Barton v. Barton

• Decision Date: 28 September 2018
• Docket Number: No. 08-15-00110-CV,08-15-00110-CV
• Citation: 584 S.W.3d 147
• Parties: Janice Lee BARTON, Appellant, v. William Charles BARTON, Appellee.
• Court: Texas Court of Appeals

584 S.W.3d 147

Janice Lee BARTON, Appellant,

v.William Charles BARTON, Appellee.

No. 08-15-00110-CV

Court of Appeals of Texas, El Paso.

September 28, 2018

Elizabeth Parmer, Fort Worth, for Appellant.

Kimberly B. Sikes, Cleburne, for Appellee.

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

OPINION

ANN CRAWFORD McCLURE, Chief Justice

Janice Lee Barton appeals the trial court’s division of property incident to divorce. ¹

We affirm.

FACTUAL SUMMARY

Janice Lee Barton ("Janice") and William Charles Barton ("Billy") were married in 2007, and Billy filed for divorce in 2014. Billy has been in the dairy business since 1983, and at the time the parties married, Billy had land holdings in Johnson County referred to by the parties as the Bursey property, the Barton Dairy/Homestead property, the Cleburne property, and the Horse Training property. Barton Dairy is a sole proprietorship located in Cleburne, Texas. The dairy sold unpasteurized milk from a building referred to as the "Milk Store." In June 2014, the trial court entered agreed temporary orders which provided that Janice would receive the proceeds from the milk store in lieu of spousal support. She received approximately $3,000 per month during the pendency of the divorce for a total of $27,000.

During the marriage, the parties acquired an interest in a pecan operation referred to by the parties as "the Pecan Plant." Jackie Hartnett testified that Billy and his son Matthew had owned a property known as the Pecan Plant which processes pecans. When Matthew no longer wanted to be involved with the Pecan Plant, Jackie became Billy’s partner. Billy owned the equipment at the Pecan Plant prior to 2007, and in October 2013, after Billy and Janice married, Billy and Jackie purchased 3.1 acres of land and a building for operation of the Pecan Plant. They purchased the land and building for $52,500 after securing a bank loan in the sum of $35,000. At the time of trial, Billy and Jackie owed a balance of approximately $29,460. Jackie testified that he and Billy each owned one-half of "the land referred to as the pecan plant." The profits from the plant were converted to payments for equipment and upgrades, and Jackie estimated that over a seven-year period, he and Billy had split approximately $1,600 in funds from the pecan plant. Jackie valued the building and real estate at $80,000 to $85,000, and estimated the equity in the property to be $30,000. He stated that the pecan plant equipment was worth less because it was eight years older. When asked whether he had any reason to disagree with Billy’s assertion that Billy’s one-half interest was worth $52,000, Jackie indicated the sum was not correct because they had paid $52,500 for the property.

Janice agreed that Billy had purchased the Bursey property, Barton Dairy, the Cleburne property, and the horse training property prior to their marriage. Janice estimated that Barton Dairy owned at least 125-150 dairy cattle and Billy had agreements to raise cattle owned by others on the property. The non-Barton cattle were intermingled with the Barton cattle, and the cattle were mortgaged at the time of trial, and money had been borrowed to purchase hay. Janice estimated the value of the Holstein cattle at more than $2,000 per head but stated she was unable to estimate the base equity in the cattle, nor the more than 60 goats which were at Billy’s son’s pasture. She valued eight horses at $8,000 collectively, but stated that she could not value the chickens.

At trial, the court asked Janice if she was requesting anything not included on her proposed property division. She initially responded that she wanted her "fair share" or half of the furniture and appliances, but the trial judge informed her that he could not include such an award in the decree because it would be unenforceable. Janice then confirmed that her list contained the items of community property that she wanted. Near the end of the hearing, Janice and the trial court had another exchange regarding the property she was asking to be awarded:

[The trial court]: Okay. And, Mrs. Barton, on your list of proposed property division, from A which is Boer goats to O, which is the Yukon, are you requesting anything else, any other personal property?

[Janice]: The furniture and the appliances.

[The trial court]: What furniture and appliances?

[Janice]: That are in the house.

[The trial court]: All of it?

[Janice]: At least half of it.

[The trial court]: Okay. And here’s where we get back to difficulty, I can't divide -- well, I can, I guess, it would be a disaster if I did -- to say, you get half the property -- half the furniture in the house and he gets half the furniture in the house. I don't -- I've never been in y'all’s house. I don't have a clue what’s in there. And you've gave me a list. I kind of assumed that was it. Is there more?

[Janice]: Of the furniture or you mean if anything else?

[The trial court]: Yes.

[Janice]: No.

[The trial court]: Okay. So this list is it?

[Janice]: Yes.

Consistent with Janice’s testimony and the above exchange, the trial court divided the following items of property between Billy and Janice as reflected in Finding of Fact #11:

a. 10 Boer goats ($800)

b. chickens and boxes ($1,000)

c. two (2) three-year-old paint horses ($5,000)

d. child’s horse ($0.00)

e. two (2) ponies ($3,000)

f. two dogs ($0.00)

g. twenty (20) rolls of hay ($1,000)

h. child’s horse tack ($0.00)

i. Zero turn mower ($1,500)

j. gold cart (seats 6) ($2,200)

k. miscellaneous furniture ($4,000)

l. playground equipment ($1,000)

m. five (5) calf hutches ($2,000)

n. five (5) picnic tables ($750)

o. 2013 Yukon vehicle with note ($0.00)

p. one-half ownership in the three (3) acre Pecan Plant ($25,000)

q. 2004 Yukon vehicle ($5,000)

r. silver and foreign currency (face value)

s. cash in safe ($15,000)

During her trial testimony, Janice specifically requested that she be awarded most of the listed items, including the 2013 Yukon.² The trial court awarded to Janice Items a through n, q, r, and s, and awarded to Billy Items o and p. The community property awarded to Janice (Items a-n and q) has a combined net value of $27,250, and the silver and cash in the safe (Items r and s) totaled $15,000 for a total value of $42,250.³

Janice made three reimbursement claims at trial. She sought to recover: (1) one-half the value of ad valorem taxes paid by the community estate for Billy’s separate property during the course of the marriage; (2) the value of the unsecured and secured loans paid by community funds during the marriage to acquire equipment, livestock, feed, and to build improvements for the Dairy during the marriage; and (3) 100 percent of the value of her separate property 401k funds utilized to improve the Dairy. The trial court ruled in favor of Janice only on the third reimbursement claim and awarded her $24,765 for her separate 401k funds that benefitted Billy’s separate property. Thus, the court granted her judgment against Billy in the amount of $33,024.75 to equalize the division of the community estate and to resolve her claims for reimbursement. Thus, the total value of her division of community property and the reimbursement claim is $75,274.75.

The trial court awarded Billy the following community property: the 50 percent interest in the 3.1 acre tract of land and machinery known as the Pecan Plant, valued at $25,000 (Item p in the list of property contained in Finding of Fact #11); seventy-six head of cattle with a net value of $44,600; four Angus cattle with a total value of $6,000; eight horses with a total value of $8,000; and the 2013 Yukon vehicle (Item o in the list of property contained in Finding of Fact #11). The total value of these items of community property awarded to Billy is $83,600. Additionally, the trial court found that Billy’s separate property benefitted from the expenditure of Janice’s 401k funds for improvements to his separate property in the total amount of $24,765. Thus, the total value of the community property awarded to Billy combined with the benefit to his separate property is $108,365. When the judgment of $33,024.75 awarded to Janice is deducted, Billy’s total community property award is $75,340.25. The trial court also confirmed that the following four tracts of land are Billy’s separate real property: the Bursey Property, the Dairy/Homestead tract, a fractional interest in the Cleburne property, and the Horse Training property.

In response to Janice’s request, the trial court issued written findings of fact and conclusions of law. Janice did not request that the court issue additional findings of fact.

ATTACHMENT TO JANICE'S BRIEF

Before addressing the merits of the issues presented on appeal, we must resolve a dispute regarding a document included in the appendix of Janice’s brief. In support of her contentions, Janice attached to her brief Billy’s "Answers to Interrogatories" but the document was not admitted into evidence at trial. Appellee urges that we not consider the document when addressing the issues.

It is well established that documents attached to an appellate brief which are not part of the record may generally not be considered by the appellate court. See Robb v. Horizon Communities Improvement Association, Inc. , 417 S.W.3d 585, 589 (Tex.App.--El Paso 2013, no pet.) (holding that documents attached to a brief as an exhibit or an appendix, but not appearing in the record, cannot be considered on appellate review); Warriner v. Warriner , 394 S.W.3d 240, 254 (Tex.App.--El Paso 2012, no pet.) (same); WorldPeace v. Commission for Lawyer Discipline , 183 S.W.3d 451, 465 n.23 (Tex.App.--Houston [14th Dist.] 2005, pet. denied) ("we cannot consider documents attached as appendices to briefs and must consider a case based solely upon the record filed"). The appellate record consists of the clerk’s record and, if necessary to the appeal, the reporter’s record. TEX.R.APP.P. 34.1. The attachment of documents as exhibits or appendices to briefs is not formal inclusion in...