Sutton, Clara Fka Green, Clara v. Green, Dale John

Reversed and Rendered and Opinion filed July 11, 2002 Reversed and Rendered and Opinion filed July 11, 2002. In The Fourteenth Court of Appeals ____________ NO. 14-01-01043-CV ____________ CLARA SUTTON F/K/A CLARA GREEN, Appellant V. DALE JON GREEN, Appellee On Appeal from the County Court at Law Washington County, Texas Trial Court Cause No. CCL-2887 O P I N I O N Clara Sutton, f/k/a Clara Green (“Sutton”), appeals from the trial court’s judgment granting her ex-husband’s petition for a post-divorce division of property. In one issue, Sutton contends the evidence is insufficient to support the trial court’s finding that the original divorce decree failed to divide all of the marital property. We reverse and render. Background Sutton filed for divorce from Dale Green (“Green”). The parties entered into a mediated property settlement agreement (the “Mediated Agreement”) and the trial court rendered judgment granting the divorce and incorporating the terms of the Mediated Agreement. Subsequently, Green filed for a post-divorce division of property as provided for in section 9.201 of the Texas Family Code. See Tex. Fam. Code Ann. § 9.201(a) (Vernon 1998). In his petition, Green requested the division of mineral rights related to a piece of property (the “Baranowski property”) that the parties had purchased during their marriage from Max Baranowski (“Baranowski”). The Baranowski property was awarded to Sutton in the Mediated Agreement and, thus, in the decree of divorce. Green contends the mineral rights were simply omitted from the Mediated Agreement and were not included in the award of the Baranowski property to Sutton. Therefore, he argues the mineral rights constitute an undivided asset and should be divided by the trial court. The deed from Baranowski to Green and Sutton reserved the following interest to Baranowski: “fifty-percent interest in the oil, gas, and other minerals in perpetuity and an additional twenty-five percent interest for ten years and as long thereafter as oil, gas, or other minerals are produced.” The deed was also subject to an existing oil, gas, and mineral lease that had been executed by Baranowski prior to the sale to Sutton and Green. That lease remained in effect as long as oil, gas, or other minerals were produced from the property. The trial court granted the post-divorce division of property and ordered that the mineral interest be divided equally between the parties.[1] The court made the following relevant findings of fact and conclusions of law: Findings of Fact . . . 2. THE COURT FINDS that at the time the Parties purchased the Property there was an existing mineral lease on and to the property and there was royalty interest income; 3. THE COURT FINDS that the mineral interest and royalty interest income are separate and distinct estates for [sic] the surface estate of the Property; 4. THE COURT FINDS that the mineral interest and royalty interest income to the property were inadvertently omitted from the community property division . . . . Conclusions of Law 1. The real property located at 5823 Baronowski Road, Brenham, Washington County, Texas, (the “Property”) was community property of the Parties and therefore subject to a just and right division; 2. The mineral interest and royalty interest income were severed from the surface estate of the Property and therefore are separate and distinct estates in property to be considered by the Court in the just and right division of community property[;] 3. The mineral interest and royalty interest income to the Property, omitted in the Final Decree of Divorce, was subject to post-decree division by this Court. . . . Issue In one issue, Sutton contends the evidence is legally insufficient to support the court’s finding that the mineral interest was a separate and distinct estate from the surface estate. Sutton argues that because the evidence is legally insufficient to support the trial court’s conclusion that the mineral interest in the property was severed from the surface estate, no property was left undivided in the Mediated Agreement or the decree of divorce. Thus, she asserts the trial court had no authority to grant the post-divorce division of property. Standard of Review Findings of fact are accorded the same force and dignity as a jury verdict on special issues. Gone v. Gone, 993 S.W.2d 845, 847 (Tex. App.—Houston [14th Dist.] 1999, pet. denied); McPherren v. McPherren, 967 S.W.2d 485, 489 (Tex. App.—El Paso 1998, no pet.). When supported by competent evidence, findings of fact are generally binding on the appellate court. Puri v. Mansukhani, 973 S.W.2d 701, 708; McPherren, 967 S.W.2d at 489 (Tex. App.—Houston [14th Dist.] 1998, no pet.). A legal sufficiency point will be sustained when: (1) there is a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence conclusively establishes the opposite of a vital fact. Osteen v. Osteen, 38 S.W.3d 809, 813 (Tex. App.—Houston [14th Dist.] 2001, no pet.). If the record contains any evidence of probative force to support the court’s findings, the legal insufficiency challenge must be overruled. ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997); Vannerson v. Vannerson, 857 S.W.2d 659, 666 (Tex. App.—Houston [1st Dist.] 1993, writ denied). Post-Divorce Property Division A division of the community estate may be effectuated by court order following a contested evidentiary hearing or by an agreement of the parties. Soto v. Soto, 936 S.W.2d 338, 340 (Tex. App.—El Paso 1996, no writ). Once the marital estate is divided, “[a] court may not amend, modify, alter, or change the division of property made or approved in the decree of divorce or annulment.” Tex. Fam. Code Ann. § 9.007(a) (Vernon 1998). An order that amends, modifies, alters, or changes the division of property made or approved in a final decree of divorce is beyond the trial court’s power and is unenforceable. Id. § 9.007(b). After entry of a divorce decree, if the trial court did not dispose of all community property, the former spouses become tenants-in-common or joint owners of the property. Busby v. Busby, 457 S.W.2d 551, 554-55 (Tex. 1970); Mayes v. Stewart, 11 S.W.3d 440, 448 (Tex. App.—Houston [14th Dist.] 2000, pet. denied); Burgess v. Easley, 893 S.W.2d 87, 90 (Tex. App.—Dallas 1994, no writ). The proper method for addressing an undivided or overlooked asset is a partition suit. In a post-divorce partition suit, the court has the power to divide the asset in any manner that it deems just and right. See Tex. Fam. Code Ann. § 9.203(a) (Vernon 1998). Cf. Tex. Prop. Code Ann. § 23.001 (Vernon 2000) (compelling partition among joint owners). class=Section4> Discussion Sutton argues that her award of the property in the mediated settlement agreement and in the decree of divorce included the mineral estate. In reply, Green submits that the mineral estate had been severed from the surface estate at the time the existing lease on the property was executed, and thus, the mineral estate must pass as a separate and distinct estate. It is well settled in Texas that once mineral rights are severed, two separate and distinct estates (the mineral estate and the surface estate) are created, each of which is capable of separate ownership and sale. See, e.g., Glasscock Underground Water Conserv. Dist. v. Pruit, 915 S.W.2d 577, 583 (Tex. App.—El Paso 1996, no writ). Green argues that an oil and gas lease is a transfer of realty operating to effectuate a complete severance of the mineral estate from the surface estate. For support, he relies on Stephens County v. Mid-Kansas Oil & Gas Co., 254 S.W. 290 (Tex. 1923). In Stephens County, the court held that the rights in the oil and gas under a piece of property were as susceptible to severance from the rest of the property as were the solid minerals. Id. at 292. The court did not hold, as suggested by Green, that the severance of some rights from the surface estate via an oil and gas lease necessarily severs the entire mineral estate. Moreover, in Birdwell v. Am. Bonding Co., 337 S.W.2d 120 (Tex. App.—Fort Worth 1960, writ ref’d n.r.e.), the court held that any mineral rights not severed from the original bundle of property rights continue to pass with, and remain unsevered from, the surface estate. Id. at 131 (citing Thomas v. Southwestern Settlement & Dev. Co., 123 S.W.2d 290, 300 (Tex. 1939)).[2] In Thomas, the court held that one owner’s undivided and unsevered interest in a piece of property would not be affected by another owner’s attempt to sever the class=Section5> mineral rights in the whole property. Thomas, 123 S.W.2d at 300. In other words, the first owner retains his interest in the property with the mineral estate and the surface estate unsevered and unsegregated one from the other. Id. The record reflects that the evidence before the court at the hearing on Green’s post-divorce partition suit included the warranty deeds, the Mediated Agreement, and the property appraisal. The warranty deeds do not support the trial court’s finding that the mineral estate had been severed from the surface estate. Although Baranowski had executed an oil, gas and mineral lease on the Baranowski property prior to the conveyance to Sutton and Green, the rights granted in that lease constituted only a partial severance of the mineral estate. When Baranowski reserved an interest in the mineral estate in the deed to Sutton and Green, the reserved rights also constituted a partial severance. Thereafter, Sutton and Green took title to all remaining, or unsevered, rights in the Baranowski property, which included the mineral interest and any associated royalty interest that Baranowski had not reserved. The property appraisal does not address whether there was a complete or a partial severance of the mineral estate. We find no evidence to support the trial court’s finding that the couple’s mineral interest had been severed from their other rights in the property. See Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997); City of Houston v. Precast Structures, Inc., 60 S.W.3d 331, 335 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). At the final hearing on the parties’ divorce, the parties testified that their agreement as to the division of their marital estate was set forth in Exhibit 1, which had been introduced into evidence. Exhibit 1 is a copy of the parties’ Mediated Agreement. The Mediated Agreement specifically awarded the Baranowski property to Sutton and did not contain a reservation of the mineral interest. When a piece of property is conveyed without an express reservation of rights, the person conveying the property passes all the rights he or she has in the property. Cockrell v. Tex. Gulf Sulphur Co., 299 S.W.2d 672, 675 (Tex. 1957); Neel v. Alpar Res., Inc., 797 S.W.2d 361, 365 (Tex. App.—Amarillo 1990, no writ); 4 Fred A. Lange & Aloysius A. Leopold, Texas Practice: Land Titles & Title Examination § 745, at 232 (2d ed. 1992). Because the community’s interest in the real property included the mineral interest, the trial court’s rendition of judgment incorporating the Mediated Agreement conveyed the community’s entire interest to Sutton. See Cockrell, 299 S.W.2d at 675. Accordingly, we hold the evidence is legally insufficient to support the court’s finding that the divorce decree did not divide the mineral interest. See Merrell Dow, 953 S.W.2d at 711; Precast Structures, 60 S.W.3d at 335. Consequently, the trial court erred in granting the relief requested in the petition for post-divorce division of property. See Tex. Fam. Code Ann. §§ 9.007, 9.201 (Vernon 1988). The judgment of the trial court is reversed. We render judgment that Dale Jon Green take nothing on his Original Petition for Post-Divorce Division of Property. We further order that the trial court’s original judgment and divorce decree be reinstated. /s/ Eva M. Guzman Justice Judgment rendered and Opinion filed July 11, 2002. Panel consists of Justices Yates, Seymore, and Guzman. Do Not Publish — Tex. R. App. P. 47.3(b). [1] The parties entered into a Rule 11 agreement wherein they agreed that they would each receive a 50 percent interest in the mineral rights; however, both sides reserved their right to appeal the trial court’s finding that the asset was not divided at the time of divorce. [2] In Birdwell, the court stated: Until any particular fractional or percentage interest of the mineral estate has been initially vested (through grant or reservation) in one other than the owner or owners of the surface estate said interest in the mineral estate is not to be treated as having been ‘severed’ from the surface estate. Therefore, if a grantor owns the surface estate and a fractional interest in the mineral interest underlying the same which has never been severed, as through grant or reservation, his ownership is to an entire estate unsevered. Birdwell, 337 S.W.2d at 131.