Robin Michelle Odom v. David Allen Odom--Appeal from 411th District Court of Trinity County

NO. 12-06-00218-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ROBIN MICHELLE ODOM, APPEAL FROM THE 411TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

DAVID ALLEN ODOM,

APPELLEE TRINITY COUNTY, TEXAS

MEMORANDUM OPINION

Robin Michelle Odom, appearing pro se, appeals the trial court s final decree of divorce. Robin married David Allen Odom on May 5, 1995. On February 3, 2006, David filed for divorce. Following a bench trial, the trial court entered a divorce decree dividing their community property. In three issues, Robin challenges the trial court s characterization of David s retirement plan accounts as separate property and its division of the community property. We reverse and remand.

Characterization of Separate Property

In her first and second issues, Robin challenges the legal and factual sufficiency of the evidence to support the trial court s finding that David s retirement plan accounts were his separate property. A review of the record shows that the trial court s divorce decree characterizes David s retirement accounts as community property, not separate property. The error Robin complains of did not occur. Therefore, we overrule Robin s first and second issues.

Division of Community Property

In her third issue, Robin claims that the trial court s division of the community property constituted an abuse of discretion because the trial court did not award her a portion of David s retirement plan accounts.

Standard of Review

We review a trial court s division of community property under an abuse of discretion standard. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). It is an abuse of discretion for a trial court to rule arbitrarily, unreasonably, without regard to guiding legal principles, or without supporting evidence. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). A trial court does not abuse its discretion if there is some evidence of a substantive and probative character to support the decision, or if reasonable minds could differ as to the result. Powell v. Swanson, 893 S.W.2d 161, 163 (Tex. App. Houston [1st Dist.] 1995, no writ). Absent a clear abuse of discretion, we do not disturb a trial court s division of community property. Murff, 615 S.W.2d at 698.

Discussion

In a divorce proceeding, the trial court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage. Tex. Fam. Code Ann. 7.001 (Vernon 2006). Thus, trial courts have wide latitude and discretion in dividing community property. Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998). When dividing community property, the trial court may consider many factors, including each party s earning capacity, abilities, education, business opportunities, physical condition, financial condition, age, and size of separate estates, as well as any future needs for support, expected inheritance, custody of any children, reimbursements, gifts to a spouse during marriage, excessive community property gifts to others, and wasting of community assets. Murff, 615 S.W.2d at 699.

By the time of the bench trial, the Odoms had been living apart for over a year. When they separated, Robin moved out of the family home, taking with her everything she wanted. This included her personal items, a small boat, and all of the family s furniture and furnishings, with the exception of one bed, a table and two chairs, and their children s furniture. The Odoms two boys, ages seven and nine at the time, continued to live with David. At some point after their separation, Robin was incarcerated for embezzlement. At the time of their divorce, Robin was still incarcerated. The record shows that David was keeping some of Robin s possessions in storage for her. The trial court awarded David all funds in his possession or subject to his sole control as well as all personal items, furniture, and furnishings in his possession, with the exception of those he was storing for Robin. David was also awarded all life insurance policies insuring his life; his two retirement plan accounts, valued at approximately $67,000.00; his Ford F150 pickup truck, valued at between $5,500.00 and $6,000.00; and two small boats, valued at approximately $400.00 and $1,000.00 respectively. Robin was awarded all items in her possession or sole control as well as the personal items David was keeping in storage for her.

Robin claims that the trial court s division of the community property constituted an abuse of discretion because the court did not award her a portion of David s retirement plan accounts. The record does not contain an inventory of the community estate nor any evidence of the value of the estate other than the value of David s retirement accounts, pickup truck, and two boats. The trial court lacked the evidence necessary to determine the amounts and items in the community estate as well as the overall value of the estate. Without this evidence, there is no evidence to support the judgment. See Sandone v. Miller-Sandone, 116 S.W.3d 204, 207-08 (Tex. App. El Paso 2003, no pet.) ( Without the ability to determine the size of the community pie, we can make no determination that the slices awarded to each spouse were just and right. ). Consequently, the trial court abused its discretion in the division of the property. See id. Therefore, we sustain Robin s third issue.

Some of our sister courts have held that when a party does not provide values for property to be divided, that party may not complain on appeal that the trial court lacked sufficient evidence to properly divide the property. See, e.g., Deltuva v. Deltuva, 113 S.W.3d 882, 887 (Tex. App. Dallas 2003, no pet.). While such a ruling may be appropriate in cases where there is some evidence of the value of the contested item or estate, see Mata v. Mata, 710 S.W.2d 756, 758 (Tex. App. Corpus Christi 1986, no writ), or in cases where the only unvalued items would obviously have little effect on the overall division, it would not be appropriate in this case. See Sandone, 116 S.W.3d at 207-08; O Neal v. O Neal, 69 S.W.3d 347, 349-50 (Tex. App. Eastland 2002, no pet.). The Texas Family Code requires the trial court to make a just and right division of the community estate. See Tex. Fam. Code Ann. 7.001. The failure of the parties to put on evidence as to value does not absolve the trial court of fulfilling this duty. See Sandone, 116 S.W.3d at 207-08. No just and right division can be insured where the trial court has no evidence of what exactly it is dividing. See id. We sustain Robin s third issue.

Disposition

We reverse the judgment of the trial court and remand the case to that court for further proceedings.

BRIAN HOYLE

Justice

Opinion delivered March 7, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)