Summary
finding fair notice of waste claim was given by wife's live pleading, which alleged that she "should be awarded a disproportionate share of the parties' estate for the following reasons, including but not limited to . . . wasting of community assets by [husband]"
Summary of this case from In re Marriage of StallworthOpinion
No. 05-17-00268-CV
05-22-2018
IN THE INTEREST OF D.V.D. AND B.L.D., CHILDREN
On Appeal from the 330th Judicial District Court Dallas County, Texas
Trial Court Cause No. DF-13-18833
MEMORANDUM OPINION
Before Justices Lang-Miers, Myers, and Boatright
Opinion by Justice Lang-Miers
The trial court rendered a final decree of divorce between the parties. In three issues, appellant Wife challenges the trial court's property division. We affirm the trial court's judgment.
BACKGROUND
The parties were married on February 18, 2006. Husband filed an original petition for divorce on October 8, 2013. Wife filed a counterpetition. After a bench trial, the trial court rendered a final decree of divorce on December 16, 2016. Wife now challenges the property division. The parties do not challenge the decree's provisions regarding D.V.D. and B.L.D., their children.
In three issues, Wife complains that the trial court erred by (1) characterizing the down payment on a residence, a motor vehicle, and airline miles as Husband's separate property; (2) failing to reconstitute the community estate prior to division based on an unrebutted presumption of wasting of community assets or constructive fraud on the community by Husband; and (3) dividing the community estate in an arbitrary and unreasonable manner. By cross-point, Husband alleges Wife has waived her right to complain of these matters or is estopped from attacking the judgment on appeal.
STANDARD OF REVIEW
We review the trial court's rulings dividing the parties' property under an abuse-of-discretion standard. In re Marriage of C.A.S., 405 S.W.3d 373, 382 (Tex. App.—Dallas 2013, no pet.). A trial court abuses its discretion when it acts "without reference to any guiding rules and principles; in other words, whether the act was arbitrary or unreasonable." Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam). In a non-jury trial, where no findings of fact or conclusions of law are filed or requested, we must presume that the trial court made all the necessary findings to support its judgment. Sink v. Sink, 364 S.W.3d 340, 343 (Tex. App.—Dallas 2012, no pet.). Consequently, if the trial court's implied findings are supported by the evidence, we must uphold its judgment on any theory of law applicable to the case. Id. at 343-44.
In family law cases, legal and factual sufficiency challenges do not constitute independent grounds for asserting error, but they are relevant factors in determining whether the trial court abused its discretion. C.A.S., 405 S.W.3d at 383. To determine whether the trial court abused its discretion because the evidence is legally or factually insufficient to support the trial court's decision, we consider whether the trial court (1) had sufficient evidence upon which to exercise its discretion, and (2) erred in its application of that discretion. Moroch v. Collins, 174 S.W.3d 849, 857 (Tex. App.—Dallas 2005, pet. denied). We conduct the applicable sufficiency review when considering the first prong of the test. Id. We then determine whether, based on the elicited evidence, the trial court made a reasonable decision. Id. A trial court does not abuse its discretion if it bases its decision on conflicting evidence as long as there is some evidence of a substantive and probative character to support the decision. In re S.N.Z., 421 S.W.3d 899, 911 (Tex. App.—Dallas 2014, pet. denied); Moroch, 174 S.W.3d at 857. The trial court is the sole judge of the credibility of witnesses and the weight to be given their testimony. In re M.A.M., 346 S.W.3d 10, 14 (Tex. App.—Dallas 2011, pet. denied).
When reviewing an alleged property characterization error, we must determine whether the trial court's finding is supported by clear and convincing evidence and whether the characterization error, if established, was an abuse of discretion. Magness v. Magness, 241 S.W.3d 910, 912 (Tex. App.—Dallas 2007, pet. denied). We must indulge every reasonable presumption in favor of the trial court's proper exercise of its discretion in dividing marital property. Sink, 364 S.W.3d at 343. We will reverse the ruling of the trial court only if the record demonstrates that the trial court clearly abused its discretion, and the error materially affected the just and right division of the community estate. Id.
When the burden of proof at trial is by clear and convincing evidence, we apply a higher standard of legal and factual sufficiency review. Id. at 344. Clear and convincing evidence is defined as that "measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." TEX. FAM. CODE ANN. § 101.007 (West 2014); Sink, 364 S.W.3d at 344. In reviewing the evidence for legal sufficiency, we look at all the evidence in the light most favorable to the judgment to determine if the trier of fact could reasonably have formed a firm belief or conviction that its finding was true. See Moroch, 174 S.W.3d at 858. We must assume that the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could do so. Id. In reviewing the evidence for factual sufficiency, we must give due consideration to evidence that the fact finder could reasonably have found to be clear and convincing and then determine whether, based on the record, a fact finder could reasonably form a firm conviction or belief that the allegations in the petition were proven. Sink, 364 S.W.3d at 344.
APPELLATE JURISDICTION
On March 13, 2017, Husband filed a motion to dismiss this appeal for lack of jurisdiction, arguing that Wife's notice of appeal was untimely. We denied Husband's motion in our Order of March 29, 2017. We denied Husband's motion to reconsider on April 7, 2017. In his appellate brief, Husband again contends this Court lacks jurisdiction over Wife's appeal. We disagree.
The trial court issued a memorandum ruling on August 15, 2016 with instructions to Husband's counsel to "reduce the memorandum to Order." On October 27, 2016, Wife filed an amended motion to reconsider the memorandum ruling. The trial court held a hearing on the motion to reconsider, and signed the divorce decree on December 16, 2016. Wife filed her notice of appeal on March 8, 2017. Husband argues that because Wife did not file a post-judgment motion following the divorce decree, Wife's appeal is untimely.
A premature post-judgment motion is effective to extend the appellate deadlines. See TEX. R. CIV. P. 329b(a); Ryland Enter., Inc. v. Weatherspoon, 355 S.W.3d 664, 665-66 (Tex. 2011) (per curiam). If a subsequent judgment does not grant all the relief requested in the premature motion, then the motion remains as a viable complaint about the subsequent judgment and extends the appellate deadlines after that judgment. See Brighton v. Koss, 415 S.W.3d 864, 865 (Tex. 2013) (per curiam).
In her amended motion to reconsider, Wife complained about five matters. Two of Wife's complaints addressed issues relating to the parties' children, and three addressed issues relating to the trial court's property division. The trial court did not grant Wife's requested relief on either issue relating to the parties' children, nor on at least one of her complaints about the property division. Wife's premature motion remained as a viable complaint about the subsequent divorce decree, and consequently, extended the appellate deadlines. See id.
Husband also suggests that Wife must complain of the same errors in her appeal as she did in her premature motion. We disagree. Although Husband correctly notes that to preserve an error for appeal, a party must make the complaint in the trial court and obtain a ruling, see TEX. R. APP. P. 33.1, only certain complaints must be contained in a post-judgment motion to preserve them for appeal. See TEX. R. CIV. P. 324; TEX. R. APP. P. 33.1.
We have concluded that Wife's notice of appeal was timely. We overrule the portion of Husband's cross-issue contending that this Court lacks jurisdiction over Wife's appeal.
Husband also argues that because Wife accepted benefits under the decree by signing a Qualified Domestic Relations Order regarding Husband's retirement accounts, Wife is now estopped from challenging the decree. We reject Husband's argument. The supreme court recently addressed this question in Kramer v. Kastleman, 508 S.W.3d 211, 230 (Tex. 2017), and concluded that "mere acceptance, possession, and control of community property does not equate to acquiescence" of the trial court's division of property.
WIFE'S ISSUES
1. Items characterized as Husband's separate property
Wife challenges the trial court's characterization of the down payment on a residence, a motor vehicle, and airline miles as Husband's separate property. All property possessed by either spouse upon dissolution of the marriage is presumed to be community property. TEX. FAM. CODE ANN. § 3.003(a) (West 2006). A party who seeks to assert the separate character of the property must prove that character by clear and convincing evidence. Id. § 3.003(b); see also Sink, 364 S.W.3d at 344. "The characterization of property as community or separate is determined by the inception of title to the property, i.e., when a party first has a right of claim to the property by virtue of which title is finally vested." Sink, 364 S.W.3d at 344; see also TEX. FAM. CODE § 3.404(a). Separate property includes property "owned or claimed by the spouse before marriage." TEX. FAM. CODE § 3.001(1). "Community property consists of the property, other than separate property, acquired by either spouse during marriage." Id. § 3.002.
In order to overcome the community property presumption, the burden is on the spouse claiming certain property as separate to trace and clearly identify the property claimed to be separate. Sink, 364 S.W.3d at 344. The burden of tracing is a difficult, but not impossible, burden to sustain. Moroch, 174 S.W.3d at 856. Tracing involves establishing the separate origin of the property through evidence showing the time and means by which the spouse originally obtained possession of the property. Sink, 364 S.W.3d at 344. Separate property will retain its character through a series of exchanges as long as the party asserting separate ownership can overcome the presumption of community property by tracing the assets on hand during the marriage back to property that, because of its time and manner of acquisition, is separate in character. Id. at 344-45. Mere testimony that property was purchased with separate property funds, without tracing the funds, is generally insufficient to rebut the community property presumption. Id. at 345. Any doubt as to the character of property should be resolved in favor of the community estate. Id.
If a mischaracterization of property has only a de minimus effect on the trial court's division of the community estate, then the trial court did not abuse its discretion. Boyd v. Boyd, 131 S.W.3d 605, 617 (Tex. App.—Fort Worth 2004, no pet.). But if property is mischaracterized and the mischaracterization is of such magnitude that it affects the just and right division of the community estate, we must remand the entire case to the trial court for a just and right division based upon the correct characterization of the property. Id.
Husband cites three cases in support of his contention that he offered clear and convincing evidence that the three challenged items were his separate property. First, he relies on Pace v. Pace, 160 S.W.3d 706 (Tex. App.—Dallas 2005, pet. denied). In Pace, we explained that "[a] spouse is competent to testify concerning the characterization of property without producing independent documentation such as bank records." Id. at 714. And we explained that "[t]he testimony of a spouse seeking to overcome the community property presumption need not be corroborated to meet the clear and convincing standard." Id. But we noted, "a party's unsupported and contradicted testimony may not meet the clear and convincing standard." Id. In Pace, wife offered her own testimony about assets she inherited or owned before marriage, as well as corroborating testimony from a witness who handled the investment account in question. Id. The husband's evidence, on the other hand, failed to raise a fact issue that the community property income from the account had been commingled with the account. See id. at 714-15. We concluded that husband failed to raise a fact issue concerning the separate property characterization of the account. Id. at 715.
Second, Husband cites Vannerson v. Vannerson, 857 S.W.2d 659 (Tex. App.—Houston [1st Dist.] 1993, writ denied). In Vannerson, wife listed several items as her separate property on an inventory that was introduced into evidence. Id. at 667-68. She testified at trial that the items on the inventory were (1) given to her as gifts or by inheritance, (2) property she owned prior to marriage, or (3) property purchased with property owned prior to marriage. Id. The husband presented no evidence at trial. Id. at 668. The court of appeals concluded that where wife's testimony tracked the family code's language for characterizing property as separate, and husband did not present any evidence to the contrary, there was sufficient evidence to support the trial court's findings that the property was wife's separate property. See id. at 667-68.
Third, Husband cites Monroe v. Monroe, 358 S.W.3d 711 (Tex. App.—San Antonio 2011, pet. denied). In Monroe, wife testified at trial that her jewelry was separate property because she either owned it before marriage or received it as a gift after marriage. Id. at 718. Husband did not contradict wife's testimony, and "failed to even mention the jewelry in his testimony." Id. The court noted that even if a witness is interested in the outcome of the proceedings, her testimony may be taken as true as a matter of law if it is "'clear, direct and positive, and free from contradiction, inaccuracies, and circumstances tending to cast suspicion thereon.'" Id. (quoting Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990)). The court explained that "'[t]he testimony of a spouse seeking to overcome the community property presumption need not be corroborated to meet the clear and convincing standard.'" Id. (quoting Pace, 160 S.W.3d at 714). But if the spouse's testimony is contradicted, it may not meet the clear and convincing standard. Id. The court concluded that wife's uncontradicted testimony established, as a matter of law, that the jewelry was her separate property. Id.
Husband also argues that Wife failed to preserve her complaints about characterization of these items. But in a nonjury case, a party may complain about legal and factual sufficiency of the evidence for the first time on appeal. TEX. R. APP. P. 33.1(d). Wife's issues are based on both legal and factual sufficiency of the evidence to support the trial court's characterization and division of property. Consequently, we will address the merits of Wife's arguments. See McElwee v. McElwee, 911 S.W.2d 182, 187 (Tex. App.—Houston [1st Dist.] 1995, writ denied) (court of appeals considered complaints about characterization and division of property not raised in bench trial).
A. Marital residence
The trial court characterized $79,800.00 in equity in the marital residence as Husband's separate property. Husband testified that he "withdrew the exact amount" of the down payment for the house from an account containing the separate property. He explained that he earned stock options during his employment with Microchip Technology and its predecessor company, beginning in 2000 and ending in 2004, that were transferred into an E*Trade Financial investment account. Exhibit 22, an E*Trade account statement for September, 2008, shows a "wire out" of $80,000 on September 4, 2008. Husband testified that the funds were deposited in a Wells Fargo checking account on the same date. Exhibit 23, a Wells Fargo checking account statement for September, 2008, shows a deposit from "E*Trade Bank/Org" in the amount of $80,000 on September 4, 2008. Exhibit 23 also reflects that on the same date, there was a withdrawal of $79,723.30 from the account. Exhibit 27 is a copy of a Wells Fargo bank cashier's check dated September 4, 2008, in the amount of $79,723.30. Exhibit 28, a HUD Settlement Statement dated September 4, 2008, for property on Maple Glen Drive in Dallas, reflects "Cash From Borrower" of $79,723.30.
Wife, however, complains that there is no evidence to establish that the funds in the E*Trade account were Husband's separate property. Husband offered Exhibit 24, a summary of stock options he received from his employer before the marriage, but the trial court sustained Wife's hearsay objection and the exhibit was not admitted into evidence. Wife argues that Exhibit 22 does not show that the holdings in the E*Trade account are stock options; instead, Exhibit 22 reflects that the account was "100% cash" as of September, 2008. She contends there is no evidence the account existed before the marriage and no evidence of the balance of the account prior to the marriage. She also argues that the parties could have contributed community funds to the account or that community property interest could have accrued on the account after the marriage. Husband testified on both direct and cross-examination, however, that he received the stock options between 2000 and 2004, before the marriage. Husband was cross-examined extensively about the sale of the options in 2014, and gave further explanation regarding the use of the E*Trade account in the transactions.
Husband's testimony and supporting evidence tracing the $79,723.30 from the E*Trade account to the cash payment at the closing on the house is uncontroverted. Husband also consistently testified about the use of the E*Trade account and the receipt of his stock options before the marriage. Although Wife speculates that community funds could have been deposited into the E*Trade account, she offered no evidence to support her speculation. Here, as in Pace, the spouse claiming separate property offered testimony and evidence to support the claim, while the spouse controverting the characterization offered no evidence that any community property funds were commingled with the separate property. See Pace, 160 S.W.3d at 714-15. We conclude that the trial court could "reasonably have formed a firm conviction or belief" that the cash payment was made with Husband's separate property. See Sink, 364 S.W.3d at 344.
B. Motor vehicle
Wife next complains that a 2013 Toyota Tundra was awarded to Husband. Wife acknowledges that the award of the vehicle to Husband was made by agreement of the parties, but she argues the value of the Tundra should have been treated as community property in determining a just and right division. She contends the trial court erred by confirming the Tundra as Husband's separate property.
Husband listed both the Tundra and a 2012 Mercedes Benz as community property on his sworn inventory and appraisement that was admitted into evidence as a summary. Wife did the same. At trial, the parties announced they had entered into several stipulations. Counsel announced, "I think we agreed that he would be awarded his Toyota Tundra and she would be awarded her Mercedes Benz."
Husband testified that he purchased a new Tundra truck from Toyota of Dallas at the end of 2014, and paid cash for it. He testified he paid $20,000 plus the trade-in of his 2011 Nissan pick-up truck. Wife now argues that the $20,000 plus the $17,000 in equity in the trade-in vehicle, a total of $37,000, "should have been included in the trial court's analysis when making a division of the community estate."
The parties agreed to the division made in the decree. The trial court rendered judgment in reliance on the parties' stipulation. See Houston Laureate Assocs., Ltd. v. Russell, 504 S.W.3d 550, 568 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (where trial court rendered judgment in reliance on parties' stipulation, reversal would conflict with invited error doctrine). Further, Wife does not acknowledge any value she received by the award of the Mercedes. On this record, we cannot say the trial court abused its discretion by failing to include the value of the Tundra in determining its just and right division of the community estate, especially when no party requested this relief.
There was no testimony or documentary evidence regarding the value of the Mercedes introduced at trial. Both attorneys addressed the Mercedes in their arguments, but no evidence was introduced by either party other than Wife's sworn inventory and appraisement. Husband's attorney argued that the Mercedes cost $90,000, while Wife's attorney argued that "it was a used car" that Wife purchased for $60,000.Wife's sworn inventory and appraisement showed the fair market value of the Mercedes as $21,818, with $14,897.76 still owed and $6,920.24 as net equity. In the decree, the trial court confirmed as separate property the Toyota to Husband and the Mercedes and its corresponding debt to Wife, without any finding of either vehicle's value.
C. Airline miles
Wife's next challenge is to Husband's characterization of 982,142 miles in an American Airlines AAdvantage account as his separate property. Husband listed the miles as his separate property asset on his sworn inventory and appraisement that was admitted into evidence as a summary. Wife listed the miles as community property on her sworn inventory and appraisement that was also admitted into evidence. Neither party's sworn inventory and appraisement listed a value for the miles. There was no testimony about the miles at trial. In the decree, the trial court confirmed the American Airlines AAdvantage account as Husband's separate property.
Husband argues that his sworn inventory and appraisement was uncontradicted evidence that Wife failed to refute. He concludes that this uncontradicted evidence was sufficient to constitute clear and convincing evidence that the miles were his separate property. As we have discussed, Husband relies on Pace, Vannerson, and Monroe to support his argument.
Here, however, unlike Pace, Vannerson, or Monroe, Wife's sworn inventory and appraisement characterizes the miles as community property, while Husband's sworn inventory and appraisement characterizes the miles as separate property, and there is no additional testimony or evidence to support either characterization. The burden was on Husband to offer clear and convincing evidence that the miles were his separate property. See Granger v. Granger, 236 S.W.3d 852, 856 (Tex. App.—Tyler 2007, pet. denied) (to overcome community presumption, spouse claiming property as separate bears burden to trace and clearly identify property claimed). Although in Pace we recognized that a spouse's testimony need not be corroborated to meet the clear and convincing standard, we also explained that if the spouse's testimony is contradicted, it may not meet the standard. Pace, 160 S.W.3d at 714. We conclude that Husband did not meet his burden to overcome the presumption that the airline miles were community property. See Boyd, 131 S.W.3d at 614-17 (husband's uncorroborated testimony did not meet clear and convincing standard to overcome community presumption).
Without evidence of the value of the American Airlines miles, however, Wife has failed to meet her burden to establish that the trial court's division of the community estate was so unjust and unfair as to constitute an abuse of discretion. C.A.S., 405 S.W.3d at 384 (party complaining of division of community estate has burden to prove division was so unjust and unfair as to constitute abuse of discretion). Nor did Wife request findings of fact and conclusions of law regarding the characterization and value of the miles or any other asset. See TEX. FAM. CODE ANN. § 6.711(a) (West, Westlaw through 2017 Reg. & 1st C. Sess.) (on request by party, trial court shall state in writing its findings of fact and conclusions of law, including the characterization and value of all assets on which disputed evidence has been presented); C.A.S., 405 S.W.3d at 388 (where husband did not contend that listed assets had disputed value, trial court did not abuse discretion by failing to make findings of assets' values); see also Monroe v. Monroe, 358 S.W.3d 711, 718 (Tex. App.—San Antonio 2011, pet. denied) (when complaining party does not provide values of property to trial court, that party cannot complain on appeal of property division).
We conclude that the trial court did not err by (1) characterizing of the down payment on the residence as Husband's separate property, (2) not including $37,000 attributable to the Tundra truck in its division of community property, or (3) failing to make findings regarding the value of the airline miles. We decide Wife's first issue against her.
2. Wasting of community assets or constructive fraud on the community
Wife next contends that the trial court erred by failing to reconstitute the community estate prior to division based on Husband's waste of community assets or constructive fraud on the community. Waste occurs when one spouse, dishonestly or purposefully with the intent to deceive, deprives the community estate of assets to the detriment of the other spouse. See Schlueter v. Schleuter, 975 S.W.2d 584, 589 (Tex. 1998); TEX. FAM. CODE ANN. § 7.009(c) (West, Westlaw through 2017 Reg. & 1st C. Sess.).
Husband first argues that Wife has waived this argument by failure to plead waste. But Wife's operative pleading alleges that she "should be awarded a disproportionate share of the parties' estate for the following reasons, including but not limited to . . . wasting of community assets by [Husband]." We conclude that Wife's pleading gave fair notice of her claim of waste by Husband. See TEX. R. CIV. P. 45(b).
Wife argues that Husband wasted community assets because he "could not clearly explain at the trial how almost $500,000 in marital property had vanished during the divorce process." She contends that she "presented evidence showing that community property was disposed of during the marriage without her knowledge or consent and was unaccounted for." She points to a UBS statement showing that Husband received $265,096.81 in taxable income from stock options in 2014. And she argues that Husband's income for 2014 and 2015 was $140,000 each year. Wife also relies on Husband's admission that there were deposits of $235,000 into his UBS account in 2014, and his testimony that the account was empty on the date of trial. Husband also admitted he made withdrawals from his 401k account in the amount of $69,000.
Husband, in turn, testified about the expenses he paid during the pendency of the case, including child support, health insurance for the children, counseling expenses for one of the children, two mortgages, auto insurance, monthly utilities, both Husband's and Wife's credit card bills, car notes, 100% of the fee for the court-ordered psychological evaluations of the parties (although the trial court had ordered the parties to split the fee equally), and attorney's fees (both Husband's and Wife's). Husband testified that he paid these expenses to comply with the court's temporary orders made during the pendency of the case. Husband also testified that because Wife moved their home furnishings and all of his belongings to her separate property home, he incurred expenses for furniture for his residence and a new wardrobe. He also testified that he paid a rental agency to rent one of his separate properties to earn income to continue paying all of these expenses. He argues that Wife was fully aware of the expenses he was required to pay under the trial court's three temporary orders. Cf. Slicker v. Slicker, 464 S.W.3d 850, 861 (Tex. App.—Dallas 2015, no pet.) (finding of waste was not abuse of discretion where husband failed to put on any evidence to show that large amounts of money he withdrew from parties' trust were used for community purposes, or that wife was aware of withdrawals).
The trial court heard all of this testimony and evidence, and was the sole judge of its credibility. See M.A.M., 346 S.W.3d at 14. Although a court may consider one spouse's wrongful dissipation of community assets when dividing a marital estate, see Schlueter, 975 S.W.2d at 588-89, Wife bore the initial burden to establish that Husband disposed of her interest in community property without her knowledge or consent. See Puntarelli v. Peterson, 405 S.W.3d 131, 137-38 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (discussing shifting burdens of proof). On this record, we cannot say that the trial court abused its discretion in failing to reconstitute the marital estate before making its just and right division. See TEX. FAM. CODE ANN. § 7.009(c). We decide Wife's second issue against her.
3. Division of community estate
The trial court's division of the community estate must be just and right, having due regard for the rights of each party and any children of the marriage. TEX. FAM. CODE ANN. § 7.001. The property division need not be equal, and a trial court may consider many factors when exercising its broad discretion to divide the marital property. Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981). Such factors include the nature of the marital property; the relative earning capacity and business opportunities of the parties; the parties' relative financial condition and obligations; the parties' education; the size of any separate estates; the age, health, and physical conditions of the parties; fault in breaking up the marriage; the benefit the innocent spouse would have received had the marriage continued; and the probable need for future support. Id.; C.A.S., 405 S.W.3d at 384. The party complaining of the division of the community estate has the burden of showing from the evidence in the record that the trial court's division was so unjust and unfair as to constitute an abuse of discretion. C.A.S., 405 S.W.3d at 384.
In her third issue, Wife contends the trial court's final division of assets and debts was disproportionate, arbitrary, unreasonable, and an abuse of discretion. She relies, however, on her contentions in her first and second issues that property was not properly characterized and that the community estate should have been reconstituted. We have decided those issues against her.
Wife argues that Husband had no credit card debt or other unsecured liabilities at the time of trial, while she had amounts due on a promissory note and a credit card, as well as for attorney's fees. She contends that she was required to reimburse Husband for half of the fees paid to the court-appointed custody evaluator, but those fees had already been paid from community funds, resulting in her responsibility for 75 percent of the fees, instead of 50 percent.
But the record also reflects that the trial court awarded each party half of the remaining net sale proceeds of the marital residence; divided all community property accounts, including retirement accounts, equally between the parties; and ordered Husband to pay Wife $51,810.48 from one of his retirement accounts. There was evidence that Wife had obtained full-time employment with annual compensation of $60,000. There was evidence of infidelity by both parties, and evidence of expenses Wife incurred as a result of her affair that were paid from a community bank account. The trial court also confirmed separate property to Wife including a house that Wife valued at $223,345.00 on her sworn inventory and appraisement.
We conclude that Wife has failed to establish that the trial court's property division was so disproportionate as to constitute an abuse of discretion. Accordingly, we resolve Wife's third issue against her. See In re A.T., No. 05-16-00539-CV, 2017 WL 2351084, at *15 (Tex. App.—Dallas May 31, 2017, no pet.) (mem. op.) (husband failed to establish that property division was so disproportionate as to constitute abuse of discretion).
CONCLUSION
We affirm the trial court's judgment.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE 170268F.P05
JUDGMENT
On Appeal from the 330th Judicial District Court, Dallas County, Texas
Trial Court Cause No. DF-13-18833.
Opinion delivered by Justice Lang-Miers; Justices Myers and Boatright participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee Richard John Delrossi recover his costs of this appeal from appellant Michelle Lee Delrossi. Judgment entered this 22nd day of May, 2018.