“Clear and Convincing Evidence” is a Tough Standard to Prove Separate Property

The El Paso Court of Appeals affirmed a trial court’s ruling that debt incurred to purchase a mobile home was incurred during marriage and therefore that the husband could be ordered to pay it upon divorce. Richardson v. Richardson, No. 08-12-00076-CV (Tex. App. – El Paso Feb. 5, 2014).

These were the facts supporting the husband’s claim that the debt was incurred before the date of marriage, which was November 29, 2002:

  • Husband introduced into evidence his check for the $1,500 down payment, dated November 23, 2002.
  • Husband introduced into evidence a receipt for the $1,500 payment, dated November 24, 2002.
  • Wife signed the application for title using her maiden name.
  • The application for title bore a typewritten date of November 12, 2002.
  • Wife testified that she and husband purchased the mobile home in contemplation of getting married.

The facts supporting the wife’s claim that the debt was incurred during marriage were:

  • Husband did not plead that the mobile home was the parties’  separate property.
  • Husband filed four signed and sworn inventories and appraisements that listed the mobile home as community property.
  • Another copy of the application for title bore a typewritten date of December 2, 2002.
  • There was no handwritten date on either copy of the application for title.
  • The application for title identified the parties as husband and wife and recited that they bought the trailer as joint tenants with right of survivorship.
  • The trailer was not delivered until after the date of marriage.
  • The parties did not begin making payments on the trailer until after marriage.

The court of appeals held:

Based on the foregoing contradictory evidence and because [husband] bore the burden of rebutting the community property presumption by clear and convincing evidence, the trial court correctly concluded that [husband] did not produce sufficient evidence to overcome the community presumption and failed to establish by clear and convincing evidence that the liability associated with the mobile home was not community debt.

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