Opinion
No. 05-02-00802-CV.
Opinion Filed June 24, 2003.
Appeal from the 366th Judicial District Court, Collin County, Texas, Trial Court Cause No. 366-53681-00.
Affirmed in Part, Reversed and Remanded in Part.
OPINION
In this appeal from a final decree of divorce, John Paul Deltuva (John) presents six issues concerning his child support obligations, the division of the marital estate, the award of spousal maintenance, and the trial court's failure to file findings of fact and conclusions of law. Barbara Deltuva (Barbara) presents two cross points, contending the trial court erred by failing to find she suffered actual damages as a result of John's intentional infliction of emotional distress and failing to order John to pay all of her attorney's fees.
We reverse and remand that portion of the divorce decree requiring John to pay spousal maintenance for four years because the family code does not, under the facts of this case, permit spousal maintenance for a period greater than three years. We resolve John's issue concerning the trial court's failure to file findings of fact and conclusions of law against him because John's request for findings of fact and conclusions of law was untimely. We resolve John's remaining issues against him because he fails to demonstrate the trial court abused its discretion concerning his child support obligations, the division of the marital estate, and the award of spousal maintenance. We decline to address Barbara's cross points.
Failure to Enter Findings of Fact and Conclusions of Law
In his sixth issue, John complains the trial court erred when it failed to file findings of fact and conclusions of law. John asserts the failure prevents him from effectively appealing the divorce decree. Barbara contends John's request for findings of fact and conclusions of law was untimely.
The final decree of divorce was signed February 18, 2002. John was required to file his request for findings of fact and conclusions of law by Monday, March 11, 2002. See Tex. Rs. Civ. P. 4, 296. John's request bears a March 12, 2002 file mark. Therefore, John's request was not timely filed. See Stangel v. Perkins, 87 S.W.3d 706, 709 (Tex.App.-Dallas 2002, pet. denied). We resolve John's sixth issue against him.
Amount of Child Support
In his first issue, John contends the evidence is legally and factually insufficient to support the provision in the final decree of divorce ordering him to pay $1,800 each month for child support. John claims the evidence presented at trial was insufficient to prove his income and, as a result, the trial court abused its discretion in setting any amount of child support.
We review a child support order under an abuse of discretion standard. In re D.S., 76 S.W.3d 512, 516 (Tex.App.-Houston [14th Dist.] 2002, no pet.). A court abuses its discretion when it rules arbitrarily, unreasonably, or without regard to guiding rules or principles. McGuire v. McGuire, 4 S.W.3d 382, 384 (Tex.App.-Houston [1st Dist.] 1999, no pet.). Under the abuse of discretion standard, legal or factual sufficiency of the evidence are not independent grounds for review, but are relevant factors in assessing whether the court abused its discretion. In re A.D.H., 979 S.W.2d 445, 446 (Tex.App.-Beaumont 1998, no pet.). We view the evidence in the light most favorable to the order and indulge every presumption in favor of the order. McGuire, 4 S.W.3d at 384. If some probative and substantive evidence supports the order, there is no abuse of discretion. Id.
The record reflects John owned his own optical business and that he paid himself approximately $120,000 a year in salary over the five years leading up to the divorce proceedings. John testified that his business had been declining over the last few years because of the advent of corrective laser surgery and the retirement of several doctors who referred clients to him. John also testified he could not consistently keep his shop open because of heart problems, court appearances, and being jailed twice for contempt of court. As a result, he could not count on drawing a salary every month. However, during the pendency of the divorce, John used money from his business to pay personal expenses and debts in lieu of salary. Moreover, many of the impediments to his earning capacity — his health problems, incarceration, and court proceedings — would be behind him after the divorce was final. A surgical procedure cured his heart problems, and court proceedings would no longer consume as much of his time once the divorce decree was entered.
The jury found that John was capable of earning $125,000 a year. This amount is consistent with his gross income over the five years preceding the divorce litigation. Therefore, there is some evidence to support the jury's finding that John was capable of earning $125,000 a year.
Under the jury's findings and the family code, John has monthly net resources greater than $6,000. See Tex. Fam. Code Ann. §§ 154.061, .062 (Vernon 2002). Under the family code guidelines, an obligor with net monthly resources of $6,000 or more and three children to support should, at a minimum, pay as child support thirty percent of $6,000, or $1,800. See id. §§ 154.125, .126. Thus, it appears the trial court followed the family code guidelines when setting $1,800 as the amount of John's monthly child support obligation. Under the family code, a child support order entered pursuant to the guidelines is presumed correct and reasonable. Id. § 154.122(a) (Vernon 2002); McGuire, 4 S.W.3d at 388. We conclude John has failed to show the court abused its discretion when it set the amount of his child support. We resolve his first issue against him.
Future Reductions in Child Support
In his second issue, John contends the trial court erred by ordering him to pay a fixed amount of child support regardless of the number of children he is obligated to support. John asserts he should have his obligation reduced as each child reaches the age of eighteen and leaves high school.
Absent a contractual agreement, a court cannot require support for children who have left high school and are over the age of eighteen. See Tex. Fam. Code Ann. § 154.001(a)(1) (Vernon 2002); Burtch v. Burtch, 972 S.W.2d 882, 886 (Tex.App.-Austin 1998, no pet.). However, when divorced parents have more than one child, the duty to pay the amount of child support specified in the child support order does not terminate when one child reaches majority unless the decree so provides. See Gross v. Gross, 808 S.W.2d 215, 219 (Tex.App.-Houston [14th Dist.] 1991, no writ). Instead, the obligor has the burden to move for a modification of the order. Id.
In this case, the divorce decree does not provide for a reduction in child support as John's children reach the age of eighteen and leave high school. However, while John has shown that there is a possibility that future events might cause him to pay greater child support than is mandated by the guidelines, this possibility is not sufficient to show that the trial court abused its discretion when it entered the order. John does not provide us with any authority holding that the trial court's failure to include a provision in a child support order that automatically reduces an obligor's child support payments when one of the obligor's children reaches majority is an abuse of discretion, and we have found none. Cf. Friedman v. Friedman, 521 S.W.2d 111, 114 (Tex.Civ.App.-Houston [14th Dist.] 1975, no writ) (trial court's broad discretion in determining child support includes the determination of the amount by which such support should be reduced upon one of several children reaching age of eighteen). The trial court could have reasonably concluded that any reduction in the child support John was obligated to pay as his children reach majority should be determined under the facts existing at the time each of his children reaches majority. Therefore, we conclude John has not shown the court abused its discretion in this regard, and we resolve his second issue against him.
Division of Marital Estate
In his third issue, John complains the trial court erred when it divided the marital estate in the absence of evidence placing values on each item in the estate. John contends that, without values assigned to the items, the court could not determine whether the property division was just and right. Therefore, John asserts, the trial court abused its discretion when dividing the marital estate.
In a divorce proceeding, the trial court shall divide the community estate in a "just and right manner," having due regard for the rights of each party. See Tex. Fam. Code Ann. § 7.001 (Vernon 1998); Phillips v. Phillips, 75 S.W.3d 564, 567 (Tex.App.-Beaumont 2002, no pet.). Division of the community estate need not be equal, and the trial court has broad discretion in making the division. Phillips, 75 S.W.3d at 567. A trial court may consider many factors in making the division, including fault in the breakup of the marriage, disparity of incomes or of earning capacities, relative financial conditions and obligations, custody of the children, and waste of community assets. See Zieba v. Martin, 928 S.W.2d 782, 790-91 (Tex.App.-Houston [14th Dist.] 1996, no pet.). We presume the trial court properly exercised its discretion, and we will not disturb its decision unless it clearly abused its discretion. Phillips, 75 S.W.3d at 567.
Section 6.771 of the family code requires the trial court, upon request, to make findings of fact and conclusions of law concerning the value of the community estate's assets on which disputed evidence has been presented. Tex. Fam. Code Ann. § 6.771(a)(2) (Vernon Supp. 2003). The request must conform to the Texas Rules of Civil Procedure. Id. § 6.771(c). While John filed a request for findings of fact and conclusions of law, we concluded in our resolution of his sixth issue that his request was untimely. Therefore, John was not entitled to findings of fact and conclusions of law under section 6.771.
Absent a valid request for findings of fact and conclusions of law, the trial court is not required to make findings on the individual values of the property being divided. Lifshutz v. Lifshutz, 61 S.W.3d 511, 515 (Tex.App.-San Antonio 2001, pet. denied). Moreover, when a party does not provide values for property to be divided, that party may not complain on appeal that the trial court lacked sufficient information to properly divide the property. Vannerson v. Vannerson, 857 S.W.2d 659, 670 (Tex.App.-Houston [1st Dist.] 1993, writ denied).
In this case, the trial court did not make findings regarding the value of every item in the marital estate. John does not direct us to any portion of the record demonstrating he tried to provide a value for the unvalued items in the parties' inventories, and we cannot find any such portion. Because John did not provide these values, he may not complain that the trial court had insufficient information to divide the marital estate in a just and right manner. Id. Moreover, in the absence of these values, John cannot show the trial court did not make a just and right division of the marital estate. Accordingly, we resolve John's third issue against him.
Award of Spousal Maintenance
In his fourth issue, John contends the trial court erred when it awarded Barbara spousal maintenance because there was no evidence to support the award. John contends Barbara's earning capacity and the monies awarded to her in the divorce are sufficient to meet her minimum reasonable needs for the next five years without his assistance.
The purpose of spousal maintenance is to provide temporary and rehabilitative support for a spouse whose ability to support herself has eroded over time while engaged in homemaking activities and whose capital assets are insufficient to provide support. O'Carolan v. Hopper, 71 S.W.3d 529, 533 (Tex.App.-Austin 2002, no pet.). The trial court may, in its discretion, award spousal maintenance only if the party seeking maintenance meets specific eligibility requirements. See Tex. Fam. Code Ann. § 8.051 (Vernon Supp. 2003); Pickens v. Pickens, 62 S.W.3d 212, 214-15 (Tex.App.-Dallas 2001, pet. denied). When divorce is sought in a marriage lasting ten years or more, a spouse may request spousal maintenance if she lacks sufficient property to meet her minimum reasonable needs and cannot support herself due to insufficient earning capability. Pickens, 62 S.W.3d at 215. Determining the spouse's minimum reasonable needs is a fact-specific determination done on a case-by-case basis. Amos v. Amos, 79 S.W.3d 747, 749 (Tex.App.-Corpus Christi 2002, no pet.). We review the trial court's decision to award spousal maintenance under an abuse of discretion standard. Id.
The record reveals Barbara is a college graduate and had worked in the commercial real estate field before marrying John. During the Deltuva's seventeen-year marriage, Barbara's role was to be a homemaker. During the pendency of the divorce, Barbara worked part-time at a retail store and earned her realtor's license. At the time of trial, however, Barbara had only managed to sell one house. Barbara estimated it would take at least one year for her to get her real estate business "rolling." The jury found Barbara had an earning capacity of $2,083 a month.
The Deltuva's house was sold during the divorce proceedings, and the sale proceeds were deposited into the trial court's registry. Much of that money was used to pay community debts. The trial court awarded Barbara $22,293 to compensate her for community property John destroyed after being served with divorce papers.
John does not dispute that Barbara's monthly expenses totaled $4,840. Based on her gross earning capacity of $2,083 per month, she faced a significant monthly shortfall. While Barbara received the majority of the marital estate, the court could have reasonably concluded that her funds would be exhausted before her earnings matched her reasonable minimum monthly expenses. Therefore, we cannot conclude the court's decision to order John to pay Barbara $650 each month in spousal maintenance was an abuse of discretion. See Limbaugh v. Limbaugh, 71 S.W.3d 1, 15 (Tex.App.-Waco 2002, no pet.). Accordingly, we resolve John's fourth issue against him.
Duration of Spousal Maintenance
In his fifth issue, John contends the trial court erred by ordering him to pay spousal maintenance for four years when the applicable statute mandates spousal maintenance should continue for only three years. John also contends we should render judgment that he is obligated to pay spousal maintenance for only one year, asserting the evidence demonstrates Barbara would only need maintenance for one year. Barbara concedes the trial court erred, but contends the error is typographical, and prays we "affirm" the spousal maintenance "for three years."
Subject to exceptions not applicable to the instant case, spousal maintenance may not last more than three years after the date of the order imposing the maintenance. See Tex. Fam. Code Ann. § 8.054 (Vernon Supp. 2003). As stated above, we review the award of spousal maintenance under an abuse of discretion standard. Pickens, 62 S.W.3d at 214. A trial court abuses its discretion when it fails to apply the law correctly. Id.
Here, the trial court ordered a period of spousal maintenance greater than allowed by the family code. Therefore, the court abused its discretion by awarding spousal maintenance for a period of four years. However, we decline the parties's requests that we modify the duration of the spousal maintenance. We do not have sufficient evidence before us to fix the period of spousal maintenance. Barbara directs us to no portion of the record demonstrating she required spousal maintenance for three years or showing that the ordered four year period of spousal maintenance was a typographical error. The portion of the record John relies on to support his claim that Barbara only required a year of spousal maintenance does not support his contention. John points to Barbara's testimony that it would take at least one year for her real estate business to get "rolling." However, this testimony does not establish through uncontroverted evidence that Barbara's real estate business would be generating sufficient money to meet her minimum reasonable needs after one year. Without undisputed evidence on the length of time Barbara would require spousal maintenance, we cannot determine what period of spousal maintenance the trial court should have ordered. Therefore, we will not modify the judgment.
We resolve John's fifth issue in his favor. We reverse that portion of the final decree of divorce providing for four years of spousal maintenance and remand the case for further proceedings on the issue of the duration of spousal maintenance.
Barbara's Cross Points
In her brief, Barbara presents two cross points, complaining the trial court erred by failing to find she suffered actual damages as a result of John's intentional infliction of emotional distress and failing to order John to pay all of her attorney's fees. We will not consider Barbara's cross points because she failed to file a notice of appeal and fails to show good cause why she did not file a notice of appeal. See Tex.R.App.P. 25.1; Richardson Indep. Sch. Dist. v. GE Capital Corp., 58 S.W.3d 290, 292 (Tex.App.-Dallas 2001, no pet.) (appellate court may not grant party greater relief than given by trial court when party fails to file a notice of appeal, absent a showing of good cause).
Conclusion
We reverse the portion of the final decree of divorce providing for spousal maintenance through 2005 and remand the case for further proceedings. In all other respects, we affirm the final decree of divorce.