Haunting Your Ex From Beyond the Grave: Post-Divorce Partition and the Johnson Decision

In Johnson v. Dunham,[1] The Eastland Court of Appeals was tasked with determining whether a mineral interest, which was neither mentioned nor described in a final divorce decree, should be divided in a post-divorce partition. The Court of Appeals (the “Court”) affirmed the trial court’s judgement, holding that the lower court was within its discretion when it established the mineral interest (the “Subject Property”) as community property and awarded an undivided fifty percent to Johnson’s ex-wife.[2]

William G. Johnson (who is now deceased, and hereafter referred to as the “Decedent”) and Martha Dunham (“Dunham”) acquired the Subject Property in 1997, during their marriage, and thus as their community property. They divorced in 1999. However, although other real property was accurately described and divided, and other royalty and working interests were confirmed as the Decedent’s separate property, the Agreed Final Decree of Divorce did not explicitly mention or describe the Subject Property. The Decedent went on to remarry but passed away in 2010, leaving behind as his heirs his second wife, Paquita Johnson, and their son, Timothy Johnson (the “Johnsons”).

The dispute at hand arose in 2019 when Dunham filed suit to quiet title.  Dunham alleged that the Subject Property had not been specifically divided in the 1999 divorce decree, and she was entitled to her one-half community interest in the Subject Property.[3] Dunham requested that the trial court (1) determine the current ownership shares of the Subject Property and (2) partition the Subject Property in a “just and right” manner. The Johnsons counterclaimed that the Subject Property was already divided and had been properly awarded to the Decedent as his sole and separate property in the 1999 divorce decree. The Johnsons further asserted that the trial court had abused its discretion by altering the division of the property ex post facto in the 1999 divorce decree.[4]

Since the Subject Property was not specifically described in the 1999 divorce decree, the trial court began by determining whether the Subject Property was separate or community property.[5] Separate property is defined as (1) property owned or claimed by a spouse before marriage; (2) property acquired by the spouse during marriage by gift, devise, or descent; or (3) the recovery for personal injuries sustained by the spouse during marriage, excepting any recovery for loss of earning capacity.[6] Community property consists of property, other than separate property, that either spouse acquires during marriage.[7]

In this case, it was undisputed that the Subject Property was acquired during Dunham and the Decedent’s marriage. Further, the Johnsons did not assert that the Subject Property was acquired by gift, devise, or descent. Thus, the trial court determined that the Subject Property was community property and that it should have been divided equally between the Decedent and Dunham.[8]

The Johnsons contended that the trial court abused its discretion when it awarded Dunham an undivided fifty percent interest in the Subject Property, creating an “unenforceable order.”[9] The Family Code, they argued, prohibits a trial court from substantively altering or modifying the division of property that was made in a divorce decree.  However, the Court determined that this was not a modification, but rather a “post-divorce partition” of community property that was left undivided.[10] The Court relied on Haas v. Otto,[11] which stated that post-divorce partition is an appropriate vehicle to address an undivided or overlooked asset.[12]  Thus, the Court deemed that the trial court had divided the Subject Property in a just and right manner, and had not abused its discretion.[13]

When examining title, it is not uncommon to encounter a divorce decree that improperly describes or omits a mineral or royalty interest and does not expressly divide the “residual” community property.  In such a case it is prudent to remember the strong presumption that property acquired during a marriage is community property, entitling each party to one-half of said interest upon dissolution of the marriage.  In cases such as Johnson v. Dunham, as in the case of a deed or contract, Texas courts will seek to interpret the intent of a divorce decree using a “four corners” analysis.  If a mineral, royalty, or similar interest was not described or mentioned in the divorce decree, the appropriate remedy may be a post-divorce partition of the community property that was left undivided – even if it’s 20 years after the divorce!

[1] 2022 Tex. App. LEXIS 2144

[2] Id. at 25.

[3] Id. at 2.

[4] Id.

[5] Id. at 5.

[6] Id. at 8.

[7] Id.

[8] Id. at 9.

[9] Id. at 23.

[10] Id. at 24; Tex. Fam. Code § 9.201.

[11] 392 S.W.3d 290, 292 (Tex. App. Eastland 2012, no pet.).

[12] Johnson v. Dunham at 24.

[13] Id.