The wife who complained about this unusual procedure did not complain to the trial court at the time until she filed a motion for new trial after rendition and judgment. The court of appeals ruled that by participating in this procedure without objection, the wife waived any complaint on appeal. This case reminds us that objecting to a trial court ruling for the first time in a motion for new trial may be too late. TRAP 33.1(a)’s requirement that a complaining party on appeal must show he or she “made proper, timely and sufficiently specific objection or request in the trial court and obtained a ruling” is often not satisfied by waiting until the motion for new trial to object. Richard v. Towery, 1st Court of Appeals, 01-11-00132-CV, April 18, 2013. ... Read More >
A spouse is entitled to an offset against the value of a community property business for the value of separate property assets contributed to the business
Hooray for the attorney who cites a case from 1889 and wins! Perhaps we all should review Schmidt v. Huppman, 11 S.W. 175 (Tex. 1889), which held “Where it satisfactorily appears, as in this case, that one spouse brought into the partnership separate funds invested in a particular business, which business was carried on and the profits arising therefrom used in creating and building up the community estate, and the separate funds are employed in the same business at the dissolution of the partnership, upon settlement with the community estate we think the spouse furnishing such separate funds is entitled to reimbursement therefore.” At the trial of this divorce, 123 years after the Schmidt v. Huppman case was decided, the husband proved that his sole proprietor law firm on the date of marriage had $383,233.35 in accounts receivable, $175,391.70 in unbilled time for work in progress, $5,000 in furniture and fixtures, $22,003.74 in accounts payable and $95,307.40 in accrued payroll. ... Read More >
Texas Supreme Court Clarifies Rule That Allows a Property Owner to Testify About the Value of His or Her Property
by Greg Enos It has long been the rule in Texas that the owner of a property can testify as to the property’s value even if the homeowner cannot qualify as an expert witness. Mata v. Mata, 710 S.W.2d 745, 758 (Tex. App.— Corpus Christi 1986, no writ). The Texas Supreme Court in December 2012 limited that rule and held that the property owner must explain the basis for his or her opinion as to value. Natural Gas Pipeline Co. of America v. Justiss, __ S.W.3d __ (Tex.12/14/2012 - 10-0451), was a nuisance suit for damages, not a divorce. However, the rule articulated by the Texas Supreme Court should apply in divorce cases when a spouse testifies what the family house or a car or a business or the personal property is worth. In such a situation, the spouse must also explain what that opinion is based on. The Supreme Court stated: Because property owner testimony is the functional equivalent of expert testimony, it must be judged by the same standards. Thus, as with expert ... Read More >
The Cost of Sale Is Usually Not Deducted From the Value of a House in a Texas Divorce
A divorce court in Texas should usually not reduce the value of a house because of closing costs and realtor fees because that approach is not consistent with the definition of “fair market value,” and because such closing costs are too speculative. There is no definitive Texas case law on point, but the majority of other states have held that closing costs should not be considered in the value of a house unless a sale is actually imminent or planned. Two older Texas cases could be interpreted to approve of reducing the value of a house in a divorce by the cost of sale. In Pelzig v. Berkebile, 931 S.W.2d 398, 403 (Tex. App. - Corpus Christi 1996, no writ), the court of appeals said,“The judge’s finding of a $99,000 value after deducting ten percent closing costs was within the range of values suggested by the evidence.” In Cole v. Cole, 880 S.W.2d 477, 484 (Tex. App. - Fort Worth 1994, no writ), it is not clear at all what method the trial court used in finding the house had a ... Read More >