Riley, Florence M. v. Riley, Francis F.--Appeal from 300th District Court of Brazoria County

Affirmed and Memorandum Opinion filed September 25, 2003

Affirmed and Memorandum Opinion filed September 25, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00797-CV

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FLORENCE MAE RILEY, Appellant

V.

FRANCIS F. RILEY, Appellee

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On Appeal from the 300th District Court

Brazoria County, Texas

Trial Court Cause No. 17197*RH01

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M E M O R A N D U M O P I N I O N

In this divorce action, appellant Florence Mae Riley challenges the trial court s division of the community estate, contending the trial court abused its discretion by awarding appellee Francis F. Riley, a disproportionate share of the estate s main assets. We affirm.

 

Factual Background

Florence Mae Riley ( Florence ) and Francis F. Riley ( Francis ) were married on June 9, 1984. They separated and ceased to live together as husband and wife on October 10, 1994. However, a petition for divorce was not filed until seven years later in September, 2001, when Francis filed for divorce alleging the marriage had become insupportable.

At the time of the marriage, Francis was retired from the military and receiving a pension. He owned a home in which the parties lived together prior to their separation. The home was ultimately sold for $39,000 and the proceeds were used to pay debts and support the family, including one of Florence s sons from a prior marriage. Also, Francis entered the marriage with approximately $5,117 in a retirement account and approximately $6,959 in a checking account. The funds in the checking account were used for living expenses during the marriage and the balance at the time of trial was $400.

In 1988, after eighteen years of working at the United States Postal Service, four years of which were during the marriage, Francis retired from the postal service. He received $17,000 that had been in a retirement savings account and those funds were used to pay off loans on a travel trailer and truck the couple owned.

Upon separating, Francis took possession of their truck and trailer home. The truck and trailer were destroyed in an accident in 1998. Francis then applied the insurance proceeds received as a result of that accident toward the purchase of a second truck and trailer home. Francis traded in the second truck and purchased a third truck, a 1999 Ford F350. Florence retained possession of the household contents and a vehicle belonging to the couple. She later traded in that vehicle and purchased a 1999 Chevrolet Silverado truck.

During their seven year separation, neither party requested return of any property in possession of the other party. They remained friendly and even agreed to care for each other in the event of illness and agreed to handle burial arrangements for the other upon death. Francis continued to make monthly payments on a life insurance policy for Florence and also paid a monthly supplemental medical insurance payment for her.[1] Other than $200 worth of miscellaneous jewelry, clothing, and personal property listed in Florence s inventory under the heading, Wife s separate personal property during marriage, there is no mention in the record of any property that Florence brought to the marriage.

The suit was tried to the bench and the court heard testimony from both parties and admitted various demonstrative exhibits, including the parties inventories. At the time of trial, Francis was 71 years old and Florence was 59 years old. Florence was employed and earning $1,500 per month, while Francis was retired from the military and the postal service and earning $1,200 per month through his military pension. Francis had possession of the Ford F350 truck and a 1999 Cardinal Fifth Wheel trailer home. Florence was in possession of the 1999 Chevrolet Silverado truck. At trial, Florence requested that she be awarded the Ford F350 truck and that Francis be awarded the Chevrolet Silverado truck because her truck was not reliable.

At the conclusion of the trial, the court granted the divorce and stated: As far as property division is concerned I am going to award each party the property that they now have in their possession subject to their control and any debts associated with that property. In the final divorce decree, each party was awarded the household furnishings, personal effects, and accounts under their sole control. Additionally, Francis was specifically awarded the Ford F350 truck and the Cardinal trailer; checking, savings, and IRA accounts at Randolph Brooks Federal Credit Union; retirement pay from the United States Air Force; and his life insurance policy. Florence was specifically awarded the Chevrolet Silverado truck and her life insurance policy.

In her motion for new trial, Florence alleged the trial court erred in its division of the community estate because the court s division of the community estate effectively rendered a division of 100 percent of all community equity to [Francis] and zero percent of community equity to [Florence].

On July 8, 2002, the trial court filed its findings of fact and conclusions of law. The relevant findings are as follows:

. . . .

4. Petitioner and Respondent separated on or about October 10, 1994.

5. Petitioner and Respondent divided property when they separated on October 10, 1994.

6. The motor vehicle and travel trailer in Petitioner s possession on May 10, 2002 was purchased after October 10, 1994.

7. The motor vehicle in possession of Respondent was purchased after October 10, 1994.

8. Petitioner and Respondent have continually retained property in their possession since separation.

9. Petitioner nor Respondent has requested return of property in neither the other s possession since date of separation.

In its conclusions of law, the trial court stated:

. . . .

4. The division of the property of Petitioner and Respondent effected by the final judgment is just and right, having due regard for the rights of each party, irrespective of the characterization of any item of property as either community or separate.

The motion for new trial was overruled by operation of law. On appeal, Florence argues the trial court erred in its division of the community estate because the main assets were awarded solely to Francis.

Standard of Review

In a divorce decree, the trial court shall 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 7.001. The trial court has broad discretion in dividing the marital estate, and we will not disturb its decision unless the trial court has clearly abused its discretion. Smith v. Smith, 22 S.W.3d 140, 143 (Tex. App. Houston [14th Dist.] 2000, no pet.). A clear abuse of discretion is shown only if the division of property is manifestly unjust and unfair. Id., Evans v. Evans, 14 S.W.3d 343, 345 46 (Tex. App. Houston [14th Dist.] 2000, no pet.). On appeal, our analysis involves a two-pronged inquiry:

(1) whether the trial court had sufficient information upon which to exercise its discretion and

(2) whether the trial court abused its discretion by making a property division that is manifestly unjust or unfair. Evans, 14 S.W.3d at 346; Lindsey v. Lindsey, 965 S.W.2d 589, 592 (Tex. App. El Paso 1998, no pet.).

A traditional sufficiency inquiry applies to the first question and in conducting this inquiry, we review the trial court s findings of fact for both legal and factual sufficiency. Hodson v. Keiser, 81 S.W.3d 363, 367 (Tex. App. El Paso 2002, no pet.); London v. London, 94 S.W.3d 139, 143 44 (Tex. App. Houston [14th Dist.] 2002, no pet.) (citing Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994)). While findings of fact issued in a bench trial have the same force and dignity as a jury s verdict, the trial court s findings of fact are not conclusive when there is a complete reporter s record. Tucker v. Tucker, 908 S.W.2d 530, 532 (Tex. App. San Antonio 1995, writ denied). Because the record in this case contains a complete reporter s record, we are not bound by the trial court s findings. Id. Therefore, we review the court s findings for legal and factual sufficiency using the same standards as in reviewing evidence supporting a jury s verdict. London, 94 S.W.3d at 144; Tucker, 908 S.W.2d at 532.

Once we have determined whether sufficient evidence exists, we must then decide whether the trial court abused its discretion in rendering a manifestly unjust or unfair division of property. Evans, 14 S.W.3d at 346. In making this determination, we look to whether the trial court acted arbitrarily or unreasonably, without reference to any guiding rules or principles. Id.

Property Division

In her sole point of error, Florence argues that the trial court awarded the main assets solely to Francis and in so doing, abused its discretion.[2] Florence contends the main assets are the Ford truck, the Cardinal trailer, and the Chevrolet truck. We begin by addressing the first prong of the abuse of discretion test: whether the trial court had sufficient evidence upon which to exercise its discretion in the valuation and distribution of the community estate. Evans, 14 S.W.3d at 346.

 

1. Did the trial court have sufficient information

on which to exercise its discretion?

In reviewing findings of fact for legal sufficiency, we consider only the evidence and inferences supporting the findings, disregarding all evidence and inferences to the contrary. Henry v. Henry, 48 S.W.3d 468, 473 (Tex. App. Houston [14th Dist.] 2001, no pet.). If more than a scintilla of evidence supports the finding, it is legally sufficient. Id. More than a scintilla of evidence exists where the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Id. In reviewing for factual sufficiency, we consider all of the evidence in the record and overturn the finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. However, a trial court does not abuse its discretion where it bases its decision on conflicting evidence or where some evidence of a substantial and probative character exists to support the trial court s division. Zieba v. Martin, 928 S.W.2d 782, 787 (Tex. App. Houston [14th Dist.] 1996, no writ).

To determine the value of the Ford truck, Cardinal trailer, and the Chevrolet truck, the trial court considered the inventories submitted by both parties and their individual testimony. Francis s inventory stated the fair market value of the Ford truck was $18,000 and Florence introduced a range of fair market values from $18,950 to approximately $24,550. In its findings of fact, the court assigned the Ford truck a fair market value of $18,000, encumbered by a $15,000 lien, thus yielding a net value of $3,000. We find the evidence presented by the parties was sufficient to support the exercise of the court s discretion. We cannot say that the evidence was legally or factually insufficient to support this finding. The trial court was the sole finder of fact in this case, and a reviewing court is not permitted to interfere with the fact finder s resolution of conflicts in the evidence or to pass on the weight or credibility of a witness testimony. Henry, 48 S.W.3d at 475. The trial court could reasonably have believed that Francis, the owner of the Ford truck, presented the most accurate assessment of the fair market value of the Ford truck. Further, the valuation made by the trial court was not contrary to the overwhelming weight of the evidence. See id. at 473. Therefore, we find that the evidence supporting the trial court s finding regarding the value of the Ford truck was both legally and factually sufficient. Id.

In accordance with the testimony and inventories of both parties, the trial court assigned a fair market value of $18,000 to the Cardinal trailer, encumbered by a $16,321.75 lien yielding a net value of $1,678.25. The trial court assigned a fair market value of $14,000 to the Chevrolet truck, encumbered by a lien in the amount of $18,000, for a negative net value of $4,000. The Chevrolet truck was not listed on Francis s inventory; nor did he offer testimony regarding the value of the truck. At trial, Florence testified that the actual fair market value of the Chevrolet truck was $15,000, encumbered by a lien of $18,000, and presented two reports reflecting the value of the truck at either $12,675 or $15,875. In reviewing the evidence in the light most favorable to the trial court s findings, we cannot say that there is less than a scintilla of evidence supporting the trial court s findings nor that the finding is contrary to the evidence presented in the record. Henry, 48 S.W.3d at 473. Therefore we find that the evidence was legally and factually sufficient to support the trial court s valuation of the Cardinal trailer and the Chevrolet truck in its findings of fact. Id.

Having determined there was sufficient evidence to support the trial court s findings of fact regarding the valuation of the Ford truck, the Cardinal trailer, and the Chevrolet truck, we find the trial court had sufficient information upon which to exercise its discretion pertaining to the valuation of the main assets. See Evans, 14 S.W.3d at 346. Thus, the first prong of our inquiry has been satisfied and we now turn to the second prong deciding whether the trial court abused its discretion by causing the property division to be manifestly unjust or unfair. Id.

2. Did the trial court abuse its discretion by causing the property division

to be manifestly unjust or unfair?

In determining whether a trial court abused its discretion in its division of community property, we look to whether the trial court acted arbitrarily or unreasonably, without reference to any guiding rules or principles. Henry, 48 S.W.3d at 475. It is the duty of the reviewing court to presume that the trial court properly exercised its discretion in dividing the marital estate. Frommer v. Frommer, 981 S.W.2d 811, 814 (Tex. App. Houston [1st Dist.] 1998, pet. dism d.) (citing Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981)). Thus, the party complaining of the trial court s division must demonstrate the division was so unjust, the trial court abused its discretion. Frommer, 981 S.W.2d at 814 (citing Murff, 615 S.W.2d at 698). We defer to the trial court s determination of the credibility of the witnesses testimony and disturb the trial court s findings only in a case of clear abuse of discretion. Murff, 615 S.W.2d at 700.

Although the division of marital property does not have to be equal, it does have to be equitable. Kimsey v. Kimsey, 965 S.W.2d 690, 704 (Tex. App. El Paso 1998, pet. denied). The trial court s discretion to divide the community estate is not unlimited, and the court must have some reasonable basis for an unequal division of the property. Zieba, 928 S.W.2d at 790. In making the division, the court may consider disparity of income or earning capacity, the spouses capacities and abilities, business opportunities, education, relative physical conditions, relative financial conditions and obligations, disparity of ages, size of separate estates, and the nature of the property. Murff, 615 S.W.2d at 698 99.

Of the main assets described by Florence, the trial court awarded Francis the Ford truck with a fair market value of $18,000, and a lien of $15,000; and the Cardinal trailer with a fair market value of $18,000 and a lien of $16,321.75. Florence was awarded the Chevrolet truck with a fair market value of $14,000. The decree of divorce did not specifically award Florence the lien on the truck, in the amount of $18,000, however, the trial court indicated such in its rendition.[3]

The evidence presented at trial established that Francis is retired from both the military and the postal service and receives a monthly pension payment which is less than Florence s monthly salary. Furthermore, Florence is twelve years younger than Francis, and arguably has a greater earning potential than Francis. Awarding the property in the parties possession is reasonable considering that Francis lives in the Cardinal trailer and hauls the trailer with his Ford truck whenever he travels. Although Florence s Chevrolet truck has a towing package, it is currently not equipped to haul a trailer. The court determined that it was fair and just to divide the property according to what the parties determined when they separated seven years ago. Considering the evidence presented at trial regarding the disparities in the age of the parties, their earning capacities, and the use of the assets during the parties separation, we find that the trial court s division of the community estate was neither arbitrary nor unreasonable. We cannot say the trial court abused its discretion in its division of the community estate, and accordingly, we overrule Florence s point of error.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed.

/s/ Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed September 25, 2003.

Panel consists of Justices Anderson, Seymore, and Guzman.

[1] The monthly payments for the insurance policy, on which Francis was a beneficiary, amounted to $35 per month (for 84 months) for a total of $2,940. The monthly medical insurance payments amounted to $49.33 per month (for 84 months) for a total of $4,144. At one point, Francis testified he asked Florence to contribute to these payments, but she never did.

[2] Florence does not argue that the trial court improperly divided any other portion of the community or separate property. Nor does Florence argue that the division of other community property affects, or is so intertwined with, the division of the main assets to require consideration of other aspects of the property division. In re Marriage of Royal, No. 07-02-0251-CV, 2003 WL 21276772, at *2 (Tex. App. Amarillo June 3, 2003, no pet. h.). Our review, then, will be limited to the question actually presented, namely, whether the trial court erred in its division of the main assets. Id.

[3] Therefore, the total value of the main assets was $50,000; of those assets, Francis was awarded $36,000, or seventy-two percent (72%) and Florence was awarded $14,000, or twenty-eight percent (28%). Further, the total amount of debt on the main assets was $49,321.75. Of those debts, $31,321.75, or sixty-four percent (64%) was awarded to Francis; and presumably $18,000, or thirty-six percent (36%) was awarded to Florence.