### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03

- 21

- 00353

- CV

Olavie Hall , Appellant

v. Donna Hall Keith, as Executor of the Estate of Donald Alfred Hall, Deceased , Appellee

FROM THE PROBATE COURT NO. 1 OF TRAVIS COUNTY NO. C-1- PB -06-085239, THE HONORABLE GUY S. HERMAN, JUDGE PRESIDING

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

Olavie Hall appeals the Order for the Sale of Estate Property I n capable of
Division

. Appellant contends that the trial court erred by fa iling to deter mine whether the

p roperties w ere Appellant ’ s sole-management community property. We will affirm the order. In a previous appeal, t h is Court affirmed a declaratory judgment construing
Decedent Donald Alfred Hall ’ s will in which the trial court concluded that Decedent beq u eathed
his undivided com munity inter est in twenty

- two parcels of real property to persons other
than Ap pellant , his surviving s pouse. See Hall v. Estate of Hall , No. 03 -19-00943- CV,
2021 WL 5220481, at *1 (Tex. App.

— Austin Nov. 10, 2021, no pet. ) (mem. o p.). This appea l challenges t he trial court ’ s order signed April 29, 2021 , in which that court found that several
Estate real properti es were not capable of a fair and equal partition. The court ordered the2 p ropert ies sold and gave Exec utor Donna Hall Ke i th auth ority to sell t h e m

— including the

one - half community interest belong ing to Appellant.
T he Texas Family Code and the Estates Code guid e characterization of property

ow ned by married people and distribution of that property upon a s pouse ’ s death. Te xas Estates Code § 4 5 3.009 provides as follows : (a) A qualified personal representative of a deceased spouse ’ s estate may administer: (1) the separate property of the deceased spouse; (2) the community property that was by law unde r the management of the deceased spouse during the marria ge; and (3) the community property that was by law under the joint control of the spouses during the marriage. (b) The surviving spouse, as surviving partner of the marital partnership, is entitl ed to: (1) ret ain possession and contr ol of the communi ty property that was legally under the sole management of the surviving spouse during the marriage; and (2) exercise over that property any power this chapter authorizes the surviving spouse to exe rcise if there i s n o administration pend ing on the deceas ed spouse ’ s estate. A spouse ’ s s eparate property includes property owned or claimed by the spouse before marriage ; property acquired by the spouse during marriage by gift, devise, or descent ; and recovery for

perso na l injur ies sustained by the spo use during m arria ge , except for recovery for loss of earning capacity duri ng marriage. Tex. Fam. Code § 3.001. Community proper ty is all other property acqui red by either spouse duri ng the marriage. Id. § 3.002. Pr opert y p ossessed by either spouse
when the marriage end s is presumed to be community property unless prove n otherwise by clear
and convin cing evidence. Id. § 3.003. This presumption applies not only to dis solution by3 divorce, but also by death. Irvin v. Park er , 139 S.W.3d 703, 708 (Tex. App

. — Fort W orth 2004 , no pet. ) ; Smith v. Lanier , 998 S.W.2d 324, 331 (Tex. App.

— Austin 1999, pet. denied)

. C ommunity property is further divided between sole

- management and joint

- management community property as follo ws :

( a) During marriage, each spous e has the sole ma nagement, control, and disposition of the community property that the spouse would have owned if single, including: (1) personal earnings; (2) r evenue from separate property; (3) recoveries for p erson al in juries; and (4) the incre ase and mutations of, and the revenue from, all property subject to the spouse ’ s sole management, control, and disposition. (b) If community property subject to th e sole management, control, and disposition of one sp ouse is mi xed or combined with communi ty property subje ct to the sole management, control, and disposition of the other spouse, then the mixed or combined community property is subject to the joint manag ement, control, and disposition of the spouses, unles s the s pou ses provide otherwise by pow er of attorney in writing or other agreement. (c) Except as provided by Subsection (a), community prope rty is subject to the joint management, control, and disposition of the spouses unless the spouses provide otherw ise b y pow er of attorney in writing or other agreement.

Tex. Fam. Code § 3.102. Section 3.102 creates a re buttable presumption that community

pr operty is subject to joint management, control , and di sposition. Miller v. Cadle Co. , No. 06

- 08

- 00130

- CV, 2009 WL 63515 8 , at *3 ( Tex. App.

— Texarkana Mar. 12, 20 09, no pet.) (mem. op.) ; see also Ex parte Kienlen , No. 02

- 22

- 00154

- CR, 2022 WL 15053326, at *4 (Tex. App.

— Fort Worth Oct. 27, 2022, no pet.) (mem. op.) ( unless exception applies, “ community property is subject to t h e joint management, control, a nd disposition of the spouses ” ).4 Appellant cont ends that the trial court erred by author izing Executor to sell Ap pellant ’ s community

- property interest in propert ie s owned jointly by A ppellant and the Estate
without det ermin i ng if any were Appellant ’ s sole

- m anagement comm unity property. 1 Appellant
does not contend on appeal that the properties are her separate propert y and expressly does not contend that the p roperties are capable of partition in kind.
In concluding that t he Executor had the power to sell the proper ties in the order , including Appella nt ’ s one - half community interest, the trial court necessarily implicitly found

t hat the community property was not unde r Appellant ’ s sole manage ment during the marriage

a nd , t h u s , that Appellant wa s not entitled to retain possession and control of it

. See Tex. Est

. Code § 453 .009(b )(1) ( surviving partner of the marital partnership entitled to retain possession
and control of survivor ’ s sole

- manageme nt community property).
T he c haracterization of marital property is a co nclusion of law

. Ke lly v. Kelly , 634 S.W.3d 335, 352 (Tex. App.

— Houston [ 1st Dist. ] 2021 , no pet. )

. We re view whether that
conclusion is correct based on the fact s of the case. Stavinoha v. Stavinoha , 12 6 S. W .3d 604, 608 (Tex. A pp.

— Hou ston [14th Dist.] 2004, no pet.)

. We wil l uphold a trial court ’ s conclusions of law if the judgment can be sustained on any legal theory supported by the evidence. Id.
Whether a party has overcome a presumption regard ing the c haracterization of marital property

as commu nity property is a quest io n of fact. Smith , 998 S.W.2d at 331 ; see also Tex. Fam. Code § 3.003(b) (requiring clear and convincing evidence to overcome presumption that marital

pr operty is community prop erty ). C le a r and convincing evidenc e is proof that p r oduces a

1 Executor contends tha t Appellant waived this appellate issue by not ex pressly pleading or t rying by consent at the trial cour t her claim tha t at least two of the l iste d pr ope r ties were her sole

- management community property. In the interest of justice , we will assume without decid ing that she did not waive thi s appellate claim and a ddress its merits

.5 factfinder ’ s firm b e lief or convict ion as to the truth of the allegations to be established

. Tex. Fam. Code § 101.007. This standard is generally not met when tes timony about the
separate nat ure of f u nds is not supported by doc umentary evidence tr acing the asserted s eparate
nature of funds. Zamarripa v. Zamarripa , No. 14

- 08

- 00083

- CV, 2009 WL 1875580, at *3 (Tex. App.

— Houston [1 4th Dist.] June 30, 2009 , pet. denied ) (mem. op.)

. The trial cou rt d id n o t err because Appellant pre sented no evidenc e to overcome the presum ption that the property ow ned by Decedent and App ellant when th eir marriage was
dissolved by Decedent ’ s death was joint

- management community pr operty. A ppellant does not dispute that the properties ordered sold wer e owned by Appell ant and Decedent at his death. The properties are thus presumed by law to be community pro perty that was subject to joint
management. S ee Tex. Fam. Code §§ 3.003, .102 (c) . Before testim ony began, Appe llan t an d
her counsel discussed with the trial c ourt the co ntention that a proper ty was her separate
property ; that discussion was not sworn testimony, and Appellant does no t urge th e separate

- p roperty theory on appeal. Further , ther e is no documentary ev iden ce t r acing the asserted separat e nature of any f unds used t o purchase the property . T hus , Appellant did not provide clear and convincing evidence to overcome the presumption that the proper ties are Appellant ’ s joint

- management c ommunity property

. See Zam arri p a , 2009 WL 1875580, at *3

. T he trial court did not err by concluding that the propert ies in the order were not under Appellant ’ s sole management during the marriage.6 Appellant has shown no error in t he trial court ’ s order. We affirm the t ri al cou rt ’ s Order for the Sale of Estate Property I n capable of Division

.

__________________________________________ D arlene Byrne , Chief Justice
Be fore Chi e f Justice Byrne, Justice s Kelly and Smith
Af firmed
Filed: February 28, 2023