Elwood Cluck v. K. Arlitt--Appeal from 166th Judicial District Court of Bexar County

No. 04-99-00578-CV
Elwood CLUCK,
Appellant
v.
Kristine ARLITT,
Appellee
From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 95-CI-05988
Honorable John J. Specia, Jr., Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Tom Rickhoff, Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: May 2, 2001

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

Elwood Cluck appeals the trial court's final decree of divorce. We reverse the judgment in part and remand the cause to the trial court for further proceedings consistent with this opinion.

Trial Court Jurisdiction

In his first two points of error, Cluck contends the trial court signed a final decree of divorce on May 2, 1996 and its plenary power expired thirty days thereafter - long before the trial court signed what Cluck refers to as the second final decree of divorce, signed May 11, 1999. We disagree.

"A judgment that finally disposes of all remaining parties and claims, based on the record in the case, is final, regardless of its language." Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001). Here, however, the trial court expressly struck "FINAL" from the title of the initial decree; it expressly stated that the bankruptcy court's stay order was lifted "as it relates to granting the divorce only, and not as it relates to any property division"; and it "ORDERED that no division of the marital estate is ordered at this time because of the aforementioned bankruptcy proceeding and therefore none of the property rights have been adjudicated." Under these circumstances, as Cluck has repeatedly admitted, the court's May 2, 1996 decree was interlocutory and no impediment to its later May 11, 1999 decree. Hottell v. Hottell, 454 S.W.2d 880, 881 (Tex. Civ. App.-San Antonio 1970, no writ). Cluck's first two points of error are therefore overruled.

Cluck's Separate Property

In his ninth point of error, Cluck contends the trial court erred in awarding Arlitt National Service Life Insurance Policy No. FV 1466 28 34. Using similar reasoning, in his third, fourth, eighth, and tenth points of error, Cluck contends the trial court erred in awarding Arlitt other items that are his separate property.

Although a trial court has broad discretion in dividing the marital property, it has no discretion to divest a spouse of his or her separate property. Cameron v. Cameron, 641 S.W.2d 210, 215 (Tex. 1982); Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 142 (Tex. 1977). Accordingly, if a trial court divests a spouse of his separate property or mischaracterizes separate property as community property, reversal is required. See Eggemeyer, 554 S.W.2d at 140. However, an appellate court does not have the authority to render a judgment dividing the parties' marital property; we must instead reverse the judgment and remand the property division issue to the trial court. McKnight v. McKnight, 543 S.W.2d 863, 866 (Tex. 1976); Schlafly v. Schlafly, 33 S.W.3d 863, 872 (Tex. App.-Houston [14th Dist.] 2000, pet. denied).

The trial court's judgment purports to divide only "the parties' marital estate," i.e., their community property. However, it awards Arlitt National Service Life Insurance Policy No. FV 1466 28 34, which Cluck acquired as a result of his military service long before his marriage to Arlitt and which he therefore claims as his separate property. That this policy predated the marriage was conceded by Arlitt's counsel during a post-trial hearing. At the conclusion of this hearing, however, the trial court awarded the policy to Arlitt because she had discharged a community debt, as the following exchange reveals:

THE COURT: And that's $13,000. And is that something that goes back to when he was in the military a zillion years ago or -

MR. RUTHERFORD: That's my understanding.

THE COURT: Why is she entitled to that?

....

MR. RUTHERFORD: The reason is, in any marital property division, Judge, the Court can make an unequal division and can even award separate property to -

THE COURT: I'm aware of that.

MR RUTHERFORD: Okay. So all we are asking you to do is award this property to Ms. Arlitt.

....

THE WITNESS: I have paid out of my separate property funds 100 percent of the problem - the judgment in the Bankruptcy Court. Cluck has not paid one dollar. I paid for it out of my personal property, out of my inheritance.

THE COURT: How much is that?

THE WITNESS: I paid a total of - it was well in excess of $300,000, probably closer to $400,000 that I have paid.

THE COURT: So have you, personally, paid that?

THE WITNESS: Yes, sir.

....

THE COURT: Question: The judgment out of the Bankruptcy Court that you paid, was it jointly and severally yours and Cluck's?

THE WITNESS: Yes, sir.

THE COURT: And you have paid $300,000 of that?

THE WITNESS: I've paid in excess of that. I have paid 100 percent of that.

THE COURT: I will order, under those circumstances, with those representations, that you have used that much of your separate property to satisfy a community debt -

THE WITNESS: Yes, sir.

THE COURT: Is that a fair statement?

THE WITNESS: Yes, sir, it is.

THE COURT: Then I will order this $13,000 policy paid to you as part of the community settlement.

Under these circumstances, we cannot presume - even in the absence of findings and conclusions - that the trial court found this policy to be community property and awarded it to Arlitt as a part of a just and right division of the marital estate. Rather, this exchange makes evident the trial court labored under the mistaken belief that Texas law authorized the court to award Cluck's separate property to Arlitt because she discharged a community debt. We therefore sustain Cluck's ninth point of error.

Conclusion

As noted above, we do not have the authority to render a judgment dividing the parties' marital estate. Nor are we able to determine the extent to which the trial court's error of law affects other aspects of its judgment. Therefore, without reaching Cluck's remaining points of error, we affirm the trial court's judgment dissolving the marriage, sever this issue, and in all other respects reverse the trial court's judgment and remand all other issues for further proceedings consistent with this opinion. (1) See Smith v. Smith, 22 S.W.3d 140, 153 (Tex. App.-Houston [14th Dist.] 2000, no pet.).

Sarah B. Duncan, Justice

Do not publish

1. For purposes of the proceedings on remand, we note that "[a]ny award of attorney's fees on appeal must be conditioned on the receiving party's success." J.C. Penney Life Ins. Co. v. Heinrich, 32 S.W.3d 280, 290 (Tex. App.-San Antonio 2000, pet. filed) (quoting Westech Eng'g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 205 (Tex. App.-Austin 1992, no writ)). Indeed, this is true even if the appellate attorney's fees are awarded as a sanction. In re Ford Motor Co., 988 S.W.2d 714, 721 (Tex. 1998) ("[A]lthough a trial court may grant appellate attorney's fees as part of a sanctions order under Rule 215, the court must condition the award on the outcome of the appeal.").