and does not expressly divide the “residual” community property. In such a case it is prudent to remember the strong presumption that property acquired during a marriage is community property, entitling each party to one-half of said interest upon dissolution of the marriage. In cases such as Johnson v. Dunham , as in the case of a deed or contract, Texas courts will seek to interpret the intent of a divorce decree using a “four corners” analysis. If a mineral, royalty, or similar interest was not described or mentioned in the divorce decree, the appropriate remedy may be a post-divorce partition of the community property that was left undivided – even if it’s 20 years after the divorce! Authors: CONTACT If you have any questions regarding this case law update or suggestions for topics to be covered in future issues, please call our office at 713-229-0360 or contact:
Brad Gibbs
Isabel Huntsman Attorney, Houston
Partner, Houston
bgibbs@oglawyers.com
ihuntsman@oglawyers.com
www.oglawyers.com
The content of this publication and any attachments are not intended to be and should not be relied upon as legal advice or to create a lawyer-client relationship. © 2024 Oliva Gibbs LLP. All rights reserved. This publication may qualify as “Attorney Advertising” requiring notice in some jurisdictions. Houston (principal office): 815 Walker St., Suite 1140, Houston, Texas 77002, 713-229-0360 | Columbus, OH | Houston, TX | Lafayette, LA | Midland, TX | Oklahoma City, OK.
4.) Id. 5.) Id. at 5. 6.) Id. at 8. 7.) Id.
8.) Id. at 9. 9.) Id. at 23. 10.) Id. at 24; Tex. Fam. Code § 9.201. 11.) 392 S.W.3d 290, 292 (Tex. App. Eastland 2012, no pet.). 12.) Johnson v. Dunham at 24. 13.) Id.
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G rowth T hrough E ducat i on - A pr i l / M ay / J une 2024
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