REVERSED, RENDEREI), and REMAN1)E1); opinion issued I)ecember 13, 2012

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No. 05-1 1-01255-CV

IN RE THE ESTATE OF OLEN F. CUNNINGHAM, DECEASED

On Appeal from the County Court at Law No. 2

Kaufman County, Texas

Trial Court Cause No. 1OP-140

OPINION

Before Justices Morris, Francis, and Murphy

Opinion By Justice Francis

In this case offirst impression, Elbert Cunningham appeals the trial court’s denial of his bill

ofreview. in a single issue, Elbert contends his bill ofreview should have been granted because he

alleged and proved substantial error by the trial court. We reverse the trial court’s judgment and

render judgment granting the bill of review.

Olen Cunningham and his first wife, Wanda, had six children but divorced in 1978. Olen

married his second wife, Helena, on March 15, 1985, and they remained married until Olen’s death

on November 28, 2008. During his life, Olen owned three tracts ofland: 5 acres in Kaufman County

he acquired in 1967 from his parents where he built his home, known as 15375 County Road 342,

Wills Point, Texas; 24.2066 acres in Kaufian County he inherited from his parents in 1975

contiguous to the 5 acres noted above; and 54.3 acres in Van Zandt County he also inherited from
his parents. After Olen married Helena. he conveyed to her an undivided one-halfinterest in the 5-

acre tract and an undivided 34-acre tract from the Van Zandt County property. He later conveyed

5.7 10 acres ofthe Van Zandt County property to his daughter, DeAnn.

On September 25. 2008. about two months before Olen died, he and Helena executed a

document entitled ‘Agreement to Establish Right ofSurvivorship to Community Property between

Spouses.” Shortly after Olen’s death, Helena filed an “Application for Adjudication ofAgreement

between Spouses Creating as Right of Survivorship in Community Property.” On September 14.

2010, the trial court signed an order approving the application. The order stated all the “real and

personal property” ofOlen and Helena owned at the time ofhis death was community property and

the September 25,2008 agreement created a right ofsurvivorship in their community property in

favor of Helena.

Four months later. Elbert, one ofOlen’s six children with Wanda, filed a bill ofreview. In

his bill, Elbert alleged Olen’s real property had been acquired by inheritance and was his separate

property. He further alleged the trial court’s order contained substantial error by finding that the

property owned at Olen’s death was community property. He also asserted he had not been served

with notice of Helena’s application or the hearing on the same. Following a bench trial, the trial

court concluded the “law and the facts supported the previousjudgment’ and denied Elbert’s bill of

review. This appeal ensued.

In his single issue, Elbert contends the trial court erred by denying his bill ofreview because

he established substantial error in the September 14,2010 order approving Helena’s application.

Specifically, Elbert challengesthe trial court’s conclusions that the September 25,2008 agreement

(1) complied with the requirements ofsection 4.203 ofthe Texas Family Code (conclusion oflaw

#3) and (2) converted Olen’s separate property into the community property of Olen and Helena
(conclusion of law #8). We agree.

I he probate code provides a bill of review may he tiled in the probate court to revise or

correct an erroneous decision, order, or judgment rendered by that court. TEX. PROB. Cooi ANN.

31 (West 2003). In an appeal from the denial ofa statutory bill of review filed under section 31.

an appellate court must determine whether an interested person timely filed a bill of review and

showed subsuintial error. ifeDonald v. Carroll. 783 S.W.2d 286. 288 (Tex. App.—Dallas 1989. writ

denied). The error need not appear on the face of the record; but if it does not, the party filing the

bill of review must prove the error at trial by a preponderance of the evidence. Id. Nadolney v.

Tao!,, 116 S.W.3d 273, 278 (Tex. App.—l-louston [14th Dist.] 2003, pet. denied). In this case, it is

undisputed that Elbert is an interested person and he timely filed the petition for bill ofreview. Thus.

the on! disputed element is whether Elbert showed substantial error.

The trial court filed findings of fact and conclusions of law in support of its order denying

Elbert’s petition lbr a bill ofreview. We review a trial court’s conclusions oflaw de novo: however.

if the trial court rendered the proper judgment, an erroneous conclusion of law does not require

reversal. B1IJC So/lware Belgium, 1V J’ v. Marciiand. 83 S.W.3d 789. 794 (Tex. 2002).

The family code provides “spouses may agree that all or part ofthe separate property owned

by either or both spouses is converted to community prOperty.” TEx. FAM. CoDE ANN. § 4.202

(West 2006). An agreement to convert the separate property of one or both spouses to community

property must be in writing, be signed by the spouses. identify the property being converted, and

“specify that the property is being converted to the spouses’ community property.” Id. § 4.203(a).

A mere transfer of a spouse’s separate property to the name of the other spouse or to the name of

both spouses is insufficient to convert separate property to community property. Id. § 4.203(b). An

agreement to convert separate property to community property is not enforceable if the spouse
against \\hom enforcement is sought did not recei e a lair and reasonable disclosure of the legal

efTect of converting separate property to community property, Id 4.205( a)(2).

Ihe parties do not cite us to any cases addressing section 4.203. and our research has kund

none. In construing a statute, our primary objective is to determine and give effect to legislative

intent as expressed in the language ofthe statute. (‘itv o/RoLkl4 all v Hughes. 246 S.W.3d 62 I. 625

(lex. 2008). We use the definitions prescribed by the legislature and consider any technical or

particular meaning the words may have acquired. Id. Otherwise we construe the statute’s words

according to their plain and common meaning. TE:x. Gov ‘i’ CODE ANN. § 3 11 .011(a) (West 2005);

see Tooke v. City of Mexia. 197 S.W.3d 325. 356 (Tex. 2006).

The document in this case is a fIll-in-the-blank form, entitled “Agreement to Establish Right

of Survivorship to Community Property between Spouses.” It recites that the Texas Constitution

was amended in 1 987 to allow spouses to agree in writing that all or part of their community

property be passed on the death of one spouse to the surviving spouse and states ‘[t]his form is

intended for that purpose.” The record shows the form was completed by F-lelena’s son, Jeff. and

Olen’s brother. Martin. and signed by Olen and Helena. Under the first section. entitled ‘Statement

of Facts,” the form states:

Community Property -The parties agree that the following is held as

their community property:

a. I-Tome and other real property locate[di at:

15375 County Road 342 Wills Point TX including

all inheritance property

The second section. entitled ‘Title on Death of Spouse,” states:

It is agreed that title to all community property of Husband and Wife,

specifically identified herein or held as community property shall pass

to the surviving SOUSC upon the death of the first of us to die,

without the necessity of probate court proceedings or other legal
action other than the recording ofthis Agreement in the records of the

(‘ount\ Clerk of County.

(Italics denote handvri Iten portions.)

After reviewing the record and considering the plain language of the statute, we conclude this

agreement fails to comply with sectionS 4.203 and 4.205 of the family code. Specifically, the

agreement does not state the spouses agree to convert all or a part of one spouse’s separate property

into community property. i\ssuming Olen intended to convert all three tracts of his real property

from separate to community. the agreement identifies only the 5-acre tract known as 1 5375 County

Road 342. Wills Point. and Ihils to identify the remaining two tracts. Finally, there is nothing in the

record to show Olen or Helena received a “fair and reasonable disclosure of the legal effect of

converting separate property to community property.” in fact, 1—lelena testified they did not discuss

the effect of converting Olen’s separate property to community property, nor did they have any

documentation explaining the same. Because the agreement signed by Olen and Helena did not

comply with the requirements of sections 4.203 and 4.205, it did not convert Olen’s separate

property into community property. The trial court erred in concluding to the contrary. We sustain

Elbert’s sole issue.

We reverse the trial court’s July 6, 2011 judgment denying Elbert’s bill of review, render

judgment that the bill of review be granted, and remand this case for further proceedings.

11 1255F.P05
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JUDGMENT

IN JilL ESTATE OF OLEN F. Appeal from the County Court at Law No. 2

CUNNINGHAM, DECEASED of Kaufimin County, Texas. (Tr.Ct.No. lOP140).

No. 05-1 1-01255-CV Opinion delivered by Justice Francis.

Justices Morris and Murphy participating.

In accordance with this Court’s opinion ol’ this date, we REVERSE the trial court’s

judgment, RENDERjudgment granting the bill of review, and REMAND this case for further

proceedings. We ORDER Elbert Cunningham recover his costs of this appeal from Helena

Cunningham.

Judgment entered December 13. 2012.

JUSEh4