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 2007-08

Kimberly Ann Brown v. Chester D. Brown ( 2007 )


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  • In The



    Court of Appeals



    Ninth District of Texas at Beaumont



    ____________________



    NO. 09-06-473 CV

    ____________________



    KIMBERLY ANN BROWN, Appellant



    V.



    CHESTER D. BROWN, Appellee



    On Appeal from the 1-A District Court

    Jasper County, Texas

    Trial Cause No. 26847



    MEMORANDUM OPINION

    The trial court signed a final decree of divorce dissolving the marriage between appellant Kimberly Ann Brown and appellee Chester D. Brown. Raising four appellate issues, Kimberly attacks the trial court's division of the Browns' marital estate.

    Background

    Chester and Kimberly were married in 1997 and divorced in 2006. Chester is a carpenter and has retirement benefits through the carpenters' local union. Kimberly was in the military when they married and for approximately five years afterwards. Kimberly has a service-connected disability and receives a Veterans Administration monthly disability check.

    In his original petition, Chester sought a disproportionate share of the marital estate. He alleged that Kimberly was at fault in the break-up of the marriage and that he, as the innocent spouse, would have derived benefits from the continuation of the marriage. Kimberly filed an answer in which she generally denied Chester's allegations.

    At trial, Chester introduced four exhibits: (1) his sworn inventory containing a listing of the community estate and debts and a listing of the separate property of each spouse, (2) a list of the assets he sought to receive, (3) a list of the assets he proposed that Kimberly receive, and (4) a stipulation of the parties that a qualified appraiser determined the Kirbyville house's value was $47,950. Kimberly filed three exhibits: (1) a list of community property, (2) a list of her separate property, and (3) a list of Chester's separate property. None of Kimberly's exhibits were sworn.

    After a bench trial on August 1, 2006, the trial court sent counsel a memorandum awarding Chester the property listed on his exhibit 2 and assigning him the debts listed on that exhibit as well. In the same memorandum, the trial court awarded Kimberly the property listed on Chester's exhibit 3 and assigned her the debts listed on that exhibit. The trial court also awarded certain items of personal property to Kimberly.

    On August 18, Kimberly filed an unverified motion for new trial in which she asserted that facts and circumstances had "materially and substantially changed since the date of the hearing, including but not limited [to] the willful destruction of community property." The motion was not supported by any affidavits.

    On September 20, 2006, the trial court heard Kimberly's motion for new trial. Immediately before hearing the motion, however, the record shows that the trial court asked counsel whether they accepted the form of the proposed decree. Kimberly's counsel raised two objections. First, counsel claimed that the decree incorrectly designated Chester's separate property as including two trailer houses rather than one. Second, Kimberly's counsel objected that the Sears MasterCard debt was not included in Chester's exhibit or in the court's ruling. (1) The trial court made no ruling on counsel's objections to the decree but rather proceeded with the hearing on Kimberly's motion for new trial. The parties presented no evidence or witnesses during the hearing. The trial court signed the decree on September 20, 2006, the day of the hearing, and denied Kimberly's motion for new trial on October 3, 2006.

    .

    Standard of Review

    The Texas Family Code requires the trial court to divide a marital estate in a manner the court deems "just and right," having due regard for the rights of the parties. Tex. Fam. Code Ann. § 7.001 (Vernon 2006). A divorce court generally may exercise broad discretion in dividing the estate. Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998); Ohendalski v. Ohendalski, 203 S.W.3d 910, 914 (Tex. App.-Beaumont 2006, no pet.). Absent evidence showing an abuse of discretion, the trial court's division of a marital estate will not be disturbed on appeal. See Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). A court abuses its discretion when it acts without reference to any guiding rules or principles, or alternatively, when its acts are arbitrary or unreasonable. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). A "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) (op. on reh'g).   

    In this case, neither party requested findings of fact. Thus, we imply that the trial court made all the findings necessary to support its judgment and affirm the judgment if it can be upheld on any legal theory that finds support in the evidence. Worford, 801 S.W.2d at 109. When a reporter's record is brought forward on appeal, the trial court's implied findings may be challenged for legal and factual sufficiency the same as jury findings or a trial court's findings of fact. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989).

    Kimberly's Disability Benefits

    In her first issue, Kimberly contends that the trial court erred in classifying her military disability benefits as community property. While Kimberly did not list the benefits in her separate property exhibit introduced at trial, she testified that her disability checks were separate property, that she received them for bodily injuries, and that the checks did not "take the place of income." Kimberly did not state, however, the amount of her monthly check nor did she provide any records or documents related to the benefits. (2) The only documentary information the trial court had before it was in Chester's inventory, which listed "Union Retirement" and "Military Retirement" as community property. Chester did not assign any values to either item.

    To support her argument, Kimberly relies on Ex parte Johnson in which the Texas Supreme Court acknowledged that Veterans Administration disability benefits are non-divisible separate property. See 591 S.W.2d 453 (Tex. 1979). In this case, however, the trial court did not divide Kimberly's disability benefits. While the decree did not declare that the benefits were Kimberly's separate property as it did with certain items of Chester's separate property, the court did not award any of Kimberly's military benefits to Chester. Rather, the court's decree awarded the military benefits to Kimberly as her separate property. The decree includes the following language awarding property to Kimberly: "All sums, whether matured or unmatured, accrued or unaccrued, vested or otherwise, together with all increases thereof, the proceeds therefrom, and any other rights related to or as a result of Kimberly Brown's retirement benefits, including any military retirement or disability from past, present, or future employment."

    In addition, characterization errors that involve the trial court's finding separate property to be community property are in some cases harmless. See Spiller v. Spiller, 535 S.W.2d 683, 684 (Tex. Civ. App.-Tyler 1976, writ dism'd). For example, the appellant must show that the property division would have been more favorable had the trial court not mischaracterized the property in question; and, the appellant fails to do so when she fails to demonstrate that the trial court awarded the mischaracterized property to her in lieu of other property. See id. Thus, any error in determining that the property is community property is rendered harmless by the award of the property to appellant. See id.

    In this appeal, even if we assume that Kimberly's military benefits were her separate property, Kimberly fails to demonstrate that the trial court awarded her these in lieu of other property. See id. Kimberly did not request findings of fact about the trial court's characterization or valuation of the awarded assets. Kimberly did not otherwise present any evidence showing that the property division would have been more favorable to her absent the alleged mischaracterization. See Spiller, 535 S.W.2d at 684. Any error in finding the property to be community property is harmless because the trial court awarded the disability benefits to Kimberly. See id. We overrule issue one.

    Chester's Retirement

    In issue two, Kimberly complains that the trial court erred by not awarding her the share of Chester's retirement to which she is entitled under section 7.003 of the Texas Family Code. (3) Kimberly did not raise this alleged error before the trial court and has waived the right to complain about the error on appeal. See Tex. R. App. P. 33.1(a); Byrnes v. Byrnes, 19 S.W.3d 556, 561 (Tex. App.-Fort Worth 2000, no pet.).

    In addition, there is little evidence in the record about Chester's retirement plan. On direct examination, Chester stated that he had retirement benefits through the carpenters' local union. On cross-examination, counsel did not ask Chester any questions about his retirement benefits. The only testimony that Kimberly gave about Chester's retirement benefits was in response to her attorney's question. Counsel asked Kimberly whether she felt she should get her statutory share of Chester's carpenter's retirement and she answered "Yes. Absolutely." Chester listed his retirement plan as community property in his inventory but did not assign a value to it. Kimberly did not list Chester's retirement plan in her inventory of community property. Further, Kimberly did not request findings of fact on the trial court's valuation of Chester's plan nor did she complain in her motion for new trial about the trial court's alleged error in awarding the retirement benefits to Chester.

    "One who complains of the trial court's division of 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." Pletcher, 9 S.W.3d at 446. Thus, even if we were to consider the issue preserved, the lack of evidence regarding Chester's plan precludes any determination that the trial court abused its discretion in awarding him the plan. See id. We overrule issue two.

    Debts

    In issue three, Kimberly contends that the trial court erred by requiring her to assume a community debt that far exceeded any other debt of the estate. Kimberly complains specifically about debts for her medical expenses and a $6,391.00 debt owed to Sears MasterCard.

    Kimberly, however, did not raise her complaint about the medical expense debt with the trial court and the trial court did not have an opportunity to correct the alleged error. Thus, Kimberly waived her right to complain about this debt on appeal. See Tex. R. App. P. 33.1(a); Byrnes, 19 S.W.3d at 561.

    Prior to the new trial hearing, Kimberly's counsel informed the trial court that the Sears MasterCard debt had not been assigned to either party. The trial court's division of a marital estate need not be equal, and the court may consider various factors, including fault, in making a division of the community property. See Schlueter, 975 S.W.2d at 588; Murff, 615 S.W.2d at 698-99. Other non-exclusive factors may include "the spouses' 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.

    Absent findings of fact, Kimberly cannot show what factors the trial court considered in dividing the property and debts. See Tate v. Tate, 55 S.W.3d 1, 10 (Tex. App.-El Paso 2000, no pet.). Further, Kimberly cannot show whether the court intended to make a nearly-equal division or whether it determined a disproportionate division was justified. See id.

    Chester specifically pled insupportability as grounds for the divorce, and he also asked to be awarded a disproportionate share of the estate because of Kimberly's fault in the break-up of the marriage. The record contains evidence, which the trial court may have considered, that demonstrates Kimberly was at fault. She admitted she had been hospitalized for problems with alcohol. She admitted slashing the tires of the truck Chester drove to work. Chester also testified that Kimberly was arrested after she threatened him with a gun.

    The trial court may have considered Kimberly's actions and, accordingly, may have decided against ordering Chester to pay any portion of the credit card debt. In the absence of fact findings, Kimberly cannot show otherwise, and we cannot conclude that the trial court abused its discretion. See Worford, 801 S.W.2d at 109. We overrule issue three.





    Motion for New Trial

    In issue four, Kimberly contends the trial court erred by denying her motion for new trial. In her motion, Kimberly asserted that facts and circumstances had materially and substantially changed since trial and that the changed circumstances included Chester's willful destruction of community property. At the hearing following trial, Kimberly's counsel alleged that Chester destroyed or damaged certain community property. According to counsel, Chester knowingly left the couple's dog, Dexter, in an unsafe environment and the dog died as a result. (4) Counsel also argued that Chester should be responsible for over $6,000 in damage to the 2000 Chevrolet truck awarded to Kimberly. Counsel contended the damage occurred during the time Chester possessed the truck.

    We will consider Kimberly's new trial motion as requesting that she be allowed to introduce newly discovered evidence. (5) See Tex. R. Civ. P. 324(b)(1). The purpose of a motion for new trial is to ask the court to correct trial errors. In re Marriage of Wilburn, 18 S.W.3d 837, 842 (Tex. App.-Tyler 2000, pet. denied). Whether to grant or deny a motion for new trial is generally a matter left to the broad discretion of the trial court, and the trial court's action will not be disturbed on appeal absent an abuse of that discretion. Cliff v. Huggins, 724 S.W.2d 778, 778-79 (Tex. 1987). The test for abuse of discretion is whether the trial court acted in an arbitrary and unreasonable manner or without reference to any guiding principles. Worford, 801 S.W.2d at 109.

    "When a party seeks a new trial based on newly discovered evidence, the motion for new trial must verify that the evidence is true and correct." Raymond v. Raymond, 190 S.W.3d 77, 82 (Tex. App.-Houston [1st Dist.] 2005, no pet.). "A movant's mere allegations will not suffice to obtain a new trial on the basis of newly discovered evidence; rather, admissible evidence must be introduced at a hearing on the motion for new trial establishing such essential facts as no prior knowledge on the part of the movant, the prior diligence exercised by the movant and, of course, the nature of the newly discovered evidence." Bell v. Showa Denko K.K., 899 S.W.2d 749, 757 (Tex. App.-Amarillo 1995, writ denied).

    Kimberly's motion was not verified. Further, she did not introduce evidence at the hearing on her motion for new trial. Thus, the trial court did not abuse its discretion in denying her motion. See Raymond, 190 S.W.3d at 82; Bell, 899 S.W.2d at 757. We overrule issue four.

    Having overruled all of Kimberly's issues, we affirm the trial court's judgment.

    AFFIRMED.













    ____________________________

    HOLLIS HORTON

    Justice







    Submitted on June 13, 2007

    Opinion Delivered August 16, 2007

    Before McKeithen, C.J., Kreger and Horton, JJ.

    1. Though Kimberly did not list this debt on her exhibits filed at trial, she testified that the Sears MasterCard debt was $6,300. When asked what was purchased with the credit card, Kimberly stated: "It's just piled up over the years."

    2. When opposing counsel asked whether she had any documents to show that the money she was receiving was for disability and not retirement, she stated that she did not. She maintained that records existed to support her separate property claim, but that she did not have access to the documents because they were in the Kirbyville house. On cross-examination, she agreed that she had not requested the documents through the discovery process.

    3. Section 7.003 states:



    In a decree of divorce or annulment, the court shall determine the rights of both spouses in a pension, retirement plan, annuity, individual retirement account, employee stock option plan, stock option, or other form of savings, bonus, profit-sharing, or other employer plan or financial plan of an employee or a participant, regardless of whether the person is self-employed, in the nature of compensation or savings.



    Tex. Fam. Code Ann. § 7.003 (Vernon 2006).

    4. Apparently, Chester left the dog with Kimberly's father, who was known to be very protective of his livestock. When the dog attacked the father's livestock, he shot the dog. Counsel contended that Chester deliberately did not restrain Dexter when he left the dog at the father's property despite knowing that Dexter would probably chase the livestock, which would cause Kimberly's father to shoot him.

    5. Though the evidence that Kimberly asked the trial court to consider appears to be post-hearing evidence, it apparently is not post-judgment evidence. Just before the motion for new trial hearing, the trial court took comments from counsel regarding the form of the judgment indicating that the court had not yet signed the decree.