### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-17-00138- CV

Shaw n Hall Lecuona, App ellant

v.

Mark R. Lec uona, Ap pellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 250 TH JUDICI AL DISTRICT NO. D-1 -F M- 14- 0023 42, H ONO RAB LE K ARIN CRUMP , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Shawn Hall L ecuona appea ls from a final divorce decr ee that ended her marria g e to

Mark R. L ecuona . We will affirm the de cre e.

Mark was the petitioner below, and the sole g round for divorce on which he relied, 1

and which the district court subsequently found, was the no-fa ult “insupportability ” g round. Shawn 2
opposed t he divorce on relig ious g rounds and urg ed that Mark’ s suit, and particular ly the no-fa ult
“insupportability ” standard on which he relied, unconstitutionally infring ed her protec ted interests

We refe r to the par

ties by their first name s beca

use they share a surna me. 1

See Tex. Fam. Code § 6.001 (“O n the petition of either party to a marria g e, the court may 2 g rant a divorce without reg ard to fault if the marria g e has become insupportable beca use of discord

or conflict of persona lities that destroy s the leg itimate ends of the marital rela tionship and preve nts any rea sonable expectation of rec onciliation.”). The parties had been marrie d since 1994, but Mark alleg ed, without dispute, that the couple had been separated for approximately six y ear s befor e he filed his petition in 2014 and had re mained so during the proc eeding s below.in what she viewed as an immutable “blood covena nt” among the couple and the Almighty

. Shawn 3
bring s a version of this arg ument forwa rd o n appea l as her first issue and chief g round for

reve rsal—she insists that the United States Supreme Court’s decision Oberge f ell v. Hodges , the

4

decision striking down state prohibitions ag ainst same-se x marria g e as violative of a “rig ht to marry
[t hat] is a fundame ntal rig ht inhere nt in the liberty of the person” and protec ted by the Due Process

and Equal Protection Clauses of the fede ral constitution, translates into a constitutional restric tion 5

ag ainst Mark’ s unilatera l invocation of Texas’s no-fa ult divorce law to end a marria g e that she, for
profe ssed relig ious rea sons, desires to continue. We cannot ag ree that Oberge fell , whose analy sis 6

is rooted in the Supreme Court’s view of persona l liberty , either direc tly or by implication 7

rec og nizes what would eff ectively be an aff

irmative constitutional rig ht of one spouse to compel an unwilling other spouse to rema in marrie d, in derog ation of both the other spouse’s liberty and state

Shawn prese nted her most elabor ate articula tion of this theory throug h a counter claim for 3 decla ratory relief

. The district court deni ed t h at re l i ef by a pretria l written order

. L ater at trial, Shawn raised rel igion- based objections or arg uments that appea red to allude to the earlier claims.

Shawn’s noti ce of appea l expressly challeng es bot h the final decr ee and t he order deny ing her decla ratory relief

, which beca

me final and appea lable when the divorce decr ee was signe d. See, e.g. , Lehmann v. Har-Con Corp. , 39 S.W .3d 191, 195 (Tex. 2001) (“A judgme nt is final for purposes of appea l if it dispose s o f al l p ending parties and claims in the rec ord, except as nece ssary to
car ry out the decr ee.” (citations omitted)). For this rea son, we deny what is substantively a motion by Mark to dismiss this portion of Shawn’s appea l based on her asser t ed fa i l u re to timely appea l the ruling

. 135 S. Ct . 2584 (2015). 4

Id . at 2604. 5

Mark disputes whether Shawn prese rved the arg uments she now raises on appea l, but the 6 issue is sufficiently

close that we will affor d her the benef it of any such doubts.

See id . at 2597–605. 7

2divorce laws. I n the very least, Shawn’s theory repr esen t s a s ignif icant and novel expansion of 8

O b e r ge fe ll that is not proper ly underta ken by this intermediate state appellate court. We acc ording ly 9

overr ule Shawn’s f

irst issue.

As ide from her arg uments derive d from Oberge fell , Shawn bring s two additio n al
issues, eac h of which challeng e the suff i ci en cy o f t he evidenc e supporting the decr ee. I n her

second issue, Shawn insists that Mark failed to prove up the g round of insupportability

. The rec ord,
including Mark’s te s t i m o ny , belies t hat contention. Shawn’s assertions to the contrary ultimately

i m p l icate instead the district court’s judgme nts as to the cre dibilit y and weig ht of the ev i d en ce

prese nted. We overrule Shawn’s sec ond issue.

1 0

Shawn’s third issue is predic ated on her first two, urg ing that the district court lacke d
authority to divide the community estate beca use it had no authority to g rant the divorce in the first
place

. This contention fails for the prec eding rea sons. Alterna tively , Shawn asser

ts that the district

Cf. Pidgeon v. Turner , 538 S.W .3d 73, 86–87 (Tex. 2017) (obser ving, in context of holding 8 that Oberge

fell “did not addre ss and resolv e” t h e i s sue of “whe ther and the extent to which the Constit ution require s states or cities to provide tax-funded benef it s to same-se x couples” or in v a li d a te T e xa s “ D e f

e n s e o f M a

r r ia g e” enac tments, “‘[w]hatever ramifica tions Oberge

fel l ma y h a v e for sexual re l ations bey ond the approva l of same-se x marria g e are unstated at best

. . .’” (quoting Coker v. W

hittingt on , 858 F.3d 3 0 4 , 307 (5th Cir. 2017), and citing other authorities rec og nizi ng Oberge fell ’s limited scope))

. See Ex parte Morales , 212 S.W .3d 483, 488 (Tex. App.—Austin 20 0 6 , pet. ref ’d) 9 (o b s er v ing, in context of novel constitutional challeng e to Penal Code Section 21.12, that “as an intermediate state appellate court, we must

. . . defe r to the authoritative pronounce ments of highe r courts that curr ently define the s cope of the consti tutional principl es we apply here ” (citing Petco Animal Supplies, Inc. v . Schuster , 144 S.W .3d 554, 564–65 (Tex. App.—Austin 2004, no pet.))).

See City of

Keller v. W

ilson , 168 S.W .3d 802, 822, 827 (Tex. 2005) (discussing principle 1 0 that we view the evidenc e in the light most fa vorable to the decision, cr editing f avora ble evidenc e if a rea sonable fac t-finder could, and disreg arding contra ry evidenc e unless a rea sonable fac t-finder could not).

3court improperly char acte rized cer tain of her retire ment acc ounts as community proper ty despite her
having established their separ ate char acte r throug h clea r and convincing evidenc e. We revie w the 1 1

district c o u

r t’ s d iv is io n o f p r o p e r

ty u nder an overa

rching abuse- of-discr etion standard. To establish 1 2

an abuse of discretion here , Shawn must demonstrate that she prese nted conclusive evidenc e that the

acc ounts wer e separ ate proper ty and that the mischara cter izat ion materia lly impacted the district

court’s division of the community es t at e. “Evidenc e is conclusive only if rea sonable people 1 3

could not differ in their conclusi o n s

. ” The evidenc e fell short of conclusively establishing the 1 4

separ ate- proper

ty status of t he retirement accounts—it in cl uded a proper ty inventory from S hawn

See Pearson v. Fillingi m , 332 S.W .3d 361, 363 (Tex. 2011) (per curia m) (“Par ties 1 1 claiming cer

tain proper

ty as their separ ate proper ty have the burden of rebutting the presumption of community proper

ty

. To do so, they must trac e and clea rly identify the proper

ty in question as separ ate by clea

r and convincing evidenc e.” (citing McKinley v. McKinley , 496 S.W .2d 5 4 0 , 543 (Tex. 1973); Tex. F am. Code § 3.003(b) (“The deg ree of proof nece ssary to establish that proper ty is separa te prope rty

is clear and convinc ing e vidence .”)) ).
See, e.g. , Roberts v. Roberts , 531 S.W .3d 224, 232 (Tex. App.—San Antonio 2017, pet. 1 2 denied) (citing Murff v. Murff , 615 S.W .2d 696, 698 (Tex. 1981)).

See Shields Ltd. P’ship v. Bradberry , 526 S.W .3d 471, 480 (T ex. 2017) (whe re party 1 3 attacks leg al sufficie ncy of adver se finding (or failure to find) on issue on which it bear s the burden of proof, judgme nt must be sustained unless the rec ord conclusively establishes all v i t al fa ct s in support of the issue); see also Matter of Marriage of

Ramsey & Echols , 487 S.W .3d 762, 766 (Tex. App.—Waco 2016, pet. denied) (“I t is [t he] appella n t ’s b u rd en to prove that any disparity in the divisio n was cause d by the mischara cter ization of proper ty and that it was of such substantial proportions that it constituted an abuse of the trial cour

t’s discretion.”)

. City of Keller , 168 S.W .3d at 816. 1 4

4herse lf in which she indicated that the acc ounts in question wer e community assets. We overr ule 1 5

Shawn’s third issue.

CONCLUSION

We affir m the district court’s fina l divorce de cre e.

_________________________________________ Bob Pembe rton, J ustice

Be fore Chief J ustice Rose, Jus tices Pemberton a nd Goodwin

Affir med
Filed: June 15, 2018

See, e.g. , Barras v. Barras , 396 S.W .3d 154, 164 (Tex. App.—Houston [14t h Dist.] 2013, 1 5 pet. denied) (“[T]he clea r and convincing standard is not s atisfied by testimony that proper ty p o s s es s ed at the time the marria g e is dissolved is separ ate proper ty when such testimony i s contra dicted or unsupported by documentar y evidence trac ing the asser ted separ ate nature of the p roper ty .”); Grave

s v. Tomlinson , 329 S.W .3d 128, 139 (Tex. App.—Houston [14t h Dist.] 2010, pet. denied) (same)

. 5