Opinion
No. 02-04-106-CV
Delivered: January 12, 2006.
Appeal from the 322nd District Court of Tarrant County.
Panel A: CAYCE, C.J.; HOLMAN and GARDNER, JJ.
MEMORANDUM OPINION
See TEX. R. APP. P. 47.4.
Appellant Grover C. Gibson appeals the trial court's property division in this divorce case. In two points, appellant contends that the trial court erroneously awarded appellee Lehoma Joyce Gibson property owned by a limited partnership in which appellant held a community property partnership interest and that the trial court erroneously denied him due course of law by failing to enter a judgment dividing the property until two years and eight months after trial. We affirm.
In his first point, appellant contends that the trial court abused its discretion by awarding appellee property owned by GCG Partners, L.P., a limited partnership that appellant and his son Glen formed for investment purposes. The evidence at trial showed that appellant owned a fifty-percent community property interest in the limited partnership, and Glen owned the other fifty-percent interest. The partnership's assets consisted mainly of real property worth approximately $373,000 and $15,000 in cash and securities. In its final decree, the trial court awarded the following to appellee:
Appellant's interest consisted of a one-percent interest as a general partner and a forty-nine percent interest as a limited partner.
With respect to the limited partnerships [sic] known as GCG Partners, L.L.P. [sic], [appellee] is awarded all of the community interest including the partnership interest in the real estate located at 5900 Lovell, Fort Worth, Texas, including but not limited to the note payable dated December 20, 1993, in the amount of $160,000.00 payable to [appellant] to the parties from GCG, all furniture, fixtures, machinery, equipment, inventory, cash, receivables, accounts, goods, and supplies; all personal property used in connection with the operation of the business; and all rights and privileges, past, present, or future, arising out of or in connection with the operation of GCG Partners. [Emphasis supplied.]
Thus, the trial court's order purported to award appellee not only appellant's community property partnership interest in GCG Partners, but also an interest in specific partnership property. The trial court also ordered appellant to vacate the building at 5900 Lovell on or before January 9, 2004.
Appellant contends in his brief that the trial court erred by doing so, but requests no relief other than a new property division.
The limited partnership agreement of GCG Partners provides that "[a]ll property owned by the [p]artnership . . . shall be deemed to be owned by the [p]artnership as an entity; and no [p]artner, individually, shall have ownership of such property." In addition, the Texas Revised Limited Partnership Act (TRLPA) provides that a partner has no interest in specific limited partnership property. TEX. REV. CIV. STAT. ANN. art. 6132a-1, § 7.01 (Vernon Supp. 2005). Under both the limited partnership agreement and TRLPA, the community interest in GCG Partners was personal property. Id.
A trial court may not award specific partnership assets to a nonpartner spouse. See Lifshutz v. Lifshutz, 61 S.W.3d 511, 518 (Tex.App.-San Antonio 2001, pet. denied). Only a partner's partnership interest — the right to receive a share of the profits and surpluses from the partnership — is subject to division in a divorce. Young v. Young, 168 S.W.3d 276, 287 (Tex.App.-Dallas 2005, no pet.). Accordingly, although the trial court's award of appellant's entire community property partnership interest in GCG Partners to appellee was permissible, the trial court erred by purporting to award specific partnership property to appellee.
Appellant's brief does not address how he was harmed by the trial court's award of the partnership property to appellee. See TEX. R. APP. P. 38.1(h) (providing that briefs must contain clear and concise argument for contentions made, with appropriate citations to authorities and record). Nevertheless, after having reviewed the record, we hold that the trial court's mischaracterization of the property was not "of such magnitude that it affects the just and right division of the community estate." Boyd v. Boyd, 131 S.W.3d 605, 617 (Tex.App.-Fort Worth 2004, no pet.). After hearing appellant's motion for new trial, in which appellant complained about the trial court's award of the partnership property to appellee, the trial court stated,
. . . I want the record to reflect that I did find fault grounds, that this is a disproportionate division. It was intentional on my part and my decision. I found fault grounds, and I had made provisions during the pendency. One of the issues in the case was her [appellee's] ability to live.
One of the things that the parties had done when they owned this Candle Decor Company [another business formerly owned by the community] is they didn't pay any Social Security taxes. So she [appellee] didn't have any. I think she was going to get about 300 a month for Social Security. And the other thing is that [appellant] was able to convert his military retirement pay into a disability pay, which made it not subject to division so that it would have given her any kind of monthly income.
The bottom line is I did the best I could with what I had to work with. I was trying to keep the lady alive during the pendency. And I found fault in the breakup of the marriage. . . .
In its findings of fact, the trial court found that appellant had committed fraud on the community estate.
The trial judge stated on the record that he intended to make a disproportionate division based on his finding that appellant was at fault in the breakup of the marriage. See, e.g., Wilson v. Wilson, 44 S.W.3d 597, 601 (Tex.App.-Fort Worth 2001, no pet.) (holding that trial court may consider fault, among other factors, in dividing marital property). Appellant has not challenged the trial court's fault finding. The trial court's statements on the record indicate that it awarded the property to appellee to provide her with a future income stream and that the trial court intended for appellant to receive a disproportionate share of the community estate; thus, it appears that the trial court was not concerned that its mischaracterization of the limited partnership's property resulted in appellant receiving less of the community estate. See Pace v. Pace, 160 S.W.3d 706, 716 (Tex.App.-Dallas 2005, pet. denied) ("When the trial court finds that its property division is just and right regardless of any mischaracterization of the property, even though the value of the property mischaracterized is great, the mischaracterization does not affect the trial court's just and right division of the property."). Moreover, Glen, the only other partner, testified that he had no objection to his mother "being a partner" in the building. Because appellant has not demonstrated that the trial court's mischaracterization of the limited partnership's property affected the just and right division of the community estate, we overrule appellant's first point.
In his second point, appellant contends that the trial court denied him due course of law by failing to enter a judgment dividing the property until two years and eight months after trial. According to appellant, the community estate "changed greatly in value" during this delay because he and his son Glen both withdrew from G. Gibson Associates, L.P., an accounting business appellant owned with Glen. The trial court awarded the community partnership interest in the limited partnership to appellant. Thus, appellant contends that by waiting so long to divide the property, the trial court awarded him a significantly disproportionate share of the parties' community estate.
The parties tried the case to the court on September 13, 2000. After the close of evidence, the trial court took the case under advisement, stating that temporary orders would remain in effect. The trial court did not sign a judgment granting the divorce and dividing the property until November 3, 2003. While the case was pending, appellant filed two motions to reopen the evidence, alleging that there had been a material and substantial decrease in the assets of the limited partnership. In addition, he filed a motion to enter final judgment, as well as a motion for new trial, on the same grounds.
To obtain a reversal for delay in rendering judgment, an appellant has the burden to prove harm resulting from the delay. Lloyd's of London v. Walker, 716 S.W.2d 99, 101 (Tex.App.-Dallas 1986, writ ref'd n.r.e.). According to appellant, by the time the trial court entered a judgment dividing the property, the limited partnership did not exist and had no value; therefore, the property division was no longer just and right when the trial court entered its order.
We hold that appellant has not shown that he was harmed by the trial court's delay in entering judgment. As we have previously stated, after he signed the decree, the trial judge stated on the record that he intended to make a disproportionate division based on his finding that appellant was at fault in the breakup of the marriage. See, e.g., Wilson, 44 S.W.3d at 601. That the value of the property awarded to appellant had decreased between the time of trial and the date the trial court entered judgment does not show that appellant was harmed in light of the trial court's findings that appellant was at fault in the breakup of the marriage and its statement on the record that it had intended to make a disproportionate award in the first place. Accordingly, we overrule appellant's second point.
Having overruled both of appellant's points, we affirm the trial court's judgment.
We also deny appellee's pending motion to dismiss the appeal.