Cole v. Cole

• Decision Date: 22 June 1994
• Docket Number: No. 2-93-186-CV,2-93-186-CV
• Parties: Rodney Allen COLE, Appellant, v. Benita COLE, Appellee.
• Court: Texas Court of Appeals

Page 477

880 S.W.2d 477

Rodney Allen COLE, Appellant, v. Benita COLE, Appellee.

No. 2-93-186-CV.

Court of Appeals of Texas,

Fort Worth.

June 22, 1994.

Publication Ordered July 13, 1994.

G. Thomas Vick, Jr., Weatherford, for appellant.

John W. Hughes, Simon, Anisman, Doby & Wilson, P.C., Fort Worth, for appellee.

Before FARRIS, WEAVER and HICKS, JJ.

OPINION

HICKS, Justice.

In this divorce case, appellant Rodney Cole raises eleven points of error challenging the sufficiency of the evidence to support the trial court's findings regarding conservatorship, child support, valuation and distribution of the community estate, and a lien on the community homestead. We affirm in part and reverse and remand in part.

Rodney and appellee Benita Cole were married on December 31, 1972. They have two sons, Rodney, Jr., age eighteen at the time of trial, and Jackie, age fifteen at the time of trial. The Coles separated on June 11, 1992, and Rodney filed for divorce on August 18, 1992. A short time later, Benita filed a cross-action for divorce. After a nonjury trial, the trial court granted the divorce, appointed the parties joint managing conservators of their minor child, appointed Benita Jackie's primary joint managing conservator, ordered Rodney to pay $300 a month in child support, and divided the community estate.

In a case tried to the court, findings of fact have the same force and dignity as a jury's verdict upon questions and are reviewable for legal and factual sufficiency of the evidence by the same standards applicable in reviewing the sufficiency of the evidence supporting a jury's finding. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991). In considering a "no evidence" or legal sufficiency point, we consider only the evidence favorable to the decision of the trier of fact and disregard all evidence and inferences to the contrary. Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex.1988); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). In considering a factual sufficiency point, we assess all the evidence and reverse for a new trial only if the challenged finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

I. CONSERVATORSHIP

In his first point of error, Rodney asserts that the evidence is legally and factually insufficient to support the court's findings that Benita should be appointed Jackie's primary joint managing conservator and that it is in Jackie's best interest to be placed in Benita's custody. Since their parents' separation, Jackie and Rodney, Jr. have continued to live with their father in the community homestead in Weatherford, Texas. Rodney, Jr. testified he wished to remain living with his father. Benita now lives in Lampasas, Texas. At trial she admitted that Jackie asked to live with his father.

In determining the question of managing conservatorship of a child, the primary consideration of the court shall always be the best interest of the child. TEX.FAM.CODE ANN. § 14.07(a) (Vernon Supp.1994). The trial court is given wide latitude in determining the best interest of a minor child for purposes of making a custody award, and its judgment will not be disturbed on appeal unless it is shown from the record as a whole that the court abused its discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982); Hopkins v. Hopkins, 853 S.W.2d 134, 136 (Tex.App.--Corpus Christi 1993, no writ); MacDonald v. MacDonald, 821 S.W.2d 458, 460 (Tex.App.--Houston [14th Dist.] 1992, no writ).

Benita testified that when she and Rodney separated, she left the house because she was in fear for her life. She stated that Rodney had abused and threatened her. Benita also testified that she did not think Rodney was a proper role model for the boys. For example, on a Saturday night after the separation, Benita went to visit the children at their father's house. Rodney was out of town, and the boys had thirty to forty teenagers over for a party. Both of the Cole boys were drinking beer and had been shooting high-caliber rifles. On another occasion, Benita went out to the house to pick up some of her clothes and found two naked strippers asleep in her bed. Rodney had just left for work, and Jackie was downstairs asleep. Benita also suspects Rodney was involved in drugs and drug trafficking, although she admits she cannot prove it.

Benita's mother, Delta McLauchlin, testified that she has lived with Rodney and her grandsons for the past two-and-a-half years. She has never witnessed any evidence of abuse or drug use on Rodney's part, and she stated that he has always worked hard to provide for his family. McLauchlin did not think her daughter was a good mother.

The record indicates that the trial judge spoke with Jackie in his office off the record. Section 14.07 of the family code provides:

In a nonjury trial the court may interview the child in chambers to ascertain the child's wishes as to his conservator. Upon the application of any party and when the issue of managing conservatorship is contested, the court shall confer with a child 12 years of age or older and may confer with a child under 12 years of age, but in either event the results of such interview shall not alter or diminish the discretionary power of the court.

TEX.FAM.CODE ANN. § 14.07(c) (Vernon 1986) (emphasis added). Although we do not know the content of Jackie's conversation with the trial judge, even if Jackie had expressed a desire to live with his father, the court had the discretion to decide that this would not be in Jackie's best interest. The evidence is both legally and factually sufficient to support the court's decision to make Benita primary joint managing conservator. Point one is overruled.

II. CHILD SUPPORT

In point two, Rodney argues that the evidence is insufficient to support the court's finding that he pay child support of $300 per month beginning April 1, 1993. The court's order states that Benita "shall have the exclusive right to establish [Jackie's] legal residence and school immediately following the completion of the spring, 1993, semester of the child's school." Rodney argues that it was clearly erroneous for the court to order him to pay child support to Benita at a time when Jackie was still living with him. He characterizes these payments as alimony, but does not cite any authority in support of his contentions.

Alimony after divorce is not permitted in Texas. Eichelberger v. Eichelberger, 582 S.W.2d 395, 402 (Tex.1979); United States v. Stelter, 567 S.W.2d 797, 798 (Tex.1978); Reed v. Reed, 813 S.W.2d 716, 718 (Tex.App.--El Paso 1991, no writ). The term "alimony" has been defined to include allowance, whether periodical or in gross, judicially imposed on a husband to be made to his wife after divorce has been entered. Reed, 813 S.W.2d at 718.

We note that the Spring 1993 school semester could not have ended more than a couple of months after April 1, 1993. We cannot conclude that ordering child support payments to begin a short time before the recipient of the support has custody of the child constitutes alimony or is otherwise improper. The trial court could have determined that child support in advance of custody was necessary for Benita to prepare for Jackie's arrival. Rodney's second point of error is overruled.

III. VALUATION AND DIVISION OF COMMUNITY PROPERTY

In points three through nine, Rodney challenges the court's valuation and/or distribution of various items of community property. A trial court has wide discretion in dividing property upon divorce, and its decision will be reversed on appeal only if there has been an abuse of discretion. Murff v. Murff, 615 S.W.2d 696, 698 (Tex.1981). The family code provides that the trial court "shall order division in a manner that the court deems just and right, having due respect for the rights of each party and any children of the marriage." TEX.FAM.CODE ANN. § 3.63 (Vernon 1993). In making a "just and right" property division, the court may consider, among other things, the parties' abilities, business opportunities, earning capacities, education, relative financial condition and obligations, the size of their separate estates, and the nature of the property. Murff, 615 S.W.2d at 699.

The record reflects the following regarding the parties' employment history: During the marriage, Rodney earned a living raising cattle and working in his mother's pawn shop. Benita earned an associate's degree from Tarrant County Junior College in pre-medicine. She never worked during the twenty-year marriage except for a year-and-a-half when she owned a convenience store, and two years when she worked at a pawn shop. She was working in a pawn shop in Lampasas at the time of trial.

A. GUNS

Rodney contends in point three that the evidence is legally and factually insufficient to support the court's finding that the parties owned guns valued at $10,000. Benita testified that Rodney's gun collection was extensive and estimated that it was worth $10,000. Benita's father, Jackie Deaver, testified that one of Rodney's guns was worth $2,000, and that Rodney "had all kinds of hunting rifles and stuff all in a safe." Deaver, a hunter and former gun collector, also estimated that Rodney's guns were worth $10,000. Rodney himself appraised the guns at five to six thousand dollars. The evidence is legally and factually sufficient to support the court's finding. Point three is overruled.

B. CATTLE

In points four and five, Rodney challenges the court's findings regarding cattle the parties owned. The court awarded Rodney all of the cattle and found that they were worth $90,731. The judge broke the $90,731 down as follows:

16. Cattle: 37,600.00

....

18. 10 cows, calves: 5,600.00

19. 7 head of cattle, 3 calves: 15,800.00

20. One-half ( 1/2 )...