Burgess v. Burgess, No. 09-06-301 CV (Tex. App. 5/24/2007), 09-06-301 CV.

• Decision Date: 24 May 2007
• Docket Number: No. 09-06-301 CV.,09-06-301 CV.
• Court: Texas Court of Appeals
• Parties: DEBORAH KAY BURGESS, Appellant, v. MAX LINDLEY BURGESS, Appellee.

Page 1

DEBORAH KAY BURGESS, Appellant, v. MAX LINDLEY BURGESS, Appellee.

No. 09-06-301 CV.

Court of Appeals of Texas, Ninth District, Beaumont.

Submitted on January 4, 2007.

Opinion Delivered May 24, 2007.

On Appeal from the County Court at Law No. 3, Montgomery County, Texas, Trial Cause No. 05-01-00168-CV.

Affirmed in part; reversed and remanded in part.

Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.

MEMORANDUM OPINION

STEVE McKEITHEN, Chief Justice.

Appellant Deborah Kay Burgess appeals from the trial court's property characterization and division in her divorce decree, as well as the granting of the divorce on the ground of cruelty. We affirm in part and reverse and remand in part.

Background

Deborah and appellee Max Lindley Burgess were married on April 6, 1991. No children were born or adopted during the marriage. In January of 2005, Max filed for divorce. Max cited as grounds for divorce both cruelty and insupportability due to discord or conflict of personalities.

At the bench trial, Max testified that he owned a home in Harris County before he married Deborah. Max still owed $4700 on the mortgage when he and Deborah married, and he paid the $ 4700 in monthly installments of $57 using funds from his paycheck.¹ While Max and Deborah were living in the Harris County home, the home flooded, and Max received $56,000 from his flood insurance company. When Max subsequently sold the Harris County home, he received $81,602, which he then paid toward the purchase of a new home in Willis. Max testified that he also applied $ 36,000 of the flood insurance settlement toward the purchase of the Willis home. In addition, Max borrowed $18,000 from his 401(k) plan to purchase the lot for the Willis home. Max testified that he built a $21,900 detached garage at the marital residence using a $15,000 loan from his mother. According to Max, he also received $48,000 as a gift from his mother, and he used that money for the Willis house and its garage. Max testified that although the $48,000 was a gift, he made a few payments to his mother for the money. However, during cross-examination, Max characterized the $48,000 as a loan, and he explained that his mother subsequently forgave the debt. Max testified that he advanced a total of $142,458 of his separate funds toward the construction of the Willis house.

Max testified that the marriage had become insupportable because of discord or conflicts of personalities, reconciliation was impossible, and Deborah had been cruel to him. Max opined that he should receive the house because of Deborah's cruelty to him. According to Max, the marriage was only enjoyable for three to four years, and he testified that Deborah "quit being a wife to me." Max explained that Deborah did not sleep in the bedroom with him because she had to stay up late to check on her daughter Heather, who worked "at the bars and she didn't get off 'til 2:00 or 3:00 in the morning. She talked to Heather all the way home so she wouldn't fall asleep." Max testified that he and Deborah had not been sexually intimate for eight to nine years, and although this was a problem for him, she refused to attend counseling.

After Max married Deborah, he learned she had credit card debt that she was unable to pay. However, Deborah did not tell him how much she owed. Max testified that Deborah sought assistance from Consumer Credit Counseling Services ("CCCS"), and Max contributed $20,000 from his pre-marriage savings toward her debt reduction program. Max and Deborah also filed a petition for bankruptcy, and that proceeding concluded on February 12, 2004.

Max testified that he "barely made it through school" because he "couldn't read and comprehend too good." Max explained that when he received his paychecks, he gave them to Deborah, and "[s]he would sign my name to . . . my check and take it to the bank." Max explained that he and Deborah usually deposited seven to eight hundred dollars from each of his biweekly paychecks into the savings account. Max also testified that Deborah wrote the deposits on the back of the checkbook when she went to the bank, but Max generally did not see their bank statements despite asking Deborah for them. Max testified that he and Deborah often fought when he saw the bank statements because "she had stuff that was done wrong and she did not want me to see them." According to Max, his disagreements with Deborah usually pertained to Deborah's credit card debt or to Heather. Max explained that Deborah "was taking a lot of money from me to take care of Heather." Max testified, "I would think it was going to get better after '95, the first time, credit cards. I loved her and I cried about it, and I told her, her and Heather both, . . . `Don't ever do this to me again.' She said, `I won't.' It didn't last two or three years; it started again."

In 2003, Max learned that Deborah was again having financial problems because he began receiving phone calls from creditors, and he tried unsuccessfully to make a small purchase using his debit card. Max explained that when he attempted to make the purchase, he believed he had $53,500 in his savings account because Deborah had written that amount on a card. When Max asked Deborah whether they had any money in the bank, she said, "No." Max testified that Deborah "cooked the books the whole time we was married." Max further explained that Deborah hid the mail before he got home, thereby preventing him from seeing the bank statements. Max also testified that Deborah kept some of the bedrooms in their home locked with a padlock and "a key that she hid. I couldn't even go into my bedrooms. . . . She had stuff hidden in there."

According to Max, Deborah withdrew $5,000 from his 401(k) plan without his permission. Max also testified that he started an IRA in 1983 with $2,000, and the IRA is presently worth only $1,000 because Deborah made withdrawals from it without his consent. Max explained that he is sixty-two years old, and although he was eligible to retire at age fifty-five, he did not do so because Deborah twice ruined his credit during their marriage, and he had no money.

Max testified that when Deborah left, she took his truck and his paycheck with her, and he learned that their bank account only contained one hundred dollars. After Deborah left, Max's mother loaned him money to purchase another truck, and he bought a 2002 Chevrolet Silverado. Max testified that he had been trying to convince Deborah to find a job because, "[a]fter the bankruptcy, I was down to my last nickel. I had no money. My credit was gone, all on account of her." According to Max, after Deborah left, she called him and said "she'd lied to me for a long time, and she said she'd never lie to me again." Max testified that he was shocked when Deborah left, and he had "[n]o money, no credit, no automobile."

Max's mother, Nell, testified that she loaned Max and Deborah $ 15,000 because Max "wanted a nice house and I thought I would loan that to him to help him out." Nell testified that she gave the remainder of the money to Max as a gift.² Nell testified that part of the funds Max and Deborah used to build the garage for their home came from her. Nell explained that Max and Deborah made payments to her only on the $15,000 promissory note. After Deborah left Max, Nell loaned Max $10,000 to purchase a truck.

Max's son, Jason, testified that he had a good relationship with his father at the time of Max's marriage to Deborah, but the relationship began to deteriorate after a couple of years. Jason explained that Deborah "basically would tell me bad things . . . about my father." He testified that Deborah would "[j]ust tell me that he really didn't like me, didn't care for me too much, and just said that I wasn't his son, and all these horrible things." According to Jason, Max "said that wasn't true; he never said anything like that." Jason further explained that Deborah "would tell me horrible things about him, and she would tell him horrible things about me. And she just basically made it to where we didn't want to be around each other." Jason testified that he and his father did not speak until two weeks after Deborah left Max. According to Jason, Deborah told him approximately two years before she left his father that she planned to seek a divorce.

According to Jason, Deborah spent $15,000 purchasing furniture for Heather's apartment with Max's credit card. Jason also testified that Heather "was a bad driver and wrecked her car a lot, so they would have to help her out financially. . . ." Jason further explained that Heather had lost two jobs "for drugs and stuff like that. And they basically had to bail her out and help her pay her rent when she lost her jobs." Jason testified that he observed Heather's drug problem "with my own eyes." Jason also testified that Heather had in her possession credit cards and ATM cards that belonged to Max and Deborah. According to Jason, Deborah told him she gave the cards to Heather "because she couldn't leave at certain times, in order to get money."

Jason's wife, Stacey, testified that Deborah tried to interfere with the relationship between Jason and Max. According to Stacey, she only heard negative things about Max from Debbie and Heather, and Deborah told her and Jason that Max "didn't really like us when we came around[.]" Stacey testified that Deborah also "said that Max didn't think Jason was his real son." Stacey explained that Deborah also told her that Max had no interest in his grandchild and did not want to see her. Stacey testified that she now believes the things Deborah said were not true. Stacey testified that Max became upset because "[h]e had found financial statements when [Deborah and Heather] had gone to the bank to make a loan. Financial loans had come about and credit card debt that he didn't know about."

Deborah Burgess testified that when she married Max, she moved into the Harris County home, and she...