Gerard Alan Witte v. Cynthia Grace Witte

Affirmed and Plurality and Concurring Memorandum Opinions filed February 21, 2008 Affirmed and Plurality and Concurring Memorandum Opinions filed February 21, 2008. In The Fourteenth Court of Appeals _______________ NO. 14-05-00768-CV _______________ GERARD ALAN WITTE, Appellant V. CYNTHIA GRACE WITTE, Appellee On Appeal from the 312th District Court Harris County, Texas Trial Court Cause No. 03-32117 C O N C U R R I N G   M E M O R A N D U M   O P I N I O N Appellant Gerard Witte=s nine issues lack merit, and this court is correct to affirm the trial court=s judgment. The plurality concludes that, even if the trial court erred as asserted in Gerard=s first seven issues, Gerard has not shown that these errors had a material effect on the trial court=s property division. However, under the legal standard this court previously has adopted, if the trial court had erred as asserted in Gerard=s first seven issues, the error would be reversible. Construing Gerard=s appellate brief liberally, this court should find that he has not waived this argument by briefing waiver. Nonetheless, for the reasons explained below, Gerard=s issues lack merit. I. Standard of Review and Applicable Law In a divorce decree, the trial court Ashall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.@ Tex. Fam. Code Ann. ' 7.001 (Vernon 2006). To convince this court to disturb the trial court=s division of property, Gerard must show the trial court clearly abused its discretion by a division or an order that is manifestly unjust and unfair. See Stavinoha v. Stavinoha, 126 S.W.3d 604, 607 (Tex. App.CHouston [14th Dist.] 2004, no pet.). Under this standard, the legal and factual sufficiency of the evidence are not independent grounds of error, but they are relevant factors in assessing whether the trial court abused its discretion. Id. at 608. We review the trial court=s conclusions of law de novo. See Stavinoha, 126 S.W.3d at 608. As to the fact findings regarding Gerard=s first seven issues, if Cynthia had the burden of proving that the property in question was her separate property or of overcoming one of the community presumptions, then Cynthia had the burden of proof by clear and convincing evidence. Clear and convincing evidence is that Ameasure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.@ Tex. Fam. Code Ann. ' 101.007 (Vernon 2002). Gerard has challenged the legal and factual sufficiency of the evidence to support some of the trial court=s findings in this regard. As to these matters, when we conduct a legal-sufficiency review, we look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that the finding was true. See Stavinoha, 126 S.W.3d at 608. Looking at the evidence in the light most favorable to the finding means that we must (1) assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so, and (2) disregard all contrary evidence that a reasonable factfinder could have disbelieved or found to have been incredible. See id. However, we are not required to disregard undisputed facts that do not support the finding, because that might skew a Aclear and convincing@ analysis. See id. If we determine that no reasonable factfinder could form a firm belief or conviction of the truth of the matter to be proved, we must conclude that the evidence is legally insufficient. See id. As to the factual-sufficiency analysis regarding these matters, we must consider whether all of the evidence is such that a factfinder reasonably could form a firm belief or conviction about the truth of the allegations sought to be established. See id. at 609. We should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of the finding. See id. If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. See id. As to elements of her economic-contribution claim that did not involve rebutting a community-property presumption, Cynthia had the burden of proof by a preponderance of evidence. See Tex. Fam. Code Ann. ' 3.403 (Vernon 2006); Vallone v. Vallone, 644 S.W.2d 455, 459 (Tex. 1982); Rusk v. Rusk, 5 S.W.3d 299, 310 (Tex. App.CHouston [14th Dist.] 1999, pet. denied). When reviewing the legal sufficiency of the evidence as to these issues, we consider the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). We must credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not. See id. at 827. We must determine whether the trial evidence would enable reasonable and fair-minded people to find the facts at issue. See id. The factfinder is the only judge of witness credibility and the weight to give to testimony. See id. at 819. When reviewing a challenge to the factual sufficiency of the evidence as to these issues, we examine the entire record, considering both the evidence in favor of, and contrary to, the challenged finding. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). After considering and weighing all the evidence, we set aside the fact finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, 615B16 (Tex. App.CHouston [14th Dist.] 2001, pet. denied). We may not substitute our own judgment for that of the trier of fact, even if we would reach a different answer on the evidence. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998). The amount of evidence necessary to affirm a judgment is far less than that necessary to reverse a judgment. Pascouet, 61 S.W.3d at 616. II. Issues and Analysis A. Does the record contain legally and factually sufficient evidence to support the trial court=s determinations that Cynthia=s interests in SEI Holdings Corporation, BKC Properties, Inc., and F&S Production L.L.C. are her separate property? In his first issue, Gerard challenges the sufficiency of the evidence supporting the trial court=s finding that Cynthia=s SEI stock is her separate property. At various points during the marriage Cynthia acquired shares in SEI Holdings Corporation, the holding company for various businesses started by Cynthia=s father. Gerard does not dispute that 109,167 of the SEI shares are Cynthia=s separate property. The trial court found that Cynthia=s SEI shares are her separate property because: (1) Cynthia acquired this stock by gift from her parents; (2) in the SEI Holdings Corporation Amended and Restated Shareholders= Agreement that Gerard signed on April 1, 1998, Gerard agreed that the 215,549 shares of SEI stock that Cynthia acquired in April 1998 were her separate property; and (3) Cynthia later acquired additional SEI shares in exchange for interests in two other companies that she had received from her father by gift. Under the applicable standard of review for legal sufficiency, a reasonable factfinder could form a firm belief or conviction that Cynthia=s SEI shares are her separate property. Under the applicable standard of review for factual sufficiency, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is not so significant that a factfinder could not reasonably have formed a firm belief or conviction that Cynthia=s SEI shares are her separate property. See Zagorski v. Zagorski, 116 S.W.3d 309, 318B19 (Tex. App.CHouston [14th Dist.] 2003, pet. denied) (concluding evidence was legally and factually sufficient to support trial court=s finding that property was separate property). For this reason, Gerard=s first issue should be overruled. In his second and third issues, Gerard challenges the sufficiency of the evidence supporting the trial court=s finding that Cynthia=s interests in BKC Properties, Inc. and F&S Production L.L.C. are her separate property. Although Gerard has assigned error as to these two appellate issues, Gerard=s opening brief does not contain any argument, analysis, or record citations in support of Gerard=s second and third issues. Even construing Gerard=s appellate brief liberally, he has not adequately briefed these issues. See Tex. R. App. P. 38.1(h); San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 337 (Tex. App.CHouston [14th Dist.] 2005, no pet.). For this reason, Gerard=s second and third issues should be overruled. B. Does the record contain legally and factually sufficient evidence to support the trial court=s economic-contribution award in favor of Cynthia=s separate estate based on that estate=s contribution of funds to pay for improvements to real property owned by the community estate? In his fourth issue, Gerard asserts that the record contains no evidence upon which the trial court could have computed the amount of Cynthia=s economic-contribution claim based on her estate=s alleged contribution of $132,311 to improve the homestead realty owned by the community estate. In his fifth issue, Gerard asserts that the evidence is legally and factually insufficient to support the trial court=s economic-contribution award of $132,311 to Cynthia based on her economic-contribution claim. Under these issues, Gerard presents only the following arguments: (1) Based on its determination that Cynthia=s separate estate had paid $132,311 towards the construction of improvements on the homestead realty, the trial court awarded a $132,311 reimbursement claim. (2) Rather than awarding this amount based on an economic-contribution claim under section 3.403 of the Family Code, the trial court erroneously made this award as a common-law equitable-reimbursement claim. (3) The trial court awarded $132,311 based on its determination that Cynthia=s separate estate had paid this amount towards the construction of improvements, rather than using the statutory formula required by section 3.403 of the Family Code. (4) Cynthia offered no evidence of the elements necessary to calculate her economic-contribution claim other than the alleged amount of funds paid by her separate estate. See Tex. Fam. Code Ann. ' 3.403. The trial court did not find that Cynthia=s separate estate had paid $132,311 towards the construction of improvements on the homestead realty; rather, it found that the amount of this contribution was $103,692.23.[1] Contrary to Gerard=s argument, the trial court awarded $132,311 as satisfaction for an economic-contribution claim; it did not award Cynthia a common-law equitable-reimbursement claim. Nor did the trial court award Cynthia a dollar-for-dollar credit as Gerard claims. Instead, the trial court calculated the amount of the economic-contribution claim based on the calculations of Cynthia=s expert, who supplied the numbers and made the calculations based on the statutory formula for economic-contribution claims under section 3.403 of the Family Code.[2] Cynthia did offer evidence of the elements necessary to calculate her economic-contribution claim other than the alleged amount of funds paid by her separate estate. See Tex. Fam. Code Ann. ' 3.403. Because all of Gerard=s arguments under his fourth and fifth issues lack merit, these issues should be overruled.[3] C. Did the trial court err by awarding Gerard a non-existent community credit of $59,000 as an asset because there can be no equitable claim of reimbursement of ordinary living expenses or of the community by the community estate? In his sixth and seventh issues, Gerard asserts that the trial court erred in awarding him, as an asset, a non-existent community credit based on child support and living expenses that he paid out of a joint checking account during the pendency of the divorce proceedings. Gerard asserts that there can be no equitable reimbursement from the community estate to that same estate. Gerard also asserts that section 3.409 of the Family Code bars a reimbursement claim for these types of expenses. See Tex. Fam. Code Ann. ' 3.409 (Vernon 2006). After working as a highly compensated attorney for at least seven years, Gerard quit the practice of law to study nanotechnology. He later decided to stop these studies and sought a legal position. He turned down one opportunity and thereafter was unable to find employment. After ten months of not working, Gerard began practicing law as a solo practitioner. During this period, Gerard did not contribute to the family=s living expenses; instead, the family had to rely on Cynthia=s savings and income from her job as a teacher. When Cynthia told Gerard that, after a long and competitive interviewing process, she had obtained a higher-paying teaching job with better benefits, he indicated that he did not approve of Cynthia working as a teacher, and he told her she needed to Ago out and get a real job and support this family.@ After Cynthia and Gerard separated, they continued to maintain a joint bank account into which Cynthia deposited her earnings and which also contained her separate property. Gerard paid his living expenses and his child support obligations out of this account. Cynthia told him that she thought he should use money from some other source. Cynthia testified that she thought that in the year before their separation, and after their separation, Gerard chose to earn substantially less than what he was capable of earning. She testified that $59,000 was the amount which Gerard had taken from her savings to pay to her as his child support for the children or for his living expenses; Cynthia testified that she believed he could have paid those amounts from his salary if he had accepted the legal position that he turned down. The trial court stated that it awarded Gerard the benefits he received before divorce in the amount of $59,000, which represents the amount of child support and Gerard=s living expenses that he paid from the joint account rather than from income from his law practice. It is true that these benefits are probably not assets existing at the time of divorce; however, in making this ruling, the trial court effectively ruled that, as part of its just and right division of the parties= community assets, it was awarding $59,000 more of the community property to Cynthia based on Gerard=s intentional underemployment and failure to contribute to the community estate during this period. The trial court did not award Cynthia a claim for reimbursement. Therefore, Gerard=s argument based on section 3.409 of the Family Code lacks merit. See Tex. Fam. Code Ann. ' 3.409. The trial court found that it was just and right to divide the community estate by awarding 53% of the community property to Cynthia and 47% to Gerard. By assessing this credit for $59,000, the trial court effectively took Gerard=s conduct regarding the use of these funds into account in dividing the community estate in this way. The trial court=s division of the community estate need not be equal as long as it is equitable. See Mohindra v. Mohindra, No. 14-06-00056-CV, 2007 WL 3072057, at *2 (Tex. App.CHouston [14th Dist.] Oct. 23, 2007, no pet. h.). Thus, the trial court must have some reasonable basis for an unequal division of the property. Id. In exercising its discretion, the trial court may consider many factors, including but not limited to a spouse=s fault, the disparity of incomes or of earning capacities, 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 v. Murff, 615 S.W.2d 696, 698B99 (Tex. 1981); Mohindra, 2007 WL 3072057, at *2. The circumstances of each marriage dictate what factors should be considered in the property division upon divorce. Mohindra, 2007 WL 3072057, at *2. Because the trial court did not abuse its discretion in considering Gerard=s intentional underemployment and conduct regarding the $59,000 in making a just and right division of the community estate, Gerard=s sixth and seventh issues lack merit and should be overruled. D. Must this court reverse the trial court=s division of the community estate and remand the entire estate for a new division because the alleged errors shown in Gerard=s first seven issues allegedly had more than a de minimis effect on the trial court=s division of the community estate? In his eighth issue, Gerard asserts that this court must reverse the trial court=s division of the community estate and remand for a new division of the entire estate because the errors shown in his first seven issues had more than a de minimis effect on the trial court=s division of the community estate. See Stavinoha, 126 S.W.3d at 615; McElwee v. McElwee, 911 S.W.2d 182, 190 (Tex. App.CHouston [1st Dist.] 1995, writ denied) (same). Though Gerard relies on the correct legal standard, his argument rests on the assumption that this court would sustain at least one of his first seven issuesCan event that has not occurred. Because Gerard=s argument is based on this false premise, this issue also should be overruled. The plurality relies on an incorrect legal standard and concludes that the pronouncements from Stavinoha and McElwee regarding the legal standard cannot be followed because they conflict with the Texas Supreme Court=s decision in Bell. See ante at pp. 2B3; see also Bell v. Bell, 513 S.W.2d 20, 21 (Tex. 1974); Stavinoha, 126 S.W.3d at 615; McElwee, 911 S.W.2d at 190. Stavinoha and McElwee do not in any way conflict with Bell. In Bell, the court of appeals held that the trial court, in dividing the community property of the spouses, erred by failing to consider two corporations that the husband owned before and throughout the marriage. See Bell, 513 S.W.2d at 21. The Texas Supreme Court concluded that (1) the wife agreed that the stock in these companies was the husband=s separate property but she argued that the increase in the stockholders= equity during the marriage was community property; and (2) the trial court considered these corporations, the stock in them, and the increase in shareholders= equity and awarded all of these interests to the husband. See id. The Bell court simply held that the trial court did consider the two corporations and therefore the court of appeals erred in reversing based on its conclusion to the contrary. See id. The trial court in Bell concluded that the interests in these two companies were either the husband=s separate property or community property and that, if community property, then the trial court exercised its discretion to award all of it to the husband. See id. The Bell court did not address the legal standard that appellate courts should apply to determine whether a trial court=s mischaracterization of community property as separate property is reversible error. See id. In conclusion, though the plurality=s stated rationale is not entirely correct, the plurality nevertheless reaches the right result in overruling Gerard=s issues and affirming the trial court=s judgment. Accordingly, for the reasons stated, I respectfully join in the court=s judgment. /s/ Kem Thompson Frost Justice Judgment rendered and Plurality and Concurring Memorandum Opinions filed February 21, 2008. Panel consists of Justices Fowler, Frost, and Edelman.* (Edelman, J., plurality) (Fowler, J., concurring without opinion). [1]The trial court found that Cynthia=s separate estate had contributed $60,692.13 and $43,000.10, which total $103,692.23. [2]Cynthia=s expert made this calculation in exhibit 20 to his February 3, 2005 report, which was admitted into evidence at trial. Based on these calculations, Cynthia=s expert concluded that the amount of the economic-contribution claim was $132,311, exactly the amount found by the trial court. Though the trial court found that one of the amounts contributed by the separate estate was $43,000.10 rather than $43,100, as reflected by the expert=s calculations, this is only an error of approximately $100, and, in any event, Gerard has not challenged it on appeal. [3]The trial court found that the amount of economic contribution made by Cynthia=s separate estate to the homestead property owned by the community estate was $103,692.23. In his opening brief, Gerard presented no argument that the evidence is insufficient to satisfy the clear-and-convincing-evidence standard that any part of this amount was from Cynthia=s separate estate. In his reply brief, Gerard attempts to assert arguments that were not made in his opening brief, including asserting for the first time that the evidence is insufficient to support the trial court=s finding that $43,000.10 of the $103,692.23 was from Cynthia=s separate estate. As the plurality correctly notes, Gerard cannot raise these issues for the first time in his reply brief. Zamarron v. Shinko Wire Co., 125 S.W.3d 132, 139 (Tex. App.CHouston [14th Dist.] 2003, pet. denied) (noting that nonjurisdictional complaints raised for the first time in a reply brief are waived). *Senior Justice Richard H. Edelman sitting by assignment.