IN RE MARRIAGE OF TAYLOR No. 06-98-00068-CV.
992 S.W.2d 616 (1999)
In the Matter of the MARRIAGE OF Kyle Wayne TAYLOR and Chance Taylor and in the Interest of Jessica Ann Taylor, a Child.
Court of Appeals of Texas, Texarkana.
Decided April 23, 1999.
Judy Hodgkiss, The Moore Law Firm, Paris, for appellant.
Brady Fisher, Paris, Edward D. Ellis, Ellis & Clark, Paris, for appellee.
Before CORNELIUS, C.J., GRANT and ROSS, JJ.
Opinion by Justice GRANT.
Kyle Taylor appeals from the division of property in his divorce from his wife, Chance Taylor. Taylor contends that the trial court abused its discretion in dividing the marital estate because the court misidentified land as community property when it was actually his separate property from his previous divorce (from the same woman). Taylor contends that because of this mistake, there was a disproportionate division of property and debts in favor of Chance Taylor.
Kyle and Chance Taylor were first divorced on January 16, 1996. They remarried on December 20, 1996. Kyle filed again for divorce on October 8, 1997. After a hearing, the court granted a second divorce and ordered a property division on May 5, 1998.
The central question is whether real estate was awarded to Kyle as his separate property in his first divorce from Chance. In the second property division, the property was described in findings of fact as community property consisting of 248.93 acres of land in Red River County, Texas, valued at $160,000, and encumbered by a debt in the amount of $65,043.
The language in the first divorce decree divided the property and awarded the property to the spouses using the following language:
No appeal was filed from the first divorce decree. Thus, the property division is final. Dearing v. Johnson, 947 S.W.2d 641 (Tex.App.-Texarkana 1997, no writ). In the same manner as when reviewing judgments generally, if the decree, when read as a whole, is unambiguous as to the property's disposition, the court must effectuate the order in light of the literal language used. Wilde v. Murchie, 949 S.W.2d 331, 333 (Tex.1997).
The language of the decree set out above is sufficient to divide the property. This analysis is controlled by Wilde, in which decretal language awarding a house was entirely lacking. The Texas Supreme Court in Wilde held that the other provisions awarding equity in the house and possession of the house were sufficient to show the intended disposition of the property.
In the present case, the language used in the property division portion of the decree clearly orders the estate divided and then awards possession of the property to the parties according to the division. That is sufficient. Further, if the decree failed to award the land, then it also failed to divide and award any of the community property because the same language applies to every piece of property belonging to the community. That is clearly neither the intent nor the effect of the document. The first decree is not subject to collateral attack and must be given full effect.
Accordingly, the trial court erred by characterizing the 248.93 acres as community property for purposes of the second divorce. It is the separate property of Kyle Taylor.
Because the effect of the division in this case did not divest Kyle of his separate property,
A presumption arises on appeal that the trial court correctly exercised its discretion in dividing property in a divorce proceeding, and the burden rests on the appellant to show from the record that the division was so disproportionate, and thus unjust and unfair, as to constitute an abuse of discretion. Tschirhart v. Tschirhart, 876 S.W.2d 507, 509 (Tex.App.-Austin 1994, no writ); Martin, 797 S.W.2d at 351. In our review of a division under this abuse of discretion standard, the legal and factual sufficiency of the evidence are not independent grounds of error, but are merely relevant factors in assessing whether the trial court abused its discretion. In re Marriage of Driver, 895 S.W.2d 875, 877 (Tex.App.-Texarkana 1995, no writ); Mai v. Mai, 853 S.W.2d 615, 618 (Tex.App.-Houston [1st Dist.] 1993, no writ).
The specified division of community property in this divorce valued the real property at $160,000, subject to a $65,043 debt, valued cattle at $20,000, subject to a $14,900 debt, and noted the existence of a community credit card debt of $7,300 and a community debt of $600. It is clear that the main asset of the community under this division was the real property—and it is equally clear that the real property was not community property and should not have been considered as part of the division. Further, as a part of that division in this divorce, the trial court awarded a judgment to Chance against Kyle for $45,000, secured by a lien upon the land. In the absence of the land from the divisible community property, the judgment/lien for $45,000 is greater than the entire net worth of the community estate. Furthermore, Chance retains her lien against the property for $15,000 from the first decree.
Kyle Taylor also contends that the valuation of the cattle set by the trial court finds no support in the record. The only evidence about their value comes from the testimony of Chance Taylor, that the cattle were worth the amount of the debt against them, in the "neighborhood of $14,000.00 to $15,000.00." The trial court assessed their value at $20,000. There is no evidence to support the court's assessed value.
Kyle Taylor also contends that the valuation of the land finds no support in the testimony. Chance testified that they had discussed its value as being between $130,000 and $160,000. Thus, there is some evidence to support the value set on the property by the trial court.
This Court has held that a division of property based upon values not in evidence is error and may result in a division of the marital estate that is not "just and right." Martin, 797 S.W.2d at 347. Thus, the error in valuing the cattle is also a factor that we must consider in deciding whether this case must be reversed for a new property division.
If we find reversible error in a specific part of the division that materially affects the trial court's just and right division of the entire community estate, we must remand the entire community estate for a new division. Jacobs v. Jacobs, 687 S.W.2d 731 (Tex.1985).
We conclude that the error in characterization of the separate real property as community property, combined with the inaccurate valuing of the cattle, is of such a magnitude that it materially affects the division of the community. We reverse the judgment of the trial court and remand the cause for a new division of the community estate in accordance with our opinion.
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