Khistina DeJean v. Leroy Spates Jr.

Affirmed and Memorandum Opinion filed April 18, 2024.

In The

Fourteenth Court of Appeals

NO. 14-22-00908-CV

KHISTINA DEJEAN, Appellant

V.
LEROY SPATES JR., Appellee

On Appeal from the 234th District Court
Harris County, Texas
Trial Court Cause No. 2021-17685

MEMORANDUM OPINION

This is an appeal from an order for the sale by judicial partition of a
single-family residential home (the “marital home”). See Uniform Partition of
Heirs’ Property Act, Tex. Prop. Code Ann. §§ 23A.001–.013 (“Act”). Appellee
Leroy Spates Jr. filed a petition for partition of the marital home; the trial court
ordered that the marital home be partitioned by sale and that Spates be reimbursed
for his mortgage principal payments. In two issues on appeal, appellant Khistina
Dejean argues that the trial court (1) erred by excluding evidence and (2) the
evidence is factually insufficient to support the trial court’s judgment. We affirm
the order of the trial court as challenged on appeal.

I. BACKGROUND

Following the death of his wife, Spates’s marital home became subject to a
seven-way cotenancy between wife’s six children from a prior marriage and
Spates. Dejean is one of the six children. A separate proceeding in a Harris
County probate court determined that Spates retained his undivided one-half
interest in the home and that each of the six children owned one-sixth of the
deceased wife’s undivided one-half interest.

As the surviving spouse, Spates had the exclusive right to possession of the
marital home as his homestead for his lifetime. Following the death of his wife,
Spates maintained the marital home—including mortgage, insurance premiums,
property taxes, maintenance and upkeep costs, and other home improvements. The
children, on the other hand, never contributed to any of these costs.

In February 2021, Dejean began occupying the marital home, changing the
locks and denying Spates his exclusive right to possession. Spates filed an
eviction proceeding against Dejean.

In March 2021, Spates filed a petition for partition of real property by
judicial sale. In addition to seeking to sell the marital home, Spates also sought
reimbursement from the remaining cotenant children for the mortgage principal
payments he made in full after his wife died.

In November 2021, the trial court determined that the evidentiary value of an
appraisal of the marital home was outweighed by the cost of the appraisal, and
that the fair market value of the marital home, based on the evidence presented,
was $176,909. See Act, Tex. Prop. Code Ann. § 23A.006(c).

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In May 2022, the trial court ordered the clerk of the court to send notice to
the children that it had determined the fair market value of the marital home. Id.
The trial court also ordered the clerk to issue a notice to the children that each
child had the right to buy Spates’s interest in the home, and, if electing to do so,
must send a notice of the child’s election to purchase that interest within 45 days
after the date of the notice. See Act, Tex. Prop. Code. Ann. § 23A.007(a), (b). In
August 2022, the trial court ordered the clerk of the court to send notice to the
children that none of the children had elected to purchase Spates’s interest. Act,
Tex. Prop. Code. Ann. § 23A.007(d)(3)(A). In December 2022, the trial court held
a hearing on Spates’s motion for sale by judicial partition. Dejean objected to the
partition and asserted her right to live in the home indefinitely. The trial court
issued a partition order, directing that the marital home be sold and the proceeds
be distributed, with Spates receiving half of the proceeds and each of the six
children receiving one-twelfth of the proceeds, minus $6,496.27 from each child’s
portion to be paid to Spates as reimbursement for his mortgage principal
payments.

Dejean filed a timely notice of appeal challenging the partition order.

II. ANALYSIS

A. Exclusion of evidence

In her first issue, Dejean argues that the trial court erred in excluding critical
evidence presented at the hearing in December 2022. However, without a
reporter’s record, an appellate court cannot review a trial court’s decision for an
abuse of discretion. See Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex.
1990) (“The burden is on the appellant to see that a sufficient record is presented to
show error requiring reversal.”); Sandoval v. Comm'n for Lawyer Discipline, 25
S.W.3d 720, 722 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (observing
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that when there is no reporter’s record, appellate court must presume evidence
presented was sufficient to support the trial court’s judgment). We also note that
Dejean does not clearly identify what the trial court excluded or why it was error to
do so. See Lundy v. Masson, 260 S.W.3d 482, 503 (Tex. App.—Houston [14th
Dist.] 2008, pet. denied) (stating that appellate court was “not required to do the
job of the advocate”).

Accordingly, we overrule Dejean’s first issue.

B. Partition order

We construe Dejean’s second and third issues as asserting that the trial court
abused its discretion by issuing the partition order.1

“The rules of equity govern the trial court’s partition of property.” Bowman
v. Stephens, 569 S.W.3d 210, 223 (Tex. App.—Houston [1st Dist.] 2018, no pet.).
In matters of equity, we review the trial court’s decision for an abuse of discretion.
See Wagner & Brown, Ltd. v. Sheppard, 282 S.W.3d 419, 428–29 (Tex. 2008). A
trial court abuses its discretion when it acts unreasonably or in an arbitrary manner
without reference to guiding rules or principles. See Samlowski v. Wooten, 332
S.W.3d 404, 410 (Tex. 2011).

Under an abuse-of-discretion standard, legal and factual sufficiency are not
independent grounds for reversal, they are simply relevant factors in determining if
the trial court abused its discretion. See Beaumont Bank, N.A. v. Buller, 806
S.W.2d 223, 226 (Tex. 1991). When an appealing party attacks the factual

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In her second issue, Dejean argues, “There factually is not sufficient evidence to support
[the] judgment of the trial court.” See Bowman v. Stephens, 569 S.W.3d 210, 223 (Tex. App.—
Houston [1st Dist.] 2018, no pet.).
In her third issue, Dejean states: “Why was I taken out of a home that is the property of
Velma Caldwell Spates 6 children[.] I Khistina Dejean said I wanted it move in paid taxes [sic]
Why haven’t police given me a detective for my assault[?]”

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sufficiency of an adverse finding on an issue on which it did not have the burden of
proof, that party must demonstrate the finding is so contrary to the overwhelming
weight of the evidence as to be clearly wrong and manifestly unjust. See Croucher
v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). In a factual-sufficiency challenge, all
the evidence in the record, both for and against the finding, is reviewed. See id.

The Act provides a process by which heirs can either force partition in kind
or effectuate the buyout of undivided interests in inherited property. “The right to
partition is absolute.” See Carter v. Charles, 853 S.W.2d 667, 671 (Tex. App.—
Houston [14th Dist.] 1993, no writ).

The law will not force a reluctant joint owner of real property to maintain a
joint ownership. Bowman, 569 S.W.3d at 220. Instead, joint owners of real
property “may compel a partition of the interest or the property among the joint
owners.” Tex. Prop. Code Ann. § 23.001. Partitions may be in kind (the property is
divided into separate parcels and each parcel is allotted to a separate owner) or by
sale (the property is sold and sale proceeds are divided among the owners).
Bowman, 569 S.W.3d at 220. Texas law favors partition in kind over partition by
sale. Id.

The threshold question in a partition suit is whether the property is
“susceptible of partition” in kind, or if it is “incapable of partition” in kind because
a “fair and equitable division” cannot be made. See Tex. R. Civ. P. 761, 770. Texas
courts have found that single-family homes, like the marital home in the present
case, are not susceptible to partition in kind. See Beago v. Ceres, 619 S.W.2d 293,
295 (Tex. App.—Houston [1st Dist.] 1981, no writ); see also Rough v. Rough, No.
05-90-00843-CV, 1991 WL 97521, at *4 (Tex. App.—Dallas June 4, 1991, writ
denied) (not designated for publication) (observing that “a single family home is
generally not suitable for partition in kind”). The fact that Dejean was living at the

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marital home does not defeat Spates’s right to partition the home. See Grant v.
Clouser, 287 S.W.3d 914, 920 (Tex. App.—Houston [14th Dist.] 2009, no pet.)
(“The general rule is that homestead rights attaching to property interests held by a
cotenant are subordinate to another cotenant’s right to partition.”). Therefore, the
trial court did not err by partitioning the marital home by sale.

If the trial court determines property is not susceptible to partition in kind,
then the trial court must order partition by sale. Tex. R. Civ. P. 770. “[I]if no
cotenant elects to buy all the interests of the cotenant that requested partition by
sale, the court shall: (A) send notice to all the parties of that fact; and (B) resolve
the partition action under Section 23A.008(a) or (b).” Act, Tex. Prop. Code Ann.
§ 23A.007(d)(3). The trial court properly followed these steps.

“On partition, a cotenant who expends funds necessary to protect or preserve
the common property is entitled to have those expenditures charged to the tenants
in common according to their pro rata ownership.” McGehee v. Campbell, No.
01-08-1023-CV, 2010 WL 1241300, at *3 (Tex. App.—Houston [1st Dist.] Mar.
25, 2010, no pet.); see Henry v. Brooks, 651 S.W.3d 657, 663 (Tex. App.—Tyler
2022, no pet.) (“[I]f one cotenant pays more than her share of a mortgage or makes
an outlay for necessary or proper preservation of the property, she is entitled to
reimbursement from her cotenants.”). Here, Spates paid $44,367.00 towards the
mortgage principal during the applicable period. According to his expert, the
present-day value of that amount was $77,967.27. Because Spates owns an
undivided half of the community-property interest in the marital residence, the trial
court correctly ordered the remaining cotenants to reimburse appellee for half of
that amount: $38,983.63.

We conclude the trial court did not abuse its discretion in ordering a partition
by sale. We overrule Dejean’s second and third issues.

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III. CONCLUSION

We affirm the judgment of the trial court as challenged on appeal.

/s/ Charles A. Spain
Justice

Panel consists of Justices Jewell, Spain, and Wilson.

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