WILBUR E. CHOATE v. SUZANNE M. CHOATE--Appeal from 411th District Court of San Jacinto County

NUMBER 13-01-575-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

WILBUR E. CHOATE Appellant,

v.

SUZANNE M. CHOATE Appellee.

On appeal from the 411th District Court

of San Jacinto County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Castillo and Wittig[1]

Opinion by Justice Wittig

In a single issue, appellant Wilbur E. Choate, Sr., complains the trial court disproportionately divided the marital estate. We will affirm.

I

In a trial to the court, appellant and appellee, Suzanne M. Choate, ended their thirty year marriage. Neither party filed an inventory or appraisement nor did they call any expert witnesses. The two parties testified about their views of the value of their community real and personal property. At the court=s request, both parties submitted proposed divorce decrees and their respective lists for division of property. Appellant did not appear at the hearing for entry of judgment. The final decree of divorce was signed and entered May 3, 2001. Appellant=s trial counsel prematurely filed a request for findings of fact and law which was brought to the court=s attention May 29, 2001.[2] Notice of appeal was filed July 6, 2001, and appellant contemporaneously filed notice of past due findings of fact and law.

Appellant contends the trial court abused its discretion in the division of the property. He argues the court awarded appellee variously between 64% to 66% of the personalty and 82% to 84% of the realty. According to appellant, appellee was awarded some 70% of the total community estate. In its award, the court divided the 46.648 acres of realty, 7.625 acres to appellant and 34.746 acres to appellee. The parties testified the acreage was valued between $2500 per acre to $4000 per acre. According to appellant the personalty was divided $68,375 to appellant and $107,550 to appellee. Appellee disagrees.

Appellant neglects to mention that, prior to trial, he had already Asold off 20Bsomething head of cattle,@ leaving the 30 head awarded to appellee. Nor does he mention appellee=s testimony that the tractors and hay equipment had a value in excess of $120,000. At the same time, much of the personalty was either given no value by the parties or was stated to be Aworthless.@

II

The trial judge has wide discretion in dividing the parties' community estate. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981); Winkler v. Winkler. 951 S.W.2d 80, 87 (Tex. App.BCorpus Christi, 1997, pet. denied). The party attacking the property division bears the heavy burden of showing that the trial court's property division was not just and right. Goetz v. Goetz, 567 S.W.2d 892, 896 (Tex. Civ. App.BDallas 1978, no writ). We must indulge every reasonable presumption in favor of the trial court's proper exercise of its discretion. Vannerson v. Vannerson, 857 S.W.2d 659, 669 (Tex. App.BHouston [1st Dist.] 1993, writ denied).

One who complains of the trial court's division of property must be able to demonstrate from evidence in the record that the division was so unjust and unfair as to constitute an abuse of discretion. Finch v. Finch, 825 S.W.2d 218, 221 (Tex. App.BHouston [1st Dist.] 1992, no writ); Wallace v. Wallace, 623 S.W.2d 723, 725 (Tex. Civ. App.BHouston [1st Dist.] 1981, writ dism'd). A trial court's division will not be disturbed on appeal unless it appears from the record that the division was clearly the result of an abuse of discretion. Mogford v. Mogford, 616 S.W.2d 936, 944 (Tex. Civ. App.BSan Antonio 1981, writ ref'd n.r.e). The test for whether the trial court abused its discretion is whether the court acted arbitrarily or unreasonably. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 43 (Tex. 1985); see also Wilson v. Wilson, 44 S.W.3d 597,600 (Tex. App.BFort Worth 2001, pet. denied). And finally, where the record does not contain findings of fact and conclusions of law, it is implied that the trial court made all necessary findings to support its judgment. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992).

III

Appellant argues for the application of our holding in Butler v. Butler, 975 S.W.2d 765, 770 (Tex. App.BCorpus Christi, 1998 no pet.). In Butler we held that a mischaracterization of separate property as community property which resulted in a 75% to 25% division, instead of the intended 60% and 40% division, required a remand. Id. There is no mischaracterization here. The only issue is whether the division of the community property was properly deemed just and right by the trial judge.

The only proof of valuations was given by the two interested parties. In addition to the testimony regarding some values of the property awarded, appellant also admitted he engaged in adulterous relationships. He failed to account for his sale of Black Angus cattle, withdrew, without notice, $1000 from savings, and sold some farm equipment to someone whose name he forgot. The trial court, within its discretion, can apply the Murff factors, in order to achieve a just and right division. Murff, 615 S.W.2d at 699. These factors include earning capacity, fault in the break up, loss of benefit of continued marriage, dissipation of assets and attorney=s fee, inter alia. Id. The trial court had evidence to support his implied findings favoring appellee. Some of the evidence that would support an unequal distribution of property included the length of the marriage, that appellant was at fault for his adultery, and dissipation of assets. See Butler, 975 S.W.2d at 767-68.

We find ourselves in much the same position as the El Paso court in Siefkas v. Siefkas, 902 S.W.2d 72, 75 (Tex. App.BEl Paso 1995, no pet.). AThe trial court order dividing the property clearly disposes of many assets and liabilities, but makes no effort to value each item.@ Id. Here the decree awards some 17 specific items to appellee and some 16 items to appellant. However, a few groups of property awarded to appellant were listed as, for example, Aall remaining tractors and equipment not specifically awarded [to appellee].@ It is virtually impossible, without inventories admitted into evidence and findings by the court, for us to ascertain the propriety of appellant=s claims. See id. The responsibility, after all, for the initial factual determinations, the determination of the credibility of the witnesses, and for weighing the evidence, falls on the shoulders of the able trial judge, not the appellate court. Thus, we believe appellant does not, and probably cannot, bear his burden of demonstrating an abuse of discretion. Id. Even assuming, arguendo,[3] the trial count=s division was as high as 70% to 30%, as appellant contends, appellant has not met his heavy burden to show the trial court acted arbitrarily or unreasonably. Downer, 701 S.W.2d at 241 43. The trial court has broad discretion in dividing the property in a divorce action and its division will not be disturbed absent an abuse of discretion. Bradley v. Bradley, 725 S.W.2d 503, 505 (Tex. App.BCorpus Christi 1987, no writ). Appellant=s sole issue is overruled.

The judgment of the court is affirmed.

Don Wittig

Justice

Do not Publish.

Tex. R. App. P.47.3(b).

Opinion delivered and filed

this 8th day of August, 2002.

[1] Retired Justice Don Wittig assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. '74.003 (Vernon 1998).

[2] Texas Family Code section 6.711, effective September 1, 2001, requires trial courts to make findings of fact and conclusions of law, concerning characterization and values. See Tex. Fam. Code Ann. ' 6.711 (Vernon Supp. 2002). Here appellant did not comply with Texas Rule of Civil Procedure 297, requiring a notice of past due findings within 30 days after the original request. Tex. R. Civ. P. 297 (early filed request would be deemed filed after entry of judgment.) Although the new Family Code section went into effect after this case was on appeal, the requirements under the rules of procedure remain the same. See id.

[3] We seriously doubt the division reached 70% to 30% as claimed, given the dissipation of assets by appellant and the fact appellee placed a much higher value on some farm equipment than did appellee. As trier of fact, the trial court was free to believe or disbelieve either of the parties.