Date: 07-06-2017

Case Style: In the Matter of the Marriage of Carolyn Clark Kennedy and Donald Ray Clark Sr. and Donald Ray Clark Jr.

Case Number: 4-15-01038-CV

Judge: John Donovan

Court: Texas Court of appeals, Fourteenth District on appeal from 311th District Court of Harris County

Plaintiff's Attorney: Shonda Jones for Carolyn Clark Kennedy

Defendant's Attorney: Glady Goffney for Donald Ray Clark Sr. and Jr.

Description: This appeal is brought by appellants Donald Ray Clark, Sr., and his son, Donald
Ray Clark, Jr., complaining of a judgment entered in favor of appellee Carolyn Clark
Kennedy. We affirm in part and reverse and remand in part.
2
FACTUAL AND PROCEDURAL BACKGROUND
Donald Sr. had four children, including Donald Jr., and they resided at 2511 7th
Street, Galena Park, Texas. In May 1992, the Galena Park property was leased from
Gideon L. Sanders, as lessor, to Donald Sr., as lessee, for a period of seven years, ending
May 16, 1999. Following completion of the lease agreement, Sanders executed a quitclaim
deed in favor of Donald Jr. on January 12, 2000. The record reflects Donald Jr. was
sixteen at that time.
Carolyn and Donald Sr. were married in 1996. Carolyn and her three children
moved into the Galena Park home. The underlying petition for divorce was filed by
Carolyn on May 14, 2012. In the divorce, Carolyn claimed the Galena Park property as
community property. Donald Sr. denied that characterization.
A bench trial was held on December 12, 2013. The trial court awarded title to the
Galena Park property to Donald Sr. and set a lien against it for $15,000 to be paid to
Carolyn. Donald Sr. and Carolyn were unable to obtain a loan on the Galena Park
property. The trial court then granted Carolyn’s motion for new trial.
Trial was set for May 18, 2015. Carolyn filed a Fourth Amended Petition and
Donald Jr. then filed special exceptions and a counter-claim for trespass to try title. On
the day of trial, the trial court ordered mediation. The next day, Carolyn and Donald Sr.
reached a mediated settlement agreement (“MSA”). A hearing was held to enter
judgment but Donald Jr. had not signed the MSA. The trial court declined to enter
judgment on the MSA and trial was again set for June 22, 2015.
On June 10, 2015, Donald Sr. and Donald Jr. filed a motion for judgment on the
MSA. A hearing was held on June 22, 2015, and judgment was entered after Donald Jr.
signed the MSA. A bench trial immediately ensued on the ownership/character of the
Galena Park property. On July 24, 2015, the trial court ruled the Galena Park property
was owned by the community estate and Donald Jr. take nothing. The trial court ordered
the property sold and the proceeds divided as community property. A final decree of
3
divorce was signed September 11, 2015. From that judgment, Donald Sr. and Donald Jr.
(collectively “appellants”) appeal raising eight issues.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Appellants’ first issue claims the trial court erred in failing to file written findings
of fact and conclusions of law. Appellants timely filed a Request for Findings of Fact and
Conclusions of Law on September 28, 2015. See Tex. R. Civ. P. 296. Appellants do not
assert, and the record does not reflect, a notice of past due findings of fact and
conclusions of law was filed. See Tex. R. Civ. P. 297. Accordingly, appellants’ complaint
is waived and issue one is overruled. See Curtis v. Comm’n for Lawyer Discipline, 20
S.W.3d 227, 232 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (citing Las Vegas
Pecan & Cattle Co. v. Zavala Cty., 682 S.W.2d 254, 255–56 (Tex. 1984)).
JUDGMENT ON THE MSA
In his second issue, appellants contend the trial court erred in failing to enter
judgment on the MSA. The MSA does not address the Galena Park property.
Incorporated into the MSA is the December 12, 2013, judgment with all references to the
Galena Park property blacked out.
Appellants assert, as they did in the trial court, the Galena Park property was
intentionally omitted because the parties agreed it was not marital property. Appellee, on
the other hand, represented to the trial court that it was absent because an agreement
could not be reached in mediation. The hearing record reflects the dispute was argued to
the trial court.1 The trial court ruled as follows:
THE COURT: It’s scratched out, Counsel. I don’t know how
you could possibly interpret that to mean that the property is addressed. If
the property were addressed, it would address the property. It would spell it
1 The MSA expressly provides that if a dispute arises with regard to its interpretation “prior to
entry of the final order, then the parties agree to arbitrate such dispute with . . . the Mediator who
facilitated this settlement, within 10 days of any party’s written request to arbitrate such dispute.”
(Emphasis in the original.). The record does not reflects either party requested arbitration.
4
out. It would tell me what — what the intent of the parties were. It would
say that the parties are acknowledging it’s — the individuals’ separate
property. It would say something. It’s [sic] scratches it out, which means it
doesn’t say anything. So, that’s what you-all are trying.
The trial court proceeded to conduct a bench trial on the ownership/characterization of
the Galena Park property. As noted above, the trial court found it was community
property and ordered its sale and a division of the proceeds between Carolyn and Donald
Sr. Otherwise, judgment was entered in accordance with the MSA.
Any reference to the Galena Park property was removed from the prior judgment
which was then incorporated into the MSA without any explanation for its omission. The
record before this court contains no evidence of the reason for the removal other than the
parties’ differing accounts.2 “An abuse of discretion does not exist if the trial court bases
its decision on conflicting evidence and some evidence reasonably supports the trial
court’s decision. See Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978).” In re EPIC
Holdings, Inc., 985 S.W.2d 41, 57 (Tex. 1998). We conclude the trial court could have
properly determined the wholesale omission of the Galena Park property from the MSA
left its disposition to be resolved by the trial court. In all other respects, judgment on the
MSA was entered. Accordingly, issue two is overruled.
REQUEST FOR A JURY TRIAL
Appellants’ third issue argues the trial court erred by refusing their request for a
jury trial. The record reflects a jury trial was requested by appellants in 2012.
Subsequently, appellants waived that request and proceeded to trial before the bench on
December 12, 2013. A jury trial was again waived as part of the MSA. In their brief,
appellants’ assert that in a pre-trial bench conference on June 22, 2015, they asked for a
jury trial and advised the trial court the jury fee had been paid. However, appellants
concede their request was not recorded by the reporter and the record does not contain an
2 An e-mail exchange with the mediator is attached to appellant’s brief but is not in the appellate
record and does not reflect it was filed in the trial court. We note, however, that it does not establish the
parties’ intent as to the omission of the Galena Park property from the MSA.
5
objection to the reporter’s failure. Nabelek v. Dist. Attorney of Harris Cty., 290 S.W.3d
222, 231 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (failing to object to
reporter’s failure to record waives issues for review that rely on evidence found in
reporter’s record). Accordingly, nothing is preserved for our review See Tex. R. App. P.
33.1(a). Issue three is overruled.
CHARACTERIZATION OF THE GALENA PARK PROPERTY
Appellants’ fourth issue contends the trial court mischaracterized the Galena Park
property as community property because the quit-claim deed vested title to the Galena
Park property in Donald Jr. Before addressing this argument we set forth the relevant
evidence before the trial court.
The Evidence
The record reflects that the first page of the contract has printed, as Lessee,
“DONALD RAY CLARK JR.” However, it is signed “Donald Ray Clark Sr.” and “JR.”
is scratched out and something else written in. On the left-hand side of the signature line
is printed “The acknowledgement of Donald Ray Clark.” Thus the contract contains the
names of both Donald Jr. and Donald Sr. but the only signature, and thus the only person
bound by the lease agreement, is that of Donald Sr. He testified that he entered into a
lease agreement with Gideon Sanders for the Galena Park property. The lease agreement
is dated May 7, 1992, began May 16, 1992, and ended May 16, 1999.
The quit-claim deed executed by Sanders on January 12, 2000, quit-claims “unto
the said Donald Ray Clark, Jr., his heirs and assigns, all my right, title and interest in and
to . . .” the Galena Park property. Donald Sr. testified it was intended for the title to be in
Donald Jr.’s name, and Donald Jr. is the owner. Donald Sr. conceded the lease does not
state that he signed it as a representative of Donald Jr. According to Donald Sr., he was
only paying rent to Sanders, title to the property was in Sanders’ name, and his son
became the owner in 2000 upon execution of the quit-claim deed. Donald Sr. testified
that he is not asking the court to award the property to him. Donald Jr. testified that he is
6
the owner of the Galena Park property and that he was asking the court to award the
property to him.
On September 29, 2001, Donald Sr. and Carolyn executed a General Warranty
Deed for the Galena Park property. The deed represents that “Donald Ray Clark . . . as
Independent Executrix of the Estate herein-after called Grantor . . .” Donald Sr. denied
the purpose of the deed was to correct title in his name rather than Donald Jr.’s.
According to Donald Sr., the General Warranty Deed was executed to obtain a loan, not
to correct title. He stated that he now understood the deed was fraudulent in that it
represented he was the executrix of Donald Jr.’s estate. Donald Sr. testified the loan was
for $39,000,3 the Galena Park property was used as collateral, and he and Carolyn split
the money. None of the money was given to Donald Jr. The loan was fully paid back by
the beginning of 2015.
On October 10, 2005, Donald Sr. and Carolyn executed a home equity loan on the
Galena Park property for $37,999.90. Then on December 16, 2011, Donald Sr., Donald
Jr. and Carolyn executed a tax lien deed of trust on the Galena Park property. Donald Sr.
testified the tax lien was taken to pay delinquent taxes on the home and he was still
paying it back.
Carolyn testified that she was asking the court to award her the house.
Alternatively, she was requesting the house be sold. Carolyn knew the taxes were an
existing debt against the home. Carolyn testified that Donald Sr. was renting the home.
When asked if she knew the ownership transferred to Donald Jr. in 2000, Carolyn replied,
“Not to my knowledge.”
Carolyn testified improvements were made to the home and Donald Sr. agreed that
improvements were made during the marriage. According to Carolyn, she contributed at
least $27,000. She stated that she had personal funds in the amount of $34,000 as an
inheritance from her mother, and $20,000 from her ex-husband. Carolyn’s testimony
3 Donald Sr. also agreed the loan was for $39,500.
7
reveals that some, if not all, of the improvements were made before the marriage. The
record does not reflect what improvements were made after the quit-claim deed was
executed. Carolyn admitted that she never tried to obtain reimbursement from Sanders.
The record does not reflect she sought reimbursement from Donald Jr. before the divorce
suit was filed.
Carolyn recalled signing the General Warranty Deed. She said its purpose was the
“statement that the house is mine and his.” Carolyn denied the purpose was to get a loan.
Carolyn further denied the deed was fraudulent although she admitted Donald Jr. was not
dead, nor did she believe him to be dead.
Analysis
In reviewing whether the trial court erred in finding the Galena Park property was
community property, we first determine if the trial court’s finding is supported by clear
and convincing evidence. See Sharma v. Routh, 302 S.W.3d 355, 360 (Tex. App.—
Houston [14th Dist.] 2009, no pet.). If the trial court erred, we must next decide whether
the error probably caused the rendition of an improper judgment. See Tex. R. App. P.
44.1(a)(1). “Clear and convincing” evidence means the measure or degree of proof that
will produce in the mind of the trier of fact a firm belief or conviction as to the truth of
the allegations sought to be established. In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002).
When the trial court has acted as factfinder, it determines the credibility of the evidence
and the witnesses, the weight to give their testimony, and whether to accept or reject all
or any part of their testimony. Villalpando v. Villalpando, 480 S.W.3d 801, 806 (Tex.
App.—Houston [14th Dist.] 2015, no pet.).
The record reflects that neither Donald Sr. nor Carolyn ever took title to the
Galena Park property. Title transferred from Sanders to Donald Jr. through the quit-claim
deed. See F.J. Harrison & Co. v. Boring & Kennard, 44 Tex. 255, 261–62 (1875) (“A
quit claim or deed of release of all one’s right, title, and interest purports to convey and
does convey no more than the present interest of the grantor. . . .”). A year later, Donald
Sr. and Carolyn executed the General Warranty Deed, without the signatures of either
8
Sanders or Donald Jr. Carolyn contends the deed was filed “to put the public on notice
that [the property] was owned by him and Carolyn.” In order to place the public on notice
that they owned the property, however, there must be some evidence that they acquired
ownership — there is none. We are aware of no authority that the filing of a deed by two
parties who do not have title to real property will divest title from the title holder of
record. The record does not reflect that Donald Sr. and Carolyn ever sought to quiet title
or reform the deed.4
The fact that Donald Jr. was sixteen at the time of execution of the quit-claim deed
was not a basis for the trial court to find the Galena Park property was community
property.5 Texas law does not restrict the ability of minors under the age of eighteen to
own property. See Johnson v. Morton, 67 S.W. 790 (Tex. Civ. App. 1902) (minors
granted property in a deed); see also Milner v. McDaniel, 36 S.W. 2d 992, 993 (Tex.
1931) (minor can take title to the homestead property unburdened by the claims of
creditors of the decedent’s estate except those specified by the Texas Constitution and
Statute); see generally Snyder v. Allstate Ins. Co., 485 S.W. 2d. 769 (Tex. 1972) (title of
car in the name of the minor and the minor considered owner of car). Moreover, even if a
minor were unable to take title to real property in Texas, the title would have remained in
Sanders’ name — it would not have transferred to Donald Sr. and/or Carolyn.
For these reasons, we conclude the trial court abused its discretion in
characterizing the Galena Park property as community property. Appellants’ fourth issue
4 Quiet-title and deed-reformation claims are subject to a four-year statute of limitations.
Cosgrove v. Cade, 468 S.W.3d 32, 35 (Tex. 2015) (deed reformation); Poag v. Flories, 317 S.W.3d 820,
825 (Tex. App.–Fort Worth 2010, pet. denied) (quiet title). Limitations, however, is an affirmative
defense that is waived if not pleaded. See Tex. R. Civ. P. 94 (listing statute of limitations as affirmative
defense that party “shall set forth affirmatively”); Frazier v. Havens, 102 S.W.3d 406, 411 (Tex. App.—
Houston [14th Dist.] 2003, no pet.) (“A party waives the affirmative defense of statute of limitations if it
is not pleaded or tried by consent.”).
5 Carolyn does not contend on appeal that Donald Jr. could not own the property because he was
a minor.
9
is sustained. Because appellants’ remaining issues would afford no greater relief, we do
not address them.6

6 Issue five claims the trial court violated the inception of title rule while issue six argues the trial
court intentionally interfered with a contract in ruling the property was community property. Appellants’
seventh issue argues the trial court abused its discretion “in her obvious presumption” that Donald Jr.
could not own the Galena Park property because he was a minor at the time of the lease agreement. In
their eighth and final issue, appellants assert the trial court awarded a disproportionate amount of the
community property to appellee.

Outcome: We reverse the judgment of the trial court that the Galena Park property was
owned by the community estate and ordering it be sold and the proceeds divided as
community property. We remand this cause to the trial court for consideration of
Carolyn’s other grounds for relief and Donald Jr.’s cross-claim. In all other respects, the judgment of the trial court is affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: