Nancy Ruth Lisk v. Richard H. Lisk

Opinion issued July 21, 2005 In The Court of Appeals For The First District of Texas NO. 01-04-00105-CV NANCY RUTH LISK, Appellant V. RICHARD HOYLE LISK, Appellee On Appeal from the 245th Judicial District Court Harris County, Texas Trial Court Cause No. 2002-36249 MEMORANDUM OPINION Appellant, Nancy Ruth Lisk (“Wife”), appeals from a final judgment and decree of divorce entered by the trial court. In nine issues, appellant contends that (1) the trial court abused its discretion in not granting Wife child support in excess of the statutory child support guidelines despite evidence of the children’s proven needs in excess of the child support guidelines; (2) there was no or insufficient evidence to support a finding of fact that “neither child requires any special needs”; (3) the trial court erred in applying an improper “special needs” standard in place of the statutory “proven needs” standard; (4) there was no or insufficient evidence to support a finding of fact that “at the time of divorce, Wife was working part time as a real estate agent”; (5) the trial court abused its discretion when it failed to find adultery as a ground for divorce; (6) the trial court abused its discretion when it failed to find any ground for a disproportionate division of the community estate and failed to award Wife more than 52% of the community property; (7) there was no or insufficient evidence to support a finding of fact that awarded husband approximately 48% of the community estate; (8) the trial court abused its discretion when it ordered Wife to assume any loans from her family in the amount of approximately $20,000; and (9) there was no or insufficient evidence to support a finding of fact that “Wife was ordered to assume any loans from her family in the amount of approximately $20,000.” We affirm. BACKGROUND Wife and appellee, Richard Hoyle Lisk (“Husband”), were married in 1988 and divorced in September 2003. They have two minor children. At the time of their marriage, Wife, who holds an MBA degree, was working as a chemical engineer making $60,000 per year, and Husband was working as a veterinarian making $32,000 per year. In 1991, Husband opened Bay Glen Animal Hospital (“Bay Glen”) and Wife worked there part time handling the business’s finances. In 1993, Wife quit working as a chemical engineer and began working full time at Bay Glen. In 1996, Wife and Husband formed a business partnership, Visionary Investments (“Visionary”), with two other couples to own and manage the shopping center where Bay Glen is now located. Wife and Husband each currently own individual shares of the partnership, which produced approximately $2,000 a month in income for each of them. In 1999, Husband began having an affair. After Wife discovered Husband’s affair in 2001, they unsuccessfully sought counseling to save their marriage. In early 2002, Husband asked Wife for a divorce. After Husband requested the divorce, the couple separated and Wife left her job at Bay Glen. Nearly a year after Husband filed for divorce, Wife filed a counter petition for divorce. In her counter petition, Wife requested that (1) the divorce be granted on fault grounds and (2) she be granted a disproportionate share of the community estate. At trial, Wife additionally requested that Husband be ordered to pay her $3,500 per month in child support and $20,000 to repay a loan she had taken from her parents to cover her litigation expenses. At the time of trial, Husband had a gross income of approximately $180,000 and his monthly net resources exceeded $6,000, while Wife was working as a real estate agent, from which she earned an income of approximately $4,500 in 2003. Wife had tried to seek employment that is more commensurate with her educational background, but her efforts had been unsuccessful. At trial, Wife offered a “children’s needs list” in support of her request for additional child support, which included expenses for items such as extracurricular activities, entertainment, and housecleaning. Wife claimed that providing for the children’s proven needs would cost $6,100 per month. However, at trial she gave contradictory testimony as to whether this amount was necessary to cover the children’s needs or whether it was necessary to maintain the lifestyle to which they had become accustomed. After a bench trial, the trial court granted the divorce on grounds of insupportability and awarded Wife the amount of $1,500 per month in child support, the amount allotted by the statutory guidelines. The court also awarded Wife 52.5% of the community estate and her individual share of Visionary. Finally, the trial court determined that each party would take any debts for legal fees and costs that were incurred during the divorce as their own separate debt. Child Support In issues one through four, Wife contends the trial court abused its discretion by not awarding her child support in excess of the statutory guidelines in the face of uncontroverted evidence of her children’s proven needs. In general, a trial court’s ruling on child support will not be disturbed on appeal unless there is a clear abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); McGuire v. McGuire, 4 S.W.3d 382, 384 (Tex. App.—Houston [1st Dist.] 1999, no pet.). The test for abuse of discretion is whether the trial court acted arbitrarily or unreasonably, and without reference to any guiding rules or principles. Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.—Houston [1st Dist.] 1993, writ denied). In making this determination, the reviewing court must 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. Id. An abuse of discretion does not exist as long as there is some evidence of a substantive and probative character to support the decision. Id. Additionally, under an abuse-of-discretion standard, legal and factual insufficiency are not independent, reversible grounds of error; rather, they are relevant factors in assessing whether the trial court abused its discretion. Beaumont Bank v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); Mai v. Mai, 853 S.W.2d 615, 618 (Tex. App.—Houston [1st Dist.] 1993, no writ). The Texas Family Code (“the Code”) provides a bifurcated analysis in setting child support depending on whether an obligor has net monthly resources above or below $6,000. Tex. Fam. Code Ann. §§ 154.125, 154.126 (Vernon 2003); Nordstrom v. Nordstrom, 965 S.W.2d 575, 578-79 (Tex. App.—Houston [1st Dist.] 1997, pet. denied). In determining support obligations of a person, such as Husband, who has more than $6,000 in net monthly resources, the trial court must first presumptively apply the statutory percentage guidelines to the first $6,000 in monthly net resources, and it can only divert away from those guidelines based on its determination of the existence of the factors listed in section 154.123(b). Tex. Fam. Code Ann. § 154.123. Once the trial court has determined whether to apply the statutory guidelines to the first $6,000, it may then decide whether to order any additional child support based only on the proven needs of the children and income of the parties. Tex. Fam. Code Ann. § 154.126. While what constitutes “needs” of the child has not been clearly defined by case law or by statute, the needs of the child are neither limited to the “bare necessities” of life, nor can they be based on the children’s need to maintain a lifestyle. See Rodriguez v. Rodriguez, 860 S.W.2d 414, 417 n. 3. (Tex. 1993). Finally, if the court determines that the proven needs of the child exceed the presumptive award provided by the statutory guidelines, the court must then allocate the responsibility to meet the additional needs between the parties depending on the circumstances of the parents. Tex. Fam. Code Ann. § 154.126 (b). Wife contends she clearly and unequivocally testified and offered evidence that the amount of the reasonable needs of the children was $6,100 per month and, because the evidence was uncontested by Husband, Wife argues that she established the proven needs of her children as a matter of law. Husband contends that the children’s needs were not proven as a matter of law because Wife’s testimony was contested both during cross-examination of Wife and direct testimony of Husband. Wife provided contradictory testimony on her children’s needs. During her cross-examination, Wife admitted that the $6,100 figure that she had developed in her “proven needs list” was necessary to maintain the children’s “lifestyle.” However, Wife later recanted her statement and asserted that the $6,000 was necessary for the reasonable needs of the children. Because of these contradictory statements, it was reasonable for the trial court to conclude that Wife’s evidence of her children’s proven needs was not uncontroverted. Additionally, Husband testified that the household expenses had never been as high as Wife claimed. The trial court, as the trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony, and, therefore, the trial court was free to believe or disbelieve Wife’s testimony. Hatteburg v. Hatteburg, 933 S.W.2d 522, 530 (Tex. App.—Houston [1st Dist.] 1994, no writ). Additionally, testimony from an interested witness, such as Wife, when not corroborated, does not conclusively establish a fact even when the testimony is uncontradicted. Robles v. Robles, 965 S.W.2d 605, 616 (Tex. App.—Houston [1st Dist.] 1998, pet. denied). The trial court could have chosen to believe Husband’s testimony instead of Wife’s. The Code grants the trial court the discretion to award additional amounts of child support, and it only mandates that the trial court consider the needs of the children and the income of the parents in arriving at their decision of whether to award additional child support. Tex. Fam. Code Ann. § 154.126. The Code does not mandate that the trial court order additional child support even if it determines the two conditions listed in the statute warrant such an award. Id. Therefore, even if Wife conclusively proved the needs of the children, it was within the trial court’s discretion to refuse to award additional child support. Id.; Nordstrom, 965 S.W.2d at 581. Given the discretion allocated to the trial court and the contradictory evidence of the children’s proven needs, the trial court’s decision to not award excess child support was not arbitrary or unreasonable. We hold the trial court did not abuse its discretion by refusing to award Wife additional child support. Accordingly, we overrule Wife’s first issue. In issue two, Wife contends that there was no or insufficient evidence to support finding of fact four, which states, “Both minor children are in good health and neither child requires any special needs.” An appellant’s brief must contain a clear and concise argument for the contentions made with appropriate citations to authorities and the record. Tex. R. App. P. 38.1(h). Rule 38 requires Wife to provide us with such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue. Tesoro Petroleum Corp. v. Nabors Drilling USA Inc., 106 S.W.3d 118, 128 (Tex. App.—Houston [1st Dist.] 2002, pet. denied); see also Franklin v. Enserch, Inc., 961 S.W.2d 704, 711 (Tex. App.—Amarillo 1998, no pet.). Wife’s second issue raises the argument that the evidence was insufficient to support finding of fact four, however she points to no facts overlooked by the trial court and she asserts no legal basis for her argument other than listing activities that Texas courts have deemed “proven needs” in the past. Wife waived her second issue. See Tesoro, 106 S.W.3d at 128. In issue three, Wife contends that the trial court used an improper standard in determining the proven needs of the children. Wife argues that the trial court erred in looking at the special needs of the children, instead of the proven needs of the children to determine whether to award additional child support in excess of the statutory guidelines. See Tex. Fam. Code Ann. § 154.126. Because we must indulge every legal presumption in favor of the judgment, we presume finding of fact four relates to the analysis under section 154.123(b) and does not indicate that the trial court used an improper standard in making its decision to deny excess child support under section 154.126. Holley, 864 S.W.2d at 706. While the trial court would need to look at the proven needs of the children under a section 154.126 analysis to determine if additional child support in excess of the statutory guidelines is appropriate, finding of fact four does not relate to the section 154.126 analysis to determine whether child support in excess of the statutory guidelines is warranted. Rather, it is a finding of fact in support of the trial court’s decision under the section 154.123(b) analysis to not deviate from the statutory guidelines. See Tex. Fam. Code Ann. § 154.123(b). We overrule Wife’s third issue. In issue four, Wife argues that there is no or insufficient evidence to support the trial court’s finding of fact that, at the time of divorce, Wife was working part time as a real estate agent. Under an abuse-of-discretion standard, legal and factual insufficiency are not independent, reversible grounds of error; rather, they are relevant factors in assessing whether the trial court abused its discretion. Mai, 853 S.W.2d at 618. Wife testified that she started working in real estate in January 2003 and waited until the summer to send out resumes because she had to give her full attention to real estate. Wife argues that this testimony clearly establishes that she was working full time as a realtor. The trial court had the discretion to disbelieve Wife’s testimony that she had been working full time. See e.g, Nordstrom, 965 S.W.2d at 580-81; see also Hatteburg, 933 S.W.2d at 530. The trial court’s decision is further augmented by the evidence that Wife only earned $4,500 during nine months of work. The trier of fact could have reasonably inferred that Wife could only have earned that income by working part time. We hold there was sufficient evidence to support finding of fact 14, and that the trial court’s ruling on this issue was neither arbitrary nor unreasonable. We overrule Wife’s fourth issue. Division of Property In issues five through seven, Wife contends the trial court abused its discretion by not granting the divorce on fault grounds and by not awarding her a more disproportionate share of the marital estate. Section 7.001 of the Code states, “In a decree of divorce . . . the court shall order a division of the estate of the parties in a manner that the court deems is just and right.” Tex. Fam. Code Ann. § 7.001. The trial court has wide discretion in making a just and right division of the community estate, and that division should not be corrected on appeal unless a clear abuse of discretion is shown. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981); Alsenz v. Alsenz, 101 S.W.3d 648, 654 (Tex. App.—Houston [1st Dist.] 2003, pet. denied); Rafferty v. Finstad, 903 S.W.2d 374, 377 (Tex. App.—Houston [1st Dist.] 1995, writ denied). The test for whether the trial court abused its discretion is whether the trial court acted arbitrarily or unreasonably, without reference to any guiding rules or principles. Holley, 864 S.W.2d at 706. In dividing the marital estate under section 7.001 of the Code, the trial court may consider a myriad of factors. Murff, 615 S.W.2d at 699; e.g. Bell v. Bell, 513 S.W.2d 20, 22 (Tex. 1974). Those factors include (1) the spouses’ capacities and abilities; (2) benefits which the party not at fault would have derived from continuation of the marriage; (3) business opportunities; (4) education; (5) relative physical conditions; (6) relative financial conditions and obligations; (7) disparity of income or earning capacity; (8) size of the respective estates and the nature of the property; (9) custody of the children; (10) excessive community property gifts to others or waste of community assets; and (11) tax consequences. See Murff, 615 S.W.2d at 699. In issue five, Wife contends that, because of the uncontested evidence of Husband’s affair, the trial court abused its discretion by not granting her a divorce based on adultery. When looking at a final judgment under an abuse-of-discretion standard, the trial court will not be found to have abused its discretion where there is some evidence of a probative nature to support the judgment. Zieba v. Martin, 928 S.W.2d 782, 787 (Tex. App.—Houston [14th Dist.] 1996, no writ). Here, the trial court granted the divorce on the grounds of insupportability, not adultery. Section 6.001 states, “[T]he court may grant a divorce without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.” Tex. Fam. Code Ann. § 6.001. The record contained sufficient evidence of intense conflict between Wife and Husband to support the trial court’s finding of insupportability. Additionally, both parties pleaded insupportability as grounds for divorce when this case was filed. Based on the record as a whole, there is some evidence of a probative nature to support the trial court’s decision to grant the divorce on grounds of insupportability. Despite the evidence supporting insupportability, Wife argues that, because Husband admitted to having an affair, the trial court abused its discretion by failing to grant her a divorce on grounds of adultery. See Tex. Fam. Code Ann. § 6.003. However, Husband’s admission to an affair does not mean the trial court was required to grant Wife the divorce on the grounds of adultery, although it would have been within its discretion to do so. See Clay v. Clay, 550 S.W.2d 730, 732-33 (Tex. Civ. App.—Houston [1st Dist.] 1977, no writ) (holding trial court was not required to grant fault-based divorce even though jury determined wife was subjected to cruel and unusual treatment). Because the trial court had sufficient evidence to grant the divorce on insupportability grounds, and because the trial court was not required to grant Wife a divorce based on adultery, we hold the trial court did not abuse its discretion by not granting a fault-based divorce. Accordingly, we overrule Wife’s fifth issue. In issues six and seven, Wife contends that the trial court abused its discretion by not granting her a more disproportionate share of the community estate. Wife argues that she should have been granted a greater share because of (1) the amount of time and effort she invested into Husband’s business and the resulting disparity in the income and earning power between the two parties and (2) the fact that Husband had an affair. The trial court did not abuse its discretion as long as there is some evidence of a probative nature to support the judgment. Martin, 928 S.W.2d at 787. Husband’s affair was uncontested and from the record it appears the trial court gave this factor due consideration in determining a just and right property settlement. The trial court also considered the disparity in income and earning power between the two parties. However, the trial court was not obligated to award Wife a more disproportionate share of the estate on account of Husband having an affair and a larger income than Wife. See Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987) (holding trial court not required to divide the estate disproportionately in the wife’s behalf just because husband committed adultery and made more money than wife). It is not an abuse of discretion for a trial court to make an equal division of the property, even where the equities balance in favor of the wife. See Rafferty v. Finstad, 903 S.W.2d 374, 377 (Tex. App.—Houston [1st Dist.] 1995, writ denied). Fault and disparity in the parties’ incomes are “only two of the many factors a trial court should consider when dividing a marital estate. Stafford, 726 S.W.2d at 16; see Murff, 615 S.W.2d at 699. Here, the trial court looked beyond these two factors and also considered the amount of income Wife would receive from her share of Visionary, the earning capacity she enjoyed from her advanced degrees, her good health, Husband’s assumption of the community’s tax liability, and the age and health of the children when making what it considered to be a just and right division of the marital estate. Because of the broad amount of discretion afforded the trial court in this area and the sufficient evidence in the record to support the trial court’s division of the marital estate, we hold that the trial court did not abuse its discretion. Accordingly, we overrule Wife’s sixth and seventh issues. Wife’s Debt In issue eight, Wife contends the trial court abused its discretion by ordering her to repay the $20,000 loan she took from her parents to cover litigation expenses. We review a trial court’s decision on whether to award attorney fees under an abuse-of-discretion standard. Samara v. Samara, 52 S.W.3d 455, 458 (Tex. App.—Houston.[1st Dist.] 2001, pet. denied); Hunt v. Baldwin, 68 S.W.3d 117, 135 n.8 (Tex. App.—Houston [14th Dist.] 2001, no pet.). In issue nine, Wife contends the evidence was insufficient to support finding of fact 23, which states, “Wife was ordered to assume any loans from her family in the amount of approximately $20,000.00.” Because, under an abuse of discretion standard, legal and factual insufficiency are not independent, reversible grounds of error, but rather are relevant factors in assessing whether the trial court abused its discretion, we treat these issues together. Mai, 853 S.W.2d at 618. The allocation of attorney’s fees is but one factor to be considered by the court in dividing the marital estate in a just and right manner. See Tex. Fam. Code Ann. § 7.001; Eikenhorst v. Eikenhorst, 746 S.W.2d 882, 890 (Tex. App.—Houston [1st Dist.] 1998, no pet.); Morgan v. Morgan, 657 S.W.2d 484, 492 (Tex. App.—Houston [1st Dist.] 1983, writ dism’d). The allocation of financial obligations is another factor to be considered by the court. Murff, 615 S.W.2d at 699. Wife contends that the trial court abused its discretion by ordering her to pay litigation expenses out of her separate resources while it allowed Husband to pay his litigation expenses out of the community estate. However, the record indicates that Husband, like Wife, also took out a personal loan to cover his litigation expenses, which was not repaid with community funds. The record contains some evidence that both Wife and Husband used community funds to cover portions of their litigation expenses. Wife’s financial information sheet indicates that she spent approximately $40,000 in legal expenses during the year leading up to the trial. During this time, Wife’s only income came from Husband (whose income was considered part of the community), her share of Visionary (part of the community estate), and her parents’ $20,000 loan. It was reasonable for the trial court to infer that Wife, like Husband, had used community funds to pay her litigation expenses because she only had $20,000 in non-community funds during this time. We should not substitute our judgment for that of the trial court merely because we might reach a different conclusion based on the facts. See Vongontard v. Tippit, 137 S.W.3d 109, 113 (Tex. App.—Houston [1st Dist.] 2004, no pet.). Attorney’s fees and debt allocation are but two factors for the court to consider in dividing a marital estate in a just and right manner. Morgan, 657 S.W.2d at 492; Murff, 615 S.W.2d at 699. Even if Husband had not taken out a personal loan, and even if Wife had not used community funds to pay her litigation expenses, the trial court still had the discretion to order Wife to assume her debt based on the other factors surrounding the division of the estate. Id. The trial court granted Wife a disproportionate share (52.5%) of the estate, a one-half share in the couple’s stake in Visionary, $1500 per month in child support, and Husband was ordered to assume $45,000 in unpaid community tax liability. Given all of these factors, there was sufficient evidence to support finding of fact 23 and it was reasonable for the trial court to order both parties to assume their own personal debts created by the expenses of this litigation. See Holley, 864 S.W.2d at 706. Within the context of the total division of the estate, the trial court did not abuse its discretion by ordering Wife to assume the debt for her litigation expenses. Accordingly, we overrule Wife’s eighth and ninth issues. CONCLUSION We affirm the judgment of the trial court. Sherry Radack Chief Justice Panel consists of Chief Justice Radack and Justices Jennings and Hanks.