This is an appeal from a decision of the United States Bankruptcy Court for the Western District of Texas which overruled a judgment creditor's objection to appellee's claim of homestead exemption in a Chapter 11 bankruptcy proceeding. We reverse, holding that the property was not appellee's homestead when the creditor's judgment lien was perfected against it.

In August 1977, appellee Janis Armstrong (now Janis Claflin) purchased a townhome in Houston (Houston Property) while separated from her previous husband. She lived there with her three minor children claiming it as her homestead. In April 1978, the Houston Property was awarded to her as her separate property in a divorce decree. She continued to occupy the Houston Property with her children. In April 1980, she moved to Austin, Texas to live with David Claflin in a townhome (Austin Property) which he owned and claimed as his homestead. In August 1980, she married David Claflin, and they, eventually joined by her children, continued to live in the Austin Property, for which Janis Claflin evidently paid one half of all costs. The Houston Property was leased and occupied by unrelated persons during this time.

Janis and David Claflin both pursued professional careers in Austin. Janis Claflin had maintained a practice as a psychotherapist in Houston for ten years. In 1980, she began seeing patients in Austin and has testified that by December 1980 she had moved her practice to Austin on a full-time basis though she returned to Houston approximately once a week as a consultant on retainer for a foundation. She maintained an office in Austin and also worked under a management contract with a large corporation there. She has also founded an active organization in Austin, the Austin Center for Attitudinal Healing. David Claflin, an attorney, specialized in utilities law and practiced primarily before the Texas Public Utilities Commission in Austin.

In March 1981, Janis Claflin contracted with appellant Hillock Homes to purchase a house in Austin and put her Houston Property on the market. The contract to purchase the house in Austin was never consummated and was the subject of a lawsuit in Texas state court in which, on March 15, 1982, Hillock Homes secured a judgment against Janis Claflin for specific enforcement of the contract. On March 16, 1982, an abstract of that judgment was filed in both Travis (Austin) and Harris (Houston) Counties. This judgment was subsequently affirmed by the Texas Court of Appeals. Claflin v. Hillock Homes, Inc., 645 S.W.2d 629 (Tex.App.--Austin 1983). Pursuant to this judgment, Hillock Homes had a judgment for the sales price of the house and Janis Claflin had title to the house subject to a lien to secure payment of the judgment so that if the judgment were not paid by August 29, 1982, Hillock Homes could foreclose on the house. This lien was subsequently foreclosed with a resulting deficiency of over $80,000 in the amount of the judgment. It is the judgment in that suit which Hillock Homes is seeking to enforce against the Houston Property of Janis Claflin.

In June 1982, the Claflin family moved to rental property in Austin though David Claflin still owns the Austin townhome. On July 9, 1982, Janis Claflin filed a Chapter 11 petition in bankruptcy claiming her Houston Property as her homestead in the schedule of exempt property. Hillock Homes objected to the homestead claim and filed a Complaint for Relief from Stay seeking permission to foreclose its judgment lien against the Houston Property. Following a hearing, the Bankruptcy Court held that the Houston townhome did constitute the homestead of Janis Claflin and overruled Hillock's objection to her homestead claim. For the reasons stated below we reverse.

The Bankruptcy Court held that the Houston Property was the homestead of the Claflin family and therefore the exempt property of the debtor Janis Claflin. This conclusion was based on statements of Janis and David Claflin that they had agreed that the Houston Property would remain the separate property of Janis Claflin and would serve as the homestead for the family either to be lived in by the family in Houston or to be sold and the homestead transferred to new property (also to be the separate property of Janis Claflin) in Austin. The Bankruptcy Court stated that the facts indicated that the couple was attempting to do the latter.

Janis Claflin is claiming a homestead exemption under the laws of the State of Texas. The Constitution and statutes of Texas extend homestead protection to a family or to a single adult person. Tex.Const. art. 16, Sec. 50; Tex.Rev.Civ.Stat.Ann. art. 3833 (Vernon 1966) (now recodified at Tex.Prop.Code Ann. Sec. 41.001 (Vernon 1984)). Thus, Janis Armstrong had a valid claim of homestead in the Houston Property which she owned and occupied as a single adult. However, once she married, she could no longer claim homestead as a single adult. She and David Claflin established the Claflin family, and the question became: Where has the Claflin family designated a homestead? For, as the Texas Supreme Court has stated in a similar case, "after the new family was created by her remarriage, there was no homestead apart from that new family." Burk Royalty v. Riley, 475 S.W.2d 566, 567 (Tex.1972).1

There is no evidence that the Claflin family established a homestead in the Houston Property. In determining where the Claflin family established a homestead, we start with the proposition that Janis Claflin cannot show the existence of a homestead for the Claflin family by showing the existence of the prior homestead of Janis Armstrong as a single adult person. Cf. Burk Royalty, supra at 568 (cannot prove homestead for Riley family by showing prior existence of homestead of Harris family). Furthermore, the purpose of homestead exemption laws is to protect the possession and enjoyment of the individual in property which is used as his or her home. Texas law reflects this purpose by defining homestead property as property used as a home. Tex. Const. art. 16, Sec. 51; Tex.Rev.Civ.Stat.Ann. art. 3833 (Vernon 1966) (now recodified at Tex.Prop.Code Ann. Sec. 41.001 (Vernon 1984)). Neither the Claflin family nor any of its members has used or occupied the Houston Property as a home or made any firm or concrete plans to do so. Vague plans possibly to do so in the future (or to establish a totally different homestead in Austin) should not control over the Claflin family's actual use and occupancy as the (and the only) family home of property owned by one of the spouses. See Burk Royalty, supra at 567; In re Cumpton 30 B.R. 49, 51 (N.D.Tex.1983).

Moreover, a subjective intent to make property a homestead in the future must generally be evidenced by overt acts of preparation. Cheswick v. Freeman, 155 Tex. 372, 376, 287 S.W.2d 171, 173 (Tex.1956). Here, the parties asserted only a contingent future intent to move to the Houston Property if Janis Claflin could not establish herself professionally in Austin. She has been professionally successful in Austin, and all her overt actions indicate an intention to remain in Austin. After her marriage to David Claflin, Janis never lived in the Houston Property, but only in the Austin Property. There was no overt act of preparation evidencing a purpose to make the Houston Property the Claflin home within a reasonable time. Burk Royalty, supra at 569. If the vague, contingent and subjective intent of the spouses could control the designation of a homestead contrary to their actual use and occupancy as the (and the only) family home of other property owned by one or both of them, it would be impossible for anyone to know when a homestead claim might be valid.

The Bankruptcy Court did not follow the Texas Supreme Court decision in Burk Royalty because that opinion stated a presumption that when a husband and wife are living together the husband is the head of the household and therefore determines the homestead, Burk Royalty, supra at 568, although the court did acknowledge that a wife can designate a family homestead in certain circumstances. Id. at 569. It was the opinion of the Bankruptcy Court that "such a presumption would in this day and age fly in the face of the Equal Rights Amendment to the Texas Constitution and the Equal Protection Clause of the United States Constitution, [citing Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102, 59 L. Ed. 2d 306 (1979) (invalidating state statutory scheme under which husbands but not wives were required to pay alimony) ], and therefore, can not stand."

However, we do not apply that presumption to determine that the Claflin family had established a homestead in the Austin Property2 rather than the Houston Property, because no member of the Claflin family--neither husband nor wife--has established the Houston Property as the Claflin family homestead, and both have designated the Austin Property, owned by the husband, as the Claflin family homestead by their actual use and occupancy of it, and it alone, as the family home. Janis Claflin's newly acquired homestead rights in the Austin Property as a constituent member of the Claflin family are incompatible with an assertion of homestead rights in the Austin Property as a constituent member of the Claflin family are incompatible with an assertion of homestead rights in the Houston Property as "[t]he wife cannot have one homestead and the husband another." Crowder v. Union National Bank, 114 Tex. 34, 39, 261 S.W. 375, 377 (1924); In re Cumpton, supra at 51. The Austin Property was where Janis and David Claflin each actually resided and lived together as husband and wife, neither residing elsewhere, and it was owned by one of them; therefore, neither the status of that property as their family homestead, nor Janis' homestead rights in it, depends on which spouse owned the property, since "the homestead may be the separate property of either the husband or wife, or community property." Crowder, supra 261 S.W. at 377.

Appellees contend and the Bankruptcy Court further held that because Janis Claflin had a valid claim of homestead in the Houston Property as Janis Armstrong before her remarriage and because her statements regarding her intention to move to Austin to live permanently with her new husband did not meet the heavy burden of proving abandonment of an existing homestead--moving away with an intent not to return--which is presumed to continue absent such proof, Janis Claflin had a valid claim of homestead in the Houston Property. But, the Texas Supreme Court in Burk Royalty reversed the Court of Civil Appeals, which had analyzed this type of situation as an abandonment question, and pointed out that it is presumed that a homestead continues absent proof of abandonment only if the existence of the homestead is first proved.3 Like the family created by the remarriage in Burk Royalty, the Claflin family never proved the existence of a homestead in the Houston Property. Since Janis Claflin was no longer a single person and the Claflin family was the only family to which she then belonged, "her intent to claim or abandon a homestead for herself was no longer decisive." Burk Royalty, supra at 568.4

For the foregoing reasons we hold that the Houston Property was not Janis Claflin's homestead at the only relevant time, March 16, 1982. The contrary decision of the Bankruptcy Court is accordingly reversed.

REVERSED.