Attaguile v. Attaguile

• Decision Date: 28 September 2018
• Docket Number: No. 08-16-00222-CV,08-16-00222-CV
• Citation: 584 S.W.3d 163
• Parties: Suhey L. ATTAGUILE, Appellant, v. Angelo F. ATTAGUILE, Appellee.
• Court: Texas Court of Appeals

584 S.W.3d 163

Suhey L. ATTAGUILE, Appellant,

v.Angelo F. ATTAGUILE, Appellee.

No. 08-16-00222-CV

Court of Appeals of Texas, El Paso.

September 28, 2018

ATTORNEY FOR APPELLANT: Hon. Luis C. Labrado, 2601 Montana Avenue, El Paso, TX 79903.

ATTORNEY FOR APPELLEE: Hon. Enrique Lopez, 701 N. St. Vrain, El Paso, TX 79902.

Before McClure, C.J., Rodriguez, and Palafox, JJ.

OPINION

GINA M. PALAFOX, Justice

Appellant Suhey Attaguile ("Suhey") challenges the trial court’s division of marital property, arguing that the trial court improperly characterized a community property asset as being the separate property of Appellee Angelo Attaguile ("Angelo"). Suhey also contends that the trial court abused its discretion in calculating the amount of child support Angelo owed, arguing that the trial court erred by failing to take into consideration certain net resources that the trial court awarded to Angelo in making its child support calculation. We reverse with respect to the issue of property division and affirm as to the child support award.

FACTUAL AND PROCEDURAL BACKGROUND

The parties were married on November 25, 2004. They had two children together, but only one of them, a then ten-year-old daughter, was young enough to be the subject of the trial court’s order on child support. Angelo filed a petition for divorce on April 3, 2014, and Suhey filed an answer, as well as a counter-petition, seeking custody of their daughter, as well as child support. The parties waived a jury trial, and a final hearing was held before the trial court on May 2, 2016.

Prior to the hearing, the parties agreed that they would both serve as joint managing conservators of their daughter, that Suhey would serve as the primary custodial parent with the exclusive right to designate residence, and that Angelo would have standard visitation rights. In addition, the parties agreed that Angelo would pay child support and provide health insurance for their daughter; however, the question of how much he was obligated to pay was a subject of dispute at the hearing. As well, at the hearing, the parties argued over the characterization of certain property, and how the marital assets should be divided.

The Property Division

At the hearing, the parties presented evidence with respect to five different homes located in El Paso, Texas, two of which were purchased by Angelo prior to the marriage and three of which were purchased during the marriage. In particular, Angelo testified that he purchased a home located on Georgia Place and a second home located on Altura Avenue prior to the marriage, which he asserted were his separate property. He acknowledged, however, that the community had an $8,000 interest in the Altura Avenue property due to payments made on the property during the marriage. The trial court "confirmed" both of these properties as Angelo’s separate property, but gave Suhey a $4,000 cash payment in recognition of her community property interest in the Altura house.

Angelo further testified that the parties purchased three other properties during the marriage, one on Findley Avenue, a second on Piedras Street, and a third on Memphis Avenue. With respect to the Findley and Piedras properties, Angelo acknowledged that those two properties belonged to the community and that he believed Suhey was entitled to share in the equity that existed in those two homes. In its Final Decree of Divorce, the trial court categorized these homes as community property subject to a just and right division, awarding Angelo 100 percent ownership of the Findley and Piedras properties, while giving Suhey cash in the amount of $21,500 for her community interest in the Piedras property, and $3,500 for her "community interest" in the Findley property.

The issue regarding the characterization of the Memphis Avenue Property is more complicated and lies at the heart of this appeal. At the hearing, Angelo testified that he and Suhey purchased the Memphis Avenue property in 2006 from his mother prior to her death. The undisputed evidence established that Suhey and Angelo received a warranty deed from Angelo’s mother, dated November 28, 2006, giving them title to the Memphis Avenue property as husband and wife. The warranty deed stated that Angelo’s mother was granting title to the property to them in exchange for an unstated amount of "cash" and a note of $60,000 secured by a vendor’s lien (the "Original Note"). Although Angelo’s testimony was somewhat confusing on this point, he indicated that a cash down payment of $20,000 was made toward the purchase of the Memphis Avenue property, but he did not identify the source of that down payment.

The parties agreed that in 2010, the Original Note, which then had an outstanding balance of $43,933, was paid off. However, the parties did not agree on what funds were used to pay off the Note. Angelo testified that he paid off the Original Note to his mother in 2010, with the proceeds from the sale of an insurance agency that he owned prior to the marriage, which, as discussed in more detail below, he considered to be his separate property. Angelo presented evidence of a deposit that he made on August 27, 2010 of $105,000 following the sale of the insurance agency, as well as documentation of a withdrawal that he made shortly thereafter on September 10, 2010 in the amount of $43,923, which he testified he used to pay off the Original Note on the Memphis Avenue property. On the other hand, Suhey testified at the hearing that she believed the Original Note had been paid off with the proceeds from certain unspecified "investments" that the couple had made during the course of their marriage. However, Suhey did not provide any documentation of these investments, claiming that Angelo hid their finances from her and that she had no access to their financial records.

Thereafter, in July of 2012, while the parties were still married, they sold the Memphis Avenue property to Rene Diaz for $65,000 on an owner-financed contract. The warranty deed to Rene Diaz listed the grantors as Angelo and Suhey, as husband and wife, and stated that the property was being sold to Diaz in consideration of ten dollars, together with a real estate lien note signed by Diaz and made payable to both Angelo and Suhey, in the amount of $65,000 (hereinafter the "Diaz Note"). Both Angelo and Suhey signed the warranty deed. Suhey testified that the balance owed on the Diaz Note at the time of trial was $50,000. Angelo did not present any countervailing evidence as to the value of the Diaz Note.

At the hearing, both attorneys made statements acknowledging that the Memphis Avenue Property was community property due to the "inception of title" doctrine because it was purchased during the marriage.¹ The trial court, however, expressly confirmed the Diaz Note as being Angelo’s separate property, giving no reimbursement to the community estate for any interest that it may have had in the Note.

In its Decree, the trial court treated all of the parties' other assets as being part of the marital estate subject to a "just and right division," determining, among other things, that each party would keep any cash and/or money on account in their sole control, as well as all retirement accounts existing by reason of the party’s past, present or future employment, and that they would split the anticipated income tax return from Suhey’s earnings for the prior year, in the amount of $5,800. In addition, the trial court ordered both parties to pay any debts they incurred "solely" in their names, and ruled that Angelo was to be responsible for all encumbrances, including mortgages owed, on the properties that he was awarded.

The Child Support Award

At the hearing, Angelo testified that he began working as an employee of an insurance agency in 1988. Ten years later, in 1998, the insurance company for which he worked converted its employees to independent contractors, which allowed him to purchase the agency at that time. Angelo testified that the insurance agency was worth approximately $300,000 to $350,000 at the time he and Suhey were first married in 2004. However, he testified that the agency’s value thereafter went down, and he sold the agency in 2010 to two separate buyers, for a total of approximately $260,000, with payments spread out over the course of at least five years, with the last payment made in 2015. Angelo testified that based primarily on the proceeds he received from the sale, his 2014 gross income was $47,000 and his 2015 gross income was $54,000. Angelo testified that he used the initial proceeds from the sale to pay off "all of the community debts," and to take the family on various vacations. According to Angelo, as of the date of trial, all of the proceeds from the sale had been spent, with the exception of approximately $41,000, which was in a bank account in his name only.

Although Angelo acknowledged that he was only 54 at the time of trial and was not disabled, he testified that after selling his insurance agency, he considered himself to be retired. However, he testified that he occasionally worked as an independent contractor for insurance agencies, typically working only three weeks out of the year. Angelo testified that the year before trial, he worked approximately seven weeks as an independent contractor, and received an additional $4,000 that year over what his income typically is for performing such work. Angelo further testified that he was not yet eligible to receive social security, and that he had not yet begun taking any money out of a retirement account that was in his name, which was worth approximately $132,000, indicating that he did not wish to start making withdrawals until he reached "the age of retirement."

Angelo testified that after selling the insurance company, his primary source of income came from the rental payments on the various homes that he and/or both parties owned, as well as the monthly payment on the Diaz Note from the sale of the Memphis...