FT - Goebel v. Brandley (8/30/2005)

[Riser Adkisson LLP]

Herbert and Amy Goebel v. William Brandley
No. 14-04-00510-CV (Tex.App. 08/30/2005)

HERBERT AND AMY GOEBEL, AS NEXT FRIENDS AND PARENTS OF
KATIE GOEBEL AND BRENT GOEBEL, MINORS, Appellants v.
WILLIAM BRANDLEY, Appellee

NO. 14-04-00510-CV

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

2005 Tex. App. LEXIS 7076

August 30, 2005, Judgment Rendered

August 30, 2005, Opinion Filed

NOTICE: [*1] PLEASE CONSULT THE TEXAS RULES OF APPELLATE PROCEDURE
FOR CITATION OF MEMORANDUM OPINIONS AND UNPUBLISHED OPINIONS.

PRIOR HISTORY: On Appeal from the 215th District Court. Harris County, Texas. Trial Court Cause
No. 03-49054.

JUDGES: Panel consists of Justices Edelman, Seymore, and Guzman.

OPINIONBY: Eva M. Guzman

OPINION: Appellants, Herbert and Amy Goebel, as next friends and parents of Katie and Brent Goebel
(collectively "Goebels"), appeal a summary judgment in favor of appellee William Brandley,
claiming the trial court erred in concluding Amy Goebel's purchase of United States Savings Bonds
Series EE ("savings bonds") in her children's names, through payroll deductions, was a fraudulent
transfer under Texas Uniform Fraudulent Transfer Act ("TUFTA"). n1 Because the parties do not
dispute that Amy purchased the savings bonds with her wages, but Brandley failed to establish the
wages were "assets" as defined under TUFTA, we reverse the judgment of the trial court and render
judgment in favor of the Goebels.

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n1 See TEX. BUS. & COM. CODE ANN. §§ 24.001-.012 (Vernon 2002).

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I. FACTS AND PROCEDURAL BACKGROUND

The parties stipulated to the following facts. In January 1996, Amy entered into a voluntary
payroll deduction program offered by her employer UTMB-Galveston, in which she purchased a $ 200
savings bond each month for her minor son, Brent. The following year, in April 1997, Amy began
purchasing savings bonds through the program in the same amount for her minor daughter, Katie. At
the time of their purchase, the savings bonds were issued in the children's names. Amy continued
purchasing a $ 200 bond each month for each child through these payroll deductions until August
2003.

In March 2001, Brandley was awarded a judgment against Herbert and Amy for $ 37,433.52 in
connection with a property dispute. n2 In August 2003, Brandley filed suit against Herbert and
Amy, as next friends and parents of Katie and Brent, under TUFTA, claiming the savings bonds were
fraudulently transferred to the children.

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n2 Herbert and Amy filed a Chapter 7 bankruptcy proceeding on May 6, 2003, two years after
Brandley's judgment. At oral argument, the parties agreed the bankruptcy proceedings were
completed and Brandley's debt was "discharged." The Goebels do not raise any arguments concerning
the bankruptcy.

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Brandley filed a summary judgment motion, asserting that (1) Amy fraudulently transferred the
savings bonds after his claim arose, (2) she did not receive a reasonably equivalent value in
exchange for the transfer of those assets, and (3) Amy was insolvent at the time of the transfer.
The Goebels also filed a summary judgment motion claiming that there was no transfer of assets as
a matter of law because Amy purchased the savings bonds with her "current wages" which, as exempt
property, are not subject to TUFTA's provisions. In his response to the their motion, Brandley
incorporated the stipulation of facts executed by the parties. In addition to the facts set forth
above, the stipulation included, in pertinent part, the following:

At all times, Amy Goebel has maintained control over her participation in this voluntary payroll
deduction program.

At any time, Amy Goebel could have discontinued the payroll deduction used to purchase the savings
bonds in question.

Amy Goebel voluntarily used her wages to purchase savings bonds for Brent and Katie Goebel.

As their parent and legal guardian, Amy Goebel has always controlled Katie and Brent Goebel's
assets, including the [*4] U.S. savings bonds.

Katie and Brent Goebel paid no value for the savings bonds.

Amy and Herbert Goebel have been insolvent at all times since Brandley's March 6, 2001 judgment
against them.

The trial court entered a final judgment, granting summary judgment to Brandley, denying the
Goebels' motion, and ordering that Brandley recover $ 6,000 from Katie and $ 6,000 from Brent.
n3

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n3 The total awarded, $ 12,000, appears to represent the value of the savings bonds at maturity,
purchased from March 2001 through August 2003.

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II. DISCUSSION

In their first appellate issue, the Goebels contend the trial court erred in granting Brandley's
summary judgment motion because Amy purchased the savings bonds with her wages, prior to receipt
of those wages, and she began participating in the payroll deduction program several years before
Brandley's judgment. They also argue that Amy never owned the savings bonds because all were
purchased in the name of her children. Consequently, according to the Goebels, [*5] there was no
transfer of "assets" as defined under TUFTA and, therefore, they argue in their second issue that
Katie and Brent cannot be liable to Brandley for damages under that statute.

Brandley argues that Amy's participation in the payroll deduction program was entirely voluntary;
therefore, because she controlled the funds used to purchase the savings bonds, those wages were
not exempt as "current wages."

A. Standard of Review

Under the summary judgment standard of review, a movant has the burden to show at the trial level
that there are no genuine issues of material fact, and he is entitled to judgment as a matter of
law. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748, 42 Tex. Sup. Ct.
J. 428 (Tex. 1999). In determining whether there is a genuine fact issue precluding summary
judgment, evidence favorable to the non-movant is taken as true and we make all reasonable
inferences in his favor. Id. We review a trial court's summary judgment de novo. Valence Operating
Co. v. Dorsett, 164 S.W.3d 656, 661, 48 Tex. Sup. Ct. J. 671 (Tex. 2005). A movant is entitled to
summary judgment only if he conclusively proves all essential elements of his claim. Johnston v.
Crook, 93 S.W.3d 263, 273 (Tex. App.--Houston [14th Dist.] 2002, pet. denied) (citing MMP, Ltd. v.
Jones, 710 S.W.2d 59, 60, 29 Tex. Sup. Ct. J. 381 (Tex. 1986)).

When cross-motions for summary judgment are filed, a reviewing court examines all of the summary
judgment evidence presented by both sides, determines all questions presented and, if reversing,
renders such judgment as the trial court should have rendered. Bradley v. State ex rel. White, 990
S.W.2d 245, 247, 42 Tex. Sup. Ct. J. 513 (Tex. 1999); Vill. of Pheasant Run Homeowners Ass'n v.
Kastor, 47 S.W.3d 747, 750 (Tex. App.--Houston [14th Dist.] 2001, pet. denied). Each party must
carry its own summary judgment burden and neither can prevail due to the other's failure to meet
that burden. W.H.V., Inc. v. Assocs. Hous. Fin., LLC, 43 S.W.3d 83, 87 (Tex. App.--Dallas 2001,
pet. denied).

B. Fraudulent Transfers

TUFTA provides remedies to creditors of debtors who fraudulently transfer assets under certain
circumstances, as set out in the statute. See TEX. BUS. & COM. CODE ANN. §§ 24.005-.006, 24.008
(Vernon 2002); see also Kaufmann v. Morales, 93 S.W.3d 650, 653 (Tex. App.--Houston [14th Dist.]
2002, no pet.) ("The purpose of the TUFTA is to 'prevent fraudulent transfers of property by a
debtor who intends to defraud creditors by placing assets beyond their reach.'"). Although there
are different methods of establishing a claim under TUFTA, in this case Brandley acknowledges he
is not asserting any claims or allegations of fraud or fraudulent intent against the Goebels. He
moved for summary judgment based only on section 24.006(a) of the statute, which provides:

A transfer made or obligation incurred by a debtor is fraudulent as to a creditor whose claim
arose before the transfer was made or the obligation was incurred if the debtor made the transfer
or incurred the obligation without receiving a reasonably equivalent value in exchange for the
transfer or obligation and the debtor was insolvent at that time or the debtor became insolvent as
a result of the transfer or obligation.
TEX. BUS. & COM. CODE ANN. § 24.006(a). "Transfer" is defined as every manner of "disposing of or
parting with an asset or an interest in an asset," including the payment of money. See id. §
24.002(12).

[*8] 1. Asset

Under TUFTA, "asset" is defined as "property of a debtor," but does not include, as it relates to
this case, property to the extent it is generally exempt under non-bankruptcy law. See id. §
24.002(2). Section 42.001 of the Property Code expressly provides that "current wages" are exempt
from garnishment, attachment, or execution. See TEX. PROP. CODE ANN. § 42.001(a), (b)(1) (Vernon
2000).

In his summary judgment motion, Brandley stated "it is undisputed that [Amy] transferred $ 200 per
month in savings bonds to both Katie and Brent every month from the date of Brandley's judgment
until August, 2003." (Emphasis added). In support of his motion, Brandley attached copies of
interrogatories completed by Katie and Brent indicating Amy had purchased the savings bonds for
the children through the payroll deduction program. n4 In response to Brandley's summary judgment
motion, and in their own subsequent motion, the Goebels argued that the property Amy transferred
was her "current wages," which is exempt property falling outside the purview of TUFTA's
provisions. n5

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n4 Specifically, the interrogatory was as follows:
INTERROGATORY NO. 4:

Please identify every transfer made by your parents, or at your parents' authorization or
instruction, of savings bonds from January 1, 2001 to the present, including amount, date, and to
whom the transfer was made.

ANSWER: My parents, specifically my mother, has participated in an employer-sponsored payroll
deduction U.S. savings bond program monthly for her children since December, 1995.

There is no explanation in the record for the discrepancy in the parties' stipulations, which
stated Amy entered into the payroll deduction program in January 1996, and the response contained
in the interrogatory; however, the discrepancy is inconsequential here. Another interrogatory
requested Katie and Brent "identify every asset transferred to you from January 1, 2001 to the
present." The children objected to this interrogatory as being overly broad and ambiguous, and did
not provide a response.
[*9]

n5 As summary judgment evidence, the Goebels attached an affidavit from Amy stating she began
purchasing the savings bonds through her employer's payroll-deduction program in 1996 in Brent's
name, and in 1997, in Katie's name. She averred the payroll-deduction program was established
several years before Brandley's judgment as a savings fund for her children, and was not intended
to divert funds from any creditor. The Goebels also attached a copy of Burns v. Miller, Hiersche,
Martens & Hayward, P.C., 948 S.W.2d 317, 323 (Tex. App.--Dallas 1997, writ denied), in support of
their claim that the wages transferred were exempt property.

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Brandley argued in his reply that the savings bonds were not exempt, asserting it was an
"irrefutable fact" Amy fraudulently transferred assets. n6 He claimed that, because Amy had the
ability to stop the payroll deductions, her wages became nonexempt property. Brandley further
argued that wages, once received by the wage-earner, are no longer considered exempt property and
when Amy purchased the savings bonds, her wages lost their status as "current [*10] wages."

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n6 Although Brandley initially alleged that the property actually transferred was the savings
bonds, he does not dispute that the bonds were purchased in the children's names. See generally 31
C.F.R. §§ 315.15, 315.36-.39, 315.5, 315.62 (2004) (providing that savings bonds are issued only
in registered form, the registration must express the actual ownership of and interest in the
bond, and the registration is conclusive of ownership). Subsequent to his initial motion, Brandley
correctly argued that Amy's wages were the asset transferred. See id.; TEX. BUS. & COM. CODE ANN.
§ 24.007(3) (providing that a transfer is made when it becomes effective between the debtor and
the transferee).

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a. current wages

Under this State's constitution, current wages are exempt from garnishment. TEX. CONST. Art. XVI,
§ 28. Current wages are also exempt from attachment, execution or other seizure under the Property
Code. See TEX. PROP. CODE ANN. § 42.001(b)(1) [*11] . Generally, a conveyance of exempt property
may not be attacked as a fraud on creditors. Duran v. Henderson, 71 S.W.3d 833, 842-43 (Tex. App.-
-Texarkana 2002, pet. denied). The rationale underlying this rule is that the law already has
removed exempt property from the reach of creditors and conveyance of the property, whether
fraudulent or not, does not deprive a creditor of his rights in the property. Id. at 843. Under
TUFTA, if the property transferred is exempt, a defrauded creditor is not afforded any relief. See
TEX. BUS. & COM. CODE ANN. §§ 24.002(2), 24.002(12); Duran, 71 S.W.3d at 843.

In this case, the stipulated facts and the case law establish that the property transferred was
Amy's "current wages" and was, therefore, exempt property under TUFTA. The parties agreed that Amy
purchased the savings bonds with her "wages" through the payroll-deduction program. There is no
dispute that all the savings bonds were purchased through the program, nor any dispute that Amy
never directly received the subject wages. n7 Further, the savings bonds were purchased in the
children's names. Thus, under [*12] these circumstances, the assets transferred were Amy's
"current wages" and, to the extent those wages failed to qualify as "current wages" as a matter of
law, Brandley had the burden to prove that issue as the movant on that ground. n8

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n7 The following was contained in the stipulation of facts: "The funds used to purchase all
savings bonds at issue in this matter were wages that either were or could have been paid to Amy
Goebel." (Emphasis added). The inclusion of "either were" cannot be considered as conclusive
evidence that Amy received a paycheck for any of the subject wages. See Rosenboom Mach. & Tool,
Inc. v. Machala, 995 S.W.2d 817, 822 (Tex. App.--Houston [1st Dist.] 1999, pet. denied) (stating
that ambiguous or unclear stipulations should be disregarded by the trial court). The Goebels have
consistently asserted that Amy never received the wages transferred.

n8 We acknowledge that this court has previously determined that a party claiming an exemption
bears the burden of proving that exemption. See Roosth v. Roosth, 889 S.W.2d 445, 459 (Tex. App.--
Houston [14th Dist.] 1994, writ denied). But, Brandley, as the summary judgment movant, had the
burden to establish Amy's wages failed to qualify as "current wages" once the parties (1) agreed
that Amy's wages were transferred, and (2) that she had never directly received those wages.
Because it was Brandley's contention that Amy's "control" over those wages served to strip them of
their exempt status, it was his burden to prove that proposition as a matter of law.

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In support of his argument that Amy's wages lost their status as exempt property, Brandley relies
primarily on cases decided before 1989. Prior to that time, in determining whether wages were
subject to the turnover statute, n9 some Texas courts concluded that once the wages had been paid
and received by the debtor, they were no longer "current" wages. See Burns v. Miller, Hiersche,
Martens & Hayward, P.C., 948 S.W.2d 317, 323 (Tex. App.--Dallas 1997, writ denied). In 1989,
however, the legislature overruled that line of cases by amending the turnover statute to exclude
current wages from its scope, except in cases involving court-ordered child support. See Caulley
v. Caulley, 806 S.W.2d 795, 797-98, 34 Tex. Sup. Ct. J. 417 (Tex. 1991); Burns, 948 S.W.2d at 323.
Following the 1989 amendment, a court can no longer enter or enforce an order that requires the
turnover of the proceeds of, or the disbursement of, property exempt under any statute. See TEX.
CIV. PRAC. & REM. CODE ANN. § 31.002(f) (Vernon 1997); Burns, 948 S.W.2d at 323.

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n9 See TEX. CIV. PRAC. & REM. CODE ANN. § 31.002 (Vernon 1997 & Supp. 2004-05).

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Brandley attached copies of two cases to his motion, both unpublished, which stand for the
proposition that wages deposited in a bank account lose their status as "current wages." n10
Brandley also cited to a published case, Massachusetts Mutual Life Insurance v. Shoemaker, 849 F.
Supp. 30, 33 (S.D. Tex. 1994), in which the court noted that under Texas law, "wages cease to be
'current' for purposes of the exemption laws when they 'are paid to and received by the wage
earner.'" (Emphasis added). And, in his appellate brief, Brandley included a cite to Leibman v.
Grand, 981 S.W.2d 426, 435 (Tex. App.--El Paso 1998, no pet.), in which the appellate court, after
acknowledging the 1989 amendment to the turnover statute and its purpose to protect wages received
by the debtor, distinguished the situation present in that case as follows:
An entirely different situation is presented where a judgment debtor . . . voluntarily liquidates
exempt personal property, such as an automobile, and holds the funds for several months before
investing them in an exempt annuity. A finding that the funds realized from the sale of the
vehicle are not exempt, particularly [*15] where the judgment debtor has purchased a replacement
vehicle, does not defeat the purpose of the exemption provided by Section 42.002(a)(9). To hold
otherwise would permit Leibman to claim an exemption not only for his two automobiles but also for
the funds realized from the sale of a third vehicle. This we decline to do.
Id. at 435. Based on these authorities, Brandley asks us to construe Amy's ability to stop the
payroll deductions as her "receipt" of the wages. n11 Thus, Brandley's argument is in fact a
"constructive receipt" argument. Brandley, however, does not cite to any authority supporting his
"constructive receipt" theory. And, as indicated by the quotation from Leibman, the cases Brandley
relies on do not support his position under the facts of this case. Brandley also likens the
purchase of the savings bonds to depositing a paycheck into a bank account and, quoting from an
unpublished case, states "funds in a bank account, even when their stated use is to pay the
mortgage on the homestead, are not exempt." n12 Whether this is a correct statement of the law is
not the issue before us, however, because there is no dispute in this case that Amy did [*16] not
receive the subject wages and, certainly, no dispute that Amy had not deposited those wages into
her bank account.

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n10 See Guiberson v. Bohnefeld, No. 05-92-03011-CV, 1993 WL 175242, at * 1 (Tex. App.--Dallas May
24, 1993, writ denied) (not designated for publication); Tarter v. Akin & McMullen, P.C., No. 05-
90-01563-CV, 1991 WL 284467, at *5 (Tex. App.--Dallas December 20, 1991, no writ) (not designated
for publication).

n11 In addition, Brandley cites to a bankruptcy case decided in 1995, which concluded that under
Sloan v. Douglass, 713 S.W.2d 436, 440 (Tex. App.--Fort Worth 1986, writ ref'd n.r.e.), the
debtor's control over the wages was "an element to consider in determining whether wages are
current." In re Standel, 185 B.R. 227, 234 (N.D. Tex. 1995) (emphasis added). The Standel court
relied only on Sloan, a pre-amendment case, in reaching its conclusion. Regardless, Standel does
not stand for the proposition suggested by Brandley, that is, the ability to end a payroll
deduction program begun years prior to a creditor's receipt of judgment qualifies as "constructive
receipt" of wages such that they lose their exempt character for purposes of TUFTA. Indeed,
Standel indicates that the debtor's control over the wages is merely an element to consider in
determining whether the wages are "current." [*17]

n12 Brandley cites Tarter, 1991 WL 284467, at *5.

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Finally, notwithstanding the fact the cases relied on by Brandley are not binding precedent for
this court, those cases also involve more obvious or egregious circumstances of purposeful
avoidance of creditors than are present here. In this case, it is undisputed that Amy began the
payroll deductions years before Brandley received his judgment against the Goebels. It is also
undisputed that the savings bonds were issued in the children's names, and Amy never actually
received the wages. Because the purpose of TUFTA is to prevent fraudulent transfers of property by
a debtor who intends to defraud creditors by placing assets beyond their reach, concluding that
Amy's wages are no longer exempt under these circumstances would not further this statutory
purpose. See Tel. Equip. Network, Inc. v. TA/Westchase Place, Ltd., 80 S.W.3d 601, 607 (Tex. App.-
-Houston [1st Dist.] 2002, no pet.).

In sum, Brandley has failed to establish that Amy's wages lost their exempt character for purposes
of TUFTA merely because she [*18] had the ability to end the payroll deduction program. We cannot
conclude, as Brandley advocates, that Amy's voluntary participation--beginning several years prior
to Brandley's judgment--in a payroll deduction program to purchase savings bonds in her children's
names, with wages she did not receive, qualifies as a transfer of assets under TUFTA. We sustain
the Goebels' first issue presented and hold that Amy's wages deducted under the savings bond
payroll deduction program were exempt property and therefore, not "assets" as defined under TUFTA.
Consequently, Katie and Brent cannot be liable to Brandley for damages under TUFTA, and therefore
we sustain the Goebels' second issue. Accordingly, we reverse the trial court's judgment and
render a take-nothing judgment against Brandley in the Goebels' favor.

/s/ Eva M. Guzman

Justice