John A. Mays v. Patti Hutson Mays

NUMBER 13-05-558-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG JOHN A. MAYS, Appellant, v. PATTI HUTSON MAYS, Appellee. On appeal from the 377th District Court of Victoria County, Texas. MEMORANDUM OPINION Before Justices Yañez, Benavides and Vela Memorandum Opinion by Justice Vela This is an appeal from a final divorce decree. In four issues, appellant, John Mays, challenges the trial court's division of the marital estate, and its economic reimbursement and contribution awards to appellee, Patti Hutson Mays. We affirm. I. BACKGROUND John and Patti Mays were married on October 7, 1989. The parties separated on September 6, 2003, and Patti filed for divorce on August 17, 2004. The primary issue at trial concerned Patti's reimbursement and economic contribution claims and funds contained in the bank accounts that the couple shared. John purchased a home prior to the marriage. He paid $3,250 as a down payment on the home and financed the remainder. It was undisputed that the couple paid off the home in 1995, with proceeds from a judgment they received in a civil lawsuit. In that suit, the jury awarded Patti $65,000 in emotional damages, $10,000 in lost wages, and $2,500 in exemplary damages. The same jury awarded John $1,000 in emotional damages, $10,000 in lost wages and $2,500 in exemplary damages. The total award, including interest, was approximately $107,000 of which the couple received $63,000. All of the amounts awarded to them were used to pay off the mortgage. The house was valued at $78,000 at the time of the divorce. Patti testified that in 2000 she invested an additional $10,000 of her separate property to make improvements to the home from monies she received as an inheritance from her mother's estate. She testified that she painted the whole house, replaced light fixtures and did electrical work. The remaining marital estate included cars, a boat, trailer, bank accounts, credit card debt, and student loan debt. Each party owned his or her own business. Each business had separate bank accounts. Following a hearing, the trial court issued its final order and filed findings of fact and conclusions of law. John did not request or file additional findings. The court determined that the house was John's separate property, but ordered him to reimburse the wife $10,000 for expenditures of her separate property on the house. The court also ordered John to pay Patti $55,000 for economic contribution. That award was to be secured by an equitable lien on the home. Additionally, John was awarded one of the cars, the trailer, all furniture and possessions in his possession. Patti was awarded a car, a boat, all furniture and other objects in her possession. The court additionally divided the credit card loan debts. Patti had student loan debts of more than $100,000 which the court ordered her to pay. The trial court's findings of fact also included a finding that John wasted community assets and that he was guilty of cruel treatment. II. STANDARD OF REVIEW In a divorce proceeding, the trial court has wide latitude in the exercise of its discretion in dividing marital property and that division will only be overturned on appeal when an abuse of discretion is proven. Zieba v. Martin, 928 S.W.2d 782, 786 (Tex. App.-Houston [14th Dist.] 1996, no writ). The mere fact that a trial judge may decide a matter within its discretionary authority differently from an appellate judge is not an abuse of discretion. Jones v. Jones, 804 S.W.2d 623, 624 (Tex. App.-Texarkana 1991, no writ). An appellate court will not reverse a trial court's division of property unless it determines it to be manifestly unjust and unfair. Mann v. Mann, 607 S.W.2d 243, 245 (Tex. 1980); Vandiver v. Vandiver, 4 S.W.3d 300, 303 (Tex. App.-Corpus Christi 1999, pet. denied). In an appeal from a bench trial, we review a trial court's conclusions of law as legal questions, de novo, and will uphold them on appeal if the judgment can be sustained on any legal theory supported by the evidence. Hailey v. Hailey, 176 S.W.3d 374, 383 (Tex. App-Houston [14th Dist.] 2004, no pet.). If we determine that a conclusion of law is erroneous, but the trial judge nevertheless rendered the proper judgment, the error does not require reversal. Id. III. DISPOSITION OF PROPERTY John urges in his first two issues that the trial court failed to divide and dispose of all of the marital property and abused its discretion because the court had "little or no evidence" as to the existence and value of the parties' assets and liabilities. A. Failure to Divide the Property John urges that the trial court failed to award cash on hand, accounts at Prosperity Bank, First Victoria National Bank, First Victoria Credit Union, the couple's guns and the wife's jeep. He also argues that the decree failed to set forth who is to pay indebtedness owed to Capital One, Dillards, Bank One and other accounts. At trial, John's attorney told the court that most of the property had been divided except the house and a couple of savings accounts. The accounts in issue were two accounts at Prosperity Bank that were in John's name; an account with Victoria Credit Union and checking accounts at First Victoria National Bank. Patti offered testimony that the savings accounts at Prosperity Bank and Victoria Credit Union had dwindled to practically nothing from the date of separation and the date of the divorce hearing. When the couple separated there had been more than $20,000 in those combined accounts. The Prosperity Bank checking account in the name of John's business, Mays Investigation, had approximately $9,000 in it at the time of the hearing. The trial court awarded the parties all accounts associated with each of their respective businesses. The other bank accounts alleged to have been depleted by John were in his possession and there was nothing to indicate that they were not awarded to him. The court determined that John had wasted community assets. There appeared to be nothing further to award with regard to the bank accounts. Contrary to appellant's claim, the bank accounts were disposed of in the decree. The evidence also showed that the guns were awarded because the trial court awarded both husband and wife the household goods and equipment in each individual's possession. There was also evidence that the wife bought the jeep prior to the marriage and it was her separate property, not subject to division. Tex. Fam. Code Ann. § 3.001(1) (Vernon 2006). Patti also testified that Capital One, Bank One and Dillards were her separate liabilities. We cannot say, based on the record before us, that the trial court failed to award or divide the property about which appellant complains. B. Manner of Distribution of the Marital Estate John also argues that the trial court erred in dividing the marital estate in the manner it did. He complains that no inventory was admitted into evidence showing the assets and liabilities of the parties. The record reflects that Patti submitted a proposed property distribution, but John failed to comply with the local rules which required an inventory. John did not refute that the local rules required him to file an inventory. He argued that his reason for noncompliance was that the couple had already divided almost everything. John should not be able to complain about the lack of inventory when his failure to comply with local rules was the reason for the absence. In a divorce decree, the trial court shall order a division of the estate in a manner that the court determines to be just and right. Tex. Fam. Code Ann. § 7.001 (Vernon 2006). There is a presumption that the trial court properly exercised its discretion in dividing the assets of the marriage. Vallone v. Vallone, 644 S.W.2d 455, 460 (Tex. 1982); Saldana v.Saldana, 791 S.W.2d 316, 319 (Tex. App.-Corpus Christi 1990, no writ). This court must indulge every reasonable presumption in favor of the trial court's proper exercise of discretion. Vannerson v. Vannerson, 857 S.W.2d 659, 669 (Tex. App.-Houston [1st Dist.] 1993, writ denied). Patti testified to the value of the house at the time of the hearing, the amount of the verdict in the couple's civil lawsuit, the value of her inheritance and the value of the improvements on the house. The trial court accepted those values. Although no inventory was introduced as evidence, Patti entered a proposed distribution of the property into evidence. Patti testified at length regarding the value of all of the property at the time of the separation and at the time of divorce. John provided the court with no inventory. The trial court did not abuse its discretion in relying upon the wife's testimony. As counsel for John stated, the only area of controversy was the amount in the bank accounts and the house. The evidence showed that John drained the amount in the accounts between the time of separation and the divorce. The trial court also found that John was guilty of cruel treatment toward Patti. The trial court did not abuse its discretion as the estate was divided in a manner that was just and right. We overrule issues one and two. C. Economic Contribution and Equitable Reimbursement Claims John urges by his third issue that the trial court abused its discretion in awarding Patti $55,000 for her reimbursement and/or economic contribution award. The rule of reimbursement is purely an equitable one. Vallone v. Vallone, 644 S.W.2d at 458. A right of reimbursement arises when funds or assets of one estate are used without itself receiving some benefit. Id. at 459. Economic contribution is the dollar amount of the reduction of the principal amount of a debt secured by a lien on the property owned before the marriage, to the extent the debt existed at the time of the marriage. Tex. Fam. Code Ann. § 3.402 (Vernon 2006). The value of the house at the time of trial was approximately $78,000. The house had been purchased for $65,000. Patti testified that the house was paid off with the $63,000 they received from the judgment, most of which was hers. Patti testified that of the $91,000 awarded by the jury to the couple in their civil lawsuit $65,000, or 71% of the award was for her emotional damages. Awards for emotional damages are considered separate property. Licata v. Licata, 11 S.W.3d 269, 273 (Tex. App.-Houston [14th Dist.] 1999, pet. denied). John agreed that Patti's share was $65,000. Patti testified that she took the check directly from the couple's attorney, put it into a checking account, and immediately wrote the check to pay off the $63,000 balance of the mortgage. Similar testimony was elicited from John, except that he did not know how long the money remained in the account. Although John urges that the wife did not prove her claim because mere testimony is insufficient to rebut the presumption of community property, Patti testified that all of the documents relating to the sale of the house as well as the documents regarding the final pay off of the house were in John's possession. She claimed she sought to get this information through discovery, but was unsuccessful. The trial court had before it the charge of the court which showed the civil lawsuit jury awards, which were not in dispute. John complains in his brief that the charge of the court in the couple's civil lawsuit was not formally admitted into evidence. We find no error in the event that the court considered it in making the division. See L.M. v. The State of Texas, 618 S.W.2d 808, 812 (Tex. App.-Houston [1st Dist.] 1981, writ ref'd n.r.e.) (even though a social study was not formally admitted into evidence in a nonjury trial, the trial court could consider it and use its discretion in determining the weight to be given to it). Because the money utilized to pay off the mortgage was primarily Patti's separate property, we cannot say that the trial court made an unjust division of the property. Likewise, there was evidence to support the trial court's decree that Patti receive $10,000 as reimbursement. In a reimbursement claim, the trial court must consider the facts and circumstances and determine what is just and fair. Penick v. Penick, 783 S.W.2d 194, 198 (Tex. 1988); Hailey v. Hailey, 176 S.W.3d at 384. The trial court heard Patti's testimony that she inherited $10,000 from her mother. Patti testified that after she returned home from graduating from law school the house was in disrepair. She testified that she repainted the entire house, wallpapered, replaced some light fixtures and sockets, and performed some electrical work. Her testimony was that she spent her entire $10,000 inheritance, plus additional amounts which she put on a credit card. The overall division of the property was just and fair. We find no abuse of discretion. Appellant's third issue is overruled. IV. Imposition of the LienBy John's fourth issue, he urges that the trial court erred in imposing a lien against his separate property to secure a claim for contribution and or reimbursement because such request was not pleaded. Patti's pleadings requested economic contribution. The decree orders the husband to pay $55,000.00 to the wife for economic contribution. The decree further ordered an equitable lien to secure the claim. Appellant has presented us with no authority under this point to show that the trial court acted outside of its discretion. Absent some legal argument supported by authority, we cannot discern why this case should be reversed on an unsupported ground. See Tex. R. App. P 38.1(h). A point of error unsupported by citation of any legal authority presents nothing for review. Plummer v. Reeves, 93 S.W.3d 930, 931 (Tex. App.-Amarillo 2003, pet. denied). This issue was not properly raised or briefed. Appellant's fourth issue is overruled. The judgment of the trial court is affirmed. ROSE VELA Justice Memorandum Opinion delivered and filed this 15th day of March, 2007.