New Law Blogs

A divorce decree?s classification of community property must be challenged promptly [Jan. 14, 2011]

By Don Cruse

With today’s orders list, the Texas Supreme Court issued one per curiam opinion. The Court did not set any more cases for its argument calendar.

A question of whether property is community or separate property cannot be relitigated years after a divorce decree becomes final

Today’s opinion was in Rita Lackey Fillingim Pearson v. Willis Dan Fillingim, No. 10-0013 (per curiam) (DDB).

The Fillingims divorced in 1981. After listing specific assets, the divorce decree included a residuary clause awarding each divorcing spouse a “one-half interest in all other property or assets not otherwise disposed of herein.”

Among the assets not listed were a set of four deeds for mineral rights, which Willis’s parents had assigned to him during the marriage. In a lawsuit filed in 2006, Willis contended that these mineral rights were separate rather than community property and that, accordingly, he should be receiving 100% of the proceeds rather than just 50%.

The trial court agreed. The court of appeals ultimately agreed, too, concluding that the residuary clause was only meant to reach community property — not to turn separate property into community property.

In a per curiam opinion, the Texas Supreme Court reversed. The Court’s reasoning was two-pronged. First the Court focused on the Family Code’s presumption that all property acquired during the marriage is community property. This is just a presumption, of course, but in this case the spouse did not introduce evidence in the original divorce proceeding contesting that classification. As such, the Court concluded, the original court’s classification was correct.

Second, the Court reasoned that it was just too late to challenge that classification: “Even further,… ‘a court has jurisdiction to characterize community property—even if it does so incorrectly.’” (emphasis added) The time to challenge that classification was in an appeal of the original divorce decree, not in a later collateral attack.

The Texas Supreme Court thus reversed the court of appeals and dismissed this after-the-fact challenge to the original divorce decree.

Full post as published by Supreme Court of Texas Blog on January 14, 2011 (boomark / email).