Bishop, Billy Everett v. Bishop, Allison Farone

Affirmed and Memorandum Opinion filed May 29, 2003 Affirmed and Memorandum Opinion filed May 29, 2003. In The Fourteenth Court of Appeals ____________ NO. 14-02-00132-CV ____________ BILLY EVERETT BISHOP, Appellant V. ALLISON FARONE BISHOP, Appellee On Appeal from the 310th District Court Harris County, Texas Trial Court Cause No. 00-57494 M E M O R A N D U M    O P I N I O N Appellant Billy Everett Bishop appeals the property division portion of the divorce decree ending his marriage of four years to appellee Allison Farone Bishop. Raising three issues, appellant contends the trial court abused its discretion in its division of the community estate of the parties. We affirm. PROCEDURAL AND FACTUAL BACKGROUND Appellant Billy Everett Bishop and appellee Allison Farone Bishop were married on June 6, 1997. Appellee filed for divorce on November 9, 2000, and the case proceeded to a bench trial in August, 2001. During trial, the trial court heard evidence of payments made by the community estate for the benefit of both appellant=s and appellee=s separate properties. Evidence was also presented pertaining to appellant=s and appellee=s waste of community assets; appellee=s gift of community property to third parties; the parties= outstanding tax liabilities; and the parties= outstanding attorney fees. At the conclusion of evidence, the trial court granted the parties a divorce on the grounds of insupportability.[1] See Tex. Fam. Code Ann. ' 6.001 (Vernon Supp. 2003). In its final decree of divorce, the trial court ordered a disproportionate division of the parties= $96,094 community estate: $54,954 (57%) to appellee and $41,140 (43%) to appellant.[2] The court also ordered appellant to be solely responsible for the parties= income tax liabilities, appellee=s attorney fees, and appellant=s attorney fees. Included in appellant=s $41,140 share of the community estate was $19,255 in prepaid community liabilities,[3] as well as proceeds from six pending lawsuits, the values of which were undetermined. Following denial of appellant=s first amended motion for new trial, appellant filed a timely notice of appeal. ISSUES ON APPEAL Appellant asserts three points of error challenging the division of community property in the divorce decree. He argues (1) the trial court erred in dividing the parties= community estate because fault was improperly used to justify an unjust division; (2) the trial court erred in failing to impose an equitable lien on appellee=s separate property to secure appellant’s claim for economic contribution; and (3) the trial court erred when it failed to resolve appellant=s claim for reimbursement against appellee=s separate property. STANDARD OF REVIEW In a divorce proceeding, the trial court shall order a division of the estate of the parties in a manner that it deems just and right. Tex. Fam. Code Ann. ' 7.001 (Vernon Supp. 2003). Only community property is subject to the trial court=s division. Osborn v. Osborn, 961 S.W.2d 408, 413B14 (Tex. App.CHouston [1st Dist.] 1997, writ denied). The trial court has no discretion to divest a spouse of his separate property. Cameron v. Cameron, 641 S.W.2d 210, 220 (Tex. 1982). When an appellant complains that a trial court improperly divided the parties’ property, the controlling issue is whether the division was just and right. Tex. Fam. Code Ann. ' 7.001 (Vernon Supp. 2003); Smith v. Smith, 22 S.W.3d 140, 143 (Tex. App.CHouston [14th Dist.] 2000, no pet.); Rafferty v. Finstad, 903 S.W.2d 374, 376 (Tex. App.CHouston [1st Dist.] 1995, writ denied). The trial court=s division need not be equal as long as it is equitable and the circumstances justify a disproportionate division. Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981); Janik v. Janik, 634 S.W.2d 323, (Tex. App.CHouston [14th Dist.] 1982, no writ); Thomas v. Thomas, 525 S.W.2d 200, 202 (Tex. App.CHouston [1st Dist.] 1975, no writ). The trial court is afforded wide discretion in dividing the estate of the parties and its division will not be altered on appeal unless the court abused its discretionCthat is, unless its decision was arbitrary, unreasonable, and without reference to guiding principles. Murff, 615 S.W.3d at 698. A court abuses its discretion when it acts without reference to any guiding rules or principles. Evans v. Evans, 14 S.W.3d 343, 345B46 (Tex. App.CHouston [14th Dist.] 2000, no pet.). When reviewing a property division, the appellate court assumes the trial court properly exercised its discretion in dividing the estate of the parties upon divorce. Vallone v. Vallone, 644 S.W. 2d 455, 460 (Tex. 1982). The appellant bears the burden of showing that the trial court=s abuse of discretion caused a division of property so disproportionate that the division was manifestly unjust and unfair. Hedtke v. Hedtke, 248 S.W. 21, 23 (Tex. 1923). The appellate court, therefore, will reverse a property division only if the error materially affects the trial court=s property division. Henry v. Henry, 48 S.W.3d 468, 475 (Tex. App.CHouston [14th Dist.] 2001, no pet.) (citing Jacobs v. Jacobs, 687 S.W.2d 731, 732B33 (Tex. 1985). FAULT In his first point of error, appellant asserts the trial court abused its discretion by improperly using fault to justify an unequal division of the community property. We disagree. 1. Although divorce was sought and granted on insupportability grounds, fault was tried by consent, the court made a finding of fault, and the court=s fault finding went unchallenged. In her amended petition, appellee (1) asked for a divorce on the grounds of insupportability;[4] and (2) asked that fault be considered by the trial court in dividing the parties’ community property. In his countersuit, appellant asked only for a divorce on insupportability grounds and that the trial court divide the community estate in a “just and right” manner. During trial, the issue of fault was raised by appellee during direct examination. Appellee testified that appellant drank excessively during their marriage, failed to attend Alcoholics Anonymous meetings, engaged in “uncontrollable rages,” prohibited appellee from sleeping or taking baths, took appellee=s car keys, repeatedly broke down doors, berated appellee with verbal abuse, and threw phones into appellee=s bath. No objection was made to this testimony. Fault was also raised during appellant=s direct examination. Appellant testified he contributed to the troubled marriage and had sought counseling and treatment for depression. Again, there was no objection to this testimony. Granting the divorce, the trial court made the following findings of fact: (5) That the parties= marriage had become insupportable because of discord or conflict of personalities between Wife and Husband that destroyed the legitimate ends of the marriage relationship and prevented any reasonable expectation of reconciliation; [and] (6) That there was fault in the breakup of the marriage on the part of Husband due to his alcohol abuse, verbal abuse toward Wife, and mental cruelty toward Wife; including, but not limited to, bullying, raging, throwing of objects toward Wife, and intentionally depriving Wife of sleep. Additionally, the trial court made the following conclusions of law: (2) That a divorce should be granted on the grounds of insupportability; [and] (3) That the Court [should] divide[] the community estate in a just and right manner having due regard for the rights of each party after consideration of all relevant factors plead and/or tried by consent. Although appellant challenges the division of the community estateCclaiming it is not “just and right”Che does not challenge the sufficiency of the evidence supporting the trial court=s finding of fault. Thus, the trial court=s finding of fault remains unchallenged. 2. Unchallenged findings of fact are binding. A trial court=s fact findings are reviewed for legal and factual sufficiency of the evidence. Mays v. Pierce, 281 S.W.2d 79, 82 (Tex. 1955); Cohen v. Sims, 830 S.W.2d 285, 287 (Tex. App.CHouston [14th Dist.] 1992, writ denied). This court is bound by unchallenged findings of fact, the same as a jury verdict. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986); Cohen, 830 S.W.2d at 287; Henry, 48 S.W.3d at 473. Thus, because appellant made no challenge to the trial court=s finding of fault, we are bound by it. Id. 3. Unchallenged findings of fault may be considered in making a “just and right” division of community property. Appellant asserts the trial court improperly used fault to make an unjust division of the parties’ community estate. We disagree. First, there is no proof the trial court=s finding of fault was actually used to make the division. The trial court’s conclusions of law state only that “a divorce should be granted on the grounds of insupportability” and that the court divided the community estate in a “just and right manner having due regard for the rights of each party after considering all relevant factors plead and/or tried by consent”; thus, we are left to guess whether the court=s finding of fault was (1) used to support the court=s finding of insupportability, (2) used to support its division of the community estate, or (3) not used at all. Second, even if the trial court used fault to divide the parties= community estate, such use is within its discretion. Murff, 615 S.W.2d at 698; Young v. Young, 609 S.W.2d 758, 761 n.1 (Tex. 1980) (listing cases). Even in cases where a Ano fault@ divorce is granted, fault may be considered in making a “just and right” division of the community estate. Janik v. Janik, 634 S.W.2d 323, 324B25 (Tex. App.CHouston [14th Dist.] 1982, no writ) (finding that, where couple was granted divorce on insupportability grounds, “fault in the breakup of the marriage” was nonetheless a factor to be considered in dividing the community estate).[5] 4. The trial court’s unequal division of community property is “just and right” even without a finding of fault. Because (1) the trial court could properly consider fault in its division of community property, (2) the issue of fault was tried by consent during trial,[6] and (3) the trial court=s finding of fault was unchallenged by appellant, we find no abuse of discretion in the trial court=s division of the parties= community estate. A distribution of 57% to appellee and 43% to appellant cannot be successfully challenged as inequitable, given evidence appellant drank in excess, engaged in rages and verbal abuse, broke down doors, and prevented appellee from bathing or sleeping. Even without evidence of fault, however, the trial court reasonably could have ordered an unequal division of community property. Indeed, several factors may be used to divide a community estate, including disparity of income or earning capacity, 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 conditions and obligations, disparity of ages, size of separate estates, and the nature of the property. Murff, 615 S.W.2d at 698. In addition, a court may consider one spouse=s wrongful dissipation of community assets and payments to attorneys made from the community estate. Schlueter v. Schlueter, 975 S.W.2d 584, 588 (Tex. 1998) (wrongful dissipation); Henry, 48 S.W. 3d at 478 (attorney fees). Here, the trial court entered the following relevant findings of fact and conclusions of law: (4) . . . Wife has a twelve (12) year old son . . . (7) Husband . . . earned $50,000 in the first quarter of 2001 and there was a disparity of earning power between the spouses,[7] (12) . . . on the morning of the trial . . . Husband used $32,513.04 from community funds to pay his personal federal income taxes, credit card debt . . . and expert fees,[8] (13) . . . there was a balance due of $2,889.91[for Wife=s legal fees]. . . and that the sum of $5,000.00 was paid [for Wife=s attorney fees] from community funds, [and] (14) . . . Husband . . . paid his attorney the sum of $15,000.00 or more . . . from community funds. From the entirety of the record before us, we cannot say the trial court abused its discretion in awarding appellant a disproportionate share of the community estate. Even without the use of fault, the trial court=s division of the community estate was neither arbitrary nor unreasonable. See Phillips, 75 S.W.3d at 575. See also Sprick v. Sprick, 25 S.W.3d 7, 14 (Tex. App.CEl Paso 1999, no pet.) (award of 77% of net assets of community estate to wife was equitable at divorce, even though wife=s infidelity would have justified disproportionate division of community estate in favor of husband).[9] Accordingly, we overrule appellant=s first point of error. EQUITABLE LIEN In his second point of error, appellant asserts the trial court erred in failing to impose an equitable lien on appellee=s separate property to secure appellant=s claim for economic contribution. See Tex. Fam. Code Ann. '' 3.403(a) and 3.406(a) (Vernon Supp. 2003). This argument fails for two reasons. First, appellant waived his right to complain on appeal that the trial court failed to impose an equitable lien because he never requested additional findings of fact and conclusions of law. See Mohnke v. Greenwood, 915 S.W.2d 585, 590 (Tex. App.CHouston [14th Dist.] 1996, no writ) (appellants= claim that trial court erred in not making additional findings of fact and conclusions of law was waived when appellants failed to make proper request for additional findings and conclusions); Van Dyke v. Van Dyke, 624 S.W.2d 800, 802 (Tex. App.CHouston [14th Dist.] 1981, no writ) (appellant waived right to complain of trial court=s failure to make certain findings of fact and conclusions of law where there was no request for “specified further, additional, or amended findings” within required time limit). See also Tex. R. Civ. P. 298 (Vernon Supp. 2002) (requests for additional or amended findings of fact and conclusions of law “shall be made within ten days after the filing of the original findings and conclusions by the court”). Second, appellant never asked the trial court to grant equitable relief to secure a claim for economic contribution. See Tex. Fam. Code Ann. ' 3.403(a) (Vernon Supp. 2003). He neither requested economic contribution in his original petition, nor amended his pleadings during trial.[10] A party cannot properly be awarded a judgment on a theory not disclosed by his pleadings. Payne v. Laughlin, 486 S.W.2d 192, 194 (Tex. Civ. App.CDallas 1972, no writ.). See also Oil Field Haulers Ass=n v. Railroad Commission, 381 S.W.2d 183, 191 (Tex. 1965) (party may not sustain a favorable judgment on an unpleaded cause of action in the absence of trial by consent); Wachendorfer v. Wachendorfer, 615 S.W.2d 852 (Tex. Civ. App.CHouston [1st Dist.] 1981, no writ) (court erred in submitting issue to jury regarding enhancement of husband’s separate property where wife=s pleading failed to assert right to community reimbursement). Because appellant=s complaint regarding economic contribution was not properly preservedCand because his claim was not properly pledCthe trial court did not err when it failed to address his request for equitable relief. Accordingly, we overrule appellant=s second point of error. REIMBURSEMENT In his third point of error, appellant asserts the trial court erred when it “failed to resolve appellant=s claim for reimbursement” against appellee=s separate property. See Tex. Fam. Code Ann. 3.408 (Vernon Supp. 2003). We disagree. A claim for reimbursement is appropriate where there has been “payment by one marital estate of the unsecured liabilities of another marital estate.” Id. at ' 3.408(b)(1). Reimbursement is not available as a matter of law, but lies within the discretion of the court. Vallone v. Vallone, 644 S.W.2d 455, 459 (Tex. 1982). It is measured by the enhancement value to the benefitted estate. Anderson v. Gilliland, 684 S.W.2d 673, 675 (Tex. 1985). A claim for reimbursement may not be made for normal living expenses. Id. at ' 3.409(2).[11] At trial, appellant claimed the parties= community estate made approximately two-thirds of the appellee=s 48 required car payments on appellee=s separate property automobile. Because the automobile is now worth $10,000, appellant argues, appellant is entitled to one-half (or $3,333.33) of the equity paid by the community. Appellant misreads the law. Subsection 3.408(b) of the Texas Family Code applies only to unsecured liabilities. Nothing in the record suggests appellee=s car loan was unsecured; appellant even concedes the loan was secured. Thus, appellee=s car payments are not eligible for reimbursement. See id. at ' 3.408(b)(1). Because appellant=s claim does not qualify for reimbursement, we find the trial court did not err in denying his claim. Accordingly, we overrule appellant=s third point of error.[12] Having overruled all of appellant=s points of error, we affirm the judgment of the court below. /s/ John S. Anderson Justice Judgment rendered and Memorandum Opinion filed May 29, 2003. Panel consists of Justices Anderson, Frost, and Fowler. [1] “Insupportable” means “incapable of being borne, unendurable, insufferable, intolerable.” Henry v. Henry, 48 S.W.3d 468, 473B74 (Tex. App.CHouston [14th Dist.] 2001, no pet.). [2] Appellant claims the parties’ community estate totaled $106,094Cwith $64,954 (61%) going to appellee and $41,140 (39%) going to appellant. Because appellant provided no breakdown for his $106,094 total and appellee did not ascribe a value to the estate, we use our own calculations. [3] Appellant complains that because the $19,255 prepaid community debt is a “phantom” asset, his portion of the community estate is in actuality only $21,885 (or 23% of the community estate). We do not address whether the $19,255 in “prepaids” is appropriately a community asset; however, we note that if $19,255 in “prepaids” is subtracted out of the total, appellant’s portion of the new estateCtotaling $76,839Cis 28%. [4] See Tex. Fam. Code Ann. ' 6.001 (Vernon Supp. 2003) (on petition of either party, the court may grant a divorce without regard to fault if the marriage has become insupportable); Crocker v. Crocker, 474 S.W.2d 630, 631 (Tex. Civ. App.CHouston [14th Dist.] 1972, no writ.). [5] At least one Texas appellate court has held that in cases where a “no-fault” divorce is sought, fault cannot be used to divide the community estate. See Phillips v. Phillips, 75 S.W.3d 564, 572 (Tex. App.CBeaumont 2002, no pet. h.). [6] Both appellee and appellant provided testimony addressing the issue of fault in the breakup of the marriage. Additionally, during appellant=s direct examination, defense counsel explained to the trial court that “[t]here is a specific pleading by Petitioner saying that she=s entitled to a disproportionate share of the community assets because it=s his fault that this marriage broke up. We=re . . . trying to rebut that allegation.” [7] Evidence also shows appellant’s salary is $177,000, while appellee’s is $75,000 plus bonuses. [8] This included the $19,255 in “prepaids” discussed above in supra note 3. [9] There was also evidence presented at trial that appellant incurred tax penalties and interest because of late filing. [10] At oral argument, appellant suggested the issue of economic contribution was “tried by consent” because there was much testimony during trial pertaining to community estate contributions to appellee’s house and car loans. We disagree. During trial, opposing counsel twice pointed out that appellant’s original petition did not include a pleading for “equitable relief” and twice the appellant made no attempt to amend his petition. Sufficient evidence exists therefore for negating the proposition that economic contribution was tried by consent. See Pampell Interests, Inc. v. Wolle, 797 S.W.2d 392, 395 (Tex. App.CAustin 1990, no writ) (finding there is no trial by consent where a party objects to the introduction of evidence). Additionally, the testimony appellant cites as proof that economic contribution was properly addressed during trial pertains to community expenditures for which appellant was seeking “reimbursement.” Reimbursement is addressed in subsection 3.408 of the Texas Family Code; economic contribution is addressed in subsections 3.402 and 3.403. See Tex. Fam. Code Ann. ''' 3.408, 3.402 and 3.403 (Vernon Supp. 2003). Although appellant and his counsel used these terms interchangeably during trial, the two are not synonymous. [11] Appellee asserts an automobile is a necessary “living expense@ and thus payment of appellee’s car loan does not qualify for reimbursement. See Tex. Fam. Code Ann. ' 3.409(2). However, because appellee has failed to adequately brief the proposition that an automobile is a necessary living expense, we are unpersuaded. [12] Additionally, even if appellant’s claim for reimbursement did satisfy ' 3.408, denial of his claim would not be an abuse of discretion. First, appellant’s ex-wife also made a claim for reimbursementCto cover payments made by the community to improve and pay off appellant’s separate property home. The trial court could easily have determined that appellee’s claim “offset” appellant’s claim. See Tex. Fam. Code Ann. ' 3.408(c); Jensen v. Jensen, 665 S.W.2d 107, 109 (Tex. 1984); Kimsey v. Kimsey, 965 S.W.2d 690, 700B701 (Tex. App.CEl Paso 1998, no pet.). Second, appellee presented evidence that appellant had the full use and enjoyment of appellee’s automobile. This, too, “offsets” appellant’s claim. See Tex. Fam. Code Ann. ' 3.408(d) (Vernon Supp. 2003).