ALBERTO ANTONIO NURSE v. YOLANDA TERESA NURSE--Appeal from 28th District Court of Nueces County

NUMBER 13-01-515-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

ALBERTO ANTONIO NURSE, Appellant,

v.

YOLANDA TERESA NURSE, Appellee.

On appeal from the 28th District Court

of Nueces County, Texas.

O P I N I O N

Before Justices Dorsey, Ya ez, and Castillo

Opinion by Justice Castillo

This is an appeal from a final decree of divorce. In a single issue, appellant Alberto Antonio Nurse asserts that the trial court abused its discretion by causing a property division or order that is manifestly unjust and unfair. We affirm the judgment of the trial court.

Background

Appellee Yolanda Nurse originally sued appellant for divorce in June of 1997.[1] One year later, on June 19, 1998, the parties executed a Mediated Settlement Agreement. On December 17, 1998, alleging cruel treatment and adultery, appellee filed an amended petition seeking a disproportionate share of the parties= community estate. On September 14, 2000, appellant filed an amended answer, asserting as an affirmative defense that the settlement agreement was binding.[2] On July 27, 2000, the trial court granted appellee a default judgment and appellant successfully moved for a new trial. On September 15, 2000, prior to the trial de novo, appellant moved for judgment conforming to the parties= agreement, asking the trial court to enforce the agreement under section 6.602 of the family code.[3] Tex. Fam. Code Ann. '6.602 (Vernon Supp. 2002). At the final hearing on December 14, 2000, the trial court ruled that it would follow the agreement and also granted relief for matters outside the agreement.[4] The trial court instructed the attorneys to prepare a final decree for its signature.

Appellant refused to sign the proposed decree because he sought reimbursement for mortgage payments he had made on the marital estate located on Ray Drive during the pendency of his divorce. Appellee moved to enter judgment based on the trial court=s ruling of December 14, 2000. On June 26, 2001, the parties appeared for a hearing on appellee=s motion to enter judgment. It was explained to the trial court that the agreement provided that appellee have exclusive use and possession of the Ray property and make the mortgage payments as they became due. Nevertheless, appellant had been voluntarily paying half of the mortgage payment each month with appellee paying the other half, because appellee was financially unable to make the full payments herself. The terms of the proposed decree did not make any provision for reimbursement to the appellant for voluntary mortgage payments he made during the pendency of the divorce. Appellant=s counsel urged, AHe stepped in and did it and now he is entitled by law to be reimbursed, for all the mortgage payments which he made in the interim period.@

At the June hearing, the trial court denied appellant reimbursement of monies paid on the Ray Drive mortgage. The trial court ruled, AThen since both parties have been paying half of the mortgage and upon the sale then each party will benefit from half the proceeds in the sale of the home. So I guess your reimbursement claim is moot at this point.@ Appellant then perfected this appeal.

Standard of Review

In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party. Tex. Fam. Code Ann. ' 7.001(Vernon 1998). In a divorce proceeding, a trial court has wide latitude in the exercise of its discretion in dividing marital property. Dankowski v. Dankowski, 922 S.W.2d 298, 304 (Tex. App.BFort Worth 1996, writ denied). However, the trial court does not have unlimited discretion in dividing property; there must be some reasonable basis for an unequal division of the property. Zieba v. Martin, 928 S.W.2d 782, 790 (Tex. App.B Houston [14th Dist.] 1996, no writ). An appellate court cannot substitute its judgment for the trial court=s division of property; rather, if the appellate court finds that an abuse of discretion has occurred, remand is required. Jacobs v. Jacobs, 687 S.W.2d 731, 732 (Tex. 1985); McKnight v. McKnight, 543 S.W.2d 863, 866 (Tex. 1976). Reimbursement is an equitable right, not an absolute right, and the trial court's discretion in evaluating a claim for reimbursement is as broad as that discretion exercised by making a Ajust and right@ division of the community property. Penick v. Penick, 783 S.W.2d 194, 198 (Tex.1988); Golias v. Golias, 861 S.W.2d 401, 403 (Tex. App.BBeaumont 1993, no writ).

Discussion

In his sole issue, appellant asserts that the trial court abused its discretion by causing a property division that is manifestly unjust and unfair. He complains that the unequal division of the marital estate based upon no supporting evidence is unjust and unfair as a matter of law. He adds that violation of the plain terms of a properly executed mediated settlement agreement in such a manner as to result in appellant=s receiving anything less than his guaranteed fifty-fifty distribution of net sales proceeds as set out in the agreement is manifestly unjust and unfair as a matter of law. He concludes that the trial court=s refusal to allow appellant reimbursement of the mortgage payments due him from the sale of the Ray Drive residence is arbitrary and unreasonable as a matter of law. As we read and comprehend appellant's brief, implicit in the mediation settlement agreement is the requirement that appellee reimburse him for mortgage payments he made on the Ray Drive property, and, consequently, the decree should reflect that obligation. The mediated settlement agreement provides in part:

2. The property commonly known as 1330 Ray, Corpus Christi, Nueces County, Texas will be listed for sale with a real estate agent who is active in the area where the property is located. It will be sold for a price and on terms that are mutually agreeable to the parties. However, as long as child support is payable under the terms of this Agreement, and the Decree of Divorce:

a. Wife will have the exclusive use and possession of the property and will pay all utilities and keep the property maintained and in good repair.

b. Wife will pay the mortgage payments as they become due.

c. Wife will pay the insurance premiums and ad valorem taxes as they come due.

On the sale, the net sales proceeds will be divided fifty percent to Wife and fifty percent to Husband.

* * *

18. THIS AGREEMENT IS NOT SUBJECT TO REVOCATION.

We hold that the trial court did not abuse its discretion in denying appellant=s oral motion for reimbursement. We note that appellant did not allege a claim for reimbursement in any of the pleadings filed with the court. A pleading, by definition, determines the issues to be tried. Erisman v. Thompson, 140 Tex. 361, 167 S.W.2d 731, 733 (Tex. 1943). The claim was not properly before the court.

Even if the issue was properly before the trial court, appellant did not overcome the presumption that the funds used to pay the mortgage were community property funds. There is a presumption in the family code that property possessed by either spouse during or on dissolution of the marriage is presumed to be community property. Tex. Fam. Code Ann. ' 3.003(a) (Vernon 1998). Debts, including mortgages, contracted during the marriage are presumed to be community debts, absent a showing that the creditor did not look to both spouses for satisfaction of the debt. Cockerhamv. Cockerham, 527 S.W.2d 162, 171 (Tex. 1975). Payment of community debts will be presumed to have been made with community property funds, absent a showing that the expenditure was made with one party=s separate property. McCann v. McCann, 22 S.W.3d 21, 23 (Tex. App.BHouston [14th Dist.] 2000, pet. denied). Thus, at the time of the June hearing, the presumption existed that the mortgage payments were made with community funds. Appellant, as the party seeking reimbursement, had the burden to overcome that presumption. Hardee v. Vincent, 136 Tex. 99, 147 S.W.2d 1072, 1074 (Tex. 1941). The presumption may be overcome by presenting clear and convincing evidence that the property was separate. Tex. Fam. Code Ann. ' 3.003(b)(Vernon 1998). Appellant, as the party bringing a claim for reimbursement, did not rebut this presumption, and failed to overcome it by presenting evidence indicating that his separate funds were used instead. Thus, appellant merely used community funds to pay a community debt owed on community property.[5]

Moreover, appellant, as the party claiming the right of reimbursement, had the burden of proof. Jensen v. Jensen, 665 S.W.2d 107, 110 (Tex. 1984); Vallone v. Vallone, 644 S.W.2d 455, 459 (Tex. 1982). Appellant adduced no evidence to support his claim for reimbursement. At the final hearing, the parties announced an agreement had been reached. Appellee=s counsel proved up the jurisdictional requirements of the divorce action and the substance of the parties= agreement, separate from the mediated settlement agreement, as well as the mediated settlement agreement itself. Appellant did not raise a claim for reimbursement at that time and did not adduce evidence of his entitlement to the same before the trial court pronounced judgment. Rather, the first time the reimbursement claim was raised was at the hearing on appellee=s motion to enter judgment, after the final evidentiary hearing. As no evidence was adduced to support the reimbursement claim, either at the final hearing or at the subsequent hearing, appellant failed to meet his burden of proof.

Further, even assuming that appellant preserved error, nothing in the parties= mediated settlement agreement addresses a right of reimbursement. The agreement met the requirements of section 6.602 of the family code, which states:

(b) A mediated settlement agreement is binding on the parties if the agreement:

(1) provides, in a prominently displayed statement that is in boldfaced type or capital letters or underlined, that the agreement is not subject to revocation;

(2) is signed by each party to the agreement; and,

(3) is signed by the party=s attorney, if any, who is present at the time the agreement is signed.

(c) If a mediated settlement agreement meets the requirements of this section, a party is entitled to judgment on the mediated settlement agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule of law.

Tex. Fam. Code Ann. ' 6.602 (Vernon Supp. 2002).

Under section 6.602(c), the trial court was required to enter a judgment if the court found that the agreement met the requirements of section 6.602(b). Tex. Fam. Code Ann. ' 6.602(c) (Vernon Supp. 2002). A mediated settlement agreement complying with sections 6.602(b) and (c) is binding and a party to such an agreement is entitled to a judgment. Alvarez v. Reiser, 958 S.W.2d 232, 234 (Tex. App.BEastland 1997, pet. denied) (discussing the same language found in family code section 153.0071). At the conclusion of the final hearing on the merits, the trial court pronounced judgment:

Court will approve the agreement of the parties that has been recited on the record and agreed to by both parties. Court will also adopt the mediated settlement agreement. Court will render judgment B first of all grant the divorce, render judgment on the agreement, on the mediated settlement and on the divorce. It is final. It is over.

The trial court complied with section 6.602(c) by entering a judgment on the mediated settlement agreement. The divorce decree stated in relevant part:

IT IS FURTHER ORDERED AND DECREED that the property and all improvements located thereon at . . . 1330 Ray Drive, Corpus Christi, County, Texas, shall be sold under the following terms and conditions:

1. Petitioner shall continue to make all payments of principal, interest, taxes, and insurance on the property for six months or until the residence is sold and during the pendency of the sale. Petitioner shall have the exclusive right to enjoy the use and possession of the premises until closing. All maintenance and repairs necessary to keep the property in its present condition shall be paid by Petitioner.

2. Once the property is sold, IT IS ORDERED that Respondent shall receive $10,000 out of the net sales proceeds and the remaining balance shall be divided among the parties equally.[6]

The additional agreement, approved and reduced to judgment, did not change the substance of the mediated settlement agreement. We hold that the trial court did not abuse its discretion in denying reimbursement.[7]

Conclusion

  We overrule appellant=s sole issue and affirm the judgment of the trial court.

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 13th day of June, 2002.

1A child was born of the marriage, but by the time of the final hearing, she had reached the age of eighteen.

2 Appellant cited section 154.071 of the civil practice and remedies code and sections 153.0071(d) and (e) of the family code. See Tex. Civ. Prac. & Rem. Code Ann. '154.071 (Vernon 1997); Tex. Fam. Code Ann. ''153.0071(d) & (e)(Vernon Supp. 2002).

3Appellant filed a Motion for Judgment Conforming to AMediated Settlement Agreement,@ in which he stated that the agreement met all the requirements of section 6.602. Tex. Fam. Code Ann.'6.602 (Vernon Supp. 2002).

4 The trial court noted that A. . . the property that is not included in the settlement agreement is part of the marital property that needs to be divided.@In effect, the trial court approved the mediated settlement agreement and a separate Rule 11 agreement. Tex. R. Civ. P. 11.

5 This comports with paragraph 7 of the agreement, which states that each Aparty shall pay one-half of the community debts owed by the parties except any debt owed on the vehicles owned by the parties. The parties shall determine within fifteen days of the date of this agreement, which debts are to be assumed by each party.@ As to the Ray Drive property, the same paragraph provides, AThe parties have agreed not to incur or accept the home equity loan they applied for, on the Ray Street property, and neither party shall incur any further indebtedness on the Ray Street property.@ Inasmuch as the Final Decree of Divorce and all the other documents relevant to this case refer to property located at 1330 Ray Drive and do not make mention of Ray Street, it is clear that the Ray Street property mentioned in the agreement is the property actually located on Ray Drive.

6 The second provision was part of the parties=Rule 11 agreement approved by the trial court at the final hearing.

7We note also that the mediated settlement agreement addressed disputes arising from the agreement itself:

13. Disputes Regarding This Agreement

If any dispute arises with regard to the interpretation or performance of this agreement, or any of its provisions, including the necessity and form of closing documents, the parties agree to try to resolve the dispute by phone conference with the mediator who facilitated this settlement. Any disputes regarding drafting shall be resolved whenever possible by reference to the Texas Family Law Practice Manual. (2d ed.).

The record is silent, however, as to efforts, if any, made to enforce the provision prior to final judgment.