James Edward Kibodeaux, Jr. v. Mary Katherine Musslewhite--Appeal from 1A District Court of Jasper County

IN THE

TENTH COURT OF APPEALS

No. 10-04-00223-CV

James Edward Kibodeaux, Jr.,

Appellant

v.

Mary Katherine Musslewhite,

Appellee

From the 1A District Court

Jasper County, Texas

Trial Court No. 24764

MEMORANDUM Opinion

Introduction

In eight sufficiency of the evidence issues, Appellant James E. Kibodeaux, Jr. appeals the trial court s property division in the divorce decree. The trial court ordered that, as a part of the division of the parties estates, Kibodeaux pay Appellee Mary K. Musslewhite, his ex-wife, on her reimbursement claim for two sums of money relating to property damage to her travel trailer and its contents and its depreciation. We will modify the decree and affirm it as modified.

Background

Kibodeaux and Musslewhite married on April 27, 2003. At that time, Musslewhite owned a forty-foot 2000 Hyline travel trailer, which she acquired in May 2002. Kibodeaux took possession of the trailer on May 1, 2003 and lived in it while traveling for his employment (including to Texas City, Texas and Canton, Ohio for several months), for which he received a per diem lodging allowance. He gave up possession of the travel trailer to Shell Credit Union, the lienholder, on November 10, 2003, when Shell sought to repossess it.

When Kibodeaux turned over possession of the travel trailer to Shell, it had been damaged when Kibodeaux attempted to drive it under Shell s drive-through bank facility, whose awning was too low to allow the travel trailer to pass under it. Kibodeaux claimed that the collision was not his fault because he was only following the directions of Shell employees. The trailer s roof and an air-conditioning unit were damaged in the amount of $9,025.06, according to Musslewhite. Musslewhite testified that the trailer was going to depreciate in value and testified without objection that the repairman who was repairing the trailer told her it would depreciate.

Musslewhite also claimed that when Kibodeaux returned the travel trailer, it had been stripped of most of its contents (items such as the mattress, appliances, kitchen and bath accessories, and the like). The trial court admitted into evidence (without objection) an itemized list of the missing contents and their respective damage amounts. She testified that the trailer s contents were there in April 2003, when she lived in it. And when she last saw it (the end of July 2003) before Kibodeaux returned it to Shell, the missing contents were still in the trailer. Gary Daigle, who had previously rented the trailer from Musslewhite and returned it to her at the end of March 2003, described the trailer as very nice and fully equipped. Daigle said that when he returned the trailer to her in March 2003, it had all of its contents.

Kibodeaux testified that he took possession of the trailer in early June 2003, and when he took it, Musslewhite had removed most of the items (e.g., bed linens, towels, vacuum cleaner) that she claimed were missing, and that other items were taken in a burglary of the trailer. He said that the trailer s value at the time of marriage was roughly $24,000 and that once the damage to it was repaired, its value will still be approximately $24,000 and it will not have depreciated in value. Kibodeaux admitted that he put approximately 2,500 to 2,800 miles on the trailer.

In her First Amended Petition for Divorce, Musslewhite pled a claim for reimbursement to her separate estate for funds or assets that she spent to repair her separate property (the travel trailer) that had been damaged, destroyed, or removed by Kibodeaux. See Tex. Fam. Code Ann 3.408 (Vernon Supp. 2004-05). She asserted that failure to allow reimbursement would result in an unjust enrichment of Kibodeaux s separate estate at the expense of her separate estate. See id. 7.007(b).

As a part of the division of the marital estate, the trial court ordered Kibodeaux to pay Musslewhite $4,015.98 for the missing trailer contents, $500 for her insurance deductible, and $3,000 for depreciation in the trailer s value.

Standard of Review

In eight issues, Kibodeaux asserts that the evidence is legally and factually insufficient to support the trial court s order that Kibodeaux, as a part of the division of the parties estates, pay Musslewhite $4,015.98 for the missing trailer contents and $3,000 for depreciation in the trailer s value. No findings of fact or conclusions of law were requested or filed.

In a trial to the court where no findings of fact or conclusions of law are requested or filed, the judgment of the trial court implies all necessary findings of fact in support of it. See Pharo v. Chambers County, 922 S.W.2d 945, 948 (Tex. 1996). But if a complete reporter s record is filed (as there is in this case), these implied findings may be challenged by both legal and factual sufficiency of the evidence issues in the same manner as challenging jury findings or the trial court s findings of fact. See Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989).

When the party without the burden of proof at trial complains of the legal sufficiency of the evidence to support an unfavorably answered jury finding or an adverse express or implied finding, we are to consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996); Gooch v. American Sling Co., 902 S.W.2d 181, 183-84 (Tex. App. Fort Worth 1995, no writ). A no-evidence issue 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. Juliette Fowler Homes, Inc. v. Welch Assoc., Inc., 793 S.W.2d 660, 666 n.9 (Tex. 1990) (citing Robert W. Calvert, No Evidence and Insufficient Evidence Points of Error, 38 Tex. L. Rev. 361, 362-63 (1960)); William Powers, Jr. & Jack Ratliff, Another Look at No Evidence and Insufficient Evidence, 69 Tex. L. Rev. 515, 517-19 (1991).

If more than a scintilla of evidence supports the finding, the claim is sufficient as a matter of law, and any challenges go merely to the weight to be accorded the evidence. Leitch, 935 S.W.2d at 118. 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. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995) (citations omitted).

When the party without the burden of proof at trial complains of the factual sufficiency of the evidence to support an unfavorably answered jury finding or an adverse express or implied finding, we must consider and weigh all of the evidence, not just the evidence that supports the verdict. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998); Checker Bag Co. v. Washington, 27 S.W.3d 625, 633 (Tex. App. Waco 2000, pet. denied). We may not pass upon the witnesses credibility or substitute our judgment for that of the trier of fact, even if the evidence would clearly support a different result. Ellis, 971 S.W.2d at 406-07; Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex. 1986). We will set aside the finding only if it is so contrary to the overwhelming weight of the evidence that the finding is clearly wrong and unjust. Ellis, 971 S.W.2d at 407; Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Reversal can occur because the finding was based on weak or insufficient evidence or because the proponent's proof, although adequate if taken alone, is overwhelmed by the opponent's contrary proof. Checker Bag, 27 S.W.3d at 633 (citing Powers & Ratliff, 69 Tex. L. Rev. at 519 n.11).

In evaluating a claim regarding sufficiency of the evidence, the same standard is used for a bench trial as for a jury trial. Hitzelberger v. Samedan Oil Corp., 948 S.W.2d 497, 503 (Tex. App. Waco 1997, pet. denied) (citing Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996)).

A trial court resolves claims for reimbursement under equitable principles. Tex. Fam. Code Ann 3.408(c). Permissible reimbursement may run from community estate to separate estate, from separate estate to community estate, and from separate estate to separate estate. See Alsenz v. Alsenz, 101 S.W.3d 648, 655 (Tex. App. Houston [1st Dist.] 2003, pet. denied) (citing Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620, 627 (1935)). The party seeking reimbursement has the burden of proving entitlement to it. Jensen v. Jensen, 665 S.W.2d 107, 110 (Tex. 1984). A trial court s discretion in evaluating a claim for reimbursement is as broad as that discretion exercised by a trial court in making a just and right division of the community estate. Penick v. Penick, 783 S.W.2d 194, 198 (Tex. 1988); Alsenz, 101 S.W.3d at 655.

Analysis

The Trailer s Contents

In his first four issues, Kibodeaux attacks the legal and factual sufficiency of the evidence supporting the trial court s order that Kibodeaux, as a part of the division of the parties estates, pay or reimburse Musslewhite $4,015.98 for the missing trailer contents. He asserts that there was no evidence or insufficient evidence of the value of the missing contents.

Musslewhite and Daigle both testified about the condition of the trailer and many of its contents, and Musslewhite s itemized list assigned damage values to each item. This evidence, and reasonable inferences drawn from it, was legally and factually sufficient to support the trial court s implied finding, and the trial court thus did not abuse its discretion in ordering that Kibodeaux reimburse Musslewhite $4,015.98 for the missing trailer contents for purposes of her reimbursement claim under sections 3.408 and 7.007 of the Family Code. We overrule Kibodeaux s first four issues.

Depreciation

In his second four issues, Kibodeaux attacks the legal and factual sufficiency of the evidence supporting the trial court s order that Kibodeaux, as a part of the division of the parties estates, pay or reimburse Musslewhite $3,000 for depreciation in the value of the trailer. He asserts that there was no evidence or insufficient evidence of the amount of the trailer s depreciation.

In her brief, Musslewhite asks us to affirm the decree only as to the missing trailer contents and the deductible, and she presents no argument in response to Kibodeaux s second four issues. Thus, we sustain Kibodeaux s second four issues and modify the part of the decree ordering Kibodeaux to pay Musslewhite $3,000 for the trailer s depreciation by deleting that part. We affirm the decree as modified.

Conclusion

The evidence is legally and factually sufficient to support the trial court s implied findings, and the trial court did not abuse its discretion as to the trailer contents. After modifying the decree to delete the order that Kibodeaux pay Musslewhite $3,000 for the trailer s depreciation, we affirm the trial court s final decree of divorce as modified.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray dissenting and concurring)

Modified and affirmed

Opinion delivered and filed July 13, 2005

[CV06]