JIMMY CARL HODGES,FROM A DISTRICT COURT APPELLANT, v. OF KAREN RAE HODGES, APPELLEE

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-01145-CV
 
JIMMY CARL HODGES,FROM A DISTRICT COURT
 
        APPELLANT,
 
v. OF
 
KAREN RAE HODGES,
 
        APPELLEE. DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES WHITHAM, LAGARDE AND KINKEADE
OPINION BY JUSTICE LAGARDE
JULY 20, 1989
        Jimmy Carl Hodges (Husband) appeals from the trial court's division of his and Karen Rae Hodges' (Wife's) marital estate. In four points of error, Husband asserts that the trial court erred: (1) by not taking attorney's fees received by appellee into consideration when dividing the community estate; (2) by granting appellee's request for attorney's fees on appeal because there was no evidence or, alternatively, insufficient evidence to support the award; (3) by not taking the sum of $6,900 withdrawn by appellee and the sum of $2,400 paid in taxes by appellant into consideration when dividing the marital estate; (4) by awarding appellee attorney's fees of $7,500 for the trial of this case. We disagree and affirm the trial court's judgment.
        The record in this case shows that Husband and Wife were married in 1962. After Wife moved out of the homestead in February 1986, Husband filed his petition for divorce. Wife then filed an original answer and cross-petition for divorce. The pre-trial discovery process lasted approximately two years. When the case was finally tried, it was revealed that husband suffered from alcoholism. While Husband never actually struck Wife, he would sometimes act in a violent manner while under the influence of alcohol. Husband would often come home intoxicated in the early morning hours with "makeup all over his shirts and his collars." Although Husband received treatment for his alcohol addiction in January 1985, he resumed drinking approximately thirty days after his release from the treatment center. Just prior to the time that Husband and Wife separated, Husband made a statement to Wife indicating that he had engaged in a sexual relationship with another woman during their marriage.
        The evidence also showed that Husband expended community funds on girlfriends after the couple separated in 1986. Indeed, Husband admitted spending $500 to fix one girlfriend's pickup truck, and he also admitted spending at least $700 to $750 to pay rent for an apartment lease that he co-signed for the same woman. Additionally, there was at least one check for $600 made out to cash and endorsed by the girlfriend. At the time of trial, Husband had the sole use and benefit of the homestead, and his then girlfriend and her child lived in the homestead approximately eighty to ninety percent of the time.
        Husband has a college education, and in 1987 had an income of $64,000 from his work as a safety director for a large contractor. Wife, on the other hand, does not have a college education. She had primarily worked as a secretary in the past, and, although she was a licensed real estate agent, she was not employed in that capacity at the time of trial. Immediately following the couple's separation, she had worked for the chamber of commerce. However, after suffering from an emotional breakdown in late 1986, she was forced to quit her job and earned only $18,000 in 1987. At the time of trial, she was working through a temporary agency and making a diligent effort to obtain full-time employment.
        After both Husband and Wife testified, Wife's attorney took the stand to testify regarding attorney's fees. She testified that she was a board certified specialist in family law and charged $175 per hour. She stated that her fees amounted to $10,500 through the trial of the case, and, while she concluded that these fees could be considered "unreasonable" for the size of the estate, such fees were necessitated by Husband's discovery abuses. In regard to these discovery abuses, the trial court noted that it had entered three discovery orders with which Husband had failed to comply. Wife's attorney testified that, prior to trial, Wife told her that the fees had "gone well beyond her range." For this reason, apparently, Wife did not pursue further proceedings to compel or sanction Husband. Based on this evidence, the trial court granted the divorce and entered a "just and right" property division. Husband timely filed a motion for new trial.
        The trial court vacated its prior judgment and granted a partial new trial on attorney's fees. In the hearing on Husband's motion, Wife's attorney again testified that her rate of $175 an hour was reasonable and entered into evidence a detailed itemized statement demonstrating a breakdown of the fees.
        Following the hearing, the trial court entered its findings of fact and conclusions of law. The trial court found that an equitable division of the property required that a greater percentage of the property be given to Wife. In support of this conclusion, the trial court found that:
    (1)    there was a disparity of earning power and Husband had greater earning power;
 
    (2)    the future employability of Husband was greater than Wife's;
 
    (3)    the earning power, business opportunities, capacities, and abilities of Husband exceeded those of Wife's;
 
    (4)    Wife had a greater need for future support than did Husband;
 
    (5)    Wife would have continued to derive benefits from a continuation of the marriage; and
 
    (6)    Husband suffered from alcoholism during the marriage.
The trial court then awarded Wife fifty-five percent of most, but not all, of the property. With these facts in mind, we now address Husband's four points of error.
Effect of Limited Appeal
        Before addressing the individual points of error, we must first address a procedural matter regarding points of error two and three. In his second point, Hodges complains about the trial court's award of $3,000 in attorney's fees for appeal to this Court. In his third point of error, Husband, in part, complains about the trial court's failure to consider taxes of $2,400 when the court divided the property. For the following reasons, we are unable to consider these issues on appeal.
        In his notice of intent to appeal, Husband limited his appeal as follows:
    Pursuant to Texas Rules of Appellate Procedure, you are hereby notified that Petitioner, JIMMY CARL HODGES, will appeal the June 20, 1988 decision in the above captioned cause. Which decision was approved by the denial of Petitioner's Motion for New Trial. The appeal will be in regards to the following rulings:
 
        1.    $7,500 awarded to Respondent's attorney;
 
        2.    The Court's failure to consider, account for or include in the division of the property the sum of $6,900.00 received by Respondent prior to the June 20, 1988 ruling; and
 
        3.    The Court's failure to include the above-mentioned attorney's fees and money advance to Respondent in dividing the property in an alleged 55/45 division.
An appellant may limit the scope of his appeal. See TEX. R. APP. P. 40(a)(4). When an appeal is limited, the entire case is not brought forward--only the portions specified are brought forward for review. See Savage v. Murphy, 466 S.W.2d 335, 337 (Tex. Civ. App.--Dallas 1971, writ ref'd n.r.e.). See also Ragsdale v. Progressive Voters League, 743 S.W.2d 338, 343 (Tex. App.--Dallas 1987, no writ). Rule 40(a)(4) reads as follows:
                 Notice of Limitation of Appeal. No attempt to limit the scope of an appeal shall be effective as to a party adverse to the appellant unless the severable portion of the judgment from which the appeal is taken is designated in a notice served on the adverse party within fifteen days after judgment is signed, or if a motion for new trial is filed by any party, within seventy-five days after the judgment is signed.
TEX. R. APP. P. 40(a)(4). Husband complied with the procedures necessary to effect a limitation of appeal as to the "party adverse to the appellant" (i.e., Wife). Consequently, because Wife is bound by Husband's limitation of appeal, we hold that Husband is also necessarily bound by his own limitation of appeal.
        Husband did not include his complaints regarding appellate attorney's fees or the $2,400 tax payment in his limited appeal; consequently, we will not consider those complaints. Husband's multifarious points of error also make casual mention of several other alleged errors which have not been briefed or supported with authority. Our review is limited to the "errors" to which Husband has limited his appeal. Thus, we overrule Husband's second point of error complaining of appellate attorney's fees, and the portion of his third point concerning the $2,400 tax payment. With this preliminary matter disposed of, we now group Husband's remaining points into two general discussions.
Division of Property
        In his first and third points of error, respectively, Husband claims that, when dividing the marital estate, the trial court erred in failing to consider the $7,500 in trial attorney's fees and the $6,900 withdrawn by Wife from a retirement account. Husband claims that the trial court expressly stated, both in the judgment and in the statement of facts, that it intended to award Husband forty-five percent of the total marital estate and Wife fifty-five percent. Based on that contention, Husband asserts that the trial court erred in failing to consider Wife's withdrawal and Husband's tax payment because those two factors, once properly considered, would defeat the trial court's express intention to create a fifty-five/forty-five percent property division.
        In response to a question from this panel during oral argument, Husband assured this Court that the trial court had expressly stated its intention to make such a division in its judgment and in the statement of facts. However, he was unable, during oral argument, to refer us to specific locations in the record where we could find this stated intention. Counsel stated, however, that he could "certainly supply it to the court." We have not received any communications from Husband or his attorney regarding these alleged record references, and we have been unable to locate the alleged record statements. Because we have nothing before us to indicate that the trial court intended to make a fifty-five/forty-five percent division of the property, we only review the trial court's actions to determine if it divided the property in a manner that is just and right. See Murff v. Murff, 615 S.W.2d 696, 698-99 (Tex. 1981).
        The trial court awarded Husband the following property:
        [1.]        All household furniture, furnishings, fixtures, goods, appliances, and equipment in the possession of or subject to the sole control of Petitioner, excluding the hammock and one-half the children's toys and books.
 
        [2.]        All clothing, jewelry, and other personal effects in the possession of or subject to the sole control of Petitioner.
 
        [3.]        Any and all sums of cash in the possession of or subject to the sole control of Petitioner, including money on account in banks, savings institutions, or other financial institutions, which accounts stand in Petitioner's sole name or from which Petitioner has the sole right to withdraw funds or which are subject to Petitioner's sole control.
 
        [4.]        Forty five percent (45%) of any and all sums, whether matured, accrued, vested or otherwise, together with all increases thereof, the proceeds therefrom, and any other rights related to any profit-sharing plan, retirement plan, pension plan, employee stock option plan, employee savings plan, accrued unpaid bonuses, or other benefit program existing by reason of JIMMY C. HODGES' employment with the Beck Group, HCB Contractors through April 29, 1988, as further directed by the Qualified Domestic Relations Order Attached hereto as Exhibit "A", and incorporated herein by reference.
 
        [5.]        Forty Five Percent (45%) of the Individual Retirement account with 1st National Bank-Garland in the name of JIM HODGES, account number 449-68-4573.
 
        [6.]        Forty Five Percent (45%) of the Individual Retirement account in the name of KAREN HODGES with Templeton World Fund, account number 2810942140.
 
        [7.]        Forty Five Percent (45%) of the Individual Retirement Account in the name of JIMMY HODGES with Templeton World Fund, account 2821110190.
 
        [8.]        Forty Five Percent (45%) of the Individual Retirement Account with Smith Barney in the name of JIM HODGES, account number 028-385670.
 
        [9.]        Fifty Percent (50%) of the Stocks in MGF Oil Corporation.
 
        [10.] Fifty Percent (50%) of the shares held in Van Zandt Bank.
 
        [11.] Forty Five percent (45%) of Delta Airlines Frequent Flyer Mileage, Delta Identification number 0322025230.
 
        [12.] Forty Five Percent (45%) of the American Airlines Advantage Mileage, American Advantage Number 2342004.
 
        [13.] Any and all policies of life insurance insuring the life of Petitioner.
 
        [14.] The 1982 Ford Fairmont motor vehicle, vehicle identification number 1FABP21B4CK155035, the 1981 Ford Pick-Up motor vehicle, vehicle identification number 1FTDF15F1BKA00146, the 1981 Kingfisher boat, serial number KNG0068M81K, and the 1984 Evinrude motor, serial number J0415801, together with all prepaid insurance, keys, and title documents.
Wife, on the other hand, was awarded:
        [1.]        All household furniture, furnishings, fixtures, goods, appliances, and equipment in the possession of or subject to the sole control of Respondent, including the hammock and one-half of the children's toys and books.
 
        [2.]        All clothing, jewelry, and other personal effects in the possession of or subject to the sole control of Respondent.
 
        [3.]        Any and all sums of cash in the possession of or subject to the sole control of Respondent, including money on account in banks, savings institutions, or other financial institutions, which accounts stand in Respondent's sole name or from which Respondent has the sole right to withdraw funds or which are subject to Respondent's sole control.
 
        [4.]        Fifty Five Percent (55%) of any and all sums, whether matured, accrued, vested or otherwise, together with all increases thereof, the proceeds therefrom, and any other rights related to any profit-sharing plan, retirement plan, pension plan, employee stock option plan, employee savings plan, accrued unpaid bonuses, or other benefit program existing by reason of JIMMY C. HODGES' employment with the Beck Group, HCB Contractors through April 29, 1988, as further directed by the Qualified Domestic Relations Order Attached hereto as Exhibit "A", and incorporated herein by reference.
 
        [5.]        Fifty Five Percent (55%) of the Individual Retirement account with 1st National Bank-Garland in the name of JIM HODGES, account number 449-68-4573.
 
        [6.]        Fifty Five Percent (55%) of the Individual Retirement account in the name of KAREN HODGES with Templeton World Fund, account number 2810942140.
 
        [7.]        Fifty Five Percent (55%) of the Individual Retirement Account in the name of JIMMY HODGES with Templeton World Fund, account 2821110190.
 
        [8.]        Fifty Five Percent (55%) of the Individual Retirement Account with Smith Barney in the name of JIM HODGES, account number 028-385670.
 
        [9.]        Fifty Percent (50%) of the Stocks in MGF Oil Corporation.
 
        [10.] Fifty Percent (50%) of the shares held in Van Zandt Bank.
 
        [11.] Fifty Five percent (55%) of Delta Airlines Frequent Flyer Mileage, Delta Identification number 0322025230.
 
        [12.] Fifty Five Percent (55%) of the American Airlines Advantage Mileage, American Advantage Number 2342004.
 
        [13.] Any and all policies of life insurance insuring the life of Respondent.
 
        [14.] The 1982 Buick Regal motor vehicle, vehicle identification number 1G4AJ69A7CR123015, and the 1970 Travel Trailer, together with all prepaid insurance, keys, and title documents.
 
        [15.] The following real property, including any escrow funds prepaid insurance, utility deposits, keys, and title documents:
 
            Lot 23 and 24, Block Y, in Rolling Hills Section 3, according to the plat of said Rolling Hills of record in Volume 400, Page 267 of the Plat records of Hunt County, Texas.
In addition to the property set out above, the trial court awarded wife fifty-five percent of the homestead, but ordered that the Husband be allowed to purchase Wife's interest if he so desired. Husband was also ordered to pay $7,500 of Wife's trial attorney's fees. As for debts and liabilities, the trial court ordered each party to pay for those debts each incurred after the date of separation and ordered each party to pay taxes on the real and personal property that the trial court awarded to each.
        In making a just and right division, the trial court has broad discretion, and its discretionary division will be overturned on appeal only upon a clear showing of abuse. See id.; King v. King, 661 S.W.2d 252, 254 (Tex. App.--Houston [1st Dist.] 1983, no writ). As the court stated in Murff:
        The trial court in a divorce case has the opportunity to observe the parties on the witness stand, determine their credibility, evaluate their needs and potentials, both social and economic. As the trier of fact, the court is empowered to use its legal knowledge and its human understanding and experience. Although many divorce cases have similarities, no two of them are exactly alike. Mathematical precision in dividing property in a divorce is usually not possible. Wide latitude and discretion rests in these trial courts and that discretion should only be disturbed in the case of clear abuse.
Murff, 615 S.W.2d at 700.
        The trial court, as previously noted, made several findings of fact that were relevant to its determination of a just and right division. First, the trial court properly took into account the fact that Husband had greater earning power, better business opportunities, capacities, and abilities. See Murff, 615 S.W.2d at 698-99; Simpson v. Simpson, 727 S.W.2d 662, 664 (Tex. App.--Dallas 1987, no writ). The court also properly considered Wife's greater future need for support. See Goren v. Goren, 531 S.W.2d 897, 900 (Tex. Civ. App.--Houston [1st Dist.] 1975, writ dism'd w.o.j.). We cannot say, based on the record before us, that the trial court clearly abused its discretion in dividing the marital estate. We overrule Husband's first and third points of error.
        Finally, in Husband's fourth point of error, he argues that the trial court erred and abused its discretion in awarding attorney's fees of $7,500 for the trial of this case. It is well settled that a trial court may award attorney's fees as part of the division of the community estate. E.g., Marshall v. Marshall, 735 S.W.2d 587, 599 (Tex. App.--Dallas 1987, writ ref'd n.r.e.). Husband asserts, however, that there was no evidence that the attorney's fees were reasonable and necessary. Husband also claims that Wife's attorney made a judicial admission that the fees were unreasonable. Although we agree with Husband's contention that there must be evidence to show that the award of attorney's fee was reasonable, see Mills v. Mills, 559 S.W.2d 687, 689 (Tex. Civ. App.--Fort Worth 1977, no writ), we disagree that there is no evidence. There is sufficient evidence in the record before us to show that the trial court's award was reasonable. Wife's attorney testified that she charged a reasonable hourly rate for an attorney with her qualifications. She also entered an extremely detailed record of the hours she spent working on various aspects of this case.
        As for Husband's claim that Wife's attorney admitted her fees were unreasonable, we find no merit in this contention. After detailing Husband's abuse of the discovery process, Wife's attorney concluded that Husband's abuse caused the accrual of an "unreasonable" amount of attorney's fees considering the size of the marital estate. This clearly is not an admission that her hourly rates were unreasonable or that the hours worked were unnecessary. We hold that there was sufficient evidence that Wife's attorney's fees were reasonable and necessary. We overrule Husband's fourth point of error and affirm the trial court's judgment.
 
                                                  
                                                  SUE LAGARDE
                                                  JUSTICE
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90
88-01145.F
 
 
File Date[01-02-89]
File Name[881145XF]