Kathryn Marie Colvin v. Jewel Lathaniel Colvin--Appeal from 328th District Court of Fort Bend County

 NUMBER 13-03-00034-CV

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  B EDINBURG

KATHRYN MARIE COLVIN, Appellant,

v.

JEWEL LATHANIEL COLVIN, Appellee.

 On appeal from the 328th District Court of Fort Bend County, Texas.

 MEMORANDUM OPINION

 Before Justices Hinojosa, Ya ez, and Garza

Memorandum Opinion by Justice Hinojosa

After a bench trial, the trial court rendered and signed a final decree of divorce. In twenty-four issues, appellant, Kathryn Marie Colvin, appeals the trial court=s division of property and award of child support. We affirm.

Kathryn and appellee, Jewel Lathaniel Colvin, met in Sharjah, United Arab Emirates, where Jewel was employed by Amoco Corporation. Kathryn and Jewel married in Sharjah on January 2, 1988, and two children were born of the marriage. After the marriage, the couple continued to live overseas for several years. In July 1995, Kathryn and Jewel moved to Fort Bend County, Texas, where they resided at the time Kathryn filed for divorce in the 328th District Court of Fort Bend County. The case was tried to the court, and the final decree of divorce was signed on September 16, 2002.

Prior to the marriage, Kathryn and Jewel planned to sign a premarital agreement. Jewel contacted an attorney in Arkansas, his state of residence, to draft the agreement, and Kathryn consulted an attorney in Chicago to review the document on her behalf. However, due to delays in finalizing it, the document became a postnuptial agreement. The document was signed in October 1988, while the couple was visiting Arkansas.

The agreement shows Jewel=s permanent residence as Arkansas and Kathryn=s permanent residence as Minnesota. The agreement sets forth a list of each party=s separate assets and provides that the other party is not entitled to receive those assets Aas valued on January 1, 1988.@ No choice of law provision is set forth in the agreement, and neither party requested that the trial court take judicial notice of any other state=s law. See Tex. R. Evid. 202.

A. Property

In her first six issues, Kathryn contends the trial court erred in applying the rules of interpretation for contracts regarding the postnuptial agreement, and subsequently erred in finding that the value of Jewel=s separate property was not limited to its value on January 1, 1988, as specified in the agreement. Essentially, Kathryn asserts that the trial court erred in characterizing any additions or increases in the value of Jewel=s specified separate property after January 1, 1988, as separate property, as opposed to community property, subject to division.

A trial court is charged with dividing the community estate in a Ajust and right@ manner, considering the rights of each party and any children of the marriage. Tex. Fam. Code Ann. ' 7.001 (Vernon 1998). We review a trial court's division of property under an abuse of discretion standard. Moroch v. Collins, 174 S.W.3d 849, 857 (Tex. App.BDallas 2005, pet. denied).

If the trial court mischaracterizes community property as separate property, then the property does not get divided as part of the community estate. McElwee v. McElwee, 911 S.W.2d 182, 189 (Tex. App.BHouston [1st Dist.] 1995, writ denied). If the mischaracterized property has value that would have affected the trial court's just and right division, then the mischaracterization is harmful and requires the appellate court to remand the entire community estate to the trial court for a just and right division of the properly characterized community property. Id. If, on the other hand, the mischaracterized property had only a de minimis effect on the trial court's just and right division, then the trial court's error is not an abuse of discretion. Id. However, when the trial court finds that its property division is just and right, regardless of any mischaracterization of the property, even though the value of the property mischaracterized is great, the mischaracterization does not affect the trial court=s just and right division of the property. Pace v. Pace, 160 S.W.3d 706, 716 (Tex. App.BDallas 2005, pet. denied); Vandiver v. Vandiver, 4 S.W.3d 300, 303 (Tex. App.BCorpus Christi 1999, pet. denied).

Here, the trial court concluded, AThe 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 and the children of the marriage, irrespective of the characterization of any item of property as either community or separate.@ We interpret this to mean that the court would have divided the property the same way regardless of whether the property is separate or community. Furthermore, even if the trial court did mischaracterize the additions and increases to Jewel=s separate property, Kathryn failed to demonstrate how the purported mischaracterization had more than a de minimis impact on a just and right division of the community estate. See Pace, 160 S.W.3d at 716;Vandiver, 4 S.W.3d at 302.

In fact, the record reflects that Kathryn received sixty percent of the parties= estate, leaving Jewel with forty percent. Because we cannot say that the trial court abused its discretion, we overrule Kathryn=s first, second, third, fourth, fifth, and sixth issues.

In her eighth and ninth issues, Kathryn contends the trial court erred in failing to award her (1) $25,000, as specified in the postnuptial agreement; (2) $24,385 to compensate her for one-half of the community funds used to purchase a new car and dental work for Jewel; and (3) her separate savings bonds listed in her inventory. Kathryn further contends the trial court erred in failing to file findings of fact and conclusions of law in support of the failure to award her these items.

Upon Kathryn=s timely request, the trial court filed findings of fact and conclusions of law. See Tex. R. Civ. P. 296, 297. Thereafter, Kathryn filed a request for additional findings of fact and conclusions of law. In the second request, Kathryn asked the court for the following additional conclusions: (1) that Article 2 of the postnuptial agreement is unambiguous, and (2) that the parties ratified the agreement in 2001. She made no request regarding the $25,000, the $24,385, or the savings bonds. Kathryn cannot challenge the lack of particular findings of fact when she failed to request them. See Western Steel Co. v. Coast Inv. Corp., 760 S.W.2d 725, 727 (Tex. App.BCorpus Christi 1988, no writ).

Kathryn contends that the $25,000, the $24,385, and the savings bonds should have been awarded to her in the division of property. However, as we stated above, when reviewing a trial court's division of property, we do so under an abuse of discretion standard. Moroch, 174 S.W.3d at 857. Kathryn has failed to present any argument or legal authority showing how the trial court abused its discretion when it failed to specifically award her these items. See Tex. R. App. P. 38.1(h). Kathryn=s eighth and ninth issues are overruled.

B. Child Support

In issues nineteen through twenty-four, appellant challenges the trial court=s award of child support. Specifically, in issues nineteen through twenty-two, Kathryn challenges the sufficiency of the evidence to support the trial court=s findings of fact; in issue twenty-three, Kathryn contends the trial court erred when it failed to set child support in accordance with section 154.126 of the Texas Family Code; and in issue twenty-four, Kathryn asserts the trial court erred in failing to make a specific finding of fact regarding the total proven needs of the children.

A trial court has discretion to establish child support within the parameters set out in the child support guidelines of the Texas Family Code. Rodriguez v. Rodriguez, 860 S.W.2d 414, 415 (Tex. 1993); Scott v. Younts, 926 S.W.2d 415, 419 (Tex. App.BCorpus Christi 1996, writ denied). A trial court=s order of child support will not be disturbed on appeal unless the complaining party can show a clear abuse of discretion. Rodriguez, 860 S.W.2d at 415; Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). In determining whether the trial court abused its discretion, we view the evidence in the light most favorable to the trial court's action, indulging every presumption in favor of the judgment. Zorilla v. Wahid, 83 S.W.3d 247, 253 (Tex. App.BCorpus Christi 2002, no pet.). If some probative and substantive evidence supports the trial court's findings, the trial court did not abuse its discretion. Id.

The family code establishes guidelines for child support which are presumed to be reasonable and in the children's best interests. Tex. Fam. Code Ann. ' 154.122 (Vernon 2002). The guidelines are specifically designed to apply to situations in which the obligor's monthly net resources are $6,000 or less. Tex. Fam. Code Ann. ' 154.125 (Vernon 2002). Here, the percentage of net resources to be allocated for the support of the two children is twenty-five percent. Id.

"Net resources" includes all wage and salary income, self employment income, and all other income actually being received, including capital gains. See Tex. Fam. Code Ann. ' 154.062(b) (Vernon 2002). The court may order support above or below the guideline amount if the evidence rebuts the presumption that application of the guidelines is in the best interest of the children and justifies a variance from the guidelines. Tex. Fam. Code Ann. ' 154.123(a) (Vernon 2002). In determining whether application of the guidelines would be unjust or inappropriate under the circumstances, the court shall consider evidence of all relevant factors, including:

(1) the ages and needs of the children;

(2) the ability of the parents to contribute to the support of the children;

(3) any financial resources available for the support of the children;

(4) the amount of time of possession of and access to the children;

(5) the amount of the obligee's net resources, including earning potential;

(6) child care expenses necessary to enable either party to maintain gainful employment;

(7) whether either party has the managing conservatorship or actual physical custody of another child;

(8) the amount of alimony or spousal maintenance actually and currently being paid or received by a party;

(9) expenses for a child for education beyond secondary school;

(10) whether the obligor or obligee has an automobile, housing, or other benefits furnished by an employer, another person, or a business entity;

(11) the amount of other deductions from wages, salary, or other compensation;

(12) provision for health care insurance and payment of uninsured medical expenses;

(13) special or extraordinary educational, health care, or other expenses of the parties or of the children;

(14) the cost of travel in order to exercise possession of and access to the children;

(15) positive or negative cash flow from any real and personal property and assets, including a business and investments;

(16) debts or debt service assumed by either party; and

(17) any other reason consistent with the best interest of the children, taking into consideration the circumstances of the parents.

See Tex. Fam. Code Ann. ' 154.123(b) (Vernon 2002).

If the obligor's net resources exceed $6,000 per month, the court shall apply the percentage guidelines to the first $6,000. T ex. Fam. Code Ann. ' 154.126 (Vernon 2002). The court may order additional amounts of child support as appropriate, depending on the income of the parties and the proven needs of the children. Id. The entire amount of the presumptive award must be subtracted from the proven total needs of the children. Tex. Fam. Code Ann. ' 154.126(b). The court must then allocate between the parties the responsibility to meet the children's additional needs, Aaccording to the circumstances of the parties.@ Id. In no event may the obligor be required to pay more support than the greater of the presumptive amount or 100 percent of the proven needs of the children. Id. Ironically, the family code Aprovides a much narrower method for calculating the support obligation when an obligor's net monthly resources exceed $ 6,000. . . .@ Scott, 926 S.W.2d at 419.

The trial court issued the following findings of fact regarding the child support award:

1. the application of the guidelines in this case would be unjust or inappropriate;

2. the amount of net resources available to Respondent, JEWEL LATHANIEL COLVIN, per month is $3,000.00;

3. the amount of net resources available to Petitioner, KATHRYN MARIE COLVIN, per month is $3,000.00;

4. the number of children before the Court is two (2);

5. the names and birth dates of all children not before the Court who reside in the same household with JEWEL LATHANIEL COLVIN and/or for whom JEWEL LATHANIEL COLVIN has a legal duty to pay support are as follows: NONE;

6. the amount of child-support payments per month that is computed if the percentage guidelines of section [154.125/154.129] of the Texas Family Code are applied to the first $6,000 of Respondent, JEWEL LATHANIEL COLVIN=s, net resources is $750.00;

7. the percentage applied to the first $6,000 of Respondent, JEWEL LATHANIEL COLVIN=s net resources for child support by the actual order rendered by the court is 50 percent;

8. the specific reasons that the amount of support per month ordered by the Court varies from the amount computed by applying the percentage guidelines of section [154.125/154.129] of the Texas Family Code are:

JEWEL LATHANIEL COLVIN=s net monthly resources are derived solely from investments, rather than from a regular salary. As such, his net resources are somewhat arbitrary and determined by the sum he chooses to withdraw each month. This factor, along with the proven needs of the children, and the ability of KATHRYN MARIE COLVIN to support them, makes the child support appropriate as ordered.

In issue nineteen, Kathryn argues that the evidence does not support the trial court=s Finding of Fact No. 2 that Jewel=s net resources are $3,000.00 per month. In issues twenty and twenty-one, she argues that because Finding No. 2 is erroneous, Finding Nos. 6 and 7 are erroneous as well, because they are based on Finding No. 2.

The evidence shows that Jewel retired from his employment in April 1999, before Kathryn filed for divorce on August 27, 1999. He receives no monthly retirement income because he took lump-sum retirement in April 1999. In January 1998, Jewel underwent double-bypass surgery, and his physician has since discovered that Jewel=s heart has additional beats or Aclicks.@ Jewel testified that his health issues have impacted his income potential. Both parties testified that during the previous two years, each party had lived on $3,500.00 per month by liquidating community investments, investments from which the total interest and dividend income for 2001 was $21,800.00. Jewel testified that he would have to continue liquidating assets to pay future child support.

Viewing the evidence in the light most favorable to the trial court=s action and indulging every presumption in favor of the judgment, we conclude that there is some probative and substantive evidence supporting the trial court=s Finding No. 2, and thus, the trial court did not abuse its discretion. See Zorilla, 83 S.W.3d at 253. Accordingly, we overrule Kathryn=s nineteenth issue. Further, because the basis of Kathryn=s twentieth and twenty-first issues is the erroneous nature of Finding No. 2, and we have found no such error, Kathryn=s twentieth and twenty-first issues are overruled.

In issue twenty-two, Kathryn contends the evidence does not support the trial court=s Finding No. 8. Specifically, she asserts the trial court erred in allowing Jewel to arbitrarily set his own net resources, and the finding does not address whether he is intentionally unemployed.

To make a finding of intentional underemployment or unemployment, there must be evidence in the record that the parent reduced his income for the purpose of decreasing his child support payment. Zorilla, 83 S.W.3d at 253. The requisite intent, or lack thereof, to be underemployed or unemployed for the purpose of determining a child support award may be inferred from such circumstances as the parent's education, economic adversities, business reversals, business background, and earning potential. Id. Once the parent who is obligated to pay child support has offered proof of his or her current wages, the other parent bears the burden to show that the obligor is intentionally underemployed or unemployed. Id.

As previously set forth above, the evidence at trial showed that Jewel retired prior to the divorce proceedings, and neither party had any intention of him returning to work. Jewel presented sufficient proof that his net monthly resources are only $3000 per month. Thus, the burden shifted to Kathryn to show that Jewel was intentionally unemployed.

We have reviewed the entire record and have found no evidence that Jewel was intentionally unemployed. In fact, Kathryn testified that after Jewel=s retirement, AIt was never either one of our plans jointly or separately to go back to work.@ Kathryn=s twenty-second issue is overruled.

In issue twenty-three, Kathryn asserts the trial court erred in awarding only $1,500 in child support because the award is not based upon the Aproven needs@ of the two children, when Jewel=s net resources are in excess of $6000 per month. Kathryn contends the trial court erred in its application of section 154.126 of the family code. However, a trial court utilizes section 154.126 only when it finds that the obligor=s net resources exceed $6000 per month.

Because the trial court found that Jewel=s net resources were only $3000 per month, and we have concluded there was no abuse of discretion in doing so, we conclude that section 154.126 of the family code is inapplicable in this case. Kathryn=s twenty-third issue is overruled.

In issue twenty-four, Kathryn contends the trial court erred in failing to make a finding of fact that $5,888 is the total proven needs of the children. However, Kathryn provides no argument or authority in support of this contention. See Tex. R. App. P. 38.1(h). Furthermore, Kathryn failed to request such a finding, and there is no requirement that a trial court make a finding of fact regarding the amount of proven needs. See Tex. Fam. Code Ann. ' 154.30; Western Steel Co., 760 S.W.2d at 727. Kathryn=s twenty-fourth issue is overruled.

In her seventh issue, Kathryn contends the trial court erred in denying her oral request to file a trial amendment alleging fraud on the last day of trial, and subsequently in a written post-trial motion. In her tenth and eleventh issues, Kathryn contends the trial court erred in allocating securities without due consideration of tax consequences and failed to make findings of fact or conclusions of law supporting said allocation. In her twelfth through seventeenth issues, Kathryn contends the trial court erred when it made no findings or conclusions to support the judgment; the trial court erred in refusing to file additional findings of fact and conclusions of law regarding ambiguity and ratification; and the evidence is insufficient to support Finding of Fact No. 8, Conclusion of Law Nos. 4 and 5, and an implied finding of ambiguity. In her eighteenth issue, Kathryn contends the trial court erred by failing to award her attorney=s fees. However, Kathryn has failed to adequately brief these issues. See Tex. R. App. P. 38.1(h). Accordingly, we overrule Kathryn=s seventh, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, and eighteenth issues.

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

Memorandum Opinion delivered and filed this

the 25th day of May, 2006.