Cesario Gonzalez, Sr. v. Esther Gonzalez--Appeal from 229th Judicial District Court of Jim Hogg County

No. 04-00-00271-CV

Cesario GONZALEZ, Sr.,
Appellant
v.
Esther GONZALEZ,
Appellee
From the 229th District Court, Jim Hogg County, Texas
Trial Court No. CC-99-156
Honorable Alex W. Gabert, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Sitting: Tom Rickhoff, Justice

Alma L. L pez, Justice

Sarah B. Duncan, Justice

Delivered and Filed: January 10, 2001

AFFIRMED

In six points of error, Appellant Cesario Gonzalez, Sr. challenges a divorce decree awarding Esther Gonzalez an equitable interest in a tract of land the parties resided on during marriage. We affirm the judgment of the trial court.

FACTUAL BACKGROUND

The only contested issue in the divorce proceeding below was the disposition of a one acre tract upon which the parties had placed a mobile home and resided. The land was conveyed to Ruben G. Gonzalez and wife, Yolanda R. Gonzalez (Cesario's father and mother) by deed dated August 5, 1986. The deed was subject to a vendor's lien retained by Robert Colwell, and the consideration was ten dollars and a promissory note of $6821.79 payable in monthly installments of $104.00. Esther testified she and Cesario lived in a trailer home on the property beginning in 1987 or 1988. According to Esther, she and Cesario took over the payments with the understanding the property would be signed over to them once the payments were completed. Esther also testified she paid the property taxes on the parcel. There is no written contract between Ruben and Yolanda and Esther and Cesario. Esther requested the court, through its power to equitably divide community property, award her any legal or equitable interest in the parcel acquired by the parties during their marriage.

Cesario testified his father gave the parties permission to move their trailer home onto the tract, provided Ruben was paid rent. According to Cesario, the rent was $104.00 monthly plus the cost of repairs to a water well, and his father instructed payment be made directly to Colwell. Cesario stated the property belonged to his parents.

The trial court made findings of fact and conclusions of law. The court found the property was purchased from Colwell by Cesario's parents in August 1986 through a warranty deed with vendor's lien, and Cesario and Esther moved onto the property in 1989 and made the payments to Colwell until the present. Based on these findings, the court concluded Cesario and Esther acquired an equitable interest in the property during marriage which was part of the community estate. The court awarded the equitable interest to Esther.

DISCUSSION

In six points of error, Cesario argues the following: the land was not community property and was not separate property of either spouse; the trial court did not have the power to divest ownership of the property from parties not before the court; any contract for sale between the parents and the litigants was unenforceable due to the statute of frauds; no right of reimbursement was pled or proved; and adverse possession was not pled or proved.

STATUTE OF FRAUDS AND PARTIAL PERFORMANCE

We recognize a contract for the sale of land must generally conform to the statute of frauds. See Tex. Bus. & Com. Code Ann. 26.01 (Vernon 1987). Nevertheless, the doctrine of partial performance is an equitable exception to the statute of frauds. See Elizondo v. Gomez, 957 S.W.2d 862, 864 (Tex. App.-San Antonio 1997, pet. denied). Under the doctrine of partial performance, an oral contract for the purchase of real property will be enforceable if the purchaser: (1) pays the consideration; (2) takes possession of the property; and (3) makes permanent and valuable improvements on the property with the consent of the seller or, without such improvements, other facts are shown that would make the transaction a fraud on the purchaser if the oral contract was not enforced. Boyert v. Tauber, 834 S.W.2d 60, 63 (Tex. 1992); Elizondo, 957 S.W.2d at 864.

Community or Separate Property

The trial court awarded Esther, "[A]n equitable interest acquired by the parties in Lot No. 44, located at Las Lomitas Subdivision, Hebbronville, Texas." In points of error one and two, Cesario argues the tract was neither a community asset nor the separate property of either spouse. Any property possessed by the parties during marriage is presumed to be a community asset. See Tex. Fam. Code Ann. 3.003 (Vernon 1998). Cesario argues no interest in the property was acquired at all. He may be correct, but the title issue is unresolved at this point. The community presumption will, however, apply to whatever interest the parties did in fact acquire, so the equitable interest recognized by the court is a community asset. The equitable interest was awarded to Esther in the exercise of the court's discretion under the Family Code. See Tex. Fam. Code Ann. 7.001 (Vernon 1998) (granting divorce court power to divide property in "just and right" manner); Pearcy v. Pearcy, 884 S.W.2d 512, 514 n.3 (Tex. App.-San Antonio 1994, no writ). Cesario's first point of error is overruled.

Cesario also claims the tract was not the separate property of either spouse. We agree. Cesario testified the parcel was not a gift, and the record does not prove the parcel was separate property of either spouse. The court never considered the tract separate property. We agree with Cesario's second point of error for its abstract assertion; nevertheless, the point neither requests relief nor provides any. Cesario's second point of error is overruled.

Rights of Third Parties

Cesario argues the judgment cannot stand because the property is owned by his parents. He may be correct. His parents, however, are not before the court. Standing to sue exists when a party has a sufficient stake in a controversy to obtain judicial resolution of that controversy. Menetti v. Chavers, 974 S.W.2d 168, 171 (Tex. App.-San Antonio 1998, no pet.). On appeal, a party may only complain of error that injuriously affects that party. Id. Cesario is asserting allegedly superior rights of third parties which have no bearing on the court's division of community assets. The proper method for determining title to the property and the extent of the equitable interest, if any, is a trespass to try title action involving all parties with a claim to the land.

We believe the divorce decree determines the rights of the parties only, i.e., Cesario and Esther. Referring to the equitable interest in the property, the court stated, "the divorce decree will say that this interest will be vested to the petitioner [Esther], subject to litigation in the future as to what interest that is or may not be at all." In awarding the equitable interest, the trial court is recognizing the community estate may have had a claim in equity under the partial performance doctrine, notwithstanding the statute of frauds. The validity and extent of the claim has not been determined, but whatever the interest, it has been awarded to Esther. The decree does not divest ownership from parties not before the court, i.e., Ruben and Yolanda. The decree merely recognizes the actions of the people involved might have affected ownership of the parcel, but the title issue has not been determined in the divorce proceeding. Cesario's third point of error is overruled.

Statute of Frauds

Cesario's fourth point of error argues the requirements of the partial performance doctrine have not been met by Esther. The trial court's order divides the community property stake in the land. The extent to which the community owned, and Esther now owns, the parcel will be determined in a title dispute, not this divorce proceeding. Cesario's fourth point of error which addresses the merits of the statute of frauds and partial performance issue is not before the court and is overruled.

Reimbursement and Adverse Possession

Cesario is correct in stating in his fifth and sixth points of error, reimbursement and adverse possession, were not pled or proved at trial. Those theories are also not discussed in the record. Because there are no findings, conclusions, or evidence in the record concerning reimbursement and adverse possession, Cesario's fifth and sixth points of error do not address the basis of the court's decision and are overruled.

The judgment of the trial court is affirmed.

Tom Rickhoff, Justice

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