Opinion
NO. 03-15-00415-CV
03-09-2016
Sandra Kay Hargrove, Appellant v. Gary M. Hargrove, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
NO. 186,223-A, HONORABLE JOHN GAUNTT, JUDGE PRESIDINGMEMORANDUM OPINION
Sandra Kay Hargrove appeals from the trial court's order denying her petition for enforcement of the 2001 agreed divorce decree terminating her marriage to Gary M. Hargrove. Sandra challenges the trial court's determinations that the divorce decree awarded contractual alimony and that Gary had paid all ordered spousal maintenance. For the reasons that follow, we affirm the trial court's order.
Because the parties have the same last name, we refer to them by their first names.
BACKGROUND
Sandra and Gary were divorced in July 2001. The agreed final divorce decree provided as follows:
Spousal Maintenance (Alimony)
The Court finds that Petitioner has agreed to provide Spousal Maintenance to Respondent. IT IS THEREFORE ORDERED that Spousal Maintenance is paid as follows . . . GARY M. HARGROVE shall pay to SANDRA KAY HARGROVE the amount of $625.00, beginning thirty days after this Decree of Divorce is signed by the Court and continuing on the same day of each month thereafter for a period of thirty-six months.In 2003, acting pro se, Sandra filed suit to enforce this provision, alleging that Gary had not made all of the required payments. After Sandra failed to appear at the hearing, the case was reset several times and was ultimately dismissed in 2006 for want of prosecution. In 2010, Sandra filed a second suit, alleging that Gary owed her $7,403 in unpaid spousal maintenance payments. The trial court held a hearing in April 2011. After Sandra testified and offered two exhibits, the hearing was recessed. Following a number of resettings and failed mediation, the hearing was resumed in February 2015. Sandra completed her testimony, and Gary also testified. Sandra's evidence included summaries of Gary's payments, and Gary referred to carbon copies of checks during his testimony, but neither party offered into evidence any checks, deposit slips, bank statements, or other evidence of payments. The trial court entered an order denying Sandra's request for enforcement. Sandra requested and the trial court entered findings of fact and conclusions of law. The trial court found that the "spousal maintenance/alimony" ordered in the divorce decree was contractual alimony and that Gary had complied with the terms of the contractual alimony. This appeal followed.
Sandra asserted additional claims that are not part of this appeal.
Sandra did offer records relating to an IRA, which are not relevant to this appeal.
STANDARD OF REVIEW
We review a trial court's order on a motion for enforcement of a final decree of divorce under an abuse of discretion standard. Woody v. Woody, 429 S.W.3d 792, 797, 798 (Tex. App.—Houston [14th Dist.] 2014, no pet.); Gainous v. Gainous, 219 S.W.3d 97, 103 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). A trial court abuses its discretion when it acts unreasonably, arbitrarily, or without reference to any guiding rules or principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Under the abuse of discretion standard, legal and factual sufficiency of the evidence are not independent grounds of error but rather are relevant factors in assessing whether the trial court abused its discretion. Woody, 429 S.W.3d at 797; Razo v. Vargas, 355 S.W.3d 866, 870 (Tex. App.—Houston [1st Dist.] 2011, no pet.).
In a suit to enforce payments ordered in a divorce decree, "[t]he burden is on the movant seeking enforcement to prove the amount of arrearage due."In re A.L.S., 338 S.W.3d 59, 66 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (citing George v. Jeppeson, 238 S.W.3d 463, 474 (Tex. App.—Houston [1st Dist.] 2007, no pet.)); see In re M.M.S., 256 S.W.3d 470, 477 (Tex. App.—Dallas 2008, no pet.) (concluding that party moving for enforcement of health care payments met her burden of proof regarding bills respondent had failed to pay); In re T.J.L., 97 S.W.3d 257, 268 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (movant ex-wife had burden to establish ex-husband was in arrears on payment of expenses); see also Tex. Fam. Code § 9.001(c) (providing that in suit to enforce divorce decree, "the proceedings shall be as in civil cases generally"). "When a party attacks the legal sufficiency of an adverse finding on an issue on which she has the burden of proof, she must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue." Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam). To establish factual insufficiency on that issue, she must demonstrate that the trial court's adverse finding of fact is against the great weight and preponderance of the evidence. See id.
Sandra contends that Gary had the burden of establishing that he made the ordered spousal maintenance payments. She bases that contention on the rule that in a suit to enforce payment under a prior judgment, payment is an affirmative defense on which the defendant has the burden of proof. However, this is not a suit to recover on a prior judgment; it is a suit to obtain a money judgment based on Gary's alleged failure to make the payments ordered in the divorce decree. See Tex. Fam. Code §§ 9.001(a) (providing that party affected by divorce decree may request enforcement by filing suit to enforce), .010 (providing for remedy of reduction to money judgment when party does not receive payments of money as awarded in divorce decree). --------
The trial court does not abuse its discretion if it bases its decision whether to award arrearages on conflicting evidence and some evidence supports its decision. In re A.L.S., 338 S.W.3d at 66. "Consistent with the abuse-of-discretion standard that controls our review, we must defer to factual resolutions by the trial court that derive from conflicting evidence, as well as any credibility determinations that may have affected those resolutions . . . ." Id.; see McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986) (stating that trial court is "sole judge of the credibility of the witnesses and the weight to be given their testimony"). The trial court may believe one witness, disbelieve others, and resolve inconsistencies in any witnesses's testimony. McGalliard, 722 S.W.2d at 697; Seasha Pools, Inc. v. Hardister, 391 S.W.3d 635, 639 (Tex. App.—Austin 2012, no pet.). We may not substitute our judgment for that of the trial court merely because we reach a different conclusion. See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005) (legal sufficiency review); Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003) (factual sufficiency review); Westech Eng'g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 196 (Tex. App.—Austin 1992, no writ).
We review a trial court's conclusions of law de novo and will uphold the conclusions if the judgment can be sustained on any legal theory supported by the evidence. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); Hawkins v. Ehler, 100 S.W.3d 534, 539 (Tex. App.—Fort Worth 2003, no pet.). Although a trial court's conclusions of law may not be challenged for factual insufficiency, we may review the legal conclusions drawn from the facts to determine their correctness. City of Austin v. Whittington, 384 S.W.3d 766, 779 n.10 (Tex. 2012); BMC Software, 83 S.W.3d at 794. We may reverse a trial court's judgment only if its conclusions are erroneous as a matter of law. Condom Sense, Inc. v. Alshalabi, 390 S.W.3d 734, 749 (Tex. App.—Dallas 2012, no pet.); Thomas v. Cornyn, 71 S.W.3d 473, 485 (Tex. App.—Austin 2002, no pet.).
DISCUSSION
Because it is dispositive, we begin with Sandra's second issue. In that issue, Sandra challenges the trial court's finding of fact that Gary complied with the terms of the "contractual alimony as described [in] the Agreed Final Decree of Divorce," which is also subsumed in the trial court's conclusion of law that Gary "complied with the terms of the Final Decree of Divorce." As the party seeking to enforce the terms of the divorce decree, Sandra had the burden of proof. See In re A.L.S., 338 S.W.3d at 66; In re M.M.S., 256 S.W.3d at 477; In re T.J.L., 97 S.W.3d at 268; see also Woody, 429 S.W.3d at 797 (applying standard of review based on ex-wife's burden of proof on claim for unreimbursed medical expenses). Sandra testified that she did not receive all of the payments ordered and specified certain months in which she did not receive payment. She acknowledged having written a letter to the trial court in 2005 stating that Gary had paid the full amount "for 15 months, until he lost his job" but stated that one of the payments she credited to him in making that statement was actually a withdrawal from an IRA. She offered into evidence shorthand summaries of what she had been paid. These included a list of payment due dates and the amounts she received, which reflected total unpaid spousal maintenance in the amount of $7,403. Sandra also offered into evidence a chart listing next to each payment amount and date the evidentiary proof of payment, including cancelled checks, deposit slips, receipts for cash payment, and carbon copies of checks. The chart included a column for whether or not the payments were "Proven." For each payment for which the only evidence was a carbon copy of the check, the word "No" was listed in the "Proven" column. Sandra testified that in creating the chart and in reaching the total amount owed, she had not considered carbon copies alone to be proof of payment. These summaries reflected that some payments were late and/or were not for the full amount owed. They also showed that Gary continued to make payments past the 36-month court-ordered payment period. Sandra did not offer into evidence any of the underlying documentation—the cancelled checks, deposits slips, receipts for cash payment, or carbon copies of checks. She also disputed Gary's claim that he gave her $340 in 2005 to settle the dispute.
Gary generally denied Sandra's allegations. He acknowledged that he had not made all of the payments in full or on time but testified that he had continued to make payments past the date the last payment was due until "the entirety of the debt was liquidated." In his testimony, he relied on a binder of carbon copies of checks and testified that they "add up to be the correct amount," but he did not offer them into evidence. He testified that he had provided "everything" in 2005 to Sandra's prior attorney, but "[a]fter three moves and eight years," he could not find all the checks. Gary also described a prior hearing in which the trial court instructed him and Sandra to meet and work out what was owed. He stated that they left the courtroom and sat down together, he gave Sandra the checks and a calculator, and she concluded that he owed her $340. He further stated that they then drove to the bank, and that he withdrew $340 and gave it to Sandra. He explained that he did not hear from her anymore except for a few times when she asked to borrow money—other than during the current lawsuit.
In the absence of any documentary evidence of payment, the trial court was faced with only the contradictory testimony of the parties. As factfinder, the trial court was free to accept Gary's testimony and disregard Sandra's. See McGalliard, 722 S.W.2d at 696-97; Woody, 429 S.W.3d at 799 (trial court was free to accept ex-wife's testimony despite ex-husband's testimony that it was "an impossibility"); Graybar Elec. Co., v. LEM & Assocs., L.L.C., 252 S.W.3d 536, 544 & n.8 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (trial court was free to disbelieve testimony contradicted by other testimony and documents); Campbell v. Campbell, No. 01-10-00562-CV, 2011 Tex. App. LEXIS 4561, at *10-11 (Tex. App.—Houston [1st Dist.] June 26, 2011, no pet.) (mem. op.) (trial court was free to resolve conflicts in evidence as to value of property and accept ex-wife's valuation over that of ex-husband); Siddiqui v. Siddiqui, No. 14-07-00235-CV, 2009 Tex. App. LEXIS 1443, at *7 (Tex. App.—Houston [14th Dist.] Mar. 3, 2009, pet. denied) (mem. op.) (trial court was free to accept ex-wife's generalized testimony and disregard ex-husband's). The exhibits offered by Sandra were admitted only "as a shorthand summary of what [Sandra] thinks [Gary] owes her on alimony" and do not constitute independent, objective evidence. Sandra has not established Gary's nonpayment as a matter of law and has not demonstrated that the trial court's finding of fact that Gary had complied with the terms of the contractual alimony was against the great weight and preponderance of the evidence. See Francis, 46 S.W.3d at 242. Based on the only evidence before the trial court—the testimony of Sandra and Gary—we cannot conclude that the trial court erred in its conclusion of law that Gary complied with the terms of the divorce decree or that it abused its discretion in denying Sandra's petition for enforcement of the divorce decree's provision for payment of spousal maintenance. See Woody, 429 S.W.3d at 799 (trial court did not abuse discretion in denying motion to enforce divorce decree where ex-husband did not demonstrate that implied finding was against great weight and preponderance of evidence); Gainous, 219 S.W.3d at 103; In re Marriage of Crook, No. 05-09-00724-CV, 2010 Tex. App. LEXIS 3134, at *4-5 (Tex. App.—Dallas Apr. 29, 2010, no pet.) (mem. op.) (trial court did not abuse discretion in denying motion to enforce property division where movant ex-husband did not establish that he attempted to retrieve property or that ex-wife prevented him from taking possession); Siddiqui, 2009 Tex. App. LEXIS 1443, at *7-8 (trial court did not abuse discretion in denying motion for enforcement where movant ex-husband did not offer into evidence documents relied on and trial court resolved conflict in testimony in ex-wife's favor). Accordingly, we overrule Sandra's second issue.
In her first issue, Sandra argues that the trial court erred in determining that the payments Gary was ordered to make were contractual alimony and not spousal maintenance. Because we have concluded that the trial court did not err in concluding that Gary has met his payment obligation under the terms of the divorce decree or abuse its discretion in denying the petition for enforcement, any error in the trial court's classification of the obligation would be harmless. See Tex. R. App. P. 44.1(a)(1), (2) (providing that for judgment to be reversible, appellant must show that error probably caused rendition of improper judgment or probably prevented appellant from properly presenting case on appeal); Ford Motor Co. v. Castillo, 279 S.W.3d 656, 667 (Tex. 2009) (to obtain reversal, complaining party must show harmful error under Rule 44.1(a)). Therefore, we do not reach Sandra's first issue. See Tex. R. App. P. 47.4 ("If the issues are settled, the court should write a brief memorandum opinion no longer than necessary to advise the parties of the court's decision and the basic reasons for it.").
CONCLUSION
Having overruled Sandra's second issue, we affirm the trial court's order denying her petition for enforcement of the divorce decree.
/s/_________
Melissa Goodwin, Justice Before Justices Puryear, Goodwin, and Field Affirmed Filed: March 9, 2016