Opinion
No. 05-14-00613-CV
06-01-2016
IN THE MATTER OF THE MARRIAGE OF LISA MARIE HAMMETT AND JAMES L. HAMMETT AND IN THE INTEREST OF M.A.H., A CHILD
On Appeal from the 417th Judicial District Court Collin County, Texas
Trial Court Cause No. 417-51726-2011
MEMORANDUM OPINION
Before Justices Francis, Lang-Miers, and Myers
Opinion by Justice Myers
Appellant James L. Hammett appeals the trial court's "Final Decree of Divorce" concerning his marriage to appellee Lisa Marie Hammett. In four issues, appellant contends the trial court (1) abused its discretion by awarding to appellee a money judgment for over $86,000 as part of the division of the community estate because there was legally insufficient evidence to support some of the credits awarded to appellee in the final decree; (2) abused its discretion because sick leave is not divisible as a matter of law and appellee is not entitled to immediate payment for leave based on its pre-tax value; (3) abused its discretion because there is no evidence to support using any date other than the date of divorce, May 4, 2012, for dividing assets; and (4) the final decree should be revised to reflect the correct amount of attorney's fees awarded to appellee. Appellee concedes issues 1, 2, and 4, and brings a cross-issue alleging there is legally insufficient evidence to support the amount awarded to appellant in the decree for living expenses paid after trial. Appellee's cross-issue also alleges legally insufficient evidence concerning appellant's "2012 IRS refund or any 'MHQ payments' made after date of trial," and "no evidence establishing a disparity of $2,757.00 in the parties' personal property as awarded by the decree." We reverse and render in part, affirm in part, and modify and affirm in part.
BACKGROUND AND PROCEDURAL HISTORY
James and Lisa Hammett were married in 1985 and sued each other for divorce in 2011. For all but three months of their marriage, appellant worked for the Federal Deposit Insurance Corporation. After pretrial hearings, the case was tried to the court over three days during April and May of 2012. At the conclusion of trial, on May 4, 2012, the trial court announced it was orally granting the parties a divorce but taking all other matters, including the division of property, under advisement.
On August 2, 2012, the trial court sent an email to the parties informing them it was dividing the marital estate disproportionately in appellee's favor, 53 percent to appellee and 47 percent to appellant, based on disparate earning potential (except for appellant's federal pensions, which would be divided 50/50). However, the parties were unable to reach agreement on the terms of a personal property division or a decree effectuating what the court's August 2, 2012 email described as its "big picture" ruling on the division of the estate.
On March 27, 2013, the trial court appointed an arbitrator to consider the competing motions to enter and finalize the language of the decree under the court's ruling. The order stated "that the arbitration of these orders will not affect or prohibit either party from seeking an appeal in this cause, or act as a waiver of error as to any issue decided by the arbitrator." The arbitrator issued three separate findings and awards. The awards addressed several issues not discussed during the trial, such as appellee's post-trial living expenses purportedly paid by appellant, appellant's 2011 and 2012 annual bonuses, and his accrued annual and sick leave. The arbitrator also considered additional attorney's fees claimed by appellee. The arbitrator ultimately determined that the proper date for valuation of all assets was August 2, 2012, the date of the trial court's "big picture" email.
The trial court resolved all of the property matters and signed the final decree on May 6, 2014. In that decree, the court declared the parties divorced on the grounds of insupportability. The trial court also issued separate orders regarding the division of pension benefits, including a thrift savings plan order (TSPO) and qualified domestic relations order (QDRO). The TSPO and QDRO orders awarded appellee benefits accumulated as of August 2, 2012. In the final decree, the trial court awarded appellee a money judgment in the amount of $86,443.62 from funds accumulated in a joint Schwab investment account. The award was based on a series of financial credits and offsets between the parties, such as appellee's 53 percent share of appellant's accrued sick leave, annual leave, bonuses, and other items "as of 8/2/12," as well as reimbursement to appellant for living expenses he paid "on and after 4/1/13." The various offsets and credits are set forth in an "Exhibit A" attached to the final decree, and are reproduced below exactly as they appear in the decree:
Amounts owed by James L. Hammett to Lisa Mark Hammett
| $ 3,603.94 | 53% of bonus received after date of filing in 2011 |
| $ 1,015.48 | 53% of bonus received as of 8/2/12 in 2012 |
| $ 9,937.40 | 53% of accrued sick leave as of 8/2/12 (pre-tax dollars) |
| $ 47,893.43 | 53% of accrued annual leave as of 8/2/12 (pre-tax dollars) |
| $ 86,285.00 | Attorney fees as of 5/4/12 |
| $ 3,599.92 | 53% of 7/12 of James' IRS refund for 2012 = 30.92% of$11,644.00 |
|---|---|
| $152,335.17 | Total due to Lisa Marie Hammett by James L. Hammett |
Amounts owed by Lisa Marie Hammett to James L. Hammett
| $62,287.63 | Living expenses reimbursement on and after 4/1/13 |
| $ 2,757.00 | Offset due to equalize division of personal property |
| $ 188.92 | 47% of 7/12 of Lisa's IRS refund for 2012 = 27.42% of $689.00 |
| $ 470.00 | 47% of the MHQ payments received August 2012-May 2013(10×$100.00 = $1000.00) |
| $ 188.00 | 47% of the MHQ payments received July, Aug., Sept., Oct.,2013 (4 × $100.00 = $400.00)MHQ - no payments in June, Nov., Dec., 2013, no payments inJanuary-March, 2014. |
|---|---|
| $65,891.55 | Total due to James L. Hammett by Lisa Marie Hammett |
Appellant took issue with the above awards for appellee and filed a motion to modify the judgment or, in the alternative, for new trial, which was denied by written order. He also requested findings of fact and conclusions of law. Appellant filed a notice of appeal; appellee filed a cross-notice of appeal. This Court abated the appeal and ordered the trial court to enter findings of fact, which it did on October 29, 2014.
DISCUSSION
I. Appellant's Issues
Appellant raises the following four issues in this appeal:
I. The trial court abused its discretion by awarding [appellee] a money judgment for over $86,000 as part of the division of the community estate because there was legally insufficient evidence to support some of the credits awarded to [appellee]
in the final decree.
II. Assuming evidence supports the judgment, the trial court abused its discretion because sick leave is not divisible as a matter of law, and [appellee] is not entitled to immediate payment for leave based on pre-tax value.
III. The trial court abused its discretion because there is no evidence to support using any date other than the date of divorce for dividing assets between the parties.
IV. The final decree should be revised to reflect the correct amount of attorney's fees awarded to [appellee].
Of these four issues, appellee has conceded issues 1, 2, and 4. That is, appellee has conceded that the awards to her in exhibit A of the final decree except for attorney's fees and accrued annual leave should be vacated because there is insufficient evidence to support those awards (issue one). Appellee also concedes that appellant's sick leave is not divisible as a matter of law and that his annual leave should be divided "if, as, and when" received by appellant (issue two). See, e.g., Shanks v. Treadway, 110 S.W.3d 444, 446 (Tex. 2003) (proper method for dividing contingent interests is by ordering them divided "if, as, and when" received); Abdnour v. Adbnour, 19 So.3d 357, 360 (Fla. Ct. App. 2009) (unused sick leave for federal employees has no cash value and is not a marital asset subject to distribution) (citing 5 C.F.R. § 842.301 (2006)); Dye v. Dye, 17 So.3d 1278, 1281 (Fla. Ct. App. 2009) ("The valuation of accrued but unused sick leave and vacation time is particularly troublesome because of its speculative nature and susceptibility to manipulation. Naturally, where there is no contractual provision for the payment of the cash value of such unused time, it is not a marital asset subject to equitable distribution.") (citing Abdnour, 19 So.3d 357). Finally, appellee agrees that her $86,285 attorney's fees award should be reduced by $6,702.36 to reflect the trial court's tenth finding of fact, in which it found appellant owed appellee $79,582.64 in attorney's fees from his share of the community estate (issue four). See Hudspeth Co. Underground Water Conservation Dist. No. 1 v. Guitar Holding Co., L.P, 355 S.W.3d 428, 436 n.7 (Tex. App.—El Paso 2011, pet. denied) ("When the amount stated in a final judgment conflicts with the amount stated in the findings of fact and conclusions of law filed after the judgment, the amount stated in the latter is controlling."); Zorilla v. Wahid, 83 S.W.3d 247, 254 (Tex. App.—Corpus Christi 2002, no pet.) (findings of fact and conclusions of law filed after judgment are controlling if there is any conflict between them and the judgment), disapproved on other grounds by Iliff v. Iliff, 339 S.W.3d 74 (Tex. 2011); Arena v. Arena, 822 S.W.2d 645, 652 (Tex. App.—Fort Worth 1991, no writ) (court of appeals has power to modify judgment to conform with findings of fact and conclusions of law, and in case of a variance, findings of fact and conclusions of law filed after judgment are controlling if there is any conflict).
This leaves only appellant's third issue, in which he argues that the trial court abused its discretion because there is no evidence to support using any date other than the date the trial court orally pronounced the parties' divorced, May 4, 2012, for dividing the assets between the parties. Appellant's argument is based on the fact that the trial court used August 2, 2012, the date of the trial court's "big picture" email to the parties, rather than May 4, 2012, as the operative date for determining appellee's share of the benefits awarded to her under the decree—the TSPO and QDRO, appellant's tax refund, sick leave, accrued annual leave, and bonuses. The $86,443.62 money judgment for appellee included the following:
• 53% of bonus "as of 8/2/12";Appellant contends that the correct date for these awards to appellee was May 4, 2012, and that the trial court abused its discretion by using August 2, 2012 as the operative date for dividing the parties' assets.
• 53% of accrued sick leave "as of 8/12/12";
• 53% of accrued annual leave "as of 8/2/12";
• 53% of seven-twelfths of appellant's IRS refund; and
• deposits and matching funds in the Thrift Savings Plan (TSPO) and FDIC Savings Plan (QDRO) by appellant and his employer up until August 2, 2012.
We review a trial court's judgment concerning division of property for an abuse of discretion. See Reisler v. Reisler, 439 S.W.3d 615, 619 (Tex. App.—Dallas 2014, no pet.). A trial court is afforded broad discretion in dividing the community estate, and an appellate court must indulge every reasonable presumption in favor of a trial court's proper exercise of its discretion. Id. We presume on appeal the trial court correctly exercised its discretion when dividing property, and the appellant bears the burden of showing from the record that the division was so disproportionate as to be manifestly unfair and, thus, constituted an abuse of discretion. See Hinton v. Burns, 433 S.W.3d 189, 201-02 (Tex. App.—Dallas 2014, no pet.); O'Carolan v. Hopper, 414 S.W.3d 288, 311 (Tex. App.—Austin 2013, no pet.); Barnard v. Barnard, 133 S.W.3d 782, 787 (Tex. App.—Fort Worth 2004, pet. denied); Grossnickle v. Grossnickle, 935 S.W.2d 830, 836 (Tex. App.—Texarkana 1996, writ denied).
In family law cases, the abuse of discretion standard of review overlaps with the traditional sufficiency standards of review; as a result, legal and factual sufficiency are not independent grounds of reversible error, but instead constitute factors relevant to our assessment of whether the trial court abused its discretion. Moroch v. Collins, 174 S.W.3d 849, 857 (Tex. App.—Dallas 2005, pet. denied). To determine whether the trial court abused its discretion we consider whether the trial court (1) had sufficient evidence on which to exercise its discretion and (2) erred in its exercise of that discretion. In re A.B.P., 291 S.W.3d 91, 95 (Tex. App.—Dallas 2009, no pet.). We then proceed to determine whether, based on the elicited evidence, the trial court made a reasonable decision. Id. An abuse of discretion generally does not occur if some evidence of a substantive and probative character exists to support the trial court's decision. Id.
Section 7.001 of the Texas Family Code provides that the trial court must divide community property in a "just and right" manner, having "due regard for the rights of each party." See TEX. FAM. CODE ANN. § 7.001 (West 2006). The general rule is that the value of community assets is determined as of the date of divorce or as close to that date as possible. In re Marriage of C.A.S. & D.P.S., 405 S.W.3d 373, 385 (Tex. App.—Dallas 2013, no pet.); Quijano v. Quijano, 347 S.W.3d 345, 349 (Tex. App.—Houston [14th Dist.] 2011, no pet.); see also Grossnickle, 935 S.W.2d at 837 ("Generally, community assets are to be evaluated as of the time of the divorce, and subsequent increases in value are separate property."). But the facts of a particular case may necessitate some other basis for the property division. See Finley v. Finley, No. 02-11-00045-CV, 2015 WL 294012, at *10 (Tex. App.—Fort Worth Jan. 22, 2015, no pet.) (mem. op.); McElwee v. McElwee, No. 01-97-00460-CV, 1999 WL 351056, at *3 (Tex. App.—Houston [1st Dist.] June 3, 1999, pet. denied) (not designated for publication); KATHRYN J. MURPHY & IKE VANDEN EYKEL, TEXAS PRACTICE GUIDE: FAMILY LAW § 8.331 (2015) (discussing date of valuation). Furthermore, nearness in time is a matter typically left to the trial court's discretion. In re Marriage of C.A.S, 405 S.W.3d at 385 (no abuse of discretion in valuing community's interest in appellant's partnership because wife provided court with value of partnership approximately six months before trial, partnership had not been active for over two years, and no evidence of activity by partnership that would have increased value of community's interest); see also Quijano, 347 S.W.3d at 349-50; Finch v. Finch, 825 S.W.2d 218, 223 (Tex. App.—Houston [1st Dist.] 1992, no writ). The Fort Worth Court of Appeals has stated:
[T]he determination of whether to use the time of the divorce or the time of the division as the valuation date of an asset when the divorce and division of the property occur at different dates is in fact so specific that it should be left to the discretion of the trial judge to avoid the inequities that could result by making a bright line rule.Parker v. Parker, 897 S.W.2d 918, 932 (Tex. App.—Fort Worth 1995, writ denied) (court did not err by valuing land as of date of divorce, 1988, instead of date of property division, 1993), overruled on other grounds by Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 47 (Tex. 1998); see also In re Marriage of Zvara, 131 S.W.3d 566, 569 (Tex. App.—Texarkana 2004, no pet.); Baccus v. Baccus, 808 S.W.2d 694, 699 (Tex. App.— Beaumont 1991, no writ); Finley, 2015 WL 294012, at *10 (citing Parker).
Appellant's argument is that the trial court abused its discretion by not valuing and dividing the marital assets as of May 4, 2012, because that was the undisputed date of divorce. He calls our attention to cases holding that retirement benefits must be valued at the time of the divorce and that post-divorce increases in retirement benefits are separate property not subject to division. See Berry v. Berry, 647 S.W.2d 945, 947 (Tex. 1983); Caracciolo v. Caracciolo, 251 S.W.3d 568, 571 (Tex. App.—San Antonio 2007, no pet.); Boyd v. Boyd, 67 S.W.3d 398, 408 (Tex. App.—Fort Worth 2002, no pet.). But there is a difference between the trial court's pronouncement of an interlocutory judgment granting the divorce and a final judgment of divorce that disposes of all issues in the case. According to the record, May 4, 2012, was the date the court orally granted the parties a divorce and took the rest of the case, including property division, under advisement. The trial court did not orally render a final judgment of divorce; it granted an interlocutory judgment of divorce that became final when the court signed the final decree of divorce. See Chavez v. Chavez, 148 S.W.3d 449, 453 n.1 (Tex. App.—El Paso 2004, no pet.) ("On October 3, 2002, the trial court entered what purports to be a final decree of divorce, even though the court expressly reserved ruling on the custody issues until an unspecified future date. The court disposed of the remaining issues in an order dated April 29, 2003. There can be no final judgment of divorce until the court finally disposes of all issues, including property division and child custody."); Herschberg v. Herschberg, 994 S.W.2d 273, 277 (Tex. App.—Corpus Christ 1999, no pet.) (until the property of the parties has been disposed of, no final divorce judgment exists); Ault v. Mulanax, 724 S.W.2d 824, 830 (Tex. App.—Texarkana 1986, no writ) (if judgment expressly reserves issue of child support or property division for future determination by court, judgment is interlocutory in nature); Underhill v. Underhill, 614 S.W.2d 178, 181 (Tex. Civ. App.—Houston [14th Dist.] 1981, writ ref'd n.r.e.) (although parties were actually divorced as of the date the court orally rendered judgment, judgment was not then final because property of the parties had not been disposed of); Heller v. Heller, No. 05-91-01598-CV, 1992 WL 389789, at *3 (Tex. App.—Dallas Dec. 29, 1992, no writ) (not designated for publication) ("Here, the judge orally granted the divorce on December 8, 1990, taking the rest of the case under advisement. Thus, he did not orally render final judgment in the case. Instead, the judge granted an interlocutory judgment of divorce, which became final when the trial court signed the amended decree of divorce on July 19, 1991.") (internal citations omitted). We are aware of no authorities holding that the trial court was required to value the community assets on the same date it orally rendered the interlocutory judgment of divorce, nor has appellant directed us to such authorities. Furthermore, trial courts exercise broad discretion over the division of property in a divorce and when, as in this case, the date of divorce and the date on which the property is divided are different, the decision of which date to use should be left to the trial court's discretion. See Parker, 897 S.W.2d at 932. Based on the record before us, we cannot say the trial court abused its discretion by valuing the community assets as of August 2, 2012, rather than the date the court orally rendered the interlocutory judgment of divorce. We overrule appellant's third issue.
II. Appellee's Cross-Issue
Turning to appellee's cross issue, she argues there is legally insufficient evidence in the record to support the amounts awarded to appellant in the final decree for living expenses he paid after trial, a $2,757 offset to equalize the division of personal property, a 47 percent share of appellee's 2012 IRS refund, and 47 percent of $100 monthly payments received from August 2012 to May 2013, and July to October of 2013, on a personal, unsecured loan appellant and appellee had made to a family friend. This loan is identified in the decree as both the "MHQ" and "MQH" loan. Appellee has conceded there is evidence in the record to support the $2,757 personal property offset.
Appellee also argued in her brief that the trial court abused its discretion by not valuing and dividing the community assets as of the date the court signed the final decree of divorce, May 6, 2014. Appellant responded that appellee was estopped from asserting this argument because she requested entry of a final decree that divided the property based on August 2, 2012, as well as other proposed orders submitted by appellee that recognized a May 4, 2012 date of divorce and August 2, 2012 date of division. During oral argument, appellee abandoned her contention, arguing instead August 2, 2012 was the correct date for dividing the property. Therefore, we do not address the issue.
Exhibit A of the final decree as well as appellee's brief refer to "MHQ" loan payments, but the decree specifies $100 monthly payments received from "Connie Umali (aka MQH)." Neither party addresses the apparent discrepancy and the record does not explain the abbreviations.
The trial court's March 27, 2013 "Order Appointing Arbitrator" vested the arbitrator with the authority to divide the household furniture and furnishings. The arbitrator found that the value of the property awarded to appellee was $9,250, the value of the property awarded to appellant was $3,000, and that appellee would need to pay appellant $2,757 to obtain a 53 to 47 percent division of the property. In its findings of fact numbers 8 and 13, the trial court adopted the arbitrator's division of the property and found that the personal property listed in exhibit B of the final decree was valued at $12,250, the personal property awarded to appellee was valued at $9,250, and that the personal property awarded to appellant was valued at $3,000. Appellee's proposed findings of fact contained the same figures regarding the value of the parties' personal property.
Regarding the post-trial living expenses, exhibit A to the decree states that $62,287.63 was owed by appellee to appellant for "[l]iving expenses reimbursement on and after 4/1/13." In its finding of fact number 11, the trial court found that appellant should be reimbursed $62,287.63 from appellee's share of the community estate for living expenses paid by appellant "from and after the divorce was rendered on May 4, 2012." Appellee challenges this finding, arguing there is no evidence any living expenses were paid after the trial court rendered divorce. Appellant, though, contends there is sufficient evidence to support the $62,287.63 award.
The record shows that in its June 15, 2011 "Agreed Temporary Orders," the trial court ordered appellant to pay appellee $2,250 per month in temporary support plus expenses related to the marital residence such as utilities, maintenance, and auto insurance. Appellant was ordered to pay the temporary spousal support on or before the first day of each month, beginning May 1, 2011 and continuing until "further order of this court." It was uncontested at trial that appellant paid $41,682.91 in spousal support and housing costs from May 2011 through April 2012. The evidence reflected an average of over $3,000 per month paid by appellant, with $2,250 per month in temporary support and over $1,000 per month in utilities, auto insurance, property taxes, and other expenses. Nor was there any dispute in the trial court that the monthly temporary support obligation continued during the twenty-four months that passed between the May 4, 2012 rendition of divorce, when the court ordered that the temporary support continue, and the May 6, 2014 entry of the final decree. The final decree discharged the temporary orders under which appellant was obligated.
During oral argument in this case, appellee's counsel on appeal argued there is no evidence in the record that appellant paid even "one penny" of support after the conclusion of trial. But this argument fails to account for the fact that, in the trial court, only the May 2014 living expenses appear to have been in dispute, and that appellee's trial counsel agreed that the sum for living expenses in exhibit A of the final decree was correct. During a hearing held before the trial court on May 6, 2014, the same day it signed the final decree, the parties discussed the correct figure for living expenses that should be included in the exhibit A of the final decree. The court had previously ruled on April 24, 2014, that appellant would get credit for temporary spousal support and living expenses from the date of divorce. Following that hearing, counsel for both parties discussed what language to include in the final decree. At the start of the May 6, 2014 hearing, appellee's trial counsel tendered to the court a proposed final decree and QDROs for the court to sign. Appellee's trial counsel told the court that "we would like the decree signed, the QDRO signed, and then there are all these ancillary documents that need to be signed and notarized as a result." Counsel again told the court later in the hearing that she was "presenting the decree and those QDROs as ready to sign." According to the reporter's record, the proposed final decree contained the same amount for living expenses that is found in exhibit A of the final decree of divorce, $62,287.63, and appellee's trial counsel agreed that this was "the correct number." The relevant portion of the record reads as follows:
[APPELLANT'S COUNSEL]: Now, with regard to the continued payment of household expenses, I think we need to have an understanding between all of us of when those get cut off. If—if Mr. Hammett is going to continue paying expenses through May 31st, then the amount of his offset in the Exhibit A, we believe, should be 65,481 instead of the 62,000 that's on the Exhibit A in the decree tendered by Mrs. Hammett because he's going to be paying the utilities and the insurance and what have you. And we need to have some understanding, when can he call and say, Take this off my autodraft?
[APPELLEE'S COUNSEL]: Your Honor, may I briefly respond? The—the contention that he's going to be paying May—for example, today is May the 6th. The spousal support that was due on May the 1st hasn't been paid yet. This has been a pattern in the two years since we had a trial in this cause.
So the number that—we—we spent another six hours here on the 24th after we left your courtroom, and one of the things we did was to basically trade some different language in the decree. One of the things we traded was a—a spreadsheet prepared by Mr. Hammett that used the figure six—
[APPELLANT'S COUNSEL]: I'm going to object as to not having any responsiveness to the issue before the Court.
[APPELLEE'S COUNSEL]: I—
[APPELLANT'S COUNSEL]: The issue is when is the May util—when can he call the utilities and say, I'm cutting it off?
[APPELLEE'S COUNSEL]: Okay. Well—well, there—there—it's—the issue is twofold, [counsel], because there's a number that depends on that and a date, right? The number is how much credit he gets, and I think [appellant's counsel] raised that issues [sic] with you two minutes ago. And the correct number is 62,287.63, not the 65,000 and change because he hasn't made any payments for May [emphasis added].
It's our belief, Your Honor, that he's going to go and turn off these utilities as soon as we get out of here. So I think everybody's probably safer in assuming that she's going to have the responsibility of paying those things, rather than signing up for an enforcement, right, for just the May expenses because they haven't been paid yet? So I think—
THE COURT: So—
[APPELLEE'S COUNSEL]: —the sensible thing would be to say anything paid today that he has receipt for, that's fine; otherwise, let's assume he's not making any payments for May.
THE COURT: I like that better. It's cleaner.Following this exchange, there was further discussion of when appellant could stop paying for the utilities and the other household expenses. His attorney explained that he wanted to end the autodraft or autopay arrangement that was deducting the money for utilities from his bank account, and appellee's trial counsel was concerned the utilities would be terminated before appellee had a chance to put them in her name. The discussion, once again, focused on the final month's expenses. Later, toward the end of the hearing, the trial court announced that "I am now signing the QDROs prepared and presented by the petitioner," which was appellee.
In making a just and right final division of the marital estate, trial courts can consider the effect of prior temporary orders. See Herschberg, 994 S.W.2d at 278 ("[U]pon final division, the equities of the parties and final adjustments for the amount of temporary support may be taken into consideration in making a just and right division of the marital estate."); Thurlow v. Thurlow, No. 09-06-522-CV, 2007 WL 5760841, at *7 (Tex. App.—Beaumont Nov. 26, 2008, pet. denied) (mem. op.) (rejecting argument that trial court improperly weighed amounts paid to wife as temporary support in making property division); Garcia v. Garcia, No. 04-05-00717-CV, 2007 WL 246173, at *1 (Tex. App.—San Antonio Jan. 31, 2007, no pet.) (mem. op.) ("[T]he trial court properly took the amount of temporary support paid to [the wife] into consideration upon the final division of the property."). A trial court has the authority to enter the final decree containing a credit based on the prior temporary orders regardless of whether the party consented to the credit at the time of the final decree. See Garcia, 2007 WL 246173, at *1 (although wife testified she did not consent to credit based on temporary support paid by husband, trial court entered final decree after trial on the merits, and at that point court had authority to evaluate credibility of witnesses and enter final decree containing credit irrespective of whether appellee consented to it at time of final decree); In re L.A.M., No. 14-05-00166-CV, 2006 WL 162617, at *2 (Tex. App.—Houston [14th Dist.] Jan. 24, 2006, no pet.) (trial court has discretion to enter final order without party's consent even if temporary orders are based on the agreement of the parties).
The record shows that the $62,287.63 figure in exhibit A of the final decree of divorce was in the proposed final decree submitted by appellee's trial counsel at the May 6, 2014 hearing. Appellee's counsel told the trial court that the decree was ready to sign, the $62,287.63 sum in the decree was "the correct number," and she asked the court to sign it. It is a well-established principle of law that a party cannot request a ruling from a court and then complain on appeal that the court committed error by giving her the requested ruling. See, e.g., Tittizer v. Union Gas Corp., 171 S.W.3d 857, 861 (Tex. 2005) (discussing "invited error doctrine"); Robles v. Mann, No. 13-14-00211-CV, 2016 WL 1613316, at *6 (Tex. App.—Corpus Christi April 21, 2016, no pet.) (mem. op.) (defendant filed post-judgment objection to plaintiff's proposed judgment and motion to enter defendant's proposed judgment, and defendant's proposed judgment included very language he was complaining about on appeal); David L. Smith & Associates, L.L.P. v. Stealth Detection, Inc., No. 05-12-00073-CV, 2013 WL 2389924, at *2 (Tex. App.—Dallas May 29, 2013, no pet.) (mem. op.) ("Even if appellants had preserved their complaint about the amounts of interest . . . the final judgment signed by the judge includes an exact replication of the amounts submitted by appellants in their proposed final judgment."). Given the record in this case, we cannot say the trial court abused its discretion by awarding appellant a $62,287.63 credit in the final decree.
As for appellee's 2012 IRS refund and the "MHQ" or "MQH" loan payments, appellee's brief does not address these awards at all except to say "the trial court received no evidence concerning Lisa's 2012 IRS refund or any 'MHQ payments' made after the date of trial." There is no summary of relevant facts and no analysis, argument, or even explanation regarding the 2012 IRS refund and the "MHQ payments." Nor were these matters addressed at oral argument. The burden is on an appellant to discuss the assertions of error. Arellano v. Magana, 315 S.W.3d 576, 577 (Tex. App.—El Paso 2010, no pet.). "We have no duty to perform an independent review of the record and applicable law to determine whether there was error." Id. An appellate issue unsupported by argument or containing an argument lacking citation to the record or legal authority presents nothing for review. Id. (citing Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004)). By failing to adequately brief these issues, appellee/cross-appellant waived this portion of her complaint. See, e.g., Fredonia State Bank v. Gen. Am. Life Ins. Co, 881 S.W.2d 279, 284 (Tex. 1994); In re D.J.W., 394 S.W.3d 210, 223 (Tex. App.—Houston [1st Dist.] 2012, pet. denied); In re C.D.K., 64 S.W.3d 679, 681-82 (Tex. App.—Amarillo 2002, no pet.). Furthermore, were we to conclude appellee had preserved her complaints regarding the 2012 IRS refund and the "MHQ" or "MQH" loan payments, her proposed final decree of divorce provided for both awards to appellant, as follows:
Property to Husband
IT IS ORDERED AND DECREED that the husband, JAMES L. HAMMETT, is awarded the following as his sole and separate property, and the wife is divested of all right, title, interest, and claim in and to that property:
* * * *
H-11. Cash equal to Forty Seven Percent (47%) of the 2012 Federal Income Tax Refund pursuant to the provisions below. This return has not yet been filed.
H-12. Cash equal to Forty Seven Percent (47%) of the total note balance due, including interest, and, Forty Seven Percent (47%) of the monthly payment received from Connie Umali (aka MQH). Both parties shall notify Connie Umali of the entry of this Decree, and direct that the payment be made separately to each party in the 47%/53% proportions from the date of entry of the Final Decree of Divorce forward. Effective August 2, 2012, and prior to the proportionate payment being made by the Connie Umali, the party receiving the monthly payment is designated as a constructive trustee to receive the monthly payment, and shall forward the appropriate Percentage of the payment received by the trustee to the other party in this cause within fifteen (15) days of receipt. (i.e. from each $100.00 paid, LISA MARIE HAMMETT will receive $53.00 and JAMES L.
HAMMETT will receive $47.00) or within fifteen (15) days of the entry of this Order if previously received.We again note that parties are precluded from requesting a ruling from a court and then complaining on appeal that the court committed error by giving them the requested ruling. See, e.g., Tittizer, 171 S.W.3d at 861; Robles, 2016 WL 1613316, at *6; David L. Smith & Assocs., 2013 WL 2389924, at *2. Accordingly, we overrule appellant's cross-issue.
III. Conclusion
Based on the foregoing, we conclude the trial court's judgment should be reversed and rendered in part, affirmed in part, and modified and affirmed in part, as follows:
(1) We reverse the awards to appellee in exhibit A of the May 6, 2014 final decree of divorce except for attorney's fees and accrued annual leave, and render judgment that appellee take nothing on those claims.
(2) The remainder of the judgment is affirmed except that we modify exhibit A of the final decree of divorce to reflect that 53 percent of appellant's accrued annual leave is awarded to appellee "if, as, and when" received by appellant, and that the $86,285 award of attorney's fees to appellee is reduced by $6,702.36 to $79,582.64.
(3) We further modify exhibit A of the final decree of divorce, and the amount entered on page fifteen of the final decree, to reflect that the net amount owed by appellant to appellee from appellant's portion of the joint Schwab account ending in 0757 is $13,691.09.
Pursuant to exhibit A of the final decree of divorce, $13,691.09 is the result of $79,582.64, which is the reduced attorney's fee award to appellee, minus the $65,891.55 total amount credited to appellant. --------
(4) As modified, the judgment of the trial court is affirmed. 140613F.P05
/Lana Myers/
LANA MYERS
JUSTICE
JUDGMENT
On Appeal from the 417th Judicial District Court, Collin County, Texas
Trial Court Cause No. 417-51726-2011.
Opinion delivered by Justice Myers. Justices Francis and Lang-Miers participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is REVERSED AND RENDERED IN PART, AFFIRMED IN PART, and MODIFIED AND AFFIRMED IN PART, as follows:
We REVERSE the awards to appellee LISA MARIE HAMMETT in exhibit A of the May 6, 2014 final decree of divorce except for attorney's fees and accrued annual leave, and RENDER judgment that appellee LISA MARIE HAMMETT take nothing on those claims.
The remainder of the judgment is AFFIRMED except that we MODIFY exhibit A of the final decree of divorce to reflect that 53 percent of appellant JAMES L. HAMMETT'S accrued annual leave is awarded to appellee LISA MARIE HAMMETT "if, as, and when" received by appellant JAMES L. HAMMETT, and that the $86,285 award of attorney's fees to appellee LISA MARIE HAMMETT is reduced by $6,702.36 to $79,582.64.
We further MODIFY exhibit A of the final decree of divorce, and the amount entered on page fifteen of the final decree of divorce, to reflect that the net amount owed by appellant JAMES L. HAMMETT to appellee LISA MARIE HAMMETT from appellant JAMES L. HAMMETT'S portion of the joint Schwab account ending in 0757 is $13,691.09
It is ORDERED that, as modified, the judgment of the trial court is AFFIRMED. It is ORDERED that each party bear its own costs on appeal. Judgment entered this 1st day of June, 2016.