Opinion
NUMBER 13-16-00174-CV
04-26-2018
JUAN CARLOS CASTILLO, Appellant, v. AMY CASTILLO, Appellee.
On appeal from the 309th District Court of Harris County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Longoria
Memorandum Opinion by Chief Justice Valdez
Appellant Juan C. Castillo appeals from the trial court's judgment granting his divorce from appellee Amy Castillo. By three issues, appellant contends that the trial court abused its discretion by awarding spousal maintenance, failing to consider appellant's motion to terminate temporary spousal support after a bankruptcy court divided and distributed the community estate, and requiring that appellant successfully complete a drug test before having unsupervised visitation with his children. We affirm.
I. BACKGROUND
This case is before the Court on transfer from the Fourteenth Court of Appeals in Houston, Texas pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw through 2017 1st C.S.).
Appellee filed for divorce and approximately three years later, appellant filed for bankruptcy. The bankruptcy court determined appellant's net resources and the division of the parties' property and debt, and it entered an order dividing the property, confirming the parties' separate property, and determining the parties' responsibility for certain marital debts. In its findings of fact and conclusions of law, the bankruptcy court stated that, under the permissive abstention doctrine, it would abstain from determining spousal maintenance and child support. See 28 U.S.C. § 1334(c)(1) (providing that nothing in the code prevents a federal court "from abstaining from hearing a particular proceeding arising under title 11 or arising in or related to a case under title 11" in the interest of justice or in the interest of comity with State courts or respect for State law). The bankruptcy court then stated that under the principle of collateral estoppel, it was imposing an injunction to prevent the parties "from relitigating in the Family Law Court those issues already tried in this bankruptcy case." The bankruptcy court stated that "the detailed findings of fact that relate to this Court's division of the community assets and debts, to the extent that Texas law requires the Family Law Court to consider such issues in its decision on spousal maintenance and child support may not be retried in the Family Law Court." (Emphasis in original). The bankruptcy court said, "In an effort to enforce this long-standing principle, the Court will now impose a § 105(2) injunction against the Parties from relitigating these issues." Specifically, the court stated
In a footnote to its findings of fact and conclusions of law, the trial court explained that usually, a bankruptcy court lifts the stay in a pending bankruptcy action so that the family law court may divide the community property, which is subject to final approval of the bankruptcy court. However, here, the parties requested for the bankruptcy court "to divide the community assets." Thus, the bankruptcy court stated, "Under these circumstances, this Court will not abstain but rather will exercise its jurisdiction and divide the community property of the Parties." Neither party in this case appealed the bankruptcy court's judgment.
The factors to be considered in the division of marital assets and debts—which have now already been litigated before this Court for 14 days—are substantially similar, if not, identical, to the factors to be considered in awarding spousal maintenance and child support. . . . For example, in dividing up the community assets, this Court, after listening to testimony adduced at trial, has determined that [appellee's] adulterous affair with Scofield occurred prior to her initiating the Divorce Action and thereby rendered her more at fault in the breakup of the marriage. . . . Additionally, as a result of the 14-day trial on the Motion for Division, the Court has made findings of fact regarding other factors—such as the length of the marriage, the Parties' earning ability, the Parties' physical and mental health, and the Parties' role in the dissipation of community assets. . . . As described in more detail below, these are the same issues that the Parties may now want the Family Law Court to determine in the Divorce Action in . . . determin[ing] the amount of spousal maintenance.The bankruptcy court then entered extremely detailed findings of fact regarding the elements to be determined by the trial court.
Second, the evidence introduced during the 14-day trial before this Court, and the resulting findings of fact made by this Court, make clear that such issues have in fact already been litigated. Indeed, this Court admitted voluminous and numerous exhibits, heard testimony from 16 witnesses, heard closing arguments from counsel, and has now issued the FOF and COL set forth herein. There is no question that numerous specific issues have been litigated during the trial on [appellee's] motion for division.
Third, this Court's making fact findings and analyzing the Just and Right Division Factors . . . are unquestionably "a critical and necessary part of [this Court's] judgment" relating to [appellee's] Motion for Division. In fact, these factors were, in large part, the only "issues" to be determined. Without this Court's evaluation and determination of these issues, it would not have been able to divide community assets and debts as requested by the Parties. Given these circumstances, this Court concludes that collateral estoppel applies here and, therefore, the Parties must be enjoined from relitigating the same issues in the Family Law Court.
Neither party appealed the trial court's injunction or complain that the trial court was not collaterally estopped from relitigating those issues.
On January 15, 2016, the trial court held a trial to determine child support and spousal maintenance. Relying on the bankruptcy court's findings of fact and conclusions of law, the trial court granted the divorce, and awarded spousal maintenance and child support. This appeal followed.
At the trial, upon appellant's request, the trial court refused to consider any matters related to a temporary order for spousal maintenance granted by the bankruptcy court.
II. SPOUSAL MAINTENANCE
By his first issue, appellant contends that the trial court abused its discretion by awarding spousal maintenance because appellee failed to establish her entitlement to spousal support and failed to provide probative evidence to overcome the statutory presumption against spousal maintenance. In addition, appellant argues that the amount and duration of spousal maintenance ordered is excessive.
A. Standard of Review and Applicable Law
We review a trial court's decision to award spousal maintenance under an abuse of discretion standard of review. Roberts v. Roberts, 531 S.W.3d 224, 227 (Tex. App.—San Antonio 2017, no pet.). We will not disturb the trial court's judgment absent a clear abuse of discretion. Id. "Under this standard of review, the appropriate inquiry is whether the trial court's assessment of spousal maintenance was arbitrary or unreasonable." Id. If there is some evidence of a substantive and probative character to support the trial court's decision or if reasonable minds could differ as to the result, we cannot conclude that the trial court abused its discretion. Amos v. Amos, 79 S.W.3d 747, 749 (Tex. App.—Corpus Christi 2002, no pet.). When determining whether the trial court abused its discretion, we "must view the evidence in the light most favorable to the action of the trial court and indulge every legal presumption in favor of the judgment." Smith v. Smith, 115 S.W.3d 303, 305-06 (Tex. App.—Corpus Christi 2003, no pet.).
Pertinent here, a spouse is entitled to spousal maintenance following the dissolution of marriage "if the spouse seeking maintenance will lack sufficient property, including the spouse's separate property, on dissolution of the marriage to provide for the spouse's minimum reasonable needs and" that spouse "has been married to the other spouse for 10 years or longer and lacks the ability to earn sufficient income to provide for the spouse's minimum reasonable need." TEX. FAM. CODE. ANN. § 8.051 (West, Westlaw through 2017 1st C.S.). If the spouse is entitled to receive maintenance, the trial court "shall determine the nature, amount, duration, and manner of periodic payments by considering all relevant factors including" the following: (1) "each spouse's ability to provide for that spouse's minimum reasonable needs independently, considering that spouse's financial resources on dissolution of the marriage"; (2) "the education and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to earn sufficient income, and the availability of that education or training"; (3) "the duration of the marriage"; (4) "the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance"; (5) "the effect on each spouse's ability to provide for that spouse's ability to provide for that spouse's minimum reasonable needs while providing periodic child support payments or maintenance"; (6) "acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common"; (7) the contribution by one spouse to the education, training, or increased earning power of the other spouse"; (8) "the property brought to the marriage by either spouse"; (9) "the contribution of a spouse as homemaker"; (10) "marital misconduct, including adultery and cruel treatment, by either spouse during the marriage"; and (11) "any history or pattern of family violence." Id. § 8.052 (West, Westlaw through 2017 1st C.S.).
B. Discussion
First, appellant argues that appellee failed to provide the trial court with probative or relevant evidence of her minimum reasonable needs, her budget, and whether she has investigated any opportunities for living arrangements after sale of the family residence. This is the extent of appellant's argument. Therefore, we conclude that it is inadequately briefed. See TEX. R. APP. P. 38.1(i). Nonetheless, the bankruptcy court made extensive findings of fact which included discussions of appellee's expenses, and during the trial on the issue of spousal maintenance, the trial court admitted a report showing appellee's expenses and appellee testified regarding those expenses. "Deciding what the minimum reasonable needs are for a particular individual is a 'fact-specific determination that should be made by the trial court on a case-by-case basis.'" Smith, 115 S.W.3d at 306. Here, appellant does not contend that the trial court could not rely on the evidence before it concerning appellee's expenses and appellant has not stated why this evidence is insufficient to support the judgment. Moreover, "[w]hile a list of expenses is helpful, such a list is not the only evidence upon which a trial court can determine a person's 'minimum reasonable needs.'" Diaz v. Diaz, 350 S.W.3d 251, 254-55 (Tex. App.—San Antonio 2011, pet. denied). Regarding whether appellee has investigated any opportunities for living arrangements after the sale of the family residence, the trial court is not required to determine whether a spouse seeking spousal support will be able to provide for her minimum reasonable needs at some point in the future. See Slicker v. Slicker, 464 S.W.3d 850, 863 (Tex. App.—Dallas 2015, no pet.). The trial court must only consider the requesting spouse's eligibility for maintenance at the time of the divorce. Id.
Next, appellant argues that appellee has sufficient assets to preclude her eligibility for maintenance because according to appellant, "[a]ppellee's share of the marital estate after property division, including the spouse's separate property, as divided and effectively in her possession upon the November 6, 2015 property division, exceeded $670,880.00." However, appellant has not taken into consideration, evidence of appellee's debts and living expenses that was before the trial court. Without further explanation from appellant regarding how the trial court abused its discretion, we are unable to reverse the judgment on this basis. See TEX. R. APP. P. 38.1(i).
Appellant includes an amount in this calculation he claims appellee will receive for the sale of the couple's homestead. However, there is no evidence that the home has been sold.
Next, appellant argues that appellee failed to provide evidence that she has exercised diligence in earning sufficient income to provide for her minimum reasonable needs during the almost four-years since she petitioned for divorce. However, the trial court in awarding spousal maintenance must consider many factors when determining whether to award spousal maintenance, and in this case the trial court relied on the bankruptcy court's findings of fact, which included the following: (1) appellee was forty-six in 2015; (2) appellee graduated from high school in 1987; (3) appellee has had to borrow money from her family to pay for her attorney's fees; (4) appellee was forced to drop out of "court reporting school" in 1989 due to a diagnosis of the autoimmune disease ulcerative colitis; (5) prior to this marriage, appellee obtained her real-estate license in the early 1990s; (6) appellee failed to pay the annual dues to the state of Texas and her real-estate license expired; (7) appellee does not have a degree; (8) appellee worked prior to marriage in retail sales; (9) since filing for divorce, appellee "has attempted to pursue business opportunities and to build a resume in order to 'support [her] children'"; (10) appellee married appellant in 1996 and they have been married for approximately nineteen years; (11) appellee quit her job in sales six or seven months after getting married to appellant; (12) appellee gave birth to the couple's first child approximately one year after the marriage; (13) at this time, the couple agreed that appellee would no longer work and that appellee's job would be a stay-at-home mom; (14) the couple subsequently had a second child; (15) from 2008 through 2012, the couple received $2,133,858.00 in gifts from appellant's father and appellant earned an aggregate amount of $1,392,258.00 in commissions and bonuses; (16) appellee "has virtually no earning capacity at this time"; (17) appellee has not been employed for approximately eighteen years; (18) there is a significant discrepancy in the parties' earning power; (19) appellee "has virtually no business and employment opportunities at this time"; (20) appellee "will have a much more difficult time than [appellant] in obtaining a job in the next few months, as she has been a "stay-at-home mother for the past 18 years and has not been able to develop any special skills during the time that she cared for the [c]hildren"; (21) "[t]here is no question that there is a wide disparity between [appellant's] earning ability and [appellee's] earning ability"; (22) appellee's "ability to generate income—at least an income that is similar in size to [appellant's]—is slim"; (23) "[t]here is no question that [appellee] will need financial support from [appellant] in the near future"; (24) appellee "will need to receive some financial support from [appellant] to help pay her own living expenses while she attempts to gain employment"; (25) as she has not worked in approximately eighteen years, appellee "will have difficulty generating any measurable income—at least in the near future"; (26) neither party has a significant separate estate; (27) "[t]here is no doubt that [appellee's] financial condition is much worse than [appellant's] financial condition" as appellant has a stable job earning a salary of at least $100,000.00 per year with a significant higher earning ability; and (28) appellee's home lacked water for about a month and a half because she could not afford to pay $1,600 to fix a water pump.
These are not the only factors considered by the trial court.
As set out above, appellee has little work experience and did not have any vocational training during her marriage as the couple agreed that her job was to stay at home with the children. Appellee testified that she has applied for several positions with local politicians and that she has in fact worked for a candidate's campaign part-time. In addition, appellee testified that she provided the voice for some commercials for a "Supreme Court" candidate. Appellee stated, "I was a robocall lady" and explained that she "got paid a little bit for that." Appellee testified that she worked for Houston Can Academy and was "paid for getting . . . the golf teams for their golf tournament." According to appellee she has an upcoming job with a state representative paying $100 a day. In addition, appellee stated that she will "serve as election judge every time the primaries and election comes up" and she will earn $230 for doing so. However, despite her efforts to acquire a high paying job appellee has been unable to do so possibly due to her lack of experience and training. Appellee stated that she has interviewed for several positions. In addition, appellee has sought loans from family to make payments. In addition, the bankruptcy court found that "[s]ince filing for divorce, [appellee] has attempted to pursue business opportunities and to build a resume in order to support her children." We conclude there is sufficient evidence that appellee exercised diligence in earning sufficient income. See In re Marriage of Eilers, 205 S.W.3d 637, 646 (Tex. App.—Waco 2006, pet. denied) (concluding that the wife overcame presumption against spousal maintenance because evidence that she had a low paying job and that she had explored other possible jobs in the vicinity provided sufficient evidence of diligence); Arellano v. Arellano, No. 01-16-00854-CV, 2018 WL 284333, at *4 (Tex. App.—Houston [1st Dist.] Jan. 4, 2018, no pet.) (mem. op.) (determining that the trial court did not abuse its discretion in concluding that wife exercised diligence in earning an income to meet her reasonable needs because she worked in a restaurant then at a baby store and she searched for better jobs but lacked the educational background). The trial court did not abuse its discretion on this basis. We overrule appellant's first issue.
By a sub-issue to his first issue, appellant contends that the trial court abused its discretion in awarding $3,400 per month in spousal maintenance and for an excessive period. Appellee responds that four years of spousal maintenance is within the statutory period allowed for maintenance and that the trial court calculated the amount of spousal maintenance based not only on appellant's salary of $100,000 but also included gifts that he received from his father and bonuses from his employer in the amount of $100,000.
Section 8.054 provides that the trial court may not order maintenance that remains in effect for more than five years after the date of the order if the spouses were married less than ten years or the spouses were married for at least ten years but not more than twenty years. TEX. FAM. CODE ANN. § 8.054 (West, Westlaw through 2017 1st C.S.). Here, the parties were married for nineteen years, and the trial court awarded spousal maintenance for four years. Therefore, we see no abuse of discretion.
The bankruptcy court found that appellant's salary is $100,000 and that he would not be entitled to the $100,000 bonuses he had received in the past due to a change in his employment. However, the bankruptcy court found that appellant had received $639,406 in gifts from his father in 2010, $399,732 in gifts from his father in 2011, and $565,000 in gifts from his father in 2012. Thus, according to the bankruptcy court's findings, appellant received $2,133,858 in gifts from his father from 2008 through 2013.
Section 8.055 of the family code sets out that a trial court may not order maintenance that requires the obligor to pay more than the lesser of $5,000 or twenty percent of the spouse's average monthly gross income. TEX. FAM. CODE ANN. § 8.055 (West, Westlaw through 2017 1st C.S.). Gross income includes 100 percent of all wage and salary income and, in pertinent part, all other income being received including gifts. Id. Appellant does not explain why the trial court could not consider the gifts that he received from his father in calculating the amount of spousal maintenance, and section 8.055 specifies that gifts are included in calculation of gross income. Accordingly, because there is some evidence supporting the trial court's award of $3,400 in spousal maintenance, we cannot conclude that the trial court abused its discretion. We overrule appellant's sub-issue to his first issue.
III. TEMPORARY MAINTENANCE
By his second issue, appellant contends that the trial court abused its discretion in failing to consider his motion to terminate temporary spousal maintenance after the bankruptcy court divided and distributed the entire community estate. Specifically, appellant argues that the purpose of temporary spousal maintenance no longer existed once the bankruptcy court divided the community property of the parties. Without citation to the record or explanation of the pertinent facts, appellant complains that the trial court refused to hear his motion to reduce spousal support and it "circumvented the division of property as set forth in the" bankruptcy court's division of property. Appellant argues, without citation to applicable authority, that "there was no status quo pending division of the community property and [a]ppellee could no longer claim financial dependence—her separate property had been partitioned from the community, and the community property had been divided between the parties." Appellant's complaint, as we understand it, appears to center on the trial court's refusal to consider his motion to terminate temporary spousal maintenance after the bankruptcy court divided the marital estate. Appellant has not cited any authority requiring for the trial court to consider his motion under these circumstances, and we have found none. See TEX. R. APP. P. 38.01(h), (i). Accordingly, we cannot reverse the judgment on this basis. We overrule appellant's second issue.
Moreover, appellant has not explained how the trial court's refusal to consider his motion constituted reversible error.
We note that appellee responds that appellant has waived this issue by not making his complaint in the trial court and requesting for the trial court to apply the "overpayments" to other monies owed.
IV. DRUG TESTING
By his third issue, appellant contends that "[t]here was no evidence of substantive and probative character to support the trial court's variance from a standard possession order to the requirement that [a]ppellant undergo drug testing prior to unsupervised visitation with his children." Specifically, appellant argues that the record only contains evidence that he only consumed marijuana legally in Colorado and there is no evidence that appellant endangered his children because of his purported drug use.
Generally, wide latitude is given to a trial court in determining visitation matters. In re C.P.J., 129 S.W.3d 573, 576 (Tex. App.—Dallas 2003, pet. denied). And, we will not reverse the trial court's decision unless it appears from the record as a whole that the trial court abused its discretion. Id. (citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982)). In family law cases, legal sufficiency is not an independent ground of reversible error and instead is a factor that is considered under an abuse of discretion standard of review. Vardilos v. Vardilos, 219 S.W.3d 920, 921 (Tex. App.—Dallas 2007, no pet.). "To determine whether the trial [court] abused [its] discretion because the evidence is legally insufficient to support the decision, we consider whether the trial [court] (i) had sufficient evidence upon which to exercise [its] discretion and (ii) erred in [its] application of that discretion." Id.
Our review of the record indicates that appellant admitted that he used marijuana. Appellant testified that he has smoked marijuana because he likes it and that he has smoked it since he was fourteen years old. Appellant stated that marijuana "helps" with his acid reflux and helps him eat. When asked if he had a diagnosis from a doctor stating that the marijuana would help his acid reflux, appellant replied, "No, sir." In addition, appellee testified, without objection, that the children had informed her of appellant's drug use. Appellee also testified that appellant was a "consistent and habitual drug user." In its findings of fact, the bankruptcy court found as follows: "On several occasions during the marriage, [appellant] used steroids and smoked marijuana in the garage of the Parties' home when their children were present." Finally, the evidence shows that appellant's daughter found "marijuana wrappers" in appellant's car.
The evidence did not merely show that appellant only smoked marijuana in places where he claims that it is legal to do so as he argues. In addition, appellant cites no authority and we find none requiring the trial court to find that appellant endangered his children before the trial court could order appellant to submit to drug testing prior to unsupervised visitation. Nonetheless, the trial court may have determined that appellant's "consistent and habitual drug abuse" endangered the children's well-being. See In re A.M., 495 S.W.3d 573, 579-80 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) ("Because it significantly harms the parenting relationship, drug activity can constitute endangerment even if it transpires outside the child's presence."). Accordingly, we conclude that the trial court had sufficient evidence to exercise its discretion in ordering appellant to submit to drug testing. We overrule appellant's third issue.
V. CONCLUSION
We affirm the trial court's judgment.
s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice Delivered and filed the 26th day of April, 2018.