Johnson v. Johnson

804 S.W.2d 296, 1991 Tex. App. LEXIS 333, 1991 WL 12468
CourtCourt of Appeals of Texas
DecidedFebruary 7, 1991
Docket01-90-00322-CV
StatusPublished
Cited by19 cases

This text of 804 S.W.2d 296 (Johnson v. Johnson) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Johnson, 804 S.W.2d 296, 1991 Tex. App. LEXIS 333, 1991 WL 12468 (Tex. Ct. App. 1991).

Opinion

OPINION

DUNN, Justice.

The appellant, Alfred Edward Johnson, Jr., appeals from a final decree of divorce. The trial court appointed the appellee, Kathleen Jane Green Johnson, sole managing conservator of the parties’ two children and allowed the appellant only supervised visitation with the children. The appellant was ordered to pay the appellee $800 a month for child support. The trial court also divided the marital estate of the parties. Among the property awarded to the appellee was an inventory of firearms. The appellee was also granted a judgment for $25,000 against the appellant as part of the division of community property, which was secured by an equitable lien against the appellant’s separate real property.

Before trial, the appellant filed an inventory of all firearms. The inventory listed several of the firearms as the appellant’s *298 separate property with a notation that they were inherited from his father. The appel-lee also filed two inventories before trial. Each inventory listed the appellant’s firearms sales business as community property; the only asset of value listed for the business was the inventory of firearms. At trial, the appellee’s attorney stated that the only assets of the community estate were the inventory of firearms. The appellant referred to the firearms as his “dead father’s” firearms, but the appellant did not otherwise testify as to the character of the firearms, nor did he distinguish between the firearms that were his “dead father’s” and those that were inventory of the business. The appellee testified that she requested the firearm inventory be awarded to her as part of the division of the community estate.

A financial statement signed by the appellant on January 5, 1989, was admitted into evidence. The financial statement listed the appellant’s total annual income as $118,780. The appellant’s financial information statement was filed with the trial court in December 1989, one month after trial; therefore, it was not evidence before the trial court when considering child support.

The appellee testified that the appellant was a police officer in Phoenix for approximately 14 years until November 1987. She believed he was capable of making a net income of $3,000 a month. On the last joint income tax return they filed, in 1987, he declared at least $46,000 in income. However, she had no knowledge of how much income he made in 1988.

During her testimony at trial, the appel-lee referred to a social studies report prepared by the Harris County Juvenile Probation Department. The report is not part of the record before this Court, but the appel-lee testified that she agreed with the Department’s recommendation that the appellant not be allowed unsupervised visitation with the children based, partly, on alcohol abuse.

In the final decree, the trial court found its orders as to conservatorship and support were in the best interests of the children. In deviating from the standard possession order, the court found that the appellant had a history of alcohol abuse and abused alcohol at that time; that the appellant was a firearms dealer; that the appellant had all types of firearms in his possession; and that the children would be exposed to firearms when they were with the appellant. The court found that an investigative report of the parties and their home environment was made by the Harris County Juvenile Probation Department, and the investigator concluded that he could not recommend unsupervised visitation for the appellant until he was tested for alcohol abuse and treated, if necessary.

For clarity, the appellant’s three points of error will be discussed together.

The appellant first complains of the trial court’s division of property. He contends that the trial court erred in placing an equitable lien in favor of the appellee on his separate real property. He also contends that there was no evidence, or insufficient evidence, to support the placing of the lien on his separate real property and that the trial court abused its discretion in placing the lien on his separate real property. The appellant also contends the trial court erred in awarding the appellee firearms that the appellant now claims were his separate property. The appellant contends that the trial court abused its discretion in awarding the firearms, which were his separate property, to the appellee.

In determining whether there is no evidence to support a finding, an appellate court should consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. Sherman v. First Nat'l Bank, 760 S.W.2d 240, 242 (Tex.1988); Glockzin v. Rhea, 760 S.W.2d 665, 666 (Tex.App.-Houston [1st Dist.] 1988, writ denied). If there is any evidence to support the finding, the appellate court must uphold it. Sherman, 760 S.W.2d at 242; Glockzin, 760 S.W.2d at 666.

In determining whether the evidence is sufficient to support a finding, an appellate court should consider and weigh all evidence before the trial court. Cain v. Bain, *299 709 S.W.2d 175, 176 (Tex.1986); Glockzin, 760 S.W.2d at 666. Only if the finding is so against the great weight and preponderance of the evidence as to be manifestly unjust should an appellate court set the finding aside. Cain, 709 S.W.2d at 176; Glockzin, 760 S.W.2d at 666. An appellate court cannot substitute its opinion for that of the trier of fact and determine that it would reach a different conclusion. Glockzin, 760 S.W.2d at 666.

The trial court has wide discretion in dividing community property on divorce. Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex.1985). The trial court’s division will be disturbed on appeal only if a clear abuse of discretion is shown. Murff v. Murff, 615 S.W.2d 696, 698 (Tex.1981). In determining whether the trial court abused its discretion, an appellate court does not determine whether it would have decided a matter in a different manner. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). Rather, an appellate court determines if the trial court acted without reference to any guiding rules or principles. Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex.1986). If the trial court’s actions were arbitrary or unreasonable, an appellate court should find an abuse of discretion. Downer, 701 S.W.2d at 242; Parks v. U.S. Home Corp., 652 S.W.2d 479, 485 (Tex.App.-Houston [1st Dist.] 1983, writ dism’d).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

in the Interest of M.H. and T.H., Children
Court of Appeals of Texas, 2020
Michael Justin Jacobs v. Adana Alt
Court of Appeals of Texas, 2015
In Re Marriage of Swim
291 S.W.3d 500 (Court of Appeals of Texas, 2009)
in Re A.
Court of Appeals of Texas, 2006
Pace v. Pace
160 S.W.3d 706 (Court of Appeals of Texas, 2005)
In the Interest of D.S.
76 S.W.3d 512 (Court of Appeals of Texas, 2002)
In Re DS
76 S.W.3d 512 (Court of Appeals of Texas, 2002)
Rusk v. Rusk
5 S.W.3d 299 (Court of Appeals of Texas, 1999)
Robles v. Robles
965 S.W.2d 605 (Court of Appeals of Texas, 1998)
Heggen v. Pemelton
836 S.W.2d 145 (Texas Supreme Court, 1992)
Thompson v. Thompson
827 S.W.2d 563 (Court of Appeals of Texas, 1992)
Powell v. Powell
822 S.W.2d 181 (Court of Appeals of Texas, 1991)
Magill v. Magill
816 S.W.2d 530 (Court of Appeals of Texas, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
804 S.W.2d 296, 1991 Tex. App. LEXIS 333, 1991 WL 12468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-johnson-texapp-1991.