in the Matter of the Marriage of Stephany Joy Adams and Nick Wade Adams and in the Interest of Christin Joy Adams, a Child

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-03-00028-CV ______________________________ IN THE MATTER OF THE MARRIAGE OF STEPHANY JOY ADAMS AND NICK WADE ADAMS AND IN THE INTEREST OF CHRISTIN JOY ADAMS, A CHILD On Appeal from the 6th Judicial District Court Red River County, Texas Trial Court No. 002CV00058 Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION Factual and Procedural History Stephany Joy Adams and Nick Wade Adams were married on October 19, 1982. In 2002, the couple separated. On March 6, 2002, Stephany filed for divorce in the 6th Judicial District Court of Red River County. At trial, the couple testified as to the value of most of the property in the marital estate. During the testimony, each expressed his and her willingness to sell certain property, most notably the asphalt millings and the ten-acre tract of land in Lamar County, and split the proceeds of the sale. On June 24, 2002, the trial court entered a final decree of divorce in which it divided the marital estate, awarded custody of the couple's child to Nick, and ordered Stephany to pay $250.00 per month in child support until their daughter reaches the age of eighteen. A general summary of the manner in which the trial court divided the property is as follows: Valuation of Property Awarded to Stephany: Rental house w/ 4 acres . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,000.00 10-acre tract in Detroit, Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,000.00 Asphalt millings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7,956.00 Farm equipment (less one 4x4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17,227.00 Personal property (less items already listed as farm equipment) . . . . . . . . . . . . . . . . . . . . 8,177.00 Guns as listed in decree . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,735.00 Personal property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,227.00 Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6,000.00 Total 56,322.00 Valuation of Property Awarded to Nick: Tx DOT retirement account. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46,309.56 Investment account. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,000.00 1999 Ford F150 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..0.00 Guns not awarded to wife . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .800.00 Personal property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6,750.00 Suzuki 4x4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2,192.00 Bank accounts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,000.00 Subtotal 59,051.56 Less judgment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (6,000.00) Total 53,051.56 Recognizing that the division was unequal, the trial court awarded Stephany a judgment in the amount of $6,000.00. This amount was to be credited against Stephany's child support obligation at the rate of $250.00 per month, meaning that Nick would not have to pay the judgment and that Stephany would be relieved of her support obligation. Based on the values found by the trial court from the evidence presented, the property granted to Stephany had a greater value than that granted to Nick. On January 27, 2003, the trial court entered findings of fact and conclusions of law. Almost one year later, on January 12, 2004, the trial court modified the order, granting Stephany primary custody of their daughter and ordering Nick to pay $641.40 per month as child support. Standard of Review and Applicable Law 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." Tex. Fam. Code Ann. § 7.001 (Vernon 1998). Although the trial court does not have to divide the community property equally, its division must be equitable. O'Carolan v. Hopper, 71 S.W.3d 529, 532 (Tex. App.—Austin 2002, no pet.). The trial court exercises broad discretion in the division of marital property, and we will not disturb that division on appeal absent a showing of an abuse of discretion. Id.; Robles v. Robles, 965 S.W.2d 605, 613 (Tex. App.—Houston [1st Dist.] 1998, pet. denied). We are required to indulge every reasonable presumption in favor of the trial court's proper exercise of its discretion. In re Marriage of Moore, 890 S.W.2d 821, 839 (Tex. App.—Amarillo 1994, no writ). Our analysis focuses on a two-pronged inquiry: (1) did the trial court have sufficient information on which to exercise its discretion? and (2) did the trial court abuse its discretion by causing the property division or child support order to be manifestly unjust or unfair? Evans v. Evans, 14 S.W.3d 343, 345–46 (Tex. App.—Houston [14th Dist.] 2000, no pet.). Legal and factual sufficiency are not independent grounds of error, but relevant factors in assessing whether the trial court abused its discretion. Doyle v. Doyle, 955 S.W.2d 478, 479 (Tex. App.—Austin 1997, no pet.). A trial court abuses its discretion when it rules without supporting evidence. Evans, 14 S.W.3d at 345–46. Stephany appeals the trial court's division of property, bringing forth one point of error, contending the trial court abused its discretion in awarding the entire amount of Nick's retirement benefits to him. However, within this point of error, she also argues the trial court abused its discretion in dividing the property without evidence of the value of the property. Analysis A. Retirement benefits The trial court's division of the marital property in which it awarded the entire amount of Nick's retirement benefits to him was not manifestly unfair. Each specific item of marital property need not be divided in kind. Hanson v. Hanson, 672 S.W.2d 274, 278 (Tex. App.—Houston [14th Dist.] 1984, writ dism'd). We review the totality of the division to determine whether the resulting division was manifestly unfair. Id. As indicated by the previous listing of property as divided by the trial court, the total division remains equitable. Stephany is not entitled to insist that each item of property be divided. The trial court did not abuse its discretion when it divided the marital property in a manner in which Nick received all of his retirement benefits and in which Stephany received other substantial assets making the division an equitable one. Generally, if a marital estate can be divided equitably by partitioning the assets in kind, this method should be used instead of a money judgment. Id. However, there are circumstances which justify the use of a money judgment to balance the disproportionate award of assets. Id. In Hanson, the court noted that the nature and type of property in the estate may justify the trial court's award of a money judgment in some cases. Id. Here, the trial court divided the community property in kind and apparently utilized the money judgment to equalize the division. Looking at the division of the estate in its totality, we see that the division of the property was not manifestly unfair to Stephany despite the fact the trial court did not award her a portion of Nick's retirement benefits. B. Evidence supporting values used in division The trial court did not abuse its discretion in awarding the property because the values which it used to effect a just and right division were supported by sufficient evidence in the form of exhibits offered by Stephany and testimony of the parties. As previously stated, a division of marital property based on values that were not in evidence is an abuse of discretion. Martin v. Martin, 797 S.W.2d 347, 351 (Tex. App.—Texarkana 1990, no writ); Mata v. Mata, 710 S.W.2d 756, 760 (Tex. App.—Corpus Christi 1986, no writ). When an appellate court has a statement of facts before it and the trial court's specific findings are challenged, the appellate court must examine the entire record and sustain the findings if any probative evidence supports them. See Mata, 710 S.W.2d at 760. Stephany relies on this Court's opinion in Martin to support her contention that the trial court abused its discretion in basing its division of property on values not entered into evidence. While Martin does so hold, it is distinguishable from the instant case. In Martin, the trial court relied on a report from a master of chancery to arrive at some of the values of the divided property. Martin, 797 S.W.2d at 351. The report was not admitted as evidence, and this Court could find only a portion of the report referenced in the record. Id. So, there may have been a legitimate argument that the trial court did arrive at values without a basis in evidence. See id. However, the court did not reach that issue because appellant husband did not complain on appeal that the trial court relied on values not in evidence. Id. Rather, he argued that, based on the master's report, the division of the property was unequal. Id. Based on the difference in facts and the difference in the issues raised by the appellants, only the general principles of law set forth in Martin are applicable here. We conclude the trial court properly exercised its discretion by relying on evidence to arrive at the values used in the division of the Adamses' marital property. As to the rental house in Lamar County which the trial court awarded to Stephany, the trial court had testimony before it the house was valued somewhere between $14,800.00 and $30,000.00. Nick testified the current value of the house was approximately $18,000.00. The trial court's findings of fact assigned a value of $18,000.00 to the house, a figure consistent with Nick's testimony and which falls within the range of value represented by other evidence. This figure fell within the range of value as supported by the testimony of the couple. The trial court relied on Nick's testimony regarding the $8,000.00 debt owed on the property. The value of the asphalt millings, as employed in the trial court's division, comes directly from evidence Stephany offered to the trial court. The trial court used Stephany's calculations exactly. Since there was clearly evidence of the value of the asphalt millings and especially since the evidence was her own exhibit, her contention there was absolutely no evidence of the value of the millings is meritless. The trial court arrived at the values of the personal property and guns also by reference to exhibits Stephany prepared. Stephany specifically complains the trial court relied on the values as shown on Petitioner's Exhibit 3 to arrive at its division. Exhibit 3 is a list of the depreciated value of items as used for tax purposes. She argues that the purpose of admitting Exhibit 4 was to demonstrate that a Case tractor was community property rather than the property of Nick's mother's estate. However, the record reveals that no such limitation was assigned to the exhibit when it was admitted. Therefore, the trial court did not abuse its discretion in relying on the exhibits for the values contained therein. The trial court did not abuse its discretion when it relied on a party's inventory to arrive at the values in its division of marital property even when it was shown that the inventory was never admitted into evidence. Vannerson v. Vannerson, 857 S.W.2d 659, 670 (Tex. App.—Houston [1st Dist.] 1993, writ denied). Here, the exhibits offered by Stephany and on which the trial court clearly relied were, in fact, admitted into evidence. The trial court did not abuse its discretion in relying on evidence of which the proponent of that evidence now complains. Even as to one item for which we could conclude the trial court did not base its findings on evidence in the record, Stephany did not meet her burden on appeal. The values of which Stephany specifically complains were supported by her own exhibits and/or testimony from the parties. The record does not speak, however, to the value of the 1999 Ford F150. It does reveal the debt owed on the vehicle, approximately $14,000.00. The trial court offset the amount owed against the value of the vehicle and arrived at a net value of zero dollars. The record does not show how the trial court arrived at this figure. Even if the trial court erred in assigning a value to the truck without evidence, Stephany did not sustain her burden of proving the value of the truck and then demonstrating how the division was manifestly unfair according to the values she assigned to the property. Attempting to gain reversal by attacking the court's fact findings, as Stephany does, does not necessarily result in victory even if we were to conclude the trial court's findings were inaccurate. See Forgason v. Forgason, 911 S.W.2d 893, 896 (Tex. App.—Amarillo 1995, writ denied); Preston v. Preston, 453 S.W.2d 389, 391–92 (Tex. Civ. App.—El Paso 1970, no writ). The appellant must not only present evidence establishing the true value of the property, but also prove that the ultimate division, as reappraised, remained manifestly inequitable. Forgason, 911 S.W.2d at 896. In other words, it is not enough to merely point out inaccuracies in the court's findings. Id. Stephany fails to demonstrate how the trial court's division of property would remain manifestly unfair given the values of the property she contends the trial court should have assigned. Conclusion We overrule Stephany's point of error and affirm the judgment of the trial court. Jack Carter Justice Date Submitted: February 5, 2004 Date Decided: February 26, 2004