Sergio Sillero v. Martha Yesenia Sillero--Appeal from 387th District Court of Fort Bend County

Affirmed and Memorandum Opinion filed June 30, 2005

Affirmed and Memorandum Opinion filed June 30, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00010-CV

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SERGIO SILLERO, Appellant

V.

MARTHA YESENIA SILLERO, Appellee

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On Appeal from the 387th District Court

Fort Bend County, Texas

Trial Court Cause No. 02 CV 125355

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

Appellant, Sergio Sillero, appeals from a divorce decree dissolving his marriage to appellee, Martha Yesenia Sillero. In three issues, Sergio contends the trial court abused its discretion when dividing the marital estate and by refusing to award him custody of the couple=s oldest child. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.

Division of the Marital Estate

In his first two issues, Sergio challenges the trial court=s division of the marital estate. The trial court awarded Sergio the following: a home in Mexico; his personal property; the retirement accounts, stocks, bonds, and life insurance policies in his name; a checking account; one half of another checking account in both Sergio=s and Martha=s names; one half of an IRA in both Sergio=s and Martha=s names; a checking account belonging to Sergio=s painting business; all assets of the painting business; fifty percent of the gross receivables due the painting business as of October 24, 2003, amounting to $5,200; and three vehicles.

The trial court awarded Martha the following: the couple=s home in Houston; her personal property; the retirement accounts, stocks, bonds, and life insurance policies in her name; a checking account; the other half of the checking account in both Sergio=s and Martha=s names; the other half of the IRA in both Sergio=s and Martha=s names; fifty percent of the gross receivables due the painting business as of October 24, 2003, amounting to $5,200; and one vehicle.[1]

In a divorce decree, the court shall order a division of the estate 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 1998). The trial court is not required to evenly divide the marital estate as long as a reasonable basis exists for making an unequal division. See Murff v. Murff, 615 S.W.2d 696, 698B99 (Tex. 1981); Zieba v. Martin, 928 S.W.2d 782, 790 (Tex. App.CHouston [14th Dist.] 1996, no writ).

We review a trial court=s division of marital property for abuse of discretion. Newberry v. Bohn-Newberry, 146 S.W.3d 233, 237 (Tex. App.CHouston [14th Dist.] 2004, no pet.); Evans v. Evans, 14 S.W.3d 343, 345B46 (Tex. App.CHouston [14th Dist.] 2000, no pet.). We determine (1) whether the trial court had sufficient information upon which to exercise its discretion, and (2) whether the trial court abused its discretion by causing the division of property to be manifestly unjust or unfair. Newberry, 146 S.W.3d at 237; Evans, 14 S.W.3d at 346. The trial court does not abuse its discretion when some evidence of a probative and substantive character supports the division. Newberry, 146 S.W.3d at 237.

The Mexico Home

In his first issue, Sergio contends the trial court abused it discretion by awarding him the Mexico home because it is not the couple=s community property and the trial court had no jurisdiction over real estate outside of Texas.[2] We disagree.

According to Sergio, the home was not the couple=s community property because he and his brothers are building the home for his mother. However, the evidence indicates the community estate may have had, at least, some interest in the home. Sergio testified that he has given his mother money to build the home. In his brief, Sergio admits that he and his brother have pooled their resources to build the home. Therefore, there was evidence that Sergio invested some of the couple=s community property in the home.

To the extent the community estate had an interest in the Mexico home, the trial court had the authority to adjudicate that interest as between Sergio and Martha. See Dankowski v. Dankowski, 922 S.W.2d 298, 303 (Tex. App.CFort Worth 1996, writ denied) (recognizing that although trial court lacks jurisdiction to divest parties of their title to out-of-state realty, trial court may make any in personam order it deems appropriate to effectuate the division of the parties= community property situated in other jurisdictions); In re Read, 634 S.W.2d 343, 348B49 (Tex. App.CAmarillo 1982, writ dism=d) (stating that although trial court lacks in rem jurisdiction over foreign realty, it may in the exercise of its equitable powers, order one spouse to convey out-of-state property to the other spouse).[3]

More importantly, although Sergio makes a cursory argument to support his issue, apparently his complaint is not that he was awarded the home, but that the award of the home affected the trial court=s division of the rest of the marital properly. However, the trial court had authority to consider the community estate=s interest in the Mexico home when dividing the rest of the marital property. See In re Read, 634 S.W.2d at 348B49 (stating trial court can consider the existence and value of foreign realty when dividing the parties= community property); Deger v. Deger, 526 S.W.2d 272, 274 (Tex. Civ. App.CWaco 1975, no writ) (recognizing that although trial court lacks jurisdiction over real estate outside Texas, trial court may consider property beyond its jurisdiction when awarding property within its jurisdiction). Accordingly, the trial court did not abuse its discretion in awarding the Mexico home to Sergio. We overrule Sergio=s first issue.

Division of the Marital Property in General

In his second issue, Sergio challenges the division of the marital property in general contending there is a Agrave disparity@ between his award and Martha=s award. Again, he makes a cursory argument supporting this complaint and does not explain how there is a Agrave disparity.@ He merely reiterates the terms of the decree and cites several cases to support his argument. However, it is not readily apparent from the terms of the decree that the division was manifestly unjust or unfair. Sergio cites no evidence to demonstrate that the division was manifestly unjust or unfair.[4] We are not required to search the record for evidence supporting Sergio=s complaint, and we refuse to do so. See Tex. R. App. P. 38.1(h) (requiring that Aargument@ portion of appellant=s brief contain Aa clear and concise argument for the contentions made, with appropriate citations to authorities and the record.@); see also Madeksho v. Abraham, Watkins, Nichols & Friend, 57 S.W.3d 448, 453 (Tex. App.CHouston [14th Dist.] 2001, pet. denied).

Moreover, the cases cited by Sergio are not applicable. He primarily relies on McKnight v. McKnight, in which the court held that the trial court abused its discretion in dividing the marital property because the husband, who was obligated to support five children, was stripped of all cash and a portion of livestock in his ranching business and was left a business to operate but no funds to operate it with. 535 S.W.2d 658, 659B62 (Tex. Civ. App.CEl Paso 1975), aff=d, in part, and rev=d, in part, 543 S.W.2d 863 (Tex. 1976).[5] In contrast, here, Sergio was awarded his painting business including its assets, checking account, and fifty percent of its gross receivables.

In the other cases cited by Sergio, the courts affirmed the trial court=s division of marital property, and, therefore, these cases do not support Sergio=s argument. See Williams v. Williams, 325 S.W.2d 682, 684 (Tex. 1959) (dismissing wife=s application for writ of error contending trial court improperly considered her separate property as community property because she did not attack trial court=s conclusion that property division was just and that conclusion supported the judgment); Weaks v. Weaks, 471 S.W.2d 454, 455B56 (Tex. App.CBeaumont 1971, writ dism=d) (holding trial court did not abuse its discretion by dividing community property according to the spouses= agreement and ordering husband to pay a cash sum to wife); Mozisek v. Mozisek, 365 S.W.2d 669, 669B70 (Tex. App.CFort Worth 1963, writ dism=d) (holding trial court did not abuse its discretion by awarding wife a money judgment in lieu of any portion of the community property). Accordingly, we cannot conclude that the trial court abused its discretion in its general division of the marital property. We overrule Sergio=s second issue.

Child Custody

In the divorce decree, the trial court appointed Sergio and Martha joint managing conservators of their three children with Martha having the right to establish the children=s primary residence.[6] In his third issue, Sergio complains that the trial court refused to award him Acustody@ of the couple=s oldest child. Because Sergio was appointed a joint managing conservator, the nature of his complaint is not exactly clear. Apparently, his complaint is either that he was not appointed sole managing conservator or that Martha was given the right to establish the child=s primary residence.

As Sergio asserts, the child executed a AChoice of Managing Conservator@ expressing his desire to live with Sergio. Under the version of the Family Code applicable to this case, a child over age twelve was allowed to file his preference as to which parent should be appointed managing conservator, subject to the court=s approval. Acts 2001, 77th Leg., R.S., ch. 1289, ' 1 (amended 2003) (current version at Tex. Fam. Code Ann. ' 153.008 (Vernon Supp. 2004B05)).

Sergio contends the trial court abused its discretion because it Aignored@ the child=s choice.[7] However, a jury, not the trial court, determined that Sergio and Martha should be appointed joint managing conservators with Martha having the right to establish all the children=s primary residence. A party is entitled to a jury trial, and the trial court may not contravene the jury=s verdict, on appointment of joint managing conservators and determination of which joint managing conservator shall have the right to designate a child=s primary residence. Tex. Fam. Code Ann. '' 105.002(a),(c) (Vernon Supp. 2004B05). Consequently, despite the child=s choice, the trial court did not abuse its discretion by enforcing the jury verdict and appointing Sergio and Martha joint managing conservators with Martha having to the right to establish the child=s primary residence. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241B42 (Tex. 1985) (recognizing a trial court abuses its discretion when it acts in an unreasonable or arbitrary manner or Awithout reference to any guiding rules and principles.@).

Sergio also asserts that the jury Aignored@ the child=s choice. However, Sergio does not cite to any portion of the record indicating the jury heard evidence of the child=s choice.[8] Regardless, a child=s preference is not binding and is only evidence to be weighed along with other evidence in determining the custody issue. See Bennett v. Northcutt, 544 S.W.2d 703, 708 (Tex. Civ. App.CDallas 1976, no writ); Brooks v. Brooks, 480 S.W.2d 463, 465 (Tex. Civ. App.CEastland 1972, no writ). Sergio does not challenge the sufficiency of the evidence supporting the jury=s verdict. Therefore, we will not consider what weight, if any, the jury should have given to the child=s choice, assuming the jury heard evidence regarding the child=s choice. Accordingly, we overrule Sergio=s third issue.

The trial court=s decree is affirmed.

/s/ Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed June 30, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.

[1] The trial court also awarded Martha a tort judgment of $5,000 plus interest pursuant to the jury=s finding that Sergio assaulted her and spousal maintenance of $500 per month for two years. Sergio does not appeal the assault judgment or the spousal maintenance award.

[2] Although Sergio asserts the trial court committed Agross error@ and abused its discretion in dividing the marital estate, we will review his complaint using the correct abuse of discretion standard.

[3] Even if the couple=s community estate had only a partial interest in the home, Sergio has shown no harm in the trial court=s awarding the entire home to him. The trial court did not divest Sergio=s mother of title to the home. The trial court merely determined ownership of the home as between Sergio and Martha. The effect of the court=s order is that if some or all of the home was community property, only Sergio would have any interest after the divorce.

[4] It is apparent the trial court did not divide each asset equally because it awarded Martha the couple=s home and awarded Sergio the painting business and the Mexico home. However, Sergio does not cite any evidence to demonstrate the awards were unequal in value, much less any evidence to demonstrate there was no reasonable basis for making an unequal division.

[5] The Texas Supreme Court reversed McKnight, in part, because the court of appeals improperly rendered specific awards of property instead of remanding the case to the trial court after determining the trial court had abused its discretion. See 543 S.W.2d at 868. The judgment of the court of appeals was affirmed in all other respects. See id.

[6] The trial court also ordered Sergio to pay child support.

[7] Again, although Sergio refers to the trial court=s Agross error,@ we will review his complaint as an abuse of discretion argument.

[8] Although the child=s written choice was filed with the trial court, the written choice was not admitted as evidence at trial, and the child did not testify.