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Even when parties seem to agree on issues related to Texas property division, disputes may still arise.  In a recent case, a husband challenged a trial court’s treatment of certain property after seemingly agreeing to that treatment during the hearing.

The husband petitioned for divorce in May 2019.  The husband and wife stipulated that a particular parcel of land was the husband’s separate property, but the mobile home on that property was the wife’s separate property.

The husband testified he wanted to purchase the mobile home or sell the parcel and mobile home together and equally divide the proceeds.  He expressed a preference to buy the mobile home himself but also said there were buyers interested in purchasing them as a single asset.  The wife testified she wanted to sell the mobile home to the husband for $15,000 or alternatively to sell both together and divide the proceeds equally.  The husband responded “Yes” when asked if he agreed to sell the parcel and the mobile home together and split the proceeds. When he was asked about division of another piece of property, he said he thought the parties had reached agreement on the five-acre parcel and mobile home and thought they could also reach agreement on the larger parcel.  The trial court specifically told the husband that he was “not going to have the five acres and the mobile home. . .”


The trial court issued a final divorce decree and findings of fact and conclusions of law, ordering the parcel was the husband’s separate property and the mobile home was the wife’s separate property. The court also ordered the parcel and mobile home be listed for sale at fair market value with the net proceeds split equally between the parties.  The court also ordered that a receiver would be appointed on either party’s request if they were unable to agree on terms of a sale.  The trial court further ordered that either party could buy out the other’s separate property on mutual agreement. Additionally, the court awarded the wife unconditional appellate attorney’s fees if the husband appealed.

The husband appealed, arguing the trial court divested him of his separate property and that the trial court erred when it awarded the wife unconditional appellate attorney’s fees.


The appeals court found that if there was any error divesting the husband of his separate property, then the husband had invited it.  The Texas Supreme Court has recognized the invited error doctrine, which applies when a party complains of a court ruling that the party had requested.  A party cannot ask a court to take a specific action and then argue on appeal that action was erroneous.

The husband had testified he wanted to either purchase the mobile home or sell both the parcel and mobile home together and split the proceeds.  He testified that he agreed to sell them as a single asset and split the proceeds equally.

The husband argued the invited error doctrine did not apply because he had not personally requested the court order him to sell the parcel with the mobile home. The appeals court noted that the party does not have to make “an explicitly worded request” for the invited error doctrine to apply.  The appeals court also pointed out that the husband’s attorney had specifically requested the trial court order the parcel and mobile home as a single asset.  The husband argued it was unclear what was being referenced in that request, but the appeals court disagreed.  The attorney asked the court to consider “just selling the one asset. . .” and the wife’s attorney then said, “The five acres and mobile home.” The appeals court concluded the trial court could have reasonably understood the husband’s attorney to be referring to the parcel and mobile home when the exchange was viewed in the context of the hearing as a whole.  The appeals court also pointed out that the husband’s attorney did not respond to the wife’s attorney’s apparent clarification.  Because the husband’s attorney did not respond, the trial court reasonably interpreted the “one asset” to refer to “[t]he five acres and the mobile home” stated by the wife’s attorney.


The appeals court held the husband was estopped from complaining about the trial court’s treatment of the five-acre parcel because he had invited it.

The appeals court did, however, agree with the husband that the award of unconditional appellate attorney’s fees was an abuse of discretion.  Appellate attorney’s fees must be conditioned upon the party receiving the fees prevailing on appeal.  The appeals court modified the decree to make the appellate attorney’s fee award contingent on the wife’s success on appeal.

The appeals court affirmed the modified award of $5,000 in attorney’s fees to the wife.


It is important for parties to understand and be clear in what they request in a divorce proceeding.  An experienced Texas divorce attorney can help you understand the proceedings and clearly present your case.  Call 214.692.8200 to set up a consultation with McClure Law Group.

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