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


### •E o

In The 

### uitrt i.if 

## \ppiah Fift1! 1t6trtct ut Wrxai at 

## Oafta, 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 Inthis case offirst 

### impression, Elbert Cunningham appeals the trial court’s denial ofhis 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’sjudgment and renderjudgment granting the bill ofreview. 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
onNovember 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. AfterOlen

### married Helena. he conveyedto heran undivided one-halfinterest inthe 5-
acre tract and an undivided 34-acre tract from the Van Zandt County property. He laterconveyed 5.7 10 acres ofthe Van ZandtCounty property to his daughter, DeAnn. On September 25. 2008. about two months before Olen died, he and Helena executed a documententitled ‘Agreementto 

### Establish RightofSurvivorshipto CommunityPropertybetween Spouses.” 

### ShortlyafterOlen’s death, Helenafiled an“Application forAdjudicationofAgreement between Spouses Creating as Right ofSurvivorship in Community Property.” On September 14. 2010, the trial court signed an order approving the application. The order stated all the “real and personalproperty”ofOlenand Helenaowned atthetime of

### his deathwas communitypropertyand the September 25,2008 agreement created a right ofsurvivorship in their community property in 

### favorofHelena. Fourmonths later. Elbert, one ofOlen’s six children 

### with Wanda, filed abill ofreview. In 

### his bill, Elbert alleged Olen’s real propertyhad been acquiredby 

### inheritance andwas his separate property. He 

### further allegedthe trial court’s order contained substantial 

### errorby finding that the 

### property ownedatOlen’s death was 

### community property. He also assertedhehadnot

### been served with notice ofHelena’s application orthe hearing on the same. Following a

### bench trial, the trial court

### concludedthe“lawandthefacts supportedthe

### previousjudgment’ anddeniedElbert’s

### bill of 

### review. This appeal ensued. 

### Inhis single

### issue, Elbertcontends thetrialcourterredbydenyinghisbill of reviewbecause he established substantial error in the September 14,2010 

### order approving Helena’s application. Specifically, Elbertchallengesthe trial 

### court’s conclusions thatthe 

### September25,2008 

### agreement (1) complied with therequirements of

### section 4.203 ofthe 

### Texas Family Code (conclusionoflaw #3) and (2) converted Olen’s separate 

### property into the 

### community property ofOlen and Helena(conclusion of law #8). We agree. I he probate code provides a bill ofreview 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 ofreview filed under section 31.
an appellate court must determine whether an interested person timely filed a bill ofreview and showed subsuintial error. ifeDonaldv. Carroll. 783 S.W.2d 286. 288 (Tex. App.—Dallas 1989. writ denied). The error need not appear on the face ofthe record; but ifit does not, the party filing the bill ofreview must prove the error at trial by a preponderance ofthe 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 interestedperson 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 offact and conclusions oflaw in support ofits order denying Elbert’s petition lbra bill ofreview. We review a trial court’s conclusions oflaw de novo: however. ifthe trial court rendered the properjudgment, an erroneous conclusion of law does not require reversal. B 1 IJC 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 ofone 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 ofa spouse’s separate property to the name ofthe 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 spouseagainst \\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 ofMexia. 197 S.W.3d 325. 356 (Tex. 2006). The document in this case is a fIll-in-the-blank form, entitled “Agreementto 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 ofone 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 ofFacts,” 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 ofSpouse,” states: It is agreed that title to all community property ofHusband and Wife, specifically identifiedherein orheld as communityproperty shallpass to the surviving SOUSC upon the death of the first of us to die, without the necessity of probate court proceedings or other legalaction otherthan the recording ofthis Agreement in the records of the (‘ount\ Clerk of County. (Italics denote handvriIten portions.) Afterreviewing the record and considering the plain language ofthe 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 ofreview, render judgment that the bill ofreview be granted, and remand this case for further proceedings.

11 1255F.P05

# cy (Ltittrt til _TI31.t1 1iftt! 

### Jh;Lrict tif rxui tL 

### Ia{1t JUDGMENT IN JilL ESTATE OF OLEN F. Appeal from the County Court at Law No. 2 CUNNINGHAM, DECEASED ofKaufimin 

### 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 ofreview, and REMAND this case for further proceedings. We 

### ORDER Elbert Cunningham recover his costs ofthis appeal from Helena Cunningham. Judgment entered December 13. 2012.

JUSEh4