JOSEPH TERRY PITT, FROM A DISTRICT COURT APPELLANT, v. MARILYN KAY PITT, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-87-01002-CV
 
JOSEPH TERRY PITT,                                FROM A DISTRICT COURT
 
 
        APPELLANT,
 
 
v.
 
 
MARILYN KAY PITT,                                
 
 
        APPELLEE.                                          OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES WHITHAM, ROWE AND THOMAS
OPINION BY JUSTICE THOMAS
APRIL 26, 1989
        Husband, Joseph Terry Pitt, complains on appeal of the trial court's division of the community property and debts. In eleven points of error, Husband avers that the trial court erred in: (1) its division and evaluation of certain assets of the estate; (2) mischaracterizing the homestead and imposing a lien thereon; and (3) requiring him to execute a note payable to wife, Marilyn Kay Pitt. We find no reversible error and, accordingly, affirm the trial court's judgment.
FACTUAL BACKGROUND
        After almost twenty years of marriage, Husband filed for a divorce on the ground of insupportability. Wife answered and filed a counterclaim which alleged that the marriage had become insupportable, that Husband had been guilty of cruel treatment, and that he had committed adultery. Based upon certain enumerated equities, Wife sought a disproportionate share of the community estate. In addition, Wife asked to be appointed managing conservator of the one minor child and requested that Husband be required to pay child support. In a trial before the court, the court granted the divorce, made provisions for the conservatorship and support of the child and divided the community estate and debts. Husband appeals from the property division set out in the decree of divorce.
SUFFICIENCY OF THE EVIDENCE AND
ABUSE OF DISCRETION
        We note at the outset that the record does not contain a formal document entitled findings of fact and conclusions of law. Thus, Wife urges that since no findings were properly requested or filed, we must presume that the trial court made all findings necessary to support the judgment which can be drawn from the evidence. Wife further contends that our review is limited to whether the trial court's judgment was a clear abuse of discretion. We conclude, however, that our review is not limited by an absence of findings in the record. The record contains a document entitled "Findings of the Court," which was "delivered to the parties' attorneys for use in preparation of the Final Decree of Divorce" and was filed with the court. This document suffices as formal findings of fact by the trial court. Findings of fact and conclusions of law need not be in any particular form other than they must be in writing. Schlobohm v. Schapiro, 759 S.W.2d 470, 474 (Tex. App.--Dallas 1988, writ filed); Villa Nova Resort, Inc. v. State, 711 S.W.2d 120, 124 (Tex. App.--Corpus Christi 1986, no writ).
        Husband's first three points on appeal attack the division as being an abuse of discretion and having no legally or factually sufficient evidence to support it. In reviewing "no evidence" points, an appellate court may consider only the evidence and inferences tending to support the judgment. Jones v. Jones, 641 S.W.2d 342, 344-45 (Tex. App.--Corpus Christi 1982, no writ). In reviewing factual sufficiency, the appellate court considers all the evidence to determine whether the judgment is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 150 Tex. 662, 664-65, 244 S.W.2d 660, 661 (1951). In characterizing the division as being "grossly disproportionate," Husband primarily claims that the values of certain community property established by the trial court were improper. The question of valuation will be addressed separately. With regard to the division itself, both sides agree in their briefs, that based upon the trial court's values, Wife received 53% of the community estate and Husband received 47%. We may accept this allegation as true. TEX. R. APP. P. 74(f).
        The trial court was required to divide the estate in a manner that was "just and right, having due regard for the rights of each party and any children of the marriage." TEX. FAM. CODE ANN. § 3.63 (Vernon Supp. 1989). Trial courts are accorded broad discretion in dividing the property and we presume that they exercise their discretion properly. Bell v. Bell, 513 S.W.2d 20, 22 (Tex. 1974). Divisions are corrected on appeal only when an abuse of discretion has been shown. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). Each case is different and must be resolved on its own unique facts. In achieving a fair division, many factors may be considered by the trial court including fault, spouses' capacities and abilities, business opportunities, education, financial obligations and the nature of the property. Murff, 615 S.W.2d at 699. In viewing the evidence in light of the above standards, we hold that the evidence is sufficient to support the court's division.
        The parties were married for approximately twenty years. Husband's earning potential was far superior to that of Wife's. In 1986, during the separation, Husband earned $77,200 while Wife earned between $12,000 and $13,200. Husband, a college graduate, was a civil engineer who owned a one-fourth interest in an engineering firm. Wife was employed by the Post Office as a part time rural route carrier and her previous work history involved clerical work. It was agreed by the parties that Wife would be the managing conservator of their minor daughter. Additionally, while the trial court granted the divorce upon the ground of insupportability, it was within the court's discretion to consider evidence of fault in the break up of the marriage. Baker v. Baker, 624 S.W.2d 796, 798 (Tex. Civ. App.--Houston [14th Dist.] 1981, no writ). Wife testified that on numerous occasions Husband had subjected her to physical and mental abuse. There was additional evidence adduced that Husband had been physically abusive to his child and Wife's grandchild. Based upon the values established by the trial court, the division of property only slightly favors the wife. See McIntyre v. McIntyre, 722 S.W.2d 533, 535 (Tex. App.--San Antonio 1986, no writ). We hold the evidence supported the trial court's division and thus, overrule points one, two and three.
VALUATION OF PROPERTY
        Points four, five and six complain of valuations of the household fixtures and furniture as well as Husband's profit sharing plan and shares of stock. The argument that the division was grossly disproportionate is essentially based on the claim that the trial court erroneously valued these assets and that the evidence was insufficient to support the court's valuations. A trial judge has discretion to value property within the range of values in the evidence or the court may blend all of the evidence to arrive at a value. See McIntyre, 722 S.W.2d at 536; Smith v. Smith, 715 S.W.2d 154, 156 (Tex. App.--Texarkana 1986, no writ). As is often the case, there were significantly different values placed on particular items in the estate. Considerable testimony was offered by both sides concerning what value to assign the shares of stock owned in Husband's closely held corporation. Testimony by Husband and his business appraiser placed the shares' value at $65,453.00, while testimony by Wife and her business appraiser valued the shares between $201,897.00 and $381,292.00. The trial court gave the shares a value of $202,000.00. Husband argues strenuously that the trial court should have utilized the formula used by his witness. However, as the trier of fact, the trial judge heard all of the testimony and evaluated the witnesses, methods and factors used in arriving at a fair market value for the shares. The value placed upon these stocks fell within the range of evidence presented.
        As to the value of the household goods and fixtures, the final decree placed a single value on all furnishings and fixtures of $12,500, although it is not clear from the judgment what percentage of this figure was awarded to each party. Husband's valuations of all household items was $22,827, while Wife's was $11,900. Again the court's value was within the range of evidence presented. Thus, there was no abuse of discretion. See Mata v. Mata, 710 S.W.2d 756, 758 (Tex. App.--Corpus Christi 1986).
        Regarding Husband's profit sharing plan, there was testimony that as of January 31, 1986, total funding for the plan was $362,756.00, of which $51,302.60 belonged to Husband. Between that date and the time of trial, nearly a twelve month period, several participants had forfeited their non-vested interests in the plan and Husband would receive his pro rata portion of these forfeitures. It was anticipated that after January 31, 1987, the company's annual contribution to the plan would be $50,000. In addition to the forfeitures there was further testimony that Husband's interest would benefit from earnings, additional contributions, and appreciation. The decree valued the profit-sharing interest at $70,000. Common sense dictates that with forfeitures, earnings, additional contributions and appreciation or depreciation, Husband's value would not stay the same. Given the trial court's wide discretion and ability to draw reasonable inferences from the evidence submitted, we hold that the evidence is factually sufficient to support the trial court's value. Points four, five and six are overruled.
        Husband complains in point seven that the trial court's award of an $8,800 judgment for attorney's fees contributed to an unfair division. The award of attorney's fees is one of the factors to be considered by the court when dividing an estate. Finn v. Finn, 658 S.W.2d 735, 749 (Tex. App.--Dallas, 1983, writ ref'd n.r.e.). Considering the conditions and needs of the parties, there was no abuse of discretion. We, therefore, overrule point seven.
CHARACTERIZATION OF PROPERTY
        Points eight through ten involve the trial court's determination that the residence of the parties was community property. Husband first contends that the evidence was both legally and factually insufficient to support such a finding. Property possessed by either spouse during marriage is presumed to be community property. TEX. FAM. CODE ANN. § 5.02 (Vernon Supp. 1989). This presumption may be rebutted only by clear and convincing evidence. Id. The burden is upon the party asserting the separate character of the property. Jackson v. Jackson, 524 S.W.2d 308, 311 (Tex. Civ. App.--Austin 1975, no writ). Husband contends that the property was a gift and, thus, is separate property. See TEX. FAM. CODE ANN. § 5.01(a)(2) (Vernon 1975). The burden of proving an inter vivos gift is on the party claiming that the gift occurred. See Woodworth v. Cortez, 660 S.W.2d 561, 564 (Tex. App.--San Antonio 1983, writ ref'd n.r.e.).
        The clear and convincing standard of proof is an intermediate one, falling between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d 846, 847 (Tex. 1980). The standard of appellate review is likewise an intermediate one. See Neiswander v. Bailey, 645 S.W.2d 835, 835 (Tex. App.--Dallas 1982, no writ). In reviewing the sufficiency of the evidence under the clear and convincing standard, it is the duty of the appellate court to determine not whether the fact-finder could reasonably conclude that the existence of a fact is more probable than not, as in ordinary civil cases, but whether the trier of fact could reasonably conclude that the existence of the fact is highly probable. Neiswander, 645 S.W.2d at 836; Wetzel v. Wetzel, 715 S.W.2d 387, 389 (Tex. App.--Dallas 1986, no writ).
        In 1972, Husband's parents, Milton and Illa Pitt, conveyed a vacant tract of land to Husband and Wife. Thereafter, the parties borrowed $25,000 from the bank for the construction of a house for which Milton agreed to be the contractor. The cost to complete the residence ultimately totaled $35,000. The bank refused to advance Husband the additional $10,000 needed to fund construction costs. Consequently, the parties allowed the bank to conduct a "friendly foreclosure" of the property. Milton then borrowed $35,000 from the bank and purchased the property. In 1980, Husband's parents again conveyed the property to the parties. The "Warranty Deed (with Vendor's Lien)" recites a consideration of $10 cash paid and that the parties agreed to "assume and to pay the unpaid balance owing on one certain note in the original principal sum of $35,000." While the record reveals that Husband's parents may have intended that the property be a gift to the parties, it is undisputed that the parties assumed the obligation of Milton and Illa on the note and made payments on the debt. Milton and Illa did not make any payments after the date of the deed to the parties.
        A gift has been defined as a transfer of property made voluntarily and gratuitously, without consideration. Hilley v. Hilley, 161 Tex. 569, 575, 342 S.W.2d 565, 569 (1961). Thus many courts have held that exchange of consideration precludes a gift. Williams v. McKnight, 402 S.W.2d 505, 508 (Tex. 1966). "Gift and onerous consideration are exact antitheses. The idea of their co-existence involves a paradox." Kearse v. Kearse, 276 S.W. 690, 693 (Tex. Comm'n App. 1925, judgm't adopted). A recital of onerous consideration in a deed "negatives the idea of a gift." Kitchens v Kitchens, 372 S.W.2d 249, 255 (Tex. Civ. App.--Waco 1963, writ dism'd).
        The trial court's findings have the same force as a jury verdict and we may not substitute our judgment for the trier of fact, even if we would have reached a different conclusion. If supported by some competent evidence, such findings will not be disturbed on appeal unless contrary to the overwhelming weight of the evidence. Ellebracht v. Ellebracht, 735 S.W.2d 658, 662 (Tex. App. -- Austin 1987, no writ). We hold that because the husband and wife agreed to assume a legally enforceable debt against the property and made payments on that debt, it was within the court's discretion to find the conveyance was a sale and not a gift. Husband failed to sustain his burden of showing, by clear and convincing evidence, that the property was separate rather than community.
        Husband's next complaint concerns the trial court's award to each party of a one-half undivided interest in the community property residence. The trial court then set aside the residence for the use and benefit of the parties' minor child, and ordered the residence sold when the child became eighteen years old or acquired a high school diploma, whichever came later. The court granted Wife the option to purchase Husband's interest. Husband argues that granting Wife an option to purchase the homestead created an unlawful divestiture of his separate real property. Because we have held that the trial court correctly characterized the homestead as community property, the option to purchase Husband's interest was not an unlawful divestiture of separate property. See McLemore v. Johnston, 585 S.W.2d 347, 348 (Tex. Civ. App.--Dallas 1979, no writ).
        The last complaint concerns the trial court's order that Husband execute a note for $52,000 payable to Wife. The note was secured by a lien upon his interest in the parties' homestead. Husband contends the payment is "not referable to the rights and equities of the parties" and therefore constitutes alimony. We disagree. Real estate which is the homestead of the parties is subject to division upon divorce. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21, 22 (1923). Additionally, a court may award a money judgment to compensate for any of a wife's interest in the homestead which was awarded to the husband. The court may then place a lien upon the husband's property to secure payment of such amount. Brunell v. Brunell, 494 S.W.2d 621, 623 (Tex. Civ. App.--Dallas 1973, no writ). In this case, the decree granted Wife a security interest upon Husband's interest in the marital homestead.
 
 
    To secure [husband's] payment of said promissory note, which note, if not sooner paid as hereinabove provided, shall be paid to [wife] out of the proceeds of any sale of the property. IT IS FURTHER ORDERED that at any time whatsoever, [husband] may trade his interest in [the property] . . . to [wife], in full and complete satisfaction of [husband's] obligation arising under the promissory note . . . .
 
 
(Emphasis in original).
        From a review of the record and the decree, it is clear that the promissory note relates to the rights and equities of the parties in and to the community property held at the time of the divorce. See Thomas v. Thomas, 603 S.W.2d 356, 358 (Tex. Civ. App. -- Houston [14th Dist.] 1980). We are unpersuaded by Husband's claim that the $52,000 note was unfair, caused an inequitable division and constituted alimony. In effectuating a fair division, the trial court had the discretion to require husband to execute a promissory note. Wren v. Wren, 702 S.W.2d 251, 243, (Tex. App. -- Houston [14th Dist.] 1984, writ dism'd). Having determined that the note is referable to community property, it did not constitute alimony. In re Jackson, 506 S.W.2d 261, 266 (Tex. Civ. App. -- Amarillo 1974, writ dism'd). Points eight through eleven are overruled. Finding no reversible error, we affirm the trial court's judgment.
                                                          
                                                          LINDA THOMAS
                                                          JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90.
 
87-01002.F
 
 
 
File Date[01-02-89]
File Name[871002]