IN RE: the Marriage of Jana Catherine Grisham and Sidney Eugene Grisham From the County Court at Law Walker County (2010)

Court of Appeals of Texas, Waco.

IN RE: the Marriage of Jana Catherine Grisham and Sidney Eugene Grisham From the County Court at Law Walker County, Texas Trial Court No. 8,997 MEMORANDUM Opinion Jana Catherine Grisham appeals the trial court's division of property.  Because we find that the trial court did not abuse its discretion in making the division, we affirm.  In her sole issue on appeal, Jana argues that the trial court abused its discretion in its division of the marital estate because the court's division was arbitrary or unreasonable.  Standard of Review We review a trial court's division of property under an abuse of discretion standard.  Wells v. Wells, 251 S.W.3d 834, 838 (Tex.App.-Eastland 2008, no pet.).  A trial court abuses its discretion when it acts without reference to any guiding rules or principles.  Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985).  The mere fact that a trial court may decide a matter within its discretionary authority in a different manner than an appellate court in a similar circumstance does not demonstrate that an abuse of discretion has occurred.  Wells v. Wells, 251 S.W.3d at 838.  When an appellant challenges the trial court's order on legal or factual sufficiency grounds, we do not treat these as independent grounds of reversible error but, instead, consider them as factors relevant to our assessment of whether the trial court abused its discretion.  Wells v. Wells, 251 S.W.3d at 838;  Boyd v. Boyd, 131 S.W.3d 605, 611 (Tex.App.-Fort Worth 2004, no pet.).  To determine whether the trial court abused its discretion because the evidence is legally or factually insufficient, we consider whether the court (1) had sufficient evidence upon which to exercise its discretion and (2) erred in the application of that discretion.  Wells v. Wells, 251 S.W.3d at 838. Mischaracterization of Property Jana specifically argues that the trial court's characterization of Grisham Petroleum and Grisham Construction as the separate property of Sidney was not supported by the evidence presented to the trial court.  The trial court made the following findings of fact relating to the characterization of the two businesses:  21.  Approximately one month after the marriage, Mr. Grisham made a business decision to change the form in which his separate property was held.  This property consisted of property that Mr. Grisham earned and acquired over 19 years prior to marriage.  Mr. Grisham did not change the form of his businesses to prevent Mrs. Grisham from making claims against his separate property, but rather for tax and business purposes and to provide, in some part, for his three grown children from a former marriage and his marriage to Mrs. Jana Grisham. 22.  To this end, in April 1996, Mr. Grisham exchanged his shares in Grisham Construction Co. and Grisham Petroleum Co. for 96% of the shares in Spring Air Co., Ltd. Each of Mr. Grisham's three children acquired a 1% interest in Spring Air and Country Air acquired 1% interest as the managing partner of Spring Air. Mr. Grisham is the only shareholder of Country Air. 23.  Mr. Grisham never received any money or property in exchange for his interests in the two businesses mentioned above.  Spring Air was completely funded by Grisham Construction and Grisham Petroleum and the court finds that these entities never lost their separate property character, but mutated to a different form of conducting the same business as prior to marriage and remain his separate property but now he only owns 96% of them.  All property on hand at the dissolution of marriage is presumed to be community property.  Tex. Fam.Code Ann. § 3.003(a) (Vernon 2006).  It is a rebuttable presumption requiring a spouse claiming assets as separate property to establish its separate character by clear and convincing evidence.  Tex. Fam.Code Ann. § 3.003(b) (Vernon 2006).  The characterization of property as community or separate is determined by the inception of title to the property.  In re Marriage of Jordan, 264 S.W.3d 850, 855 (Tex.App.-Waco 2008 no pet.);  Wells v. Wells, 251 S.W.3d at 839.  Once determined, the character of the property is not altered by the sale, exchange or substitution of the property.  Harris v. Harris, 765 S.W.2d 798, 802 (Tex.App.-Houston [14 th Dist.] 1989, writ den'd).  Property established to be separate remains separate property regardless of the fact that it may undergo any number of mutations and changes in form.  Id.

No. 10-09-00429-CV

Decided: October 20, 2010

Before Chief Justice Gray, Justice Reyna, and Justice Davis