Summary
holding that a failure to plead a claim for reimbursement is not per se fatal because "courts generally construe pleadings in a divorce case more liberally than in other civil cases"
Summary of this case from Barber v. BarberOpinion
No. 05-10-00096-CV
Opinion issued July 20, 2011.
On Appeal from the 397th Judicial District Court Grayson County, Texas, Trial Court Cause No. 08-0131-397.
Before Justices FITZGERALD, LANG-MIERS, and FILLMORE.
MEMORANDUM OPINION
Appellant Amjad Talliti (Husband) appeals from a final decree of divorce. In three issues Husband challenges (1) the characterization of the couple's residence as the separate property of appellee Soad Abu Sarris (Wife), (2) the division of the couple's community property, and (3) the award of reimbursement to Wife. We resolve Husband's issues against him and affirm the final decree of divorce.
Background
Husband and Wife were married in 1992. The couple did not have children but Wife had two children from a prior marriage. Wife sued Husband for divorce in January 2009. The trial court conducted a final hearing in October 2009, at which both Husband and Wife testified. Wife's Testimony
Wife testified that at the time of the marriage, she owned a home on Ridgeway Drive in Sherman, Texas (the Ridgeway Property), which she acquired with her previous husband in 1976. Husband and Wife lived in the Ridgeway Property throughout the marriage. Wife testified that Husband had "some difficulties with law enforcement" and was incarcerated twice during the marriage. According to Wife, she took out a $100,000 home equity loan during the marriage at Husband's request. She initially testified that she took out the loan to help Husband hire a lawyer; but she later testified that (1) $30,000 of the money was used to pay credit card debt, (2) $10,000 was used to repay Wife's daughter because she had paid certain taxes for Husband's tobacco store every month for six years while he was in jail, and (3) Husband took the remaining $60,000 and used it to repay some loans and to open a tobacco store in Texoma, Texas. At the time of the final hearing, and as a result of the home equity loan, the Ridgeway Property was encumbered by approximately $108,000. Wife estimated the value of the Ridgeway Property was $130,000 at the time of the divorce.
Wife testified that she worked at Douglas Distributing during the marriage and through her job she accrued money in a retirement account. When questioned about the amount of money in that account, Wife testified, "I don't have any idea because it go up and down because they send me-last time it was 5,000." Wife testified that she did not receive any income from the tobacco stores. According to Wife, Husband had an ownership interest in three tobacco stores, "but he put it [sic] in someone else's name because he said he's not going to give me any penny." When asked how she would like the court to address the couple's outstanding debt, Wife initially testified, "I need my house back. That's it." But when her lawyer asked her whether she was asking the court for a judgment against Husband, Wife responded, "I need the right way. I need my-whatever the Judge will request of me." During Wife's cross-examination, counsel for Husband introduced into evidence Respondent's Exhibit 1-a warranty deed showing that Wife's son, as grantor, conveyed the Ridgeway Property to Wife, as grantee, in 2003. In response, Wife explained that, while Husband was in jail, Wife temporarily put the Ridgeway Property in her son's name at Husband's request: "Yeah, this one happened when he was in jail. I put everything in my kids' name. He told me, because he doesn't want anybody to take it." And when Husband's counsel asked Wife if the deed from her son to her was the only evidence for the trial court concerning her ownership interest in the Ridgeway Property, she responded by further explaining the circumstances surrounding the transfer of the Ridgeway Property during the marriage as follows: "He did it when he was in jail. . . . Because-like he give it to me because he doesn't want the people, or what-when he was in jail to get-take, when he was in jail, take it away from me. [Husband] told me to do it."
Husband's counsel also introduced into evidence Respondent's Exhibit 2-a copy of the deed of trust Wife signed in 2003 connection with the home equity loan. Husband's counsel pointed out that the deed of trust identified Wife, the grantor, as "A SINGLE PERSON." In response, Wife testified, "No. This is wrong. . . . I signed it, but somebody did something wrong here. . . . I'm single? No. I was married to him, until this minute."
On redirect examination, Wife testified as follows:
Q. Just for clarification, when were you and Dr. Sarris divorced?
A. 1980.
Q. 1980?
A. Uh-huh.
Q. And at that point in time, was the property on Ridg[e]way conveyed by Dr. Sarris to your children with Dr. Sarris?
A. Yes. Yes, sir.
Q. Subsequent to that time, that property that as conveyed to the children, of which Husein was one, was conveyed to you in `03, correct?
A. Yes, sir.
Q. Never has there been an ownership interest by [Husband]?
A. No, no.Husband's Testimony
Husband testified that he earns approximately $2,500 per month as the manager of two tobacco stores, which are owned by a man named Naser Yacoub. Husband's testimony did not contradict Wife's testimony concerning her ownership of the Ridgeway Property. Husband was asked, "You are not claiming any interest in the house, are you?" And he answered, "No." Husband's testimony did, however, contradict Wife's testimony with respect to most of the proceeds of the home equity loan. Husband agreed with Wife that a check for $10,000 was given to Wife's daughter; but with respect to the remainder of the loan proceeds, Husband testified that (1) between $60,000 and $63,000 was paid directly from the lender "to the credit cards," (2) $10,000 was given to Wife's son, (3) $6,000 in cash was given to Wife's daughter, (4) Wife sent $6,000 to Egypt, and (5) Husband spent "maybe [$]4,000." Husband denied using any of the proceeds of the home equity loan to open a tobacco store, and instead testified that he opened that store using money borrowed from other people:
Q. Where did you get the money to open the tobacco store at 5731 Texoma Parkway? Where did that money come from?
A. It come from some merchandise from the-some company.
Q. Where?
A. I have some-from my friend in San Francisco, his name is Tovrick (phonetical), and I have some money from one of them, his name is Raeet (phonetical).
Q. And so they gave you some money to open the store?
A. That's correct.
. . .
Q. And how much money did you receive from your two friends in California?
A. California is 22,000, and my friend is 10,000 what he had.
Q. So 32,000?
A. 32,000.
Q. Okay. And that's what you used to open the store?
A. Yes.
Husband testified that he owes approximately $32,000 to the IRS and "some people." Husband also testified that the couple bought a house in Egypt in 1994, which was worth "like $80,000" at the time of the divorce.
After Husband testified, the trial court asked some questions about a letter from the IRS and a tax return for one of the tobacco stores, which were apparently admitted into evidence during a prior hearing. In connection with those questions, the trial court noted that the letter "says tax period 12-31, 1996, current balance 27 and a half-27 and some change[,] interest $10,744 is included within that amount." And with respect to the tobacco store on Texoma Parkway, the trial court noted that it was "looking at a tax return that was admitted at a previous hearing where [Husband] identified himself as the sole proprietor with respect to that specific address." In response, Husband's counsel stated,
Judge, I wish I could give you something that would make this whole thing explicable, but I can't. I mean, we have [Wife] who signed this as a deed of trust as a single woman[.] I think there are a lot of cultural differences here that make it difficult for at least me to understand, and I apologize for that.
At the conclusion of the hearing the trial court asked counsel for both parties to submit letters to the court "basically stating the relief that your clients are seeking." In response, Wife's counsel sent a letter to the trial court asking it to award Wife (1) the Ridgeway Property, (2) all personal property in her possession, (3) the vehicle in her possession, (4) the money in the "401/Sep Plan" earned by Wife during her employment at Douglas Distributing, and (5) "[a] judgment in the amount the court deems appropriate, based on the sworn testimony of each party." Husband's counsel sent a letter to the trial court asking it to award Husband (1) the personal property and money in his possession, (2) 50% of the money in Wife's work retirement account, (3) "50% of the community interest in the [Ridgeway Property]," and (4) "50% of the community interest in the residence owned by the parties located in Egypt."
The Decree
The final decree of divorce (1) awards each party the personal property, motor vehicle, and cash in that party's possession, (2) awards to Wife as her separate property the Ridgeway Property, (3) awards to Wife as her separate property all sums in her work retirement account, and (4) orders each party to pay (a) all debts incurred solely by that party from and after January 1, 2008, and (b) "[a]ll encumbrances, ad valorem taxes, liens, assessments, and other charges due or to become due" on the property awarded to that party. The trial court also granted a judgment against Husband "in the sum of $45,000.00."
Findings of Fact and Conclusions of Law
In response to Husband's request, the trial court issued findings of fact and conclusion of law, which included the following:
. . . Findings of Fact — Marital Estate
4. During the marriage, [Wife] and [Husband] acquired typical household furnishings, fixtures and appliances. The parties also obtained clothing, jewelry, and automobiles for their use. After the parties separated, each party maintained possession of certain community property.
5. While married [Wife] had accumulated $12,000 in a 401(k) account through employment at Douglas Distributing.
6. Before the marriage of the parties, [Wife] owned the [Ridgeway Property].
7. Based on various arrangements between the parties, debt was incurred by [Wife] that included refinancing the [Ridgeway Property]. The debt was incurred to pay off certain debts of the community, and to further certain business and financial pursuits of [Husband]. In that regard, a significant liabilities [sic] to the community estate were a Home Equity Note against the [Ridgeway Property] of $108,000 and an IRS Tax Lien of $27,500.
8. The following are [] current liabilities of [Wife]:
a. Home Equity Note against [the Ridgeway Property] $108,000
9. The following are current liabilities of [Husband]:
a. Personal Judgment (Tobacco Inventory) $32,000
10. The separate estate of [Wife] paid $45,000 toward the unsecured liabilities of the separate estate of [Husband].
11. The Court does not find the testimony of [Husband] regarding his business dealings credible, and also finds that certain financial information has been concealed from [Wife].
Conclusions of Law
. . .
7. As part of a just and right division of the assets and liabilities of the marriage, each party is awarded the personal property in that party's possession, including vehicles discussed at any hearing in this matter. [Wife] is also awarded the $12,000 in the Douglas Distributing 401(k). [Wife] is also awarded a claim for reimbursement in the amount of $45,000 from [Husband] based on the facts and evidence heard and considered by the Court in this matter.
First Issue: The Characterization of the Ridgeway Property
In his first issue Husband challenges the trial court's characterization of the Ridgeway Property as Wife's separate property.
Applicable Law
The characterization of property as community or separate is determined by the inception of title, i.e., when a party first has a right of claim to the property by virtue of which title is finally vested. Chavez v. Chavez, 269 S.W.3d 763, 767 (Tex. App.-Dallas 2008, no pet.). Separate property includes property "owned or claimed by a spouse before marriage." Tex. Fam. Code Ann. § 3.001(1) (West 2006). "Community property consists of the property, other than separate property, acquired by either spouse during marriage." Id. § 3.002. Property possessed by either spouse at the dissolution of the marriage is presumed to be community property, and a party who seeks to assert the separate character of property must prove that character by clear and convincing evidence. Id. § 3.003. Clear and convincing evidence is 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. See, e.g., id. § 101.007 (West 2008).
When reviewing an alleged property characterization error, we 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).
Analysis
In his first issue Husband argues that the evidence is insufficient to rebut the community property presumption with respect to the Ridgeway Property because Wife "presented absolutely no documentary evidence to establish that asset as her separate property." We do not agree.
A trial court does not abuse its discretion if there is some evidence of a substantive and probative character to support a finding of separate property. Magness, 241 S.W.3d at 912. "The testimony of a spouse seeking to overcome the community property presumption need not be corroborated to meet the clear and convincing standard." Pace v. Pace, 160 S.W.3d 706, 714 (Tex. App.-Dallas 2005, pet. denied).
The facts in this case are similar to the facts in Chavez, in which the husband testified that he purchased the couple's marital residence before the marriage and his wife did not dispute his testimony. 269 S.W.3d at 767. In that case we held that "[t]his undisputed testimony is sufficient evidence to establish the separate character of the property." Id.; cf. Dahl v. Dahl, No. 05-07-01338-CV, 2009 WL 866199, at *2-3 (Tex. App.-Dallas Apr. 2, 2009, no pet.) (mem. op.) (trial court abused its discretion in characterizing marital residence as community property because husband testified he bought the residence before the marriage, which established the property was his separate property).
In this case, Wife testified that she acquired the Ridgeway Property before the marriage. Husband also introduced into evidence (1) a deed pursuant to which Wife's son conveyed the Ridgeway Property to Wife in her name alone, and (2) the deed of trust that Wife executed to secure the home equity loan which was signed by Wife alone. No testimony or other evidence was introduced that contradicted Wife's testimony that the Ridgeway Property was her separate property. And, as we noted, Husband told the trial court he was not claiming any interest in the Ridgeway Property.
Husband relies in part on In re Marriage of Santopadre, No. 05-07-00027-CV, 2008 WL 3844517 (Tex. App.-Dallas Aug. 19, 2008, no pet.) (mem. op.). But unlike Santopadre, Husband in this case stated that he was not claiming any interest in the Ridgeway Property.
We resolve Husband's first issue against him.
Second Issue: The Division of Community Property
In his second issue Husband challenges the trial court's division of the couple's community property.
Applicable Law
In an action for divorce, Texas law requires the trial court to divide 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). A "just and right" division does not require the trial court to divide the marital estate into equal shares. See, e.g., Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981) ("community property need not be equally divided"). In making its decision, the trial court may consider many factors, including business opportunities, education, relative physical conditions, relative financial condition and obligations, disparity of ages, size of separate estates, and the nature of the property. Id. "The trial court has wide discretion in dividing the estate of the parties and that division should be corrected on appeal only when an abuse of discretion has been shown." Id.
When an appellant in a family law case challenges the trial court's order on legal or factual sufficiency grounds, we do not treat these as independent grounds of reversible error; instead we consider them as factors relevant to our assessment of whether the trial court abused its discretion. In re A.B.P., 291 S.W.3d 91, 95 (Tex. App.-Dallas 2009, no pet.). To determine whether the trial court abused its discretion because the evidence is legally or factually insufficient, we consider (1) whether the trial court had sufficient evidence upon which to exercise its discretion, and (2) whether the trial court erred in the application of that discretion. Id. We conduct the applicable sufficiency review with regard to the first question. Id. Analysis
In his second issue Husband argues that the division of the couple's community property was "contrary to the evidence." But Husband does not cite any specific evidence or otherwise explain the basis for his argument that the division of community property is "contrary to the evidence." As a result, we conclude that this argument was not adequately briefed. See Tex. R. App. P. 38.1(i).
Husband also argues that Wife "failed to provide any evidence as to the actual value of the assets" and "the trial court was not provided adequate information" to justify the property division. With respect to Wife's 401(k) account, we do not agree that there was no evidence of its value. Wife testified that she thought the balance was around $5,000; and Husband testified that the balance was "like [$]15,000." And with respect to the couple's other community property, Husband is estopped from complaining on appeal about a lack of evidence concerning value because Husband did not provide any evidence of value. See Deltuva v. Deltuva, 113 S.W.3d 882, 887 (Tex. App.-Dallas 2003, no pet.) ("[W]hen a party does not provide values for property to be divided, that party may not complain on appeal that the trial court lacked sufficient information to properly divide the property."). In the absence of other values, we cannot conclude that the trial court did not make a just and right division of the couple's community property. See id. (without evidence of values of the community estate's assets, "[appellant] cannot show the trial court did not make a just and right division of the marital estate").
We resolve Husband's second issue against him.
Third Issue: The Judgment Awarded to Wife
In his third issue Husband challenges the judgment of $45,000 awarded to Wife for reimbursement.
Applicable Law
Reimbursement is an equitable right that arises when the funds or assets of one marital estate are used to benefit and enhance another estate without itself receiving some benefit. Vallone v. Vallone, 644 S.W.2d 455, 458-59 (Tex. 1982). Reimbursement lies within the discretion of the trial court. Chavez, 269 S.W.3d at 768. Great latitude must be accorded to the trial court in applying equitable principles to determine reimbursement claims. Id. The discretion to be exercised in evaluating a claim for reimbursement is equally as broad as the discretion exercised by a trial court in making a just and proper division of the community estate. Id. In reviewing the actions of the trial court, the appellate court will presume the trial court exercised its discretion properly. Id. The trial court's discretion will not be disturbed on appeal unless a clear abuse has been shown. Id. Analysis
Husband appears to argue that Wife was not entitled to reimbursement because Wife did not plead a claim for reimbursement. We disagree. Although Wife did not plead a claim for reimbursement, her petition included a prayer for general relief, and courts generally construe pleadings in a divorce case more liberally than in other civil cases. See, e.g., Reimert v. Reimert, No. 09-07-00418-CV, 2008 WL 4890900, at *3 (Tex. App.-Beaumont Nov. 13, 2008, no pet.) (mem. op.) ("A failure to specifically plead a claim for economic contribution is not per se fatal to recovery for such a claim under Texas law as family courts generally construe divorce pleadings more liberally than in other civil cases."); Smith v. Smith, 715 S.W.2d 154, 156 (Tex. App.-Texarkana 1986, no writ) (wife was entitled to reimbursement because she prayed for general relief and issue was tried by consent).
Husband also contends that Wife did not "seek reimbursement during the trial of this case." We disagree. During the final hearing Wife essentially testified that Husband took the majority of the proceeds from her home equity loan-as much as $60,000-and used it to open a tobacco store, from which she did not receive any benefit. In connection with that testimony, Wife asked the trial court for any relief the court deemed appropriate, including a judgment against Husband or some other form of relief. Wife also asked for a judgment against Husband in her post-trial letter to the trial court.
Husband also argues that the judgment against him is "contrary to the evidence presented at trial" because there were no documents admitted into evidence to demonstrate how the proceeds of the home equity loan were used. We disagree. The judgment is supported by Wife's testimony, and the fact that there were no documents admitted during the final hearing concerning the use of the loan proceeds does not render the judgment contrary to the evidence. In other words, the lack of supporting documents did not render Wife's testimony incompetent or of no evidentiary value. See, e.g., Holloway v. Holloway, 671 S.W.2d 51, 56 (Tex. App.-Dallas 1983, writ dism'd); Sheikh v. Sheikh, No. 01-05-00218-CV, 2007 WL 3227683, at *7 (Tex. App.-Houston [1st Dist.] Nov. 1, 2007, no pet.) (mem. op.).
Husband also argues that the award of reimbursement should be reversed because "the property securing the loan was, as contended by [Husband], community property." To the contrary, as explained above, we have already concluded that the trial court did not abuse its discretion when it characterized the Ridgeway Property as Wife's separate Property.
We resolve Husband's third issue against him.
Conclusion
We resolve Husband's issues against him and affirm the final decree of divorce.