USING SUMMARY JUDGMENT PROCEDURE IN FAMILY LAW CASES

CHRIS NICKELSON 5201 West Freeway, Suite 100 Fort Worth, Texas 76107

State Bar of Texas ADVANCED FAMILY LAW DRAFTING December 9-10, 2010 Houston CHAPTER 5

BIOGRAPHY

CHRIS NICKELSON LAW OFFICE OF GARY L. NICKELSON 5201 West Freeway, Suite 100 Fort Worth, Texas 76107 817-735-4000 FAX: 817-735-1480

EDUCATION J.D. from Texas Tech University School of Law, 1999 B.A. from The University of Texas at Austin, 1996

EMPLOYMENT BACKGROUND Law Office of Gary L. Nickelson, 2008-present Partner with Shannon, Gracey, Ratliff & Miller, L.L.P., 2005-2007 Associate with Shannon, Gracey, Ratliff & Miller, L.L.P., 2001-2004 Staff Attorney to Justice David Chew of the El Paso Court of Appeals, 2000 Law Clerk to Justice Ann McClure of the El Paso Court of Appeals, 1999-2000

OFFICES HELD Member, Family Law Council, State Bar of Texas Family Law Section 2010-2015 Director, Tarrant County Bar Association Board of Directors, 2008-2009 Chair of the Tarrant County Bar Association Appellate Section, 2008-2009 Vice-Chair of the Tarrant County Appellate Section, 2007-2008 Secretary of the Tarrant County Appellate Section, 2006-2007

HONORS RECEIVED Board Certified in Civil Appellate Law, 2006-present Rising Star, Texas Monthly Magazine 2004-2010 Top Attorney, Fort Worth Magazine, 2007-2010

CLE ACTIVITIES • Co-Author and Co-Presenter of Appellate Practice from Every Angle, 2010 State Bar of Texas Advanced Family Law Course. • Co-Author and Presenter of Proving Separate Property: An Argument for More Use of Summary Judgment Practice in Family Law Cases, 2010 State Bar of Texas Advanced Family Law Course. • Author, Impacts at Trial: Saving Your Trial from Mistakes, 10th Annual Family Law on the Front Lines, UT CLE, July, 2010, San Antonio, Texas. • Author of Finalizing the Deal: Rule 11 Agreements, Mediated Settlement Agreements, and Why Its So Important to Get Orders Timely Signed, State Bar of Texas Marriage Dissolution Course, 2010, San Antonio, Texas. • Co-Author and Presenter of Preservation of Error (Including Making and Meeting Objections), 2009 Trial of Breach of Fiduciary Duty Litigation Cases, Fredericksburg, Texas. • Author and Presenter of Equitable Remedies: Getting Out of Traps, Messes, and Other Problems to which You or Your Client May Have Unintentionally Agreed, 2009 State Bar of Texas Advanced Family Law Course. • Course Director for the 2009 Boot Camp prior to the State Bar of Texas Advanced Family Law Course. • Author and Presenter of, Appealing Your Family Law Case, 23rd Annual Family Law Conference, South Texas College of Law, March 2009, Houston, Texas. • Course Director of Family Law Essentials Seminar, October 2008, San Angelo, Texas. • Co-Author of Professionalism, August 2008, Advanced Family Law Course, San Antonio, Texas. • Author of Maintaining the Chain of Electronic Evidence and Spoliation of Electronic Evidence, 2008 Advanced Family Law Course. • Author and Presenter of Brief Writing that Appeals to Your Audience, 2008 State Bar of Texas Marriage Dissolution Course. • Course Director for 2008 Brown Bag Seminar for Tarrant County Bar Association titled “When Reasonable Minds Cannot Disagree: Summary Judgment Practice in Texas.” • Co-Author and Presenter of Extraordinary Writs: When Ordinary Relief Just Won't Do 2007 State Bar of Texas Marriage Dissolution Course, El Paso. • Co-Author of Appellate Advocacy: From the Judge's Perspective; 2005 State Bar of Texas Advanced Family Law Course, Austin. • Co-Author and Presenter of Like Skeet and Sporting Clay: Direct and Collateral Attacks on Judgments, August 2005 State Bar of Texas Advanced Family Law Course. • Co-Author of Preservation of Error for Discovery Issues, 2005 Brown Bag Seminar for Tarrant County Bar Association, Appellate Section • Co-Author of Appellate Advocate - Substantive Court of Appeals Update, for The Appellate Advocate, 2001- 2005. • Author of Relief is Just an Appeal Away: Drafting With Appeal, 2003 State Bar of Texas Advanced Family Law Course. • Author of Puttin' on the Writs: Mandamus, Prohibition and Habeas Corpus, 2002 State Bar of Texas Advanced Family Law Course.

REPORTED CASES

Johnson v. State Farm Lloyds, 290 S.W.3d 886 (Tex. 2009).

Johnson v. State Farm Lloyds, 204 S.W.3d 897 (Tex.App.--Dallas 2006), aff’d, 290 S.W.3d 886 (Tex. 2009).

In re Vesta Ins. Group, Inc., 192 S.W.3d 759 (Tex. 2006).

Etheredge v. Hidden Valley Airpark Ass’n, 169 S.W.3d 378 (Tex.App.—Fort Worth 2005, pet. denied).

Old American Cty. Mut. Fire Ins. Co. v. Michael D. Renfrow, et al, 130 S.W.3d 70 (Tex. 2004).

Citizens Nat’l Bank v. Allen Rae Investments, Inc., 142 S.W.3d 459 (Tex.App.—Fort Worth 2004, no pet.).

Loaiza v. Loaiza, 130 S.W.3d 894 (Tex.App.—Fort Worth 2004, no pet.).

Boyd v. Boyd, 131 S.W.3d 605 (Tex.App.—Fort Worth 2004, no pet.).

U.S. Restaurant Properties Operating L.P. v. Motel Enterprises Inc., 104 S.W.3d 284 (Tex.App.—Beaumont 2003, pet. denied).

Old American Cty. Mut. Fire Ins. Co. v. Michael D. Renfrow, et al, 90 S.W.3d 810 (Tex.App.—Fort Worth 2002), rev’d by, 130 S.W.3d 70 (Tex. 2004).

Using Summary Judgment Procedure in Family Law Cases Chapter 5

TABLE OF CONTENTS

I. INTRODUCTION ...... 1

II. ACKNOWLEDGMENT ...... 1

III. THE TWO TYPES OF MOTIONS AND THE BURDEN OF PROOF UNDER EACH ...... 1

IV. THE EVIDENTIARY STANDARD ...... 1

V. MAJOR USE OF MSJs–PROVING SEPARATE PROPERTY ...... 3 A. What is separate property?...... 3 1. Constitutionally Recognized Separate Property ...... 3 2. Other Sources of Separate Property ...... 3 3. Warning about the Constitutional Definition ...... 3 4. Community Property ...... 3 5. Summary of Separate Property ...... 4 B. Rules for Proving that Property is Separate...... 4 1. The Basic Rules ...... 4 2. Evidence Needed to Prove that Property is Separate ...... 5

VI. OTHER MAJOR USES OF MSJs ...... 13 A. Traditional MSJs ...... 13 1. Enforcement of Pre-, Post- and Marital Agreements ...... 13 2. Parentage ...... 15 3. Void, Voidable Marriages ...... 16 4. Adultery ...... 17 B. No Evidence MSJs...... 17 1. Common Law Marriage Claims ...... 17 2. Modifications ...... 18 3. Eliminating Bogus Claims ...... 18

VII. UNDERSTANDING THE PROCEDURE ...... 22 A. Traditional MSJs ...... 22 B. No-Evidence Motion 166a(i) ...... 23 C. Timing Rules ...... 23 1. Motion ...... 24 2. Response ...... 24 D. The Hearing ...... 24

VIII. CRAFTING YOUR AFFIRMATIVE MOTION FOR SUMMARY JUDGMENT ...... 24 A. Identify Issues ...... 24 B. Identify Evidence...... 24 C. Drafting the Motion...... 25 D. Drafting Your Affidavits ...... 25 E. Bulletproofing Your Documentary Evidence...... 27 F. Check Your Pleadings ...... 28

IX. RESPONDING TO THE AFFIRMATIVE MOTION FOR SUMMARY JUDGMENT ...... 28 A. Challenging Their Legal Position ...... 28 B. Attacking Their Evidence...... 28 1. Affidavits ...... 29 2. Documentary Evidence ...... 30

X. CRAFTING YOUR NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT ...... 30

i Using Summary Judgment Procedure in Family Law Cases Chapter 5

XI. RESPONDING TO THE NO-EVIDENCE MOTION ...... 31 A. Need Additional Time ...... 31 B. Don’t Need to Marshall ...... 32

XII. CONCLUSION...... 32

ii Using Summary Judgment Procedure in Family Law Cases Chapter 5

USING SUMMARY JUDGMENT II. ACKNOWLEDGMENT The author would like to thank Patrice L. Ferguson PROCEDURE IN FAMILY LAW CASES and Cynthia P. Nguyen, for granting their permission to use portions of their paper titled, Selected Issues I. INTRODUCTION Regarding Tracing and Characterization, which was The purpose of this paper is to discuss the basics presented at the 33rd Annual Marriage Dissolution Course about how to use summary judgment procedure in family in may of this year. In addition, the author would like to law cases. The author believes that summary judgment thank R. Scott Downing for granting his permission to should be more frequently used by practitioners and more use portions of his paper titled, Making Summary frequently accepted by courts to eliminate un-meritorious Judgment Relevant Again, which was presented at 33rd disputes and to therefore promote the rapid resolution of Annual Advanced Family Law Course in August of 2007. family law cases by streamlining the issues for trial or Both papers are excellent sources for anyone encouraging settlement over the remaining issues. wanting know more about characterization of marital Rule 1 of the Texas Rules of Civil Procedure sets property, or summary judgment practice, in Texas. forth the objectives of the rules and the principles which are to guide us in resolving disputes: III. THE TWO TYPES OF MOTIONS AND THE BURDEN OF PROOF UNDER EACH. The proper objective of the rules of civil The starting point of any discussion of summary procedure is to obtain a just, fair, equitable, judgment procedure is the two types of motions and impartial adjudication of the rights of authorized by Rule 166a of the Texas Rules of Civil litigants under established principles of Procedure. Rule 166a authorizes two different substantive law. To the end that this objective procedures which allow a trial court to deny a litigant a may be attained with as great expedition and full blown evidentiary trial and enter a summary dispatch and at the least expense both to the judgment. See Tex. R. Civ. P. 166a(c), (i) (Westlaw litigants and to the state as may be practicable, 2010). these rules shall be given liberal construction. The first way is through a traditional motion for summary judgment. Under this procedure, the party Summary judgment practice is not only consistent with moving for summary judgment has the burden to this objective, but is one of the most effective procedures conclusively establish that there are no genuine issues of for attaining that objective of adjudicating the rights of material fact and it is entitled to judgment as a matter of litigants in a timely, efficient, and cost conscious manner. law. See Tex. R. Civ. P. 166a(c); Provident Life & Accid. Summary judgment procedure is designed to pierce Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003). the pleadings and to eliminate claims or defenses that are The second way is through a no evidence motion for patently un-meritorious Summary judgment has unique summary judgment. Under this procedure, the burden of relevance to family law in that it presents a procedural proof is on the responding party to produce evidence vehicle for eliminating un-meritorious disputes about a sufficient to raise a genuine issue of material fact on the number of issues which are often asserted before trial and essential elements of a claim or defense challenged by the which prevent rapid settlement of resolution until the moving party. See Tex. R. Civ. P. 166a(i); Sudan v. issues are removed form the litigation. Sudan, 199 S.W.3d 291, 292 (Tex. 2006). For example, while the opposing party may not want to admit the stock portfolio your client received as an IV. THE EVIDENTIARY STANDARD. inheritance is her separate property, there really isn’t any The historical standard for deciding whether to grant dispute about it. Many times in family law, much of a traditional or no-evidence summary judgment is set what goes on is merely posturing. Often, there is little to forth below: no evidence to back up positions. This is where summary judgments can come in to separate what is truly In determining whether a genuine issue of material a disputed issue versus what is mere posturing. Since fact exists, the trial court is required to take as true there is no necessity for a trial on truly undisputed issues all evidence favorable to the nonmovant, and which can be disposed of prior to trial, the parties are indulge every reasonable inference and resolve spared the unnecessary delay and expense of a trial on any doubts in the nonmovant’s favor. Provident those issues. Furthermore, in most cases where there are Life & Accid. Ins. Co. v. Knott, 128 S.W.3d 211, substantial characterization disputes, once the parties’ 215-16 (Tex. 2003). If the nonmovant brings characterization disputes have been resolved it becomes forward more than a scintilla of probative evidence much easier to settle the case. that raises a genuine issue of material fact for trial, the motion for summary judgment must be denied.

1 Using Summary Judgment Procedure in Family Law Cases Chapter 5

Gulbenkian v. Penn, 252 S.W.2d 929, 931 impossible,” it is no evidence of what occurred, even if (Tex.1952). More than a scintilla of evidence the eyewitness thinks otherwise. Id. Thus, evidence that exists when the evidence would enable reasonable might be “some evidence” when considered in isolation and fair-minded people to reach different is nevertheless rendered “no evidence” when contrary conclusions. Merrill Dow Pharms., Inc. v. evidence shows it to be incompetent. Id. Havner, 953 S.W.2d 706, 711 (Tex. 1997). Third, in conducting a sufficiency review, the reviewing court must keep in mind that courts cannot In 2005, the Texas Supreme Court revisited the legal disregard evidence that conclusively establishes the sufficiency standard of review to clarify how a court was opposite of a vital fact. Wilson 168 S.W.3d at 814. to assess whether evidence was legally sufficient to There are several types of conclusive evidence. First, support a finding of fact. In City of Keller v. Wilson, the there is undisputed evidence “that allows of only one Court engaged in an extensive analysis of the legal logical inference.” Id. Second, there is evidence which sufficiency standard and concluded that: an opposing party admits is true. Id. at 815. Third, there is undisputed testimony that is clear, positive, direct, The final test for legal sufficiency must always be otherwise credible, free from contradictions and whether the evidence at trial would enable inconsistencies, and could have been readily reasonable and fair-minded people to reach the controverted. Id. at 820. verdict under review. Whether a reviewing court Fourth, the reviewing court must keep in mind that begins by considering all the evidence or only the the jury is the sole judge of the credibility of the evidence supporting the verdict, legal sufficiency witnesses and the weight to give their testimony. Wilson, review in the proper light must credit favorable 168 S.W.3d at 819. The jury may choose to believe one evidence if reasonable jurors could, and disregard witness and disbelieve another. And a reviewing court contrary evidence unless reasonable jurors could cannot impose its own opinions to the contrary. Id. Of not. course, “[t]he jury’s decisions regarding credibility must be reasonable.” Id. at 820. Jurors cannot take evidence City of Keller v. Wilson, 168 S.W.3d 802, 827 out of context, cannot disregard evidence which shows (Tex.2005). that other evidence is incompetent, and cannot disregard evidence that conclusively establishes the opposite of a In discussing what evidence could be credited, and vital fact. Id. at 811-17, 820. Proper sufficiency review what evidence could not be disregarded, by a reasonable prevents reviewing courts from substituting their juror, the Texas Supreme Court identified several rules a opinions on credibility for those of the jurors. Wilson, reviewing court must keep in mind when deciding 168 S.W.3d at 816-17. However, proper review also whether evidence offered to prove a vital fact was legally prevents jurors from substituting their opinions for sufficient. undisputed truth. Id. When evidence contrary to a First, the reviewing court must keep in mind that verdict is conclusive, it cannot be disregarded. Id. evidence cannot be taken out of context in a way that Further, when evidence in support of a verdict is taken makes it seem to support a verdict when in fact it never out of context or is incompetent, it must be disregarded. did. Wilson 168 S.W.3d at 811-12. If a witness’s Id. at 811-17, 820. statement “I did not do that” is contrary to the jury’s The Texas Supreme Court has not been consistent in verdict, a reviewing court may need to disregard the its discussions of whether a court considering a motion whole statement, but cannot rewrite it by disregarding the for no evidence summary judgment can consider middle word alone. Id. at 812. Thus, if evidence may be evidence that is contrary to the non-movant’s position. legally sufficient in one context but insufficient in In City of Keller v. Wilson the Court indicated that a court another, the context cannot be disregarded even if that could not consider such evidence. Wilson, 168 S.W.3d at means rendering judgment contrary to the jury’s verdict. 825. However, in a later case, the Court indicated that it Id. would consider evidence contrary to the non-movant’s Second, in conducting a sufficiency review, the position if a reasonable juror could not disregard it. reviewing court must keep in mind that incompetent Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581-82 evidence is legally insufficient to support a judgment, (Tex. 2006). Until this procedural issue is finally even if admitted without objection. Wilson 168 S.W.3d resolved, make sure that when drafting your motion or at 812. Further, if there is evidence in the record which response you consider whether there is any evidence shows that other evidence is incompetent, the evidence which a reasonable juror could not disregard and include proving the incompetency of other evidence cannot be argument for or against such evidence being considered disregarded. Id. For example, if an eyewitness’s by the court in granting or denying summary judgment. location renders a clear view of an accident “physically

2 Using Summary Judgment Procedure in Family Law Cases Chapter 5

V. MAJOR USE OF MSJs–PROVING SEPARATE 3. Warning about the Constitutional Definition. PROPERTY. In the past, the Texas Supreme Court has held in that One of the best uses for summary judgment the constitutional definition of separate property was procedure in family law cases is the resolution of enacted in order to remove the Texas Legislature’s power separate property claims which are either established as to alter the character of separate property and thereby a matter of law by conclusive evidence or the elimination enlarge or diminish what is characterized as the spouses’ of bogus claims of separate property which are supported community property. Arnold v. Leonard, 114 Tex. 535, by no evidence whatsoever. 273 S.W. 799, 803 (1925). According to the Court, the The paper covers the use of summary judgment to constitutional definition of separate property is exclusive prove separate property claims before addressing the and cannot be altered by legislative action. Eggemeyer v. other uses of summary judgment which are discussed in Eggemeyer, 554 S.W.2d 137, 140 (Tex. 1977); Arnold, Section VI, below. 273 S.W. at 803. Thus, any Legislative attempt to expand or diminish the definition of separate property is A. What is separate property? likely unconstitutional. 1. Constitutionally Recognized Separate Property. That being said, the Texas Supreme Court has Texas recognizes two types of marital property: overlooked the “exclusive” definition of separate “separate” and “community” property. The Texas property set forth in the Texas Constitution on occasion. Constitution defines the separate property of a spouse as In Graham v. Franco, the Texas Supreme Court “all property, both real and personal . . . owned or considered the Legislature’s addition of personal injury claimed before marriage, and that acquired afterward by recoveries to the definition of separate property. Id., 488 gift, devise or descent.” See Tex. Const. Art. 16, § 15; S.W.2d 390, 39-95 (Tex. 1972). The Court concluded see also, Tex. Fam. Code § 3.001 (O’Connor’s 2009-10). that the common law and Spanish law traditions In addition, the Texas Constitution provides that a considered personal injury recoveries as separate spouse’s separate property may include property and property at the time the that Article 16, § 15 of the Texas income from property that is partitioned and/or Constitution was adopted. The Court also concluded that exchanged by written agreement before or after marriage. the term “property” as used in Article 16, § 15 did not See Tex. Const. Art. 16, § 15. include lawsuits for personal injuries when the Constitution was adopted. As a consequence, the Court 2. Other Sources of Separate Property. concluded that the people of Texas did not intend to alter The Texas Legislature has added on to the definition the common law or Spanish law by adopting Article 16, of separate property set forth in the Texas Constitution. § 15. Thus, the Constitutional definition of separate See Tex. Fam. Code § 3.001(3). The Texas Family Code property did not prohibit the Legislature from passing a states that a spouse’s separate property also includes “the statute which expressly stated what the framers of the recovery for personal injuries sustained by the spouse Constitution had assumed all along. during marriage, except any recovery for loss of earning capacity. See Id. 4. Community Property. Case law and statutory authority explain that Since Texas recognizes only two forms of marital separate property remains separate if it can be traced property, the definition of separate property is not from its origin as separate property through mutation into complete without a discussion of what constitutes its another form. See Norris v. Vaughn, 152 Tex. 491, community property. The Texas Constitution 260 S.W.2d 676, 501 (1953); see also Tex. Fam. Code § acknowledges the existence of community property but 3.003(b) (O’Connor’s 2009-10). does not expressly define community property. See Tex. Further, case law explains that if an asset is acquired Const. Art. 16, § 15. This is so because the definition of through a debt transaction in which the creditor agrees to community property pre-dates the Texas Constitution. look solely to the debtor’s separate estate for repayment, Before Texas gained its independence from Mexico, and then the asset purchased with debt is characterized as before any of Texas’ Constitutions were enacted, Spanish separate property of the debtor spouse who purchased it. law governed the marital property rights of people living See Broussard v. Tian, 156 Tex. 376, 295 S.W.2d 405 in Texas. Under the Spanish law tradition, community (1956), cert. denied, 353 U.S. 941, 77 S.Ct. 811, 1 property consisted of all property acquired by the spouses L.Ed.2d 758 (1957); Gleich v. Bongio, 128 Tex. 606, 99 during marriage exclusive of what the Spanish law S.W.2d 881, 886 (1937); see also Jones, 890 S.W.2d at tradition considered was separate property. Thus, the 475; Welder, 794 S.W.2d at 427; Holloway v. Holloway, Texas Constitution relies upon the long-standing 671 S.W.2d 51, 56-57 (Tex.App.–Dallas 1983, writ definition of community property as being all property dism’d); Price v. Service Bureau, Inc., 165 S.W.2d 794, acquired during marriage and the constitutional definition 796 (Tex.Civ.App.–Amarillo1942, writ ref’d w.o.m.). of separate property to define what is community

3 Using Summary Judgment Procedure in Family Law Cases Chapter 5 property in Texas. Following the lead of the Texas Prod. Assoc. of San Antonio, 383 S.W.2d 181, 182-83 Constitution, the Texas Family Code defines community (Tex.Civ.App.—San Antonio 1964, writ ref’d property in a negative fashion, defining it as “the n.r.e.)(holding that milk produced by a spouse running a property, other than separate property, acquired by either separate property dairy business, and using a separate spouse during marriage.” Tex. Fam. Code § 3.002 property cows, was community property). Meshwert v. (O’Connor’s 2009-10). Meshwert, 543 S.W.2d 877, 879 Through case law the courts of Texas have defined (Tex.Civ.App.—Beaumont 1976)(concluding that community property as: “all property and pecuniary revenue earned by a separate property business was rights obtained by, or in the name of, either spouse after community property), aff’d, 549 S.W.2d 383 (Tex. 1977). marriage, by toil, talent, thrift, energy, industry, or other productive faculty, and all the rents, issues, profits, fruits, 5. Summary of Separate Property and revenues of separate property. See Cartwright v. Pulling all of the foregoing law together, assets that Cartwright, 18 Tex. 626, 1857 WL 5017 (1857); De are characterized as a spouse’s separate property include, Blaine, 23 Tex. 25, 1859 WL 5017 (1859); Norris v. but may not be limited to: Vaughn, 152 Tex. 491, 260 S.W.2d 676, 501 (1953); Logan v. Logan, 112 S.W.2d 515, 525 1. Assets owned or claimed prior to marriage. (Tex.Civ.App.—Amarillo 1938, no writ); see also Alsenz 2. Gifts. v. Alsenz, 101 S.W.3d 648, 654 (Tex.App.—Houston [1st 3. Property acquired by devise or descent. Dist.] 2003, pet denied). The foregoing definition of 4. Partitioned property/income. community property can be broken down into two basic 5. Personal injuries sustained during marriage, except principles. First, the community estate owns all property loss of earning capacity during marriage. and rights acquired by the spouses’ time, toil, and talent 6. Assets acquired from advances of separate debt. during the marriage. De Blaine, 23 Tex. 25, 1859 WL 7. Mutations or exchanges of separate property. 5017 (1859)(holding that law conclusively presumes each spouse contributes in some way to the common B. Rules for Proving that Property is Separate. acquisitions of the marital estate); Norris v. Vaughn, 152 1. The Basic Rules Tex. 491, 260 S.W.2d 676, 501 (1953)(concluding that All property possessed by either spouse during or on the community estate owns the time, toil, and talent of dissolution of marriage is presumed to be community the spouses and is entitled to reimbursement when a property. See Tex. Fam. Code § 3.003(a). The party spouse’s time, toil, and talent is used to enhance a seeking to rebut the presumption bears the burden of spouse’s separate estate); Logan v. Logan, 112 S.W.2d proof and must establish by clear and convincing 515, 525 (Tex.Civ.App.—Amarillo 1938, no evidence that the property in question meets the writ)(concluding that husband and wife’s time, toil, and definition of separate property. See Tex. Fam. Code § talent expended in running a hotel business was 3.003(b); Tarver v. Tarver, 394 S.W.2d 780, 783 (Tex. community property). 1965). The “clear and convincing” standard is something Second, the community estate holds a “usufructury greater than the “preponderance of evidence” standard, right” to all of the rents, issues, profits, fruits, and but less than “beyond a reasonable doubt.” Clear and revenues produced by each spouse’s separate property convincing is the degree of evidence necessary to during the marriage. See Cartwright v. Cartwright, 18 produce in the mind of the trier of fact a firm belief or Tex. 626, 1857 WL 5017 at * 2 (1857)(explaining that a conviction about the allegations sought to be established. “usufruct” is the right to use and enjoy, and receive the Tarver, 394 S.W.2d at 783. The requirement of clear and profits of, property which belongs to another, and the convincing evidence is way of stating that the assertion(s) community estate’s “usufruct” includes all “fruits” must be supported by factually sufficient evidence. produced by a spouse’s separate estate during marriage Carter v. Carter, 736 S.W.2d 775 (Tex. App. - Houston including such things as “timber, herbs, fruits, wool, [14th Dist.], 1987, no writ) citing Meadows v. Green, 524 milk, and the young of cattel . . .”); Blum v. Light, 81 S.W.2d 509, 510 (Tex. 1975). Tex. 414, 16 S.W. 1090, 1092 (1891)(ruling that the The characterization of property as “community” or offspring of separate property cattle were community “separate” is determined by the inception of title to the property); Avery v. Popper, 48 S.W. 572 (Tex. property. Barnett v. Barnett, 67 S.W.3d 107, 111 (Tex. 1898)(concluding that the offspring of separate property 2001); Smith v. Buss, 144 S.W.2d 529, 532 (Tex. 1940). horses were community property). McElwee v. Inception of title occurs when a party first has the right of McElwee, 911 S.W2d 182, 188-89 (Tex.App.—Houston claim to the property. Strong v. Garrett, 148 Tex. 265, [1st Dist.] 1995, writ denied)(holding that proceeds from 224 S.W.2d 471 (1949); Wierzchula v. Wierzchula, 623 the sale of timber cut off separate property lands were S.W.2d 730, 731 (Tex.Civ.App.—Houston [1st Dist.] community property). U.S. Fid. & Guar. Co. v. Milk 1981, no writ). For example, if title is acquired before

4 Using Summary Judgment Procedure in Family Law Cases Chapter 5 marriage, then the property is separate. See Tex. Const. the other spouse, is sufficient to meet the clear and Art. 16, § 15; Tex. Fam. Code § 3.001. If title is convincing evidence test. acquired after marriage, then the property is community There are several cases which hold that a spouse’s unless it was acquired through gift, devise or descent. Id. uncorroborated testimony is sufficient to rebut the Any attempt to characterize property as “separate” community property presumption if it is uncontroverted. or “community” begins with identifying the legal basis Vannerson v. Vannerson, 857 S.W.2d 659, 670 for claiming that property is separate–i.e., it was owned (Tex.App.–Houston [1st Dist.] 1993, writ denied); before marriage, or it was acquired during marriage by Holloway v. Holloway, 671 S.W.2d 51, 56 gift. Once you have identified the source of separate (Tex.Civ.App.–Dallas 1983, writ dism’d); Newland v. property, you must trace the separate property. Tracing Newland, 529 S.W.2d 105, 107-08 (Tex.Civ.App.–Fort involves establishing the separate origin of the property Worth 1975, writ dism’d). through evidence showing the time and means by which In Vannerson v. Vannerson, a post-answer default the spouse originally obtained possession of the property. judgment was entered against husband when he failed to Smith v. Smith, 22 S.W.3d 140, 144 (Tex.App.–Houston appear for trial. Vannerson, 857 S.W.2d at 663. The trial [14th Dist.] 2000, no pet.). In the marital dissolution court’s property division was based on the testimony and context, tracing the property means that you must follow trial exhibits of wife. Id. at 667-70. Wife’s trial exhibits the separate property asset from the time it is identified were summaries of the evidence regarding her (at the date of marriage or when received if during characterization of the parties’ separate and community marriage) through the date of divorce. property and her proposed division of the parties’ For example, Mom gifted W cash which was property. Id. at 667-68. On appeal, husband claimed that deposited in a bank account; a portion of the cash gift this evidence was insufficient to support the trial court’s was used to acquire stock; the stock was then sold and property division. Id. at 667-70. The court of appeals the sales proceeds were expended to acquire the parties’ affirmed, concluding that wife’s uncorroborated current residence. W has the burden to prove that the testimony and trial exhibits were legally and factually funds used to acquire the residence stemmed from the sufficient to support the trial court’s judgment. Id. original cash gift. In Newland v. Newland, the Fort Worth Court of Appeals addressed whether a spouse’s uncorroborated, 2. Evidence Needed to Prove that Property is Separate but uncontroverted, testimony was sufficient to meet the Whether an asset is separate or community property clear and convincing evidence test. Newland, 529 is determined by the facts which, according to the rules S.W.2d at 107-08. In that case, Mrs. Newland sought to of law, give character to the asset. Hilley v. Hilley, 161 overturn the adverse finding of separate property because Tex. 569, 342 S.W.2d 565, 568 (Tex. 1961). The facts Mr. Newland’s testimony was not corroborated by that trace an asset to its separate or community property independent documentation. Id. at 107. The court origin, may be proven by any competent evidence, rejected her argument stating: including parole evidence, surrounding circumstances, and declarations of the parties. Foster v. Christensen, 67 To adopt the rule for which Mrs. Newland S.W.2d 246, 249 (Tex. Comm. App. 1934)(holding contends would be to deny justice in a great approved); Orr v. Pope, 400 S.W.2d 614, 617-18 number of cases, indeed in nearly all where the (Tex.Civ.App.–Amarillo 1966, no writ); Muran v. facts are within the knowledge of only one Muran, 210 S.W.2d 617, 618 (Tex.Civ.App.–Galveston spouse. Of course the fact finder would be 1948, no writ). entitled to disbelief and refuse to find for the spouse having knowledge and testifying, but in a. Testimony of a Spouse instances where he is believed and the finding In Texas, a spouse is competent to testify as to the made for him a judgment based thereupon source of property. See Burgess v. Burgess, 2007 WL should not be disturbed because of a lack of 1501117 (Tex. App. - Beaumont, 2007) citing Barh v. corroboration of his testimony. Korh, 980 S.W.2d 723, 730 (Tex. App. - San Antonio 1998, no pet); Pace v. Pace, 160 S.W.d 3d 706, 714 Id. at 108. Thus, some courts have allowed a trial court (Tex. App. - Dallas 2005, pet. denied); Holloway v. to base a finding of separate property on a spouse’s Holloway, 671 S.W.2d 51, 56 (Tex.Civ.App.–Dallas uncorroborated testimony when the testimony has not 1983, writ dism’d); Newland v. Newland, 529 S.W.2d been contradicted. 105, 107-08 (Tex.Civ.App.–Fort Worth 1975, writ However, the careful practitioner should not rely on dism’d). the foregoing cases in preparing his or her case for trial The open question is whether a spouse’s or summary judgment because there are several cases uncorroborated testimony, which is not contradicted by decided by other courts of appeals, and even different

5 Using Summary Judgment Procedure in Family Law Cases Chapter 5 panels of the same court of appeals, which reach an i. Real Estate opposite result. See Pace v. Pace, 160 S.W.d 3d 706, Realty is characterized based upon when the party’s 714 (Tex. App. - Dallas 2005, pet. denied); Boyd v. Boyd, right to the acquire the property was established, i.e. 131 S.W.3d 605, 612 (Tex.App.–Fort Worth 2004, no when he signed the earnest money contract/paid the down pet.); Ganesan v. Vallabhaneni, 96 S.W.3d 354, 354 payment. Carter v. Carter, 736 S.W.2d 775. However, (Tex.App.–Austin 2002, no pet.); Bahr v. Kohr, 980 if the earnest money contract was executed after the date S.W.2d 723, 728-730 (Tex.App.–San Antonio 1998, no of marriage, Gleich vs Bongio, 128 Tex. 606, 99 S.W.2d pet.); McElwee v. McElwee, 911 S.W.2d 182, 188 881 (Tex. 1937) applies and the character of the property (Tex.App.–Houston [1st Dist.] 1993, writ denied); is determined based upon the dollars used to acquire the Hilliard v. Hilliard, 725 S.W.2d 722, 723 property. (Tex.App.–Dallas 1985, no writ). Ownership can be shown via deed and/or settlement These cases generally hold that “mere testimony that statement from the title company. Other records which property was purchased with separate property funds, may reflect ownership are property tax receipts or the without any tracing of the funds, is generally insufficient ownership history from the county appraisal district to rebut the [community property] presumption.” See website which assessed property taxes. The appraisal McElwee, 911 S.W.2d at 188, citing Schmeltz v. Garey, district’s website will often allow you to search by Tex. 49, 60-61 (Tex. 1878). address, property tax identification number, owner name, For example, In re Marriage of Smith, 2003 WL etc. After the property information has been accessed, 22715581 (Tex. App. - Amarillo, 2003), documentation some districts will provide ownership history for a was provided which showed that H had brought separate number of owners or multiple years. property into the marriage, and his testimony showed that If not listed below, use your favorite search engines during marriage, he received gifts from his parents. In to locate the county appraisal district website. For support of his separate property claims, H provided a example: December 1992 account statement, an account application dated May 1992, a request for the transfer of • Harris County Appraisal District assets dated May 1992, and retirement statements marked (http://www.hcad.org) – select ownership history on “closed out June 1992." The documents were almost six the top portion of the screen, it provides the years after the marriage and did not provide any ownership history for multiple years. information identifying the source or origin of the • Dallas Central Appraisal District property or when it was originally obtained. W (http://www.dallascad.org) – click the history option challenged the trial court’s finding that $15,111 of an at the bottom of the page and it provides the American Funds account and $26,623 of the American ownership history for multiple years. Funds IRA account were H’s separate property. The • Tarrant Appraisal District (http://www.tad.org) – court stated that the testimony of the spouse claiming that after you access the property description, the site the property was acquired with separate property funds, will provide you with the three prior owners. without any tracing of the funds, is generally insufficient ii. Bank or Brokerage Accounts to rebut the community presumption. Request copies of statement close-in-time to the date of marriage. Banks or brokerage houses will have limited b. Documentary Evidence time periods during which the information is available on To put your best foot forward, you must attempt to line and on microfiche. See the bank account discussion obtain documentation from third parties, acknowledged below. documents, or those filed under penalties of perjury (e.g., tax returns). The more objective the information, the iii. Stocks more likely the trier of fact will view the separate Stocks owned prior to marriage are that spouse’s property claims as credible and supportable. Sometimes, separate property. Characterization of stocks acquired the client may have documents which will show when after the date of marriage is based upon the consideration and how the separate property was acquired; other times, paid to acquire the shares. Texas community property the information may need to be requested from third law treats stock dividends and stock splits the same: parties or reverse-engineered. Of course, do not overlook shares received from stock splits or stock dividends are persons with knowledge that would be able to testify the same character as the underlying shares. Tirado v. about the property of interest. Below are documents Tirado, 357 S.W.2d 468 (Tex. Civ. App - Texarkana which will assist in the proof of separate property. 1962, writ dism’d) If a company has a sizeable amount of retained earnings, the market value of its shares is likely to increase. The higher the price of stock, the less readily it

6 Using Summary Judgment Procedure in Family Law Cases Chapter 5 can be purchased, i.e. reduces the company’s ability to McGarragugh v. McGarraugh, 177 S.W.2d 296, raise additional capital. A stock split is the result of a 301(Tex. Civ. App. - Amarillo 1943, writ dism’d). company’s decision to increase the number of shares that are outstanding with the general goal of reducing the Ownership may be shown via mineral deeds and stock price in order to attract additional investors. For division orders which may be obtained via the property example, H had 1,000 shares of Company stock. records or, if the interest is significant, consider retaining Company had 5,000,000 shares outstanding which were a landman who will do a search for you. Royalties may priced at $50 per share. Company decides to effect a 2:1 also be reported on Form 1099-MISC and detail of the stock split, so H now owns 2,000 shares and Company interests may be included on royalty checks issued by the has 10,000,000 shares outstanding and the share price is operator. Expenses on interests for drilling/depreciation reduced to $25 per share. Before the split, H’s 1,000 may be reported on income tax returns. The date that shares were worth $50,000; after the split, H’s 2,000 royalties were earned or expenditures were incurred may shares are still worth $50,000. show the interests were acquired prior to marriage. When a company wants to capitalize a portion of its earnings (reclassify retained earnings to contributed v. Gifts capital) and thereby allow the company to retain its A gift is a transfer of property made voluntarily and earnings instead of paying out cash dividends, the gratuitously, without consideration. Hilley v. Hilley, 161 company may issue stock dividends to its shareholders. Tex. 569, 342 S.W.2d 565, 569 (Tex. 1961); Ellebracht As in the stock split, after the stock dividend, each v. Ellebracht, 735 S.W.2d 658, 659 (Tex. App. - Austin shareholder retains his/her proportionate interest in the 1987, no writ). Keep in mind that the three elements corporation. necessary to have a gift: (i) intent to make a gift; (ii) To prove up the separate estate ownership, request delivery of property; and (iii) acceptance of the property. organizational documents, corporate records, or minutes Hayes v. Rinehart, 65 S.W.3d 286, 289 (Tex. App. - for closely-held entities which may report the number of Eastland 2001, no pet.). shares owned by Spouse. If publicly-traded, look to Gifts may be evidenced by trust agreements, notes brokerage statements or trade confirmations. If the or cards written when the gifts were made, testimony, and shares are not certificated, or if the brokerage statements they may be reflected in Form 709 United States Gift or trade confirmations are not available, you may be able (and Generation-Skipping Transfer) Tax Return. Gifts to “reverse engineer” the number of shares a spouse may not be reported on the returns because the gifted owned at a particular time based upon the dividends amount was valued below the exclusionary amount or the received. For example, assume that Spouse owns shares donor may not have filed the return. of a publicly-traded stock and the stock pays dividends. The dividends will be evidenced by deposits, Form 1099- vi. Inherited Property DIV which reports dividends paid to Spouse, and Generally, when a person dies the dividend income reported on Schedule B of Spouse’s heirs/legatees/devisees’ interest in the estate of the federal income tax return Form 1040. Divide the deceased vests immediately, although their interest is dividend income by the dividend paid-per-share to subject to the debts of the testator or intestate. Texas calculate the number of shares held at a particular time. Probate Code §37. Upon the issuance of letters The dividend history can be obtained online via Yahoo! testamentary or administration of the estate, the executor Finance or other similar website, via investor reports of or administrator shall have the right to possess the estate. the company, financial statements issued by the Id. The executor/administrator holds legal title and a company, or Standard & Poor’s Annual Dividend superior right to possess estate property and to dispose of Records. it as necessary to pay debts of the estate. Gorham v. Gates ex rel. Estate of Baouh, 82 S.W.3d 359, 365 (Tex. iv. Oil and Gas Properties or Interests App. - Austin, 2002, pet. denied). Until the administrator Assuming that mineral interest is separate property: pays all debts owned by the estate and distributes the property, beneficiaries do not actually hold legal title to • royalty income is separate property because the the devised property. Woodward v. Jaster, 933 S.w.2d revenue from the extraction of oil or gas is 777 (Tex. App. - Austin 1996, no writ). Thus, if the equivalent to a piecemeal sale of the separate administrator exercises his power to dispose of estate corpus. Norris v. Vaughn 152 Tex. 491, 260 property to pay debts of the estate, the sale of the S.W.2d 676, 679 (1983). property divests the beneficiary of his interests in the • delay rentals are community property because they property. Gorham v. Gates ex rel. Estate of Baouh, 82 do not depend upon the finding or production of oil S.W.3d 359, 365-366 (Tex. App. - Austin, 2002, pet. and gas and do not exhaust the separate corpus. denied).

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Inherited property may be evidenced by the purchasing spouse for satisfaction of the testamentary trusts, wills, other probate documents, Form indebtedness. See Broussard v. Tian, 156 Tex. 376, 295 706 United States Estate (and Generation-skipping S.W.2d 405 (1956), cert. denied, 353 U.S. 941, 77 S.Ct. Transfer) Tax Return, and testimony from persons with 811, 1 L.Ed.2d 758 (1957); Gleich v. Bongio, 128 Tex. knowledge. 606, 99 S.W.2d 881, 886 (1937); see also Jones, 890 When a spouse claims that an asset is separate S.W.2d at 475; Welder v. Welder, 794 S.W.2d 420, 427- property because it was acquired during marriage by 28 (Tex.App.–Corpus Christi, no writ); Holloway v. testamentary gift or devise, the spouse discharges his or Holloway, 671 S.W.2d 51, 56-57 (Tex.App.–Dallas 1983, her burden to trace the separate property character of the writ dism’d); Price v. Service Bureau, Inc., 165 S.W.2d asset by introducing a copy of the last will and testament 794, 796 (Tex.Civ.App.–Amarillo1942, writ ref’d or trust document which makes the gift or devise, and w.o.m.). then introducing evidence showing the transfer or It is not enough for the purchasing spouse to claim conveyance of the asset from the testator or settlor’s that the down payment was made with separate property estate to the inheriting spouse. See, e.g., Orr v. Pope, and the purchasing spouse intended all of the deferred 400 S.W.2d 614, 616-18 (Tex.Civ.App.–Amarillo 1966, payments to be paid with his or her separate property. no writ). Welder, 794 S.W.2d at 427-28. Rather, the purchasing In Orr v. Pope, the heirs of husband brought suit spouse must prove that the down payment was made with against the heirs of wife seeking title to a piece of real separate property and that the lender agreed to look only property. During marriage, husband’s mother and father to the purchasing spouse’s separate estate for the died. At the time of his father’s death, husband entered repayment of the loan. Id. As a result, any direct or into an agreement with the other heirs of father to swap circumstantial evidence tending to prove or disprove the portions of each heirs’ inheritance in order to settle the lender’s agreement to look solely to the separate estate of estate. Several deeds were executed to settle the estate the purchasing spouse is the most important evidence to and husband received title to the surface and mineral proving or disproving this type of separate property estates of a piece of real property. Later, husband claim. predeceased wife. After wife died, the heirs of husband A few examples will help explain the type of and wife disputed whether the interests in real property documents you should gather to prove that an asset was belonged to husband’s separate estate or the community purchased with separate property debt: estate. The heirs of husband moved for summary In Jones v. Jones, husband purchased three treasury judgment. Copies of the last will and testament and notes with proceeds from a loan secured by a certificate deeds were attached to the motion, along with sworn of deposit. 890 S.W.2d at 474-76. Husband claimed that testimony, in the form of affidavits and depositions the notes, or part of them, were his separate property transcripts, to prove the circumstances surrounding the because the certificate of deposit was his separate execution of the deeds. The trial court granted summary property. The note and loan application were admitted judgment declaring that the real property belonged to into evidence, but they were silent as to whether the bank husband’s separate estate. Heirs of wife appealed. The agreed to look only to the certificate of deposit and/or court of appeals affirmed holding that the evidence husband’s separate estate for repayment. The jury found conclusively established that the surface estate and in favor of husband. Wife appealed. The court of mineral interests were acquired through devise or descent appeals reversed because it found no evidence indicating and were therefore husband’s separate property. Id., 400 that the bank had in anyway limited itself to looking S.W.2d at 616-18. solely to the certificate deposit or husband’s separate estate for repayment of the loan. 890 S.W.2d at 474-76. vii. Separate Debt Advances In Glover v. Henry, the decedent inherited a 1/14th Debts contracted during marriage are presumed to interest in a piece of real estate. 749 S.W.2d 502, 503 be on the credit of the community, unless it is shown that (Tex.App.–Eastland 1988, no writ). The decedent bought the creditor agreed to look solely to the separate estate of the remaining 13/14th interest from his mother and the contracting spouse for satisfaction. Cockerham v. siblings, signing a note for $1,500 to finance the Cockerham, 527 S.W.2d 162 (Tex. 1975) citing purchase. The deed recited that the down payment was Broussard v. Tian, 156 Tex. 371, 295 S.W.2d 405 (1956) made from the decedent’s separate estate. A release was and Gleich vs Bongio, 128 Tex. 606, 99 S.W.2d 881 later executed which recited that the decedent had paid (Tex. 1937). the note, and that all payments were made from the In order to prove that an asset is separate property, decedent’s separate property. Plaintiffs sought to prove because it was acquired with separate property credit that the piece of real estate was community property, during marriage, the purchasing spouse must prove that defendant sought to prove that the real estate was the lender agreed to look solely to the separate estate of separate property. The jury found in favor of defendants.

8 Using Summary Judgment Procedure in Family Law Cases Chapter 5

Plaintiffs appealed. The court of appeals concluded that the ranch, to purchase a house and 18 acres of land. the deed and release were sufficient evidence to allow the Husband and wife filed for divorce. Husband claimed jury to infer that the lender agreed to look solely to the the house and 18 acres as his separate property. The case decedent’s separate estate for repayment of the loan. was tried to the court. The trial court found that the However, the case was reversed and remanded because community estate was secondarily liable on loan for the the jury charge erroneously instructed the jury that the house and 18 acres, and that there was no reasonable facts recited in ancient documents, such as the deed and possibility that a resort to the community estate would release, were prima facie proof of the facts contained in ever have been necessary to obtain repayment of the loan. those documents. 749 S.W.2d at 502. Wife appealed. On appeal, the court of appeals In Holloway v. Holloway, husband asserted that the concluded that there was no question that husband’s stock in a pipeline company was his separate property separate estate owned 9/24 of the house and 18 acres due because he purchased the stock during marriage pursuant to fact that house and acreage was bought in part with to a loan made to his separate estate. 671 S.W.2d at 56. $9,000 from sale of husband’s separate property ranch. The evidence showed that a bank loaned husband the However, the court of appeals disagreed with the trial sum of $10,000 and placed it into an account called court that the remainder of the interest in the house and husband’s “separate property” account. Husband acreage (i.e., 15/24) was husband’s separate property. testified that he used these funds to purchase the stock in The court of appeals concluded that evidence showing question. The loan papers were admitted into evidence. that the community estate was only secondarily liable on Although the loan papers did not include an express the loan, or not likely to have ever been called upon to agreement wherein the bank promised to look solely to repay the loan, was not the same as evidence proving that husband’s separate estate for repayment of the loan, the the bank agreed to look solely to husband’s separate loan papers did include several pieces of evidence estate for repayment of the loan. Thus, the court of indicating that the bank agreed to look to the separate appeals concluded that the community estate owned estate of husband for repayment of the loan. There was 15/24ths of the house and acreage. It should be noted, a promissory note and security agreement each signed however, that the court of appeals eventually concluded “[husband], Separate Property.” There was a written that husband had a reimbursement claim for all payments “statement of purpose” for the loan which stated that the made on the house and 18 acres because the payment loan was made so that husband could invest in the schedule of the ranch and house loans, and course of pipeline venture, again signed by husband in his conduct of the parties (i.e., taking payment from ranch “Separate Property” capacity, and certified by the bank note and depositing it into a joint account on the day the officer. Finally, there was an affidavit signed by husband payment on house loan was due), proved that all which swore that the collateral listed in the security payments on house and acreage were made by husband’s agreement was property he acquired before his marriage separate estate. 363 S.W.2d at 306-08. to wife and he acknowledged that the bank would be relying on his testimony in making the loan to husband’s viii. Mutations separate property account. The jury found that the stock To maintain the character of separate property, it is was husband’s separate property. Wife appealed. The not necessary that the property be preserved in specie or court of appeals affirmed, holding that the foregoing in-kind; it may undergo mutations and changes and still evidence was sufficient to support a finding that the bank remain separate property–so long as it can be clearly and agreed to look solely to the husband’s separate estate for satisfactorily traced and identified to its separate origin, repayment of the loan and therefore the stock purchased its distinctive character will remain. with the loan proceeds was husband’s separate property. Example: H owned a separate property house 671 S.W.2d at 57. (House 1) which had an outstanding mortgage balance. In Beeler v. Beeler, husband owned a ranch before W acknowledges that the property was owned by H prior marriage. 363 S.W.2d 305, 306-08 to marriage. The home was insured, which was fortunate, (Tex.Civ.App.–Beaumont 1962, writ dism’d). During because during marriage a flood occurred and damaged the marriage, husband sold the ranch for $50,000, the home. Insurer pays funds to H. H sells the separate $16,000 of which was put up as a down payment, and the property house; he uses the sales proceeds along with a balance paid through a note for $34,000 plus 5% interest. portion of the insurance proceeds to purchase House2. On the day the ranch was sold, husband executed a loan What is the character of House 2? House 2 would be H’s with bank for $15,000. The payments on the $15,000 separate property. loan were timed so they were due on the exact day the The court in Burgess v. Burgess, 2007 WL 1501117 payments on the $34,000 ranch note were due to (Tex. App. - Beaumont, 2007) dealt with this issue. husband. Husband then used the$15,000 loan proceeds, There, the court found that the residence was separate along with $9,000 of the down payment from the sale of property because the evidence was sufficient to

9 Using Summary Judgment Procedure in Family Law Cases Chapter 5 demonstrate that the residence was H’s separate property. statements are not available, check registers, check Burgess v. Burgess, 2007 WL 1501117 (Tex. App. - copies, deposit slips, wire transfer records and other Beaumont, 2007). Citing Texas Family Code §3.008(a), records may be used to recreate the account activity. which provides that insurance proceeds paid or payable Example: Assume a joint bank account contained that arise from a casualty loss to property during $50,000 community property on Day 1– marriage are characterized in the same manner as the property to which the claim is attributable, the court + On Day 2 $100,000 of community property opined that the proceeds were also H’s separate property was deposited in the account. because the proceeds from a casualty insurance payment + On Day 3, $125,000 cash gift (separate takes on the character of the insured property. Id. property) was transferred into the account. = At the end of Day 3, the account had a balance c. Tracing Rules of $275,000. If separate property funds were deposited in an – On Day 4, $100,000 was withdrawn from the account that also contains community property funds, is account to purchase shares of ABC, Inc. all lost for the spouse asserting separate property? No. = The balance in the account after the withdrawal A showing of community and separate funds deposited is $175,000. in the same account does not divest the separate funds of their identity and establish the amount as community What would be the character of the ABC, Inc. shares and when the separate funds may be traced. Holloway v. the character of the $175,000 remaining in the account Holoway, 671 S.W.d2 51, 60 (Tex. App. - Dallas 1983, after the withdrawal? The answers depends upon which writ dism’d); Harris v. Ventura, 582 S.W.2d 853, 855 method of tracing is used. (Tex.Civ.App. - Beaumont 1979, no writ). Fortunately for all of us, this does not mean that you i. Community Out First or the client will have to track the serial number of each This is the most common method of tracing we bill. One dollar has the same value as another and under encounter. Sibley v. Sibley, 286 S.W.2d 657 (Tex. Civ. the law there can be no commingling by the mixing of App. – Dallas 1955, writ dism’d) (per curiam) is the dollars when the number owned by each is known. often-cited case and viewed by some as the case which Welder v. Welder, 794 S.W2d 420 (Tex. App. - Corpus established the acceptability of such a method. In Sibley, Christi, 1990) citing Trawick v. Trawick, 671 S.W.2d H deposited W’s separate property cash in an account 105, 110 (Tex. App. - El Paso 1984, no writ) and Farrow that contained community property funds. On October v. Farrow, 238 S.W.2d 255, 257 (Tex. Civ. App. - Austin 11, a 160-acre farm was acquired with $1,929.08 cash 1951, no writ). Cash is a fungible item but it can be withdrawn from the account and a note for the balance. traced, even though separate property cash is deposited In determining the character of the farm, the court had to in an account that also had community property funds. determine which funds were withdrawn. The court stated Sibley v. Sibley, 286 S.W.2d 657 (Tex. Civ. App. - Dallas that “[e]quity impresses a resulting trust on such funds in 1995, writ dism’d, no pet.). favor of the W and where a trustee [H] draws checks on Experts can use various methods to trace the a fund in which trust funds are mingled with those of the separate property cash. Generally, cash can be traced in trustee, the trustee is presumed to have checked out his a detailed approach, as in a line item tracing, or a more own money first,...” Sibley at 659. “The community aggregate approach, as in minimum sum balance. Under moneys in joint bank account of the parties are therefore the line item tracing method, the deposits and presumed to have been drawn out first, before the withdrawals reported on bank and brokerage statements separate moneys are withdrawn.” Id. are entered line-by-line, presented in date order, and Under the hypothetical, if the community out first deposits are usually shown before disbursement for method is used, the ABC, Inc. shares would be 100% transactions in a particular day. Transactions are entered community property; the remaining balance is $50,000 based upon when cash clears the account or the reported community property and $125,000 separate property. settlement date. Bank and brokerage statements are usually available ii. Separate Out First online or may be requested from the bank or brokerage In Smith v. Smith, 22 S.W.2d 140 (Tex. App. - house if the client does not have those documents. Be Houston [14th District], 2000) the separate out first aware that there are fees associated with requesting the method was referenced. The court there appears to information from the bank; we are noting that more and suggest that the party seeking to use a method other than more institutions are shortening the amount of time community out first has the burden of citing evidence to documents are retained, so some of the statements for apply another method. What evidence or factors would longer-term marriages may not be available. When a court consider sufficient to justify using something

10 Using Summary Judgment Procedure in Family Law Cases Chapter 5 other than community out first method? Would it matter separate out first presumption. We would to the court what the account was primarily used for, i.e. presume Husband spent his own funds before to pay living expenses? If separate out first is used, then spending the community funds thus leaving the spouse loses his/her separate property if there is no community funds in the account for possible reimbursement for living expenses. disbursement to the beneficiary–the Wife–upon In Smith, the court stated that evidence revealed that the dissolution of the marriage. Husband would account in dispute received both community funds and have the burden of rebutting the separate out H’s separate funds. Id., 22d S.W.3d at 145-146. In first presumption. We apply the community determining that the balance in the account was H’s out first presumption because it seems to be separate property, the court stated: established law.

[g]enerally, when separate property and Id. community property are commingled in a single bank account, we presume that the Under the hypothetical, the ABC shares would be community funds are drawn out first, before 100% separate property, and the remaining balance in the separate funds are withdrawn, and where there account would be $150,000 community property and are sufficient funds at all times to cover the $25,000 separate property. separate property balance in the account at the time of divorce, we presume that the balance iii. Pro Rata remains separate property. The only Under the pro rata approach, when an account requirement for tracing and the application of contains both community funds and separate funds, the the community out first presumption is that the withdrawals are presumed to be made pro rata in party attempting to overcome the community proportion to the balance in the account. Shelly D. presumption is that the party attempting to Merritt, Planning for Community Property in Colorado, overcome the community presumption produce 31 Jun Colaw 79,80 (2002). clear evidence of the transactions affecting the In the hypothetical, the balance in the account prior commingled account. to the withdrawal was 55% community property ($150,000/$275,000) and 45% separate property. The Id, citing Welder v. Welder, 794 S.W.2d 420, 433-434 ABC shares would be a mixed character asset: 55% (Tex.App. - Corpus Christi 1990, no writ); Horlock v. community property and 45% separate property; the Horlock, 533 S.W.2d 52, 58 (Tex. Civ. App. - Houston percentages also apply to the remaining cash balance: [14th Dist.] 1975, writ dism’d w.o.j.; but cf. Goodridge v. $95,455 community property and $79,545 separate Goodrige, 591 S.W.2d 571, 573 (Tex. Civ. App. - Dallas property. Assume also that the next deposit of $25,000 1979, writ dism’d wo.o.j). was separate funds. After the deposit, the account The court further stated that the community out first balance is $200,000, of which the community amount is presumption is a rebuttable one; however, W did not cite still $95,455 and the separate amount is $104,545 (48% evidence to rebut the presumption. Smith, 22d S.W.3d at and 52%, respectively). The withdrawal that 147. In a footnote, the court also stated: immediately follows the transaction would be in the same proportion, i.e 48% community property and 52% ...a blind application of the community out first separate property. presumption does not uphold the policy reason for the presumption’s original application...In iv. Intent Sibley, the question involved the Husband’s The best discussion of this method of tracing is spending funds from an account in which Richard Orsinger’s paper titled “Different Ways to Trace community funds had been commingled with Separate Property” which was presented at the 35th the Wife’s separate funds. The application of Annual Advanced Family Law Course in August 2009. the community out first presumption thus Under this approach, the client and/or the expert preserved the Wife’s separate estate. Here, would determine the characterization of the withdrawals however, mechanical application of the based upon the client’s intent. To lend credibility to a community out first presumption leads to the spouse’s testimony regarding intent, attempt to obtain Husband preserving his separate estate at the supporting documents such as written notes around the expense of the community. Were we to view time of the transaction, communications with third Husband as a trustee acting in the best interest parties, or other evidence which supports the intent. The of the beneficiary, we would apply not the challenge in relying on intent is that the client or your community out first presumption, but a expert will need to explain the story(ies) regarding the

11 Using Summary Judgment Procedure in Family Law Cases Chapter 5 various types of withdrawals that occurred–why the other vii. Exhaustion Method/Family Expense Method withdrawals were intended or not intended to be funded This method is more fully explained in a paper by with separate funds. In our simple hypothetical, it may Joan F. Kessler, Allan R. Koritzinsky, and Marta T. be easy to explain the intent or the history of the account Meyers, titled, Tracing to Avoid Transmutations, and since it contains limited transactions; however, where found in 17 JAMAML 371, 375 (2001). See also there are thousands of transactions in a single account Richard Orsinger’s paper titled “Different Ways to Trace used for multiple purposes, the task is more challenging. Separate Property” which was presented at the 35th Annual Advanced Family Law Course in August 2009. v. Clearing House and Identical Sum Inference The approach assumes that all family living expense are Under the clearinghouse method, after one or more to be charged against community funds. The separate identifiable sums of separate funds are temporarily characterization can be established by showing that on a deposited into one account and then those identifiable particular date a withdrawal occurs, the community funds sums are withdrawn, the withdrawals (and whatever was were already exhausted on payment of family living acquired with those funds) are treated as separate expenses. Under this method, the community money will property. Similar to the clearinghouse method, the be used to pay family expenses before separate money identical sum inference method involves only one deposit will be used for family expenses. Therefore, it is not rather than a group or series of deposits. Issues arise in necessary to document every deposit and every this method when the amounts of the deposit or the expenditure as it occurred–no running balance is withdrawal are not exact or when the deposit and the required. All of the family money that went into the asserted related withdrawal do not occur close in time. In account, up to the date in question, is calculated. Then our example, the ABC shares would be entirely all of the family expenses that were paid out of the community property if the $100,000 withdrawal is account in the same time period are computed. If the associated with the $100,000 deposit on Day 2. What if family expenses are equal to, or greater than, the family the other spouse asserts instead that the $125,000 deposit income, what is left is separate property. Hence, the of separate funds on Day 3 was made in anticipation of, remainder of the account at the date or the asset and was for the sole purpose of, the purchase of the purchased on that date with the “leftover” separate shares on Day 4–should the shares be characterized as money is separate property. separate property instead? “Identical sum” does not In Zagorski v. Zagorski, 116 S.W.3d 309 (Tex. App. always mean exact amount. - Houston [14th Dist.] 2003, pet denied), W challenged the trial court’s determination that H had separate funds vi. Minimum Sum Balance in a disputed account, and she asserted that the funds The minimum sum balance method would likely be should have been community property since the account the least expensive method of tracing cash (in terms of was commingled. H provided evidence showing the professional fees) because as long as the cash balance in separate balance prior to marriage, the interest income the bank account does not fall below the separate earned from the account during marriage of $115,000, property cash deposited into the account, the separate and a listing of withdrawals made for living expenses property funds are presumed to remain in the account. during the same period of $366,000. Zagorski, 116 This method should result in the same characterization as S.W.3d at 320. The court noted that W did not provide the community out first method because the community evidence rebutting the community out first presumption funds are drawn out first, and as long as the balance and decided that, because the withdrawals for community remaining in the account is equal to or less than the expenses depleted community funds in the account, H separate fund deposited, the balance has to be the rebutted the statutory presumption that the account was separate funds. a community asset. Id. at 321. A disadvantage of using the minimum sum balance What is considered a living expense? “Needs” are method is that if the separate property deposit(s) arguably a living expense, but are “wants” or luxuries exceeded the remaining balance in the account, the considered living expenses? Would there be a limit on separate property cash withdrawn is not accounted for. the number of vehicles? Are charitable donations Additionally, if statements for the relevant periods are considered living expenses? Are there limits on spending missing or otherwise unavailable, the minimum sum for clothing or other items–does it vary with the size of balance method may not be successful in showing that the potential community estate? the separate funds were not depleted during the missing period(s) and therefore the remaining separate funds may viii. Maximum Community not be proven to the satisfaction of the trier of fact. Duncan v. United States, 247 F.2d 845 (5th Cir. 1957) involved an action where co-executors sought recovery of a portion of the estate taxes paid. The

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Commissioner of the Internal Revenue Service iii. The mere deposit of community funds in a joint determined that various assets were separate property. account does not effectuate a partition of community The estate asserted that the records did not indicate how funds. Tuttle v. Simpson, 735 S.W.d 2d 539 (Tex. the disputed assets were acquired and, therefore, the App. - Texarkana 1987, no writ). community presumption should apply and the disputed assets should be characterized as community property. VI. OTHER MAJOR USES OF MSJs It was acknowledged that H had significant separate Now that we have covered the use of summary property. The records reflected that for the period judgment to prove separate property claims, the between 1947-1949, the total possible community discussion can move to the other uses of summary sources of income totaled approximately $17,000 after judgment in family law cases. deductions for income taxes. Information regarding disbursements for living and household expenses was not A. Traditional MSJs established. The court stated that there was no other Texas Rule of Civil Procedure 166a(a) provides that: source whatever from which presumed community property funds were available to acquire the disputed A party seeking to recover upon a claim, assets; therefore, the total community interest in the counterclaim, or cross claim or to obtain a disputed assets could not exceed the approximate declaratory judgment, may, at any time after $17,000, assuming that all of the income available for the adverse party has appeared and answered, spending was used to accumulate the assets in question. move with or without supporting affidavits for a summary judgment in his favor upon all or d. Rules Regarding Bank Accounts and Assets any part thereof. Purchased with Funds from Bank Accounts Most separate property assets, either when initially A summary judgment motion under this section of rule acquired or sometime later in the chain of exchanges, 166(a) is called an affirmative or traditional motion for takes the form of cash, and almost inevitably the cash is summary judgment. It is almost always filed with deposited in a bank or brokerage account. A few issues supporting affidavits and exhibits attached. Summary to keep in mind regarding bank accounts and certificates judgment may apply not only to civil litigation issues of deposits: such as personal injury or contracts but also to any of the various claims that may be brought in family law i. there is a presumption (though it may be rebutted) litigation, involving either property or conservatorship that when a spouse uses separate property to acquire issues. Some of the more common family law issues that an asset during marriage and takes title to that may be well suited for summary judgment are discussed property in the names of both spouses, a below: presumption arises that the purchasing spouse intended to make a gift of one-half of the separate 1. Enforcement of Pre-, Post- and Marital Agreements funds to the other spouse. Cockerham v. Under Texas law, a prenuptial agreement (as well as Cockerham, 527 S.W.2d 162, 168 (Tex. 1975). The marital property agreements) will be upheld and enforced common law presumption of gift was applied to by the court unless the party against whom enforcement purchase of real estate and homesteads, though it is requested proves that the contract was not signed was later broadened to other types of assets where voluntarily, or that the agreement was unconscionable there is a title or owner or record, i.e. bank accounts. and the other party’s finances were not disclosed or In re Marriage of Case, 28 S.W.3d 154, 158 (Tex. waived, pursuant to §4.006 of the Texas Family Code: App. - Texarkana 2000, no pet.). In 1979, the Nontestamentary Transfers Chapter of the Texas (a) A premarital agreement is not enforceable if the Probate Code was adopted and it had the effect of party against whom enforcement is requested proves overriding the common law gift presumption on that: accounts: it provided that money in joint accounts belongs to the parties in proportion to the net (1) the party did not sign the agreement contributions by each to the sums on deposit, unless voluntarily; or there is clear and convincing evidence of a different (2) the agreement was unconscionable when it was intent. Id at 159, citing Texas Probate Code §438 signed and, before signing the agreement, that (a). the party: ii. A pay on death (POD) account belongs to the original payee during his lifetime and not to the POD payee(s). Texas Probate Code §438 (b).

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(A) was not provided a fair and reasonable 1999, pet. denied). The issue of unconscionability is disclosure of the property or financial determined as a matter of law on a case by case basis. obligations of the other party; Marsh v. Marsh, 949 S.W.2d 734, 740 (Tex. App. (B) did not voluntarily and expressly waive, Houston [14th Dist.] 1997, no writ). Generally, the court in writing, any right to disclosure of the looks at “the entire atmosphere in which the agreement property or financial obligations of the was made, the alternatives, if any, which were available other party beyond the disclosure to the parties at the time of the making of the contract, the provided; and non-bargaining ability of one party, whether the contract (C) did not have, or reasonably could not is illegal or against public policy, and, whether the have had, adequate knowledge of the contract is oppressive or unreasonable.” Id. An property or financial obligations of the agreement must be so far one-sided that no reasonable other party. person could consider it to be an arm’s length transaction (b) An issue of unconscionability of a premarital in order to be held unconscionable. Id. A finding that agreement shall be decided by the court as a matter an agreement is unfair does not mean the agreement is of law unconscionable. Id. (c) The remedies and defenses in this section are the Similarly, when it comes to voluntariness, the courts exclusive remedies or defenses, including common evaluate the issue on a case by case basis. Courts will law remedies or defenses. only accept duress as a contract defense if the person seeking to prove it shows that there was a threat to do Tex. Fam. Code § 4.006 (2010) something the threatening party has no legal right to do. Osorno v. Osorno, 76 S.W.3d 509, 511 (Tex. App. Public policy dictates the enforcement of premarital Houston [14th Dist.] 2002, no pet). In Osorno, although agreements. Beck v. Beck, 814 S.W.2d 745, 749 (Tex. it was morally repugnant of the husband to threaten not 1991). Therefore, these agreements are presumptively to marry the wife if she did not sign the prenuptial valid. Grossman v. Grossman, 799 S.W.2d 511, 513 agreement, he had the right to not marry her, and (Tex. App. – Corpus Christi 1990, no writ). The therefore, her decision to sign was not made under appellate court trend has been to uphold these duress. Id. The agreement was signed the day before the agreements. The party challenging the enforceability of wedding. The court stated that although the wife to be the agreement bears the burden of proving the agreement was faced with difficult choices, we cannot find her was entered into involuntarily or that it is decision to sign was involuntary. Id. unconscionable. Pletcher v. Goetz, 9 S.W.3d 442, 445 Marital property agreements (post-nuptials) fall (Tex. App. – Fort Worth 1999, pet. denied). This largely under the same standards as prenuptial provides an ideal opportunity for the use of traditional agreements. In Texas, the spouses have a right to summary judgment as well as no-evidence summary partition any community property they chose: judgment. Because the statute limits the defenses to enforcing a pre-nup to unconscionability and At any time, the spouses may partition or involuntariness, either side can use summary judgment to exchange between themselves all or part of prove his or her point. Since the burden lies on the party their community property, then existing or to who challenges the validity of the agreement, the person be acquired, as the spouses may desire. seeking to enforce it could also employ a motion for no- Property or a property interest transferred to a evidence summary judgment. In doing so, he or she spouse by a partition or exchange agreement forces the other party to show the court why the becomes that spouse’s separate property. The agreement is unconscionable or how it was entered into partition or exchange of property includes involuntarily. future earnings and income arising from the The party seeking to enforce the agreement can first property as the separate property of the owning use summary judgment to establish the existence of the spouse unless the spouses agree in a record that terms. Grossman, 799 S.W.2d at 513. They must show the future earnings and income will be that the contract exists and that there actually is an community property after the partition or agreement. Once this is done, the party seeking to exchange. enforce the agreement only has to respond to the other side’s defenses against it. Tex. Fam Code § 4.102 (2010) Whether or not the agreement is unconscionable must be determined by the trial court before the The only formalities required for a partition or exchange disclosure issues on finances are addressed. Fazakerly v. agreement is that it be in writing and signed by both Fazakerly, 996 S.W.2d 260, 265 (Tex. App. Eastland parties. Tex. Fam Code § 4.104 (2010). When the

14 Using Summary Judgment Procedure in Family Law Cases Chapter 5 instrument is drawn-up to partition community property, (1) must be in writing and: courts look at the agreement the same way they look at (A) be signed by the spouses; the prenup and evaluate its enforceability based on the (B) identify the property being converted; contract itself. and (C) specify the property is being converted to (a) A partition or exchange agreement is not the spouses’ community property; and enforceable if the party against whom enforcement (2) is enforceable without consideration. is requested proves that: (b) The mere transfer of a spouse’s separate property to the name of the other spouse or to the name of both (1) the party did not sign the agreement spouses is not sufficient to convert the property to voluntarily; or community property under this subchapter. (2) the agreement was unconscionable when it was signed and, before execution of the agreement, Tex. Fam. Code § 4.203 (2010) that party: (A) was not provided a fair and reasonable The enforcement of one of these agreements is a bit disclosure of the property or financial different than the other property agreements. To prevail obligations of the other party; against enforcement of an agreement to convert separate (B) did not voluntarily and expressly waive, property to community property, the spouse must prove in writing, any right to disclosure of the that he or she did not: “(1) execute the agreement property or financial obligations of the voluntarily; or (2) receive a fair and reasonable disclosure other party beyond the disclosure of the legal effect of converting the separate property to provided; and community property.” Tex. Fam. Code § 4.205(a)(1-2). (C) did not have, or reasonably could not In addition the code suggests a disclosure statement have had, adequate knowledge of the (contained in the code) in bold-faced type, capital letters, property or financial obligations of the or underlined. If the disclosure statement in the other party. agreement is identical to what is written in the statute, or (b) An issue of unconscionability of a partition or is in substantially similar words, it is “rebuttably exchange agreement shall be decided by the court as presumed to provide a fair and reasonable disclosure of a matter of law. the legal effect of converting property to community (c) The remedies and defenses in this section are the property. Tex Fam Cod at § 4.205(b).” exclusive remedies or defenses including common If you are the one seeking to enforce the agreement law remedies or defenses. through summary judgment, all you need to do is produce the signed document and make sure that the statement Tex. Fam. Code § 4.105 (2010) about fair and reasonable disclosure is on there in accordance with the statute. A person seeking to fight the Again, the odds are stacked in favor of enforcing the enforcement of one of these agreements would have to agreement. In Pletcher v. Goetz, 9 S.W.3d 442, 445 either show that the signature was not his or hers, that (Tex. App. - Fort Worth 1999, pet. denied), the court there was no disclosure statement or use the same kind of examined unconscionability in the context of a marital defense as in other agreements concerning voluntariness. agreement. Because it is not a term that has actually A person seeking to enforce the agreement against been defined by the legislature or the supreme court in someone claiming that they entered into involuntarily this context, appellate courts have used “a commercial might do well to file a no-evidence motion for summary context” as guidance. Id., See also Marsh v. Marsh, 949 judgment as well because that would put the burden on S.W.2d 734, 739 (Tex. App. Houston [14th Dist.] 1997, the other side to show why it was unenforceable. no writ). Goetz went on to state that the issue of unconscionability is a question of law for the court and 2. Parentage the court needs to consider “all of the circumstances in Thanks to the advancement of science, particularly which the agreement was made” in order to make its due to improvements in genetic testing, the issue of decision. Goetz 9 S.W.3d at 445. Finally, It is also parentage is a much more reliably answered question. In possible to make an agreement converting separate re Shockley, 123 S.W.3d 642, 648 (Tex. App. El Paso, property into community property: 2003). Parentage cases have captured much attention in popular culture in such settings as daytime talk shows or (a) An agreement to convert separate property to the pages of tabloid magazines. Notwithstanding the soap community property: opera drama associated in those instances, when it comes to normal application in a legal setting, the Uniform

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Parentage Act, provides a number of restrictions which knowing who their parents are. If a person has acted as limit is use. These limitations are reflective of the the parent and bonded with the child, the child should not “marital presumption” from the English common law. In be required to suffer the potentially damaging trauma that re Schockley, 123 S.W.3d at 642. This states, that a court may come from being told that the father she has known will presume a child born during a marriage is that of the all her life is not in fact her father.” Id. (internal husband. Id. To this day, states still battle with the issues quotations omitted). Under Texas Family Code §160.608, of rights due to biological and psychological parents. Id. a trial court may deny a motion for genetic testing of a The Uniform Parentage Act, which became effective in child when a presumed father is indicated by clear and Texas on June 14, 2001, incorporates a balance between convincing evidence. Id. at 652. While perhaps less a retention of the old common law presumptions on definitively indicated than time, where clear and parentage and the newer certainties granted by scientific convincing evidence exists in a parentage cause, advancement. Id. at 650. The espoused goal of the Act summary judgment is suitable. is to work towards the best interest of the child. Id. In When genetic testing evidence is neither barred by Texas, as in other states, the act sets significant hurdles the statute of limitations or estoppel, summary judgment “to prevent the disruption in a child’s life caused by a may be applied in another manner. Under Texas Family Johnny-come-lately who appears on the scene after Code §160.505, the weight of genetic testing is significant emotional and psychological bonding has explained. The statute states that a man is rebuttably occurred.” Id. Of the limitations under the Uniform identified as father of a child when test results disclose Parentage Act, the one most predominantly and that the man has at least a 99 percent probability of successfully applying motions for summary judgment are paternity and a combined paternity index of at least 100 where the statute of limitations has been exceeded. to 1. TEX.FAM.CODE. §160.505(a). A man identified as a Under the Uniform Parentage Act in Texas, the statute of father of a child after genetic testing, may rebut the limitations requires that a proceeding to adjudicate the results only by (1) producing another testing that parentage of a child be done within four years of the excludes him as the father or (2) identifying another man child’s birth when there is a presumed father. TEX. FAM. as the possible father of the child. TEX.FAM.CODE. CODE §160.607(a). There is no statute of limitations for §160.505(b). In In re Z.L.T.,124 S.W.3d 163, 164 (Tex. determining the parentage when there is no presumed 2003), the Attorney General filed suit to establish the father. TEX. FAM. CODE §160.607(b). As time is parent-child relationship between an alleged father and essentially a definitive indicator it satisfies a three minor children. The genetic testing was undertaken, quintessential element of motions for summary judgment and per §160.505(b), it revealed a probability of 99.98% - that no genuine issue of material fact exist. In re R.O., for one child and 99.99% for the remaining two. Id. 2005 WL 1787548 (Tex.App.-Austin 2005) (affirming However, the alleged father was in fact able to the trial court’s summary judgment because the statute of successfully rebut the presumption of paternity. Id. This limitations requisite time period had elapsed); In re KNP, case is illustrative in the regard that it is not impossible to 179 S.W.3d 717 (Tex. App. Fort Worth 2005, no rebut the presumption of paternity, however unlikely this pet.)(affirming the trial courts granting of summary may seem - statistically this is an extreme rarity. In any judgment in favor of the biological father because the event, should the circumstances be present, summary mother and presumed father failed to exercise reasonable judgment provides an appropriate strategy for effective diligence in their parentage action within the statutory and efficient adjudication, because there is no genuine time limitations). issue of fact. Another limitation where summary judgment motions can be applied is in the application of estoppel. 3. Void, Voidable Marriages The Texas Family Code provides for the annulment “Estoppel in paternity actions is merely the of a marriage under a variety of circumstances. See legal determination that because of a person’s Tex.Fam.Code §6.101 - 6.110 (2007). Many of the conduct, that person, regardless of biological claims are very susceptible to summary judgments. As of status will not be permitted to litigate September 1, 2007, “A marriage is void if either party to parentage.” In re Shockley, 123 S.W.3d 642, the marriage is younger than 16 years of age, unless a 651 (Tex.App.-El Paso 2003, no pet.). court order has been obtained under Section 2.103.” Tex. Fam. Code § 6.205 (2007). Summary judgement is a The use of equitable estoppel in paternity actions is very effective tool in showing the invalidity of a marriage focused on obtaining fairness between mother and father to a minor because all that has to be done by the side and holding them to prior conduct concerning the seeking to prove the marriage is void to show the court parentage of the child. Id. at 652. “Estoppel is based on that the person is under the age of 16 or that there is no the public policy that children should be secure in court order allowing the marriage to continue. Id. A

16 Using Summary Judgment Procedure in Family Law Cases Chapter 5 similar law exists for persons 16 years of age or older but only as “voluntary sexual intercourse of a married person under the age of 18. Tex. Fam. Code § 6.102 (2007). To with one not the husband or wife of the offender” before annul a marriage in this situation, the party seeking the the divorce proceedings, but during them as well. So annulment must show that there was no parental consent under this interpretation of adultery, evidence that the from the parents of the minor. Id. Again, something spouse is having sexual relations with another before the very easy to establish through a motion for summary divorce is final could be enough to find he or she has judgment. committed adultery. The evidence required could be any Another instance in which summary judgment is admission to having had sexual relations outside of decisive is showing the existence of a prior marriage, marriage, whether it be an admission, a response to an which, in turn, makes the current marriage void. Tex. interrogatory, a deposition, etc. Fam. Code § 6.202 (2007). All one must prove is that A motion for summary judgment on the issue of there is an existing marriage that has not been “dissolved adultery in the right case can be very useful. For by legal action or terminated by the death of the other example, pre-nuptial and post-nuptial have proliferated spouse.” Tex. Fam. Code § 6.202(a). In Loera v. Loera, and many contain “bad boy” clauses that penalize 815 S.W.2d 910 (Tex. App. – Corpus Christi 1991, no financial adulterous conduct. Having a ruling from the writ), the presumption that the most recent marriage is court triggering this provision can drastically alter the valid placed the burden of proof upon the appellee (the negotiating positions of the parties. one who was seeking to annul the marriage) to establish 1) the prior marriage and 2) its continuing validity at the B. No Evidence MSJs time of the subsequent marriage. Id. at 911. The law There are so many tools for a family lawyer to utilize that also says that the latter marriage will become valid when sometimes we overlook some of them. The no evidence the prior marriage is dissolved “if the parties have lived motion for summary judgment is an extremely efficient together as husband and wife and represented themselves and valuable tool that is too often overlooked. This to others as being married.” Tex. Fam. Code § 6.202(b). handy little motion can short circuit parts of your The court also applied this standard in Caddel v. Caddel, opposing counsel’s case and can save both your and your 486 S.W.2d 141, 145 (Tex. Civ. App. – Amarillo 1972, client time and money. This paper will help you know no writ). The court found that the marriage, which had how and when to use the no evidence motion for been invalid because of a previous marriage, became summary judgment in your family law case. valid when the legal impediment was removed (in this case, a divorce from the first spouse). Id. In order to use 1. Common Law Marriage Claims summary judgment effectively in this situation, the Attacking common law marriage claims through a person seeking to show that the marriage is legal should no evidence summary judgment motion is a great tool to present evidence of the dissolution of the previous eliminate untenable claims or, at a bare minimum, to marriage and then rely upon proving the Texas standard smoke out the other party’s evidence. In Texas, to prove for common law marriage. See Tex.Fam.Code §6.202(b) a common law marriage the party seeking to prove the (2007). On the other hand, the side seeking to defend marriage must show that the man and woman agreed to against the validity of the marriage might want to do a be married and that after the agreement, they lived no-evidence summary judgment motion to have the other together in Texas as husband and wife, representing side show their evidence. themselves as such to others. Tex. Fam. Code § 2.401(a)(2). The agreement to be married can be proved 4. Adultery by circumstantial evidence. Russell, 865 S.W.2d 929, Most divorces in Texas are filed and granted on the 933 (Tex. 1993). If neither party has sought to prove the no-fault ground of “irreconcilable differences.” Tex. marriage after two or more years of separation, there is a Fam. Code §6.001. However, in some cases it is legal presumption that there was no marriage. Tex Fam important that fault grounds are established and Cod at §2.401(b). A no evidence motion for summary documented for the divorce. Adultery is likely the most judgment is a useful tool in these cases because often the common fault ground asserted in divorces. Sometimes it different elements of common law marriage can be is important to the client to have a divorce granted for defeated as a matter of law. fault reasons and more often is asserted as a reason for a Appellate courts have encouraged summary disproportionate property split. judgment for such cases. In Ball v. Smith, 150 S.W.3d In the case of adultery, summary judgment can be 889 (Tex.App. - Dallas 2004, no pet.), Smith filed a no used to establish it if there is sufficient evidence to evidence motion for summary judgment claiming that he clearly establish the claim. Bell v. Bell, 540 S.W.2d 432, and his girlfriend had not had a common law marriage. 435 (Tex. App. Houston [1st Dist.] 1976, no writ) The court held that the motion for no evidence summary (distinguished on other grounds), defines adultery not judgment was legally sufficient because the girlfriend had

17 Using Summary Judgment Procedure in Family Law Cases Chapter 5 not met her burden of showing more than a scintilla of summary judgment was granted. Wrencher v. Wrencher, evidence that they had satisfied the statutory 2007 WL 1451810 (Tex.App.–Austin 2007). The use of requirements for a common law marriage. Id. at 893. no-evidence motion for summary judgment must be Similarly, in Amaye v. Oravetz, the girlfriend did not determined, however, on a case-by-case basis. See present more than a scintilla of evidence to rebut the Hargrave v. LeFever, 82 S.W.3d 524, 527 (Tex. App. – presumption that two or years more of separation meant San Antonio 2002)(Father’s motion for no-evidence there was no common law marriage, and with a no summary judgment to dispose of a modification action evidence motion for summary judgment which demands failed). Where the trial court no longer has continuing, that specific evidence, she lost because she could not exclusive jurisdiction, a summary judgment can be used produce it. Amaye v. Oravetz, 57 S.W.3d 581, 584 (Tex. dispose of a modification action. See Moore v. Brown, App. – Houston [14th Dist.] 2001, pet. denied). 993 S.W.2d 871 (Tex. App. – Fort Worth 1999, rehrg A relatively recent opinion also gives us guidance overruled ); Harkins v. State, 773 S.W. 2d 401(Tex. on the use of an affirmative motion for summary App.– Houston [14th Dist.] 1989). judgment on common law marriage claims. In Almeida Summary judgment may also be used to determine v. Estrada, 2006 WL 2818067, *1 Memorandum whether a court order is sufficiently definite to support Opinion (Tex. App. – San Antonio October, 4 2006, no enforcement by contempt. In re Marriage of Ward, 137 pet. hist.), the court determined that filing a motion for S.W.3d 910 (Tex. App. – Texarkana 2004). In an summary judgment, not a motion to dismiss, would have enforcement action, summary judgment is an alternative been the proper way to dispose of the case. The court to clarification. See In Re A.B., 207 S.W.3d 434, 437 explained that disproving a common law marriage (Tex. App.–Dallas 2006)(Father filed a motion for required Estrada to negate the elements set out in the summary judgment asserting that the child support order Family Code. Mainly, he needed to prove as a matter of in the divorce decree of divorce was unenforceable law that Almeida had not commenced her own because father was named as both a managing and a proceeding within the previous two years so that he could possessory conservator and because the decree contained rely upon the presumption that they had not been no “step down” language when support was payable for married. Tex. Fam. Code § 2.401(b) (2007). Therefore, only one child.). a dismissal was “an inappropriate means of deciding the Summary judgment cannot be used to obtain a ruling merits of the case,” and the appellate court ordered a new that “matters covered by the unanswered requests” for trial so that the proper procedure could be used. Almeida, admission are deemed admitted as such are issues of fact 2006 WL 2818067 at *2. While summary judgment to which a trial court is not bound. Satterfield v. Huff, would have been proper in Almeida, in Grigsby v. 768 S.W.2d 839, 841 (Tex. App. – Austin 1989, rehrg Grigsby, the court ruled that summary judgment should denied 1989)(modification of a SAPCR). Summary not have been granted. 757 S.W.2d 163 (Tex. App. San judgment cannot be used to bind a party to a written Antonio 1988, no writ). Because the appellee did not agreement concerning child support when the agreement negate the requirement of cohabitation in his motion, a lacked the approval of the trial court. Sudan v. Sudan, genuine issue of material fact existed; therefore, he did 145 S.W.3d 280, 285 (Tex.App.–Houston [14th Dist.] not deserve a judgment as a matter of law. Id. at 164. 2002)(rehrg overruled); see also Ballard v. Allen, 2005 WL 1037514 (Tex.App.–Tyler 2005)(An unpublished 2. Modifications opinion in which a mother moved for summary judgment Summary judgment can be a useful an imaginative to clear title to property she acquired from father in tool to dispose of a suit for modification of a SAPCR or exchange for a credit toward his child support an enforcement action. Because the summary judgment arrearages.). process provides a method of terminating a case when only questions of law are involved and when there are no 3. Eliminating Bogus Claims genuine issues of fact, summary judgment can defeat a Some lawyers use their pleadings to posture and modification suit when there is no material or substantial include claims for which they have little or no support. change in circumstances. King v. Wells Fargo Bank, Some lawyers utilize the “throw everything in but the N.A., 205 S.W.3d 731, 734 (Tex.App.-Dallas 2006, no kitchen sink” approach. These approaches can result in pet.). A motion for summary judgment, or partial pleadings that contain claims for which your opposing summary judgment, becomes ripe when adequate time counsel may have little or no support. One way to smoke for discovery has elapsed. Rule 166a(a) Tex. R. Civ. P. out some of the more questionable claims is to file a no In an memorandum opinion out of the Austin Court of evidence motion for summary judgment. This can force Appeals, a mother filed a no-evidence summary your opposing counsel to either abandon the claims or to judgment to defeat the claims of the father. The father’s show some of his or her cards. response did not raise a genuine issue of material fact and

18 Using Summary Judgment Procedure in Family Law Cases Chapter 5 a. Separate Property marriage to Sue, Richard received $706,730.56 in Separate property is any property owned before royalties from the sales of devices he invented, patented, marriage, any property obtained by either spouse during and assigned to Altech before the couple married. the marriage by gift, devise or descent and recovery for Richard deposited these royalties into his separate bank personal injuries the spouse sustained during the account. None of the inventions he developed during his marriage, except for the loss of earning capacity during marriage were generating royalties at the time of the the marriage. See TEX. FAM. CODE§ 3.001. divorce. Any property possessed by either spouse at the Richard petitioned for divorce in June 2000. In a dissolution of a marriage is presumed to be community pretrial ruling, the court declared Richard's royalty property. TEX. FAM. CODE § 3.003; see also Tarver v. income to be community property. In January 2001, Tarver, 394 S.W.2d 780, 783 (Tex. 1965). To overcome after a four day bench trial, the court granted the parties the presumption, a party must prove the existence of a no-fault divorce, granted Sue's request for a protective separate property by clear and convincing evidence. See order, and divided the property unequally. The trial court TEX. FAM. CODE § 3.003(b); Evans v. Evans, 14 S.W.3d did not file requested findings of fact and conclusions of 343, 346 (Tex. App. – Houston [14th Dist.] 2000, no pet.) law and denied Richard's motions for new trial and to In a divorce case, the issue of characterization of the vacate the decree. nature of property as separate or community is This was a case of first impression as no Texas case determined by the trier of fact, be it judge or jury. Bahr had addressed when inception of title to patent rights v, Kohr, 980 S.W.2d 723 (Tex. App. - San Antonio 1998, occurred. The appellate court found that inception of title no pet.) Inevitably, appearing in any petition for divorce to the patents could have occurred: (1) when the concept will be a request for the court to confirm separate was sufficiently developed to generate a plan to build the property. A no evidence motion can be used to smoke invention; (2) when the invention was actually built; or out what that party can or cannot prove. Ordinarily, the (3) on the effective date of the patent. The appellate court time to pursue this would be after you receive the was able to side-step answering this question as all three inventory from the opposing party so you can pick and of these steps occurred before Richard's marriage to Sue. choose what you target. As the inception of title to Richard's patents clearly Some non-routine characterization situations are occurred before marriage, the inventions were Richard's addressed below. separate property. See TEX. FAM. CODE.§ 3.001(1).

Inception of Title. Personal Injuries. Real estate or other property acquired before Sometimes a married person sustains personal marriage is separate property. That means that any real injuries. If that person recovers damages due to his or her estate to which your right to take title vested before personal injuries, most of it is the separate property of the marriage is separate property. This is due to the person who incurred personal injuries and recovered inception of title rule. Take the case of Alsenz v. Alsenz, damages for them. The case of Lee v. Cresswell, 1999 101 S.W.3d 648 (Tex. App. - Houston [1st Dist.] 2003, WL 33748128, Tex. App. - Eastland, December 8, 1999, pet. denied.). Richard Alsenz held a master’s degree in is a good example of how to prove personal injury physics. He was considered an expert in the field of damages are separate property. refrigeration and had invented and patented more than In 1986, Lee and his wife settled a medical thirty-five (35) devices that improved electronic malpractice action based on care Lee's wife received refrigeration. In 1975, Richard founded Altech during childbirth when she suffered severe brain damage. Controls, Inc. to develop and market his inventions. At The Lees settled for approximately 2.5 million dollars. the time of the divorce, he was the president and The settlement agreement states that, in consideration for majority shareholder of Altech, and had assigned all of the payment of that sum, the plaintiffs waived: his patents to the company. Richard and Sue married in 1996. Shortly after the marriage, Altech hired Sue as a [A]ll claims of whatever kind or character consultant. Sue formed the "MSA" corporation to arising from the circumstances described herein receive her salary from Altech plus income from items and especially, but not limited to, personal she sold on EBay, an internet auction site. Sue and injuries, mental and physical pain and Richard had no joint bank accounts or joint credit cards. suffering, loss of wages, lost or diminished Each of them deposited their income into separate bank earnings and/or earning capacity, doctor, accounts. hospital, nursing home, rehabilitation institute, In addition to drawing a salary from Altech, Richard nurse, and drug bills, loss of income, loss of received royalties of four percent (4%) of the gross sales support, loss of inheritance, loss of society, loss of products developed from his inventions. During his of companionship, emotional suffering or

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harm, ultimate wrongful death and/or funeral agreement stated that the total sum paid to the plaintiffs or burial expenses, educational expenses, was to settle some claims such as medical expenses, lost rehabilitation expenses, medical expenses, or wages, and lost earning capacity that were community any other tangible or intangible loss, claims of property. Lee contended that his wife had to show by others for contribution or indemnity or clear and convincing evidence which part of the trusts comparative causation, and any other loss or were separate property. detriment or expenses of any kind, past, The divorce court found that the two new trusts were present or future, regardless of whether said entirely the separate property of Lee's wife. The divorce claims or damages are now known or asserted court also found, however, that the $450,000 paid into in the pleadings filed in this case or otherwise. trust for Lee was his separate property. Lee appealed the divorce court's judgment, but he dismissed the appeal From the total sum, $350,000 was paid into a trust for after he settled with his wife. Lee's wife which was designed to pay for her continuing On September 14, 1998, Lee filed suit against healthcare needs during her life. Lee's wife was the sole Cresswell, for legal malpractice alleging Cresswell beneficiary of this trust. The trust terminated on the death negligently, fraudulently, and erroneously advised Lee of Lee's wife and Lee's wife's estate would receive the that the trusts were his wife's separate property. Lee remainder of the corpus and any undistributed income. alleged that, were it not for the acknowledgments that he Another $450,000 was paid into a trust for Lee. signed, the divorce court would not have awarded his The trust for Lee's wife was established by order of wife the trusts as her separate property. Cresswell moved the court trying the medical malpractice case. In 1991, for summary judgment which the trial court granted. Lee's wife unexpectedly recovered. The Lees moved to The Court found that Texas Family Code section terminate the trust and the court that had tried the 3.001(3) applied. 1Lee argued that if the settlement medical malpractice case terminated the original trust agreement awarding the damages failed to allocate and ordered the assets distributed to "the Beneficiary," amounts of damages to certain categories such as Lee's wife. The Lees retained Cresswell, an attorney, to physical injury, pain, or mental anguish and to others draft two new trusts. such as lost wages or medical expenses, the spouse One trust was an irrevocable trust designed to claiming the funds as separate property has the burden to provide continual income for Lee's wife in the event of a prove their character. The appellate court agreed. relapse; the other was a revocable trust designed to However the appellate court found that Mrs. Lee did provide the Lees with extra income. Cresswell drafted the meet her burden of proof. Although Lee argued that the following acknowledgment, which upon his advice Lee signed acknowledgments were the only evidence signed: presented to the divorce court that the two trusts were his wife's separate property, the summary judgment proof The undersigned, being the husband of DANA indicated that the divorce court considered at least the LEE, who is the person named as the Settlor in settlement agreement and judgment from the medical this Trust Agreement, hereby acknowledges malpractice case. The settlement agreement and release that he has read and understands all of the stated that all of the plaintiffs in that case accepted the terms and provisions of this Trust Agreement; settlement funds in consideration for releasing the acknowledges that the property described on defendants for any claims arising from the defendants' Schedule A attached to this Trust Agreement is conduct toward Lee's wife. The settlement agreement and the sole and separate property of Settlor; agrees judgment divided the total amount of settlement funds that all subsequent additions to this trust shall among all of the plaintiffs. Lee's wife initially received be or become, by virtue of the addition, the $350,000 in trust; Lee received $450,000 in trust. sole and separate property of Settlor; agrees The divorce court considered the structure of the that all future income or property arising from, settlement and its allocation of funds among the plaintiffs and all mutations and appreciation of, the trust as establishing which funds were separate property and assets shall be the sole and separate property of which were community property. Therefore, the divorce Settlor; and agrees that he will claim no court properly found that the two new trusts were interest in such property and will assert no separate property. As Lee has already litigated the right of reimbursement for such property, either as his separate or community property. 1 " [T]he recovery for personal injuries sustained by [a] spouse In 1996, Lee and his wife divorced. Lee's wife claimed during marriage, except any recovery for loss of earning the two new trusts as her separate property. Lee claimed capacity during marriage," is that spouse's separate property. them as community property arguing that the settlement TEX. FAM.CODE ANN. § 3.001(3) (Vernon 1998); see Graham v. Franco, 488 S.W.2d 390, 396 (Tex.1972).

20 Using Summary Judgment Procedure in Family Law Cases Chapter 5 characterization of the trusts in the divorce court, the of both parties. The fact that Danalyn impeached Gabe issue was res judicata and Lee was estopped from with his own testimony certainly did not help Gabe’s litigating the issue again n the malpractice action. case. The appellate court, concluding that the evidence was legally sufficient to support the trial court’s finding Gifts. that Gabe gave Danalyn one half of the lake property as Gifts can be tricky to prove, but disproving them a gift, upheld the trial court’s ruling. Gabe bought out can be difficult as well. In Long v. Long, 196 S.W.3d Danalyn’s interest to the tune of about $875,000.00. That 460, 2007 WL475794, (Tex. App. - El Paso, February was a really nice gift. 15, 2007). The parties were married on May 26, 1998. At the time of the marriage, Gabe Long was employed by b. Reimbursement Perot Systems, and had certain stock options. Eventually Reimbursement claims are also an excellent target the stock was sold and counsel for both parties for a no evidence summary judgment. Again, these represented to the court that the sales proceeds were claims are often inserted into a “form” pleading without Gabe's separate property. giving much thought to whether the spouse’s requested From the proceeds of the stock sale, $138,000 was reimbursement is actually reimbursable under the Family used to purchase a lake lot. Gabe claimed the lot in its Code. entirety as separate property. Danalyn, the soon to be ex- Be aware that the party claiming the right of Mrs. Long, claimed an undivided one-half interest in the reimbursement has the burden of pleading and proving lot as her separate property. Danalyn claimed that when that the expenditures and improvements were made and Gabe used his separate funds to purchase the property but that they are reimbursable. Vallone v. Vallone, 644 took title in both parties' names, Gabe had manifested an S.W.2d 455, 459 (Tex. 1982). Reimbursement is not a intent to make a gift. The trial court agreed and Gabe matter of law, but lies within the discretion of the trial appealed. court. Id. The appellate court stated that a gift is a voluntary A Family Code claim for reimbursement includes: transfer of property to another made gratuitously and without consideration. Hilley v. Hilley, 161 Tex. 569, (1) payment by one marital estate of the unsecured 342 S.W.2d 565, 569 (1961); Roberts v. Roberts, 999 liabilities of another marital estate; S.W.2d 424, 431 (Tex. App.- El Paso 1999, no pet.). (2) inadequate compensation for the time, toil, talent, Three elements are required to establish the existence of and effort of a spouse by a business entity under the a gift: (1) intent to make a gift; (2) delivery of the control and direction of that spouse; property; and (3) acceptance of the property. Harrington (3) the reduction of the principal amount of debt v. Bailey, 351 S.W.2d 946 (Tex.Civ.App.-Waco 1961, no secured by a lien on property received by a spouse writ). Without intent, there is no gift. Similarly, the intent by gift, devise, or descent during a marriage, to the must exist at the time of the transfer, not at the time of a extent the debt existed at the time the property was subsequent divorce. Rusk v. Rusk, 5 S.W.3d 299, 303 received; (Tex. App.-Houston [14th Dist.] 1999, pet. denied), (4) the reduction of the principal amount of a debt citing Ellebracht v. Ellebracht, 735 S.W.2d 658, 659 secured by a lien on property received by a spouse (Tex. App.-Austin 1987, no writ). by gift, devise, or descent during a marriage, to the The deed taken in both names, but paid for by extent the debt existed at the time the property was Gabe’s separate funds, created a rebuttable presumption received; that Gabe gave Danalyn a gift. The presumption vanished (5) the reduction of the principal amount of a debt, when Gabe testified that he did not intend to make a gift including a home equity loan: and the burden shift to Danalyn to establish, by clear and (A) incurred during marriage; convincing evidence, that a gift was intended. (B) secured by a lien on property; and There was conflicting evidence about Gabe’s (C) incurred for the acquisition of, or for capital intention to make a gift. It should come as no surprise improvements to, property; that Gabe testified that he never intended to make a gift (6) the reduction of the principal amount of a debt: to Danalyn of the property. Danalyn, of course, testified (A) incurred during marriage; to the exact opposite, swearing that the land was always (B) secured by a lien on property owned by a referred to as “ours”. Danalyn’s attorney was able to spouse; impeach Gabe with his prior deposition testimony while (C) for which the creditor agreed to look solely to he was on the stand. The appellate court held that a the separate marital estate of the spouse on reasonable trier of fact could have formed a firm belief or whose property the lien attached; and conviction that a gift was intended based upon the (D) incurred for the acquisition of, or capital testimony of the parties and the deed taken in the name improvement to, property;

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(7) the refinancing of the principal amount described by See Tex. Fam. Code § 3.409. Subdivisions (3)-(6), to the extent the refinancing If the proof brought forward in response to the reduces that principal amount in th emanner motion looks like one of these five prohibited claims, the described by the applicable subdivision; court should grant the no evidence motion for summary (8) capital improvements to property other than by judgment. incurring debt; and In sum, a no evidence summary judgment can be (9) the reduction by the community property estate of very useful to eliminate tenuous or shaky reimbursement an unsecured debt incurred by the separate estate of claims that have been inserted into a “form” pleading. one of the spouses. VII. UNDERSTANDING THE PROCEDURE See Tex. Fam. Code § 3.402(a) O’Connors (2010). The no evidence motion for summary judgment A. Traditional MSJs should challenge the proof that one marital estate paid The traditional motion for summary judgment any unsecured liabilities of another marital estate. Most depends upon summary judgment evidence (i.e. the often, a spouse has in mind that this must be true, but the affidavits and exhibits attached to the motion) Tex. R. evidence is lacking to support that spouse’s conviction. Civ. P. 166a(c).The trial court’s duty in considering the The no evidence summary judgment can put the spouse motion is to determine if a material question of fact to her burden. exists. Huckabee v. Tim Warner Entertainment Co., 19 Moreover, a reimbursement claim based on S.W.3d 413, 422 (Tex. 2000) (“Texas law has always inadequate time, toil, talent, and effort of a spouse by a emphasized that trial courts must not weigh the evidence business entity under the control and direction of that at the summary judgment stage.) spouse is also a good area for a no evidence motion for summary judgment. Again, a spouse might think they a. A traditional summary judgment can be filed can merely just assert such a claim without much anytime after the lawsuit is filed by the Defendant evidence. The summary judgment motion will put the and after the Defendant answers by the Plaintiff. spouse to the burden to show some evidence of these b. The movant must prove his/her claim or defense or constituent elements. disprove an element of nonmovant’s claim or An additional possibility exists for a no evidence defense as a matter of law. The nonmovant does not summary judgment even if the non-moving party have a burden of proof until the movant offers proof responds with some evidence. Keep in mind that the that he/she is entitled to summary judgment as a Family Code specifically provides that the court must matter of law. resolve a claim for reimbursement by using equitable c. The motion for summary judgment must state the principles, including the principle that claims for grounds on which it is made. Tex. R..Civ. P. reimbursement may be offset against each other if the 166a(c). Similar to a petition, a motion for court determines it to be appropriate. Tex. Fam. Code § summary judgment must be sufficiently detailed to 3.402(b). provide the non-Movant “fair notice.” Seaway A no evidence summary judgment may also shake Prods. Pipeline Co. v. Hanley, 153 S.W.3d 643, 649 out weak or sketchy proof to support a reimbursement (Tex. App. - Fort Worth 2004, no pet.). claim. The trial court, using equitable principles, could determine that the evidence presented in response to the If the grounds are not specific enough, the remedy no evidence motion does not rise to the level of an for the non-Movant is to file special exceptions. equitable reimbursable claim. The grounds plead in the motion for summary A final reason for a no evidence motion for judgment should likewise be in the pleadings. summary judgment against a reimbursement claim is that it may show that the claim is non-reimbursable by In order to grant a summary judgment, the Movant statute. A court may not recognize a marital estate's must prove to the Court that there is no genuine claim for reimbursement for: issue of material fact and that they are entitled to judgment as a matter of law. Park Place Hospital v. (1) the payment of child support, alimony, or spousal Estate of Milo, 909 S.W.2d 508, 510 (Tex. 1995). maintenance; (2) the living expenses of a spouse or child of a spouse; When considering a motion for summary judgment, a (3) contributions of property of a nominal value Court must keep the following standards in kind: (4) the payment of a liability of a nominal amount; or (5) a student loan owed by a spouse. (1) accept as true all the evidence favoring the non- movant. Id.

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(2) resolve every reasonable inference in favor of the d. A no evidence motion for summary judgment can be non-movant. Provident Life & Accident Insurance filed after there has been adequate time for Co. V. Knott, 128 S.W.3d 211, 215 (Tex. 2003). discovery (an affirmative statement to this effect (3) find that any questions regarding whether a genuine should be included in the motion). issue of material fact exists are resolved against the Movant. M.D. Anderson Hospital v. Willrich, 28 If the filing of a no-evidence summary judgment S.W.3d 22, 23 (Tex. 2000). motion occurs after the discovery deadline has passed, it (4) A trial court can not grant a default summary is presumed to be timely. If the discovery deadlines have judgment even if the non-movant fails to file a not passed then the court will look at many factors to response to a traditional summary judgment. The determine if the respondent had adequate time for summary judgment proof must still be legally discovery. Examples of the factors that the courts have sufficient. Medlock v. Commission for Lawyer considered are as follows: Discipline, 24 S.W.3d 865, 870 (Tex.App. - Texarkana 2000, no pet.) 1. The nature of the claim; 2. The evidence necessary to controvert the motion; Before moving to discuss no-evidence summary 3. The length of the time the case was on file; judgments, it is permissable to file a hybrid motion for 4. The length of time the no-evidence motion was on summary judgment combining a traditional and no- file; evidence motion in a single pleading. Binur v. Jacobo, 5. Whether the movant requested stricter guidelines for 135 S.W.3d 646, 650 (Tex. 2004). The motion must, discovery; however, give fair notice as to the basis under which the 6. The amount of discovery already conducted; and summary judgment is sought. Waite v. Woodard, Hall & 7. Whether the discovery deadlines were specific or Primm, P.C. 137 S.W.3d 277, 281 (Tex.App. - Houston vague. Community Initiatives, Inc. v. Chase [1st Dist.] 2004, no pet.) Bank,153 S.W.3d 270, 278-79 (Tex.App.- El Paso 2004, no pet.), McMahan v. Greenwood, 108 S.W. B. No-Evidence Motion 166a(i) 3d 467, 498-99 (Tex.App.- Houston [14th Dist.] The no-evidence motion is a motion for summary 2003, pet. denied) judgment that is often used primarily to “smoke out” the opposing party’s evidence. After adequate time for C. Timing Rules discovery, a party without presenting summary judgment Summary judgments are intended to quickly evidence may move for summary judgment on the facilitate the disposal of cases where an unmeritorious ground that there is no evidence of one or more essential claim or untenable defense is involved. City of Houston elements of a claim or defense on which an adverse party v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. would have the burden of proof at trial. The motion must 1979). In traditional motions for summary judgment, a state the elements as to which there is no evidence. A no- plaintiff may move at anytime after the defendant has evidence motion for summary judgment does not require answered the lawsuit. TRCP 166a(a). The defendant may supporting evidence. Moore v. K-mart Corp., 981 make the motion for summary judgment at any time S.W.2d 266, 269 (Tex.App.- San Antonio 1998, pet. during the proceeding. TRCP 166a(b). A no evidence denied). The Court must grant the motion unless the motion for summary judgment differs from a traditional respondent produces more than a scintilla of summary motion in that it is presumed timely only after the judgment evidence raising a genuine issue of material discovery period for the case has been conducted. TRCP fact. Forbes, Inc. v. Granada Bio Sciences, Inc. 124 166a(I). Please refer to Appendix 1 for a graphical S.W.3d 167, 172 (Tex. 2003). description of the timing for motions for summary Other considerations for the trial court are as judgment. follows: Both no-evidence and traditional motions for summary judgment should be filed, along with any a. The movant must allege that there is no evidence to supporting affidavits, twenty-one days before the time prove a specific element of non-movant’s claim or specified for a hearing. TRCP 166a(c). The adverse party defense. Howell v. Hilston Hotels Corp., 84 S.W.3d may file and serve opposing affidavits or other written 708, 711-712 (Tex.App.– Houston [1st Dist. 2002, responses no later than seven days prior to the hearing pet.denied). date. TRCP 166a(c). Timing rules may vary only upon b. Non-movant has the burden to raise a fact issue on leave of the court. TRCP 166a(c). Also, the parties may its claim or defense. Id. change the deadlines by agreement between themselves, c. Burden shifts to non-movant once the movant so long as it meets the requirements of TRCP 11. alleges that the non-movant has no evidence. Id.

23 Using Summary Judgment Procedure in Family Law Cases Chapter 5

1. Motion A. Identify Issues A motion for summary judgment, both traditional The first thing to consider in presenting a motion for and no-evidence, must state the grounds upon which it is summary judgment is to know what it is you are trying to made. TRCP 166a(c); McConnell v. Southside ISD, 858 prove. Are you trying to prove that property is your S.W.2d 337, 341 (Tex.1993). A motion for summary client’s separate property, or are you going to assume the judgment must be in writing and unverified. Clear Creek, burden and try and disprove that property is not your 589 S.W.2d 671, 677 (Tex. 1979); Hidalgo v. Surety opponent’s separate property? If you are defending S&L Ass’n, 462 S.W.2d 540, 545 (Tex. 1971). Summary against a motion for summary judgment, you must know judgment may not be granted, in both instances, on what is you are trying to prove. Are you trying to prove grounds that are not presented in the motion. Johnson v. or disprove that the property in question is separate Brewer & Pritchard, 73 S.W.3d 193, 204 (Tex. 2002). If property of one of the spouses? If you are defending a ground in support of a motion for summary judgment your opponent’s motion for summary judgment, you is not stated in the motion, it may not be supplied by a must show that there is at least one genuine issue of prayer for general relief. Golden Triangle Energy v. material fact as to at least one element of your opponent’s Wickes Lumber, 725 S.W.2d 439, 441 (Tex.App.- claim or defense. It is easy to be overwhelmed by a Beaumont 1987, no writ). When a summary judgment motion for summary judgment that contains multiple motion is reviewed on appeal, it may not be affirmed on exhibits and affidavits. Break down each grounds that are not presented to the trial court. Stiles v. characterization dispute and be prepared to show why Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993). you are right.

2. Response B. Identify Evidence The response must be filed by the nonmovant, After identifying issues upon which to file a motion including affidavits, at least seven days prior to the for summary judgment, your next step is to determine hearing. TRCP 166a(c). A response will still be how to prove it. This exercise is extremely important considered timely, even if it is mailed on the day it is due because it not only helps you prepare for a summary - it must however reach the clerk no more than ten days judgment, but also for trial as well. The same exhibits after the date upon which it is due. TRCP5, 21a. If a you used for your summary judgment motion are likely response is filed by the nonmovant to a motion for what you are going to trial with. Accordingly, even if summary judgment, the movant may want to reply to the your summary judgment motion is not granted, you response - there is no deadline for such a response. TRCP already have your evidence organized for this point at 166a(c); Callaghan Ranch, Ltd. v. Killam, 53 S.W.3d 1, trial. 4 (Tex.App.- San Antonio 2000, pet. denied). Sufficient The first step in identifying evidence is to have a notice for the date of the hearing or the date on the clear understanding yourself of what it is you are trying motion for summary judgment must be given to the to prove with your motion for summary judgment. If you nonmovant so that they may be aware of when a response are not clear, the court certainly won’t be. is due. Martin v. Martin, Martin & Richards, Inc., 989 As an example, your goal is to prove by summary S.W.2d 357, 359 (Tex. 1998). judgment that stock your client owns is her separate property. She received the stock when her grandmother D. The Hearing passed away. What specifically are you trying to prove? No oral testimony is given in a hearing for summary Answer: That there is no genuine issue of material fact judgment, rather only argument. TRCP 166a(c). that wife inherited stock from her grandmother and she is Effective presentations for summary judgments are entitled to judgment as a matter of law that the stock is discussed subsequently in the paper. her separate property. How do we go about proving this? Was the estate probated? Can we get a copy of the last VIII. CRAFTING YOUR AFFIRMATIVE will and testament? Is there a transfer document for the MOTION FOR SUMMARY JUDGMENT stock? Can we get an affidavit from the executor Your motion for summary judgment could be the regarding the bequest and proving up the relevant most important pre-trial pleading you file in your case. documents? It thus stands to reason that you should not haphazardly You must be able to support your claim that there is craft such a motion or try to “throw it together” shortly no genuine issue of material fact with evidence. If you before a hearing. To the contrary, the most important are seeking to prove that something in the estate is your thing that a lawyer can do is give herself time to client’s separate property, how do you do it? Well, start thoughtfully and methodically reflect upon and draft the with the marriage certificate. The date of marriage motion. establishes the first possible date that community property could have existed. Pull out deeds to cars,

24 Using Summary Judgment Procedure in Family Law Cases Chapter 5 earnest money contracts and/or deeds real estate and ideal affidavit will just set out facts; leave the legal bank statements. Things that existed prior to the date of conclusions to the brief. marriage or to which title vested before marriage are separate property. In the alternative, things that existed Timing of the Affidavits or to which title vested on or after the date of marriage A well-drafted affidavit is powerful summary are community property. With regard to monetary assets, judgment evidence. Rule 166a specifically allows a party hire an expert to assist you with tracing funds. Just to submit affidavits. An affidavit in support of a motion because the monetary asset started out as a separate asset for summary judgment must be filed and served at least does not necessarily mean that it stays that way. You twenty-one days before the time specified for hearing. must prove that the money which started a separate Tex. R. Civ. P. 166a(c). Except on leave of court, the property remained separate. adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other C. Drafting the Motion written response. Id. There are many ways to write a motion for summary judgment. Just remember the old writing rule that you Clear, Positive, Direct, Free from Contradictions, & learned in high school. You are telling a story. The Readily Controvertible judge hearing your motion may or may not be familiar A summary judgment may be based on with the circumstances of your case. Once he or she uncontroverted testimonial evidence of an interested finishes reading your motion, the judge should be able to witness, or of an expert witness as to subject matter tell you what the story is about and will hopefully rule in concerning which the trier of fact must be guided solely your favor. by the opinion testimony of experts, if the evidence is One of the best ways to make sure you have clear, positive and direct, otherwise credible and free accomplished this is to have someone who is not familiar from contradictions and inconsistencies, and could have with the case read the motion and then tell you the story. been readily controverted. Tex. R. Civ. P. 166a(c); see If that person has it right, you have done a good job. New Times Inc. v. Isaacks, 146 S.W.3d 144, 164 (Tex. When writing your story, do not be too lengthy. 2004). Without leaving out the relevant facts, get to the point. But the affidavit must not be conclusory. The Tell the court the type of summary judgment and the affidavit of an interested expert witness can support standard. Tell the court why a summary judgment is summary judgment if it meets the requirements of Rule appropriate in this case under these facts. Explain why 166a, even if that expert is a party to the suit. Anderson there is no genuine issue of material fact or why there is v. Snider, 808 S.W.2d 54, 55 (Tex. 1991). If an no evidence of one or more of your opposing counsel’s interested expert witness presents legally sufficient claim. In terms of structuring your motion, one of the evidence in support of a motion for summary judgment, most important concepts to grasp is early on in your the opposing party must produce other expert testimony motion tell the court what it is you want them to do. This to controvert the claims. Id. However, testimony may seem obvious, but often times a pleading can get comprised only of legal conclusions is insufficient to bogged down in minutia and leave the court wondering support summary judgment as a matter of law. Id. where are you going with this. After the initial “COMES Likewise, conclusory statements made by an expert NOW,” have a section entitled “RELIEF REQUESTED” witness are insufficient to support summary judgment. in which you will tell the Court concisely what it is you Id. want it to rule. Although there are countless ways to A conclusory statement of an expert witness is structure the remainder of the motion, some ideas are as insufficient to create a question of fact to defeat summary follows: Create a section to itemize for the Court the judgment. See Ryland Grp., Inc. v. Hood, 924 S.W.2d evidence you are relying on in support of your motion. 120, 122 (Tex. 1996) (per curiam) (“The relevant Next, tell your story. Give the court a narrative of the standard for an expert's affidavit opposing a motion for facts that support your motion. Lastly, apply the law to summary judgment is whether it presents some probative your facts. Create an argument and authorities section evidence of the facts at issue.... Conclusory affidavits are that clearly shows why you are entitled to judgment as a not enough to raise fact issues.”) (citations omitted). matter of law. Then, tie back to the start of the motion Moreover, no difference exists between the again telling the court what it is you want them to do. standards for evidence that would be admissible in a summary judgment proceeding and those applicable at a D. Drafting Your Affidavits regular trial. United Blood Servs. v. Longoria, 938 Drafting an affidavit in favor of a summary S.W.2d 29, 30 (Tex. 1997). If an expert is testifying by judgment is tricky. Most affidavits are objectionable affidavit, the proponent must prove up the expert’s because they leap to legal and factual conclusions. The

25 Using Summary Judgment Procedure in Family Law Cases Chapter 5 qualifications and the relevance and reliability of the Ryland Grp. Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. conclusion. Id. 1996)

Made on Personal Knowledge Documents May be Attached Supporting and opposing affidavits must be made on Sworn or certified copies of all papers or parts personal knowledge, set forth such facts as would be thereof referred to in an affidavit shall be attached thereto admissible in evidence, and show affirmatively that the or served therewith. Tex. R. Civ. P. 166a(f). affiant is competent to testify to the matters stated The documents, however, must be shown to be therein. Tex. R. Civ. P. 166a(f). To establish personal authentic and admissible. United Blood Servs. v. knowledge, the affidavit should show how the witness Longoria, 938 S.W.2d 29, 30 (Tex. 1997) (“no difference became familiar with the facts in the affidavit. Radio obtains between the standards for evidence that would be Station KSCS v. Jennings, 750 S.W.2d 760, 762 (Tex. admissible in a summary judgment proceeding and those 1988) (per curiam). applicable at a regular trial”). Affidavits made without personal knowledge are If the documents are not properly authenticated, they incompetent summary judgment evidence. Wembley are inadmissible. Petty v. Citibank, 218 S.W.3d 242, 244 Invest. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999) (Tex. App.–Eastland 2007, no pet.). (attorney’s affidavit was no evidence of purported service because the attorney’s statements showed a lack Supplements are Permissible of personal knowledge). Merely reciting that an affidavit The court may permit affidavits to be supplemented is made on personal knowledge is insufficient. or opposed by depositions or by further affidavits. Tex. Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. R. Civ. P. 166a(f). 1994). A person’s “understanding” or “belief” expressed in Defects in Affidavits May be Waived by Failure to an affidavit does not constitute competent summary Object judgment proof based on personal knowledge. Ryland Defects in the form of affidavits or attachments is Grp. Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996). As not grounds for reversal unless specifically pointed out the Texas Supreme Court explained in Ryland Group, by objection by an opposing party with opportunity, but statements in an affidavit must positively and refusal, to amend. Tex. R. Civ. P. 166a(f). unqualifiedly represent that the facts disclosed are true: Generally, failure to make a proper objection to an affidavit results in waiver of the ability to complain about Rule 166a(f) requires that “supporting and the defect. Grand Prairie I.S.D. v. Vaughan, 792 S.W.2d opposing affidavits shall be made on personal 944, 944 (Tex. 1990) (per curiam); Niu v. Revcor Molded knowledge, shall set forth such facts as would Prod. Co., 206 S.W.3d 723, 729 (Tex. App.–Fort Worth be admissible in evidence, and shall show 2006, no pet.) (Unauthenticated or unsworn documents, affirmatively that the affiant is competent to or documents not supported by any affidavit, are not testify to the matters stated therein.” Tex. R. entitled to consideration as summary judgment evidence). Civ. P. 166a(f); Humphreys v. Caldwell, 888 Courts have held, however, that objections to form S.W.2d 469, 470 (Tex. 1994) (affidavit lacking of an affidavit must be timely preserved while objections testimony that statements were unequivocally to substance may not need a timely objection to preserve based on personal knowledge was legally error. The Forth Worth Court of Appeals explained the insufficient). An interested witness' affidavit difference between objections to form vs. substance: “A which recites that the affiant “estimates,” or defect is substantive if the summary judgment proof is “believes” certain facts to be true will not incompetent; it is formal if the summary judgment proof support summary judgment. See Lightfoot v. is competent, but inadmissible.” Coleman v. Woolf, 129 Weissgarber, 763 S.W.2d 624, 628 (Tex. S.W.3d 744, 748 (Tex. App.–Fort Worth 2004, no pet.). App.-San Antonio 1989, writ denied) (holding To preserve error concerning complaints about defects in testimony based on affiant's best knowledge the form of summary judgment proof, the objecting party and belief does not meet Rule 166a(e)'s strict must obtain a ruling on the objections, preferably in requirements); Ardila v. Saavedra, 808 S.W.2d writing. ChoctawProp., L.L.C. v. Aledo I.S.D., 127 645, 647 (Tex. App.-Corpus Christi 1991, no S.W.3d 235, 241 (Tex. App.–Waco 2003, no pet.); Trusty writ). Such language does not positively and v. Strayhorn, 87 S.W.3d 756, 762 (Tex. App.–Texarkana unqualifiedly represent that the “facts” 2002, no pet.); Lection v. Dyll, 65 S.W.3d 696, 703 (Tex. disclosed are true. Brownlee, 665 S.W.2d at App.–Dallas 2001, no pet.). This ruling must be obtained 112. at or before the court hears the summary judgment

26 Using Summary Judgment Procedure in Family Law Cases Chapter 5 motion. McConnell v. Southside Indep. Sch. Dist., 858 judgment or may order a continuance to permit affidavits S.W.2d 337, 343 n.7 (Tex. 1993). to be obtained or depositions to be taken or discovery to The reason court require an objection to a defect as be had or may make such other order as is just. Tex. R. to form is because it is curable. Complaints that an Civ. P. 166a(g). affidavit, for example, contains hearsay or is not based When a party contends that it has not had an on personal knowledge raise defects of form. adequate opportunity for discovery before a summary Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, judgment hearing, it must file either an affidavit 234 (Tex. 1962); Hou-Tex, Inc. v. Landmark Graphics, explaining the need for further discovery or a verified 26 S.W.3d 103, 112 n. 9 (Tex. App.–Houston [14th motion for continuance. Tenneco Inc.v. Enterp. Prod. Dist.] 2000, no pet.). Defects in the form of affidavits Co., 925 S.W.2d 640, 647 (Tex. 1996); Martinez v. may be grounds for reversal if specifically pointed out by Leeds, 218 S.W.3d 845, 849 n.3 (Tex. App.–El Paso objection by an opposing party with opportunity, but 2007, no pet.). refusal, to amend. EOG Resources, Inc. v. Wall, 160 But, it is risky to rely on such a request. In National S.W.3d 130, 134 (Tex. App.–Tyler 2005, no pet.). The Union Fire Insurance Co. v. CBI Industries, Inc., 907 trial court should allow supplementation to cure defects S.W.2d 517 (Tex.1995) (per curiam), the Texas Supreme of form. Id. Court found that because the facts necessary to support Objections to defects in the form of an affidavit the summary judgment were sufficiently developed when include: (1) lack of personal knowledge; (2) hearsay; (3) the motion was filed, no further discovery was needed. statement of an interested witness that is not clear, Id. at 521-22. positive, direct, or free from contradiction; and (4) competence. See Stewart v. Sanmina Texas L.P., 156 Acknowledgment S.W.3d 198, 207 (Tex. App.–Dallas 2005, no pet.) (lack An affidavit should have an acknowledgment, of personal knowledge and hearsay); ChoctawProp., typically by a notary, that meets the requirements of L.L.C. v. Aledo I.S.D., 127 S.W.3d 235, 241 (Tex. Chapter 121 of the Civil Practice & Remedies Code. The App.–Waco 2003, no pet.) (interested witness, hearsay, form of an ordinary certificate of acknowledgment must and lack of personal knowledge); Rizkallah v. Conner, be substantially as follows: 952 S.W.2d 580, 585-86 (Tex. App.–Houston [1st Dist.] 1997, no pet.) (lack of personal knowledge and “The State of ______, competence). “County of ______, Defects in the substance of an affidavit, however, are not waived by the failure to obtain a ruling from the “Before me ______(here insert the trial court on the objection, and they may be raised for name and character of the officer) on this day the first time on appeal. Brown v. Brown 145 S.W.3d personally appeared ______, 745, 751 (Tex. App.–Dallas 2004, pet. denied); known to me (or proved to me on the oath of McMahan v. Greenwood, 108 S.W.3d 467, 498 (Tex. ______or through App.–Houston [14th Dist.] 2003, pet. denied). An ______(description of identity affidavit that is conclusory, for example, is substantively card or other document)) to be the person defective. Choctaw Props., L.L.C. v. Aledo I.S.D., 127 whose name is subscribed to the foregoing S.W.3d 235, 241 (Tex. App.-Waco 2003, no pet.); instrument and acknowledged to me that he McMahan, 108 S.W.3d at 498. executed the same for the purposes and For example, objections to defects in the substance consideration therein expressed. of an affidavit include: (1) conclusory statements; and (2) lack of jurat. Stewart v. Sanmina Texas L.P., 156 S.W.3d (Seal) “Given under my hand and seal of office 198, 207 (Tex. App.–Dallas 2005, no pet.) (conclusory); this ______day of ______, A.D., Brown v. Brown 145 S.W.3d 745, 751 (Tex. App.–Dallas ______.” 2004, pet. denied) (conclusory); Choctaw Props., L.L.C. v. Aledo I.S.D., 127 S.W.3d 235, 241-42 (Tex. Tex. Civ. Prac. & Rem. Code 121.007. App.-Waco 2003, no pet.) (lack of jurat and conclusory). E. Bulletproofing Your Documentary Evidence Court May Order Continuance for Evidence Opposing First things first. Make sure that you have given Summary Judgment proper notice of the hearing on the motion for summary Should it appear from the affidavits of a party judgment. When you are preparing evidence to go along opposing the motion that he cannot for reasons stated with your motion for summary judgment, make sure that present by affidavit facts essential to justify his it will withstand an evidentiary challenge from your opposition, the court may refuse the application for opposing counsel. Your might be able to ask your

27 Using Summary Judgment Procedure in Family Law Cases Chapter 5 opposing counsel to stipulate to the admissibility of some errors in the offered proof of the party seeking summary of the items. Always try this method first. This is judgment. especially important in the case of bank records. Bank A response, of course, also primarily involves records have so much information in them that in this day showing a court that genuine issues of material fact exist of technological piracy, if these kinds of records fell into on the particular claim or defense. In the case of a no the wrong hands, your client could suffer a great evidence motion for summary judgment, the response financial loss. If you are not successful in this endeavor involves generating some evidence to support each then it is time to brush up on the Texas Rules of element that has been challenged. Evidence. They apply when you file a motion for The response involves a three-pronged attack on the summary judgment. motion for summary judgment and its attendant proof: All business records should include a business records affidavit. If you have an expert that you are 1. Challenge the legal position. using, include an affidavit from him or her supporting the 2. Attack the other party’s proof. position that the expert took. Be certain to include your 3. Attack the underlying pleadings. expert’s qualifications in the affidavit to help fend off a Daubert/Robinson challenge. If you want to use all or If this three-pronged attack is executed effectively, the part of a deposition taken in the case, note that the trial court should have serious doubts about granting the deposition must be signed by the deponent or have the summary judgment. return from the court reporter. Transcripts from previous court proceedings can also be used. For governmental A. Challenging Their Legal Position documents, submit certified or official copies of each and To defeat a motion for summary judgment, the non- every document. And remember, any pleading that your movant must show that there is a genuine issue of opposing counsel has propounded in response to material fact that must be decided by the finder of fact. discovery is admissible (i.e. answers to interrogatories, Tex. R. Civ. Pro. 166(a) (2007). The first step towards responses to request for admissions, responses to request prevailing in summary judgment is to match their for disclosure). But note that while documents produced pleadings up against the motion for summary judgment. by the other side are authenticated, they are not If they have sought relief that is not properly pleaded, automatically admissible See if anything your opposing you must file special exceptions or you waive your counsel submitted to you can be used against them in complaint, and the issue will be tried as if it were your motion for summary judgment. properly pleaded. Tex. R. Civ. Pro. Rule 67 (2007). The exception preserves the issue on appeal if the grounds F. Check Your Pleadings presented are unclear or ambiguous. McConnell v. When filing a motion for traditional summary Southside ISD, 858 S.W.2d 337, 342 (Tex. 1993) judgment, one of the most basic, yet important, steps is Defects in form can be waived, defects in substance are to check your pleadings against your motion. In order to not. Rizkallah v. Conner, 952 S.W.2d 580, 585 (Tex. avoid special exceptions from the other side or having App. – Houston [1st Dist.] 1997, no writ). One tactic that your motion denied simply because it is not proper, you the McConnell court does recommend, is that the other must make sure that what you have pleaded and the relief side’s being unclear or ambiguous in their motion for you seek match up with the issues you raise in your summary judgment does call for special exceptions; motion for summary judgment. Tex. R. Civ. P. Rule 90, however, if the problems with the motion are that it does 91 (2007). If the other side does challenge the motion not state and grounds or states some and not others, with special exceptions, you can amend your pleadings special exceptions should not be filed because that would to reflect the relief sought through summary judgment. just give the other side a chance to fix the problem. Tex. R. Civ. Pro. Rule 64. If, for some reason, the other Instead, the responding party “should use these defects as party does not file for special exceptions forcing you to a basis to defeat the summary judgment motion on the amend your pleading, then the issue will be tried by their merits.” 858 S.W.2d 337 at 342. implied consent as if the issue had been properly pleaded. Tex. R. Civ. Pro. Rule 67 (2007); Roark v. Stalworth Oil B. Attacking Their Evidence & Gas, Inc., 813 S.W.2d 492, 495 (Tex. 1991). One must object to formal defects in affidavits or other summary judgment evidence. Tex.R. Civ. P. IX. RESPONDING TO THE AFFIRMATIVE 166a(f), Tex. R. Civ. P. Upon objection, the erring party MOTION FOR SUMMARY JUDGMENT should be provided an opportunity to amend, Responding to an affirmative motion to summary accompanied by a refusal to amend, before the objection judgment is ironically similar to filing a contempt is preserved for appeal. Dailey v. Albertson’s, 83 S.W.3d response. It requires technical precision in pointing out 222, 225 (Tex.App.–El Paso 2002). Objections to

28 Using Summary Judgment Procedure in Family Law Cases Chapter 5 affidavits include objections to the competency of the witness, or an expert witness. Rule 166a(c), Tex. R. Civ. affiant; objections to legal and/or factual conclusions; Proc. The fact contained in the affidavit must be facts hearsay; objections to lack of personal knowledge; that are admissible evidence. The affidavit must be objections to a defective jurat; failure to attach exhibits; sworn to, by the affiant, before “an officer authorized to failure to lay the proper evidentiary predicate; failure to administer oaths,” usually a notary public. Rule 166a(f), offer the best evidence; and, any Daubert challenges to Tex. R. Civ. P. The affidavit(s) must be attached to the experts’ affidavits. motion for summary judgment. MBank Brenham v. See Woods Exploration & Producing Co. v. Arkla Barrera, 721 S.W.2d 840, 842 (Tex. 1986); Rule 166a(c), Equip. Co., 528 S.W.2d 568, 570-71 (Tex.1975)(affiant); Tex. R. Civ. P. The trial court is not required to “search Rizkallah v. Conner, 952 S.W.2d 580, 587 the record for evidence” to support summary judgment. (Tex.App.–Houston [1st Dist] 1997, no writ)(conclusory King v. Wells Fargo Bank, N.A., 205 S.W.3d 731, 735 statements); Southland Corp. V. Lewis, 940 S.W.2d 83, (Tex.App.–Dallas 2006, no pet.). 85 (Tex. 1997)(hearsay); Grand Prairie ISD v. Vaughan, Merely reciting that the information contained in the 792 S.W.2d 944, 945 (Tex. 1990)(lack of personal affidavit is within the personal knowledge of the affiant knowledge); Laman v. Big Spring State Hosp., 970 is not sufficient to overcome a hearsay objection. S.W.2d 670, 672 (Tex.App.–Eastland 1998, pet. However, if the respondent to a motion for summary denied)(defective jurat); Mathis v. Bocell, 982 S.W.2d judgment fails to object to hearsay within an affidavit, 52, 59-62 (Tex. App.–Houston [1st Dist.] 1998, no that hearsay evidence will “not be denied probative pet.)(failure to attach exhibits); Mercer v. Daoran Corp., value” in support a summary judgment. Einhorn v. 676 S.W.2d 580, 584 (Tex. 1984)(failure to offer best LaChance, 823 S.W.2d 405, 410 (Tex.App.–Houston [1st evidence); Daubert v. Merrill Dow Pharmaceuticals, Dist.] 1992, writ dism’d w.o.j.). The facts contained in Inc., 509 U.S. 579 (1993); E.I. duPont de Nemours v. an affidavit must be more than legal conclusions which Robinson, 923 S.W.2d 549, 566-67 (Tex. render an affidavit incompetent to support summary 1995)(challenging the methodology of the expert). judgment. See Anderson v. Snider, 808 S.W.2d 54, 55 After making one’s objections, one should secure a (Tex. 1991). written ruling from the trial court even though there is a The affidavit used as summary judgment evidence split among the courts of appeal as to the necessity of must contain a jurat as opposed to an acknowledgment. preserving a ruling. An instrument containing an acknowledgment is not an The Courts of Appeals in Corpus Christi, Dallas, affidavit. Perkins v. Crittenden, 462 S.W.2d 565, 568 Fort Worth, Waco, and the Fourteenth Court of Appeals (Tex. 1970). An affidavit is “a statement in writing of a in Houston contend that when a trial court grants fact or facts signed by the party making it, and Sworn to summary judgment, the trial court implicitly overrules before some officer authorized to Administer oaths, and the objections of the opposing party. See, Clement v. officially certified to by such officer under his seal of City of Plano, 26 S.W.3d 544, 550 (Tex.App.–Dallas office.” Perkins, 462 S.W.2d at 567. An 2000, no pet), Dagley v. Haag Eng’g, 18 S.W.3d 787, acknowledgment is a “formal declaration or admission 795 (Tex. App–Houston [14th Dist.] 2000, no pet); before an authorized public officer by a person who has Columbia Rio Grande Reg’l. Hosp. v. Stover, 17 S.W.3d executed an instrument that such instrument is his act and 387, 396-96 (Tex.App.–Corpus Christi 2000, no pet.); deed.” Wilde v. Buchanan, 303 S.W.2d 518, 519 (Tex. Frazier v. You, 987 S.W.2d 607, 610 (Tex.App.–Fort Civ. App.–Austin 1957) ; a jurat, on the other hand, is “a Worth 1999, pet. denied). simple statement that an instrument is subscribed and sworn to or affirmed before a proper officer without the 1. Affidavits further statement that it is the act or deed of the person Among the many types of evidence one can use to making it.” Wilde, 303 S.W.2d at 519. establish one’s basis for summary judgment is the An affiant must be competent to make an affidavit. affidavit.2 The affidavit may be the most cost-effective Rule 166a(f), Tex. R. Civ. P. Competency is set forth in and readily obtainable form of summary judgment Rule 601 of the Texas Rules of Evidence. One who is evidence. The person making the affidavit must be non compos mentis cannot swear to affidavit to be used competent to make the affidavit and have personal as evidence in motion for summary judgment or a knowledge of the facts contained in the affidavit. The response to that motion. Children are also no competent person making the affidavit can be a party, an interested to swear to an affidavit unless, after examination, a Court determines the child to be competent. Rule 601, Tex. R. Evid. 2 Proper summary judgment proof consists of admissions, Affidavits from a party, interested witnesses, or from affidavits, stipulations of parties, authenticated or certified experts may support summary judgment if the affidavit is public records, deposition transcripts, and interrogatory uncontroverted and is “clear, positive and direct, answers. Rule 166a(c)(ii), Tex. R. Civ. P.

29 Using Summary Judgment Procedure in Family Law Cases Chapter 5 otherwise credible and free from contradictions and discovery responses to support summary judgment must inconsistencies.” Rule 166a(c), Tex. R. Civ. P. A lay authenticate those responses. Blanche v. First person cannot controvert the affidavit of an expert. See Nationwide Mortg. Corp., 74 S.W.3d 444, 451-52 (Tex. Anderson v. Snider, 808 S.W.2d 54, 55 (Tex, 1991). App.–Dallas 2002). Authentication is not required when However, if an affidavit consists only of legal one relies upon the discovery responses of the opposing conclusions, then that affidavit is not sufficient to support party. Id. While deposition excerpts do not require summary judgment as a matter of law. Mercer v. Daoran authentication to be valid summary judgment evidence, Corp., 676 S.W.2d 580, 583 (Tex.1984); Hidalgo v. excerpts should include a copy of the verification page Surety Savings & Loan Ass'n, 487 S.W.2d 702, 703 signed by the court reporter to prevent any objections. (Tex.1972) (per curiam). Affidavits containing McConathy v. McConathy, 869 S.W.2d 341, 342 (Tex. conclusory statements of expert witnesses are also 1994); see Rule 166a(d) Tex. R. Civ.P. While the rule insufficient to support summary judgment. Vinklarek v. of procedure do not require one to include the Cane, 691 S.W.2d 108, 111 (Tex.App.-Austin 1985, writ verification page, it serves as an aid to the court. ref'd n.r.e.). McConathy, 869 S.W.2d at 342. Documents must be properly attached to the motion or to the response. 2. Documentary Evidence Discovery documents or other materials not filed Documents providing evidence for summary with the clerk of the court may be used as evidence in a judgment may consist of “deposition transcripts, summary judgment motion or response if copies of the interrogatory answers and other discovery responses materials are filed and served on all parties together with referenced or set forth in the motion or response, in a statement of intent to use the materials as summary addition to “pleadings, admissions, affidavits, judgment evidence. Rule 166a(d) Tex. R. Civ. P. The stipulations of the parties,3 and authenticated or certified movant must give the respondent twenty-one days notice public records.4” As a general rule, pleadings–even of the intent to use the materials and the respondent must sworn pleadings–are not summary judgment evidence. give the movant at least seven days notice of intent to Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d rely upon unfiled documents to the movant. Id. 656, 660 (Tex.1995). However, when the an opposing party’s pleadings contain statements of fact or X. CRAFTING YOUR NO-EVIDENCE MOTION admissions that directly contradict that party’s theory of FOR SUMMARY JUDGMENT recovery, then the pleadings may be used as summary Just as a traditional motion for summary judgment judgment evidence for the other party. See Lyons v. can remove certain claims from your case, a no-evidence Lindsey Morden Claims Mgmt., 985 S.W.2d 86, 92 motion for summary judgment can be used to show the (Tex.App.–El Paso 1998, no pet.). Court that your opponent really has no grounds with Discovery documents filed with the court may be regard to a claim or defense. Furthermore, a no-evidence relied upon as summary judgment evidence provided that motion for summary judgment is one of the most under the motion or the response refers to the discovery. Rule utilized tools we have to root out and eliminate spurious 166a(c) Tex. R. Civ. P.; see also Steinkamp v. Caremark, and unmeritorious claims. 3 S.W.3d 191, 194 (Tex. App.–El Paso 1999, pet. Texas Rule of Civil Procedure 166a(i) states: denied). Additionally, one should ask the court to take judicial notice of the filed documents upon which the No-evidence motion. after adequate time for party relies upon as summary judgment evidence. Saenz discovery, a party without presenting summary v. Southern Union Gas, 999 S.W.2d 490, 494 (Tex. judgment evidence may move for summary App.–El Paso 1999). A party who relies upon his own judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party

3 would have the burden of proof at trial. The Stipulations should be in writing, signed by both parties, and motion must state the elements as to which filed with the court in accordance with Rule 11, Tex. R. Civ. P. there is no evidence. The court must grant the 4Rule 902 of the Texas Rules of Evidence sets forth documents motion unless the respondent produces which are self-authenticated: domestic public documents under summary judgment evidence raising a genuine seal; domestic public documents not under seal; foreign public issue of material fact. documents; certified copies of public records; official publications; newspapers and periodicals; trade inscriptions The first thing you should do is read the pleadings of and the like; acknowledged documents; commercial paper and your opponent very carefully. You should be familiar related documents; business records accompanied by [business with each element of each claim or defense that your records] affidavit; and, presumptions under statutes or other opponent is raising in his Petition or his answer. Before rules.

30 Using Summary Judgment Procedure in Family Law Cases Chapter 5 you can file a no-evidence motion for summary SMITH during his marriage to Respondent NANCY judgment, there must have been an adequate time to SMITH by devise. conduct discovery. Tex. R. Civ. P. 166a(i). By E. Petitioner JOE SMITH has produced no evidence familiarizing yourself with the elements of your that the 2007 Mercedes Benz was acquired by JOE opponent’s claims, you can craft your discovery to SMITH during his marriage to Respondent NANCY develop evidence regarding each claim or defense made SMITH by descent. by your opponent. Thus, when you present your no- F. Petitioner JOE SMITH has produced no evidence evidence motion for summary judgment, you can show that the 2007 Mercedes Benz was acquired for the the court that you intentionally gave your opponent an recovery of personal injuries. opportunity to produce evidence in support of his claim G. Petitioner JOE SMITH has produced no clear and prior to the no-evidence motion for summary judgment convincing evidence that the 2007 Mercedes Benz being filed. is the separate property of JOE SMITH. Once discovery is complete, and assuming that there is no evidence to support a claim or defense of your Even if you know your opponent may raise some opponent, prepare your no-evidence motion for summary evidence in response to your no-evidence motion for judgment. Just as with a traditional motion for summary summary judgment, file it nonetheless. If nothing else, judgment, you must know each and every element of you will force your opponent to produce his or her your opponent’s claims or defenses. This is critically evidence, and the no-evidence motion for summary important because Tex. R. Civ. P. 166a(i) requires you to judgment has then become an important discovery state each element of each claim or defense for which device. Your worst case scenario is that you obtain there is no evidence. information necessary to advise your client. The best As a practical application, assume that your case scenario is that your opponent cannot produce the opponent claims in his petition for divorce that he has necessary evidence to support his claim, and, therefore, separate property. You send out your discovery asking that unmeritorious claim is removed from the purview of him to identify his separate property in interrogatories the fact finder. and to produce documents to substantiate that separate property claim. After your opponent provides the XI. RESPONDING TO THE NO-EVIDENCE response to written discovery showing that there is no MOTION evidence to support his pro-forma, form-book separate You might be on the receiving end of a no-evidence property claim, file the no-evidence motion for summary motion for summary judgment. If you are served with judgment. one of these, do not panic. Just as with every other Be thorough - do not simply say that there is no motion, there are guidelines. First, have you done or had evidence to support the separate property claim. time to do enough discovery to effectively respond? Remember what the elements of separate property are: When a party contends that it has not had an adequate (1) the property was owned or claimed by the spouse time for discovery before a summary judgment hearing, before marriage; (2) the property was acquired by the they can seek it by filing a an affidavit explaining the spouse during marriage by gift, devise, or descent; or (3) need for further discovery. Tenneco, Inc. v. Enterprise the recovery for personal injuries sustained by the spouse Prods., 925 S.W.2d 640, 647 (Tex.1 996). during marriage, except any recovery for loss of earning capacity during marriage. As such, your no-evidence A. Need Additional Time motion for summary judgment would state: The courts have created a non-exhaustive list of factors to consider when a request to continue a motion A. Petitioner JOE SMITH has produced no evidence for summary judgment is made for purposes of seeking that the 2007 Mercedes Benz was owned by JOE additional discovery. These factors include the length of SMITH before his marriage to Respondent NANCY time the case has been on file, the materiality and purpose SMITH. of the discovery sought and whether the party seeking the B. Petitioner JOE SMITH has produced no evidence continuance has exercised due diligence to obtain the that the 2007 Mercedes Benz was claimed by JOE discovery sought. Comm. Initiatives, inc. v. Chase Bank, SMITH before his marriage to Respondent NANCY 153 S.W.3d 270, 278 (Tex.App.–El Paso 2004, no pet.). SMITH. A ruling on a motion for continuance of a summary C. Petitioner JOE SMITH has produced no evidence judgment is reviewed by an abuse of discretion standard. that the 2007 Mercedes Benz was acquired by JOE See Esquivel v. Mappelli Meat Packing Co., 932 S.W.2d SMITH during his marriage to Respondent NANCY 612, 616 (Texas. App.- San Antonio, 1996, writ denied.) SMITH by gift. D. Petitioner JOE SMITH has produced no evidence Rulings on a motion for continuance are fact specific that the 2007 Mercedes Benz was acquired by JOE and must be considered on a case by case basis. In City of

31 Using Summary Judgment Procedure in Family Law Cases Chapter 5

San Antonio, En Seguidos’ motion was initially set for August 24, 2005. The city filed a motion for continuance on August 8, 2005 seeking at least another ninety days for discovery as the lawsuit had only been on file for two (2) months. The city also referenced the ten listed witnesses in En Seguido’s responses to request for disclosure as people with relevant knowledge of relevant facts to be deposed. The motion for summary judgment was reset to November 7, 2005. Prior to that hearing, the city re- urged its motion for continuance. The trial court denied the city’s request. The appellate court upheld the denial of the city’s motion finding that November 7, 2005 was an agreed reset date for the motion for summary judgement. The appellate court also found that eight of the ten people form which the city was seeking information were city or governmental employees. The city had deposed the other two of the ten witnesses who were associated with En Seguido. The lesson to learn is because the results of a summary judgment motion can be so devastating, be diligent in pursuing your discovery.

B. Don’t Need to Marshall Under the Texas Rules of Civil Procedure, a party may move for no-evidence summary judgment if " there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence." Tex. R. Civ. P. 166(a)(i). Thus, rule 166(a)(i) permits a party to file a no-evidence motion for summary judgment as to one or multiple elements. The rule does not require the respondent to the motion to marshall all of their evidence, but only to bring forth more than a scintilla of evidence that raises a fact issue on the challenged elements. See Tex. R. Civ. P. 166(a). See Macias v. Fiesta Mart, Inc., 988 S.W.2d 316, 316-17 (Tex.App.-Houston [1st Dist.] 1999, no pet.). So you don’t need to throw the kitchen sink at the other side, but you do need to ascertain that you have addressed each element of your claims. The best practice is to have too much evidence rather than too little.

XII. CONCLUSION Summary judgment practice should be encouraged by the bench and bar to eliminate un-meritorious claims and defenses, and to streamline line litigation and promote settlement. Overlooking such a valuable tool as summary judgment in our practice is a significant mistake. This paper offers a roadmap for integrating summary judgments into your practice.

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