Linda Lucile Hallum v. Lloyd Thomas Hallum

• Court: Court of Appeals of Texas
• Decided: December 2, 2010
• Docket: 01-09-00095-CV
• Status: Published

Opinion

Opinion issued December 2, 2010

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-00095-CV

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Linda Lucile Hallum, Appellant

V.

Lloyd Thomas Hallum, Appellee

On Appeal from the 312th Judicial District Court

Harris County, Texas

Trial Court Case No. 2004-58399

MEMORANDUM OPINION

          Appellant, Linda Lucile Hallum, appeals from the trial court’s judgment ordering a final decree of divorce from appellee, Lloyd Thomas Hallum.  In four issues, Linda contends that the trial court erred in quashing appellant’s subpoena, in characterizing certain properties as Lloyd’s separate property, and in dividing the property of the marital estate.  We hold that the trial court properly quashed appellant’s subpoena and properly characterized the properties in question as Lloyd’s separate property.  We also hold that, in the absence of findings of fact, we cannot conclude that the trial court abused its discretion in dividing the estate.  Accordingly, we affirm.

Background

          Linda and Lloyd married on March 1, 1970, and separated on October 12, 2004.        Nine days after separating, Linda filed her original petition for divorce from Lloyd.  The 312th Judicial District Court held two bench trials in the divorce proceeding.  The first trial took place in June 2007, and the second took place in May 2008. 

          On August 20, 2003, while Linda and Lloyd were still together, Jack Burns executed three deeds purporting to convey to Lloyd certain undivided, fractional interests in real property located in the Houston Heights subdivision (herein the “Heights Properties”).  At the time of the first trial, the total appraisal value of the fractional interests was approximately $440,000.  Each deed states:

[The grantors,] in consideration of the execution of the trust hereinabove mentioned, and in further consideration of the sum of Ten Dollars ($10.00) to them in hand paid by the said LLOYD T. HALLUM, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, have sold, granted, and conveyed, and by these presents do hereby sell, grant and convey unto the said LLOYD T. HALLUM, all of the undivided . . .

Nowhere in the three deeds does it expressly state that the conveyance was a gift or that the stated consideration was to be paid out of Lloyd’s separate property.

          In June 2007, the trial court conducted the first trial, determining that the Heights Properties were Lloyd’s separate property.  During that trial, the following was adduced.  Lloyd became Mr. Burns’ stepson when Mr. Burns married Lloyd’s mother.  After Lloyd’s mother died, Mr. Burns continued to be a father figure to Lloyd.  In April 2004, Mr. Burns was in the hospital dying when he delivered the three deeds to Lloyd.  Lloyd testified that Mr. Burns was aware Lloyd and Linda had marital trouble and that Mr. Burns did not intend Linda to have any interest in the Heights Properties.

          Lasca Burns, who was Mr. Burns’s wife at the time of the conveyance, testified that Mr. Burns loved Lloyd “very, very much” and that he first introduced Lloyd to her “as his son.”  Mrs. Burns testified that she was present when Mr. Burns instructed his lawyer to prepare the deeds and that Mr. Burns said to his lawyer, “I want my son Lloyd Hallum to have these lots as separate property.”  According to Mrs. Burns, Mr. Burns prepared and filed an IRS gift tax return for the Heights Properties.  Although she had never seen the gift tax return, she claimed that her then-husband signed it and gave it to her to mail.  When asked if she brought the form, she testified that she could not find a copy of it.  Before trial, Linda had served upon Mrs. Burns a subpoena duces tecum requesting her to bring to court a copy of the purported IRS gift tax return showing that gift taxes were paid on the transfer of the Heights Properties.  Mrs. Burns filed a motion to quash the subpoena, which was granted by the trial court.

          Before trial, the court entered three temporary spousal support orders and, at a subsequent hearing, ordered a fourth support obligation.  The first order directed Lloyd to pay $3,500 per month from November 15, 2004, through June 2006, totaling $68,250 over nineteen months and two weeks.  The second order directed Lloyd to pay $5,984 per month from July 1, 2006, through December 2006, totaling $35,904 over six months.  The third order directed Lloyd to pay $3,942 per month from January 1, 2007, through March 2007, totaling $11,826 over three months.  Although there was no fourth written order, at a subsequent hearing, the temporary support obligation was again modified, directing Lloyd to pay $2,425 per month starting on April 1, 2007.

          In May 2008, the trial court conducted the second trial to determine all other issues.  The court announced its findings in June 2008, which were reduced to writing when the court signed the Final Divorce Decree in November 2008.  In February 2009, the trial court denied Linda’s motion for new trial and signed the amended divorce decree.  The trial court found that Linda had the use and benefit of $385,000 in community assets since the separation and that Lloyd had made all support payments that he was ordered to pay through the trial court’s temporary orders.

Division of the Marital Estate

          In her first, third, and fourth issues, Linda contends that the trial court abused its discretion in dividing the property of the martial estate because the evidence was insufficient to support its findings.

A.      Standard of Review

An appellate court must reverse and remand the entire estate for a new division of property if the trial court committed reversible error that materially affects the trial court’s “just and right” division of the marital estate.  See Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex. 1985).  An appellate court will reverse a trial court’s “just and right” division only if the complaining party shows that the trial court clearly abused its discretion.  Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981); Hailey v. Hailey, 176 S.W.3d 374, 380 (Tex. App.—Houston [1st Dist.] 2004, no pet.).  A trial court abuses its discretion if acts arbitrarily, unreasonably, without reference to any guiding rules and principles, or without sufficient supporting evidence.  Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985); Raymond v. Raymond, 190 S.W.3d 77, 83 (Tex. App.—Houston [1st Dist.] 2005, no pet.); Hailey, 176 S.W.3d at 380.  An appellate court presumes that the trial court properly exercised its discretion.  Murff, 615 S.W.2d at 699.

Under the abuse of discretion standard, an appellate court reviews the evidence in the light most favorable to the order and indulges every presumption in favor of the trial court’s order.  See Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992); Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.—Houston [1st Dist.] 1993, writ denied).  An appellate court draws every reasonable inference supported by the record in favor of the trial court’s judgment.  Gainous v. Gainous, 219 S.W.3d 97, 103 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).  In an appeal from a bench trial, an appellate court reviews de novo a trial court’s conclusions of law and will uphold them on appeal if the judgment can be sustained on any legal theory supported by the evidence.  BMC Software Belgium v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); Hailey, 176 S.W.3d at 383.  In the absence of findings of fact or conclusions of law, an appellate court must presume that the trial court made all the findings necessary to support its judgment.  Boyd v. Boyd, 131 S.W.3d 605, 611 (Tex. App.—Fort Worth 2004, no pet.) (citing Pharo v. Chambers County, 922 S.W.2d 945, 948 (Tex. 1996)). 

When the appellate record includes the reporter’s record, the trial court’s factual findings, whether express or implied, are not conclusive and may be challenged for legal and factual sufficiency of the evidence supporting them.  See Middleton v. Kawasaki Steel Corp., 687 S.W.2d 42, 44 (Tex. App.—Houston [14th Dist.] 1985), writ refused n.r.e., 699 S.W.2d 199 (Tex. 1985); Tucker v. Tucker, 908 S.W.2d 530, 532 (Tex. App.—San Antonio 1995, writ denied).  Legal and factual insufficiency are not independent grounds of error but rather are relevant factors in an appellate court’s assessment of whether the trial court abused its discretion.  Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex. App.—Austin 2006, pet. denied).  That is, to determine whether there has been an abuse of discretion because the evidence is legally or factually insufficient to support the trial court’s decision, an appellate court engages in a two-pronged inquiry, determining whether (1) the district court had sufficient evidence upon which to exercise its discretion, and (2) the district court erred in its application of that discretion.  Id. at 588. 

To determine whether there is legally sufficient evidence to support a finding, an appellate court considers only the evidence and inferences that support the finding and disregards all evidence and inferences that support the contrary.  Sherman v. First Nat’l Bank, 760 S.W.2d 240, 242 (Tex. 1988); Raymond, 190 S.W.3d at 80.  If there is any evidence to support the finding, an appellate court must uphold the finding.  Sherman, 760 S.W.2d at 242; Raymond, 190 S.W.3d at 80.  Evidence is legally insufficient (1) when there is a complete absence of a vital fact; (2) when rules of law or evidence preclude according weight to the only evidence offered to prove a vital fact; (3) when the evidence offered to prove a vital fact is no more than a scintilla; or (4) when the evidence conclusively establishes the opposite of the vital fact.  City of Keller v. Wilson, 168 S.W.3d 802, 810, 815–16 (Tex. 2005).  In determining the legal sufficiency of the evidence, an appellate court must consider evidence favorable to the finding if a reasonable fact finder could and disregard evidence contrary to the finding unless a reasonable fact finder could not.  Id. at 827.  An appellate court reviews the evidence in the light most favorable to the finding.  Diamond Shamrock Ref. Co., L.P. v. Hall, 168 S.W.3d 164, 170 (Tex. 2005).

          To determine whether the evidence was factually sufficient to support a finding, an appellate court considers and weighs all evidence that was before the trial court.  Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Raymond, 190 S.W.3d at 80.  When an appellant attacks the factual sufficiency of an adverse finding on an issue on which he did not have the burden of proof, the appellant must demonstrate the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust.  See Cain, 709 S.W.2d at 176.  When an appellant attacks the factual sufficiency of an adverse finding on an issue for which he had the burden of proof, the appellant must demonstrate that the adverse finding is against the great weight and preponderance of the evidence.  Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).  An appellate court must not merely substitute its judgment for that of the fact finder.  Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).

          B.      Applicable Law

          In a decree of divorce, a trial court must “order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.”  Tex. Fam. Code Ann. § 7.001 (Vernon 2006).  A “just and right” division does not require a trial court to divide the marital estate into equal shares.  Murff, 615 S.W.2d at 698–99 & n.1 (recognizing that community property need not be equally divided); Schuster v. Schuster, 690 S.W.2d 644, 645 (Tex. App.—Austin 1985, no writ).  In dividing the marital estate, a trial court may consider the following nonexclusive factors:  disparity of incomes, earning capacities of the parties, financial obligations, fault in the breakup of the marriage, benefits which the party not at fault would have derived from a continuation of the marriage, education of each spouse, and the nature of the property to be divided.  Murff, 615 S.W.2d at 698–99. 

In a decree of divorce, a trial court may divide only the parties’ community property.  Jacobs, 687 S.W.2d at 733.  Separate property includes, among other things, property owned or claimed by a spouse before marriage.  See Tex. Const. art. XVI, § 15 (“All property, both real and personal, of a spouse owned or claimed before marriage, and that acquired afterward by gift, devise or descent, shall be the separate property of that spouse. . . .”); Tex. Fam. Code Ann. § 3.001 (Vernon 2006) (defines separate property as that property owned by spouse before marriage, acquired during marriage by gift, devise, or descent, or as recovery for personal injuries sustained during marriage).  The characterization of property as community or separate is determined by the inception of title, i.e., when a party first has a right of claim to the property by virtue of which title is finally vested.  Tex. Fam. Code Ann. § 3.404(a) (Vernon Supp. 2010); Chavez v. Chavez, 269 S.W.3d 763, 767 (Tex. App.—Dallas 2008, no pet.).  “Once separate property character attaches, that character does not change because community funds are spent to improve the property.”  Leighton v. Leighton, 921 S.W.2d 365, 367 (Tex. App.—Houston [1st Dist.] 1996, no writ).

A gift is a voluntary transfer of property from one person to another made gratuitously and without consideration.  Hilley v. Hilley, 161 Tex. 569, 342 S.W.2d 565, 569 (1961); In re L.R.P., 98 S.W.3d 312, 314 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d).  Three elements are required to establish the existence of a gift:  (1) intent to make a gift; (2) delivery of the property; and (3) acceptance of the property.  Delahoussaye v. Kana, 01-07-00579-CV, 2008 WL 4890131 (Tex. App.—Houston [1st Dist.] Nov. 13, 2008, pet. denied) (mem. op.).

Property possessed by either spouse in the course of marriage is generally presumed to be community property.  Tex. Fam. Code Ann. § 3.003(a) (Vernon 2006).  To overcome the community property presumption, a party claiming marital property as separate property must prove the claim with clear and convincing evidence.  Id. § 3.003(b).  When a party demonstrates by clear and convincing evidence that property is separate, a trial court may not divest the party of the separate property.  Cameron v. Cameron, 641 S.W.2d 210, 215–16 (Tex. 1982).  A party may overcome the presumption by tracing and identifying the separate property.  Cockerham v. Cockerham, 527 S.W.2d 162, 167 (Tex. 1975).  Additionally, the general community property presumption is displaced if a party establishes the predicate facts giving rise to a separate property presumption.  See Hodge v. Ellis, 154 Tex. 341, 347, 277 S.W.2d 900, 904 (1955); Kyles v. Kyles, 832 S.W.2d 194, 196 (Tex. App.—Beaumont 1992, no writ).  Property transferred from a grantor to a grantee is presumed to be a gift, and thus separate property, if the grantee is the natural object of the grantor’s bounty.  See Amador v. Berrospe, 961 S.W.2d 205, 207 (Tex. App.—Houston [1st Dist.] 1996, pet. denied); Kyles, 832 S.W.2d at 197.  In turn, this presumption may be rebutted by clear and convincing evidence.  See Amador, 961 S.W.2d at 207; Kyles, 832 S.W.2d at 197.

          C.      Temporary Spousal Support Obligation

          In her third issue, Linda contends that the trial court erred in dividing the property of the martial estate because the evidence was insufficient to show that Lloyd made all temporary spousal support payments required of him and that determination led to an improper windfall of funds to Lloyd.

          Linda asserts on appeal that the third temporary spousal support order was perpetual, due on the first of each month until otherwise directed by the trial court.  The order, however, ended on March 1, 2007.  In pertinent part, the third temporary spousal support order states:

It is ORDERED that Respondent [Lloyd] shall henceforth pay to Petitioner [Linda] the sum of $3,942.00 each month beginning on January 1, 2007 and like payments on February 1, 2007 and March 1, 2007, until further Orders of this Court.

At trial, the court asked Linda’s counsel, “was there an order for Mr. Hallum to pay Ms. Hallum spousal support after March 1, 2007?”  Linda’s counsel responded, “I don’t think so.”

          Although the trial court did not enter a fourth, written temporary spousal support order, at a subsequent hearing the trial court orally directed Lloyd to pay $2,425 per month in spousal support, starting on April 1, 2007, until otherwise directed by the court.  In his testimony at the second trial, Lloyd admitted that he failed to make monthly payments due on and after December 1, 2007.  At the close of the second trial, after granting Linda and Lloyd’s divorce, the court announced that Lloyd’s temporary support obligation continued until “we get this division done.”  The trial court announced its findings on June 6, 2008, terminating the fourth, temporary support obligation, which totaled $33,950 over fourteen months.  As of June 6, Lloyd had been directed to pay Linda a total of $149,930.  It is undisputed on appeal that Lloyd made $135,313 in temporary support payments.  The evidence, therefore, shows an arrearage of $14,617,[1] which Lloyd owed to Linda at the time the trial court announced its findings.

          In the divorce decree, the trial court ordered that “all obligations and duties . . . imposed by the temporary [spousal support] orders . . . that are not yet discharged shall survive this judgment, and independent enforcement may be sought.”  Nonetheless, the trial court also found that Lloyd had already made all support payments he was ordered to pay under the temporary spousal support orders.  The court’s finding is in direct conflict with Lloyd’s testimonial admission that he had failed to make payments due on and after December 1, 2007.  The evidence is legally insufficient to support the trial court’s finding that Lloyd made all support payments because there is no evidence suggesting he did and the evidence conclusively establishes that he did not.  See City of Keller, 168 S.W.3d at 815–16.  However, a determination of insufficiency does not necessary result in a reversal; that insufficiency must also have rendered the overall, martial estate division an abuse of discretion.  See Zeifman, 212 S.W.3d at 587.

          The trial court did not file, and Linda did not request that it file, findings of fact and conclusions of law reflecting the value the court assigned to each asset or liability or the net value of the community property.  Linda did attach to her appellate brief both her and Lloyd’s proposed divisions of community property,[2] but neither of these documents appear in the record, and an appellate court may not consider documents attached to an appellate brief that do not appear in the record.  See Till v. Thomas, 10 S.W.3d 730, 733 (Tex. App.—Houston [1st Dist.] 1999, no pet.).  Without findings of fact, an appellate court does not know the basis for the division, the values assigned to the community assets, and the percentage of the martial estate that each party received.  See Funderburgh v. Funderburgh, No. 12-08-00428-CV, 2010 WL 2982906, at *2 (Tex. App.—Tyler July 30, 2010, no pet.) (mem. op.); Wells v. Wells, 251 S.W.3d 834, 840–41 (Tex. App.—Eastland 2008, no pet.); Chacon v. Chacon, 222 S.W.3d 909, 916 (Tex. App.—El Paso 2007, no pet.).  Accordingly, it is impossible for an appellate court to determine that the trial court abused its discretion in its division of the community property.  Funderburgh, 2010 WL 2982906, at *2; Chacon, 222 S.W.3d at 916; Wells, 251 S.W.3d at 840–41.  In the absence of findings of fact, we cannot conclude that the trial court abused its broad discretion, as part of its overall division of the martial estate, with regard to its erroneous finding that the arrearage of $14,617 had already been paid.

We overrule Linda’s third issue.

          D.      Exclusive Control Over and Benefit of Community Funds

          In her fourth issue, Linda contends that the trial court erred in dividing the property of the marital estate because the evidence at trial was insufficient to show that Linda had exclusive control over and the benefit of $385,000 in community funds and that determination led to an improper windfall of funds to Lloyd.  In her appellate brief, Linda presumes that the court’s finding was an approximate summation of the $250,000 in certificates of deposit and the $135,313 in temporary support payments, which Lloyd undisputedly paid to Linda.  She explains that spousal support payments are not community property divisible in divorce proceedings.  See O’Carolan v. Hopper, 71 S.W.3d 529, 533 (Tex. App.—Austin 2002, no pet.).

          Other than Linda’s asserted interpretation of the $383,000 figure, we have no basis, without findings of fact, to determine how the trial court actually arrived at that figure.  Funderburgh, 2010 WL 2982906, at *2; Chacon, 222 S.W.3d at 916; Wells, 251 S.W.3d at 840–41.  Accordingly, we cannot conclude that the trial court abused its discretion in its division of the community property of the martial estate.  Funderburgh, 2010 WL 2982906, at *2; Chacon, 222 S.W.3d at 916; Wells, 251 S.W.3d at 840–41.

          We overrule Linda’s fourth issue.

E.      Characterization of the Heights Properties

          In her first issue, Linda contends that the trial court erred in determining that the Heights Properties were Lloyd’s separate property because the evidence at trial was insufficient to demonstrate that the conveyance from Mr. Burns to Lloyd was a gift instead of a sale.  Linda asserts that Lloyd failed to meet his burden of proof in order to overcome the general presumption that the Heights Properties were community property.

          It is undisputed that the Heights Properties were conveyed to Lloyd during Linda and Lloyd’s marriage.  Accordingly, the Heights Properties are initially presumed to be community property.  See Tex. Fam. Code Ann. § 3.003(a).  To overcome the community property presumption, Lloyd had the burden at trial to prove by clear and convincing evidence that the Heights Properties were his separate property.  See id. § 3.003(b).  Specifically, Lloyd had to prove by clear and convincing evidence that Mr. Burns conveyed those properties to Lloyd as a gift.  See id. § 3.001(2).

The trial court, however, found that “Mr. Burns considered Mr. Hallum . . . part of his bounty,” thus giving rise to the presumption that Mr. Burns conveyed the Heights Properties to Lloyd as a gift.  See Amador, 961 S.W.2d at 207; Kyles, 832 S.W.2d at 197.  Lloyd became the natural object of Mr. Burns’s bounty, as a stepson, when Mr. Burns married Lloyd’s mother.  See In re Group Life Ins. Proceeds of Mallory, 872 S.W.2d 800, 802 (Tex. App.—Amarillo 1994, no writ) (former stepdaughter is natural object of testator’s bounty even though former stepparent and parent divorced).  During the first trial, the court asked Linda’s attorney if he was “going to dispute . . . that Jack Burns was the father figure of Mr. Hallum?”  Linda’s attorney answered “No.”  Similarly, on appeal, Linda does not challenge that Lloyd was considered by Mr. Hallum to be the object of his bounty. 

The trial court further found that Linda, who now bore the burden of proof, failed to overcome the separate property presumption.  See Amador, 961 S.W.2d at 207; Kyles, 832 S.W.2d at 197.  Linda contends that the plain language of the deeds constitutes clear and convincing evidence rebutting the presumption of gift.  See Blair v. Blair, No. 14-97-00832-CV, 1999 WL 649082, at *4 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (not designated for publication) (specific language in deed that property is being given for ten dollars and other valuable consideration along with absence of language specifying consideration is to be paid out of separate property constitutes clear and convincing evidence rebutting presumption of gift arising out of transfer from grandparent to grandchild).  We note that the Blair opinion, cited by Linda, was never published and was issued before January 1, 2003, and, accordingly, has no precedential value.  See Tex. R. App. P. 47.7(b).  Likewise, the proposition Linda cites in Blair is asserted by the court without citation to any precedent.  See Blair, 1999 WL 649082, at *4.

Standing alone, that the deeds recite the receipt of ten dollars and other valuable consideration and lack a recital that the consideration was paid out of separate property tend to show that the conveyance was a sale, not a gift, even though there is testimony that no consideration was in fact paid.  Robles v. Robles, 965 S.W.2d 605, 617 (Tex. App—Houston [1st Dist.] 1998, pet. denied).  However, the fact that a deed purports to be a sale for a nominal consideration, paid or unpaid, does not constitute clear and convincing that rebuts the direct evidence from Mrs. Burns that the properties were a gift.  See Sanders v. Sanders, No. 02-08-00201-CV, 2010 WL 4056196, at *16 (Tex. App.—Fort Worth Oct. 14, 2010) (mem. op.) (nominal consideration of ten dollars recited in deed insufficient to rebut separate property presumption).  We conclude that Linda did not present clear and convincing evidence to rebut the gift presumption and, accordingly, that the trial court did not abuse its discretion in finding the Heights Properties to be Lloyd’s separate property.

We overrule Linda’s first issue.

Quashing of Subpoena Duces Tecum

          In her second issue, Linda contends that the trial court erred by quashing the subpoena duces tecum directing Mrs. Burns to produce the purported gift tax return and thereafter allowing her to testify that the gift tax return was prepared and filed in connection with the conveyance of the Heights Properties.

          An appellate court will reverse a trial court’s judgment upon a challenge to that court’s ruling on a discovery matter, including a grant of a motion to quash a subpoena, only if the complaining party shows that (1) the trial court abused its discretion in so ruling and (2) the trial court’s error probably (a) caused the rendition of an improper judgment or (b) prevented the appellant from properly presenting the case to the appellate court.  See Tex. R. App. P. 44.1(a); In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003); see Calhoun v. Ying, No. 01-05-00489-CV, 2006 WL 2076038, at *3 (Tex. App.—Houston [1st Dist.] July 27, 2006, no pet.) (mem. op.).  A trial court abuses its discretion if acts arbitrarily, unreasonably, without reference to any guiding rules and principles, or without sufficient supporting evidence.  Gen. Tire, Inc. v. Kepple, 970 S.W.2d 520, 526 (Tex. 1998); Bocquet, 972 S.W.2d at 21.

          In general, a party may obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action.  Tex. R. Civ. P. 192.3(a).  For the purpose of discovery, a party may request the issuance of a subpoena directing a nonparty to produce and permit inspection and copying of a designated document or tangible thing in the recipient’s possession, custody, or control.  Tex. R. Civ. P. 176.2(b), 176.3(b), 199.2(b)(5), 205.1(c).  “Possession, custody, or control of an item means that the person either has physical possession of the item or has a right to possession of the item that is equal or superior to the person who has physical possession of the item.”  Tex. R. Civ. P. 192.7(b).  A trial court may not “force a party to create documents which do not exist, solely to comply with a request for production.”  In re Guzman, 19 S.W.3d 522, 525 (Tex. App.—Corpus Christi 2000, no pet.) (citing In re Colonial Pipeline Co., 968 S.W.2d 938, 942 (Tex. 1998)).

          C.      Analysis    

           Linda asserts that the existence of the gift tax return is clearly controlling on the issue of whether a gift tax return was prepared and filed, and goes to the heart of the dispute as to whether the conveyance was a sale or gift.  Linda essentially contends that quashing the subpoena probably caused the rendition of an improper judgment because, otherwise, she could have shown the non-existence of the gift tax return and thus could have impeached Mrs. Burns with her own statement that such return had been filed.  Assuming that the trial court erred in quashing the subpoena, we conclude that the trial court’s rendition of judgment would nevertheless have been proper.  See Tex. R. App. P. 44.1(a).

            It is undisputed, albeit under different rationales, that Mrs. Burns did not have the gift tax return in her possession.  According to Mrs. Burns’s testimony, she could not find a copy of the gift tax return in her possession.  According to Linda’s theory of the case, the conveyance was a sale, not a gift, and thus the purported gift tax return never existed.  It is harmless to quash a subpoena duces tecum directing a person to produce a document that is undisputedly not in that person’s possession, custody, or control.  See Tex. R. Civ. P. 176.2(b) (subpoena duces tecum may issue only for documents or other tangible things that are in person’s possession, custody, or control).

            As Linda contends, proof of the gift tax return’s non-existence could have been used to impeach the credibility of Mrs. Burns’s testimony.  Even though the subpoena was quashed, the trial court could still have taken into account Mrs. Burns’ claim that she could not find the gift tax return in evaluating the credibility of her testimony that the document was prepared and filed.  We hold any error in quashing the subpoena harmless.  See Tex. R. App. P. 44.1(a).

          We overrule Linda’s second issue.

Conclusion

          We affirm the judgment of the trial court.

                                                                   Elsa Alcala

                                                                   Justice

Panel consists of Justices Jennings, Alcala, and Sharp.

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[1]           Linda claims an arrearage of either $35,855 or $55,565 because she ignores the automatic termination of the third spousal support order and she calculates the termination date of the spousal support obligation as the last day of trial, May 29, 2008, or, alternatively, the date on which the court signed the Final Divorce Decree, November 3, 2008.

[2]           In her proposed division of community property, Linda estimated the net value of the community estate at $1,557,721.41, and she suggested distributing 15.8% to Lloyd and 84.2% to herself.  In his proposed division of community property, Lloyd estimated the net value of the community estate at $1,776,636.00, and he suggested distributing 48.6% to himself and 51.4% to Linda.  According to Linda’s own estimation, the arrearage of $14,617 represents only 0.94% of the value of the community estate.  Cf. Mann v. Mann, 607 S.W.2d 243, 245 (Tex. 1980) (to constitute abuse of discretion, property division must be manifestly unfair).