Grossnickle v. Grossnickle

• Decision Date: 10 October 1996
• Docket Number: No. 06-95-00008-CV,06-95-00008-CV
• Citation: 935 S.W.2d 830
• Parties: Lee Ann GROSSNICKLE, Appellant, v. Richard Dean GROSSNICKLE, Appellee.
• Court: Texas Court of Appeals

Page 830

935 S.W.2d 830

Lee Ann GROSSNICKLE, Appellant, v. Richard Dean GROSSNICKLE, Appellee.

No. 06-95-00008-CV.

Court of Appeals of Texas Texarkana.

Oct. 10, 1996.

Lee Ann Grossnickle, Texarkana, pro se.

Edward E. Ellis, Ellis & Clark, Paris, for appellee.

Before CORNELIUS, C.J., and GRANT and STARR, JJ.

OPINION

GRANT, Justice.

Lee Ann Grossnickle appeals from the division of marital property entered in connection with her divorce from Richard Dean Grossnickle.

Richard Grossnickle and Lee Ann Grossnickle married in 1981. Richard Grossnickle filed for divorce in November 1988. The first trial in this case was heard in District Court in December 1991, and the divorce was granted on April 2, 1992. Lee Ann Grossnickle appealed from the property division. She prevailed in this Court and obtained a new trial on the property division because she had timely requested a jury trial and had been denied that right. Grossnickle v. Grossnickle, 865 S.W.2d 211 (Tex.App.--Texarkana 1993, no writ). The remand was on the property division only. Id.

After being granted a new trial on her failure to be provided a jury trial, Lee Ann Grossnickle then waived her right to a jury trial on the property division, and the case was heard by the trial court. The trial court signed the judgment on the property division (Modified Judgment) on October 31, 1994, and findings of fact and conclusions of law were entered by the court.

Lee Ann Grossnickle appeals once again from the property division by the trial court, contending the trial court erred

1) by not entering additional findings of fact and conclusions of law, and she asks this Court to remand the case to the trial court so that she can seek those additional findings or conclusions;

2) by setting a certain value on the ranch because the evidence presented by Richard Grossnickle was not provided during discovery, the evaluations were from 1992 (time of divorce) instead of 1994 (time of second trial), and Richard Grossnickle's expert witness mixed property values in 1994 with the mortgage in 1992 to obtain his projected value of the ranch;

3) by valuing the cattle as of 1994 because there was no factual or legal evidence supporting that value;

4) by allowing into evidence general ledgers reflecting Richard Grossnickle's business income and liabilities instead of requiring production of the underlying documents. She also complains that the liabilities indicated by the ledger are not supported by the other evidence admitted.

5) by failing to consider positive tax consequences of Richard Grossnickle's payment of interest on the liabilities and by refusing to compel Richard Grossnickle to produce his 1992 income tax return;

6) by refusing to consider Richard Grossnickle's earnings pending appeal when dividing the community estate;

7) by including in the court's inventory separate property jewelry belonging to Lee Ann Grossnickle;

8) by not making a specific finding about the engagement ring that Lee Ann Grossnickle threw at Richard Grossnickle and by failing to specifically award the ring to Lee Ann Grossnickle as her separate property;

9) by failing to consider the value of specific bank accounts;

10) by admitting expert testimony about the value of Richard Grossnickle's optical shop, even though Richard Grossnickle had failed to produce the documents upon which that testimony was based 11) by finding that Lee Ann Grossnickle was responsible for physical deterioration of the community property home pending appeal and that the home accordingly declined in value. In a related complaint, Lee Ann Grossnickle also contends that she was forced to sell the house to Richard Grossnickle for $95,000, when she had earlier had an offer of $130,000 from a third party that Richard Grossnickle had refused to accept;

12) by not determining the value of the home at the time that it was transferred to her, rather than after it had deteriorated, because it deteriorated due to Richard Grossnickle's breach of a fiduciary duty by refusing to transfer funds to her with which to maintain the house;

13) by failing to take into account Richard Grossnickle's payment of his attorney's fees for the divorce from community funds;

14) by not reducing the face value of the Vanguard retirement account ($363,000) to reflect its actual value, considering a ten percent penalty for early withdrawal and the thirty-three percent federal income tax to be levied against the amount as income to her;

15) by not considering $8,000 withdrawn by Richard Grossnickle from the Vanguard account and by considering the $16,000 individual retirement account that Lee Ann Grossnickle had expended between 1992 and 1994;

16) by not crediting the community estate for monies paid out on behalf of Richard Grossnickle's girlfriend;

17) by making a finding of fact that all parts of the previous order were withdrawn, because the appeal from the April 2, 1992 judgment was a limited appeal and the temporary spousal support and attorney's fees remain final;

18) by denying attorney's fees and temporary support pending appeal on the basis that the divorce was final and simultaneously denying use of the estate's assets after January 24, 1995 on the basis that the divorce was not final;

19) by issuing an order limiting Lee Ann Grossnickle's freedom of speech in contravention of the United States Constitution and the Texas Constitution;

20) by not identifying and valuing Richard Grossnickle's goodwill in his business and not dividing that value as part of the marital estate; and

21) by awarding a disproportionate amount of property to Richard Grossnickle.

The trial court's division of the property should be corrected on appeal only if the trial court clearly abused its discretion by ordering a division that is manifestly unjust and unfair. McKnight v. McKnight, 543 S.W.2d 863 (Tex.1976); Martin v. Martin, 797 S.W.2d 347, 351 (Tex.App.--Texarkana 1990, no writ). A presumption arises on appeal that the trial court correctly exercised its discretion in dividing property in a divorce proceeding, and the burden rests on the appellant to show from the record that the division was so disproportionate, and thus unjust and unfair, as to constitute an abuse of discretion. Tschirhart v. Tschirhart, 876 S.W.2d 507, 509 (Tex.App.--Austin 1994, no writ); Martin, 797 S.W.2d at 351. A court of appeals should remand the entire community estate for a new division if it finds reversible error in a specific part of the division that materially affects the trial court's just and right division of the entire community estate. Jacobs v. Jacobs, 687 S.W.2d 731 (Tex.1985).

In this case, the trial court issued findings of fact and conclusions of law. Findings of fact in a case tried to the court have the same force and dignity as a jury's verdict upon special issues. City of Clute v. City of Lake Jackson, 559 S.W.2d 391, 395 (Tex.Civ.App.--Houston [14th Dist.] 1977, writ ref'd n.r.e.). Findings of fact are not conclusive, however, when the record includes a complete statement of facts. Middleton v. Kawasaki Steel Corp., 687 S.W.2d 42, 44 (Tex.App.--Houston [14th Dist.] 1985), writ ref'd n.r.e. per curiam, 699 S.W.2d 199 (Tex.1985).

We must first address a matter not raised by a point of error on appeal, but which relates to the property valuations in this case. This concerns the date for determination of the value of the community assets. Generally, community assets are to be evaluated as of the time of the divorce, and subsequent increases in value are separate property. Sutherland v. Cobern, 843 S.W.2d 127 (Tex.App.--Texarkana 1992, writ denied). At least one court has held that the determination of whether to use the time of the divorce or the time of division as the valuation date of an asset, when the divorce and division of the property occur at different dates, is so fact-specific that it should be left to the discretion of the trial judge in order to avoid possible inequities that could result from a bright-line rule. Parker v. Parker, 897 S.W.2d 918, 932 (Tex.App.--Fort Worth 1995, writ denied). In spite of the flexibility that may be given to the court in limited situations for the purposes of equity, the better rule--and the rule generally followed in Texas--is to value the community assets as of the date of the divorce. Baccus v. Baccus, 808 S.W.2d 694 (Tex.App.--Beaumont 1991, no writ); May v. May, 716 S.W.2d 705 (Tex.App.--Corpus Christi 1986, no writ).

In the present case, some of the arguments underscore the problem of the trial court's failure to use consistently the date of the divorce as the time of evaluation.

Lee Ann Grossnickle specifically filed a motion asking that the property be evaluated as of the date of the new trial and not on the date of the divorce. She cannot now complain of the use of the date of the new trial (1994) for evaluation. Her specific complaint, however, is that the trial court abused its discretion in entering a pretrial order to the effect that the 1992 values would be used and then using the current values (1994) in its valuation of the cattle. She states that because of such ruling she was not prepared to go forward with evidence of 1994 values and that she was not allowed to make any discovery concerning the 1994 values of the herd of cattle. The pretrial order by the court did not provide that the date of the divorce (1992) would be the date used for the evaluation; rather it provided that the trial court would determine the division of the property "that existed on April 2, 1992." This language appears twice in the order. In another place in the pretrial order, the parties were allowed to discover all relevant matters "to determine the inventory of the community estate on April 2, 1992." In the pretrial order, the trial court did not limit the evidence to the 1992 values, but rather limited the division to the property held by the community on that date.

Lee Ann Grossnickle first contends that this Court...