No. 14 -14- 00208
- CV IN THE FOURTEENTH COURT OF APPEALS at Houston, Texas

–––––––––––––––––––––––––––––––––––– LETICIA B. LOYA, Appellant

v. MIGUEL ANGEL LOYA, Appellee

–––––––––––––––––––––––––––––––––––– Appealed from Cause No. 2012

- 32502 in the 25 7th Fam ily District Court of Harris County, Texas

________________________________________________________________ APPELLEE’S SUR
- REPLY BRIEF

________________________________________________________________ Randall B. Wilhite State Bar No. 21476400 Grady Reiff S tate Bar No. 24074941 F ULLENWEIDER W ILHITE , P.C. 4265 San Felipe, Ste. 1400 Houston, Texas 77027 713.624.4100 713.624.4141 Facsimile ATTORNEYS FOR APPELLEE, MIGUEL ANGEL LOYA

ORAL ARGUMENT REQUES TED ACCEPTED 14-14-00208-CV FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS 2/9/2015 11:27:09 AM CHRISTOPHER PRINE

CLERKii TABLE OF CONTENTS P age TABLE OF CONTENTS

................................ ................................ ........................ i i
INDEX OF AUTHORITIES

................................ ................................ .................. i ii
SUR

- REPLY TO APPELLANT’S CONTENTION REGARDING Sprague v. Sprague , 363 S.W.3d 788 (Tex. App.

— Houston [14th Dist.] 2012, pet. denied)

................................ ................................ ................................ ......... 1
PRAYER

................................ ................................ ................................ ................. 5
CERTIFICATE OF COMPLIANCE

................................ ................................ ...... 6
CERTIFICATE OF SERVICE

................................ ................................ ............... 6iii INDEX OF AUTHORITIES
Cases Page Arnold v. Le onard , 114 Tex. 535, 273 S.W. 799 (1925)

................................ ........... 3
Butler v. Butler , 9 75 S.W.2d 765 (Tex. App.

— Corpus Christi 1998, no pet.)

................................ ................................ ................................ .................. 4 Cearley v. Cearley , 544 S.W.2d 661 (Tex. 1976)

................................ ..................... 3
Frommer v. Frommer , 981 S.W.2d 811 (Tex. App.

— Houston [1st Dist.] 1998, pet. dism’d)

................................ ................................ ....................... 5
Gordo n v. Gordon , No. 14

- 10

- 01031

- CV (Tex. App.

— Houston [14th Dist.] Nov. 29, 2011, no pet.) (memo op.)

................................ ........................... 5
Loiaza v. Loiaza , 130 S.W.3d 894 (Tex. App.

— Fort Worth 2004, no pet.)

................................ ................................ ................................ ....................... 4 Murff v. Murff , 615 S.W.2d 696 (Tex. 1981)

................................ ............................. 5
Roach v. Roach , 672 S.W.2d 524 (Tex. App.

— Amarillo 1984, no writ)

................................ ................................ ................................ ....................... 3 Simpson v. Simpson , 7 27 S.W.2d 662 (Tex. App.

— Dallas 1987, no writ)

................................ ................................ ................................ ....................... 5
Smith v. Smith , 836 S.W.2d 688 (Tex. App.

— Houston [1st Dist.] 1992, no writ)

................................ ................................ ................................ ........ 4 Sprague v. Sprague , 363 S.W. 3 d 788 (Tex. App.

— Houston [14th Dist.] 2012 , pet. denie d)

................................ ................................ ................ 1

- 2, 4
Constitution
Tex. Const. art. XVI, §15

................................ ................................ ........................... 3iv Statutes Tex. Fam. Code § 3.001

................................ ................................ .............................. 3 Tex. Fam. Code § 3.00 2

................................ ................................ .......................... 3, 4

Other Source s Black’s Law Dictionary (9th ed. 2009)

................................ ................................ ..... 2
Merriam

- Webster.com , 201 5 , http://www.merriam

- webster.com ( 7 Feb . 201 5 )

................................ ................................ ................................ .............. 3Page 1 of 6 SUR
- REPLY TO APPELLANT’S CONTENTI ONS REGARDING Sp rague v. Sprague , 363 S.W.3d 788 (Tex. App.

— Houston [14th Dist.] 2012, pet. denied)
. Leticia’s claim in her Reply Brief that Sprague v. Sprague , 363 S.W.3d 788, 801 (Tex. App.

– Houston [14th Dist.] 2012, pet. denied), is “incompatible with Miguel’s contra ct right theory” is completely misplaced. (Reply Brief, p. 10 ). On the contrary, the Sprague case fully supports Miguel’s legal theories set forth in issues one and two of his Appellee’s Brief (Amended) . The relevant time line in Sprague is as follows:
1. February 2 1, 1985 ( before the Spragues got married ) : Mr. Sprague’s employer sent him a letter offering him “the option to defer payment of additional compensation if any should be awarded that year in connection with [the employer’s] planned merger.” Id . at 801. Mr

. Sprague exercised this option and
“elected to defer” t his additional compensation. Id

. at 801

- 802.
2. July 6, 1985 : Robert and Deborah Sprague were married. Id . at 791.
3. August 20, 1985 ( during the Sprague’s marriage ) : In accordance with Mr. Sprague ’s election to defer the bonus payment(s) , Mr. Sprague’s CEO sent him a letter “notifying [him] that he . . . had been awarded bonus compensation.” Id . at 801. This letter further stated, “This bonus will express our thanks to you in a tangible way for your c ontribution to the Company especially during the uncertainties of the past 18 months.” Id . at 801

- 802. Mr. Sprague’sPage 2 of 6 employer further stated that “the bonus with which [he] was credited in August 1985 was intended to compensate him for work done in the pre ceding eighteen months”, of which sixteen and a half predated his marriage. Id . at 802.
4. August 21, 1985 : Mr. Sprague received one

- half of his deferred
bonus. Id

. 5. January 1986, 1987 : Mr. Sprague twice received an additional one

quarter of his deferred bonus. Id

. In light of the pre

- marital bonus granted to Mr. Sprague, and which he elected to defer, this Court held that, based on these facts, a reasonable jury could have found that a portion of Mr. Sprague ’s deferred bonus was his separate
property and , therefore , remanded the case to the trial court for such a
determination

. Id

. Both the Texas Constitution and the Texas Family Code provide that a person has a separate

- property interest in all property that the person “owned or
claimed” before the mar riage 1 o r acquired during the marriage by gift, devise or

1 Black’s Law Diction ary defines “claim” as, inter alia , “[a]n interest or remedy recognized at law; the means by which a person can obtain a privilege, possession, or enjoyment of a right or thing.” Black’s Law Dictionary (9th ed. 2009).Page 3 of 6 descent. 2 Tex. Const. art. XVI, §15; Tex. Fam. Code § 3.001. By statute (and by implied exclusion ( see Arnold v. Leonard , 114 Tex. 535, 273 S.W. 799 (1925) ) , community property consists of all propert y, other than separate property, acquired by either spouse dur ing marriage. Tex. Fam. Code § 3.002

. Mr. Sprague’s exercise of his option to defer the payment of his bonus for work done prior to the marriage into subsequent years gave him his legal claim to
the bonus , whic h he brought into the marriage. 3 Sprague , like the litany of other cases Miguel cites in his Appellee’s Brief , is, therefore, completely compatible with Miguel’s “property right theory,” which has, as its underlying premise, the principle t hat a c ourt may only deal with property interest s and not expectancies.
T o have a community property component, there must be some recognized property right that was acquired during the marriage ( see, e.g., Cearley v. Cearley , 544 S.W.2d 661, 662 (Tex. 19 76) ; see also Tex. Fam. Code §3.002 )) and, in order for a property interest to have a separate property component, there must be some

2 Merriam

- Webster’s Dictionary define s “acquire” as “to come into possession or control of often by unspecified means.” Merriam

- Webster.com (7 Feb. 2015).

3 See, e.g., Roach v. Roach , 672 S.W.2d 524 (Tex. App.

— Amarillo 1984, no writ) (unmarried man entered into a n option agreement pertaining to land, but the deed was placed into escrow and delivered after marriage; inc eption of title occurred at time of original option agreement, not when the deed was removed from esc row and delivered to h usband, making the land his separate property).Page 4 of 6 recognized property right that had its “inception of title” at a time other than during the marriage ( see, e.g., Sprague, id. and Butler v. Butler , 9 75 S.W.2d 765, 768 (Tex. App.

— Corpus Christi 1998, no pet.) (husband’ s post

- divorce earnings from psychiatric practice could not be charact erized as community property ) ). On the way out of his marriage, Miguel had no t acquired a ny claim of right to his bonus, and, therefore, he had no property right to be divided , which Tex. Fam. Code § 3.002 expressly requires. A divorce court cannot divide something that is not a property right acquired during marriage. Id. ; Loiaza v. Loiaza , 13 0 S.W.3d 894 (Tex. App.

— Fort Worth 2004, no pet.) (“ A spouse is only entitled to a division of property that the community owns at the time of the divorce ” (emphasis added) (citing Smith v. Smith , 836 S.W.2d 688, 692 (Tex. App.

— Houston [1st Dist.] 1992, no writ) ). In summary, on the way into his marriage, Mr. Sprague had a claim of right

to his bonus that he “elected to defer.” Bringing this Constitutionally supported
claim into the marriage provided Mr. Sprague w ith a separate property right: t he bonus pla n was in place , and a n option for payment had been offered and accepted. Because Miguel did not acquire any property right to the 2011 Possible B onus until it was declared and granted by his employer well after the parties were divorced,Page 5 of 6 no community prope rty component ever existed in s uch bonus as a matter of law. 4 If Miguel had carried with him (post

- divorce) any legal right to the bonus (like
what happens with retirement plans, stock option plans and other such legal entitlements that are ratably earned over time and paid into the future according to contractual promises and compensation agreements), Sprague would stand for the position that such “right” would have, at least in part, accrued during the marriage,
and would be sub ject to division upon divor ce. Miguel had no such right in the
2011 Possible Bonus

. PRAYER The summary judgment should be affirmed

. Appellee respectfully requests this Court grant all other relief to which he may be entitled

.

4 Tha t i s not to say, however, that a trial court may not take the potential for a bonus to be paid into the future as a factor it could use in making a division of the estate of the parties. See Murff v. Murff , 615 S.W.2d 696, 99 (Tex. 1981); Frommer v. Frommer , 981 S.W.2d 811, 814 (Tex. App.

— Houston [1st Dist.] 1998, pet. dism’d); Simpson v. Simpson , 7 27 S.W.2d 662, 664 (Tex. App.

— Dallas 1987, no writ); see also, e.g., Gordon v. Gordon , No. 14

- 10

- 01031

- CV (Tex. App.

— Houston [14th Dist.] Nov. 29, 2011, no pet.) (memo op. ) (court considered disparity in income between parties and fact that wife had been out of workforce for 20 years).Page 6 of 6 Respectfully Submitted,
F ULLENWEIDER W ILHITE , P.C. 4265 San Felipe, Ste. 1400 Houston, Texas 77027 713.624.4100 713.624.4141 Facsimile By: /s/ Randall B. Wilhite

____________ Randall B. Wilhite State Bar No. 21476400 Grady Reiff State Bar No. 24074941 ATTORNEYS FOR APPELL EE, MIGUEL ANGEL LOYA CERTIFICATE OF CO MPLIANCE Under Tex. R. App. P. 9.4(i)(3) as amended effective December 1, 2012, I certify there are 1 ,16 7 words within this document exclusive of those contained in the c over page , table of contents, index of authorities , signatures, certificate of compliance, and certificate of service, as tabulated by the computer program used with preparing this document. By: /s/ Randall B. Wilhite

____________ Randall B. Wilhite CERTIFICATE OF SERVICE I certify a true copy of the foregoing Appellee’s Sur

- Re ply Brief was served on each party ’ s lead counsel under the Texas Rules of Appellate Procedure as follows: Date of service: February 9, 2015 Method of service: Via efile service Lead Attorney: Richard R. Orsi n g er P arty : Leticia B. Loya By: /s/ Randall B. Wilhite

____________ Randall B. Wilhite