Property Divisions Are Forever (Maybe)

The case of the week is Moore v. Moore, 568 S.W.3d 725 (Tex. App.—Eastland 2019, no pet.). Divorces are never pretty, and they are seldom quick. They usually keep going long after the judge has signed the decree. But this week’s case takes it to a new level.

Background

Ronald and Zuzanna Moore were divorced in June 2005. During the proceedings, Ronald gave Zuzanna “a list of his mineral interests.” 568 S.W.3d at 733. The divorce decree, however, did not list the mineral interests. Instead, it divided the “oil, gas or other minerals . . . standing in the name of the parties or either party” equally between them, and did not award any oil and gas interests to either party as their separate property.  568 S.W.3d at 728. Ronald filed a motion for new trial, but he did not appeal.

Eight years later, Zuzanna discovered “multiple interests that [Ronald] had not included on the list.” 568 S.W.3d at 733. She contacted the producers and instructed them to pay her half the revenues from those interests. They did. When Ronald found out, he filed a petition for clarification in the divorce court, asking that court to clarify that the oil and gas interests were his separate property. In response, Zuzanna filed a motion to enforce the decree, asking the Court to order Ronald to execute the necessary documents to properly transfer her share of the oil and gas interests to her. The divorce court denied Ronald’s petition for clarification and granted Zuzanna’s motion to enforce. Ronald appealed, making four interesting (if unsuccessful) arguments. (He made others, but they are not as interesting and did not succeed.)

Limitations

Ronald argued that Zuzanna’s claims were barred by the statute of limitations. Chapter 16 of the Civil Practice & Remedies Code contains most of the statutes of limitations in Texas law. The two statutes he relied on were the 4-year statute for foreclosing on liens on real property and the 4-year “residual statute,” for actions “for which there is no express limitations period.” Tex. Civ. Prac. & Rem. Code §§ 16.035, 16.051. But statutes of limitations only apply to independent causes of action. Zuzanna, however, was not asserting an independent cause of action; she was trying to enforce a final judgment—to obtain the relief she had already been awarded. Therefore, the ordinary statutes of limitations set forth in Chapter 16 do not apply.

Rather, Chapter 9 of the Family Code governs the time limits for enforcing divorce decrees. Chapter 9 provides that a party has two years to enforce the division of “tangible personal property” and “future property.” Tex. Fam. Code § 9.003. But Chapter 9 is silent about the time limit for enforcing the division of real property.

We presume that the legislature chooses the language of a statute carefully, purposefully choosing each word that it includes and purposefully omitting words that it did not include. [¶] We believe it to be significant that the legislature did not include provisions in Chapter 9 of the Family Code that limit the time within which a party must seek to enforce the division of real property.

568 S.W.3d at 731 (citations omitted). In other words, there is no statute of limitations to enforce a property division (or at least Ronald didn’t carry his burden to prove it). Issue number one overruled.

Laches

Ronald argued that Zuzanna’s claims were barred by the related defense of laches. Laches is a time-based defense like limitations, but it is less mathematically strict. The elements of laches are (1) an unreasonable delay caused by the plaintiff in asserting some legal or equitable right, and (2) a goof-faith change in position by the defendant because of the delay.  528 S.W.3d at 732 (citing City of Fort Worth v. Johnson, 388 S.W.2d 400, 403 (Tex. 1964)).

But Ronald failed to prove unreasonable delay caused by Zuzanna. First, the reason it took her eight years to find the mineral interests was because Ronald failed to disclose them. Once she found them, she promptly researched the claims, hired lawyers, obtained the appropriate division orders, all “within two years after she discovered the existence of the mineral interests.”  528 S.W.2d at 732. When Ronald sued to stop her from taking the royalties, she promptly filed a counterclaim to enforce the property division. None of that delay was unreasonable. No unreasonable delay means no laches defense. Issue number two overruled.

Separate Property

Ronald argued that the oil and gas interests were his separate property and always had been, so the trial court could not divest him of his separate property rights, either in 2005 or 2013. But the time for proving separate property rights is the divorce itself, not in a later enforcement action. Any property held at the time of the divorce is presumed to be community property.  See Tex. Fam. Code § 3.003(a), Pearson v. Fillingim, 332 S.W.3d 361 (Tex. 2011). Because Ronald did not prove the separate property character of his mineral interests during the initial divorce proceedings, that issue could not be revisited—or visited for the first time—at the enforcement stage.

Adverse Possession

Ronald argued that, even if the mineral interests were community property and even if half the interests were awarded to Zuzanna in the divorce, he nevertheless should get to keep them under the doctrine of adverse possession. Adverse possession is one of the most controversial concepts in real property law. The basic idea is that a non-owner of real property can become the owner by making “an actual and visible appropriation” of the real property that “is inconsistent with and is hostile to the claim of another person” for a certain amount of time. Tex. Civ. Prac. & Rem. Code § 16.021(1). The requisite duration of the appropriation depends on the circumstances. For example, a person who merely cultivates, uses, or enjoys property “in peaceable and adverse possession” must do so for 10 years, while somebody who cultivates, uses, or enjoys the property and pays taxes and registers a deed need only wait 5 years. See Tex. Civ. Prac. & Rem. Code §§ 16.025(a); 16.026. Not everything can be adversely possessed. Mineral interests can be adversely possessed, but “nonpossessory interests, including royalty interests, are not subject to adverse possession.”  568 S.W.3d at 733 (citing Nat. Gas Pipeline Co. of America v. Pool, 124 S.W.3d 188, 192 (Tex. 2003)). The distinction between a mineral interest and a royalty interest is a bit beyond my ken, but the important thing to remember is that the adverse possessor bears the burden of proof. Ronald, however, “did not meet his burden to show ‘an actual and visible appropriation’ of the property.” 568 S.W.3d at 734. No appropriation means no adverse possession.

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