in the Matter of the Marriage of Maria E. Svalesen and Scott B. Svalesen

• Court: Court of Appeals of Texas
• Decided: July 21, 2015
• Docket: 05-13-01151-CV
• Status: Published

Opinion

AFFIRMED; and Opinion Filed July 21, 2015.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-01151-CV

IN THE MATTER OF THE MARRIAGE OF MARIA E. SVALESEN AND SCOTT B. SVALESEN

On Appeal from the 302nd Judicial District Court Dallas County, Texas Trial Court Cause No. DF-12-12143-U

MEMORANDUM OPINION Before Justices Lang, Stoddart, and Schenck Opinion by Justice Lang

This is an appeal from the trial court’s final decree of divorce. In two issues, Scott B.

Svalesen asserts the trial court erred in (1) granting the divorce without any evidence satisfying

the residence and domicile requirements of section 6.301 of the Texas Family Code and (2)

awarding Maria E. Svalesen (Wife) a disproportionate share of the community property. We

affirm the trial court’s judgment.

I. BACKGROUND

Wife filed for divorce in July 2012 after nearly thirty years of marriage. As grounds, she

alleged insupportability and cruel treatment by Svalesen. Svalesen did not secure counsel, but

filed an answer pro se. Svalesen appeared pro se at trial on a bench warrant from jail, where he awaited a

criminal trial on assault charges described below. Trial proceeded with Wife’s presentation of

evidence.

Wife testified Svalesen had been emotionally abusive during the marriage and became

physically abusive towards the end of the marriage. Specifically, he assaulted her twice in the

first half of 2012, and assaulted her again after the divorce was filed.

The first assault occurred in January 2012 and caused a “massive rotator cuff tear” that

required surgery and physical therapy three times a week. She did not file a complaint, however,

and continued living with Svalesen. The second assault occurred in June 2012 and led to her

filing a complaint and obtaining a protective order. A week after this assault, Svalesen was

arrested for violating the protective order. In August 2012, he pleaded guilty to both the June

assault and protective order violation and was placed on deferred adjudication community

supervision for eighteen months. Two months later, he assaulted her a third time. Following this

assault, the State moved to adjudicate guilt and revoke probation and also charged Svalesen with

“assault family violence with a prior conviction.” Svalesen was arrested and remained in jail

awaiting a criminal trial.

Wife testified that she was afraid of Svalesen, and she sought a permanent injunction

prohibiting Svalesen from making contact with her, damages for the suffering, and expenses

associated with the assaults. She testified she owed “the hospital and [for] the surgery,” but did

not state the total amount owed. However, she testified she wanted the trial judge “to enter [in

the divorce decree] an amount . . . for pain and suffering in this case and for future medical and

present medical expenses” incurred. Wife testified also that she was seeking a disproportionate

division of the community property which consisted, in part, of a 2011 Ford Escape, “worth less

than the amount owed against it;” her pension plan with a “lump sum” of $357,000 from her

–2– thirty-year employment with AT&T; her 401(k), also from her employment with AT&T, with a

balance of $42,000; and a checking account with a balance of $900. Wife and Svalesen also

owned a house they purchased in 1999. The house had a swimming pool and was “in a great

area,” but needed some repairs. Also, the mortgage payments were not current. Wife testified

she tried to pay the $903 monthly mortgage payments and other living expenses by withdrawing,

at a penalty, funds from her 401(k), to make up for the loss of Svalesen’s support when he went

to jail. However, she fell behind three months in the mortgage payments. She testified she

wanted to sell the house and “start a new life.” She estimated a mortgage balance of $102,000

and a selling price between $145,000 and $150,000.

Wife asked to be awarded the car, the checking account in its entirety, her pension plan

and 401(k) in their entirety, and attorney’s fees in the amount of $20,262.89. She also asked the

house be sold, with any proceeds split equally between her and Svalesen. With respect to the

community debts, she asked the trial court order her to pay a certain Chase credit card, a “Bill

Me Later” account, the car note, and the mortgage until the house is sold. She asked Svalesen be

ordered to pay all credit card debt in his name.

Svalesen testified he “was a family man, and [] deserve[d] half of everything.” He helped

with their children when the children were younger and tried to offer Wife a better life than she

had as a child. According to Svalesen, she was abused by her father, and “mental illness” ran in

her family. Also, he testified Wife drank alcohol frequently and “heavily” and “passed out”

often. When she drank, he took care of her, helping her to bed, making sure she did not fall

asleep with a cigarette in her hand, keeping her away from the swimming pool, and waking her

up in the morning for work. Svalesen denied abusing Wife and testified her shoulder injury in

January 2012 occurred while she was drinking. Until about 2008 when he became disabled, he

worked in restaurants. He had no retirement benefits of his own, and his sole income was $1400

–3– per month in social security disability benefits. Svalesen agreed the house should be sold and

testified he wanted to move to New York.

After asking Wife and Svalesen a few clarifying questions, the trial judge orally

pronounced her ruling. Finding a history and pattern of family violence, the trial judge granted

the divorce on the ground of cruelty and granted permanent injunctive relief prohibiting Svalesen

from contacting Wife. The trial judge also awarded a disproportionate division of the property.

Specifically, with respect to the debt, she ordered each party to pay all debt in their individual

names and also ordered Wife to pay the car note. With respect to the house, she awarded Wife

exclusive possession of the house, ordered her to pay the mortgage until the house was sold, and

ordered any net proceeds be divided equally between Wife and Svalesen. As to the other

community property, she awarded Svalesen $15,000 from Wife’s 401(k), fifteen-percent of

Wife’s pension, his social security disability benefits, and all property in his possession or

subject to his control. The balance of the community property was awarded to Wife along with a

judgment against Svalesen for attorney’s fees in the amount requested. The trial court denied

“the requested relief for judgment for personal injury” based on insufficient evidence. The

divorce decree included the above provisions, but no findings of fact or conclusions of law were

rendered.

II. RESIDENCY REQUIREMENT

In his second issue, Svalesen argues the court erred in granting the divorce when no

evidence was presented of the residence of either party as required by section 6.301 of the Texas

Family Code. Wife responds that no evidence was necessary because she admitted in her

petition for divorce that she met the residency requirements. We agree with Wife.

A. Applicable Law and Standard of Review

–4– Section 6.301 provides that “[a] suit for divorce may not be maintained in this state

unless at the time the suit is filed either the petitioner or respondent has been: (1) a domiciliary of

this state for the preceding six-month period; and (2) a resident of the county in which the suit is

filed for the preceding 90-day period.” TEX. FAM. CODE ANN. § 6.301 (West 2006). These

requirements are not jurisdictional, but prescribe the necessary qualifications for bringing a suit

for divorce in Texas. Stallworth v. Stallworth, 201 S.W.3d 338, 345 (Tex. App.—Dallas 2006,

no pet.). Questions of residency and domicile as qualifications for a divorce action are fact

issues to be determined by the trial court, and an appellate court will not disturb the trial court’s

determination absent an abuse of discretion. Id. A statement in the petition for divorce that the

petitioner satisfies the residency and domicile requirements is considered a judicial admission in

the divorce and obviates the need for any evidence on that issue. Barnard v. Barnard, 133

S.W.3d 782, 785 (Tex. App.—Fort Worth 2004, pet. denied); see also Houston First Am. Sav. v.

Musick, 650 S.W.2d 764, 767 (Tex. 1983) (“Assertions of fact, not plead in the alternative, in the

live pleadings of a party are regarded as formal judicial admissions. Any fact admitted is

conclusively established in the case without the introduction of the pleadings or presentation of

other evidence.”).

B. Application of Law to Facts

Although Svalesen asserts the trial court erred in granting the divorce because no

evidence on residency was presented, none was necessary. In her second amended petition for

divorce, her live pleading, Wife stated she had been a domiciliary of Texas for the preceding six-

month period and a resident of Dallas County for the preceding ninety-day period. This

admission was unequivocal and conclusively established the residency requirements. See

Musick, 650 S.W.2d at 767; Barnard, 133 S.W.3d at 785. No further evidence was necessary,

and no error occurred in granting the divorce without specific evidence on the issue. See Musick,

–5– 650 S.W.2d at 767; Barnard, 133 S.W.3d at 785. We decide Svalesen’s second issue against

him.

III. PROPERTY DIVISION

In his first issue, Svalesen challenges the trial court’s division of property. Specifically,

he asserts the property division was manifestly unjust and unfair because (a) no evidence was

presented as to the amount of debt owed; (b) the trial court failed to “properly tak[e] into account

the factors set out in Murff v. Murff, 615 S.W.2d 696 (Tex. 1981); (c) it was “use[d] . . . to punish

[him] for his alleged wrongdoing;” (d) it was “so disproportionate” as to “shock[] the

conscience;” and, (e) the divorce was finalized before discovery was conducted. Wife responds

the trial court’s division of property was “right and just” in light of the record. Again, we agree

with Wife.

A. Standard of Review

An appellate court reviews a trial court’s division of property for abuse of discretion.

Reisler v. Reisler, 439 S.W.3d 615, 619 (Tex. App.—Dallas 2014, no pet.). A trial court abuses

its discretion when it acts arbitrarily, unreasonably, or without any reference to guiding rules and

principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).

In determining whether the trial court abused its discretion in a family law case, the

appellate court considers whether the trial court (1) had sufficient evidence upon which to

exercise its discretion and (2) erred in its application of that discretion. Hinton v. Burns, 433

S.W.3d 189, 193-94 (Tex. App.—Dallas 2014, no pet.). The first prong involves a review of the

trial court’s findings of fact supporting the judgment and requires an appellate court to give

substantial deference to the trial court’ determination of the weight and credibility of the

evidence. See Reisler, 439 S.W.3d at 620; In re C.A.S., 405 S.W.3d 373, 382-83 (Tex. App.—

Dallas 2013, no pet.). When, as here, no findings were requested or filed, all findings necessary –6– to support the judgment are implied. Worford, 821 S.W.2d at 109. Legally sufficient evidence

exists when “the evidence at trial . . . enable[s] reasonable and fair-minded people to reach the

verdict under review.” In re C.A.S., 405 S.W.3d at 382 (quoting City of Keller v. Wilson, 168

S.W.3d 802, 827 (Tex. 2005)). In evaluating the evidence for legal sufficiency, the appellate

court credits evidence that supports the finding if a reasonable fact finder could and disregards

contrary evidence unless a reasonable fact finder could not. Id. Factually sufficient evidence

exists when the evidence is not so against the great weight as to be clearly wrong and unjust. Id.

at 383. In evaluating the evidence for factual sufficiency, the appellate court considers all the

evidence in the record. Id. at 382-83. If the appellate court concludes sufficient evidence was

presented, the court then determines whether, based on the elicited evidence, the trial court made

a reasonable decision. Id. at 383. No abuse of discretion will be found if some evidence of a

substantive and probative character exists to support the decision. Id. The trial court is

presumed to have exercised its discretion properly, and a party complaining of the division of the

estate has the burden of showing from the evidence in the record that the division was so unjust

and unfair as to constitute an abuse of discretion. Murff, 615 S.W.2d at 699; In re C.A.S., 405

S.W.3d at 384. Generally, a party who does not provide the trial court any value for the property

cannot, on appeal, complain the trial court lacked information to properly divide the estate. In re

C.A.S., 405 S.W.3d at 385.

B. Applicable Law

A trial court is required to divide a divorcing parties’ estate “in a manner that the court

deems just and right, having due regard for the rights of each party.” TEX. FAM. CODE ANN. §

7.001 (West 2006). The division need not be equal, and an unequal division will be upheld on

appeal so long as a reasonable basis exists for it. Murff, 615 S.W.2d at 699; Rafidi v. Rafidi, 718

S.W.2d 43, 45 (Tex. App.—Dallas 1986, no writ). In exercising its discretion in dividing the

–7– estate, the trial court may consider many factors, commonly known as the “Murff factors,”

including:

•the nature of the property; •the disparity of incomes or earning capacities; •the parties’ business opportunities; •the parties’ relative financial condition and obligations; •the parties’ education and physical condition; •the disparity in ages; •fault in the break-up of the marriage; •the benefit the innocent spouse would have received had the marriage continued; •the size of any separate estates; and, •the probable need for future support.

Murff, 615 S.W.2d at 699; In re C.A.S., 405 S.W.3d at 384.

C. Application of Law to Facts

Svalesen bases his claim that the trial court‘s division of property was unjust and unfair

on his determination that the trial court awarded Wife approximately eighty-three percent of the

community estate and awarded him only seventeen percent of the estate. It is unclear how

Svalesen determined that proportion, but even assuming it is correct, we conclude sufficient

evidence was presented to support the trial court’s division of property. The trial judge heard

testimony of Svalesen’s abusive treatment of Wife, Wife’s withdrawal of retirement funds to

make ends meet after Svalesen was arrested and provided no support, the condition of the house,

the estimated mortgage balance, the estimated selling price of the house, Wife’s drinking,

Svalesen’s role in the family, Svalesen’s disability, and Svalesen’s desire to move to New York.

The trial judge “ha[d] the opportunity to observe the parties on the witness stand, determine their

credibility, [and] evaluate their needs and potentials, both social and economic.” Murff, 615

S.W.2d at 700. The trial judge found insufficient evidence to award Wife damages for the

suffering and expenses caused by the assaults, but, after hearing the parties’ testimony, found a

pattern of family violence. Although Svalesen denied at trial that he abused Wife, he does not

challenge the trial court’s ruling granting the divorce on the basis of cruel treatment, and, –8– because the trial judge determined the weight and credibility of the evidence, we will not disturb

the ruling. See Reisler, 439 S.W.3d at 620. We conclude Svalesen has failed to show from the

evidence in the record that the trial judge divided the community property as she did to punish

Svalesen or that the division was so unjust and unfair as to constitute an abuse of discretion. See

Ohendalski v. Ohendalski, 203 S.W.3d 910, 914 (Tex. App.—Beaumont 2006, no pet.) (award to

wife of eighty-one percent of community estate not abuse of discretion where sufficient evidence

showed husband committed adultery and was abusive towards wife); Rafidi, 718 S.W.2d at 45-

46 (award to wife of “85-90%” of community assets not abuse of discretion where evidence

supported finding husband concealed community assets); Morrison v. Morrison, 713 S.W.2d

377, 379-80 (Tex. App.—Dallas 1986, writ dism’d) (award to wife of “83.5%” of community

estate not abuse of discretion where husband committed adultery and misused funds).

In concluding the trial court’s property division was not an abuse of discretion, we

acknowledge no evidence was presented as to the amount of credit card debt, information that

would have been useful in determining how to divide the estate. However, Svalesen himself

failed to present evidence on this issue, even if only in regard to his debt. Accordingly, he

cannot complain now the trial court lacked information. Se In re CAS, 405 S.W.3d at 389

(concluding husband waived right to complain of trial court’s lack of information in dividing

contents of wife’s safe deposit box where neither party testified about value of items in box). To

the extent he complains he was unable to provide testimony regarding the amount of debt owed

because the divorce was finalized before discovery was conducted, we note the trial was on

March 14, 2013, eight months after Wife filed for divorce. As reason for not seeking discovery

during this eight-month period, Svalesen contends his incarceration prevented him from doing

so. However, he provided no evidence at trial showing he was unable to conduct discovery or

retain legal counsel to assist him while in jail or while he was on probation between August 2012

–9– and October 2012. As Wife points out, he filed an answer to the divorce petition while in jail

and presented a defense at trial. Further, the clerk’s record reflects he filed a pro se motion for

new trial from jail. On the record before us, we conclude no error occurred in finalizing the

divorce without discovery being conducted. We decide Svalesen’s first issue against him.

IV. CONCLUSION

Having decided Svalesen’s two issues against him, we affirm the trial court’s judgment.

131151F.P05

/Douglas S. Lang/ DOUGLAS S. LANG JUSTICE

–10– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

IN THE MATTER OF THE MARRIAGE On Appeal from the 302nd Judicial District OF MARIA E. SVALESEN AND SCOTT Court, Dallas County, Texas B. SVALESEN, Appellant Trial Court Cause No. DF-12-12143-U. Opinion delivered by Justice Lang. Justices No. 05-13-01151-CV Stoddart and Schenck participating.

In accordance with the Court’s opinion of this date, we AFFIRM the trial court’s judgment.

We ORDER that appellee Maria E. Svalesen recover her costs of this appeal from appellant Scott B. Svalesen.

Judgment entered this 21st day of July, 2015.

–11–