COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-02-075-CV
SCOTT
SCHNEIDER APPELLANT
V.
SUSAN
SCHNEIDER, ARCH C. MCCOLL, III, APPELLEES
AND
MCCOLL AND MCCOLLOCH, P.L.L.C.
------------
FROM
THE 393RD DISTRICT COURT OF DENTON COUNTY
MEMORANDUM OPINION1
Scott
Schneider appeals from the trial court’s decree granting a divorce, its
designation of community and separate property, and its just and right division
of the couple’s property. He presents sixteen points and ten supplemental
points for our review. In his first sixteen points appellant argues: (1) the
trial court erred in finding that he abandoned his marriage; (2) no evidence
supports a finding of abandonment; (3) the evidence is legally and factually
insufficient to support the trial court’s finding of fault as a basis for
granting the divorce; (4) the trial court erred in awarding all three dogs to
appellee as her separate property; (5) the trial court erred in awarding the dog
Lucky, a twenty-seven-inch Mitsubishi television, and a Kiwi laptop computer
with accessories to appellee as her separate property; (6) the trial court erred
in awarding all property listed in appellee’s inventory to appellee as her
separate property; (7) the trial court erred in decreeing that any property was
separate; (8) the trial court erred in awarding appellee all household goods and
furnishings and all cash and savings in appellee’s possession; (9) the trial
court erred in awarding appellant only $1,175.00 of appellee’s 401K
pension/retirement fund worth $17,802.51; (10) the trial court erred in awarding
appellee half of the shares in the Salomon Smith Barney funds as they existed on
September 18, 2001; (11) the trial court erred in overruling appellant’s
objection to appellee’s violation of a court injunction and by not
investigating the violation; (12) the trial court erred in awarding appellant
liability for community debt to lawyer Arch McColl, III and his law firm; (13)
the trial court erred in awarding appellant liability for community debt to
lawyer Joseph Beeler; (14) the trial court erred in awarding McColl and his law
firm the amount of $24,651.69, plus attorneys’ fees, court costs, and
postjudgment interest of 10% to be paid by appellant; (15) the trial court
abused its discretion with regard to points one through fourteen; and (16) the
trial court committed reversible error by denying appellant’s motion for a new
trial.
With
regard to points six through fourteen, appellant argues that the reporter’s
record of the property division portion of the trial was missing; thus, he was
denied the opportunity to adequately present these points on appeal. In point
sixteen, he argues that the trial court committed reversible error by denying
his motion for new trial because the court lost the portion of the reporter’s
record covering the property division. After appellant filed his first brief,
the record was found and filed with this court. Therefore, the portions of
appellant’s argument that complain of the missing record are moot and will not
be discussed. See Tex. R. App. P. 47.1. Points six through fourteen
and sixteen are overruled.
After
the record was filed, appellant submitted a supplemental brief. In his ten
supplemental points appellant argues: (17) the trial court erred in decreeing
that any property was appellee‘s separate property, specifically: the dog
Lucky, the Mitsubishi television, and the Kiwi laptop computer with accessories;
(18) the trial court erred in awarding appellant’s separate property to
appellee; (19) the trial court erred in its division of the community property;
(20) the trial court erred in its ruling concerning the division of appellee’s
401K pension plan; (21) the trial court erred in its ruling regarding the
Salomon Smith Barney funds; (22) the trial court erred in not conducting an
inquiry into the appellee’s violation of the trial court’s injunction; (23)
the trial court erred in awarding judgment against appellant and in favor of the
intervenor, Arch McColl; (24) the trial court erred in awarding appellant all
liability for attorneys’ fees incurred by the community; (25) appellee
committed perjury during the divorce proceedings by misrepresenting facts in her
pleadings and testimony; and (26) appellee committed contempt of court by
violating the injunction. We affirm the portion of the trial court's judgment
granting the divorce and reverse and remand the remainder of the case for a new
property division.
FACTS
Appellant
and appellee were married for about six years, but only lived together as
husband and wife for thirty months. There are no children of the marriage and no
real estate. The estate consists mainly of various personal property items,
three dogs, a 401K, and two Salomon Smith Barney funds.
Appellant
and appellee lived together prior to marriage. Appellee testified that prior to
the marriage she cashed in bonds, given to her by her grandmother, to purchase
the bedroom set, living room set, room divider, video camera, and the dog Lucky.
Appellant testified that community funds were used to purchase the items. The
parties moved to Texas, were married on September 23, 1995, and lived off the
money from appellee’s bonds and proceeds from the sale of appellant’s
business until they got jobs.
Appellant
was arrested and convicted of felony assault in 1998. He was sentenced to thirty
years’ confinement, and he began serving his sentence on or about April 2,
1998. Appellant incurred debt of approximately $285,000 in attorneys’ fees
while defending himself against criminal charges. Appellee testified that she
paid $200,000 of his attorneys’ fees out of a loan given to her by her father.
Appellee filed for divorce on May 18, 2000. In her original and amended
petitions, appellee alleged insupportability, cruel treatment, and conviction of
a felony as grounds for divorce. The trial court granted the divorce, finding
fault on the part of appellant and that appellant abandoned the marriage.
ABANDONMENT
In
appellant’s first two points he argues that the trial court erred in finding
that he abandoned his marriage. In point one, he claims appellee failed to
assert abandonment as a ground for divorce in either her original or amended
petitions. However, appellant failed to object to the issue of abandonment being
tried before the court by consent. Evidence of abandonment was raised at the
trial court three different times, and appellant failed to object every time.
Appellant may not raise the pleading deficiency for the first time on appeal
when he failed to preserve error at the trial court level. See Tex. R. App. P. 33.1.
Moreover,
the rules of civil procedure dictate that when an issue not raised in the
pleadings is tried by implied consent, it shall be treated in all respects as
though it had been raised in the pleadings. Tex. R. Civ. P. 67; see Dickerson v.
DeBarbieris, 964 S.W.2d 680, 689 (Tex. App.—Houston [14th
Dist.] 1998, no pet.). Therefore, when appellee testified that she was asserting
abandonment as one of the grounds for the divorce and appellant did not object,
the issue was tried by consent. See Dickerson, 964 S.W.2d at 689.
Additionally, some evidence exists to support the finding in that appellant
voluntarily engaged in criminal activity, causing him to be incarcerated. Thus,
appellant’s first point is overruled.
In
his second point, appellant asserts that no evidence supports a finding of
abandonment as grounds for the judgment granting the divorce. An appellant must
attack all independent bases or grounds that fully support a complained-of
ruling or judgment. See, e.g., Harris v. Gen. Motors Corp., 924 S.W.2d
187, 188 (Tex. App.—San Antonio 1996, writ denied). If an appellant does not,
then we must affirm the trial court’s judgment. See, e.g., id. This
rule is based on the premise that an appellate court normally cannot alter an
erroneous judgment in favor of an appellant in a civil case who does not
challenge that error on appeal. See Walling v. Metcalfe, 863 S.W.2d 56,
58 (Tex. 1993). If an independent ground fully supports the complained-of ruling
or judgment, but the appellant assigns no error to that independent ground, then
we must accept the validity of that unchallenged independent ground. See id.
Moreover, any error in the ground challenged on appeal is harmless because the
unchallenged independent ground fully supports the complained-of ruling or
judgment. Britton v. Tex. Dep't of Criminal Justice, 95 S.W.3d 676, 681
(Tex. App.—Houston [1st Dist.] 2002, no pet.). "When a
separate and independent ground that supports a judgment is not challenged on
appeal, the appellate court must affirm." San Antonio Press, Inc. v.
Custom Bilt Mach., 852 S.W.2d 64, 65 (Tex. App.—San Antonio 1993, no
writ).
In
addition to abandonment as a ground for divorce, appellee also alleged
insupportability, cruel treatment, and conviction of a felony. Appellant
assigned no error to any of these independent grounds. Fault could have been
based upon a finding of either cruelty or conviction of a felony. See Tex. Fam. Code Ann. §§ 6.002, 6.004 (Vernon 1998).
Therefore, appellant’s second point is overruled.
FAULT
In
his third point, appellant asserts that the evidence is legally and factually
insufficient to support the trial court’s finding of fault. In determining a
"no-evidence" point, we are to consider only the evidence and
inferences that tend to support the finding and disregard all evidence and
inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.
2001); Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.
1996); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).
Anything more than a scintilla of evidence is legally sufficient to support the
finding. Cazarez, 937 S.W.2d at 450; Leitch v. Hornsby, 935 S.W.2d
114, 118 (Tex. 1996). More than a scintilla of evidence exists if the evidence
furnishes some reasonable basis for differing conclusions by reasonable minds
about the existence of a vital fact. Rocor Int’l, Inc. v. Nat’l Union
Fire Ins. Co., 77 S.W.3d 253, 262 (Tex. 2002).
A
"no-evidence" point may only be sustained when the record discloses
one of the following: (1) a complete absence of evidence of a vital fact; (2)
the court is barred by rules of law or evidence from giving weight to the only
evidence offered to prove a vital fact; (3) the evidence offered to prove a
vital fact is no more than a mere scintilla of evidence; or (4) the evidence
establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire
Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998) (citing Robert W. Calvert, "No
Evidence" and "Insufficient Evidence" Points of Error,
38 TEX. L. REV.
361, 362-63 (1960)), cert. denied, 526 U.S. 1040 (1999).
An
assertion that the evidence is “insufficient” to support a fact finding
means that the evidence supporting the finding is so weak or the evidence to the
contrary is so overwhelming that the answer should be set aside and a new trial
ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). We are
required to consider all of the evidence in the case in making this
determination. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07
(Tex.), cert. denied, 525 U.S. 1017 (1998).
It
is uncontested that appellant was serving a thirty-year sentence for felony
assault at the time of the divorce. The family code provides that a court may
grant a divorce in favor of one spouse if, during the marriage, the other spouse
has been convicted of a felony, been imprisoned for at least one year, and has
not been pardoned. Tex. Fam. Code Ann. § 6.004. In this case, the
statutory requirements of section 6.004 are met. Id.
The
court may also grant a divorce in favor of one spouse if the other spouse is
guilty of cruel treatment that renders further living together insupportable. Id.
§ 6.002. Appellee testified that appellant punched her; grabbed, shoved, and
was ”rough” with her on ten to fifteen occasions; and yelled at her or
directed abusive language at her on many occasions during the marriage.
Appellant testified that he accidentally hit her and used abusive language. One
of the parties’ friends testified that the couple had a “rough
relationship.” She went on to corroborate appellee’s testimony concerning
the night appellant punched appellee in the nose.
Therefore,
we conclude that the evidence is legally and factually sufficient to support a
finding of fault on the grounds of either cruelty or conviction of a felony.
Appellant’s third point is overruled and the parties’ divorce is affirmed.
DIVISION OF THE MARITAL PROPERTY
Appellant’s
first three points form part of the basis for his argument that the trial court
erred in its just and right division of the couple’s property. Appellant
asserts that the trial court’s erroneous findings of fault led to an
inequitable division of the property. Nevertheless, even if appellee failed to
plead and prove a traditional fault ground for dissolution of the marriage,
which resulted in an erroneous attribution of "fault in the breakup of the
marriage" to appellant, appellant must still show that the trial court
abused its discretion in making its ultimate just and right division of the
community estate. See Tate v. Tate, 55 S.W.3d 1, 6 n.3 (Tex. App.—El
Paso 2000, no pet.); Lindsey v. Lindsey, 965 S.W.2d 589, 592 n.3 (Tex.
App.—El Paso 1998, no pet.). Because we hold that fault was correctly
attributed to appellant in the breakup of the marriage, the trial court
correctly considered fault as one of the factors in dividing the marital estate.
Additionally, the trial court was permitted to consider any other
"non-fault" factor in awarding a disproportionate amount of the
community estate to one spouse. See Phillips v. Phillips, 75 S.W.3d 564,
572-73 (Tex. App.—Beaumont 2002, no pet.)
A
trial court has broad discretion in dividing the marital estate, and we presume
the trial court exercised its discretion properly. Murff v. Murff, 615
S.W.2d 696, 698-99 (Tex. 1981). In dividing the community estate of the parties,
the trial court shall order a division of the property that it deems just and
right, having due regard for the rights of each party. Tex. Fam. Code Ann. § 7.001. The trial judge may order
an unequal division of marital property when a reasonable basis exists for doing
so. Massey v. Massey, 807 S.W.2d 391, 398 (Tex. App.—Houston [1st
Dist.] 1991), writ denied, 867 S.W.2d 766 (Tex. 1993). This court will
correct the trial court's division of marital property only when an abuse of
discretion has been shown. Murff, 615 S.W.2d at 698; Massey, 807
S.W.2d at 398. It is the duty of this court to consider every reasonable
presumption in favor of the proper exercise of discretion by the trial court in
dividing the community estate. Murff, 615 S.W.2d at 698; Massey,
807 S.W.2d at 398.
To
determine whether a trial court abused its discretion, we must decide whether
the trial court acted without reference to any guiding rules or principles; in
other words, whether the act was arbitrary or unreasonable. See Carpenter v.
Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 687 (Tex. 2002); Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert.
denied, 476 U.S. 1159 (1986). Merely because a trial court may decide a
matter within its discretion in a different manner than an appellate court would
in a similar circumstance does not demonstrate that an abuse of discretion has
occurred. Downer, 701 S.W.2d at 241-42.
An
abuse of discretion does not occur where the trial court bases its decisions on
conflicting evidence. Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978); see
also Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997). Furthermore, an
abuse of discretion does not occur as long as some evidence of substantive and
probative character exists to support the trial court’s decision. Butnaru
v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002); Holley v. Holley,
864 S.W.2d 703, 706 (Tex. App.—Houston [1st Dist.] 1993, writ
denied).
Appellant
asserts in points four, five, six, and seven and supplemental points seventeen
and eighteen that the trial court erred in characterizing certain items of
property as appellee’s separate property. The divorce decree confirms only
three items within its text as appellee's separate property: the dog Lucky, a
Mitsubishi 27 inch television, and a Kiwi laptop computer and accessories. The
decree also confirms all property listed in exhibit A as appellee's separate
property and all property listed in exhibit B as appellant's separate property.
However, exhibit A and exhibit B are not attached to the divorce decree in the
clerk's record, and it is unclear from references in the reporter's record what
property is listed or claimed as separate or community property by either party
in the exhibits. Therefore, in determining whether the trial court
mischaracterized property as appellee's separate property, we may only consider
the dog Lucky, the Mitsubishi television, and the Kiwi laptop computer and
accessories. See Guajardo v. Conwell, 46 S.W.3d 862, 864 (Tex. 2001).
Without a complete decree or clerk’s record, we cannot evaluate the propriety
of the court’s decision on any other property. Tex. R. App. P. 34.5(c)-(e).2
Specifically,
appellant contends that with respect to the items mischaracterized as appellee's
separate property, appellee did not overcome the presumption that property
possessed by either spouse at the dissolution of the marriage is presumed to be
community property. See Tex.
Fam. Code Ann. § 3.003(a). The party who seeks to
assert that such property is his or her separate property must prove its
separate character by clear and convincing evidence. Id. § 3.003(b). To
overcome the statutory presumption of community property, the spouse must trace
and clearly identify the property claimed as separate property. See Estate of
Hanau v. Hanau, 730 S.W.2d 663, 667 (Tex. 1987) (citing Tarver v. Tarver,
394 S.W.2d 780, 783 (Tex. 1965)).
Clear
and convincing evidence is defined as that “measure or degree of proof that
will produce in the mind of the trier of fact a firm belief or conviction as to
the truth of the allegations sought to be established.” Tex. Fam. Code Ann. § 101.007 (Vernon 2002); Transp.
Ins. Co. v. Moriel, 879 S.W.2d 10, 31 (Tex. 1994). This standard falls
between the preponderance standard of civil proceedings and the reasonable doubt
standard of criminal proceedings. In re G.M., 596 S.W.2d 846, 847 (Tex.
1980); State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979); In re D.T.,
34 S.W.3d 625, 630 (Tex. App.—Fort Worth 2000, pet. denied) (op. on reh’g).
While the proof must weigh heavier than merely the greater weight of the
credible evidence, there is no requirement that the evidence be unequivocal or
undisputed. Addington, 588 S.W.2d at 570.
In
point four, appellant argues that the trial court erred in awarding all three of
the couple’s dogs, Lucky, Dusty, and Trixie, to appellee as her separate
property.3 Both parties argue that Lucky is
their separate property, and Lucky is listed in both appellant's and appellee's
inventories as their separate property.
Appellant
urges that awarding Lucky to appellee as her separate property was an abuse of
discretion and that the presumption of community property was not overcome by
clear and convincing evidence. Appellant contends that the trial court should
have awarded Lucky to him as his separate property. Appellee testified that she
purchased Lucky prior to the marriage with money she received when she cashed in
bonds that were gifts from her grandmother. However, appellant contends that
appellee gave Lucky to him as a gift and that Lucky is his separate property.
As
we noted above, to rebut the community property presumption the spouse claiming
that the property is separate property must establish by clear and convincing
evidence that the property is separate property through tracing. Celso v.
Celso, 864 S.W.2d 652, 654 (Tex. App.—Tyler 1993, no writ). Tracing
involves establishing the separate origin of the property through evidence
showing the time and means by which the spouse originally obtained possession of
the property. Id.; Hilliard v. Hilliard, 725 S.W.2d 722, 723 (Tex.
App.—Dallas 1985, no writ). Separate property will retain its character
through a series of exchanges so long as the party asserting separate ownership
can overcome the presumption of community property by tracing the assets on hand
during the marriage back to property that, because of its time and manner of
acquisition, is separate in character. Cockerham v. Cockerham, 527 S.W.2d
162, 168 (Tex. 1975). If the separate estates of both spouses acquired the
property, then the property would be held between the two parties as tenants in
common, each owning one-half as their separate property. Id. at 168.
Neither
party presented any evidence to clarify the source of funds used to purchase
Lucky. However, it is undisputed that appellee purchased Lucky prior to the
marriage. Under the family code, a spouse's separate property consists of the
property owned or claimed by the spouse before marriage. Tex. Fam. Code Ann. § 3.001(1). However, in this case
the parties lived together prior to marriage, and commingled their funds in a
joint bank account. Both appellant and appellee testified that the funds used to
purchase Lucky were the commingled funds from the joint bank account. Therefore,
because neither of the parties established by clear and convincing evidence that
Lucky was purchased with the separate property funds of either appellant or
appellee, the most the evidence shows is that they own Lucky as tenants in
common. See Cockerham, 527 S.W.2d at 168. Thus, the trial court
erred in confirming Lucky as appellee's separate property.4
In
addition to asserting that Lucky was his separate property, in appellant’s
point five and supplemental points seventeen and eighteen, he argues that the
Mitsubishi television and the Kiwi laptop computer with accessories were also
his separate property. He asserts that the trial court erred in awarding those
items to appellee as her separate property.
Appellee
testified that the Mitsubishi television was acquired before the marriage.
Appellant did not testify to the character of the television or offer testimony
to rebut appellee’s claim that the television was her separate property. Both
appellant’s and appellee’s inventories listed the television set as their
own separate property. Neither appellee nor appellant attempted to trace the
funds used to purchase the television. See Vandiver v. Vandiver, 4 S.W.3d
300, 302 (Tex. App.—Corpus Christi 1999, pet. denied). However, it is
undisputed that the television was acquired before marriage. Neither party
established that the television was received as a gift or purchased using only
one party's separate funds. Therefore, the trial court erred in awarding the
television to appellee as her separate property.
Appellant
listed the Kiwi laptop computer and accessories in his inventory as his separate
property. In contrast, appellee listed the computer as community property and
indicated it was “husband’s.” Neither party presented evidence to support
the proposition that the computer was purchased prior to marriage or with
separate funds. Consequently, we hold that the trial court abused its discretion
with regard to its characterization of the Kiwi laptop computer and accessories
because appellee did not establish by clear and convincing evidence that the
computer was her separate property. However, appellant did not meet the burden
of proving that the computer was his separate property either. Therefore, the
trial court erred by mischaracterizing the computer as separate property when it
should have been characterized as community property.
Having
determined that the trial court erred by mischaracterizing Lucky, the Mitsubishi
television, and the Kiwi laptop computer and accessories as appellee's separate
property, we must further determine whether such error warrants reversal. Mere
mischaracterization of community property as separate, in the estate of the
parties alone, does not require reversal. Magill v. Magill, 816 S.W.2d
530, 533 (Tex. App.—Houston [1st Dist.] 1991, writ denied) (citing Mundy
v. Mundy, 653 S.W.2d 954, 957 (Tex. App.—Dallas 1983, no writ)). It is
appellant's burden to prove that any disparity in the division of the marital
estate was caused by the mischaracterization of property and that it was of such
substantial proportions that it constituted an abuse of the trial court's
discretion. See id.; Mundy, 653 S.W.2d at 957.
When
we are asked to review an alleged characterization error, we must determine not
only whether the trial court's finding of separate property is supported by
clear and convincing evidence, we must also determine whether the
characterization error, if established, caused the trial court to abuse its
discretion. See Allen v. Allen, 704 S.W.2d 600, 603 (Tex. App.—Fort
Worth 1986, no writ). These two prongs require first, a showing of error, and
second, a showing that the error was harmful. Tex. R. App. P. 44.1(a)(1).
We
hold that appellee did not prove by clear and convincing evidence that the dog
Lucky, the Mitsubishi television, and the Kiwi laptop computer and accessories
are her separate property. Therefore, the trial court erred by characterizing
the property as appellee's separate property. Because we cannot determine from
the record what other property, if any, the trial court may have characterized
as appellee's or appellant's separate property, nor can we determine the full
extent of the property the trial court divided as part of the community estate,
we hold that the trial court abused its discretion. Thus, we sustain appellant's
points four and five and supplemental points seventeen and eighteen. Because we
sustain these points, we must reverse and remand for a new division of the
marital property. See, e.g., Schlafly v. Schlafly, 33 S.W.3d 863, 872
(Tex. App.—Houston [14th Dist.] 2000, pet. denied).
In
appellant’s fifteenth point, he argues that the trial court erred by abusing
its discretion in points one through fourteen. Appellant’s argument is
cumulative and multifarious. See Owens-Corning Fiberglas Corp. v. Malone,
916 S.W.2d 551, 570 (Tex. App.—Houston [1st Dist.] 1996), aff’d,
972 S.W.2d 35 (Tex. 1998). A point is multifarious if it embraces more than one
specific ground of error, or if it attacks several distinct and separate rulings
of the trial court. Id.; Clancy v. Zale Corp., 705 S.W.2d 820, 823
(Tex. App.—Dallas 1986, writ ref'd n.r.e.). The appellate court may disregard
any point that is multifarious. Clancy, 705 S.W.2d at 824. Appellant’s
fifteenth point is overruled.
In
appellant’s supplemental point nineteen, he complains that the trial court
erred in its division of the community property. Specifically, he argues that
awarding appellee the household furniture, fixtures, and all three dogs was a
grossly disproportionate division of the property. As such, he claims the trial
court abused its discretion by dividing the property in a manner that was
inequitable, manifestly unjust, and unfair. Because we cannot determine from the
divorce decree or the reporter's record whether the trial court characterized
this property as community or separate property,5
and because we are reversing and remanding for a new property division as a
result of our holdings on appellant's points four and five and supplemental
points seventeen and eighteen, we will not address this point. See Tex. R. App. P. 47.1; Schlafly, 33 S.W.3d
at 872.
In
appellant’s supplemental points twenty and twenty-one, he argues that the
trial court erred in the division of appellee’s 401K pension plan and the
Salomon Smith Barney funds.6 Regarding the
401K, appellant asserts that in its division the trial court should have used
the value of the 401K at the time of divorce to calculate his portion, instead
of its value at the time of separation.
When
the value of retirement or pension benefits are at issue, the benefits are to be
apportioned to the spouses based upon the value of the community's interest at
the time of divorce. Berry v. Berry, 647 S.W.2d 945, 947 (Tex. 1983); May
v. May, 716 S.W.2d 705, 710 (Tex. App.—Corpus Christi 1986, no writ). The
amount in the account on the date of separation was $2,350.00 and on the date of
divorce it was valued at $17,802.51. Appellant reasons that he is entitled to
half of the funds in the account on the date of divorce because the trial court
awarded him half of the funds in the account as of the date of separation. We
disagree with appellant’s reasoning.
The
trial court properly characterized the 401K as community property, and, as such,
it is subject to just and right division in the discretion of the trial court. See
Tex. Fam. Code Ann. § 7.001. Although we agree with
appellant that the proper valuation date was the date of divorce, the trial
court may order an unequal division of marital property when a reasonable basis
exists for doing so. See Massey, 807 S.W.2d at 398. The trial court
exercises its broad discretion by considering many factors. Murff, 615
S.W.2d at 699. The nonexclusive list of factors includes the following: (1)
fault in breaking up the marriage; (2) the spouses' capacities and abilities,
(3) business opportunities, (4) education, (5) relative physical conditions, (6)
relative financial conditions and obligations, (7) disparity of ages, (8) sizes
of separate estates, (9) the nature of the property, and (10) disparity in
earning capacities or of incomes. Id.
It
is undisputed that appellant and appellee were first separated because appellant
was convicted of assault and incarcerated. Appellee’s father paid
approximately $200,000 of appellant’s attorneys’ fees that appellant accrued
while defending himself against civil and criminal charges. Because appellant
was at fault in the breakup of the marriage and because appellee’s family has
contributed a generous amount of money to appellant’s criminal and civil
defense, we hold that the trial court did not abuse its discretion in awarding
appellant an amount that was less than half of the value of the account at the
time of the divorce. Appellant’s supplemental point twenty is overruled.
Regarding
the Salomon Smith Barney funds, appellant argues that the trial court erred in
awarding him one-half of the value of the funds as they existed on September 18,
2001. Appellant misinterprets the language of the trial court’s divorce
decree. The trial court actually ordered that appellant be awarded “one-half
of the shares of the Saloman [sic] Smith Barney Tax Advantage Exchange
Funds, Numbers I and II, . . . as they exist, on September 18, 2001.”
[Emphasis added.] Since the trial court awarded appellant one-half of the actual
shares, instead of the value on a particular date, appellant’s argument is
moot. We overrule appellant’s supplemental point twenty-one.
Appellant
urges in supplemental point twenty-two that the trial court erred in overruling
his trial counsel’s timely objection to appellee’s alleged violation of a
court-ordered injunction and by not conducting an inquiry into this violation.
We have examined the portion of the record to which appellant refers us, and,
while we find a suggestion by his counsel that appellee may have violated the
injunction, we find no objection made to any action or lack of action on the
part of the trial court. We also note that no motion for contempt was presented
to the trial court, nor was a continuance requested so that such a motion might
be filed. Appellant suggests that the trial court should have pursued the matter
on its own, but he presents no argument or authority that would support such a
suggestion. We overrule supplemental point twenty-two.
Appellant
insists in supplemental point twenty-three that the trial court erred by
awarding judgment against him and in favor of the intervenors, McColl and the
law firm of McColl and McCollogh, P.L.L.C., because appellant was not a named
defendant in their intervention. Additionally, in supplemental point twenty-four
he argues that the trial court erred in awarding him all liability for the
community debt of attorneys’ fees incurred in his criminal defense. We hold
that although the trial court was within its discretion to award all liability
for his attorneys’ fees to appellant in its just and right division of the
community estate, the trial court erred by awarding judgment against
appellant and in favor of McColl and McColl and McCollogh, P.L.L.C. because
appellant was not a named defendant in any of the intervenors’ pleadings.
In
his complaint regarding liability for the community debt of attorneys’ fees,
appellant suggests that these debts were appellee’s separate debt because the
attorneys looked solely to her for payment. He notes that the intervention
sought only to recover a judgment from appellee for the payment of those fees.
In arguing that the debts are appellee’s separate debts, even though they were
incurred for his benefit during the marriage, appellant relies upon the cases of
Ray v. U. S., 385 F. Supp. 372 (S.D. Tex. 1974), aff’d, 538 F.2d
1228 (5th Cir. 1976); Kimsey v. Kimsey, 965 S.W.2d 690 (Tex. App.—El
Paso 1998, pet. denied); Jones v. Jones, 890 S.W.2d 471 (Tex.
App.—Corpus Christi 1994, writ denied); Humphrey v. Taylor, 673 S.W.2d
954 (Tex. App.—Tyler 1984, no writ); and Wierzchula v. Wierzchula, 623
S.W.2d 730 (Tex. Civ. App.—Houston [1st Dist.] 1981, no writ).
These
cases generally hold that debts contracted during marriage are presumed to be on
the credit of the community, and they are obligations of the community, unless
it is shown that the creditor agreed to look solely to the separate estate of
the contracting spouse for satisfaction. Kimsey, 965 S.W.2d at 702; Jones,
890 S.W.2d at 475; Humphrey, 673 S.W.2d at 956; Wierzchula, 623
S.W.2d at 732. The Texas Supreme Court in Cockerham stated that “debts
contracted during marriage are presumed to be on the credit of the community and
thus are joint community obligations, unless it is shown the creditor agreed to
look solely to the separate estate of the contracting spouse for
satisfaction.” 527 S.W.2d at 171. However, just prior to that quotation, the
court said;
To
determine whether a debt is only that of the contracting party or if it is
instead that of both the husband and wife, it is necessary to examine the
totality of the circumstances in which the debt arose. Of particular importance
in the instant case is the consideration of implied assent to the debt by the
noncontracting party, the husband.
Id.
Considering the totality of the circumstances of this case, including the fact
that the debt was for attorneys’ fees incurred during appellant’s criminal
defense, we hold that the trial court could have reasonably concluded that
appellant assented to this debt. The creditors looked to appellee for payment
only because appellant was in prison and without funds or significant assets,
not because the debt was separate in nature. We overrule supplemental point
twenty-four.
Although
we overrule supplemental point twenty-four, we hold that the trial court went
too far when it awarded judgment against appellant in the intervention where he
was not a named defendant. The intervenors sought only to obtain a judgment for
their fees for appellant’s criminal defense from appellee, not appellant.
Appellant was not named or served. Pleadings in the district and county courts
shall:
consist
of a statement in plain and concise language of the plaintiff's cause of action
or the defendant's grounds of defense. That an allegation be evidentiary or be
of legal conclusion shall not be grounds for objection when fair notice to the
opponent is given by the allegations as a whole.
Tex. R. Civ. P. 45(b). The rules of pleading
apply equally so far as it may be practicable to intervenors and to parties. Tex. R. Civ. P. 61.
The
judgment of the court shall conform to the pleadings, the nature of the case
proved, and the verdict, if any, and shall be so framed as to give the party all
the relief to which he may be entitled either in law or equity. Tex. R. Civ. P. 301. In the absence of notice to
or waiver of appearance by a party, judgments against him on interventions or
cross-actions will be set aside. Early v. Cornelius, 39 S.W.2d 6, 8
(Tex.1931). However, original parties to litigation are entitled to be protected
from disadvantages of intervention. Armstrong v. Tidelands Life Ins. Co.,
466 S.W.2d 407, 412 (Tex. Civ. App.—Corpus Christi 1971, no writ).
Because
appellant was not a party to the intervention and received no notice that the
intervenors were attempting to collect from him personally, there was no basis
for a judgment to be awarded against him. Intervenors have respectfully declined
to file a brief with this court supporting their right to a judgment against
appellant. We, therefore, sustain appellant’s supplemental point twenty-three.
Appellant
suggests in supplemental point twenty-five that appellee committed perjury in
the course of the trial of this case and in her inventory and appraisement. In
support of his assertion, he relies upon documents that he has added to his
brief as an appendix. Such documents are not a part of the record in this appeal
and may not be considered by this court. See Nixon v. Royal Coach Inn,
464 S.W.2d 900, 901 (Tex. Civ. App.—Houston [14th Dist.] 1971, no
writ). We overrule supplemental point twenty-five.
Appellant
insists in supplemental point twenty-six that appellee is in contempt of court
by violating conditions of a court-ordered injunction. He complains that she has
not returned to him certain items of property that were designated as his
separate property. There is no indication that he initiated any contempt action
in the trial court. Inasmuch as this point does not relate to any error
occurring in the trial court, there is no error that probably caused the
rendition of an improper judgment nor one that probably prevented him from
properly presenting his case to this court. See Tex. R. App. P. 44.1(a). We overrule supplemental
point twenty-six.
CONCLUSION
Having
sustained appellant’s points four and five and supplemental points seventeen,
eighteen, and twenty-three, we affirm the portion of the trial court’s
judgment granting the divorce and reverse and remand the remainder of the case
for a new property division in accordance with this opinion.
TERRIE
LIVINGSTON
JUSTICE
PANEL
F: LIVINGSTON, DAUPHINOT, and McCOY, JJ.
DELIVERED:
February 12, 2004
NOTES
1.
See Tex. R. App. P. 47.4.
2.
The trial court clerk has informed this court that there are no exhibits
attached to the original divorce decree.
3.
We will only address appellant's argument with regard to Lucky since he is the
only dog identified in the decree.
4.
We note that classifying Lucky as community property could create the same
result because the trial court is authorized to award community property to
either party and appellant cannot possess a dog while in prison.
5.
Except for Lucky, which the trial court incorrectly confirmed as appellee's
separate property.
6.
Because it is clear from the divorce decree that the trial court characterized
the funds as community property, we will address this point.