## Facts

- Edward M. McElwee (husband) and Mary Louise McElwee (wife) married in 1949.
- Mary filed for divorce in 1991; after trial, the court granted the divorce on the ground of Edward’s cruel treatment.
- The trial court divided the community estate approximately 60.8% to Mary and 39.2% to Edward, excluding five disputed properties (and related assets) it characterized as Mary’s separate property.
- Edward sought recusal of the trial judge and also argued the judge was disqualified.
- Edward appealed, arguing (1) erroneous denial of recusal, (2) disqualification, and (3) reversible error from mischaracterizing community property as Mary’s separate property.
- Mary argued, among other points, that Edward waived any complaint about mischaracterization by failing to object at trial.

## Issues

1. Whether Edward preserved error on his request to recuse the trial judge.
2. Whether the trial judge was constitutionally disqualified to preside over the case.
3. Whether the trial court mischaracterized community property as Mary’s separate property, and, if so, whether the error materially affected the just-and-right division.
4. Whether Edward waived appellate review of mischaracterization by not objecting to the property characterization in the trial court.

## Decision

- The court affirmed the denial of recusal, holding Edward waived the recusal complaint by failing to properly pursue it under applicable procedures.
- The court overruled the disqualification complaint because Edward did not establish a constitutional ground for disqualification.
- The court sustained Edward’s challenge to property characterization, holding the trial court mischaracterized community property as Mary’s separate property.
- The court held the mischaracterization materially affected the property division and therefore required reversal of the property division.
- The court rejected Mary’s waiver argument regarding mischaracterization and overruled her cross-point.
- The court affirmed in part, reversed in part, and remanded for a new property division.

## Legal Principles

- Property possessed by either spouse at dissolution is presumed community property; a spouse claiming separate property must rebut the presumption by clear and convincing evidence, typically through tracing.
- A trial court’s mischaracterization of community property as separate property is reversible error when it materially affects the just-and-right division of the community estate.
- When mischaracterization materially affects the division, the proper remedy is to reverse and remand for a new division of the community estate, rather than attempt a limited appellate reallocation.
- Recusal complaints may be waived if the moving party fails to follow required procedures to preserve the issue for appeal.
- Judicial disqualification requires proof of a constitutional disqualifying ground; absent such proof, the judge is not disqualified.

## Conclusion

The court upheld the trial judge’s continued participation (recusal waived; no constitutional disqualification shown) but reversed and remanded the property division because the trial court erroneously treated disputed assets as the wife’s separate property, and that error materially altered the just-and-right division of the community estate.


McElwee v. McElwee, 911 S.W.2d 182 (Tex. App.—Houston [1st Dist.] 1995, writ denied)