Denice Richards (Midgett) v. James Scott Midgett--Appeal from 57th Judicial District Court of Bexar County

No. 04-99-00788-CV
Denice MIDGETT,
Appellant
v.
James S. MIDGETT,
Appellee
From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 97-CI-17997
Honorable Andy Mireles, Judge Presiding

Opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Alma L. L pez, Justice

Karen Angelini, Justice

Delivered and Filed: January 10, 2001

AFFIRMED AS REFORMED

Denice Midgett ("Denice") appeals a final divorce decree containing a division of the marital assets and awarding sole managing conservatorship of the parties' three children to appellee, James S. Midgett ("James"). Denice asserts fourteen issues in her brief relating to the trial court's handling of the proceedings, the nature of the property division, and the exclusion of evidence. We overrule Denice's issues and affirm the trial court's judgment.

Trial Court's Actions

In her first two issues, Denice contends that the trial court erred in refusing to hear her counsel's opening statement, ignoring her counsel's objections, and summarily excluding offered evidence. Denice concedes that the comments made by the trial court that she claims are objectionable are not contained in the reporter's record. Because the record does not support Denice's contention, she has waived these complaints. Chapman v. Hootman, 999 S.W.2d 118, 122 (Tex. App.--Houston [14th Dist.] 1999, no pet.); Tex. R. App. P. 33.1(a), 38.1(h). Denice's first two issues are overruled.

Interview Minor Children

In her third issue, Denice asserts that the trial court erred in refusing to interview the minor children. Section 153.009 of the Texas Family Code requires a trial court to interview a child 10 years of age or older when: (1) the issue of managing conservatorship is contested; and (2) a party makes an application for such an interview. See Tex. Fam. Code Ann. 153.009(b) (Vernon Supp. 2000). In this case, there is no application for an interview contained in the clerk's record; therefore, the trial court had the discretion to deny the verbal request. See Hamilton v. Hamilton, 592 S.W.2d 87, 88 (Tex. Civ. App.--Fort Worth 1979, no writ). Denice's third issue is overruled.

Division of Property and Maintenance

In issues four through ten and twelve, Denice contends that the trial court unfairly divided the assets, attorneys' fees and expenses and improperly denied her spousal support.

Courts have much discretion in dividing the marital estate in a just and right manner, and the division will not be disturbed on appeal absent a showing of an abuse of discretion. Murff v. Murff, 615 S.W.2d 696, 698 (Tex.1981); Johnson v. Johnson, 948 S.W.2d 835, 838 (Tex. App.--San Antonio 1997, writ denied). Equality in the division is not required, and this court indulges 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; Johnson, 948 S.W.2d at 838. The allocation of attorney's fees is a factor to be considered by the court in making an equitable division of the community estate. Grossnickle v. Grossnickle, 935 S.W.2d 830, 847 (Tex. App.--Texarkana 1996, writ denied); Abrams v. Abrams, 713 S.W.2d 195, 197 (Tex. App.--Corpus Christi 1986, no writ).

The parties entered into an agreement regarding the personal property at the hearing, which the trial court incorporated into the division. After considerable discussion at the hearing, the only assets the parties ultimately listed for the trial court to divide were: (1) the 1.5 acre homestead in San Antonio; (2) 8.5 acres adjacent to the homestead; (3) $38,000 in savings; (4) retirement accounts for both parties each containing approximately $12,000; (5) three personal vehicles; (6) horses and trailers; and (7) tractor and related equipment. The only debts the parties listed for the trial court to divide were: (1) $28,000 mortgage against the homestead; (2) three credit card bills ($7,500, $7,500, and $3,500); (3) Denice's student loans ($12,000); and (4) James's student loans ($2,000). With regard to the assets, James was awarded the 1.5 acre homestead, $18,000 from the savings account, his retirement account, two personal vehicles, and the tractor and related equipment. Denice was awarded $20,000 from the savings account, her retirement account, one personal vehicle, and the horses and trailers. An undivided fifty-percent interest in the 8.5 acres was awarded to each party, with James being ordered to sell the property and equally divide the proceeds. James was ordered responsible for the two larger credit card bills ($7,500 and $7,500), and Denice was responsible for the $3,500 credit card bill. James was responsible for the mortgage, and each party was responsible for their own student loans, attorneys' fees and expenses. The trial court did not abuse its discretion in making this division of the assets and debts.

We also review a trial court's order relating to spousal maintenance under an abuse of discretion standard. Alexander v. Alexander, 982 S.W.2d 116, 119 (Tex. App.--Houston [1st Dist.] 1998, no pet.); In re Marriage of Hale, 975 S.W.2d 694, 697 (Tex. App.--Texarkana 1998, no pet.). In making its ruling, the trial court stated: "The Court is going to make an additional finding that there is a request for separate maintenance or alimony because the marriage has lasted ten years or longer. The Court is going to deny that request, in light of the savings distribution and the property distribution that the Court has made." This was a proper factor for the trial court to consider. See Tex. Fam. Code Ann. 8.003(1) (Vernon 1998). In addition, the trial court could take into consideration that sole managing conservatorship was awarded to James. See id. at 8.003(5). The trial court may also have considered that Denice was awarded the horses and trailers in the property division that she stated were to be used in rebuilding her horse breeding business. Furthermore, the trial court could have taken into account that Denice was employed, attending school, and was engaged to marry the individual she had been living with for at least six months prior to the hearing. The trial court did not abuse its discretion in denying spousal maintenance.

Issues four through ten and twelve are overruled.

Changes to Decree

In her eleventh issue, Denise contends that the decree of divorce erroneously changed the responsibility for payment of visitation expenses and added the execution of a special warranty deed to evidence the trial court's award of the 1.5 acre homestead to James without provision for removal of Denice's name from the mortgage. The crux of Denice's complaint is that the written decree modified the terms orally rendered by the trial court.

Judgment is rendered when a court's decision is officially announced either orally in open court or in writing filed with the clerk. See S & A Restaurant Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995); Walker v. Harrison, 597 S.W.2d 913, 915 (Tex. 1980). The principle that an oral judgment by the court is valid is predicated upon the supporting principle that the entry of a trial judgment is only a ministerial act. See Dunn v. Dunn, 439 S.W.2d 830, 832 (Tex. 1969); UMC, Inc. v. Arthur Bros., Inc., 626 S.W.2d 819, 820 (Tex. App.--Corpus Christi 1981), writ ref'd n.r.e., 647 S.W.2d 244 (Tex. 1982).

The special warranty deed about which Denice complains is not contained in our record. However, we note that the provision of the written decree that requires the execution of a special warranty deed to document the award of the 1.5 acre homestead to James does not conflict with the trial court's oral rendition of judgment. The written divorce decree reflects that James is responsible for the payment of the existing mortgage as verbally decreed by the court.

With regard to the payment of travel expenses, we agree with Denice that the written decree is inconsistent with the trial court's oral rendition of judgment. The trial court made the following oral pronouncement at the hearing:

The Court is going to make a finding that the Supreme Court guidelines with the 100-mile excess provisions are appropriate in this case; and, more specifically, that transportation be the responsibility of Mr. Midgett to get the children to her on the appropriate days and Mrs. Midgett have the responsibility of travel expenses to return them to San Antonio after their visit.

The written decree contradicts this oral pronouncement by providing:

Expenses Shared by Possessory Conservator and Sole Managing Conservator - IT IS ORDERED that Possessory Conservator [Denice] shall purchase in advance the airline tickets (including escort fees) to be used by the child for the child's flight from the airport near the residence of Sole Managing Conservator to the airport near the residence of Possessory Conservator. IT IS FURTHER ORDERED that Possessory Conservator shall make the necessary arrangements with the airlines and with Sole Managing Conservator in order that the airline tickets are available to the child before a scheduled flight. IT IS FURTHER ORDERED that Sole Managing Conservator shall purchase in advance the airline tickets (including escort fees) to be used by the child for the child's flight from the airport near the residence of Possessory Conservator to the airport near the residence of Sole Managing Conservator. IT IS FURTHER ORDERED that Sole Managing Conservator shall make the necessary arrangements with the airlines and with Possessory Conservator in order that the airline tickets are available to the child before a scheduled flight.

Denice preserved this error for our review by filing a motion to correct judgment, specifically requesting that the trial court conform the written decree to its oral pronouncement. We agree with Denice that the final divorce decree must conform with the trial court's oral pronouncement, which took effect when it was announced in open court. See Dunn v. Dunn, 439 S.W.2d at 832. We sustain Denice's eleventh issue in part and reform the trial court's judgment to provide that James will be responsible for the travel expenses necessary to get the children to Denice on the appropriate days, and Denice will be responsible for the travel expenses necessary to return the children to James after their visit.

Exclusion of Evidence

In her fourteenth issue, Denice complains of the trial court's exclusion of testimony regarding "prior events." Denice failed to make an offer of proof regarding the substance of the testimony that was excluded, and the substance was not apparent from the context within which the questions were asked. Therefore, Denice has failed to preserve this issue for our review. See Tex. R. Evid. 103(a)(2).

Conclusion

The trial court's judgment is reformed to provide that James will be responsible for the travel expenses necessary to get the children to Denice on the appropriate days, and Denice will be responsible for the travel expenses necessary to return the children to James after their visit. As reformed, the trial court's judgment is affirmed.

PHIL HARDBERGER,

CHIEF JUSTICE

DO NOT PUBLISH