Opinion
NO. 02-15-00121-CV
05-26-2016
MARIA CONCEPCION FELIX-FORBES APPELLANT v. KEARY QUINN FORBES APPELLEE
FROM THE 325TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 325-532276-13 MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
In this divorce appeal, Maria Concepcion Felix-Forbes brings three issues challenging the trial court's division of the community estate. We affirm.
Background
Keary Quinn Forbes filed for divorce on March 11, 2013, and Felix-Forbes filed a counterpetition on May 14, 2013. Each pled both no-fault and cruelty grounds; in addition, both parties sought a disproportionate division of the community estate. See Tex. Fam. Code Ann. §§ 6.001-.002 (West 2006).
After a hearing, the trial court granted the divorce on the no-fault ground. It awarded Forbes fifty percent of Felix-Forbes's primary 401(k) plan (the Nonfrozen Plan), one hundred percent of Felix-Forbes's two other retirement benefit plans (the Frozen Plans), fifty percent of the community property portion of Forbes's military retirement benefits, and a 2009 vehicle. The trial court assigned to Forbes liability for the debt on the 2009 vehicle and his personal credit card debt. It awarded Felix-Forbes the marital residence, the other fifty percent of the Nonfrozen Plan, the remaining fifty percent of the community property portion of Forbes's military retirement benefits, and three vehicles, including a 2012 Chrysler. The trial court assigned Felix-Forbes liability for the note and taxes due on the residence, debt owed for the 2012 Chrysler, and her personal credit card debt. The trial court also ordered Felix-Forbes to pay Forbes $15,000 "as part of the award of the marital residence."
Felix-Forbes filed a request for findings of fact and conclusions of law. The trial court found (1) that the marriage had become insupportable--the statutory no-fault ground, (2) that after Forbes had filed his divorce petition and obtained a temporary restraining order, Felix-Forbes "actively avoided service," withdrew $106,438.34 of community property funds, deposited $85,000 of the funds into the parties' son's name, and spent the rest, and (3) that it had considered certain enumerated factors in making a just and right division of the community estate: Felix-Forbes's fault in the breakup of the marriage, her greater earning power and likelihood of retaining or finding future employment, Felix-Forbes's younger age, that Forbes had been a stay-at-home parent during part of the marriage, and Felix-Forbes's transfer of the $85,000 in community funds without Forbes's knowledge or consent. The parties agree that based on the trial court's findings, it awarded approximately fifty-five percent of the value of the community estate to Forbes and approximately forty-five percent to Felix-Forbes.
Just and Right Division
Felix-Forbes contends in her three issues that the evidence is legally and factually insufficient to support the trial court's findings supporting the property division. She also contends that as a matter of law a trial court may not consider fault in the breakup of the marriage as a basis for making a disproportionate property division when granting the divorce solely on no-fault grounds.
Standard of Review
A trial court's findings of fact have the same force and dignity as a jury's answers to jury questions and are reviewable for legal and factual sufficiency of the evidence to support them by the same standards. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991); see also MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 663 n.3 (Tex. 2009). When the appellate record contains a reporter's record, findings of fact on disputed issues are not conclusive and may be challenged for the sufficiency of the evidence. Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003); Allison v. Conglomerate Gas II, L.P., No. 02-13-00205-CV, 2015 WL 5106448, at *6 (Tex. App.—Fort Worth Aug. 31, 2015, no pet.) (mem. op.). We defer to unchallenged findings of fact that are supported by some evidence. Tenaska Energy, Inc. v. Ponderosa Pine Energy, LLC, 437 S.W.3d 518, 523 (Tex. 2014).
We may sustain a legal sufficiency challenge only when (1) the record discloses a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620 (Tex. 2014); Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999). In determining whether there is legally sufficient evidence to support the finding under review, we must consider evidence favorable to the finding if a reasonable factfinder could and disregard evidence contrary to the finding unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005).
When reviewing an assertion that the evidence is factually insufficient to support a finding, we set aside the finding only if, after considering and weighing all of the evidence in the record pertinent to that finding, we determine that the credible evidence supporting the finding is so weak, or so contrary to the overwhelming weight of all the evidence, that the answer should be set aside and a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh'g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).
Applicable Law
A trial court's division of community property must be just and right, having due regard for the rights of each party. Tex. Fam. Code Ann. § 7.001 (West 2006); Loaiza v. Loaiza, 130 S.W.3d 894, 899 (Tex. App.--Fort Worth 2004, no pet.). The trial court has broad discretion in dividing the marital estate, and we presume that it exercised its discretion properly. Murff v. Murff, 615 S.W.2d 696, 698-99 (Tex. 1981); Loaiza, 130 S.W.3d at 899. A party who complains about the trial court's property division must show that the division was so unjust that the trial court abused its discretion. Zeptner v. Zeptner, 111 S.W.3d 727, 734 (Tex. App.--Fort Worth 2003, no pet.) (op. on reh'g). The trial judge may order an unequal division of marital property when a reasonable basis exists for doing so. Loaiza, 130 S.W.3d at 899. In Murff, the Texas supreme court acknowledged that a property division need not be equal and cited with approval courts of appeals opinions holding that the trial court may consider "such factors as the spouses' capacities and abilities, benefits which the party not at fault would have derived from continuation of the marriage, business opportunities, education, relative physical conditions, relative financial condition and obligations, disparity of ages, size of separate estates, and the nature of the property" in making the division. 615 S.W.2d at 699. However, the supreme court has also cautioned that it is the overall property division that is important, and no one factor is determinative. See, e.g., Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987).
Forbes's Testimony
Forbes testified that when he and Felix-Forbes were married in 1984, he was working as a security officer, and she was working as a registered nurse. He had prior service in the U.S. Air Force. After working as a security officer several years, he went to nursing school and became a registered nurse, working at psychiatric facilities; he stopped working as a registered nurse in 2004 after having been called back to several short-term active duty deployments as a result of his service in the Air Force Reserves. These deployments interrupted his nursing practice, and he starting working part-time in nursing. Felix-Forbes worked as a nurse throughout the marriage. The parties kept their earnings separate throughout the marriage.
According to Forbes, Felix-Forbes often complained about his working hours when they would conflict with her work schedule, and she would call his employer to complain about that schedule. Forbes testified that he had also acted as the child care provider for the couple's son; he was the stay-at-home parent, and he took their son to school, picked him up, fed him, and provided for him. Forbes retired from the Air Force reserves in 2008.
At the time of trial, their son was twenty years old.
On cross-examination, Forbes admitted that he had worked several different jobs while married to Felix-Forbes; he had not made any house payments, but he did pay for utilities and groceries. He also admitted that he financially contributed to the family only occasionally. Forbes expressed that one of the reasons he did not keep some of his jobs was that he had trouble getting along with his ex-coworkers. When questioned about his employment history, Forbes said his short-term deployments ended around 2007 or 2008 and that there was no reason he could not have worked as a registered nurse since that time. According to Forbes, as a registered nurse, he could earn between $40,000 and $50,000 per year full-time, and $20 to $25 an hour part-time. Additionally, in the past he had obtained a paralegal certificate. But Forbes also admitted that he does not like to work.
According to Forbes, during the last few years of the marriage, he and Felix-Forbes had mutually exchanged "rather negative derogatory terms of expression towards each other." He admitted "being mean" to Felix-Forbes, and although he denied abusing her, he admitted that "[i]t could be interpreted" that he mentally abused her. But he also said that Felix-Forbes had "mentally abused" him. Forbes admitted on cross-examination that he had been planning the divorce since 2004.
Forbes testified that he and Felix-Forbes separated in September 2012. After the parties' separation, he had worked "briefly" as a corrections officer and had occasionally worked part-time as a nurse to keep his license current. Forbes was not employed at the time of trial. He testified that part of the reason he requested an unequal property division was because of the difference in earnings and earning capacity between him and Felix-Forbes.
Forbes testified that Felix-Forbes withdrew the $106,438.34 approximately one week after he filed the divorce petition. Forbes did not know about the bank account in which Felix-Forbes had deposited this money until it was found by a company who had been hired by Forbes's attorney to search for marital assets. The account was solely in Felix-Forbes's name, and she did not list it on any inventories. He had never seen any bank statements for that account, and he did not know where they had been sent. Forbes testified that he believed Felix-Forbes had attempted to hide assets to prevent a fair property division.
The Chase Bank trial exhibits showed that on February 8, 2011, Felix-Forbes had transferred $113,241.13 from one Chase Bank account in her name, Account 1 (the only account that she disclosed to Forbes in her inventories), to a different Chase Bank account, Account 2, also in her name. From that time until March 2013, there is activity in both accounts. On March 15, 2013, the balance of Account 2 was $106,438.34. Felix-Forbes made two withdrawals from Account 2 on March 19, 2013: $85,000 and $21,438.34; she transferred the $1.75 remaining in that account to Account 1, leaving a $0 balance in Account 2 as of March 20, 2013. The Chase Bank records for the couple's son show that $85,000 was deposited into his account on March 19, 2015.
Felix-Forbes's Testimony
Felix-Forbes testified that Forbes's testimony was untruthful. According to Felix-Forbes, the reason Forbes does not work is laziness. She said that contrary to his testimony, she paid for most of the utilities for the house while they were married, that he was "very wasteful," and that he would not buy groceries for the family, only for himself. He never cleaned the house, fixed meals for her or their son, or acted as their son's caregiver. Instead, Felix-Forbes testified that she primarily dropped off and picked up their son from school, and dressed and fed him. Her work schedule was mostly three 12-hour days per week at night.
According to Felix-Forbes, she set up Account 2 with the $106,438 for their son's education, and she did not include it on her inventory and appraisement because she had gifted the funds in that account to him for that purpose. She testified that she had saved the money "for a long, long time" because she could not depend on Forbes. The account was created with her own earnings. When asked about the account on cross-examination, she admitted that it was in her name, but she said, "What I do with my money is my money, and that's what he tells me with his, too."
Felix-Forbes confirmed that Forbes called her names and would "cuss" and threaten her. She testified that one day he hit her in the back with his fist, and she called the police. She was scared he would hurt her. Their son witnessed the event, and the police took Forbes to jail.
Felix-Forbes said she would not want to be awarded any of Forbes's retirement benefits if he was not awarded any of hers. She testified that she would not mind paying him twenty percent of the home's equity, which according to the parties' stipulation of the home's equity would be $12,303.60. Felix-Forbes wanted the $106,438 to be awarded to their son for his education.
On cross-examination, Felix-Forbes admitted that she knew about the existence of the Frozen Plans even though she did not list them on her original or first amended inventory. According to Felix-Forbes, she was in California when Forbes filed the divorce petition and the process server was trying to find her. Felix-Forbes talked to the process server but did not tell the process server where she was. But Felix-Forbes appeared to later contradict herself and testified that she did not talk to the process server until after she had returned from California because the petition had just been left on her door.
Consideration of Fault in Property Division
In her first issue, Felix-Forbes makes two arguments: (1) that as a matter of law, a trial court may not consider fault in making its property division when it grants a divorce on no-fault grounds and (2) that the evidence is insufficient to support the trial court's finding that it considered her fault in making the property division.
Because Felix-Forbes did not raise her first complaint in the trial court, she failed to preserve it for appeal. See Tex. R. App. P. 33.1(a)(1); Graves v. Tomlinson, 329 S.W.3d 128, 156 (Tex. App.—Houston [14th Dist.] 2010, pets. denied). Accordingly, we overrule that part of her first issue.
Although there is evidence that Forbes considered Felix-Forbes's behavior toward him to constitute "mental abuse," that her mood swings made her difficult to live with, and that she had attempted to interfere with his work schedule, Forbes also admitted that he had been planning the divorce for around nine years and that he had also engaged in name calling toward Felix-Forbes during the last years of the marriage. He admitted having trouble getting along with a lot of people, including Felix-Forbes, and that "[i]t could be interpreted" that he mentally abused her as well. And although there is evidence that Felix-Forbes concealed the existence of two retirement plans and a bank account during the divorce proceedings, there is no evidence that her doing so contributed to the "breakup of the marriage." In fact, Forbes admitted that the parties deliberately kept separate bank accounts and filed separate tax returns during the marriage. He agreed that he was asking for a disproportionate share of the community estate because of the parties' age difference, disparity in earnings, and Felix-Forbes's actions during the divorce proceeding.
Likewise, even though her opening the account shows an intent to plan for a divorce, the evidence shows that she funded it on February 8, 2011, well after Forbes testified he had begun planning to file for divorce.
Therefore, we conclude and hold that the evidence is insufficient to show that Felix-Forbes's "fault in the breakup of the marriage" justified awarding Forbes a disproportionate share of the community estate. But because the trial court's finding justifying its property division was based on other factors—and because the supreme court has also cautioned that fault is only one of many factors that a trial court can consider when dividing a marital estate, Stafford, 726 S.W.2d at 16—we may not reverse the trial court's judgment if, in light of the other Murff factors, the trial court did not abuse its discretion in making the overall property division. See, e.g., Witte v. Witte, No. 14-05-00768-CV, 2008 WL 451717, at *2 (Tex. App.--Houston [14th Dist.] Feb. 21, 2008, pet. stricken) (mem. op.); Ross v. Ross, No. 03-02-00771-CV, 2004 WL 792317, at *4 (Tex. App.—Austin Apr. 15, 2004, no pet.) (mem. op.); Bray v. Bray, 618 S.W.2d 93, 95-96 (Tex. App.—Corpus Christi 1981, writ dism'd).
We sustain Felix-Forbes's first issue, but we nevertheless consider whether the evidence supports the property division based on other factors. Application of Other Murff Factors
In her second issue, Felix-Forbes contends that the evidence is insufficient to support the trial court's finding that her $106,438.34 withdrawal and $85,000 transfer to the parties' son could be taken into account in disproportionately dividing the community estate. She argues that because the award was her sole management community property, and she had not yet been served with the temporary restraining order, she did not need Forbes's consent to the withdrawal and could dispose of it as she pleased. She also claims that the trial court could not consider whether she "actively avoided service" of the temporary restraining order.
Regardless of whether Account 2 consisted of sole management community property funds, and regardless of whether Felix-Forbes knew of the restraining order when she withdrew them, the trial court properly considered the evidence that Felix-Forbes failed to disclose the existence of the account as well as other community property from Forbes and that Forbes's attorney had to engage a third-party company to locate evidence of the account, as well as to ensure that all other community property was accounted for. Cf. Rafidi v. Rafidi, 718 S.W.2d 43, 45-46 (Tex. App.—Dallas 1986, no writ) (holding that trial court was free to take husband's concealment of property into account and include it in community estate when evidence contradicted husband's testimony that funds had been given to him by persons overseas to invest in the United States and that he had returned the funds and repaid loans). And with or without the withdrawal from Account 2 included, the property division is almost exactly the same: a fifty-five to forty-five division with the withdrawal included and a fifty-four to forty-six division with the withdrawal excluded. See Williams v. Williams, No. 2-08-033-CV, 2008 WL 5194227, at *6 (Tex. App.—Fort Worth Dec. 11, 2008, no pet.) (mem. op.) (noting that trial court does not abuse its discretion if mischaracterization of property has only de minimus effect on property division). Moreover, the sole-management presumption protects third parties who rely on that spouse's authority to convey the property. Tex. Fam. Code Ann. § 3.104(b) (West 2006); Wright v. Wright, 280 S.W.3d 901, 910 (Tex. App.—Eastland 2009, no pet.); Jean v. Tyson-Jean, 118 S.W.3d 1, 6 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). Thus, we conclude and hold that the trial court could consider the circumstances under and manner in which Felix-Forbes withdrew the $106,438.34 and transferred $85,000 of it to the parties' son in making its slightly disproportionate property division. We overrule Felix-Forbes's second issue.
Although the trial court did not make an express finding supporting its award of one hundred percent of the Frozen Plans to Forbes--while dividing the community property portion of Forbes's retirement plan and the Nonfrozen Plan equally—the evidence supports an implied finding that awarding the value of those plans to Forbes was justified by Felix-Forbes's failure to disclose the existence of the Frozen Plans on her first two inventories. See Tex. R. Civ. P. 299 (noting that "omitted unrequested elements, when supported by evidence, will be supplied by presumption in support of the judgment"); Lindner v. Hill, 691 S.W.2d 590, 592 (Tex. 1985); In re H.N.T., 367 S.W.3d 901, 904 (Tex. App.—Dallas 2012, no pet.). Her second amended inventory that included the plans and their amounts was not filed until four days before trial. --------
In her third issue, Felix-Forbes contends that the trial court erred in its division of the community estate because the record does not show that she has a greater earning potential than Forbes. She points to evidence that Forbes has more education and that they share the same occupation. She also contends that the difference in ages is not significant enough to support the division and that Forbes had not been their son's primary caregiver and that if he had been, he had not done so for at least eight years before the divorce.
The trial court was entitled to believe Forbes's testimony over Felix-Forbes's with regard to whether he had acted as their son's primary caregiver at any point during the marriage. See, e.g., Logsdon v. Logsdon, No. 02-14-00045-CV, 2015 WL 7690034, at *6 n.16 (Tex. App.—Fort Worth Nov. 25, 2015, no pet.) (mem. op.). Additionally, the trial court was entitled to take their eight-year age difference into account, particularly when Forbes is over the age of sixty-five and Felix-Forbes has not yet reached the age of sixty-five. See Murff, 615 S.W.2d at 699. And although Forbes has a paralegal certificate in addition to a nursing degree, his employment history is less stable and more sporadic than Felix-Forbes's. Regardless of the cause, the trial court was entitled to consider that his past work history makes him less employable than Felix-Forbes. See id.; Jensen v. Jensen, No. 14-08-00221-CV, 2010 WL 605322, at *4 (Tex. App.—Houston [14th Dist.] Feb. 23, 2010, no pet.) (mem. op.).
Accordingly, we conclude and hold that the evidence is both legally and factually sufficient to support the trial court's finding that it could consider the parties' ages, disparity in earning capacity, and Forbes's past care of the parties' son in making its property division. We overrule Felix-Forbes's third issue.
Conclusion
Considering the Murff factors in light of the entire record--other than fault in the breakup of the marriage--we conclude and hold that the evidence supports the trial court's slightly unequal division of the community estate and that the trial court's overall division was not unreasonable. Therefore, we affirm the trial court's judgment.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE PANEL: LIVINGSTON, C.J.; WALKER and SUDDERTH, JJ. DELIVERED: May 26, 2016