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holding that deposits in a combined business and personal bank account were substantial and probative evidence of net resources
Summary of this case from Bello v. BelloOpinion
No. 01-10-00570-CV
Opinion issued June 23, 2011.
On Appeal from the 75th District Court, Liberty County, Texas, Trial Court Case No. CV0801230.
Panel consists of Justices JENNINGS, BLAND, and MASSENGALE.
MEMORANDUM OPINION
Shaun Baxley appeals from decree of divorce, in which the trial court dissolved his marriage to Diane Baxley after conducting a bench trial. On appeal, Shaun contends that (1) insufficient evidence supports the trial court's determination of the monthly amount of child support payments, and (2) the trial court abused its discretion in awarding an unequal division of the marital assets to Diane, in relying on her inventory and appraisement of the community estate, and in denying his motion for a new trial. Finding no error, we affirm.
The Texas Supreme Court transferred this appeal from the Court of Appeals for the Ninth District of Texas. Misc. Docket No. 10-9105 (Tex. June 21, 2010); see TEX. GOV'T CODE ANN. § 73.001 (West 2005) (authorizing transfer of cases).
Background
In 2001, Shaun and Diane were married. During the course of the marriage, they had one child. The parties separated. Diane filed a petition for divorce in December 2008.
In January 2010, at the bench trial, Diane testified that she is a horse trainer and owns a horse training business. Her gross income is $3,000 a month. Shaun is a farrier and owns a farrier service business and a trucking business. He operates the businesses as a sole proprietor. At trial, Shaun did not know his gross income for the years 2006 through 2008. He said he did not file a tax return for 2008 because Diane had withheld the tax information he needed to complete his return. Diane testified that she turned over the tax information to Shaun's attorney. Shaun admitted that he signed a receipt for the information, but he claimed the information was incomplete.
Shaun's bank statements from February 2009 to November 2009 show deposits totaling about $102,000. Shaun testified that these deposits reflect his monthly gross income for that period. He admitted that his gross income for 2009 was about $124,000, but claimed that his "expenses" for the year were about $129,000. The trial court asked Shaun to substantiate his claimed expenses. In response, Shaun provided a one page list of all of his expenses totaling about $129,000. The list does not differentiate between Shaun's business and personal expenses. Diane testified that based on Shaun's income he should pay $1,500 a month in child support for their son.
Shaun's list of expenses included the following items: fuel ($13,364.18); labor ($15,070.64); shoeing supplies ($6,750.09); propane ($902.36); truck expenses ($14,612.89); insurance ($8,135.21); meals and entertainment ($7,014.63); farm expenses ($3,714.46); veterinarian ($445.00); feed ($444.34); medical ($437.16); credit accounts/ note payments ($21,889.59); utilities ($5,058.77); payments to Diane ($14,380.01); cell phone ($4,083.96); clothing and laundry ($1,640.91); attorney fees ($2,500.00); bookkeeping ($6,000.00); miscellaneous fees ($3,120.00); office supplies ($182.63).
Shaun and Diane's property consisted primarily of their respective businesses, motor vehicles, trailers, furniture, firearms, livestock, farm equipment, and riding equipment. They owned no real property. They had many community liabilities. Diane submitted a sworn inventory and appraisement of the parties' assets and liabilities. The trial court also took judicial notice of Shaun's sworn inventory and appraisement in the court's file. Shaun disagreed with Diane's appraisement of several of the parties' assets, including a 1996 Dodge 3500, a boat, an Arctic Cat 600, certain trailers, the farm equipment, and the household goods in Shaun's possession. Shaun also testified that certain assets on Diane's inventory had been sold, repossessed or did not belong to Shaun and Diane. He opined that his two businesses and Diane's horse training business had no value. In contrast, Diane claimed that Shaun's farrier services business was worth $80,000 and his trucking business was worth $50,000, while her horse training business was worth $40,000. Shaun stated that he did not object to a 60/40 split of the assets.
The trial court heard and evaluated the admissibility of evidence relating to the parties' marital discord. Shaun admitted to an affair with a woman during his marriage with Diane. The woman confirmed that she and Shaun had an affair. Diane sought to introduce photographs of Shaun engaged in sexual relations with a second woman. Shaun conceded that he was depicted in at least some of the photographs, and he identified the woman in the photographs. Shaun objected to the admission of the photographs into evidence, and the trial court excluded them. Shaun claimed that Diane also had extramarital relationships. Diane denied that she had had any extramarital relationship. She testified that while she and Shaun were married she tested positive for a sexually transmitted disease. She said that she had engaged in sexual relations only with Shaun at that time.
After the bench trial, the trial court held a hearing and announced that it had reviewed Shaun's business and personal expenses. Based on these expenses, and his gross income of $124,000, the trial court set the child support at $1,000 per month. Shaun made no objection. In April 2010, the trial court signed a final decree. The trial court appointed the parties joint managing conservators over the parties' minor child and ordered Shaun to pay $1,000 per month to Diane for support. The trial court found that Shaun had an extramarital relationship and was at fault in the divorce action, and that Shaun had a monthly net income of $5,000. It awarded Shaun 45 percent and Diane 55 percent of the community estate. The court considered the following factors in the division of the property: (1) the finding of fault; (2) Diane's custodial care of the child; and (3) the disparity in the parties' earning capacities. The court found that Shaun and Diane's businesses had no value and omitted any property from the community estate that Shaun maintained had been sold, repossessed or was not in existence. The court also found that Shawn had $1,000 of household possessions. For the valuation of the other items in the community estate, the court relied on Diane's appraisement less any debt owed on the property.
Shaun moved for a new trial. At the hearing on his motion, Shaun offered additional testimony and produced two appraisements of some of the community property, as well as his tax returns for 2008 and 2009. He testified that he had never given Diane a sexually transmitted disease. He stated that he had prepared his tax returns the week before the hearing on the motion for a new trial. The trial court denied the motion. The trial court noted that a photograph "had a lot of bearing with my thoughts on this case."
Discussion
Child Support
Shaun contends that the trial court erred because it set the child support award in violation of the Texas Family Code formula. See TEX. FAM. CODE ANN. § 154.125 (West Supp. 2010). According to Shaun, without his tax returns, the trial court lacked sufficient evidence to set the amount of child support. We construe Shaun's complaint as a challenge to the sufficiency of the evidence.
1) Standard of Review
The purpose of child support is to help a custodial parent maintain an adequate standard of living for a child. Farish v. Farish, 982 S.W.2d 623, 627 (Tex. App.-Houston [1st Dist.] 1998, no pet.). Generally, a complaining party must show that a trial court's support order constitutes a clear abuse of discretion in order for it to be disturbed on appeal. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). A trial court abuses its discretion when it acts without reference to any guiding rules and principles. McGuire v. McGuire, 4 S.W.3d 382, 384 (Tex. App.-Houston [1st Dist.] 1999, no pet.); Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.-Houston [1st Dist.] 1993, writ denied). In the child-support context, sufficiency challenges are not independent points of error, but are "incorporated into an abuse of discretion determination." McGuire, 4 S.W.3d at 387 n. 2; see Burney v. Burney, 225 S.W.3d 208, 214 (Tex. App.-El Paso 2006, no pet.). Our analysis employs a two-pronged inquiry: (1) whether the trial court had sufficient information upon which to exercise its discretion; and (2) whether the trial court erred in its application of discretion. McGuire, 4 S.W.3d at 387 n. 2. A trial court does not abuse its discretion when there is some evidence of a substantive and probative character to support its order. Newberry v. Bohn-Newberry, 146 S.W.3d 233, 235 (Tex. App.-Houston [14th Dist.] 2004, no pet.).
2) Applicable Law
In regard to a child-support award, section 154.062 provides that a court "shall calculate net resources for the purpose of determining child support liability as provided by this section." TEX. FAM. CODE ANN. § 154.062(a) (West Supp. 2010). "Net resources" includes all wage and salary income, self-employment income, and all other income actually being received. Id. § 154.062(b) (West Supp. 2010). Section 154.063 also provides that "[t]he court shall require a party to . . . furnish information sufficient to accurately identify that party's net resources and ability to pay child support." Id. § 154.063 (West 2008). "In the absence of evidence of the wage and salary income of a party, the court shall presume that the party has wages or salary equal to the federal minimum wage for a 40-hour week." TEX. FAM. CODE ANN. § 154.068 (West 2008). Because the support of one child is at issue here, the guidelines suggest that the obligor pay 20 percent of his monthly net resources toward the support of the child. TEX. FAM. CODE ANN. § 154.125.
3) Analysis
Here, the trial court found that Shaun had $5,000 in net resources per month. Accordingly, the trial court ordered $1,000 in child support payments per month or 20 percent of his monthly net resources as required by the Family Code. See TEX. FAM. CODE ANN. § 154.125. Shaun's bank statements indicated about $102,000 in deposits over a ten month period in 2009, and Shaun acknowledged that his 2009 gross income was about $124,000. The deposits are probative of Shaun's net resources. See Burney v. Burney, 225 S.W.3d 208, 214 (Tex. App.-El Paso 2006, no pet.) (holding that trial court properly determined that obligor had higher net resources than his tax returns indicated, based on obligor's inability to account for deposits in his banking account above his monthly salary). At the request of the trial court, Shawn produced evidence of all his expenses, without distinguishing between his business and personal ones. Based on this list of expenses, the trial court adjusted Shaun's income downward and determined that Shaun had at least $5,000 in net resources per month. Because some evidence of a substantive and probative character supports the trial court's decision, Shaun has failed to show reversible error. See Newberry, 146 S.W.3d at 235 (holding that some probative evidence existed to support trial court's determination that husband earned more than $6000 per month because wife testified that husband earned $150,000 per year.). Accordingly, we hold that the trial court did not abuse its discretion in determining the amount of child support.
Finally, Shaun asserts that the trial court erred in denying his motion for new trial because he produced his income tax returns for 2008 and 2009 at the hearing. For the reasons previously discussed, the trial court had sufficient evidence on which to base a support determination. It had no obligation to re-open the evidence and consider evidence proffered for the first time in a motion for new trial without the proper foundation. See Connell Chevrolet Co., Inc. v. Leak, 967 S.W.2d 888, 894 (Tex. App.-Austin 1998, no pet.) (stating that party moving for new trial based upon existence of newly discovered evidence has burden of showing: (1) admissible, competent evidence showing existence of newly discovered evidence; (2) evidence has come to party's attention since trial and party had no notice of its existence before trial; (3) the party used due diligence to procure evidence before trial; (4) the evidence is not merely cumulative of that already presented and does not tend only to impeach testimony of the adversary; and (5) evidence would probably produce different result if new trial were granted).
Property Division
Next, Shaun contends that the trial court erred by awarding an unequal division of their community property to Diane and by relying on Diane's inventory and appraisement of their community estate.
1) Standard of Review
Section 7.001 of the Family Code requires trial courts to divide "the estate of the parties" to a marriage as "the court deems just and right, having due regard for the rights of each party. . . ." TEX. FAM. CODE ANN. § 7.001 (West 2006); see Hailey v. Hailey, 176 S.W.3d 374, 380 (Tex. App.-Houston [1st Dist.] 2004, no pet.); see also Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 139 (Tex. 1977) (defining "estate of the parties," for purposes of predecessor to section 7.001, as community property only, thus excluding parties' separate property).
We review property-division issues for abuse of discretion. See Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998); Wilson v. Wilson, 132 S.W.3d 533, 536 (Tex. App.-Houston [1st Dist.] 2004, pet. denied). Section 7.001 vests broad discretion in the trial court, and we presume that the trial court exercised it properly. Schlueter, 975 S.W.2d at 589; Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981); Vannerson v. Vannerson, 857 S.W.2d 659, 668-69 (Tex. App.-Houston [1st Dist.] 1993, writ denied). A trial court abuses its discretion when it acts arbitrarily or unreasonably and without reference to any guiding rules or principles. See Hailey, 176 S.W.3d at 380; Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.-Houston [1st Dist.] 1993, writ denied). We defer to the trial court's factual resolutions and any credibility determinations that may have affected those resolutions and may not substitute our judgment for the trial court's judgment in those matters. See Murff, 615 S.W.2d at 700 (noting that in divorce trial to bench, trial court has opportunity to observe spouses and assess their needs, potential, and credibility and further noting that "mathematical precision . . . is usually not possible" in dividing marital estate).
2) Disproportionate Division of Community Property
Shaun challenges that the trial court's unequal division, based on a finding of fault on behalf of Shaun because Diane, he claims, also had an extramarital affair.
A "just and right" division does not require a trial court to divide the marital estate into equal shares. Murff, 615 S.W.2d at 698-99 n. 1 (recognizing that community property need not be equally divided). When dividing community property, the trial court may consider many factors, including each party's earning capacity, abilities, education, business opportunities, physical health, 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, fault in the breakup of the marriage, length of the marriage, attorney's fees, and a spouse's dissipation of the estate. See Murff, 615 S.W.2d at 699; Hailey, 176 S.W.3d at 380; Alsenz v. Alsenz, 101 S.W.3d 648, 655 (Tex. App.-Houston [1st Dist.] 2003, pet. denied). A trial court may, but need not, take fault into consideration when dividing an estate. Murff, 615 S.W.2d at 698; see Massey v. Massey, 807 S.W.2d 391, 398 (Tex. App.-Houston [1st Dist.] 1991, writ denied); see also Smith v. Smith, 836 S.W.2d 688, 693 (Tex. App.-Houston [1st Dist.] 1992, no writ) (holding that division should not punish spouse found to be at fault) (citing Young v. Young, 609 S.W.2d 758, 762 (Tex. 1980)).
Here, Shaun admitted to an extramarital affair. Shaun alleges that Diane also had an affair, but Diane denied it. The trial court, as fact-finder, resolved the conflicting testimony, and acted within its discretion, to the extent it considered Shaun's infidelity, among other factors, in dividing the estate. See Murff, 615 S.W.2d at 700. We defer to this determination. We hold that the trial court did not abuse its discretion when it awarded an unequal division of the community estate.
3) Inventories and Appraisements of Property
Shaun further maintains that the trial court erred because it accepted Diane's sworn inventory and appraisement of their property.
The parties to the suit bear the responsibility to produce evidence of the value of various properties in the marital estate so that the trial judge has a basis on which to make the division. Wallace v. Wallace, 623 S.W.2d 723, 725 (Tex. Civ. App.-Houston [1st Dist.] 1981, writ dism'd). The ultimate and controlling issue is whether the trial court divided the property in a "just and right manner," pursuant to the Family Code. See TEX. FAM. CODE ANN. § 7.001 (West 2006); Rafferty v. Rafferty, 903 S.W.2d 374, 376 (Tex. App.-Houston [1st Dist.] 1995, writ denied).
Here, we review whether some evidence supports the trial court's decision. See Gainous v. Gainous, 219 S.W.3d 97, 103 (Tex. App.-Houston [1st Dist.] 2006, pet. denied) (stating trial court's judgment must be affirmed if it can be upheld on any legal theory that finds support in evidence). Both parties submitted sworn inventories and appraisements of the community estate to the trial court. However, their valuations differ. See TEX. FAM. CODE ANN. § 7.006(a) (West 2006). Shaun and Diane provided different values for some items of property, including their respective businesses, a 1996 Dodge 3500, a boat, an Arctic Cat 600, certain trailers, all the farm equipment, and the household goods in Shaun's possession. The trial court, as fact-finder, resolved these disputes in the evidence. See Murff, 615 S.W.2d at 700. The trial court accorded no value to the parties' respective businesses, and did not accept Diane's appraisement of household goods in Shaun's possession. In addition, the trial court excluded all of the property from the estate that Shaun maintained had been sold, repossessed or, did not existence. Diane's inventory and appraisement were both sworn and admitted into evidence. See Barnard v. Barnard, 133 S.W.3d 782, 789 (Tex. App.-Fort Worth 2004, pet. denied) (holding that once inventory and appraisement is admitted, it may be considered as evidence before court); see also Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 n. 2 (Tex. 1992) (stating that absence of documents to support opinions and estimates goes to weight of evidence). We hold that the trial court could consider Diane's valuations in dividing the community estate and did not abuse its discretion in relying on her inventory and appraisement.
Motion for New Trial
Shaun contends that the trial court erred in denying his motion for new trial because the trial court considered evidence that it had excluded at trial. Specifically, Shaun maintains that the trial court based its ruling in the case on photographs of him having sexual relations with another woman. The trial court had excluded these photographs from the evidence. Any consideration of the photographs was error; however, it is not reversible error. We hold that it was harmless, because it would have been cumulative of other evidence that Shaun had extramarital relationships, including his own admission to one. See GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 620 (Tex. 1999) (citing TEX. R. APP. P. 44.1(a)(1) as mandating that no judgment may be reversed on appeal on ground that trial court made error of law unless error complained of probably caused rendition of improper judgment). Accordingly, we conclude any error by the trial court was harmless.
Shaun further maintains that the trial court erred in denying his motion for new trial because he "never gave Diane any sexually transmitted disease, and denial of a new trial denied him a fair trial and due process." Shaun complained that no medical records substantiate Diane's testimony that he gave her a sexually transmitted disease. In order to preserve an objection to admission of evidence, a party must timely object. TEX. R. EVID. 103(a)(1); TEX. R. APP. P. 33.1(a). Here, at the time that the evidence was offered, Shaun made no complaint about Diane's testimony. Accordingly, we conclude that Shaun failed to preserve any error on this matter.
Conclusion
We hold that the trial court did not abuse its discretion in denying Shaun's motion for a new trial, sufficient evidence supports the trial court's determination of child support, and the trial court did not abuse its discretion in awarding an unequal division of the martial assets and in relying on Diane's inventory and appraisement of the community estate. We therefore affirm the judgment of the trial court.