Mcelwee v. Mcelwee

Judgement affirmed in part, reversed and remanded in part and Opinion filed November 2, 1995 11/2/95 OPINION Appellant, Edward M. McElwee, the respondent in the trial court below, appealed from a judgement of divorce and a property division. The three issues before this Court are: (1) whether the trial court erred in denying appellant's motion to recuse Judge Bill Elliott; (2) whether Judge Elliott was disqualified to hear the matter; and (3) whether the trial court committed reversible error in mischaracterizing community property as separate property of the appellee, Mary Louise McElwee. Because appellant has waived the issue of recusal and because appellant did not show Judge Elliott was disqualified, we affirm the trial court's denial of the motion to recuse and overrule appellant's point of error regarding disqualification. Because the trial court's mischaracterization of community property materially affected the property division, we sustain appellant's second point of error. Finally, having found merit in appellant's arguments, we overrule appellee's cross-point. Summary of Facts Edward M. McElwee (Edward) and Mary Louise McElwee (Mary) were married on October 8, 1949. At the time of their marriage, Edward worked as a United States Air Force jet fighter pilot and Mary attended college.