Victor Manuel Quijano v. Maria Eugenia Amaya ( 2018 )

NUMBER 13-16-00485-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
VICTOR MANUEL QUIJANO, Appellant,
v.
MARIA EUGENIA AMAYA, Appellee.
On appeal from the 138th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Hinojosa
Memorandum Opinion by Justice Contreras
After a marriage that lasted over thirty years, appellee Maria Eugenia Amaya filed
a petition for divorce against appellant Victor Manuel Quijano. Following a bench trial,
the trial court rendered a final decree of divorce. By three issues, Victor, proceeding pro
se, argues that the trial court erred in: (1) the division of the marital estate; (2) awarding
Maria spousal maintenance; and (3) awarding Maria child support.1 We affirm in part and
reverse and render in part.
I. BACKGROUND
Victor and Maria married on October 25, 1983, and they separated sometime
between January and April of 2014. On December 2, 2015, Maria filed a petition for
divorce on the ground of insupportability. See TEX. FAM. CODE ANN. § 6.001 (West,
Westlaw through 2017 1st C.S.). Victor did not file an answer.
At the time of the divorce, the marital estate consisted of a home, three cars,
personal belongings, cash and bank accounts, and restaurant equipment from a prior
business venture. The couple also had six children during their marriage; however, only
A.S.Q. was a minor at the time of the divorce.
On April 18, 2016, the divorce suit was tried to the bench, and Victor proceeded
pro se. Victor testified that he is self-employed and operates a pest control business as
a sole proprietor, while Maria testified she sometimes worked during the marriage by
providing counseling services out of her father’s home in Brownsville, Texas. Maria also
testified that she does not have permission to work in the United States.
The trial court granted Maria’s petition for divorce on the ground of insupportability;
divided the marital estate between the parties; appointed Victor and Maria as joint
managing conservators of A.S.Q.; and ordered Victor to pay spousal maintenance to
Maria for one year and to pay child support until A.S.Q. turned eighteen. Neither party
requested findings of fact or conclusions of law, and the trial court issued none. See id.
§§ 6.711, 154.130 (West, Westlaw through 2017 1st C.S.). This appeal followed.
1 Maria did not file a brief to assist us with this appeal.
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II. DIVISION OF THE MARITAL ESTATE
By his first issue, Victor argues that the trial court erred in its division of the marital
estate.
A. Standard of Review and Applicable Law
We review the trial court’s division of the community estate upon divorce for an
abuse of discretion. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). A trial court abuses
its discretion when it acts arbitrarily or unreasonably without reference to guiding rules or
principles, or by failing to analyze or apply the law correctly. Iliff v. Iliff, 339 S.W.3d 74,
78 (Tex. 2011).
In a divorce, a trial court will divide community property among the parties;
however, it cannot divest either spouse of his or her separate property. See Pearson v.
Fillingim, 332 S.W.3d 361, 363–64 (Tex. 2011) (per curiam); Eggemeyer v. Eggemeyer,
554 S.W.2d 137, 140–41 (Tex. 1977). “Property possessed by either spouse during or
on dissolution of marriage is presumed to be community property.” TEX. FAM. CODE ANN.
§ 3.003(a) (West, Westlaw through 2017 1st C.S.). A trial court divides the parties’
community property “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.” Id. § 7.001 (West, Westlaw
through 2017 1st C.S.).
This “just and right” standard is the sole method to account for and to divide
community property upon divorce. Schlueter v. Schlueter, 975 S.W.2d 584, 588 (Tex.
1998). “Such a standard may at times lead to a disproportionate division of assets and
liabilities of the parties, depending on the circumstances that courts may consider in
refusing to divide the marital estate equally.” Id.; see also Murff, 615 S.W.2d at 699 (listing
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nonexclusive factors court may consider in unequally dividing community estate). Thus,
the property division need not be equal. Murff, 615 S.W.2d at 698–99.
“In the absence of findings of fact and conclusions of law, an appellate court must
uphold the trial court’s judgment on any legal theory supported by the record.” In re
Marriage of Smith, 115 S.W.3d 126, 131 (Tex. App.—Texarkana 2003, pet. denied) (citing
Seaman v. Seaman, 425 S.W.2d 339, 341 (Tex. 1968)); LeBlanc v. LeBlanc, 761 S.W.2d
450, 452–53 (Tex. App.—Corpus Christi 1988), writ denied per curiam, 778 S.W.2d 865
(Tex. 1989). And, a 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 of the
community estate was so unjust and unfair as to constitute an abuse of discretion. Slicker
v. Slicker, 464 S.W.3d 850, 858 (Tex. App.—Dallas 2015, no pet.) (citing In re Marriage
of C.A.S. & D.P.S., 405 S.W.3d 373, 384 (Tex. App.—Dallas 2013, no pet.)). Generally,
a party who does not provide to the trial court any value for the property to be divided
cannot, on appeal, complain of the trial court’s lack of information in dividing the
community estate. Id.; Aduli v. Aduli, 368 S.W.3d 805, 820 (Tex. App.—Houston [14th
Dist.] 2012, no pet.).
B. Analysis
Here, the trial court did not issue findings of fact or conclusions of law, and Victor
did not request that the trial court do so. See TEX. FAM. CODE ANN. § 6.711. The parties’
estate at the time of the divorce consisted of: (1) the marital home at 35 Cuba Drive
Street, (2) a 2016 Hyundai Tucson, (3) a 2004 Nissan Quest, (4) a 1996 Mazda pick-up
truck, (5) restaurant equipment from a business that was no longer operational, (6)
personal property in each party’s possession, and (7) cash and bank accounts. The trial
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court awarded Maria and Victor each half of the proceeds from the sale of the house2 and
from the sale of the restaurant equipment. The trial court also awarded Maria and Victor
the personal property, bank accounts, and cash each had in his or her possession and
under his or her sole control. Finally, the trial court awarded Maria the car she drove (the
2016 Hyundai), and it awarded Victor with the vehicles he drove (the Nissan Quest and
the Mazda pick-up truck).
On appeal, Victor argues that the trial court erred in dividing the marital estate
because the car and personal property awarded to Maria were more valuable than the
property and cars awarded to him. As noted, a party complaining of the trial court’s
division of community property must be able to demonstrate from evidence in the record
that the division was so unjust and unfair as to constitute an abuse of discretion. Slicker,
464 S.W.3d at 858; Chacon v. Chacon, 222 S.W.3d 909, 915 (Tex. App.—El Paso 2007,
no pet.); LeBlanc, 761 S.W.2d at 453. However, Victor did not introduce any evidence at
trial of the value of any of the personal property or of any of the cars, and the record
contains no evidence from which we can conclude that the division of the community
property was so unjust and unfair as to constitute an abuse of discretion. See Slicker,
464 S.W.3d at 858; Aduli, 368 S.W.3d at 820–21. Thus, Victor has not carried his burden
on appeal of showing that the trial court’s division was so unjust and unfair to constitute
an abuse of discretion. See Slicker, 464 S.W.3d at 858; Aduli, 368 S.W.3d at 820–21;
LeBlanc, 761 S.W.2d at 452–53. We conclude that the trial court did not abuse its
2 The proceeds from the sale of the house were to be divided equally between Victor and Maria
after the satisfaction of a $50,000 lien granted to Maria. The lien arose out of a claim for reimbursement
made by Maria for separate-property funds she spent towards the down payment and remodeling of the
home. See id. §§ 3.401–.409, 7.007 (West, Westlaw through 2017 1st C.S.). On appeal, Victor does not
dispute the award to Maria of the reimbursement claim or the lien on the home.
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discretion in its division of the parties’ marital estate. See Aduli, 368 S.W.3d at 820–21;
see also In re Marriage of Luna, No. 07-16-00065-CV, 2016 WL 6873051, at *3 (Tex.
App.—Amarillo Nov. 18, 2016, no pet.) (mem. op.); Langan v. Langan, No. 14-12-01134-
CV, 2014 WL 3051216, at *7–8 (Tex. App.—Houston [14th Dist.] July 3, 2014, no pet.)
(mem. op.).
We overrule Victor’s first issue.
III. SPOUSAL MAINTENANCE
By his second issue, Victor argues that the trial court erred in awarding Maria
spousal maintenance for one year.
A. Standard of Review and Applicable Law
We review the trial court’s decision to award spousal maintenance for an abuse of
discretion. See Lopez v. Lopez, 55 S.W.3d 194, 198 (Tex. App.—Corpus Christi 2001,
no pet.). Under the abuse of discretion standard, legal and factual sufficiency of the
evidence are not independent grounds for asserting error; however, they are relevant
factors in assessing whether the trial court abused its discretion. Diaz v. Diaz, 350 S.W.3d
251, 254 (Tex. App.—San Antonio 2011, pet. denied) (citing Brooks v. Brooks, 257
S.W.3d 418, 425 (Tex. App.—Fort Worth 2008, pet. denied)). In determining whether an
abuse of discretion has occurred because the evidence is legally or factually insufficient
to support the trial court’s decision, we ask: (1) whether the trial court had sufficient
information upon which to exercise its discretion; and (2) whether the trial court erred in
the application of its discretion. Gonzalez v. Villarreal, 251 S.W.3d 763, 774 n.16 (Tex.
App.—Corpus Christi 2008, pet. dism’d); In re T.D.C., 91 S.W.3d 865, 872 (Tex. App.—
Fort Worth 2002, pet. denied); see also Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l
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Dev. & Research Corp., 299 S.W.3d 106, 115 (Tex. 2009) (legal sufficiency); Pool v. Ford
Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (factual sufficiency). The sufficiency review
is related to the first inquiry. In re T.D.C., 91 S.W.3d at 872. If it is revealed in the first
inquiry that there was sufficient evidence, then we must determine whether the trial court
made a reasonable decision. Id.
In making our determination, we view the evidence in the light most favorable to
the actions of the trial court and indulge every legal presumption in favor of the judgment.
Smith v. Smith, 115 S.W.3d 303, 306 (Tex. App.—Corpus Christi 2003, 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 or if reasonable minds could differ as to the
result. Id. at 305.
Spousal maintenance is an award of “periodic payments from the future income of
one spouse for the support of the other spouse.” See TEX. FAM. CODE. ANN. § 8.001(1)
(West, Westlaw through 2017 1st C.S.). The purpose of spousal maintenance is “to
provide temporary and rehabilitative support for a spouse whose ability for self-support is
lacking or has deteriorated over time while engaged in homemaking activities and whose
capital assets are insufficient to provide support.” O’Carolan v. Hopper, 71 S.W.3d 529,
533 (Tex. App.—Austin 2002, no pet.).
Among other scenarios not applicable here, a spouse seeking to receive spousal
maintenance must prove that: (1) the marriage lasted ten years or longer; and (2) the
spouse lacks the ability to earn sufficient income to provide for his or her minimum
reasonable needs. See TEX. FAM. CODE ANN. § 8.051(2)(B) (West, Westlaw through 2017
1st C.S.). Additionally, a spouse seeking support must overcome a statutory presumption
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that spousal maintenance is not warranted unless the spouse seeking it has exercised
diligence in: (1) earning sufficient income to provide for their minimum reasonable needs;
or (2) developing the necessary skills to become self-supporting during a period of
separation and during the time the suit for dissolution of the marriage was pending. TEX.
FAM. CODE ANN. § 8.053(a) (West, Westlaw through 2017 1st C.S.).
The term “minimum reasonable needs” is not statutorily defined. Slicker v. Slicker,
464 S.W.3d 850, 860 (Tex. App.—Dallas 2015, no pet.) (citing Cooper v. Cooper, 176
S.W.3d 62, 64 (Tex. App.—Houston [1st Dist.] 2004, no pet.)). Instead, determining the
“minimum reasonable needs” is a fact-specific inquiry, which courts determine on a case-
by-case basis. Slicker, 464 S.W.3d at 860 (citing Amos v. Amos, 79 S.W.3d 747, 749
(Tex. App.—Corpus Christi 2002, no pet.)).
Courts consider several factors in determining spousal maintenance. TEX. FAM.
CODE ANN. § 8.052 (West, Westlaw through 2017 1st C.S.). These factors include: the
financial resources, age, employment history, earning ability, and physical and emotional
condition of the spouse seeking maintenance; the time necessary to acquire sufficient
education or training to enable the spouse seeking maintenance to earn sufficient income;
the contribution by one spouse to the education, training, or increased earning power of
the other spouse; the contribution of a spouse as homemaker; any history or pattern of
family violence; and the comparative financial resources of the spouses. Id.
B. Analysis
We begin with the presumption that spousal maintenance is not warranted. See
id. § 8.053(a). To overcome the presumption, Maria must show that she exercised
diligence in (1) earning sufficient income to provide for her minimum reasonable needs or
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(2) developing the necessary skills to become self-supporting during a period of
separation and during the time the suit for dissolution of the marriage was pending. Id.
§ 8.053(a); Day v. Day, 452 S.W.3d 430, 434 (Tex. App.—Houston [1st Dist.] 2014, pet.
denied).
Here, there was no evidence or testimony which indicated that Maria made any
attempts to develop the necessary skills to become self-supporting during the period of
separation and during the time the suit was pending. See TEX. FAM. CODE ANN.
§ 8.053(a)(2). Thus, we focus on whether there was evidence she was diligent in earning
sufficient income to provide for her minimum reasonable needs. Id. § 8.053(a)(1).
Evidence is legally insufficient if the record reveals: “(a) there is a complete
absence of evidence of a vital fact, (b) the court is barred by the rules of law or evidence
from giving weight to the only evidence offered to prove a vital fact, (c) the evidence
offered to prove a vital fact is no more than a scintilla, or (d) the evidence conclusively
establishes the opposite of the vital fact.” Akin, 299 S.W.3d at 115 (citing Merrell Dow
Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). “Evidence does not exceed
a scintilla if it is so weak as to do no more than create a mere surmise or suspicion that
the fact exists.” Id. (citing Kroger Tex., LP v. Suberu, 216 S.W.3d 788, 793 (Tex. 2006))
(internal quotations omitted).
Maria explained early in her testimony that she does not have permission to work
in the United States. And, the only portion of her testimony pertinent to our inquiry of
whether Maria exercised diligence in earning sufficient income was brief:
Trial Counsel: Ms. Amaya, you do—you’ve made some
income throughout the marriage; is that
correct[?]
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Maria: Yes, ma’am
Trial counsel: You offer counseling services?
Maria: Sometimes. Yes, I do do it.
Trial counsel: And you have done that out of your parent’s
home on 1 Country Club Road; is that correct?
Maria: Yes, ma’am.
Trial counsel: And are there other ways that you’re trying to
earn money to survive?
Maria: I can’t.
Trial counsel: Okay. But you have—I mean, in the past you
have been able to do that, correct?
Maria: Yes.
The Court: What is her education degrees or whatever?
Trial counsel: How far did you go in school?
Maria: I have a master degree.
Trial Counsel: Where is your master degree from?
Maria: In Mexico.
Trial Counsel: And what is your master degree in?
Maria: Social psychology.
Trial Counsel: And in Mexico did you use that master’s degree
and work and practice?
Maria: I would work as a counselor as well.
Trial Counsel: Okay. But you don’t have any certifications in
the State of Texas to do that work?
Maria: No.
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Trial Counsel: Okay. What else have you done in your life as
for work?
Maria: That’s it. I can’t work.
We note that Maria’s testimony did not explain how much money she earned
through her counseling service, how many clients she had, how often she provided this
service, or when was the last time that she saw a client. Maria did not elaborate on
whether she undertook any attempts to seek employment or to earn income by any other
means; rather, she simply stated that she “can’t work.” There is also no evidence that
Maria sought authorization to work in the United States or to become a legal resident.
Thus, Maria’s testimony lacked substantive and probative evidence of her diligence in
earning sufficient income to provide for her minimum reasonable needs. See Sheshtawy
v. Sheshtawy, 150 S.W.3d 772, 777–78 (Tex. App.—San Antonio 2004, pet. denied)
(explaining that wife’s testimony that she had not sought employment because she was
not a legal resident in the United States and had not attempted to apply for legal residency
after the separation showed a lack of diligence in seeking suitable employment as needed
to overcome the presumption in earlier version of section 8.053); cf. Diaz, 350 S.W.3d at
254 (noting that wife provided gross receipts, net income, and the number of clients from
a small janitorial business as evidence of diligence); In re Marriage of Eilers, 205 S.W.3d
637, 646 (Tex. App.—Waco 2006, pet. denied) (noting that evidence of wife’s low paying
job and of her actions exploring other possible jobs in the vicinity was evidence
considered in showing diligence); Arellano v. Arellano, No. 01-16-00854-CV, 2018 WL
284333, at *4 (Tex. App.—Houston [1st Dist.] Jan. 4, 2018, no pet.) (mem. op.)
(concluding that evidence that wife worked at a restaurant, changed jobs, and applied
and searched for better jobs, despite lacking the educational background, overcame
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statutory presumption against spousal maintenance); Coleman v. Coleman, No. 02-09-
00155-CV, 2009 WL 4755173, at *2–3 (Tex. App.—Fort Worth Dec. 10, 2009, no pet.)
(mem. op.) (determining that the wife’s testimony that she “looked into” getting a job that
required extensive training was not evidence of diligence in support of her spousal
maintenance claim).
Other parts of Maria’s testimony also undermine any implicit finding that she was
diligent in earning sufficient income to provide for her minimum reasonable needs—while
Maria submitted a list of her expenses for the two months preceding trial, she testified
that: (1) she was unaware of what her monthly expenses were until Victor stopped
making payments after she filed for divorce, and (2) she was paying for those expenses
since that time through monetary gifts from her father. This was not substantive or
probative evidence of diligence on Maria’s part. Cf. Day, 452 S.W.3d at 434–35
(explaining that the wife submitted evidence of income, reduction in expenses, loans
taken to pay for expenses, and the expenditure of an inheritance as evidence of
diligence).
Finally, apart from her testimony, Maria did not offer any evidence regarding her
counseling services, and she did not testify that income from the counseling services was
at any time used to pay for her minimum reasonable needs or how much of her needs
could be covered by that income; the only evidence in the record of the couple’s income
during their marriage was of Victor’s income. This again provided the trial court with no
substantive or probative evidence of diligence on Maria’s part. See Day, 452 S.W.3d at
434–35; Diaz, 350 S.W.3d at 254; In re Marriage of Eilers, 205 S.W.3d at 646.
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In light of the statutory language and the discussion above, we conclude the
evidence here lacked probative and substantive value and was so weak as to do no more
than create a mere surmise or suspicion Maria was diligent in earning sufficient income
to provide for her minimum reasonable needs. See Akin, 299 S.W.3d at 115; Smith, 115
S.W.3d at 305; see also TEX. FAM. CODE ANN. § 8.053(a)(1). Thus, the evidence was
legally insufficient to overcome the presumption against spousal maintenance. See Akin,
299 S.W.3d at 115; Day, 452 S.W.3d at 434–35; Diaz, 350 S.W.3d at 254; In re Marriage
of Eilers, 205 S.W.3d at 646; Sheshtawy, 150 S.W.3d at 777–78; Smith, 115 S.W.3d at
307; see also Coleman, 2009 WL 4755173, at *2–3. Accordingly, we conclude that the
trial court abused its discretion in awarding Maria spousal support for one year. See Day,
452 S.W.3d at 434–35; Sheshtawy, 150 S.W.3d at 777–78; see also Coleman, 2009 WL
4755173, at *2–3.
We sustain Victor’s second issue.
IV. CHILD SUPPORT
By his third issue, Victor challenges the award of child support to Maria until A.S.Q.
turns eighteen. However, when making arguments on appeal, we require the parties to
make clear and concise arguments, cite appropriate authority, and provide citations to the
record. See TEX. R. APP. P. 38.1(i). Even though we normally construe pro se briefs
liberally, we still require pro se parties to adequately brief the issues presented. See id.;
Jarvis v. Feild, 327 S.W.3d 918, 925 (Tex. App.—Corpus Christi 2010, no pet.) (noting
that an appellant’s “pro se status does not relieve her from complying with applicable laws
and rules of procedure”); Nabelek v. Bradford, 228 S.W.3d 715, 717 (Tex. App.—Houston
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[14th Dist.] 2006, pet. denied) (stating that pro se appellants are held to the same
standard as licensed attorneys).
Here, Victor does not cite any case law or statutory authority applicable to the
award of child support. See TEX. R. APP. P. 38.1(i). Victor does not provide any
discussion or analysis as to why or how the trial court erred in its award of child support.
See id. Therefore, without more, we conclude that Victor inadequately briefed this issue
and has presented nothing for our review. See id.; McKellar v. Cervantes, 367 S.W.3d
478, 484 n.5 (Tex. App.—Texarkana 2012, no pet.) (“Bare assertions of error, without
argument or authority, waive error”).
We overrule Victor’s third issue.
V. CONCLUSION
We affirm, in part, the trial court’s corrected final decree of divorce property division
and award of child support. We reverse the portion of the decree granting spousal
maintenance and render judgment denying Maria’s request for such maintenance.
DORI CONTRERAS
Justice
Delivered and filed the
19th day of April, 2018.
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