Thomas A. Shields v. Patricia N. Shields--Appeal from 221st District Court of Montgomery County

In The
Court of Appeals
Ninth District of Texas at Beaumont
______________________
NO. 09-06-334 CV
______________________
THOMAS A. SHIELDS, Appellant
V.
PATRICIA N. SHIELDS, Appellee
On Appeal from the 221st District Court
Montgomery County, Texas
Trial Cause No. 04-08-07009 CV
MEMORANDUM OPINION

Thomas Shields appeals the property division in a divorce decree. We affirm the trial court's judgment.

Patricia Shields filed a petition for divorce and requested a disproportionate share of the community estate. The trial court entered a temporary order that prohibited the parties from "selling, transferring, assigning, mortgaging, encumbering, or in any other manner alienating any of the property of Petitioner or Respondent, whether personalty or realty, and whether separate or community during the pendency of this case." Thomas filed for bankruptcy. The bankruptcy court entered an order allowing the parties to prosecute the divorce proceeding.

The trial court granted the divorce. As part of its division of the marital estate, the court awarded Thomas various furnishings and personal items, any cash in his possession, a 2004 Silverado Truck, a 2002 Corvette, 1994 Harley Davidson motorcycle, and "any and all interest, if any, that Thomas Shields may have in [t]he business known as The Bumper Man, Inc. . . ." The court ordered Thomas to pay the balances on the 2002 Corvette, the 2004 Silverado, and other various debts. The trial court awarded Patricia the house, various furnishings and personal items, any cash in her possession, her teacher's retirement plan, all life insurance policies insuring her life, and a 1988 Ford Tempo. The court ordered Patricia to pay the mortgage on the house. Thomas claims the trial court abused its discretion in ordering a disproportionate division of the community estate.

An appellate court reviews a trial court's division of property for an abuse of discretion. Boyd v. Boyd, 131 S.W.3d 605, 610 (Tex. App.--Fort Worth 2004, no pet.). A trial court abuses its discretion when it acts without reference to any guiding rules or principles. Id. Findings of fact and conclusions of law were neither requested nor filed in this case; therefore, since the case was tried to the bench, we presume the trial court made all necessary findings to support the judgment. See id. at 611.

In his first issue, Thomas argues that because the trial court granted the divorce based on insupportability and not fault, the court erred in not awarding him a proportionate share of the community assets. In his second issue, he argues that the trial court erred in awarding him the 2004 Silverado, the 2002 Corvette, and the Harley Davidson. In his third issue, Thomas argues the trial court erred in awarding Patricia her retirement fund and the equity in the marital residence. He claims this property should have been divided proportionately. In issue four, Thomas argues that because the divorce decree failed to mention Patricia's separate property or her claims for reimbursement against the community estate, the trial court could not consider these issues in determining the proper division of the community property. We consider the issues together, as they all attack the court's division of the property.

In a divorce decree, a trial court orders a division of the parties' estate in a manner the court deems just and right. Tex. Fam. Code Ann. 7.001 (Vernon 2006). A trial court is not required to divide the property equally. Smith v. Smith, 143 S.W.3d 206, 214 (Tex. App.--Waco 2004, no pet.). A disproportionate division must have a reasonable basis. Id. The trial court may consider the nature of the property, as well as the parties' earning capacities, abilities, business opportunities, financial conditions, and obligations. Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981). The court may also consider a spouse's dissipation of the community estate, a spouse's misuse of community property, and a spouse's failure to obey the court's temporary order restricting the use of community assets. Zorilla v. Wahid, 83 S.W.3d 247, 252 (Tex. App.--Corpus Christi 2002, no pet.). If the trial court determines a spouse committed a fraud on the community, the court may award the aggrieved party a greater share of the community estate. Schlueter v. Schlueter, 975 S.W.2d 584, 588 (Tex. 1998).

Bumper Man, Inc., is a car bumper repair business Thomas owned during the marriage. A few months before Patricia filed for divorce, Thomas sold Bumper Man to his sister for $15,000. Thomas's sister also owns Bumper King, a business with the same address as Bumper Man. Thomas testified he works for Bumper King as a consultant and helps his sister "learn how to run the business" and gives her advice. He testified that he earned $500 a week, and his sister raised his income to $35,000 a year to cover the monthly amount he pays under his bankruptcy plan. Thomas testified that he does not receive a paycheck but uses a debit card "which comes off of [his] salary[.]" His sister manages his money, pays his bankruptcy trustee, and makes his car and truck payments. Patricia testified she believed that Thomas continued to operate the business. In awarding Thomas any interest he had in the business, the trial court apparently considered the transfer of the business to his sister to be fictitious. (1)

Thomas argues the trial court erred in awarding Patricia the equity in the house. To prevent the marital residence from being lost to foreclosure, a trial court may consider the nature of the property and the parties' ability to manage the property. Walker v. Walker, 527 S.W.2d 200, 203 (Tex. Civ. App.--Fort Worth 1975, no writ). Patricia's net income as a teacher is $3,200 a month. She used her paychecks to pay the $1,220 mortgage and the electricity bills, while Thomas paid for remodeling, car insurance, maintenance and repair, and groceries. Thomas testified he works for Bumper King, but he receives no paychecks. He also works as an agent for a business that buys and sells cars, but he has not made any money from the business. Thomas testified that he contributed to the household expenses by using credit cards.

Patricia has a teacher's retirement plan. She testified that her retirement plan had a balance of $45,263.73 on the date of marriage and $126,910.36 on the date of trial. Although retirement benefits earned during marriage are generally community property that is subject to division, the trial court may, in its discretion and as part of a just and right division of the community estate, award the benefits to the party who earned them. See Hardin v. Hardin, 681 S.W.2d 241, 243 (Tex. App.--San Antonio 1984, no writ).

Patricia testified that Thomas drives the 2004 Silverado truck, and she asked the court to award the truck to Thomas. Thomas's testimony indicated that he had possession of the 2002 Corvette, and he testified that it would not be fair to award the Corvette to Patricia. He also testified that the bankruptcy court approved of him keeping both the 2004 Silverado and the 2002 Corvette. The trial court did not err in awarding the truck and the Corvette to Thomas. See Naguib v. Naguib, 137 S.W.3d 367, 375 (Tex. App.--Dallas 2004, pet. denied) ("A party to a lawsuit cannot ask something of a trial court and then complain on appeal that the trial court committed error in granting that party's request.").

On this record, the trial court could have reasonably determined that Thomas transferred community property and Patricia's separate property in violation of the court's temporary order. See Zorilla, 83 S.W.3d at 252. Patricia testified that she owned certain personal items before the marriage and that Thomas removed these items from the house. Thomas testified that a creditor located in Dallas took Patricia's personal items as collateral for a debt Thomas owed. Thomas explained that he may have possession of some of the items.

In addition to selling his business to his sister, Thomas testified that he sold his son-in-law a 1992 Corvette, and he gave his son-in-law a trailer and a 1972 Corvette. Thomas testified that a year before trial, he gave his son-in-law the Harley Davidson motorcycle to satisfy a debt. Thomas complains that the trial court erred in awarding him the Harley Davidson motorcycle. The judge as trier of fact could assess the credibility of the witnesses, and could have reasonably found Thomas's testimony to be incredible and the transfers fictitious. See Zagorski v. Zagorski, 116 S.W.3d 309, 318 (Tex. App.--Houston [14th Dist.] 2003, pet. denied)(The trial court is the exclusive judge of witnesses' credibility).

Patricia surrendered an insurance policy on Thomas's life. She had paid the premiums from her paycheck. Thomas signed an agreement that allowed Patricia to keep the $10,000 proceeds from the surrender of the insurance policy. Nevertheless, Thomas cashed the check and lost most of the money while gambling in Las Vegas.

The trial court had the opportunity to observe the parties, determine their credibility, and evaluate the circumstances and evidence concerning the transfers of property. See Murff, 615 S.W.2d at 700; Zorilla, 83 S.W.3d at 252. The divorce decree does not recite the values the trial court assigned to the assets awarded to the parties. "Without evidence of the values of the assets in the record, we cannot say that the court's division of the marital estate was even disproportionate, much less, an abuse of discretion." (2) Redeaux v. Redeaux, No. 09-06-084CV, 2007 WL 274728, at *4 (Tex. App. - Beaumont Feb. 1, 2007, pet. denied) (mem. op.).

Patricia requested that the trial court award her certain separate property, and also award her reimbursement from the community estate. The court divided the parties' marital estate. See generally Hilley v. Hilley, 161 Tex. 569, 342 S.W.2d 565, 567 (1961) ("All marital property is . . . either separate or community."). In making a just and right division of community property, the trial court generally may consider the size of the separate estates. Murff, 615 S.W.2d at 699. Patricia testified that her separate property consisted of inheritance money and the sales proceeds from a house she owned prior to the marriage. She testified that when the parties purchased the marital residence, she made the down payment using money she inherited from her father. She indicated that she used her separate property to make improvements on the house and some of the money went to Thomas's business. She also testified that there is no money left from her separate property.

The divorce decree reflects the trial court divided the parties' "marital estate," a term which generally refers to the spouses' separate and community property combined. On this record, with no showing of a divestiture of separate property, we presume that in dividing the marital estate the trial court properly considered the separate property of both parties. Given the wide latitude and discretion vested in the trial court, we cannot conclude that the trial court abused its discretion in dividing the community property. See Murff, 615 S.W.2d at 700. We overrule appellant's four issues. The trial court's judgment is affirmed.

 

AFFIRMED.

DAVID GAULTNEY

Justice

 

Submitted on June 11, 2007

Opinion Delivered September 13, 2007

 

Before McKeithen, C.J., Gaultney and Kreger, JJ.

1. The trial court issued a letter ruling, in which the court found that the sale of the business was "not an arm's length transaction." A pre-judgment letter does not constitute formal findings of fact. Coleman v. Coleman, No.-09-06-171CV, 2007 WL 1793756, at *2 n.2 (Tex. App.--Beaumont June 21, 2007, no pet.) (mem. op.) (citing Cherokee Water Co. v. Gregg County Appraisal Dist., 801 S.W.2d 872, 878 (Tex. 1990)); Beard v. Beard, 49 S.W.3d 40, 66 (Tex. App.--Waco 2001, pet. denied)).

2. Although the trial court's letter ruling stated that Bumper Man was valued on tax rolls at $378,380, we do not rely on this as a formal finding of fact. See Coleman, 2007 WL 1793756 at *2 n.2.