Opinion
05-23-00024-CV
06-21-2024
IN THE INTEREST OF F.L.J.B., A CHILD
On Appeal from the 199th Judicial District Court Collin County, Texas Trial Court Cause No. 199-56389-2020
Before Justices Garcia, Breedlove, and Kennedy
MEMORANDUM OPINION
DENNISE GARCIA JUSTICE
After a bench trial, the trial judge rendered a final decree of divorce for appellant Andrew Blount and appellee Michelle Price Blount. Andrew appeals, challenging the decree's property division and its child-support order. We modify the child-support order and affirm the judgment as modified.
Appellee's name was Joan Michelle Blount when she filed suit. The divorce decree changed her name to Michelle Price Blount. We will refer to the parties by their first names because their last names are the same.
I. Background
This case began on November 16, 2020, when Michelle filed an original petition for divorce. Andrew filed an answer and a counterpetition for divorce.
The case was tried without a jury via Zoom teleconference over two days in December 2021 and January 2022. Evidence showed that Andrew and Michelle married in July 2004. In 2007, the couple's only child, daughter F.L.J.B., was born. In 2016, the family moved to Texas. In May or June 2020, Andrew and Michelle ceased living together as spouses. Andrew testified that he has lived in Mexico since May 2020 and that he has health problems that prevent him from traveling long distances.
On January 13, 2022, the trial judge issued a memorandum that recited her rulings on various issues. A spreadsheet setting forth the property division was attached. The memorandum recited that it was not a final judgment and directed the parties to submit a final order to the court. Michelle and Andrew each filed a motion for reconsideration and clarification.
In September 2022, the trial judge signed child-support findings of fact and conclusions of law.
On October 12, 2022, the trial judge issued an amended memorandum with an amended property-division spreadsheet attached. The amended memorandum recited that it was not a final judgment and directed the parties to prepare and submit a final order.
On December 13, 2022, the trial judge signed a final decree of divorce. The sole ground for the divorce was insupportability. The judge appointed Michelle and Andrew as F.L.J.B.'s joint managing conservators. She also awarded Michelle the right to designate F.L.J.B.'s primary residence and ordered Andrew to pay child support of $5,000 per month. The decree's property division awarded Michelle, among other things, three pieces of real estate in Frisco, Texas, and a condominium in New Jersey. It awarded Andrew, among other things, three pieces of real estate in Mexico, including one that the decree identified as his residence in Puerto Vallarta.
Andrew timely requested findings of fact and conclusions of law. The trial judge did not make any findings of fact and conclusions of law beyond her prior child-support findings and conclusions, and Andrew did not file a notice of past due findings and conclusions. See TEX. R. CIV. P. 297.
Andrew timely appealed. His appellate counsel withdrew during the pendency of this appeal, and Andrew filed his appellant's brief and his reply brief pro se. The appeal was submitted without oral argument.
II. Issues Presented
We paraphrase Andrew's five issues as follows:
1. Did the trial judge err by allowing Michelle's expert witness to testify to opinions not produced in response to Rule 194 requests for disclosure?
2. Is the property division supported by insufficient evidence?
3. Does the property division constitute an abuse of discretion?
4. Did the trial judge err by ignoring the parties' undisputed postmarital agreement in making the property division?
5. Did the trial judge err by ordering Andrew to pay child support of $5,000 per month?
III. Analysis
A. Issue One: Whether the admission of certain expert opinion evidence constituted reversible error.
The only expert to testify was Michelle's accounting expert Autumn Kraus. Andrew objected to some of Kraus's testimony and to an exhibit offered during that testimony. His main objection was that Michelle had not disclosed the general substance of Kraus's opinions in response to Andrew's request for disclosure. On appeal, Andrew challenges the trial judge's adverse rulings on his objections.
1. Applicable Law and Standard of Review
This case was filed on November 16, 2020, so it was governed by the discovery rules as they existed before certain amendments went into effect on January 1, 2021. Under the applicable version of Rule 194, parties could request other parties to disclose various matters that included the general substance of any testifying expert's mental impressions and opinions. Tex.R.Civ.P. 194.2(f)(3).Rule 195 establishes default deadlines, subject to change by court order, for expert disclosures. See id. 195.2. Rule 193 makes material or information that is not timely disclosed in discovery inadmissible at trial. See id. 193.6(a). The rule of inadmissibility is overcome if the trial judge finds either (1) there is good cause for the failure to timely disclose the information or (2) the failure to timely disclose the information will not unfairly surprise or unfairly prejudice the other parties. Id. 193.6(a)(1), (2).
Citations to Rule 194 are to the version in effect from March 3, 2004, to the end of 2020.
A trial judge's error requires reversal on appeal only if the error probably caused the rendition of an improper judgment or probably prevented the appellant from properly presenting the case to the court of appeals. Tex.R.App.P. 44.1(a)(1), (2). It is the appellant's burden to show harm from an erroneous evidentiary ruling. Mira Mar Dev. Corp. v. City of Coppell, Tex., 421 S.W.3d 74, 84 (Tex. App.- Dallas 2013, no pet.). When the error is the admission of inadmissible evidence, generally the appellant must show that the judgment turned on the erroneously admitted evidence. See City of Brownsville v. Alvarado, 897 S.W.2d 750, 753-54 (Tex. 1995).
We review a trial judge's evidentiary ruling for abuse of discretion. Fleming v. Wilson, 610 S.W.3d 18, 21 (Tex. 2020) (per curiam). An abuse of discretion occurs when either (1) the trial judge fails to analyze or apply the law correctly, or (2) with regard to factual matters or matters committed to its discretion, the trial judge could reasonably reach only one decision and failed to do so. VSDH Vaquero Venture, Ltd. v. Gross, No. 05-19-00217-CV, 2020 WL 3248481, at *4 (Tex. App.-Dallas June 16, 2020, no pet.) (mem. op.).
2. Relevant Facts
The following facts are necessary to explain our disposition of Andrew's first issue.
On the first day of trial, Michelle's exhibit W-2 was admitted by agreement before any witnesses were called. Michelle was the first witness called, and she testified that exhibit W-2 was a spreadsheet containing her requested property division. Andrew testified next, followed by Michelle's accounting expert Autumn Kraus.
Andrew objected several times during Kraus's testimony. He objected to the admission of Kraus's expert report, exhibit W-3, arguing that the report was irrelevant because it actually contained no opinions. The judge overruled the objection and admitted the report. The report is largely a summary of transactions involving three different bank accounts over the period September 28, 2020, through June 30, 2021. In the report, Kraus and certified fraud examiner Carla Bryant attempted to identify both the recipients of payments from the accounts and the sources of funds that flowed into the accounts.
Later, Andrew objected to a question asking Kraus whether certain funds mentioned in exhibit W-3 were community property. Andrew argued that Michelle had never disclosed any of Kraus's opinions in discovery and thus those opinions should be excluded. The judge overruled the objection, and Kraus testified that the funds were presumed to be community property and that she had seen no evidence that would make them Andrew's separate property.
Still later, Andrew objected when Michelle asked Kraus whether she would have to use "investment value" to assign a value to a company called BlueCielo. The trial judge sustained this objection.
On the second and final day of trial, before testimony began, Michelle offered exhibit W-4, which appears to be a collection of over 3,000 pages of documents that Kraus reviewed to prepare her report. Andrew objected, arguing that the documents in exhibit W-4 were not all of the materials that Kraus reviewed or generated. The judge overruled the objection and admitted the exhibit.
After testimony concluded, Michelle sought to withdraw exhibit W-2 and to substitute exhibit W-2A as a summary of her requested property division. Andrew did not object to its admission as a summary of Michelle's testimony, and the trial judge allowed exhibit W-2 to be withdrawn and admitted exhibit W-2A "as a summary." Consequently, exhibit W-2 is not included in the appellate record. Exhibit W-2A is a spreadsheet that lists various assets, characterizes the assets as separate or community property, assigns values to some assets, and states Michelle's requested division of the assets. It also lists and proposes a division of several liabilities.
3. Application of the Law of the Facts
We reject Andrew's first issue because he does not demonstrate harm from any preserved evidentiary error. See Mira Mar Dev. Corp., 421 S.W.3d at 84 ("It is the appellant's burden to show harm from an erroneous evidentiary ruling.").
In his harm analysis, Andrew focuses largely on the admission of exhibit W-2A. But, as discussed above, Andrew did not object to the admission of exhibit W-2A. Accordingly, any evidentiary complaint about that exhibit has been forfeited. See TEX. R. APP. P. 33.1(a); TEX. R. EVID. 103(a)(1).
Andrew's harm argument is otherwise inadequately briefed, consisting of essentially one sentence: "If Ms. Kraus's testimony had been excluded, the evidence before the trial court would have been [Michelle's] testimony of 'I don't know,' the [parties'] PMA, and Andrew's tracing and supporting documents." This assertion is conclusory and unsupported by record references. It is inadequate to demonstrate harm from any of Kraus's testimony. See Mira Mar Dev. Corp., 421 S.W.3d at 84 (holding that a general assertion of harm from an erroneous evidentiary ruling was insufficient); Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893, 895-96 (Tex. App.-Dallas 2010, no pet.) (explaining the standards for adequate appellate briefing).
We overrule Andrew's first issue on appeal.
B. Issues Two and Three: Whether the trial judge abused her discretion in dividing the property.
In both issue two and issue three, Andrew argues that the trial judge abused her discretion in dividing the marital property. Accordingly, we consider those issues together.
1. Applicable Law and Standard of Review
Upon granting a divorce, the trial judge must divide "the estate of the parties" in a just and right manner, having due regard for the rights of the parties and any children of the marriage. Tex. Fam. Code Ann. § 7.001; see also Pearson v. Fillingim, 332 S.W.3d 361, 363 (Tex. 2011) (per curiam) ("Trial courts can only divide community property, and the phrase 'estate of the parties' encompasses the community property of a marriage, but does not reach separate property."). The trial judge need not divide the estate equally. Murff v. Murff, 615 S.W.2d 696, 698-99 (Tex. 1981). In dividing the estate, the judge may consider factors such as:
• the parties' capacities and abilities,
• the benefits that the party not at fault would have derived from the marriage's continuation,
• the parties' business opportunities and education,
• the parties' health and ages,
• the parties' relative financial conditions and obligations,
• the size of the separate estates, and
• the nature of the property.See id. at 699. Generally, the judge should treat community property according to its fair market value. See Ricks v. Ricks, 169 S.W.3d 523, 527 (Tex. App.-Dallas 2005, no pet.).
The trial judge has wide discretion in dividing the community estate, and we reverse only if the trial judge abused her discretion. See Murff, 615 S.W.2d at 698.
2. Issue Two: Evidentiary Complaints
In issue two, Andrew lodges two evidentiary complaints.
First, he complains that Kraus's opinions regarding the characterization of property were inadmissible because the facts or data Kraus relied on were insufficient to support those opinions. He does not explain exactly what evidence he is referring to, nor does he provide any record references. We surmise, however, that he is referring to Kraus's testimony when asked whether she had an opinion whether certain funds were community or separate property. Kraus answered, "Yes. The opinion is that it's presumed to be community property. And we saw no evidence of anything that made it in any way his separate property." Even assuming that Andrew preserved error and that admission of this testimony was erroneous, we conclude that any error was harmless. Kraus's opinion about the community-property presumption merely tracks the law. See FAM. § 3.003(a) (“Property possessed by either spouse during or on dissolution of marriage is presumed to be community property.”). And her statement that she saw nothing in the evidence to rebut the presumption was no obstacle to Andrew's pointing out or presenting such evidence. For these reasons, we cannot conclude that the property division turned on Kraus's objected-to testimony.
Second, Andrew complains that the asset valuations listed in "Kraus's W-2A" are unsupported opinions. As we previously explained, exhibit W-2A is a spreadsheet that lists various assets, characterizes each asset as community or separate property, states a value for some assets, and proposes a division of the assets between Michelle and Andrew. Andrew's description of the exhibit as "Kraus's W-2A" is inaccurate because it was admitted without objection as a summary of Michelle's testimony and requested relief-not as Kraus's opinions. In any event, Andrew does not attempt to demonstrate harm from the admission of exhibit W-2A in his argument under issue two. Rather, he states that the harm is detailed in issue three. Having reviewed issue three, which we analyze in detail below, we see no harm to Andrew from the admission of exhibit W-2A.
We overrule issue two.
3. Issue Three: Whether the Property Division Was an Abuse of Discretion Because It Was Based on Erroneous Valuations
In issue three, Andrew argues that the trial judge abused her discretion because (1) she committed errors in finding the values of certain community assets and (2) if proper values are considered, she inequitably awarded Michelle 88% of the community estate and awarded him only 12%. His arguments in support of this issue appear to be as follows:
1. The house on Rogers Road in Frisco, which was awarded to Michelle, was worth $4 million rather than $2,047,942 as Michelle contended.
2. Andrew's residence in Mexico, which was awarded to him, was worth only $800,000 rather than $1,200,000 as Michelle contended.
3. The division of the parties' credit-card debts was improper.
4. The personal property awarded to Michelle was worth far more than the personal property awarded to Andrew.
5. Other property purportedly awarded to Andrew was not owned by the parties.
6. The property division does not acknowledge that Andrew owed his attorneys much more than Michelle owed her attorneys.
7. The judge erred by requiring Andrew to return to Michelle personal property that was allegedly stolen by Ethan Blount, Andrew's son from a prior marriage.
We overrule issue three for the following reasons.
a. There are no valuation findings, so we must imply them.
At the outset, we note that both parties appear to assume that the recitations in the spreadsheet attached to the trial judge's "Amended Memorandum" are findings of fact under the rules of civil procedure and must be respected as such. We disagree with that premise.
Informal memoranda that summarize a trial judge's intended rulings are common in family-law cases. See, e.g., In re I.P., No. 05-22-00577-CV, 2023 WL 5215254, at *2-3 (Tex. App.-Dallas Aug. 15, 2023, no pet.) (mem. op.) (describing sequence of memorandum rulings, final decree, and findings of fact). Many familylaw judgments, such as divorce decrees, must resolve multiple conflicts and cover numerous details, and judges issue memoranda to assist the parties in drafting the formal order and to allow focused briefing if the parties think the judge is committing an error. But the memorandum's recitations generally do not constitute findings of fact. See Tran v. Hoang, No. 08-22-00100-CV, 2023 WL 4441138, at *2 n.1 (Tex. App.-El Paso July 10, 2023, no pet.) (mem. op.) (holding that judge's prejudgment "Findings and Orders" that briefly described the division of property and debts did not constitute findings of fact).
Here, the trial judge's amended memorandum listed the judge's rulings and set out a property division in the attached spreadsheet, but the memorandum specifically stated that it was not a "final order." It also instructed the parties to submit a comprehensive final order to the judge within 30 days. The judge then signed a final divorce decree that divided the assets generally, but not entirely, in keeping with the memorandum's property-division spreadsheet. The decree assigned no values to the assets it divided, and Andrew timely filed a request for findings of fact and conclusions of law-including findings of the value of all assets and liabilities. See FAM. § 6.711. But the trial judge did not make any findings of fact (beyond the set of child-support findings and conclusions that she signed several weeks before she signed the decree), and Andrew did not file a notice of past-due findings and conclusions. See TEX. R. CIV. P. 297. Nor does he complain on appeal about the trial judge's failure to issue findings and conclusions.
Accordingly, when we review Andrew's complaint we will not consider the amended memorandum to constitute findings of fact but will instead imply all findings necessary to support the judgment. See LaFrensen v. LaFrensen, 106 S.W.3d 876, 877 (Tex. App.-Dallas 2003, no pet.). We must affirm on any legal theory supported by the evidence. See id.; see also In re Y.B., No. 05-21-00915-CV, 2023 WL 4013299, at *2 (Tex. App.-Dallas June 15, 2023, no pet.) (mem. op.) (implied fact findings must be supported by the evidence). In the context of this case, these rules mean that we imply valuation findings that will not make the property division unjustly disproportionate.
b. Andrew's Arguments
In general, Andrew's arguments under issue three complain that the trial judge abused her discretion in dividing the community property because she valued certain community assets incorrectly. Thus, Andrew's appellate burden is to show (1) what the trial judge implicitly found the community assets were worth, and (2) that the division of those assets was an abuse of discretion under the just-and-right division standard. We liberally construe his arguments address these issues. See Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (per curiam) ("Appellate briefs are to be construed reasonably, yet liberally, so that the right to appellate review is not lost by waiver.").
(1) The Rogers Road Property
Andrew's first set of arguments concerns the parties' marital residence on Rogers Road in Frisco, which the judge awarded to Michelle. Michelle's exhibit W-2A recited that the property was effectively worth only $323,299, based on a value of $2,047,942, less a home-equity loan of $1,601,767.47 and an unexplained further deduction of $122,876.52.
First we consider Andrew's argument that the judge erred by accepting Michelle's proposed value of $2,047,942 instead of Andrew's proposed value of $4.1 million. Michelle adduced evidence, without objection, that the Collin County Central Appraisal District appraised the property at $2,047,042 for 2020. Andrew testified that the house was worth $4.1 million, based on unspecified "market comparables." He also argues that the evidence showed that the house was purchased in 2016 for $2,223,341.91, and that Michelle herself estimated that the parties spent about $1 million thereafter on a swimming pool and other improvements. He contends that no reasonable person could believe that the improved property was worth less in 2020 than it was in 2016.
We reject Andrew's argument. It is the trial judge's prerogative to weigh the evidence and resolve any conflicts in it. Intec Sys., Inc. v. Lowrey, 230 S.W.3d 913, 920 (Tex. App.-Dallas 2007, no pet.). A tax appraisal that is admitted without objection is some probative evidence of fair market value. Sadeghian v. Jaco, No. 05-18-00838-CV, 2020 WL 400172, at *5 (Tex. App.-Dallas Jan. 23, 2020, pet. denied) (mem. op.). Although there was evidence that $1 million were spent on improvements, we see no evidence of the improvements' quality or probable effect on the property's value. Accordingly, we cannot say that the trial judge's implied finding in favor of Michelle's valuation of the Rogers Road property is so unreasonable as to constitute an abuse of discretion.
Andrew also challenges Michelle's unexplained proposed deduction of $122,876.52, contending that it lacks evidentiary support. Michelle suggests, without reference to any supporting evidence, that the deduction represents the six percent commission Michelle will have to pay if she sells the property. We agree with Andrew that the evidence does not support this deduction, and thus we conclude that the trial judge did not implicitly find that this deduction was warranted. We further conclude that the trial judge implicitly found that the equity in the Rogers Road property awarded to Michelle was worth $446,174.53, which is the difference between the $2,047,942 tax appraisal and the balance due on the home-equity loan evidenced by exhibit W-2A and bank statements found in exhibits W-6 and W-7.
Finally, Andrew suggests in his reply brief that the trial judge's $122,876.52 error in valuing the Rogers Road property is by itself sufficiently harmful to warrant reversal of the property division. But, as stated above, we assume that the judge did not make this error in rendering the final decree. Accordingly, we reject Andrew's suggestion.
(2) Andrew's Residence in Mexico
Andrew's next argument concerns his residence in Mexico, a condominium that the trial judge awarded to him. Andrew argues that the trial judge abused her discretion by finding that the condominium was worth $1,200,000 instead of $800,000. We review the record to see what implied finding of value the evidence will support.
Andrew testified that he bought the condominium for $795,000 and that it was worth about $800,000 at the time of trial. Michelle adduced evidence of a webpage listing another condominium in the same complex for sale for $1,150,000. Her exhibit W-2A listed the value of Andrew's condominium as $1,200,000, and the spreadsheet attached to the judge's amended memorandum recited that it was worth $1,200,000.
We conclude that the evidence supports an implied finding that Andrew's residence was worth $800,000. Michelle cites no basis for her proposed $1,200,000 valuation of Andrew's residence aside from the asking price of another nearby condominium. A property owner's asking price, without more, does not tend to establish the property's market value. See Houston Unlimited, Inc. Metal Processing v. Mel Acres Ranch, 443 S.W.3d 820, 831 (Tex. 2014). We therefore conclude that the evidence supports an implied finding that Andrew's condominium was worth $800,000.
(3) Credit-Card Debt
The divorce decree assigns five credit-card debts to Michelle and eleven credit-card debts to Andrew. Neither the decree nor the amended memorandum assigns a value to any of those debts. Andrew complains about this fact, and he asserts that the evidence shows that five of the credit-card debts assigned to him totaled about $242,000. Michelle responds that Andrew's own request for relief in the trial court did not assign values to any of the debts but nevertheless asked that they be divided between the parties.
We conclude that Andrew's complaint does not support reversal. Even if he is correct that the evidence shows the amounts of five credit-card debts assigned to him, he does not address the remaining debts assigned to him or any of the debts assigned to Michelle. In other words, he has not shown how much credit-card debt the trial judge assigned to each of the parties, much less how those debts should have influenced the property division. See Murff, 615 S.W.2d at 699 (listing the parties' relative financial obligations as one factor the trial judge may consider in dividing the community property).
We conclude that Andrew's argument regarding the credit-card debts does not support his claim that the property division was an abuse of discretion.
(4) Personal Property
The trial judge awarded each party the household furnishings and goods in his or her possession. Her first memorandum recited that there was $1,500,000 worth of personal property in Texas, but her amended memorandum gave no value for that personal property. Neither memorandum assigned a value to the parties' personal property in Mexico. Andrew complains that the trial judge's implicit finding that the personal property in Texas was worth nothing was clearly erroneous. He acknowledges that he testified that the personal property at his residence in Mexico was worth about $50,000. Michelle responds that the judge acted within her discretion by rejecting Andrew's valuation of the Texas personal property, which Andrew listed at $1,500,000 in his trial-court request for relief.
Andrew points to two specific assets to support his argument. First, he testified that when the parties moved to Texas, they possessed about 2,000 bottles of wine, most of which were "premium brand." But Michelle testified without contradiction that the move to Texas took place in March 2016, which was almost six years before the trial. Andrews testified that he had not been in Texas since May 2020, which was over a year before trial. And Andrew testified that he had no idea what personal property and assets, including the wine specifically, were still present in the Rogers Road house at the time of trial. Thus, the trial judge could reasonably conclude that Andrew's assertion that the parties' personal property in Texas was worth $1.5 million was based on outdated information and was therefore unreliable.
Second, Andrew asserts that a "four-foot-tall bronze lion in front of the home," which is visible in a photograph in evidence, must have a value greater than zero. But in the absence of any evidence concerning its value, the assertion does not help Andrew on appeal.
We conclude that Andrew's arguments regarding the parties' personal property do not support his claim that the property division was an abuse of discretion.
(5) Property Not Owned by the Parties
The divorce decree awards Andrew the following assets:
R-3. Mexico Home purchased for Respondent's [i.e., Andrew's] staff.
R-4. All funds on deposit, together with accrued but unpaid interest, in the following banks, savings institutions, or other financial institutions:
....
b. Citibanex account; . . .
....
R-15. The 2014 Mercedes Benz SL motor vehicle in Respondent's possession zero value at this time. ....
R-17. The Ford Truck motor vehicle in Respondent's possession.
R-18. The two Motorcycle motor vehicle[s] in Respondent's possession.
Andrew complains that these awards added nothing to his share of the community estate because these assets were not owned by the parties.
Andrew's complaints about paragraphs R-3, R-4(b), and R-15 are unsupported by record references, so we do not consider them. See Bolling, 315 S.W.3d at 895 ("We are not responsible for searching the record for facts that may be favorable to a party's position."). As to the Ford truck and the two motorcycles, Andrew cites Michelle's testimony that the Ford was in Andrew's possession in Mexico and that he bought the Ford and the motorcycles for his employees. Exhibit W-2A also mentions those vehicles and references part of Andrew's deposition (also in evidence) in which he testified that he bought an $18,000 truck for one employee and bought motorcycles costing around $14,000 for two other people who were assisting him. Under the evidence, it is possible that Andrew bought these vehicles and merely loaned them to his assistants for their use. Thus, we cannot conclude that the trial judge abused her discretion by concluding that these assets were available to be divided and awarded to Andrew as part of his share of the community property.
(6) Attorneys' Fees
Next, Andrew complains that the divorce decree does not mention the parties' attorneys' fees incurred in this case. He also asserts that he incurred almost $360,000 in attorneys' fees while Michelle incurred only $49,000. And he concludes that those figures should be deducted from the community-property awards given to each party for purposes of determining whether the trial judge abused her discretion in making the property division. He cites no authority for this proposition, and we are aware of none. Under Murff, the trial judge could consider the parties' relative financial obligations in making the property division, 615 S.W.2d at 699, but Andrew has not shown that the judge was required to increase Andrew's share of the community property to make up for the fact that he spent substantially more on legal services than Michelle did.
We reject Andrew's argument based on the parties' legal expenses.
(7) Allegedly Stolen Property
The divorce decree awards Michelle "any and all property taken from" the Rogers Road property by Andrew's adult son Ethan. This provision apparently refers to testimony by Michelle that in October 2020, Ethan entered the Rogers Road house and took property out of the house while Michelle was out of town. Andrew makes three arguments attacking this provision: (1) Michelle testified that she had nothing to show that any of the missing property was in Andrew's possession; (2) Michelle admitted that security photos of Ethan leaving the house did not show him carrying anything except a red flag of some kind; and (3) the provision is vague and sets the stage for future conflicts if Michelle ever claims that something in Andrew's possession was actually taken from the Rogers Road property by Ethan.
We conclude that Andrew's first two arguments do not demonstrate that the property division was an abuse of discretion. The decree's reference to property taken from the Rogers Road residence by Ethan is so vague that it is impossible to place any value on this award to Michelle. Because Andrew cannot show what property is actually encompassed by this award or the value of that property, he also cannot show how much this award affects the community-property division.
And we conclude that Andrew's third argument was not preserved in the trial court. It is true that he filed a motion for reconsideration after the trial judge issued her amended memorandum, and in that motion he asked the judge to delete her ruling requiring Andrew to return property from the Rogers Road property. But he did not argue that the ruling was vague or ambiguous; rather, he argued only that there was no evidence that Ethan or Andrew took any property, or that Andrew had any property allegedly taken by Ethan. Nor did Andrew seek clarification or modification of this provision after the divorce decree was signed. Accordingly, Andrew did not preserve his vagueness complaint for appeal. See TEX. R. APP. P. 33.1(A)(1).
c. Conclusion
We conclude that the trial judge implicitly and permissibly found that the Rogers Road property awarded to Michelle, after a deduction for the home-equity loan, was worth $446,174.53. We also conclude that judge implicitly found that Andrew's condominium in Mexico was worth $800,000. We have rejected Andrew's other arguments. Based on our analysis above, we conclude that Andrew has not demonstrated his premise that the divorce decree awarded 88% of the community property to Michelle and 12% to Andrew. Nor has he demonstrated either the total value of the community property or how the trial judge divided it between the parties. It necessarily follows that he has failed to show that the trial judge abused her wide discretion to divide the community property in a just and right manner. We overrule Andrew's third issue.
C. Issue Four: Whether the Trial Judge Abused Her Discretion by Ignoring a Postmarital Agreement
In his fourth issue, Andrew argues that the trial judge's property division was an abuse of discretion because the judge ignored a postmarital agreement that was admitted into evidence without objection. Andrew contends that, under the PMA, most of the assets that the trial judge classified as community property were actually his separate property. Michelle raises several arguments in response.
For the following reasons, we reject Andrew's argument.
1. Relevant Facts
During trial, Andrew offered into evidence exhibit H-23, which is a document bearing the following title:
[CONFIDENTIAL INDEMNIFICATION AND RELEASE FROM WARRANTIES MR. ANDREW J. BLOUNT and MRS. JOAN MICHELLE BLOUNT
Andrew testified that the exhibit was a true and correct copy of that document and that he and Michelle signed it. The document was dated several months after Andrew and Michelle got married. Michelle did not object to the exhibit, and the trial judge admitted it into evidence. Andrew then explained that the document had several purposes, one of which was to protect Michelle's assets from one of Andrew's competitors who was very litigious. Little else was said about exhibit H-23, which we will refer to as the "Agreement," during the trial.
Andrew argues that the Agreement contained provisions that had the effect of making most or all of his earnings during the marriage his separate property. He further argues that, as a result, most of the property that the trial judge characterized as community property was actually his separate property. Based on our analysis below, however, we need not recount the Agreement's provisions on which Andrew relies.
After the trial judge made her initial memorandum ruling, Andrew filed a motion to reconsider in which he argued that the Agreement meant that all of the real estate involved in the case was either Andrew's separate property or, in the case of the Rogers Road property, Andrew's and Michelle's separate property owned 50/50. He also argued that a certain brokerage account was Andrew's separate property under the Agreement. The docket sheet indicates that the trial judge held a hearing on Andrew's motion, and the divorce decree reflects that the judge rejected Andrew's arguments because she ruled that all of the parties' property was community property except for three assets that she confirmed as Michelle's separate property.
2. Applicable Law and Standard of Review
Community property consists of the property, other than separate property, acquired by either spouse during marriage. Fam. § 3.002. All property on hand at the time of divorce is presumed to be community property. Id. § 3.003(a). A spouse may rebut the presumption but must do so by clear and convincing evidence. Id. § 3.003(b). Clear and convincing evidence means the measure or degree of proof that will produce in the factfinder's mind a firm belief or conviction of the truth of the allegation sought to be established. Id. §§ 1.001(b), 101.007; Sink v. Sink, 364 S.W.3d 340, 344 (Tex. App.-Dallas 2012, no pet.).
Generally, a spouse's separate property consists of (1) the property the spouse owned or claimed before marriage, (2) property the spouse acquired during marriage by gift, devise, or descent, and (3) recoveries for personal injuries sustained by the spouse during marriage, except for recoveries for loss of earning capacity during marriage. See FAM. § 3.001. HOWEVER, THE LAW ALSO ALLOWS SPOUSES TO CONVERT COMMUNITY PROPERTY INTO SEPARATE PROPERTY BY AGREEMENT. See id. §§ 4.102-.103.
Separate property will retain its character through a series of exchanges as long as the party asserting separate ownership can overcome the communityproperty presumption by tracing the assets on hand during the marriage back to separate property. Sink, 364 S.W.3d at 344-45. Mere testimony that property was purchased with separate-property funds, without tracing the funds, is generally insufficient to rebut the community-property presumption. Id. at 345. Any doubt as to the character of property should be resolved in favor of the community estate. Id.
We review an alleged characterization error for abuse of discretion. Id. at 343. Because the party claiming a separate-property interest bears the burden of establishing that claim by clear and convincing evidence, Andrew's burden on appeal is to show that the trial judge could not reasonably conclude that he failed to prove his separate-property claims by clear and convincing evidence. See VSDH Vaquero Venture, 2020 WL 3248481, at *4 (with respect to factual determinations, trial judge abuses her discretion if she could reasonably reach only one decision and failed to do so).
3. Application of the Law to the Facts
We conclude that Andrew has not shown that the trial judge abused her discretion in any of her property-characterization rulings.
In his opening brief, Andrew devotes his argument under Issue Four largely to arguing that the trial judge erred by ignoring the Agreement and to setting forth his interpretation of the Agreement's terms. But this is insufficient to show harmful error. See Jordan v. Aaron, No. 05-21-00245-CV, 2023 WL 4861778, at *1 (Tex. App.-Dallas July 31, 2023, no pet.) (mem. op.) ("A party appealing an adverse judgment has the burden to show reversible error."). Rather, it was incumbent on Andrew to (1) identify one or more assets that the trial judge characterized as community property and then (2) explain, with appropriate record references, why the trial judge could not reasonably reject Andrew's contention that he had proved by clear and convincing evidence that each such asset was actually his separate property. Cf. In re B.H.W., No. 05-15-00841-CV, 2017 WL 2492612, at *7 (Tex. App.-Dallas June 9, 2017, pet. denied) (mem. op.) (the question on appeal was "not whether the evidence would support a claim for reimbursement, but whether clear and convincing evidence mandate[d] such an award").
As Michelle points out in her appellee's brief, Andrew's argument in his opening brief contains only a few conclusory assertions, unsupported by explanation or record references, directed to the premise that specific income or assets were his separate property:
• "[It's] undisputed that [Andrew's] compensation came from the Entities, primarily RealPage, Inc., for the 15 years after [the Agreement] was executed."
• "It's undisputed that all real property (except Lampasas), bank trusts and cash assets in this divorce came from RealPage, Inc. .
..
• Andrew asserts that the award to Michelle of "Petitioner's [i.e., Michelle's] employee and retirement benefits in REALPAGE, INC. 401(K) RETIREMENT PLAN, arising out of Petitioner's past or present employment" is covered by the Agreement.
• "All testimony regarding income used to purchase the real property assets in Frisco, New Jersey, and the two bank trusts in Puerto Vallarta, Mexico, is that the money came from Andrew's relationship with Mr. Stephen Winn, and Mr. Winn's companies, including RealPage, Inc."
These conclusory assertions present nothing for our review. See Bolling, 315 S.W.3d at 895-96.
Andrew also relies on some testimony by Michelle's accounting expert witness, Autumn Kraus, related to the tracing of assets. During her direct examination, Kraus testified as follows:
Q. Were you able to determine the source of the funds of the Interactive Brokerage account, the one ending in 7377?
A. Yes.
Q. And where did you find the source of those funds?
A. The source of those funds came from early from [sic] the Raymond James account. And that's originating from Mr. Blount's Shareworks account.
Q. Explain to the Court what the Shareworks account is?
A. Yes. It's a Morgan Stanley account that held some of the RealPage stock awards that Mr. Blount received while he was an employer [sic] with RealPage during the marriage. So we reviewed the Shareworks, compiled statements, and saw a substantial amount of money available and/or given to him as far as distributions from that RealPage stock awards.
We conclude that this evidence was not so strong as to compel the trial judge to rule that the Interactive Brokerage account (which the judge characterized as community property and divided equally between Andrew and Michelle) was Andrew's separate property. In particular, Kraus's expert report, which was admitted into evidence, contained a qualification that undercuts her testimony:
The monies held in the Interactive Brokers account originated from the Raymond James account. Furthermore, based on the documents we reviewed it appears the Raymond James account monies originated from the Shareworks Account, a Morgan Stanley account that holds RealPage stock awards received by Mr. Blount from his employer, RealPage[,] during the marriage.(Emphasis added.) The trial judge was entitled to note the equivocation in Kraus's expert report and to conclude that her testimony was not clear and convincing tracing evidence.
As a final point, we note that Andrew attempts to present some additional tracing arguments with record references in his reply brief. But we do not consider arguments raised for the first time in a reply brief. Hunter v. PriceKubecka, PLLC, 339 S.W.3d 795, 803 n.5 (Tex. App.-Dallas 2011, no pet.); see also Beal Bank v. Gilbert, 417 S.W.3d 704, 710 n.3 (Tex. App.-Dallas 2013, no pet.) (refusing to consider argument that a certain deposit was community property because argument was raised for the first time in litigant's reply brief); Zoanni v. Hogan, No. 01-16-00584-CV, 2023 WL 8939267, at *32 n.27 (Tex. App.-Houston [1st Dist.] Dec. 28, 2023, no pet. h.) ("[A]n appellant who develops her arguments for the first time in her reply [brief] waives the issue.").
We overrule Andrew's fourth issue on appeal.
D. Issue Five: Whether the Trial Judge Erred by Ordering Andrew to Pay Child Support of $5,000 per Month
In his fifth and final issue, Andrew challenges the trial judge's decision requiring Andrew to pay child support of $5,000 per month.
1. Applicable Law and Standard of Review
Parents have a duty to support their child. Fam. § 151.001(a)(3). A trial judge can order either or both parents to support a child. See id. § 154.001(a).
The Family Code contains child-support guidelines "to guide the court in determining an equitable amount of child support." Id. § 154.121. The starting point for a child-support determination is determining the obligor's monthly "net resources" and applying to that amount a percentage derived from the statutory guidelines. See In re K.M.B., 606 S.W.3d 889, 894 (Tex. App.-Dallas 2020, no pet.); Fam. § 154.125. The statutory-guideline percentage for one child relevant to this case is 20%. Fam. § 154.125(b). The resulting amount of child support is presumed to be reasonable, and a child-support order that conforms to the guidelines is presumed to be in the best interest of the child. Id. § 154.122(a). However, the trial judge may depart from the guidelines "if the evidence rebuts the presumption that application of the guidelines is in the best interest of the child." Id. § 154.123(a). Section 154.123(b) provides a list of factors that can be relevant to the determination of whether applying the guidelines would be unjust or inappropriate in a particular case. Id. § 154.123(b)(1)-(17).
If a child-support obligor's monthly net resources exceed a certain amount, additional calculations are required. See id. § 154.126; see also In re J.A.V., No. 04-21-00084-CV, 2022 WL 379316, at *4 (Tex. App.-San Antonio Feb. 9, 2022, no pet.) (mem. op.). As applicable to this case, that threshold net-resources amount is $9,200 per month. See Office of the Attorney General 2021 Tax Charts, https://csapps.oag.texas.gov/system/files/2020-12/2021_tax_chart.pdf. If the obligor's net resources exceed $9,200 per month, the trial judge must calculate a presumptive award by applying the guideline percentage to the $9,200 figure; the judge may then impose child support exceeding the presumptive award only if there is evidence that the child's proven needs exceed the presumptive award. See FAM. § 154.126(a), (b). If the child's proven needs exceed the presumptive award, the trial judge must calculate the difference and allocate it between the parties according to their circumstances. Id. § 154.126(b). "[I]n no event may the obligor be required to pay more child support than the greater of the presumptive amount or the amount equal to 100 percent of the proven needs of the child." Id.
Moreover, in determining the amount of child support, the trial judge may opt to use the obligor's earning potential instead of his or her actual net resources if the obligor's actual income "is significantly less than what the obligor could earn because of intentional unemployment or underemployment." Id. § 154.066(a).
We review a child-support order for abuse of discretion. In re K.M.B., 606 S.W.3d at 894.
2. The Trial Judge's Findings
The trial judge issued findings of fact and conclusions of law to support her order requiring Andrew to pay child support of $5,000 per month. The findings and conclusions germane to this appeal are as follows:
• Andrew's monthly net resources exceed $9,200.
• The guideline percentage applicable to the first $9,200 of Andrew's monthly net resources is 20%.
• Applying the guideline percentage in this case would be unjust or inappropriate.
• The above-guideline child support ordered by the judge is in the best interest of the child.
The judge also made sixteen findings of specific reasons she departed from the amount of support computed under the guidelines. These reasons included the following:
• F.L.J.B.'s proven monthly needs exceed guideline child support.
• F.L.J.B. needs special or extraordinary health care and therapy due to an eating disorder that will continue throughout her life.
• Andrew's adjusted gross income exceeded $3 million in 2017, exceeded $6 million in 2018, and exceeded $1 million in 2019.
• Andrew is self-employed and determines his income.
• Andrew's additional income also comes from his day trading.
• Andrew is intentionally underemployed.
3. Application of the Law to the Facts
Andrew argues that the trial judge abused her discretion by ordering him to pay child support of $5,000 per month for the following reasons: (1) there was no evidence establishing F.L.J.B.'s needs; (2) there was no evidence proving that Andrew has "the current income required to support the above guideline child support"; and (3) the evidence does not support the finding that Andrew is intentionally underemployed.
a. The trial judge abused her discretion by awarding child support that exceeded the presumptive amount without sufficient evidence of the child's needs.
Under § 154.126(b), the judge could not order Andrew to pay more than the greater of the presumptive amount ($1,840) or the proven needs of the child. See FAM. § 154.126(B). THUS, THE TRIAL JUDGE'S ORDER WAS AN ABUSE OF DISCRETION UNLESS some evidence shows that F.L.J.B.'s needs were at least $5,000 per month. See Haedge v. Cent. Tex. Cattlemen's Ass'n, 603 S.W.3d 824, 827 (Tex. 2020) (per curiam) (under abuse-of-discretion standard, appellate court defers to trial judge's factual determinations if they are supported by evidence); VSDH Vaquero Venture, 2020 WL 3248481, at *4 (as to factual matters, trial judge abuses her discretion if she could reasonably reach only one decision and failed to do so).
Andrew argues that there is no evidence that F.L.J.B.'s needs cost any specific amount. In support, he points out that Michelle adduced no evidence of the cost of F.L.J.B.'s ongoing medical costs for an eating disorder. He also cites Michelle's testimony that F.L.J.B. is currently doing well and participating in a martial-arts class.
Michelle responds that she adduced evidence of F.L.J.B.'s eating disorder, her hospitalization for same, and her past medical bills of approximately $120,000. She also cites evidence that at the time of trial F.L.J.B. was seeing a counselor who specializes in eating disorders and that the counselor explained that recovery from an eating disorder could take as long as five years and could possibly be part of F.L.J.B.'s lifestyle for the rest of her life.
But Michelle cites no evidence concerning the cost of F.L.J.B.'s current or probable future medical needs, or of the cost of any of F.L.J.B.'s other needs. We have reviewed the record for such evidence, and we see no evidence to support a finding that her proven needs are $5,000 per month. Indeed, there appears to be almost no evidence about the cost of her needs. Michelle testified about the cost of two health insurance policies, namely a family policy that cost about $663 per month and a policy for F.L.J.B. alone that cost $316 per month. But those figures add up to less than $1,000 per month. Beyond that, we see no evidence quantifying the cost of F.L.J.B.'s needs.
Because there is no evidence that F.L.J.B.'s needs exceed the presumptive amount of $1,840 per month, we conclude that the trial judge abused her discretion by ordering child support exceeding that amount. See FAM. § 154.126(B).
b. The trial judge did not abuse her discretion by finding that Andrew's net resources exceed $9,200 per month.
We next consider Andrew's second argument, which we construe to challenge the trial judge's finding that Andrew's monthly net resources exceeded $9,200.
Andrew concedes that he earned "significant income" from RealPage, Inc. between 2016 and 2019. He argues, however, that he became ill at some point before Michelle filed for divorce in November 2020, that he was still ill at the time of trial in 2021-22, and that his illness made him unable to travel. He further argues that he had to travel extensively for business during the period ending in December 2019, implying that his illness now makes it impossible for him to return to that line of work. He testified that his annual income potential at the time of trial was zero because he was unable to travel and he had no funds with which to day trade.
Andrew acknowledges that Michelle testified that Andrew made over $150,000 per year in the past and that she believed he was still able to make over $150,000 per year. He does not dispute the probative value of this testimony; rather, he asserts only that $150,000 in annual income will not support a child-support order of $5,000 per month.
Michelle argues that the evidence was sufficient to support the trial judge's net-resources finding. She cites her own testimony that Andrew was able to make over $150,000 per year, as well as tax forms showing that Andrew had over $500,000 in income in 2020. She also cites Andrew's testimony that the Interactive Brokerage account made a profit of about $100,000 per month before the trial judge froze the account.
Michelle also argues that her expert witness, Autumn Kraus, testified that the marital estate had income of $3.8 million between October 2020 and June 2021, the largest part of which came from Andrew's stock trading. But this is not entirely correct. Although Kraus did testify that $3.8 million of income was "available" to the marital estate during that period, she attributed the income to the Interactive Brokerage account without mentioning any stock trading by Andrew.
Kraus's expert report, which was admitted into evidence, was more detailed than her testimony. Her report recites that $98,976 of the $3.8 million figure represented salary and interest income. The trial judge could conclude that this income was entirely Andrew's because Michelle testified that she was unemployed and had not worked for a company that she and Andrew did not own since they got married. Almost $2.9 million of the $3.8 million represented transfers from brokerage or bank accounts-and thus could have been mere transfers of capital rather than income of any kind. See FAM. § 154.062(C)(1) (providing that resources do not include returns of principal or capital). Another roughly $577,000 represented an IRS refund. Another $111,000 represented cash on hand in October 2020. The remaining $106,208 was reported as deposits from an unknown source. If we infer that this last figure represents income of some kind and add it to the figures for salary and interest, we get a sum of $205,196, or about $22,800 per month from October 2020 through June 2021. See McMichael v. McMichael, No. 01-06-01037-CV, 2007 WL 4387321, at *4 (Tex. App.-Houston [1st Dist.] Dec. 13, 2007, no pet.) (mem. op.) (noting that trial court was free to believe that deposits were more probative of net resources than reported income was).
We conclude that the trial judge's net-resources finding was not an abuse of discretion. The Family Code defines an obligor's net resources broadly to include virtually any kind of income. See FAM. § 154.062(B). The trial judge, acting as the factfinder, was entitled to disbelieve Andrew's testimony and evidence regarding his alleged illness and lack of income. See Garner v. Garner, 200 S.W.3d 303, 308 (Tex. App.-Dallas 2006, no pet.) ("As the fact finder, the trial court had the discretion to disbelieve appellant's testimony and was not required to accept appellant's evidence of his income and net resources as true."), disapproved on other grounds by Iliff v. Iliff, 339 S.W.3d 74 (Tex. 2011). And the judge could credit Kraus's evidence and conclude that Andrew was earning an average of $22,800 per month as recently as October 2020 to June 2021-a period that ended only about six months before trial. Accordingly, we conclude that the trial judge did not abuse her discretion by drawing the inference that Andrew had net resources exceeding $9,200 per month.
c. The trial judge's finding that Andrew is intentionally underemployed is immaterial.
Finally, Andrew argues that the trial judge erred by finding that he is intentionally underemployed. But the trial judge's child-support award was based on her finding of Andrew's net resources-not her finding that Andrew is intentionally underemployed. See FAM. § 154.066(a) (allowing trial judge to apply support guidelines to obligor's earning potential if obligor's actual income is significantly less than obligor's potential earnings “because of intentional unemployment or underemployment”). Accordingly, the trial judge's intentional-underemployment finding is immaterial and did not harm Andrew even if it was erroneous. See Bank of Tex. NA v. Collin Cent. Appraisal Dist., No. 05-19-00568-CV, 2021 WL 2548711, at *6 (Tex. App.-Dallas June 22, 2021, no pet.) (mem. op.) (“Findings on immaterial facts are harmless and not grounds for reversal.”).
4. Conclusion
We conclude that the trial judge abused her discretion by ordering Andrew to pay child support of $5,000 per month because there was no evidence regarding F.L.J.B.'s needs. Accordingly, the trial judge could not order child support exceeding the presumptive amount. See FAM. § 154.126. The divorce decree recites that the guideline percentage applicable to the first $9,200 of Andrew's net resources would be 20%. Accordingly, we can modify the child-support portion of the divorce decree so that Andrew's monthly child-support obligation is 20% of $9,200, or $1,840. See In re J.G.L., 295 S.W.3d 424, 425, 429 (Tex. App.-Dallas 2009, no pet.) (modifying child-support judgment in similar fashion).
IV. Disposition
We modify the divorce decree by reducing Andrew's monthly child-support obligation from $5,000 to $1,840. See TEX. R. APP. P. 43.2(B). We affirm the divorce decree as modified.
JUDGMENT
In accordance with this Court's opinion of this date, the final decree of divorce is MODIFIED as follows:
The portion of the decree requiring Andrew John Blount to pay Joan Michelle Blount child support of $5,000 per month is modified to require Andrew John Blount to pay Joan Michelle Blount child support of $1,840 per month.
It is ORDERED that, as modified, the judgment of the trial court is AFFIRMED.
It is ORDERED that each party bear its own costs of this appeal.