Coote v. Coote
| Decision Date | 06 December 1979 |
| Docket Number | No. 18169,18169 |
| Citation | 592 S.W.2d 52 |
| Parties | Gloria Jean COOTE, Appellant, v. Donald R. COOTE, Appellee. |
| Court | Texas Court of Appeals |
The wife of a military officer appeals from the property division portion of their decree of divorce. The basic question for review is whether the trial court abused its discretion in failing to award the wife any portion of the military retirement benefits if, as, and when the husband receives them.
We affirm.
Gloria and Donald Coote were married in 1960. Lieutenant Colonel Coote had been in the United States Air Force eleven months at the time they were married. The couple had moved numerous times as Coote had been transferred to different bases in several states and overseas. At the time of the divorce the couple had two minor children.
In March, 1976, Coote was transferred from Carswell Air Force Base, Texas, to Offutt Air Force Base, Nebraska. Mrs. Coote and the children remained in Fort Worth. While in Nebraska, Coote instituted a legal separation proceeding there. Under the terms of the separation, he provided temporary alimony and child support.
Mrs. Coote filed this suit for divorce in Tarrant County, Texas. The case was tried to the court without a jury. The trial court granted her a divorce, appointed her managing conservator of the children, and ordered Coote to pay child support in the amount of $650.00 per month. The amount of the support obligation does not decrease when the first of the two children is emancipated.
The trial court divided the estate of the parties. Mrs. Coote's synopsis of the court's division is as follows:
Mrs. Coote
----------
Net home equity $31,942.00
Furniture in home in Fort
Worth *
1975 Honda automobile *
1954 MG automobile 2,000.00
1/2 bank accounts 1,589.00
Jewelry 700.00
------
Total $36,231.00
Lt. Col. Coote
--------------
Military retirement benefits $330,480.00
Furniture in Nebraska 4,200.00
1975 Honda automobile *
Real Estate stock investment 0
Insurance policies 1,500.00
Stereo 1,300.00
1/2 bank accounts 1,589.00
--------
Total $339,069.00
* No evidence of value in record.
In placing a value on Coote's military retirement benefits, Mrs. Coote multiplied the benefits accrued up to the time of the divorce by his life expectancy at his earliest retirement date. Coote contends there is no evidence in the record to support this valuation which he further claims is exaggerated. The record reflects that he was commissioned in 1959 and called to active duty later that year. Thus he will have twenty years of service in 1979. While we do not pass on whether her valuation is correct, it appears that if he lives to his life expectancy, Coote will receive benefits in an amount significantly greater than the amount of the equity Mrs. Coote received through the award of the residence.
It is on this basis that Mrs. Coote claims that the trial court abused its discretion in failing to award her any portion of the retirement benefits. Germane to this contention are her complaints of some evidentiary rulings of the trial court. She alleges error in the admission of exhibits which appear to be photostatic copies of pages from Martindale-Hubbell Law Digest by which Coote attempted to furnish the trial judge sufficient information to enable the court to take judicial notice of the marital property laws of some of the other states where the couple lived. She also asserts the trial court erred in admitting evidence of Coote's military residence for tax purposes.
It is clear that by offering this evidence Coote was attempting to prove that the trial court should characterize portions of the retirement benefits as his separate property. We conclude errors in the admission of the evidence complained of, if any, are harmless under Tex.R.Civ.P. 434 for at least three reasons. First, because the trial was to the court without a jury, the presumption arises that the court made its decisions considering only admissible evidence even though it may have allowed some inadmissible material in evidence. There is nothing in the record indicating the trial court considered any inadmissible evidence. Thus Mrs. Coote has failed to rebut this presumption.
Secondly, because Mrs. Coote prosecuted her appeal without findings of facts and conclusions of law we are unable to know with certainty how the trial court characterized the retirement benefits. It is initially presumed where no findings of fact and conclusions of law are made that the trial court correctly characterized these benefits and made a just and right property division. Third, in view of the fact that military retirement benefits are personal property rather than real estate, any error in mischaracterizing the benefits would be harmless, if in the final analysis, the property division is just and right. Crowell v. Crowell, 578 S.W.2d 562 (Tex.Civ.App. Fort Worth 1979, no writ). We conclude that the error alleged, if any, would at most result in a mischaracterization of the retirement benefits and thus be harmless error.
A more important consideration is whether the trial court abused its discretion in making the property division. There is no real disagreement between the parties as to the Texas law concerning property division of marital estates which include military retirement benefits. Military retirement benefits earned during the marriage are community property subject to division upon divorce. Cearley v. Cearley, 544 S.W.2d 661, 665 (Tex.1976). Although benefits earned while the couple lived in a state or foreign country may be properly characterized as the separate property of the serviceman, these benefits are still divisible, under proper circumstances, like any separate personal property to effect a just and right property division.
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