DeSpain v. DeSpain

672 S.W.3d 486

Robert DESPAIN, Appellant

v.Laura Ann DESPAIN, Appellee

No. 04-22-00115-CV

Court of Appeals of Texas, San Antonio.

Delivered and Filed: April 27, 2023

APPELLANT ATTORNEY: Richard R. Orsinger, Richard Porter Corrigan II, Orsinger, Nelson, Downing & Anderson LLP, 310 S. St. Mary's, Ste. 2600, San Antonio, TX 78205, Kimberly Frost, Kim Frost Attorney at Law PLLC, 807 Craig St., Corpus Christi, TX 78404-2021

APPELLEE ATTORNEY: Kimberly S. Keller, Keller Stolarcyzk, PLLC, 234 W. Bandera Rd., #120, Boerne, TX 78006, Robert J. Ulman, Attorney at Law, 334 W. Mistletoe Ave., San Antonio, TX 78212

Sitting: Rebeca C. Martinez, Chief Justice, Irene Rios, Justice, Liza A. Rodriguez, Justice

Opinion by: Liza A. Rodriguez, Justice

This appeal arises from a final decree of divorce after a bench trial. On appeal, Robert DeSpain ("Bob") argues the trial court erred in divesting him of a one-half interest in his separate real property by awarding a one-half undivided interest in the property to his former wife, Laura Ann DeSpain ("Laura"). We affirm.

BACKGROUND

On May 25, 1996, Bob and Laura married and subsequently had two children, who are now adults. Because Bob's widowed mother, Robbie DeSpain ("Robbie") suffered from medical issues that required extended hospitalizations, in 2010 Bob and Laura invited Robbie to live with them and their children in their mobile home. In 2011, Laura obtained a building, which she and Bob placed on their property and converted into a small apartment for Robbie to live. Throughout the time Robbie lived with Bob and Laura, Laura helped care for Robbie by taking her to doctor appointments, providing companionship, preparing meals, and providing other household assistance.

In 2013, Robbie inherited $500,000 in life insurance proceeds when her mother passed away. Robbie opened a bank account at Security Service Federal Credit Union and deposited the funds. Bob was a signatory on the account, and both Bob and Robbie wrote checks from the account to pay expenses. Bob testified he was a "co-owner" of the account. However, there was other evidence admitted at trial from which a reasonable fact finder could conclude that Robbie added Bob's name to the account for her own convenience and for the protection of the funds. Bob admitted at trial that Robbie had added his name to another bank account for just that purpose—her convenience. Nevertheless, he testified that this Security Service account at issue was different. It is undisputed that while Robbie deposited additional funds into the account that she received from oil and gas royalties, Bob never deposited any of his own funds into the account. Robbie's funds were the sole source of deposits to the account.

In 2013 and 2014, Robbie, Bob, and Laura had discussions about Bob and Laura purchasing 19.72 acres of land adjacent to their property and building a family residence upon the 19.72 acres. It is undisputed that Robbie provided the funds from her Security Service bank account for the purchase of the 19.72 acres and the construction of the family home. What was disputed at trial was whether Robbie intended to make a gift solely to Bob, or jointly to Bob and Laura.

On February 18, 2014, both Bob and Laura entered into a farm and ranch contract with Claude R. Chew to purchase the 19.72 acres. On May 13, 2014, after closing, Claude R. Chew executed a deed conveying the 19.72 acres to both Bob and Laura. A year after the family residence was built with Robbie providing the funds from her Security Service bank account. Bob and Laura then used $95,000 of their community funds to build an in-ground pool and outdoor kitchen as permanent improvements to the property.

On or about July 7, 2020, Laura learned that Bob was having an extramarital affair. On July 17, 2020, Bob filed for divorce. After a bench trial, the trial court found that during the marriage, Bob had inherited $1.67 million in separate real property. However, the trial court found that the funds used to purchase the 19.72 acres and build the family home were a gift to both Bob and Laura. Alternatively, the trial court found that "if Robbie did not intend to give the funds to purchase the 19.72 acres and construct the home thereon to both Bob and Laura, Bob nevertheless gave one-half of the funds and/or 19.72 acres and funds used to construct the home thereon to Laura ...." Accordingly, the trial court found that Bob and Laura's interest in the 19.72 acres and family home constituted their separate property, respectively, and was not part of the community estate.

CHARACTERIZATION OF PROPERTY

Bob argues the trial court erred by divesting him of a one-half interest in his separate property in the 19.72 acres and ordering that the proceeds from the sale of the 19.72 acres be divided fifty-fifty between him and Laura. According to Bob, the evidence conclusively established that the 19.72 acres was purchased using insurance proceeds that Robbie gifted to him. He argues the evidence is legally and factually insufficient to support the trial court's finding that the funds used to purchase the 19.72 acres were gifted to both him and Laura, and not to him alone.

In a bench trial, the trial court acts as the fact finder in assessing the credibility of the witnesses, weighing the evidence, and arriving at findings of fact. See In re J.M.T. , 519 S.W.3d 258, 267 (Tex. App.—Houston [1st Dist.] 2017, pet. denied). Accordingly, the trial court is the sole judge of the weight and credibility of the witnesses. See In re H.R.M. , 209 S.W.3d 105, 108 (Tex. 2006). As an appellate court, we defer to the trial court's fact findings and cannot substitute our own judgment for that of the fact finder. In re J.M.T. , 519 S.W.3d at 267.

A. Trial Court's Fact Findings

In support of its conclusion that the 19.72 acres was the separate property of both Bob and Laura, the trial court made the following findings of fact:

Finding of Fact No. 4: In 2010, Bob and Laura invited Bob's widowed mother, Robbie, who suffered from medical issues requiring extended hospitalization, to live with them and their children in their mobile home.

Finding of Fact No. 5: In 2011, Laura obtained a building that the couple converted into a small apartment for Robbie to live in. Throughout the time Robbie lived with them, Laura helped care for Robbie by taking her to doctor appointments, providing companionship, preparing her meals, and other general household assistance.

Finding of Fact No. 6: In 2013, Robbie's mother died, leaving Robbie to inherit approximately $500,000 in life insurance proceeds. At this time, Robbie was estranged from her daughters and wanted to protect the inherited funds from them.

Finding of Fact No. 7: Robbie opened an account at Security Service Federal Credit Union to deposit the inherited funds. Upon the recommendation of Robbie's friend, Barbara Peeler, Robbie added Bob's name to her Security Service Account No. XXXX6075 ("Security Service Account") for convenience and protection of the funds. Neither Bob nor Laura deposited their own personal funds into the Security Service Account. Robbie deposited additional funds into the account that she received from oil and gas royalties and wrote checks from the account. Robbie's funds were the sole source of deposits to the account, and Robbie retained dominion and control over the funds in the account. At no time did Robbie absolutely and irrevocably release control of the funds in the account.

Finding of Fact No. 8: At no time did Robbie give the funds in the Security Service Account solely to Bob. Thus, Bob did not own a separate property interest in the funds while they were in the Security Service Account.

Finding of Fact No. 9: During 2013 and 2014, Robbie, Bob, and Laura had discussions about Bob and Laura purchasing 19.72 acres of land adjacent to their 50 acres and building a new home for the entire family to reside. Robbie, Bob, and Laura had multiple conversations where Robbie expressed her desire and intent to help both Bob and Laura by giving to them her funds to purchase the land and build a home for their family.

Finding of Fact No. 10: In 2014, Robbie authorized Bob and Laura to use funds from her Security Service Account to purchase the 19.72 acres. Robbie's intent was to give the funds from her account to Bob and Laura to use to purchase the acreage and build a home for both Bob and Laura.

Finding of Fact No. 11: On February 18, 2014, Bob and Laura entered into a contract (Texas Real Estate Commission Farm and Ranch Contract – TREC) with Claude R. Chew to purchase the 19.72 acres of land generally described as 995 CR 339, Jourdanton, Texas.

Finding of Fact No. 12: On May 13, 2014, Claude R. Chew executed a General Warranty Deed conveying the 19.72 acres (more particularly described in that deed) to Bob and Laura.

Finding of Fact No. 13: Robbie gave Bob and Laura the funds to purchase the 19.72 acres from her Security Service Account.

Finding of Fact No. 14: Alternatively, Robbie gave the funds to purchase the 19.72 acres to Bob solely and Bob gifted one-half of the funds and/or the 19.72 acres to Laura.

Finding of Fact No. 15: The 19.72 acres is properly characterized as follows: 50% undivided, separate property interest owned by Bob and 50% undivided, separate property interest owned by Laura.

Finding of Fact No. 16: After Bob and Laura purchased the 19.72 acres using funds gifted to them by Robbie, Robbie then gave Bob and Laura additional funds from her Security Service Account to construct a house on the property. The funds from Robbie's Security Service Account used to construct the house upon the property were given by Robbie to both Bob and Laura. The funds used to construct the house upon the property were not Bob's separate property.

Finding of Fact No. 17: Alternatively, if Robbie gave the funds to construct the house solely to Bob, Bob gifted one-half of the funds to Laura.

Finding of Fact No. 18: Approximately one year after the house was constructed,

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