Andrew Morris v. Carrie Cecelia Veilleux

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-20-00385-CV

Andrew Morris, Appellant

v.

Carrie Cecelia Veilleux, Appellee

FROM THE 345TH DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-FM-19-000995, THE HONORABLE JAN SOIFER, JUDGE PRESIDING

MEMORANDUM OPINION

Andrew Morris (Morris) appeals from a final decree of divorce. In three issues,

Morris challenges the trial court’s conservatorship order that appoints Carrie Cecelia Veilleux

(Veilleux) the joint managing conservator with the exclusive right to establish the primary

residence of their three children without geographic restriction and asserts that the trial court

committed reversible error in its division of the marital estate. Neither party challenges the trial

court’s dissolution of the marriage or any other portion of the decree. We will affirm the trial

court’s challenged conservatorship determination. We will reverse the trial court’s property

division and remand that part of the decree to the trial court.

BACKGROUND1

Morris and Veilleux met while in school in Arizona and were married in April

2004. Morris and Veilleux are the parents of three children; N.M., a daughter who was nine

years old at the time of trial and Z.M. and E.M., a daughter and son who were both six years old

at the time of trial. Morris and Veilleux moved to Austin for Veilleux to attend graduate school

at the University of Texas. Morris and Veilleux planned to live in Austin until Veilleux

graduated with a PhD in Anthropology, which she achieved in 2012. Veilleux’s area of expertise

is biological anthropology. Shortly after moving to Austin, Morris began working for the Austin

Police Department and was a detective at the time of trial.

In February 2019, Morris moved out of the family residence. In May 2019,

Veilleux filed a petition for divorce and requested that she be appointed the joint managing

conservator with the exclusive right to designate the children’s primary residence without

geographic restriction. At a bench trial in April 2020, the trial court heard testimony of Veilleux;

Morris; Anthony di Fiore, Chair of the University of Texas Anthropology Department; Laura

Horton, one of Veilleux’s friends; Brant Bradley, Morris’s coworker and former roommate; and

Roger Morris, Morris’s father.

At conclusion of trial, the court granted the divorce and dissolved the marriage.

The divorce decree appointed Veilleux and Morris as the children’s joint managing conservators

and granted Veilleux the exclusive right to designate the children’s primary residence with no

geographic restriction. The court divided the parties’ community estate in which it included the

1

The information in this section is derived from undisputed evidence presented at trial

and from the court’s unchallenged findings of fact.

2

entire net market value of a condominium on Wickersham Drive in Austin (“the

Condominium”).

Morris perfected this appeal in which he challenges the trial court’s order granting

Veilleux the exclusive right to designate the primary residence of the children without regard to

geographic restriction and the trial court’s property division.

ANALYSIS

Conservatorship

In his first two issues on appeal, Morris challenges the legal and factual

sufficiency of the evidence to support the trial court’s order that Veilleux have the exclusive

right to designate the children’s primary residence without regard to geographic location. Morris

argues that the evidence “overwhelmingly” showed that Morris was a “better more stable parent”

and that the trial court should have instead appointed him the conservator with the right to

establish the children’s primary residence. Morris also argues that the court should have

established a geographic area within which Veilleux could maintain the children’s primary

residence because a move from Austin was not in the children’s best interest.

When a trial court appoints the parents joint managing conservators, it must designate the

parent with the exclusive right to determine the child’s primary residence and specify either the

geographic area for the child’s primary residence or that the child’s primary residence may be

without regard to geographic location. Tex. Fam. Code. § 153.134(b)(1). Suits affecting the

parent-child relationship are “intensely fact driven” and require courts to balance many factors.

Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex. 2002). The best interest of the child shall always be the

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primary consideration of the court in determining issues of conservatorship and possession of

and access to the child. Tex. Fam. Code § 153.002; Lenz, 79 S.W.3d at 14.

Trial courts have broad discretion to determine what is in a child’s best interest. Coleman

v. Coleman, 109 S.W.3d 108, 110 (Tex. App.—Austin 2003, no pet.). Similarly, trial courts

have broad discretion in determining whether to specify a geographic limitation on a child’s

primary residence. In re K.L.W., 301 S.W.3d 423, 428 (Tex. App.—Dallas 2009, no pet.). The

trial court is in the best position to observe the witnesses and “can ‘feel’ the forces, powers, and

influences that cannot be discerned by merely reading the record,” and we will not disturb the

trial court’s order on appeal unless the complaining party establishes a clear abuse of discretion.

Echols v. Olivarez, 85 S.W.3d 475, 477 (Tex. App.—Austin 2002, no pet.); see Worford v.

Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (trial court’s determinations on conservatorship and

child support are reviewed for abuse of discretion).

To demonstrate an abuse of discretion, the appellant must show that the trial court

acted in an arbitrary or unreasonable manner, or without reference to guiding principles of law.

Coleman, 109 S.W.3d at 110. In reviewing a trial court’s decision, we should bear in mind that

the trial court “is in a better position to determine what will be in the best interest of the child

since it faced the parties and their witnesses, observed their demeanor, and had the opportunity to

evaluate the claims made by each parent.” In re J.R.D., 169 S.W.3d 740, 743 (Tex. App.—

Austin 2005, pet. denied). As long as some evidence of a substantive and probative character

exists to support the order, we will not substitute our judgment for that of the trial court. Echols,

85 S.W.3d at 477. The mere fact that a trial court decided an issue in a manner differently

from how an appellate court would under similar circumstances does not establish an abuse of

discretion. Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex. App.—Austin 2006, pet. denied).

4

Legal and factual sufficiency challenges are factors we consider in assessing

whether the trial court abused its discretion, rather than constituting independent grounds of

error. Zeifman, 212 S.W.3d at 587-88; see J.R.D., 169 S.W.3d at 743. We ask first whether the

court had sufficient information on which to exercise its discretion and second whether it erred

in its application of that discretion. Echols, 85 S.W.3d at 477-78. “The traditional sufficiency

review comes into play with regard to the first question; however, the inquiry does not end

there.” Zeifman, 212 S.W.3d at 588 (citing Echols, 85 S.W.3d at 478). The appellate court then

determines whether, based on the evidence, the trial court made a reasonable decision, “that is,

that the court’s decision was neither arbitrary nor unreasonable.” Id. A trial court does not

abuse its discretion as long as some evidence of a probative nature exists to support the court’s

decision, id., and we generally will not find an abuse of discretion when the trial court bases its

decision on conflicting evidence, see In re K.R.P., 80 S.W.3d 669, 674 (Tex. App.—Houston

[1st Dist.] 2002, pet. denied).

To determine if the evidence is legally sufficient to support the trial court’s

exercise of discretion, we consider the evidence in the light most favorable to the trial court’s

findings if a reasonable factfinder could and disregard evidence to the contrary unless a

reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).

When reviewing the evidence for factual sufficiency, we consider and weigh all the evidence

presented and will set aside the trial court’s findings only if they are so contrary to the

overwhelming weight of the evidence such that they are clearly wrong and unjust. Id. at 826.

Because conservatorship determinations are intensely fact driven, trial courts

generally have wide latitude in determining what is in a child’s best interest. Gillespie v.

Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). In Lenz, the supreme court discussed Texas’s best-

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interest standard in the context of a modification suit seeking to relocate the children, noting “the

Legislature’s overarching goals of assuring that children will have frequent and continuing

contact with parents who have shown the ability to act in the best interest of the child and to

provide a safe, stable, and nonviolent environment for the child.” 79 S.W.3d at 14, 16 (citing

Tex. Fam. Code § 153.001(a)); see K.L.W., 301 S.W.3d at 425. The court held that the following

factors were relevant considerations: reasons for and against the move; the effect the move

would have on extended family relationships; its effect on visitation and communication with the

non-custodial parent to maintain a full and continuous relationship with the child; the possibility

of a visitation schedule allowing the continuation of a meaningful relationship between the non-

custodial parent and child; and the nature of the child’s existing contact with both parents and

the child’s age, community ties, and health and educational needs. Lenz, 79 S.W.3d at 15-17.

Although Lenz was a modification proceeding, the factors are equally applicable to this original

suit for conservatorship in which the proposed custodial parent has determined an intended

relocation destination. See Norman v. Martin, No. 03-17-00704-CV, 2019 WL 1388719, at *6

(Tex. App.—Austin Mar. 28, 2019, no pet.) (mem. op.); Deinhart v. McGrath-Stroatman,

No. 03-09-00283-CV, 2010 WL 4595708, at *6-7 & n.5 (Tex. App.—Austin Nov. 10, 2010, pet.

denied) (mem. op.) (applying Lenz factors to divorce case in which jury determined that mother

should be allowed to relocate children to California); Morgan v. Morgan, 254 S.W.3d 485, 488

(Tex. App.—Beaumont 2008, no pet.).

In this case, the trial court entered findings of fact and conclusions of law in

support of its order. Pertinent to the issue of whether Veilleux should be the conservator with the

exclusive right to determine the children’s primary residence without geographic restriction the

trial court’s findings are summarized as follows:

6

● Morris and Veilleux met at school at Arizona State University in Tempe

Arizona. They married in 2004 and moved to Austin so that Veilleux could

attend graduate school at the University of Texas.

● Morris and Veilleux planned to stay in Austin until Veilleux graduated with a

PhD in Anthropology, which she did in 2012. A few years after moving to

Austin, Morris began working for the Austin Police Department.

● Morris and Veilleux agreed that living in Austin was temporary until Veilleux

graduated with a PhD and found a full-time faculty position at a university.

● In 2013, Veilleux and Morris’s twin children were born 15 weeks prematurely

and required a higher level of care than average babies. Veilleux put her career

on hold to care for the twins while Morris continued working. The twins are now

mostly healthy, but one has gastrointestinal issues that require supplemental

feeding through a tube to ensure he is gaining weight. Veilleux has been the

primary caregiver for the children.

● Throughout the marriage, Veilleux and Morris discussed available faculty

positions across the country. Veilleux applied for jobs only in cities where both

parents had potential job opportunities. In the fall of 2018, before separating,

Veilleux and Morris discussed a tenure-track faculty job opening at Midwestern

University in Arizona. Morris and Veilleux agreed that Veilleux should apply for

the position, which she did. The university did not at that time make any offers

for the position.

● Morris left the marital residence and the parties separated in February 2019.

Morris was working a shift schedule as a police officer and the parties agreed to a

possession schedule that allowed him to have possession of the children on his

days off. Veilleux provided primary care for the children.

● In May 2019, Veilleux learned that Midwestern University in Arizona

reopened the tenure-track faculty position she had applied for and Veilleux

reapplied. Veilleux notified Morris that the position had reopened and that she

had applied for it. The hiring process continued throughout the summer of 2019

with telephone and in person interviews. Morris was aware that Veilleux

continued to pursue the position and raised no objection. Veilleux was offered a

faculty position at the university in August 2019 and informed Morris that she

intended to accept the offer. Morris raised no objection.

● By the time of trial, the university had scheduled Veilleux to begin teaching

classes and had allocated funds for Veilleux’s lab. The chair of the department of

Anthropology at the University of Texas testified as to how difficult and time

consuming it is for even an accomplished applicant with a PhD like Veilleux to

obtain a tenure-track faculty position.

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● Veilleux has substantially more opportunity for professional growth in Arizona

than in Austin and the tenure-track position she was offered has a salary that is

twice the amount she is paid for the temporary research position she held at the

University of Texas at the time of trial.

● Morris has the ability to transfer to a police department in or around the Phoenix

area near where Midwestern University is located. Morris’s pension at the Austin

Police Department is vested and he has the ability to cash out vacation and other

accrued time if he were to leave the Austin Police Department. Morris began a

new romantic relationship with a fellow police officer in February 2019 and that

relationship is a factor in Morris’s opposition to Veilleux’s move despite the

parties’ years long understanding that the family would move for Veilleux’s job.

● Veilleux has researched the school and activities available in the area near

Midwestern University and plans to purchase a house in a Phoenix neighborhood

with a good school district near a YMCA where the children can continue their

swim lessons. One of the children’s doctors recommended his mentor, the head

of gastroenterology at the children’s hospital in Phoenix, to provide specialized

care for the child’s gastrointestinal issues. The family enjoys hiking and camping

together and the Phoenix area has many options for them to continue these

activities.

● The children have a good relationship with both Morris’s and Veilleux’s

extended family. Veilleux has maintained a positive relationship with Morris’s

family after the separation and the children’s paternal grandfather testified that he

intends to visit the children in Arizona and visit the Grand Canyon.

● The children have T-Mobile watches with Veilleux’s, Morris’s, and extended

family members’ phone numbers programmed in to ensure that the children have

frequent and continuing communication with their family. The children actively

use these watches.

● If Morris chooses not to relocate to Arizona, he has the ability to travel to

Arizona monthly and have the children for prolonged periods of time in Texas

during school breaks.

In its conclusions of law, the trial court determined:

[A]fter weighing the Lenz factors, Veilleux and children relocating for Veilleux’s

job is in the best interest of the children. If Morris resides over 100 miles away

from the children, the Court concludes that it is in the best interest of the children

for Morris to have the right to possession pursuant to the standard possession

order. The Court also concludes that if Morris resides within 100 miles of the

children, the parties’ agreement to follow a 5-2-2-5 possession schedule is in the

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best interest of the children. As an incentive to encourage Morris to visit the

children in Arizona, the Court finds the allocation of travel costs in the final order

is in the best interest of the children and the parties.2

The trial court, as the fact finder in this case, is the sole judge of the credibility of the witnesses

and the weight to be given their testimony. See City of Keller, 168 S.W.3d at 819. In an appeal

from a bench trial, findings of fact are the equivalent of jury answers to special issues. Lindsey

v. Lindsey, 965 S.W.2d 589, 591 (Tex. App.—El Paso 1998, no pet.). The unchallenged findings

of fact are binding on this Court unless the contrary is established as a matter of law or there is

no evidence to support the finding. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex.

1986). This Court cannot substitute its conclusions for those of the trial court if there is

sufficient competent evidence of probative force to support the trial court’s findings. Lindsey,

965 S.W.2d at 591.

The trial court’s extensive findings of fact affirmatively demonstrate that it

considered the relevant factors listed in family code section 153.001(a) and applicable factors

discussed in Holley and Lenz. See Tex. Fam. Code § 153.001(a); Holley v. Adams, 544 S.W.2d

367, 371 (Tex. 1976); Lenz, 79 S.W.3d at 15-16.3 Those findings of fact are supported by the

record. Additionally, the findings of fact support the court’s conclusion of law that it is in the

children’s best interest that Veilleux be appointed the joint managing conservator with the

exclusive right to designate the children’s primary residence without geographic restriction.

In his brief on appeal, Morris does not challenge any of the trial court’s findings

of fact. Instead, he asserts that he should have been appointed the joint managing conservator

2

The final order requires Veilleux to reimburse Morris for certain travel expenses.

3

The absence of a specific finding on a relevant factor does not show that the trial court

did not consider that factor. See In re Marriage of Walker, No. 07-03-0531-CV, 2005 WL

3488931, at *4 n.3 (Tex. App.—Amarillo Dec. 20, 2005, no pet.) (mem. op.).

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with the exclusive right to establish the children’s primary residence because his household is

“safer, more stable and nonviolent” than Veilleux’s; he is a police officer who has worked his

way up from the bottom of the Austin Police Department over the past twelve years; he has

played an active role in the children’s everyday life; and his parenting approach has been

successful and allowed the children to thrive. Morris references his own trial testimony that

Veilleux has a history of self-harm, is insecure, and engaged in what he considered to be

manipulative behavior during arguments. Morris testified that their oldest child witnessed

Veilleux pretend to hang herself from a doorknob with a scarf and later imitated this behavior.

Morris asserts that Veilleux’s “dangerous, toxic behaviors have no doubt already shaped the

children [] in ways that will haunt them for the rest of their lives.” Yet Morris also testified that

he never requested that Veilleux undergo a psychological evaluation and agreed that he did not

express his concerns about Veilleux’s behavior during his deposition or at the temporary orders

hearing. Morris also testified that if Veilleux were required to establish the children’s primary

residence in Austin, he believed that the children should divide their time equally between his

household and Veilleux’s.

The trial court heard testimony from Morris’s father that Veilleux is a good parent

and from Veilleux’s friend that she is a proactive and involved parent. The friend stated that

Veilleux coordinates all three children’s therapies, appointments, and activities and described

Veilleux’s creativity and the activities she engages in with the children. Veilleux also testified

that both she and Morris have a history of mental health problems and that she sees a therapist

weekly and takes medication to treat anxiety and depression. Veilleux testified that she does not

believe the mental health issues affect either her or Morris’s parenting ability. Veilleux stated

10

that the therapy and medication have “completely changed her life” and allowed her to be “calm

and happy” even in stressful situations.

The trial court could have reasonably concluded that Morris’s testimony that

Veilleux was not a fit parent was not credible. The evidence presented at trial established that

Veilleux had a history of being the primary caretaker for the children and that Morris had

no objection to both parents having equal possession of the children. In determining which

conservator will have the exclusive right to establish primary residence under section 153.134(b),

the trial court is vested with broad discretion. Dennis v. Smith, 962 S.W.2d 67, 70 (Tex. App.—

Houston [1st Dist.] 1997, pet. denied); see Gardner v. Gardner, 229 S.W.3d 747, 753-54 (Tex.

App.—San Antonio 2007, no pet.) (no abuse of discretion to award husband, non-parent, right to

establish primary residence of children without regard to geographic location); Long v. Long,

144 S.W.3d 64, 70-71 (Tex. App.—El Paso 2004, no pet.) (affirming trial court’s order awarding

father right to establish primary residence of children without regard to geographic location).

After reviewing the record, we conclude the trial court had sufficient evidence upon which to

exercise its discretion and, based on the evidence concerning all relevant circumstances at the

time of the bench trial, did not abuse that discretion in finding that it was in the children’s best

interest for Veilleux to be designated the conservator with the exclusive right to determine the

children’s primary residence without geographic restriction. We overrule Morris’s first and

second issues.

Community Property Division

In his third issue, Morris challenges the trial court’s division of community

property, specifically its inclusion of the value of the Condominium in making its just and right

11

division of the community estate. The trial court found that the total net value of the marital

estate was $448,072.60 of which $131,000 was attributable to the Condominium’s net value.

The trial court awarded Morris assets valued at $228,725.72, representing 51% of the value of

the marital estate. Included in the assets awarded Morris was the Condominium, valued at

$131,000. Morris contends that the Condominium was not part of the marital estate subject to

the just and right division, and if that asset was removed from the ledger of community assets, he

was awarded only 30% of the marital estate.

We review the trial court’s property division for abuse of discretion. O’Carolan

v. Hopper, 71 S.W.3d 529, 532 (Tex. App.—Austin 2002, no pet.). This discretion is broad.

Raymond v. Raymond, 190 S.W.3d 77, 82 (Tex. App.—Houston [1st Dist.] 2005, no pet.). “The

test of whether the trial court abused its discretion is whether the court acted arbitrarily or

unreasonably, and without reference to any guiding principles.” Hailey v. Hailey, 176 S.W.3d 374,

380 (Tex. App.—Houston [1st Dist.] 2004, no pet.). “If the division of marital property

lacks sufficient evidence in the record to support it, then the trial court’s division is an abuse

of discretion.” Raymond, 190 S.W.3d at 83. Nonetheless, “[u]nder an abuse of discretion

standard, legal and factual insufficiency are not independent reversible grounds of error but

rather are relevant factors in assessing whether the trial court abused its discretion.” Mai v. Mai,

853 S.W.2d 615, 618 (Tex. App.—Houston [1st Dist.] 1993, no writ). If we find reversible error

that materially affects the trial court’s just and right division of community property, we must

remand the cause for a new division of the community estate. Jacobs v. Jacobs, 687 S.W.2d 731,

733 (Tex. 1985); Raymond, 190 S.W.3d at 82.

The trial court made the following fact findings regarding the Condominium:

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● When Morris and Veilleux realized it would likely take eight years for Veilleux

to achieve her PhD, [they] decided that they wanted to own a home and build

equity, rather than continuing to live in an apartment. They found the

Condominium, and entered into an earnest money contract to purchase it. The

parties intended for the Condominium to belong to them. During the option

period, Morris and Veilleux learned that they did not qualify for the mortgage on

their own so Roger Morris, Morris’s father, stepped in to assist Morris and

Veilleux to buy the Condominium.

● The underwriter would not allow Roger Morris to become involved in the

purchase solely as a co-signer. When the parties closed on the Condominium

purchase, Roger Morris was the only individual who signed the note and is named

on the Deed of Trust but title to the Condominium was taken in the names of

Roger Morris, Veilleux, and Morris.

● Subsequently, a “Correction Deed” was filed in the Travis County Real

Property Record. The Correction Deed was the same deed filed previously, but

with Veilleux’s and Morris’s names crossed through. Neither Veilleux nor Morris

signed the Correction Deed, and there is no credible evidence that they were

aware of the Correction Deed prior to the divorce proceeding.

We first consider whether the Condominium was community property. The character of

property as community property is determined at inception of title. Inception of title occurs

when a party first has a right of claim to the property by virtue of which title is finally vested.

Rivera v. Hernandez, 441 S.W.3d 413, 420 (Tex. App.—El Paso 2014, pet. denied). Property

possessed by either spouse upon dissolution of the marriage is presumptively community

property. Peaslee-Gaulbert Corp. v. Hill, 311 S.W.2d 461 (Tex. App.—Dallas 1958, no writ).

However, this presumption may be rebutted by proof that the property was the separate property

of either spouse. McClintic v. Midland Grocery & Dry Goods Co., 154 S.W.1157 (Tex. 1913).

No evidence at trial served to rebut the presumption that any interest Veilleux and Morris had in

the Condominium was community property.

On appeal, Morris does not argue that the Condominium is separate property

but, instead, maintains that neither he nor Veilleux own the Condominium. To support this

13

contention, Morris asserts that although title was originally taken in the names of Morris,

Veilleux, and Roger Morris, the subsequently filed Correction Deed divested Morris and

Veilleux of any interest in the Condominium. Morris argues that because of the Correction

Deed, the Condominium belongs solely to Roger Morris and should not have been included in

the marital estate.

In its conclusions of law, however, the trial court determined that “the Correction

Deed is invalid.” The court relied on Texas Property Code section 5.029, which provides that a

correction instrument must be “executed by each party to the recorded original instrument of

conveyance the correction instrument is executed to correct.” See Tex. Prop. Code § 5.029.

Because Morris and Veilleux did not sign the Correction Deed, and in fact had no knowledge of

its existence, the trial court concluded that it had no effect on the Condominium’s ownership.

On appeal, Morris asserts that the trial court could not have determined whether

the Correction Deed was effective because Veilleux did not bring a trespass-to-try title claim,

which is the exclusive method in Texas for adjudicating disputed claims of title to real property.

See Texas Parks & Wildlife Dep’t v. Sawyer Tr., 354 S.W.3d 384 (Tex. 2011). In this divorce

proceeding, however, Veilleux did not seek to adjudicate title to the Condominium but rather

sought a just and right division of the marital estate. Moreover, the trial court’s final order does

not purport to adjudicate title to the Condominium. Instead, it characterizes any interest that

Morris and Veilleux have in the Condominium as community property and then divests Veilleux

of her right, title, and interest in the Condominium in favor of Morris. In doing so, the trial court

rejected Morris’s assertion that the Correction Deed had effectively divested Morris and Veilleux

of their community interest in the Condominium. If any party raised issues about the ownership

of the Condominium, it was Morris rather than Veilleux. When a party requests a trial court to

14

take an action, the doctrine of invited error prohibits that party from complaining of the claimed

error on appeal. In re Dep’t of Fam. & Protective Servs., 273 S.W.3d 637, 646 (Tex. 2009).

Having concluded that the Correction Deed was ineffective to divest Veilleux and

Morris of their interest in the Condominium, the trial court included the total net value of that

property in its division of the marital estate rather than excluding the value of any interest held

by Roger Morris, which presumably would be one-third of the Condominium’s value.4 The trial

court found that Roger Morris held title to the Condominium “as a constructive trustee for the

benefit of Veilleux and Morris” and that he individually did not have an ownership interest in it.

See Tuck v. Miller, 483 S.W.2d 898, 905 (Tex. App.—Austin 1972, writ ref’d n.r.e.) (when one

person orally undertakes to purchase land on behalf of another, “a constructive trust may be

enforced based upon the violation of a fiduciary duty”). On appeal, Morris asserts that the trial

court erred by concluding that Roger Morris held the Condominium in a constructive trust for

Veilleux and Morris. We agree.

A constructive trust is an equitable remedy created by the courts to prevent unjust

enrichment. Medford v. Medford, 68 S.W.3d 242, 248 (Tex. App.—Fort Worth 2002, no pet.).

To establish that a constructive trust exists, the proponent must prove (1) breach of a special trust,

fiduciary relationship, or actual fraud; (2) unjust enrichment of the wrongdoer; and (3) tracing to

an identifiable res. Mowbray v. Avery, 76 S.W.3d 663, 681 n.27 (Tex. App.—Corpus Christi

4

We make this presumption for purposes of this appeal based on the inclusion of three

owners in the original conveyance. When a deed is made to more than one grantee and the

interest of each is not stated, a rebuttable presumption arises that each of the grantees is vested

with title to an equal undivided interest in the property. Estate Land Co. v. Wiese, No. 14-13-

00524-CV, 2015 WL 1061553, at *6 (Tex. App.—Houston [14th Dist.] Mar. 10, 2015, pet. denied)

(mem. op.) (citing Zephyr v. Zephyr, 679 S.W.2d 553, 556 (Tex. App.—Houston [14th Dist.]

1984, writ ref’d n.r.e.). The parties may, however, present evidence on remand establishing a

different division of ownership interests.

15

2002, pet. denied). The proponent of a constructive trust must strictly prove the elements

necessary for the imposition of the trust. See e.g., Ginther v. Taub, 675 S.W.2d 724, 725 (Tex.

1984) (requiring strict proof of unfair conduct or unjust enrichment on part of wrongdoer). Here,

there was no evidence that raised a fact issue as to whether Roger Morris breached any duty to

Veilleux or Morris. To impose a constructive trust, a breach of a duty or actual or constructive

fraud must be present. In re Marriage of Braddock, 64 S.W.3d 581, 586 (Tex. App.—Texarkana

2001, no pet.). The trial court erred in imposing a constructive trust on Roger Morris’s

ownership interest in the Condominium.

Section 7.001 of the Texas Family Code provides that a divorce decree “shall

order a division of the estate of the parties in a manner that the court deems just and right.”

Tex. Fam. Code § 7.001. The “estate of the parties” has been construed to mean only the

parties’ community property. See Cameron v. Cameron, 641 S.W.2d 210, 213-14 (Tex. 1982);

Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 139 (Tex. 1977). The trial court has wide discretion

in dividing the parties’ community estate and that division should not be altered on appeal except

where a clear abuse of discretion is shown. See Murff v. Murff, 615 S.W.2d 696, 698 (Tex.

1981). Here, the trial court determined that a just and right division of the parties’ community

property would be to award 49% of it to Veilleux and 51% of it to Morris. We cannot say that

this division of the community estate constitutes an abuse of discretion. However, because the

trial court erroneously valued the community interest in the Condominium to be its full market

value, rather than the value of Morris’s and Veilleux’s interest as reflected in the Deed—

presumably two thirds of the total value—the trial court increased the total net value of both the

community estate and the value of the assets awarded to Morris. When the value of Roger

Morris’s ownership interest in the Condominium is deducted from both the net value of the

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community estate and the value of the assets awarded to Morris, the resulting division of

community property is 54% to Veilleux and 46% to Morris. This is significantly different from

the division the trial court concluded was a just and right division when it rendered its final

orders. When the trial court’s error in characterizing property materially affects the trial court’s

just and right division, then the mischaracterization is harmful and requires the appellate court to

remand the entire community estate to the trial court for a just and right division of the properly

characterized community property. McElwee v. McElwee, 911 S.W.2d 182, 190 (Tex. App.—

Houston [1st Dist.] 1995, writ denied).

We cannot presume that the trial court would have made the same division despite

the mischaracterization of the value of the parties’ interest in the Condominium. At rendition,

the trial court intended to make an approximately 49%/51% division in Morris’s favor. By

failing to properly value the community interest in the Condominium, however, the court

actually made an approximate 54%/46% division in Veilleux’s favor. We do not suggest that,

under the facts of this case, the trial court did not have the power to make a disproportionate

division. However, only the trial court has the power to make a just and right division of

the community estate. Jacobs, 687 S.W.2d at 733; McKnight v. McKnight, 543 S.W.2d 863,

865 (Tex. 1976) (stating “a court of civil appeals has no authority to render its own

property division”). In McElwee, the court observed that failing to remand the case when a

mischaracterization changes the division of community property would permit the appellate

court to “award a completely new division of the community estate,” a power the appellate court

does not have. See McElwee, 911 S.W.2d at 190 (remanding case to trial court when correcting

mischaracterized property changed division from 61%/39% to 64%/36% division). When a

mischaracterization has more than a mere de minimis effect on the trial court’s division, we must

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remand the community estate to the trial court for a just and right division based on the correct

characterization of property. Id.

In this case, the trial court’s error affected the court’s property division. We

therefore sustain Morris’s third issue and reverse and remand that part of the judgment to the trial

court with instructions that the trial court make a just and right division of the marital estate.

CONCLUSION

For the reasons stated in this opinion, we affirm the portion of the trial court’s

order appointing Veilleux the joint managing conservator with the exclusive right to establish the

primary residence of the children without geographic restriction. We reverse the portion of the

trial court’s order pertaining to the property division and remand that part of the judgment to the

trial court with instructions that the trial court make a just and right division of the marital estate.

In all other respects, the trial court’s decree of divorce is affirmed.

__________________________________________

Thomas J. Baker, Justice

Before Chief Justice Byrne, Justice Baker and Smith

Affirmed in Part, Reversed and Remanded in Part

Filed: September 24, 2021

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