William C. Slicker v. Phyllis A. Slicker , 464 S.W.3d 850 ( 2015 )

Affirmed and Opinion Filed May 21, 2015
Court of Appeals
S In The
Fifth District of Texas at Dallas
No. 05-13-01762-CV
WILLIAM C. SLICKER, Appellant
V.
PHYLLIS A. SLICKER, Appellee
On Appeal from the 255th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-11-15742
OPINION
Before Chief Justice Wright and Justices Fillmore and O’Neill1
Opinion by Chief Justice Wright
In this divorce proceeding, the trial court rendered a decree of divorce and signed
findings of fact and conclusions of law after a bench trial. Appellant William C. Slicker
(“Husband”) appeals the trial court’s judgment, contending that the trial court abused its
discretion in its rulings regarding division of the community estate, spousal maintenance, and
monetary awards to appellee Phyllis A. Slicker (“Wife”). Because the evidence supports the trial
court’s rulings, we affirm the trial court’s judgment.
BACKGROUND
The parties were married on January 6, 1974, almost forty years before their divorce in
2013. They separated in 2011, and Wife filed a petition for divorce on September 7, 2011. In an
1
The Hon. Michael J. O’Neill, Justice, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
amended petition filed in 2012, Wife sought a disproportionate share of the marital estate and
alleged that Husband “has committed fraud on the community estate.” Wife also requested that
“the Court reconstitute the community estate to its full value prior to [Husband’s] depletion of
the community estate by his fraudulent acts” before dividing the estate in a just and right
manner.2 She alleged that Husband had engaged in constructive fraud and waste of assets, and
that he had “left little or no community property” and had “squandered community assets” in
“violation of [his] duty as co-manager of the community estate” and in violation of the trial
court’s standing order. Wife also sought spousal maintenance.
At trial before the court, each party offered fact and expert testimony regarding the
community estate. Much of the evidence related to a trust created during the marriage in 1993
by Husband’s parents as grantors (“1993 Trust”). The 1993 Trust named Husband as the
primary beneficiary and provided that, on Husband’s death, the principal and accrued but
undistributed income of the 1993 Trust would be held in trust for the benefit of Wife. Each of
Husband’s parents transferred 1712 shares of Cabe Land Co., Inc., an Arkansas corporation, to
the 1993 Trust. Each parent also transferred a 2.08375% partnership interest in CLC Land
Company, a general partnership, to the 1993 Trust. The trust instrument expressly provided that
“the Trustee shall pay annually all of the net income of the estate” to Husband. The parties
appear to agree that the net income paid from the 1993 Trust each year is community property.
It also appears to be undisputed that the 1993 Trust no longer holds either the shares of Cabe
Land Co., Inc. or the partnership interest in CLC Land Company. At the time of trial, according
to Husband, the 1993 Trust held only five assets: (1) $7,926.49 in a money market fund; (2) a
condominium valued at $125,916.45; (3) a 20% interest in a company called Cablein LLC,
2
As we discuss below, under section 7.009 of the Texas Family Code, if a trial court determines that a spouse has committed actual or
constructive fraud on the community, the court may calculate the value by which the community estate was depleted as a result of the fraud, and
then calculate the value of the “reconstituted” estate as if the fraud had not occurred. TEX. FAM. CODE ANN. § 7.009 (West Supp. 2014).
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valued at $41,150; (4) a 4.2149% interest in Cabe Minerals valued at $1,698.18; and (5) an
unvalued 5,086.5 shares in Cabe General. Husband contends that only Cabe Minerals generated
any income.
Evidence offered at trial also showed that in the years before the parties’ separation and
after, Husband withdrew large sums of money from the community estate. In 2005 and 2006, for
example, Husband and Wife entered into “Investment Agency Agreements” with Bancorp South
Bank (“Bancorp”), depositing assets into the investment fund created by the agreements (the
“agency account”). The record includes a letter from Wife authorizing Bancorp to “accept
investment decisions from my husband” regarding the fund. The 2005 and 2006 tax ledgers for
the agency account reflected that Husband withdrew over $800,000 from this fund during those
years, as Husband confirmed in his testimony at trial. Wife testified that although she was aware
the agency account existed, she did not know the amounts in it. Husband did not discuss
withdrawals from the account with her, and she did not know of any assets that would have been
purchased with the large amounts Husband withdrew.
The evidence also showed that between 2007 and 2012, Husband received distributions
from the 1993 Trust in the amount of $991,525. Husband contends these distributions were of
both income and principal. In his inventory and appraisement filed before trial,3 Husband sought
reimbursement of the $991,525 in the divorce, describing the basis of the claim as “[p]ayment by
Husband’s separate property of the unsecured liabilities of the community estate.” Husband did
not, however, point to evidence showing either the nature and amounts of the unsecured
liabilities or showing that the amount distributed to him was his separate property.
After the parties’ separation, Husband withdrew $66,000 from the Slicker Family
Foundation, an entity created by Husband and Wife together in 2004. This amount was paid in
3
Husband’s inventory and appraisement was admitted into evidence at trial as Wife’s Exhibit 2.
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“salary” to himself and the parties’ adult son John (age thirty-seven at the time of trial) between
2011 and 2013. Husband also paid John’s credit card bills and rent during the pendency of the
divorce proceedings.
Husband provided no evidence of his disposition of the $800,000 withdrawn from the
agency account, the $991,525 distributed from the 1993 Trust, or the $66,000 withdrawn from
the foundation. He provided no tracing of any assets he claimed as separate. When asked at trial
about the disposition of the $800,000, he stated that he had “no idea” and “can’t recall” how he
used the money, or a single asset he had purchased. Husband contends that all of the parties’
community property was used to “fund the parties’ lavish lifestyle.” The only evidence of this
“lavish lifestyle,” however, was Husband’s testimony that “[f]or a number of years . . . [w]e
enjoyed traveling. We went to Europe and India and China and all over the United States and we
entertained people, friends at restaurants and at our house. We spent a lot of money.” Husband
testified that he and Wife could afford this lifestyle “through income from the Trust and later on
through distributions, the principal.” Although Wife did not testify to the contrary, Husband
points to nothing in the record reflecting when any trips were taken, how much any such trip
cost, how much the parties spent in entertainment expenses, or how any travel or entertainment
expenses were paid.
The record also showed that Husband frequently corresponded by e-mail with Bancorp,
which was also the trustee of the 1993 Trust. Husband routinely requested distributions and
submitted expenses to Ron Mills, a trust officer of Bancorp. Husband also kept Mills informed of
transactions involving various Cabe entities, including proceeds of approximately $500,000 from
sales of timber. The e-mails reflect creation of a limited liability company, Slicker Enterprises
LLC, in 2006, and a transfer of approximately $40,000 into that company by deposit of a check
from a petroleum company. Husband corresponded with Mills about use of principal from the
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1993 Trust instead of income for particular expenses. Husband also requested the
recharacterization of income and principal in the 1993 Trust, and Mills testified at trial that he
recalled doing so on at least one occasion in 2007, as reflected on account statements of the 1993
Trust.
The evidence showed that assets normally purchased and held by a community estate
were instead purchased and held by the 1993 Trust. Although the evidence showed that Husband
and Wife had sufficient funds, including a $67,000 profit from the sale of their previous home, to
purchase their home in 1999, the home was instead purchased by the 1993 Trust. Husband also
testified that “in the 90’s we had $100,000 in an annuity in Switzerland . . . that was cashed in, I
believe, and used to pay part of [the purchase price for the house].” Because relevant documents
had been requested but not produced in discovery, the trial court sustained Wife’s objection to
the admission of evidence regarding whether the home was purchased with trust principal or
income. The 1993 Trust sold the home during the pendency of the divorce, and purchased a
condominium to be used as Husband’s residence.
In addition, the evidence reflected that on the day of trial, documents were signed to sell
Cablein LLP, an entity that owned a vacation home in Michigan, to another family trust. The
1993 Trust owned an interest in Cablein. Accompanying e-mails between Husband’s sister and
Mills indicated that “[o]ur goal” in the transaction “is to give [Husband] the opportunity to buy
his Cablein share back in the future at the same price.” The e-mail to Mills was copied to
Husband. When the intended sale was revealed by counsel for Bancorp at trial, the trial court
questioned why the sale price for the 1993 Trust’s share of Cablein was $100,000 when a current
appraisal showed a value of $122,000.
The evidence showed that Wife’s monthly net income at the time of trial was $665.80 in
Social Security benefits. She testified that her credit cards were paid off at the time of the
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parties’ separation, but that Husband ran up the balances again without her permission (with the
exception of one $500 charge). Her monthly financial information sheet introduced into
evidence at trial showed monthly payments on the credit cards of $2,000, and rent of $995 per
month as her largest single expenses. She has borrowed money from her brother to pay her
attorney’s fees. Linda Castro, a clinical psychologist, testified that she diagnosed Wife with
“adjustment disorder with depression and anxiety.” Castro testified that Wife was controlled by
Husband emotionally and financially. Wife testified that she was sixty-seven years old, had
recently taken a computer course, and has tried to seek employment but has been unable to find a
job. The only employment she had during the marriage was working for Husband in his
business, but she was not paid for this work.
In addition, the trial court found that Husband “substantially failed to comply with
discovery requests.” The largest number of documents admitted into evidence at trial were
produced by Bancorp. These documents and other exhibits introduced at trial reference
numerous entities in which the parties had an interest, but were in large part unaccompanied by
any explanatory testimony or evidence. In the volume of the reporter’s record containing the
trial court’s ruling, the trial court made the finding of Husband’s failure to comply with
discovery, and noted that sanctions had already been issued against him. The trial court also
stated, “I am concerned that—there was evidence that [Husband] had instructed the bank officer
to make distributions from the Trust, but my concern was when he instructed the officer to
recharacterize the distribution, that was a major concern of mine and it’s an important basis for
my ruling.”
The trial court rendered a decree of divorce and made findings of fact and conclusions of
law. Among the trial court’s findings and conclusions were that Husband improperly spent
money during the divorce proceedings; Husband substantially failed to comply with discovery
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requests; and the value of community property lost to waste or constructive fraud by Husband
should be considered in determining the total value of the community estate. The trial court also
found that the value of the reconstituted community estate was $900,000; Husband’s net
resources “are a minimum of $17,500 per month”; Husband should pay spousal maintenance in
the amount of $3,500 per month; Wife should be given a judgment of $275,000 against Husband
“for his waste and/or constructive fraud committed” against Wife; and Husband should be
ordered to pay $62,000 to Wife “for money he improperly spent during the divorce proceedings.”
This appeal followed.
STANDARDS OF REVIEW
We review the trial court’s division of a community estate for an abuse of discretion.
Moroch v. Collins, 174 S.W.3d 849, 857 (Tex. App.—Dallas 2005, pet. denied). A trial court
does not abuse its discretion if there is some evidence of a substantive and probative character to
support the decision. LaFrensen v. LaFrensen, 106 S.W.3d 876, 877 (Tex. App.—Dallas 2003,
no pet.).
In family law cases, the abuse of discretion standard of review overlaps with the
traditional sufficiency standards of review; as a result, legal and factual sufficiency are not
independent grounds of reversible error, but instead constitute factors relevant to our assessment
of whether the trial court abused its discretion. Moroch, 174 S.W.3d at 857. To determine
whether the trial court abused its discretion we consider whether the trial court (1) had sufficient
evidence on which to exercise its discretion and (2) erred in its exercise of that discretion. In re
A.B.P., 291 S.W.3d 91, 95 (Tex. App.—Dallas 2009, no pet.). We then proceed to determine
whether, based on the elicited evidence, the trial court made a reasonable decision. Id.
In an appeal from a bench trial, an appellate court reviews a trial court’s conclusions of
law de novo and will uphold them on appeal if the judgment of divorce can be sustained on any
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legal theory supported by the evidence. Reisler v. Reisler, 439 S.W.3d 615, 619 (Tex. App.—
Dallas 2014, no pet). We “may not challenge a trial court’s conclusions of law for factual
sufficiency, but . . . may review the legal conclusions drawn from the facts to determine their
correctness.” Id. If we determine that a conclusion of law is erroneous, but the trial court
nevertheless rendered the proper judgment, the error does not require reversal. Id. at 619–20.
When the appellate record contains a complete reporter’s record, we review the trial
court’s findings of fact under the same standards for legal and factual sufficiency that govern the
review of jury findings. Id. at 620. In evaluating a legal sufficiency challenge, we credit
evidence that supports the finding if a reasonable fact finder could, and disregard contrary
evidence unless a reasonable fact finder could not. City of Keller v. Wilson, 168 S.W.3d 802,
827 (Tex. 2005). The test for legal sufficiency is whether the evidence at trial would enable
reasonable and fair-minded people to reach the verdict under review. Id. In a factual sufficiency
review, we examine all the evidence in the record, both supporting and contrary to the trial
court’s finding, and reverse only if the finding is so against the great weight of the evidence as to
be clearly wrong and unjust. In re Marriage of C.A.S. & D.P.S., 405 S.W.3d 373, 382–83 (Tex.
App.—Dallas 2013, no pet.). In evaluating the trial court’s findings of fact, we must give
substantial deference to the trial court’s determination of the weight and credibility of the
evidence. Reisler, 439 S.W.3d at 620. In a bench trial, the trial court acts as the fact finder and
is the sole judge of the credibility of witnesses. Id.
A party seeking to rebut the presumption that property possessed by either spouse during
marriage is community property must do so by clear and convincing evidence. TEX. FAM. CODE
ANN. § 3.003 (West 2006). When the burden of proof is by clear and convincing evidence, we
apply a higher standard of legal and factual sufficiency review. Moroch, 174 S.W.3d at 857.
Clear and convincing evidence is defined as the “measure or degree of proof which will produce
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in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought
to be established.” Id. (quoting TEX. FAM. CODE ANN. § 101.007). This intermediate standard
falls between the preponderance standard of civil proceedings and the reasonable doubt standard
of criminal proceedings. Id. The proof must weigh more heavily than merely the greater weight
of the credible evidence, but the evidence need not be unequivocal or undisputed. Id. at 857–58.
If an appellate court finds reversible error in any part of the trial court’s property division
that materially affects the just and right division of the community estate, it must remand for a
new division of the entire community estate. Reisler, 439 S.W.3d at 620 (citing Jacobs v.
Jacobs, 687 S.W.2d 731, 732–33 (Tex. 1985)).
APPLICABLE LAW
A. Property Division
In a divorce decree, the trial court shall order a division of the parties’ estate in a manner
that the court deems just and right, having due regard for the rights of each party. TEX. FAM.
CODE ANN. § 7.001 (West 2006). When exercising its broad discretion to divide the marital
property, the trial court may consider many factors, including 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 the 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. See Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981); In re Marriage of C.A.S.,
405 S.W.3d at 384. The property division need not be equal. Murff, 615 S.W.2d at 698–99. 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 of the community estate was so unjust and
unfair as to constitute an abuse of discretion. In re Marriage of C.A.S., 405 S.W.3d at 384.
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Generally, a party who does not provide to the trial court any value for the property cannot, on
appeal, complain of the trial court’s lack of information in dividing the community estate. Id. at
385.
B. Reconstituted Estate
In Schleuter v. Schleuter, the supreme court held there is no independent tort cause of
action between spouses for fraud on the community. 975 S.W.2d 584, 585 (Tex. 1998). The
court reasoned that a wronged spouse “has an adequate remedy for fraud on the community
through the ‘just and right’ property division upon divorce.” Id.; see also In re K.N.C., 276
S.W.3d 624, 629 (Tex. App.—Dallas 2008, no pet.) (in making just and right division, trial court
may consider spouse’s dissipation of community estate as well as spouse’s misuse of community
property). Section 7.009 of the Texas Family Code, added in 2011,4 addresses division of
property when the trial court has determined that a spouse has committed actual or constructive
fraud on the community. See TEX. FAM. CODE ANN. § 7.009 (West Supp. 2014). Subsection (b)
requires the trial court to “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.” Id.
§ 7.009(b)(1). “Reconstituted estate” is defined in subsection (a) as “the total value of the
community estate that would exist if the actual or constructive fraud on the community had not
occurred.” Id. § 7.009(a). The trial court then must “divide the value of the reconstituted estate
between the parties in a manner the court deems just and right.” Id. § 7.009(b)(2). The trial
court may grant any legal or equitable relief necessary to accomplish a just and right division.
Id. § 7.009(c). The court may grant the wronged spouse “an appropriate share of the community
estate remaining after the actual or constructive fraud on the community,” or award a money
4
See Act of May 16, 2011, 82nd Leg., R.S., ch. 487, § 1, 2011 Tex. Gen. Laws 1243 (codified at TEX. FAM. CODE ANN. § 7.009).
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judgment in favor of the wronged spouse, or award “both a money judgment and an appropriate
share of the community estate.” Id.
C. Spousal maintenance
Under section 8.051 of the Texas Family Code, the trial court may in its discretion order
spousal maintenance if the party seeking maintenance meets specific eligibility requirements. Id.
§ 8.051; see Pickens v. Pickens, 62 S.W.3d 212, 214–15 (Tex. App.—Dallas 2001, pet. denied).
When as here a divorce is sought in a marriage lasting ten years or more, a spouse is eligible to
seek spousal maintenance if the spouse lacks sufficient property to meet minimum reasonable
needs and lacks the ability to earn sufficient income to provide for minimum reasonable needs.
TEX. FAM. CODE ANN. § 8.051(2)(B); see also Pickens, 62 S.W.3d at 215. Generally, there is a
presumption that maintenance is not warranted unless the spouse has been diligent in seeking
suitable employment or is developing skills necessary to become self-supporting. TEX. FAM.
CODE ANN. § 8.053; Pickens, 62 S.W.3d at 215.
Section 8.052 lists factors to be considered by the trial court in determining the “nature,
amount, duration, and manner” of spousal maintenance. TEX. FAM. CODE ANN. § 8.052. These
factors include the ability of the spouse seeking maintenance to provide for his or her own
minimum reasonable needs independently, considering the spouse’s financial resources on
dissolution of the marriage; the age, employment history, earning ability, and physical and
emotional condition of the spouse seeking maintenance; the duration of the marriage; the
availability and feasibility of the education or training necessary to enable the spouse to earn
sufficient income; the spouse’s contribution as a homemaker, or to the other spouse’s education,
training, or increased earning power; and the property brought to the marriage by either spouse.
See id. § 8.052(1)–(4), (7)–(9). In addition, the trial court considers “acts by either spouse
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resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent
disposition of community property.” Id. § 8.052(6).
The term “minimum reasonable needs” is not defined in the Family Code. See Cooper v.
Cooper, 176 S.W.3d 62, 64 (Tex. App.—Houston [1st Dist.] 2004, no pet.). A trial court
determines whether a party’s minimum reasonable needs are met on a fact-specific,
individualized, case-by-case basis. See Amos v. Amos, 79 S.W.3d 747, 749 (Tex. App.—Corpus
Christi 2002, no pet.).
DISCUSSION
Husband challenges the trial court’s reconstitution of the community estate, the division
of the estate, and the award of maintenance. He contends that he made only a “modest living” as
an insurance salesman, but he and Wife “enjoyed a lavish and extravagant lifestyle” during their
marriage that depleted all of their assets. He argues that they funded their expenditures with his
family’s money through the 1993 Trust, so that the corpus of the trust was almost entirely
depleted. He contends that Wife filed for divorce when Husband had no more money.
Wife, on the other hand, contends that the 1993 Trust earned significant income during
the marriage. She argues that this income, community property, was used to purchase assets
inside the 1993 Trust that Husband then erroneously claimed as separate property, such as the
couple’s homestead. She also contends that Husband was deliberately depleting the 1993 Trust,
constituting fraud on the community.
A. Reconstituted estate
The trial court granted judgment against Husband for $275,000 “based on [Husband’s]
breach of fiduciary duty and fraud committed on the community estate.” The trial court made a
finding of fact that the value of the reconstituted estate is $900,000. In his first issue, Husband
challenges the trial court’s judgment in the amount of $275,000 to Wife on three grounds. First,
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he contends that if the judgment is based upon a reconstituted community estate, the evidence is
legally and factually insufficient to support the trial court’s finding of fact that the value of the
reconstituted estate is $900,000. Second, he contends that if the judgment is based on breach of
fiduciary duty or fraud, the evidence is legally and factually insufficient to support the judgment,
and the trial court made no findings of breach of fiduciary duty or fraud. Third, he contends that
if the judgment is based upon waste or constructive fraud, the evidence is legally and factually
insufficient to support the judgment, and the trial court made no findings of waste or constructive
fraud.
In conclusion of law number 7 the trial court stated “[t]he value of the community
property lost to waste and/or constructive fraud committed by [Husband] should be considered as
part of the total value of property awarded to [Husband].” Although there is not a separate
finding of fact that Husband committed waste or constructive fraud, this conclusion of law
expressly cites Husband’s “waste and/or constructive fraud” as its basis. Similarly, in conclusion
of law number 8, the trial court stated that “[Wife] should be given a judgment of $275,000 and
postjudgment interest against [Husband] for his waste and/or constructive fraud committed
against [Wife].” Although the findings of waste and constructive fraud appear in the trial court’s
conclusions of law, the designation is not controlling, and we may treat them as findings of fact.
Ray v. Farmers’ State Bank of Hart, 576 S.W.2d 607, 608 n.1 (Tex. 1979).5 We therefore
disagree with Husband that the trial court made no findings of waste or constructive fraud.
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 Schleuter, 975
S.W.2d at 589. Husband contends that because Wife was fully aware of “the parties’ financial
5
See also Fonseca v. Cnty. of Hildago, 527 S.W.2d 474, 480 (Tex. Civ. App.—Corpus Christi 1975, writ ref’d n.r.e.) (trial court’s
“transformation of the real character” of finding or conclusion, or finding and conclusion “that might be mixed,” is not reversible error;
“Whatever their nature makes them, they still are that in substance and effect.”).
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situation, including money and bank accounts, because the parties talked about finances
frequently,” there was no waste, “especially given that [Wife] enjoyed the benefits of these
expenditures just as did [Husband].” However, Husband offered no evidence to support this
contention except his conclusory testimony about the parties’ alleged “lavish and extravagant
lifestyle.” Although the record reflects that Husband requested money from the 1993 Trust for a
few community expenses, there was no attempt by Husband to show that the large amounts of
money he withdrew from the 1993 Trust were used for community purposes, or that Wife was
aware of the withdrawals. See Falor v. Falor, 840 S.W.2d 683, 688 (Tex. App.—San Antonio,
1992, no writ) (evidence supported finding of waste where husband disposed of community
assets without knowledge and consent of wife for non-community purposes).
Wife was not questioned about the parties’ alleged “lavish lifestyle.” She testified she
was unaware of the large withdrawals Husband made from the agency account. She offered her
own testimony as well as the testimony of her psychologist that Husband controlled the
relationship and the finances. As noted, Wife signed at least one letter to Mills allowing
Husband to make financial decisions on her behalf. And although Husband testified that Wife
had equal control of the parties’ joint checking account, Wife testified that she did not,
explaining that the single time she attempted to use it after the parties’ separation, Husband
canceled a spousal maintenance payment to her.
The trial court’s finding of the value of the reconstituted estate could be supported by
Husband’s own claims that he was owed $991,525 from the community for “payment by
Husband’s separate property of the unsecured liabilities of the community estate.” Husband’s
evidence showed that he received $991,525 in distributions from the 1993 Trust between 2007
and 2012. There was no specific evidence of community liabilities paid in that amount and no
tracing of separate property used for the benefit of the community. The trial court then awarded
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Wife $275,000, approximately one-third of the reconstituted estate. Husband did not offer
evidence to support his contention that the $991,525 was his separate property, although it was
his burden to do so by clear and convincing evidence. See Moroch, 174 S.W.3d at 857. On this
record, we cannot say the trial court abused its broad discretion in its findings and conclusions or
in its division of the community estate. We overrule Husband’s first issue.
B. Money spent during divorce proceedings
In his second issue, Husband challenges the trial court’s judgment to Wife in the amount
of $62,000 “representing money that [Husband] spent during the divorce.” He contends the
evidence was legally and factually insufficient to support the trial court’s finding that he
“improperly spent money during the divorce proceedings.” He contends that the monies were
paid for attorney’s fees and were paid by the 1993 Trust, not by Husband, and therefore, there
was no violation of the trial court’s standing order.
The record reflects, however, that during the pendency of the divorce proceeding,
between 2011 and 2013, Husband paid himself and his son a total of approximately $66,000.
These funds came from the Slicker Family Foundation, an entity created by Husband and Wife
together in 2004, not the 1993 Trust. Documents produced by Bancorp and included in the
record include financial statements for the Slicker Family Foundation reflecting the amounts paid
to Husband and the parties’ son John as salaries. This is some evidence to support the trial
court’s findings that community funds were spent during the pendency of the parties’ divorce in
violation of the trial court’s standing order regarding preservation of property and use of funds
during divorce. We overrule Husband’s second issue.
C. Just and right division of community estate
In his third issue, Husband again challenges the $275,000 and $62,000 awards to Wife.
He contends the evidence at trial was that the community estate had a negative value, so the trial
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court failed to make a just and right division of the community estate. He contends that in light
of the debts he was ordered to pay by the trial court, the marital estate was “clearly underwater,
having a substantial negative value,” and the trial court’s additional awards to Wife would result
in more than 100% of the value of the community estate being awarded to Wife. He concludes
that this division is not just and right.
A court may take into account a spouse’s dissipation of the community estate when
making a just and right division. Vannerson v. Vannerson, 857 S.W.2d 659, 669 (Tex. App.—
Houston [1st Dist.] 1993, writ denied). As we have discussed, there was evidence to support the
trial court’s findings that Husband committed “waste and/or constructive fraud”; that the value of
the reconstituted community estate was $900,000; and that Husband improperly spent $62,000
during the divorce proceedings. The trial court is afforded broad discretion in dividing the
community estate, and we must indulge every presumption in favor of the trial court’s proper
exercise of discretion. See Schleuter, 975 S.W.2d at 589; In re Marriage of C.A.S., 405 S.W.3d
at 384. We conclude the trial court had sufficient evidence on which to exercise its discretion,
and made a reasonable decision based on the evidence elicited. See In re Marriage of C.A.S.,
405 S.W.3d at 383. There was legally and factually sufficient evidence to support the trial
court’s judgment. See Reisler, 439 S.W.3d at 620. We overrule Husband’s third issue.
D. Spousal maintenance
In his fourth issue, Husband contends the trial court abused its discretion by ordering
Husband to pay maintenance. He argues that the evidence was legally and factually insufficient
to support the trial court’s findings relating to maintenance: (1) that Wife exercised diligence in
earning sufficient income or developing the necessary skills to provide for her minimum
reasonable needs; (2) that Wife was unable to earn sufficient income because of an incapacitating
mental or physical disability or that she lacked the ability to earn sufficient income to provide for
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her minimum reasonable needs; (3) that the trial court took into account the statutory factors for
determining maintenance; and (4) that Husband’s net resources were a minimum of $17,500 per
month. Husband also contends there is no or insufficient evidence of the shortest reasonable
time period that would allow Wife to earn sufficient income to provide for her minimum
reasonable needs.
Husband argues that under section 8.053 of the Family Code, it is a rebuttable
presumption that maintenance is not warranted unless the spouse seeking it has exercised
diligence in earning sufficient income or developing necessary skills to provide for the spouse’s
minimum reasonable needs. See TEX. FAM. CODE ANN. § 8.053(a). Husband contends there was
no evidence introduced to rebut the presumption that maintenance was not warranted.
At the time of trial, Wife was almost sixty-seven years old. At trial, Wife’s psychologist
testified that Wife had “low self-esteem, high anxiety, depression,” and that Wife had lost weight
as a result of the divorce proceedings. The psychologist testified that in sixteen sessions, Wife
had “grown” and worked on building her self-esteem. Wife testified that she had not been able
to find a job. She had taken one computer course as of the time of trial and had signed up to take
another. She sent out a resume to Texas Health Resources and worked at the Cooper Clinic for a
short period of time. During the marriage, she worked for Husband’s business but was not paid
for doing so. Husband emphasizes that the associate judge advised Wife to use her best efforts to
find employment during the pendency of the divorce proceedings.
The trial court ordered Husband to pay maintenance of $3,500 per month for ten years,
except that the maintenance obligation would terminate on the death of either party or with
Wife’s remarriage or cohabitation. As noted, the trial court made six findings of fact and one
conclusion of law relating to its maintenance award, finding that Wife had exercised diligence
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but lacked sufficient property and the ability to earn sufficient income to provide for her
minimum reasonable needs.
Other than some unpaid work for Husband’s business, the record reflects that Wife has
not been in the workplace since 1974 and has no specific education or employment skills that
would facilitate her job search. Further, we consider Wife’s eligibility for maintenance at the
time of the divorce, not whether she will be able to provide for her minimum reasonable needs at
some point in the future with additional training or education. See Deltuva v. Deltuva, 113
S.W.3d 882, 888 (Tex. App.—Dallas 2003, no pet.) (spouse seeking maintenance who obtained
real estate license but needed about one year to get her real estate business “rolling” lacked
ability to earn sufficient income). Wife has no resources other than her Social Security benefit
with which to support herself. There was also some evidence to indicate that in the years before
Husband began dissipating property, his net resources per month were greater than the amount
found by the trial court. The distributions from the 1993 Trust alone in each of the three years
before the parties’ separation, if paid on a monthly basis, were within the range of the trial
court’s finding. We conclude there was legally and factually sufficient evidence to support the
trial court’s finding that Wife was eligible to receive maintenance under the factors set forth in
section 8.051(2), and that the trial court properly considered the factors listed in section 8.052 in
determining the nature, amount, duration, and manner of periodic payments by Husband to Wife.
See TEX. FAM. CODE ANN. §§ 8.051–8.052. We overrule Husband’s fourth issue.
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CONCLUSION
We conclude the trial court did not abuse its discretion in making a just and right division
of the parties’ community estate. Having overruled Husband’s four issues, we affirm the trial
court’s judgment.
131762F.P05
/Carolyn Wright/
CAROLYN WRIGHT
CHIEF JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
WILLIAM C. SLICKER, Appellant On Appeal from the 255th Judicial District
Court, Dallas County, Texas
No. 05-13-01762-CV V. Trial Court Cause No. DF-11-15742.
Opinion delivered by Chief Justice Wright,
PHYLLIS A. SLICKER, Appellee Justices Fillmore and O’Neill participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee Phyllis A. Slicker recover her costs of this appeal from
appellant William C. Slicker.
Judgment entered May 21, 2015.
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