Debra Rae Winger v. Rickey Wayne Winger

• Court: Court of Appeals of Texas
• Decided: July 11, 2002
• Docket: 09-01-00188-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-01-188 CV

DEBRA RAE WINGER, Appellant

V.

RICKEY WAYNE WINGER, Appellee

On Appeal from the 356th District Court

Hardin County, Texas

Trial Cause No. 39,636

O P I N I O N

Debra Rae Winger appeals from the property division made concurrently with her divorce from Rickey Wayne Winger. The case was heard by the trial court without a jury. After denying Debra's motion for new trial, the trial court declined to make findings of fact and conclusion of law because they were requested untimely. ⁽¹⁾ Bringing two issues, Debra complains the trial court improperly included her separate real property in the community estate.

The property at issue, the Williford Road property, included a house and was deeded to Debra in 1994 by the Elliotts, an elderly couple she had known since she was a small child. The Elliotts were living in a nursing home when they conveyed their property to Debra. In 1996, Debra conveyed the property to her son, Scotty. Rickey filed his petition for divorce from Debra in 1999.

A trial court has broad discretion in dividing the marital estate in a manner that the court deems just and right. See Tex. Fam. Code Ann. § 7.001 (Vernon 1998); Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981); Toles v. Toles, 45 S.W.3d 252, 264 (Tex. App.--Dallas 2001, pet. denied). We will not disturb a trial court's property division unless the trial court clearly abuses that discretion. See Bell v. Bell, 513 S.W.2d 20, 22 (Tex.1974); Smith v. Smith, 22 S.W.3d 140, 143 (Tex. App.--Houston [14th Dist.] 2000, no pet.)(op. on reh'g). An abuse of discretion occurs when the trial court acts without reference to any guiding rules or principles, or, in other words, when it acts arbitrarily or unreasonably. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990)(citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985)).

As no findings of fact or conclusions of law were filed here, we must affirm the trial court's judgment on any legal theory that finds support in the evidence. See In the Interest of W.E.R., 669 S.W.2d 716, 717 (Tex.1984); Rayburn v. Rayburn, 979 S.W.2d 858, 860 (Tex. App.--Beaumont 1998, no pet.). We imply that the trial court made all the necessary findings to support its judgment. Worford, 801 S.W.2d at 109. When determining whether some evidence supports the judgment and implied findings of fact, we consider only the evidence most favorable to the judgment and disregard entirely evidence that is opposed to it or contrary in nature. Id.

In her first issue, Debra asserts the trial court erred in characterizing the Williford Road property as community property. She maintains the property was part of her separate estate as it was a gift to her from the Elliotts, and certain evidence supports that assertion. ⁽²⁾

But, regardless of whether Debra established that the Williford Road property was part of her separate estate, the record does not show that the trial court found to the contrary or characterized the Williford Road property as a community asset. What the trial court did decide was that Rickey's proposed property division contained in Exhibit 6 (entitled "Petitioner's Proposed Property Division") was a just, fair, and equitable division. The court approved the division and requested Rickey's counsel to prepare a final decree reflecting the ruling.

Neither the final decree nor the proposed property division, which was approved by the court, clearly indicate whether the trial court considered the Williford Road property to be separate or community. The trial court's final decree does not state whether it determined the Williford Road property to be separate or community, but simply awards it to Debra and divests Rickey of any interest in the property.

Exhibit 6's proposed property division is set out in two sections, designated respectively as "All to Wife" and "All to Husband." The "All to Wife" section has two subdivisions, the first of which lists various items from the "Wife's Separate Property" list, including the Williford Road property. The second subdivision has a notation at its beginning stating: "[t]he following numbers 1 through 54 are from the Community Property List." This second subdivision lists various items to be awarded to Debra. After item 54 of this list the exhibit stated:

Total of above community property to Wife not

counting the QDRO ................................. $28,483.86 (net after debt)

53. Home on Williford Road ........................$ 79,500

$28,483.86 plus Williford Road house = $107,983.86

Since the first subdivision of the Exhibit 6 included the Williford Road realty in the separate category and the second subdivision may have included the same property as community property, we cannot determine, absent findings of fact, whether the trial court considered the Williford Road tract to be community property or separate property. ⁽³⁾

Even if we assume the Williford Road property was Debra's separate property, the trial court was not required to make a equal division of the community estate. See Toles, 45 S.W.3d at 264 ("Equality in the division is not required, and [the appellate court] indulges every reasonable presumption in favor of the proper exercise of discretion by the trial court in dividing the community estate."). Further, the size of the separate property and the nature of the property are proper factors for the trial court to consider when dividing the community estate. See Murff, 615 S.W.2d at 699. Here, the trial court may have concluded the Williford Road property, valued at $79,500, would provide a residence for Debra while leaving the Winger Lane property, valued at $59,750 as residential property for Rickey.

In addition, some evidence supports an unequal division to Rickey. See Worford, 801 S.W.2d at 109 (In determining whether some evidence supports the judgment and implied findings of fact, the appellate court considers only the evidence most favorable to the issue and disregards entirely any opposing or contradictory evidence.) There is some evidence Debra spent community time and funds on the Elliotts and the Williford Road property. Debra spent community money defending a lawsuit filed over the property by third parties. Debra, after deeding the property to her son, co-signed with him on a loan for improvements to the property. There is some evidence she repaid the loan from a community account. Though Debra testified her son reimbursed her in cash for the loan payments, the trial court may not have believed this testimony. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). Debra and her son had an agreement that he would reconvey the property to her. There is also some evidence that Debra spent community time and assets taking care of the Elliotts.

Thus, some evidence supports the judgment under the theory that the trial court considered the property as separate but decided to make an unequal division of the community estate. Absent findings of fact, we disregard the contrary evidence, and cannot say the trial court abused its discretion. We overrule the first issue.

In her second issue, Debra maintains the trial court erred in including her separate property as part of the community asset division for two reasons: (1) the trial court mischaracterized the property and (2) the property was deeded out of her separate estate in 1996. Because of our disposition of issue one, we need not reconsider whether the trial court mischaracterized the Williford Road property as community or erred in doing so.

However, Debra also asserts that her conveyance of the property to her son, Scotty, precluded the trial court's consideration of the property in the property division. Debra testified she conveyed the property to Scotty in 1996 so he could obtain a home improvement loan, which she co-signed. However, Debra and Scotty had an agreement that when the house was "fixed up," he would reconvey the property to Debra.

Thus, even though she conveyed the Williford Road property several years before Rickey filed for divorce in 1999, Debra concedes she retained an equitable interest in the property. See Mills v. Gray, 147 Tex. 33, 210 S.W.2d 985, 988 (1948) (Under equitable doctrines, it is the valuable consideration, not legal title, that determines the equitable title or interest resulting from a transaction.) The trial court properly could have considered her equitable interest in the property as a factor in the property division. See Murff, 615 S.W.2d at 699 (The size and nature of the separate property are proper factors for the trial court to consider when dividing the community estate.) Issue two is overruled.

We affirm the trial court's decision.

AFFIRMED.

PER CURIAM

Submitted on June 24, 2002

Opinion Delivered July 11, 2002

Do Not Publish

Before Walker, C.J., Burgess and Gaultney, JJ.

1.

The request for findings of fact and conclusions of law are not part of the appellate record, but the trial court's ruling is, as it came at the conclusion of the hearing on Debra's motion for new trial.

2.

The Elliotts conveyed the property to Debra by a warranty deed reciting the consideration as one dollar and "other good and valuable consideration." Debra paid nothing for the property. See Powell v. Powell, 822 S.W.2d 181, 183 (Tex. App.--Houston [1st Dist.] 1991, writ denied)("A gift requires: (1) an intent to make a gift, (2) delivery of the property, and (3) acceptance of the property."). Mr. Elliott gave both supporting and contradicting testimony in a deposition given in another proceeding. Mr. Elliott testified that he and his wife intended to give the real property to Debra, i.e., the property where the Elliotts had their home. But he also testified that while he intended to will the property to Debra, he had not signed the deed conveying the property to Debra.

3.

Rickey asserts that Debra was awarded property valued at $28,483.86 plus $75,000 from the Goodyear plans for a total of $103,483.86, in addition to the Williford Road home, which had a value estimated from $55,000 to $79,500 for a grand total ranging from $158,483.86 to $182,983.86. Rickey asserts he was awarded property valued at $83,029.60, plus $75,000 from Goodyear. Debra does not contradict these figures.