## Facts

- Royce Lourene Phillips and Clarence Ervin Phillips, Jr. divorced on May 8, 1990 in Navarro County, Texas.
- The divorce decree divided community property but did not mention or divide community rights in the 1989–1990 wheat crop or the 1990 grain-sorghum crop (or their proceeds).
- In April 1994, Royce filed a post-divorce action seeking partition of crop proceeds as undivided community property allegedly held by the parties as tenants in common.
- Clarence moved for summary judgment, arguing (1) the claim was time-barred by Texas Family Code § 3.90’s two-year limitations period and (2) the crops were not community property in existence at the time of divorce.
- Clarence’s affidavit asserted he planted the crops with community funds before the divorce, but claimed he had rejected Royce’s claim more than two years before suit by telling her he would not pay her half.
- Royce’s affidavit stated she confronted Clarence in 1990; he paid her $2,500 as her “half” of total proceeds; he repeatedly said he would address the balance; and on January 26, 1993 he finally told her he would not pay and there was nothing she could do.
- The trial court granted summary judgment for Clarence and ordered that Royce take nothing; the judgment did not state its ground.
- Royce perfected appeal but died intestate while the appeal was pending; the appeal continued.

## Issues

1. Whether summary judgment was proper on limitations under Texas Family Code § 3.90, including whether a fact issue existed about when Clarence unequivocally repudiated and communicated repudiation of Royce’s ownership interest.
2. Whether Royce could maintain a post-divorce partition claim under Texas Property Code § 23.001 for community property omitted from the divorce decree.
3. Whether summary judgment could be upheld on the ground that the crops/proceeds were not community property in existence at the time of divorce.

## Decision

- The court of appeals reversed the take-nothing summary judgment and remanded for trial.
- The court held genuine issues of material fact existed on when (if ever, before suit) Clarence unequivocally repudiated and communicated repudiation of Royce’s ownership interest under § 3.90.
- The court held Royce pled and was entitled to pursue partition under Property Code § 23.001 for property allegedly omitted from the divorce decree and jointly owned after divorce.
- Because the first two issues required reversal, the court did not affirm the judgment on an alternative ground.

## Legal Principles

- Community property not divided or awarded in a final divorce decree may be divided in a later suit; former spouses may hold such omitted property as tenants in common.
- Under Texas Family Code § 3.90, the two-year limitations period begins only when a former spouse (1) unequivocally repudiates the other’s ownership interest and (2) communicates that repudiation; conflicting evidence on that date precludes summary judgment.
- Texas Property Code § 23.001 authorizes partition of jointly owned property, including omitted community property held by former spouses after divorce.
- Partial payment or ongoing statements suggesting willingness to account for proceeds can support a fact question as to whether an earlier “repudiation” was unequivocal for § 3.90 purposes.

## Conclusion

The court of appeals reversed summary judgment because disputed evidence created fact questions about the limitations trigger under Family Code § 3.90, and because a post-divorce partition claim under Property Code § 23.001 is available to divide alleged community property omitted from the divorce decree.


Phillips v. Phillips, 951 S.W.2d 955 (Tex. App.—Waco 1997, no writ)