Finch v. Finch

• Decision Date: 20 February 1992
• Docket Number: No. 01-89-01063-CV,01-89-01063-CV
• Citation: 825 S.W.2d 218
• Parties: Douglas Cary FINCH, Appellant, v. Jackie C. FINCH, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 218

825 S.W.2d 218

Douglas Cary FINCH, Appellant, v. Jackie C. FINCH, Appellee.

No. 01-89-01063-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

Feb. 20, 1992.

J.D. Bucky Allshouse, Houston, for appellant.

Douglas A. Sandvig, Houston, for appellee.

Before DUGGAN, O'CONNOR and DUNN, JJ.

OPINION

DUNN, Justice.

This is an appeal from the division of community property in a decree of divorce.

The case was tried before the judge of the 309th District Court, the Honorable John Montgomery. The decree of divorce was signed on July 3, 1989, by Judge Montgomery. On July 11, 1989, appellant filed a request for findings in the child support order and a request for findings of fact and conclusions of law. On August 3, 1989, while Judge Montgomery was on vacation, a visiting judge filed findings of fact and conclusions of law. On the same date, appellant filed his request for additional and amended findings of fact and conclusions of law. On September 13, 1989, Judge Montgomery denied appellant's motion for new trial, and adopted the findings of fact and conclusions of law filed by the visiting judge. In the order adopting the findings of fact and conclusions of law, Judge Montgomery invited the parties to submit additional requested findings of fact and conclusions of law. Neither party requested additional findings of fact after September 13, 1989.

In his first point of error, appellant asserts that the trial court committed reversible error in refusing to make additional findings of fact as requested by appellant. Specifically, appellant contends the trial court erred in not making findings as to the value the trial court placed on: 1) the business known as Finch Alternator & Starter Company and the real property located at 4440 North Shepherd Street, Houston, Texas; 2) the bank accounts held by appellant and appellee; and 3) the other large items in the community estate.

A trial judge is not required to file additional findings of fact and conclusions of law requested by a party, if the request was made before the trial judge filed his or her original findings of fact and conclusions of law, and "[t]he original findings of fact and conclusions of law properly and succinctly relate the ultimate findings of fact and law necessary to apprise [the party] of adequate information for the preparation of his or her appeal." Balderama v. Western Casualty Ins. Co., 794 S.W.2d 84, 89 (Tex.App.--San Antonio 1990), reversed on other grounds, 825 S.W.2d 432 (Tex.1991).

This Court has set out the distinction between ultimate fact issues and evidentiary fact issues as follows:

An ultimate fact issue is one that is essential to the right of action.... Such an issue seeks a fact that would have a direct effect upon the judgment.... In contrast, an evidentiary issue is one that the jury may consider in deciding the controlling issue, but that is not a controlling issue itself.

Clear Lake City Water Auth. v. Winograd, 695 S.W.2d 632, 639 (Tex.App.--Houston [1st Dist.] 1985, writ ref'd n.r.e.).

A trial court is not required to file findings of fact listing the value of each item of property owned by the estates of the parties to a divorce suit. Wallace v. Wallace, 623 S.W.2d 723, 725 (Tex.Civ.App.--Houston [1st Dist.] 1981, writ ref'd n.r.e.). A trial court is required to divide the property in a just and right manner. Id. The values of the properties are evidentiary to the ultimate issue of whether the trial court divided the properties in a just and right manner. Id. It is the responsibility of the parties to provide the trial judge with a basis upon which to make the division. Id. One who complains of the way the trial court divided the properties must be able to show from the evidence in the record that the division is so unjust and unfair as to constitute an abuse of discretion. Id.

Here, appellant requested additional findings of fact before Judge Montgomery adopted the original findings of fact and conclusions of law. Judge Montgomery invited both parties to submit additional findings of fact and conclusions of law after he adopted the visiting judge's findings of fact and conclusions of law. Neither party requested additional findings of fact after the original findings of fact had been adopted. We must determine whether the original findings of fact and conclusions of law relate the ultimate findings of fact and law necessary to apprise appellant of adequate information for the preparation of his appeal. Balderama, 794 S.W.2d at 89.

Following our decision in Wallace, the values of certain properties are not ultimate issues. 623 S.W.2d at 725. The ultimate issue in this case is whether the trial court made a just and right division of the community estate. Id. The values the trial court placed on the community estate properties are not essential to appellant's right of action. Winograd, 695 S.W.2d at 639. The values of the properties are evidentiary issues the trial court considers in deciding what is a just and right division of the community estate. Wallace, 623 S.W.2d at 725. The values of the properties are not controlling issues, but rather ones the trial court considers in deciding the controlling issue of how to make a just and right division of the community estate. Therefore, the trial court was not required to make the additional findings of fact as requested by appellant.

Appellant's first point of error is overruled.

In his fourth point of error, appellant contends the trial court abused its discretion because the trial court did not render a just and right division of the community estate.

Community property does not have to be divided equally. A trial court may consider many factors in exercising its discretion, and it is presumed that the trial court properly exercised its discretion. Murff v. Murff, 615 S.W.2d 696, 699 (Tex.1981). Some of the factors a trial court may consider in exercising its discretion are: 1) the spouses' capacities and abilities; 2) benefits that the party not at fault would have derived from the continuation of the marriage; 3) business opportunities; 4) education; 5) physical conditions of the parties; 6) the parties financial condition and obligations; 7) size of the separate estates; 8) the nature of the property; 9) the disparities in earning capacities and incomes; and 10) the fault in the breakup of the marriage. Id.

Using appellant's valuations for the community assets, we hold the trial court did not abuse its discretion in dividing the community estate. Using appellant's valuations of the community assets in his inventory, the trial court awarded appellee approximately 65% of the community assets, with appellant receiving approximately 35% of the community assets. Although this was not an equal division of the community assets, the trial court could have considered some of the factors listed in Murff in making a just and right division of the community estate.

The record shows that appellant had greater business opportunities with his alternator and starter business than appellee, who had virtually no business opportunities available. The record also shows that appellee testified that appellant abused appellee and appellee's daughter. Both of these factors could be considered in making an unequal division of the community estate.

The record shows that appellant had a greater earning capacity than appellee. The only work appellee performed outside the home was keeping the books for appellant's business. After the parties separated, appellee could find a job that paid only $12,904.98 annually, while appellant had his business that earned a 1987 income of $30,229. Although the business tax returns from 1988 showed that Finch Alternator and Starter earned business income of $543.00, the trial court found that appellant was underemployed during that year. The trial court could have determined that appellant should have earned $30,229 in 1988, had he not been intentionally underemployed.

Appellant's fourth point of error is overruled.

In his second and third points of error, appellant contends that there was no evidence, or alternatively, insufficient evidence for the trial court to render a just and right division of the community property.

In reviewing a no evidence point of error, we must consider only the evidence and inferences, when viewed in their most favorable light, that tend to support a trial court's finding, and disregard all evidence and inferences to the contrary. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987). If there is more than a scintilla of evidence to support the finding, the no evidence challenge fails. Id.

We find there was some evidence available for the trial court to render a just and right division of the community property. The trial court had before it a great deal of evidence to determine a just and right division, such as: 1) both party's inventories; 2) two appraisals of the business known as Finch Alternator and Starter, one by Jeffrey Jones and one by Louis Knippa; 3) the testimony of Knippa and Jones; 4) the financial statements for appellant and appellee; 5) tax returns for Finch Alternator and Starter for 1987 and 1988; 6) the appraisal district's appraised value of the property owned by Finch Alternator and Starter; and 7) Finch Alternator and Starter's income statement for the first three months of 1989.

All of this evidence constituted more than a scintilla of evidence to allow the trial court to render a just and right division of the community property.

In reaching a decision regarding a factual insufficiency point of error, an appellate court must examine all the evidence; and, after considering and weighing all the evidence, it should set aside the judgment only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that the judgment is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

The evidence listed above and the parties...