Opinion
NO. 09-14-00040-CV
01-14-2016
SUSAN LYNN MCBRIDE, Appellant v. DALE WORD MCBRIDE, Appellee
On Appeal from the County Court at Law Polk County, Texas
Trial Cause No. CIV26944
MEMORANDUM OPINION
Susan Lynn McBride appeals from a final judgment of divorce. In four issues, Susan complains about provisions in the decree that provide for the property division, spousal support, and attorney's fees, and she argues that the jury's failure to find that the appellee, Dale Word McBride, committed fraud against the community was against the great weight and preponderance of the evidence. We delete the judgment for attorney's fees from the decree and we affirm the remainder of the trial court's judgment.
Property Division
In issue one, Susan contends that the trial court abused its discretion in disproportionately dividing the community property of the parties. The Family Code provides that a trial court "shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage." Tex. Fam. Code Ann. § 7.001 (West 2006). Trial courts may exercise wide discretion in ordering a property division. Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998). Absent an abuse of discretion, the trial court's division of a marital estate will not be disturbed on appeal. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). A trial court abuses its discretion when it acts arbitrarily or unreasonably, and without reference to any guiding rules or principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).
The trial court's division of property need not be equal, and we presume the trial court properly exercised its discretion in determining the value and division of marital property. Bell v. Bell, 513 S.W.2d 20, 22 (Tex. 1974). A trial court may award an unequal division of marital property when a reasonable basis exists for doing so. Loaiza v. Loaiza, 130 S.W.3d 894, 899 (Tex. App.—Fort Worth 2004, no pet.). "Legal and factual sufficiency are relevant factors, rather than independent bases for reversal, in determining whether the trial court abused its discretion." Aduli v. Aduli, 368 S.W.3d 805, 819 (Tex. App.—Houston [14th Dist.] 2012, no pet.). "The party attacking the property division bears the heavy burden of showing that the trial court's property division was not just and right." Pletcher v. Goetz, 9 S.W.3d 442, 446 (Tex. App.—Fort Worth 1999, pet. denied).
In exercising its discretion to divide the community estate, the trial court may consider several factors, including each party's "capacities and abilities, benefits which the party not at fault would have derived from continuation of the marriage, business opportunities, education, relative physical conditions, relative financial condition and obligations, disparity of ages, size of separate estates, and the nature of the property." Murff, 615 S.W.2d at 699. These factors also include "reimbursement; gifts to a spouse during marriage; excessive community property gifts to others; wasting community assets; out-of-state property; tax consequences; and credit for temporary alimony paid." Baccus v. Baccus, 808 S.W.2d 694, 700 (Tex. App.—Beaumont 1991, no writ). However, "when dissolution of marriage is sought solely on the ground of insupportability, evidence of 'fault' becomes irrelevant as an analytical construct and may not be considered by the trial court in its 'just and right' division of the community estate." Phillips v. Phillips, 75 S.W.3d 564, 572 (Tex. App.—Beaumont 2002, no pet.). Because the trial court has "the opportunity to observe the parties on the witness stand, determine their credibility, evaluate their needs and potentials, both social and economic[,]" we will defer to the trial court's factual resolutions and any credibility determinations. See Murff, 615 S.W.2d at 700.
The trial court used the parties' joint inventory to divide their community estate. According to Susan, the parties contested the value of 103 items on the inventory. The trial court did not assign values to the property, but in a letter announcing the property division, the trial court stated that "the overall value is approximately equal." Susan contends that when the average of the contested values is assigned to the property on the inventory, Dale received approximately sixty percent of the net value of the community estate. "However, when conflicting evidence of value exists, a trial court is permitted to assign a value within the range of evidence." Moore v. Moore, 383 S.W.3d 190, 200 (Tex. App.—Dallas 2012, pet. denied). We presume the trial court found any value that is supported by the record and which supports the judgment. See Bishop v. Bishop, 359 S.W.2d 869, 871 (Tex. 1962).
Susan contends that the trial court awarded to her assets and liabilities with a net value of $48,257.05, but awarded to Dale assets and liabilities with a net value of $71,636.16. The assets that the trial court awarded to Dale included a welding truck, welding machine, assorted power and electric tools, cutting torch hose and reel, welding leads, grinders, cutting torches, grinding disc and brushes, original bed, beveling machines, assorted tools, tack and saddles. In her appellate brief, Susan argues these particular assets had a net value of $27,050, which is $14,605 more than the value that Dale ascribed to these same assets in the joint inventory, but she does not argue that there is insufficient evidence to support Dale's figures. Also, Susan either averages or selects an intermediate value between the parties' joint inventory values for the household furnishings and appointments awarded to her, including living room furniture, bedroom furniture, dining room furniture, and kitchen appliances. Susan attributes $7,842 less in value to this property in her brief than Dale placed on this property in the joint inventory. Susan claims that in his testimony, Dale agreed to her values for the furniture in the master bedroom and the back bedroom, but Dale testified that he assigned the higher values on his inventory because the bedroom furnishings were antiques, and he requested that the trial court award the furniture to him if it accepted Susan's lower values. Also, Dale was "willing to pay" $2,100 for the master bedroom furniture if the trial court would award it to him, but he did not concede that Susan's values were correct. Susan explained in the divorce hearing how she arrived at values that differed from the values assigned by Dale, but the weight and credibility of the testimony of the two witnesses is a matter for the trier of fact to determine. See In re C.A.S, 405 S.W.3d 373, 390-91 (Tex. App.—Dallas 2013, no pet.).
Susan complains that the trial court awarded Dale a disproportionate share of the community estate through the disposition of the family's residence. The parties agreed that the residence was worth $114,000, and the unpaid balance of the purchase money mortgage was $59,695. The divorce decree retained the joint tenancy, granted Susan the exclusive possession of the property for ten years, required her to pay for insurance and repairs, and required Dale to pay the mortgage and taxes for the ten-year period. The trial court ordered the sale of the property at the conclusion of Susan's ten-year period of exclusive possession, and provided that Dale recoup any post-divorce reduction of principal with the remainder of the proceeds to be evenly divided between them. In her appellate brief, Susan suggests Dale will likely pay off the mortgage within ten years, and she argues it is inequitable and manifestly unjust to allow Dale to realize approximately $60,000 more from the family residence than she will. We note, however, the decree allows Susan to elect to sell the property before the ten-year period of her exclusive possession expires. While Susan maintains her exclusive possession of the property, Dale must pay the mortgage, but he will not recover post-divorce interest payments. Furthermore, Susan may prevent Dale from recouping post-divorce principal by electing to sell the property before Dale further reduces the principal.
In a letter announcing the property division, the trial court stated that the division was "approximately equal" in value for each spouse. Susan has not shown on appeal that Dale received a disproportionate share of the community estate. We overrule issue one.
Spousal Maintenance
In issue two, Susan contends the trial court abused its discretion in failing to award spousal support in an amount that provides for her minimum reasonable needs. Determining the minimum reasonable needs for a person involves a fact-specific inquiry made by the trial court on a case-by-case basis. Cooper v. Cooper, 176 S.W.3d 62, 64 (Tex. App.—Houston [1st Dist.] 2004, no pet.). We review a trial court's decision to award spousal maintenance for abuse of discretion. Tellez v. Tellez, 345 S.W.3d 689, 691 (Tex. App.—Dallas 2011, no pet.). "The trial court does not abuse its discretion if there is some evidence of a substantive and probative character to support the decision." Id.
Neither party disputes that Susan qualified for spousal maintenance. See generally Tex. Fam. Code Ann. § 8.051 (West Supp. 2015). Among other factors, in determining the nature, amount, duration, and manner of periodic payments, the trial court may consider "each spouse's ability to provide for that spouse's minimum reasonable needs independently, considering that spouse's financial resources on dissolution of the marriage[.]" Tex. Fam. Code. Ann. § 8.052 (West Supp. 2015). Susan testified that her monthly income includes a $757 Social Security Disability payment, from which a Medicaid premium of $143 is deducted, and a $212 pension disability payment. A Social Security Administration notice of award that was admitted into evidence states that Susan would receive $797 each month and that Medicaid premiums would be deducted from that amount. Dale testified that Susan would be eligible to begin drawing her monthly $715 share of his retirement pension beginning October 2015.
The trial court ordered Dale to pay $1,000 monthly for ten years as spousal maintenance. The trial court also ordered Dale to pay the $836 monthly house note, the $889 monthly car note for Susan's Camaro, and property taxes that Susan estimated to be $120 per month. Susan argues that her testimony establishes that her monthly basic needs equal $5,460, which after deducting her disability and retirement payments and the court-ordered spousal support, leaves her with a $1,755 monthly shortfall. Susan contends that a $3,644 monthly spousal maintenance payment would meet her basic needs and require approximately twenty percent of Dale's average monthly gross income, which is the maximum amount of spousal maintenance authorized by the applicable statute. See Tex. Fam. Code Ann. § 8.055(a) (West Supp. 2015).
Dale argues the evidence shows that his monthly income is only $10,666 and the maximum monthly spousal award would be $2,133. See id. Also, he contends that Susan's basic monthly needs are considerably less than she stated. Dale challenged Susan's claim that she expends $1,000 monthly on medicine because she could document only $180 in pharmacy charges. Susan claimed to need $300 each month for lawn maintenance, but she admitted that she never paid anyone to maintain her lawn. Susan's adult daughter lives with her, and Dale argues that the women should share responsibility for the grocery, electric, and cable bills. After accounting for these adjustments and the spousal maintenance ordered by the trial court, Dale argues that Susan's unmet basic monthly need is only $277.
In contrast to the child support guidelines, which establish a presumptively reasonable obligation based upon the obligor's monthly net resources, the statutory provisions that authorize a trial court to award spousal maintenance establishes only the maximum obligation. Compare Tex. Fam. Code Ann. § 8.055(a) (West Supp. 2015) with §§ 154.122 (West 2014), 154.125 (West Supp. 2015). Accordingly, the trial court was authorized to order maintenance, but there was no minimum level of maintenance required by the statute. See Tex. Fam. Code Ann. § 8.055(a). Furthermore, the trial court could reasonably have determined that if Dale paid the mortgage and Susan's car note, Susan's expenses for her most basic needs were approximately $1,988, and conclude that those expenses would be met by additional spousal maintenance of $1,000 per month in addition to Susan's disability and retirement income. There is some evidence of a substantive and probative character to support the trial court's decision. See Tellez 345 S.W.3d at 691. We overrule issue two.
Attorney's Fees
In her third issue, Susan challenges the award of $2,500 in attorney's fees to Dale's trial counsel. Susan argues no pleading supports the award and no evidence of Dale's attorney's fees were submitted to the trial court. Dale argues the issue was tried by consent and the trial court could order Susan to pay Dale's attorney's fees as part of the property division. "Unless attorney's fees are mandated by statute, the party seeking fees must plead for them." Bailey v. Rodriguez, 351 S.W.3d 424, 427 (Tex. App.—El Paso 2011, no pet.).
The suit was filed before the effective date of the 2013 amendment to section 6.708(c) of the Texas Family Code that authorizes a trial court to award reasonable attorney's fees in a divorce. See Tex. Fam. Code Ann. § 6.708(c) (West Supp. 2015). --------
"When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." Tex. R. Civ. P. 67. To determine whether the issue was tried by consent, we examine the record not for evidence of the issue, but rather for evidence of trial of the issue. Maswoswe v. Nelson, 327 S.W.3d 889, 895 (Tex. App.—Beaumont 2010, no pet.) (quoting Greene v. Young, 174 S.W.3d 291, 301 (Tex. App.—Houston [1st Dist.] 2005, pet. denied)). "Trial by consent is intended to cover the exceptional case where it clearly appears from the record as a whole that the parties tried the [unpleaded] issue." Mastin v. Mastin, 70 S.W.3d 148, 154 (Tex. App.—San Antonio 2001, no pet.). Any defects of pleading are waived when both parties present evidence on an issue and the issue is developed during trial without objection. Ingram v. Deere, 288 S.W.3d 886, 893 (Tex. 2009). However, the doctrine of trial by consent generally does not apply if the evidence said to support the issue is relevant to other issues raised by the pleadings. See Sage St. Assocs. v. Northdale Constr. Co., 863 S.W.2d 438, 446 (Tex. 1993). The admission of evidence relevant to a pleaded issue ordinarily does not demonstrate a clear intent on the part of all parties to try the unpleaded issue because evidence that is relevant to a pleaded issue would not be calculated to lead to an objection. Case Corp. v. Hi-Class Bus. Sys. of Am., Inc., 184 S.W.3d 760, 771 (Tex. App.—Dallas 2005, pet. denied).
"In a divorce case, a trial court may award attorney's fees as part of a just and right division of the marital estate." Roman v. Roman, No. 09-14-00020-CV, 2015 WL 8476117, at *3 (Tex. App.—Beaumont Dec. 10, 2015, no pet. h.) (mem. op.). Susan's pleadings requested that she be awarded attorney's fees as part of an equitable division of the marital estate. Susan's counsel testified that he is familiar with the usual, reasonable, and customary fees charged for representing clients in cases such as the McBride divorce, and that in his opinion, $225 would be a reasonable hourly rate. He testified that he expended 72 hours working on the case. On cross-examination, Susan's counsel indicated that he could not say what Dale's counsel's hours were. He did not agree that Dale's attorney's fees would be comparable to Susan's, but he stated that anything Dale's lawyer did in representing his client would be reasonable. Susan's counsel estimated thirteen hours was a reasonable estimate of the time associated with prosecuting the jury portion of the trial, which concerned Susan's claim that Dale defrauded the community estate. He was not asked what fee would be reasonable to defend the jury portion of the trial.
The record developed through Susan's attorney was relevant to a pleaded issue: Susan's attorney's fees. Evidence concerning whether Dale's attorney's fees would be comparable to Susan's is relevant to whether it would be equitable to require Dale to pay for Susan's attorney where he possibly incurred roughly comparable fees, so asking the witness if his fees would be comparable to opposing counsel's would not necessarily trigger an objection. See generally Case Corp., 184 S.W.3d at 771. Furthermore, Susan's lawyer's response that anything Dale's lawyer did in representing his client would be reasonable is not evidence of the amount of the lawyer's reasonable and necessary attorney's fees. Temporary orders agreed to by Susan and Dale in a Rule 11 agreement stated that any debt created after February 24, 2012, shall be the sole responsibility for the incurring party. No attorney's fees for Dale's counsel were listed in the joint inventory, and the section of the decree that divided the parties' community liabilities did not list a debt owed to Dale's attorney. There is no evidence in the record concerning the contractual arrangement between Dale and his lawyers, and the record contains no evidence that Dale incurred a debt to his attorney in the amount of $2,500. No documents or testimony identify counsel's hourly rate, the work performed, or the hours expended on the case on Dale's behalf. We conclude that the issue was not tried by consent. We sustain issue three.
Fraud on the Community
In her fourth and final issue, Susan contends that the jury's failure to find that Dale committed fraud with respect to Susan's community property rights was against the great weight and preponderance of the evidence. When a party attacks the factual sufficiency of an adverse finding, we examine the entire record, considering the evidence both in favor of and contrary to the challenged finding. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We must consider all the evidence and determine whether the adverse finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Id. The credibility of the witnesses and the weight to be given to their testimony is within the sole province of the jury. See In re Moore, 890 S.W.2d 821, 836 (Tex. App.—Amarillo 1994, no writ).
"It is constructively fraudulent for one spouse to dispose of the other spouse's interest in community property without that spouse's knowledge or consent." Wright v. Wright, 280 S.W.3d 901, 907 (Tex. App.—Eastland 2009, no pet.).
If the trier of fact determines that a spouse has committed actual or constructive fraud on the community, the court shall: (1) calculate the value by which the community estate was depleted as a result of the fraud on the community and calculate the amount of the reconstituted estate; and (2) divide the value of the reconstituted estate between the parties in a manner the court deems just and right.Tex. Fam. Code Ann. § 7.009(b) (West Supp. 2015).
In a trial before a jury, Susan asserted that Dale made unreasonable and excessive transfers of property between their initial separation in December 2011 and their divorce in May 2013. Susan identified frequent cash withdrawals, trips, financial assistance to their adult son, and purchases of vehicles for Dale's use to support her claim that Dale intentionally depleted the community estate. Dale argued to the jury that the trial court's temporary orders required him to pay all of the bills, that he paid all of the bills, and that he did not interfere with Susan's enjoyment of his income. Dale claimed that he reduced their liabilities from $238,000 to $186,405. Dale suggested that his spending while the divorce was pending was no different from Susan's, and both parties displayed poor cash management skills that did not rise to the level of fraud. For example, Dale took several trips, but Susan did too.
According to Susan, $219,387 in deposits and $191,437 in payments and withdrawals passed through their joint account in a nine-month period in 2011. Susan argued to the jury that Dale could not account for approximately $63,000 in cash withdrawn over the following nineteen months after Dale set up a separate account. Dale testified he and Susan agreed to pay tithes and that along with his living expenses, he tithed ten percent of his income out of the cash withdrawals. Dale could not recall which church he attended at a particular time, but he named three churches that he attended during the applicable time period. Dale did not keep records, but stated that he could tell what they were by the dates and the amounts on the checks. Asking about particular checks, Susan's counsel noted that Dale did not know what the money was for when Susan took his deposition. Dale admitted that when he was deposed he did not mention his tithes in reference to particular checks that he wrote, but testified that in deposition he did reveal that he pays tithes.
In his testimony before the jury, Dale claimed that he switched from using checks to cash because Susan interfered with his checking account. Dale admitted that he provided financial support to both of their adult children, but Susan admitted that she agreed to pay their son's child support obligation. Also, Susan transferred funds into joint accounts she had with the children, and she covered some of their daughter's expenses. Dale implied that it was Susan who lacked transparency concerning the community estate; for example, Dale's vehicle purchases appear on the inventory, but Susan did not disclose her account balances on the inventory. Also, Susan admitted that she withdrew all of the money from their grandson's custodial account. Furthermore, Susan testified that when their son and daughter-in-law separated, Susan opened a joint checking account with their son because he did not want his wife to spend his paycheck.
The trial court instructed the jury, as follows:
A spouse commits fraud if that spouse transfers community property or expends community funds for the primary purpose of depriving the other spouse of the use and enjoyment of the assets involved in the transaction. Such fraud involves dishonesty of purpose or intent to deceive.
A spouse may make moderate gifts, transfers, or expenditures of community property for just causes to a third party. However, a spouse commits fraud if a gift, transfer, or expenditure of community property that is capricious, excessive, or arbitrary is unfair to the other spouse. Factors to be considered in determining the fairness of a gift, transfer, or expenditure are:
1. The relationship between the spouse making the gift, transfer, or expenditure and the recipient;
2. Whether there were any special circumstances tending to justify the gift, transfer, or expenditure;
3. Whether the community funds used for the gift, transfer, or expenditure were reasonable and proportionate to the community estate remaining.
Question Number 1.
Did Dale McBride commit fraud with respect to the community property rights of Susan McBride?
Answer "Yes" or "No" No
In evaluating whether Dale's expenditures were unfair to Susan, the jury could choose to believe Dale when he claimed that he supported his adult children and paid tithes as the McBrides had done before he filed for divorce. The lack of documentary evidence to support Dale's testimony went to his credibility and to the weight to be given his testimony by the factfinder, but did not divest his testimony of all probative value. See Sheikh v. Sheikh, No. 01-05-00218-CV, 2007 WL 3227683, at *8 (Tex. App.—Houston [1st Dist.] Nov. 1, 2007, no pet.) (mem. op.). Factually sufficient evidence supports the jury's verdict. We overrule issue four.
Conclusion
We reverse the award of $2,500 in attorney's fees to counsel for Dale McBride, and we delete the judgment for attorney's fees from the decree. The remainder of the trial court's judgment is affirmed.
REVERSED AND RENDERED IN PART; AFFIRMED IN PART.
/s/_________
CHARLES KREGER
Justice Submitted on December 29, 2014
Opinion Delivered January 14, 2016 Before McKeithen, C.J., Kreger and Horton, JJ.