Gutierrez v. Gutierrez

CourtCourt of Appeals of Texas
Citation791 S.W.2d 659
Docket NumberNo. 04-88-00112-CV,04-88-00112-CV
PartiesRoberto Martin GUTIERREZ, Appellant, v. Patricia Ann Salinas GUTIERREZ, Appellee.
Decision Date29 June 1990

Julio A. Garcia, Laredo, for appellant.

Charles R. Borchers, Belinda Mendez, Laredo, for appellee.

Before CADENA, C.J., and PEEPLES and BIERY, JJ.


PEEPLES, Justice.

Roberto Gutierrez appeals from a divorce decree rendered after a nonjury trial. His 29 points of error challenge primarily (1) the court's findings and conclusions that his separate estate must reimburse the community estate for various expenditures of community funds to pay separate debts, and (2) the court's division of the marital estate. We hold that the court erred in certain of its rulings concerning reimbursement and property division, and therefore we reverse and remand the cause for a new property division. See Jacobs v. Jacobs, 687 S.W.2d 731, 732-33 (Tex.1985). We will refer to the parties as Patsy and Robert because those names were used by everyone who testified.

The parties were ceremonially married on October 13, 1983. Patsy contended that they entered a common-law marriage in 1979, but the court found otherwise. Patsy challenges that finding by cross point, but it is well within the evidence, which included the testimony of Robert and four other witnesses who disputed one or more of the elements of common-law marriage. Patsy filed this suit one month after the parties separated in October 1986. There are no children of the marriage.

The nonjury trial began in August 1987 with the live testimony of four custodians of bank records. Robert also testified live, but after a lengthy recess the parties agreed to submit the rest of the evidence by affidavit. The record consists of the live testimony mentioned, the affidavits of the parties and eight other witnesses, Robert's deposition, and many exhibits and photographs. In December 1987, the court rendered judgment and signed the decree from which Robert now appeals.

At the outset, Patsy challenges by cross point Robert's entire appeal because he did not present to the trial court the grounds of error that he urges in this court. See TEX.R.APP.P. 52(a). We reject this contention. Each of Robert's appellate complaints involves the relief granted in the judgment. He could not possibly have complained about the court's judgment prior to the rendition of the judgment itself, and the law does not penalize him for failing to do so. See Brock v. Brock, 586 S.W.2d 927, 930 (Tex.Civ.App.--El Paso 1979, no writ), overruled on other grounds, Howell v. Coca-Cola Bottling Co., 599 S.W.2d 801, 802 (Tex.1980). Robert's motion for new trial urged each of the points that he has brought to this court. Patsy's cross point is overruled.

Robert's first point of error attacks the court's finding that the marriage be dissolved on the ground of cruelty in addition to insupportability. He does not complain that the court granted a disproportionate property division on fault grounds, and therefore the cruelty finding has no effect one way or the other on the division of the marital estate. Nor does he contend that the finding has prejudiced him in any way. Because the divorce rests on the alternative grounds of cruelty and incompatibility, and the latter ground supports it, we find it unnecessary to consider the challenge to the cruelty finding.


The court awarded Patsy a judgment for $85,406.65 as part of its just and right division of the marital estate. See TEX.FAM.CODE ANN. § 3.63 (Vernon Supp.1990). The findings of fact and conclusions of law demonstrate that this figure represents the sum of seven different items of reimbursement for community funds spent on Robert's separate estate during the marriage. 1

A. Condominium.

In point two Robert argues that the court erred in awarding reimbursement for payments made on his separate property condominium, which was the marital residence. It is undisputed that Robert acquired the condominium before the marriage and that the parties lived there during the marriage. The court's findings of fact show that it awarded Patsy reimbursement of $15,021.17 for the following:

a) Monthly payments made to discharge the debt on [Robert's] separate property Condominium since 1983 ($30,042.33) paid from community funds, cattle sales, C.D. interest, deer lease.

Robert attacks this finding on two grounds: (1) that the evidence is legally and factually insufficient to show that the condominium payments were made with community funds; 2 and (2) that the court erred in failing to take into account the benefit the community received by using the condominium as the marital residence. We sustain the second ground.

Several principles now govern a trial court's decision to grant reimbursement to one estate for its expenditures toward the purchase price of a different marital estate. 3 First, "a claim for reimbursement for funds expended by an estate for improvements to another estate is to be measured by the enhancement in value to the benefited estate." Penick v. Penick, 783 S.W.2d 194, 196 (Tex.1988) (emphasis added) quoting Anderson v. Gilliland, 684 S.W.2d 673, 675 (Tex.1985). 4

Second, the same rules govern reimbursement for (1) payments on behalf of an estate and (2) improvements to an estate. "We view the advancement of funds by one marital estate to another under either transaction, payment of a purchase money debt or as a capital improvement, as essentially identical and therefore subject to the same kind of measurement." Penick, 783 S.W.2d at 197. In other words, enhancement is the measure of reimbursement in both situations.

Third, in keeping with the first two principles, the court must consider the offsetting benefits to the estates. Reimbursement is an equitable doctrine, and "a court of equity is bound to look at all the facts and circumstances and determine what is fair, just, and equitable." Id. (quoting 27 AM.JUR.2d, Equity § 102). The trier of fact should consider the benefits and detriments to each estate. The supreme court has rejected the notion that a trial court may simply "return to the [contributing estate] the actual amount advanced to reduce the principal indebtedness on the [benefited estate's] property without regard to the benefits received in return by the [contributing] estate." Penick, 783 S.W.2d at 197. Conversely, the court must "insure that a benefited estate is not required to pay more in reimbursement than the amount in which it was benefited by the other estate." Anderson v. Gilliland, 684 S.W.2d at 675.

Finally, the trial court has great discretion in deciding and evaluating a claim for reimbursement; that discretion is equally as broad as its discretion in making a just and right division of the community estate. Penick v. Penick, 783 S.W.2d at 198.

[G]reat latitude must be given to the trial court in applying equitable principles to value a claim for reimbursement.... [An] equitable claim for reimbursement is not merely a balancing of the ledgers between the marital estates.

Id. As the court had said earlier in Vallone v. Vallone, 644 S.W.2d 455, 459 (Tex.1982), "Reimbursement is not available as a matter of law, but lies within the discretion of the court." 5

In the case before us, there is nothing in the record to suggest that the court considered in any way the benefit the community received when the parties lived in Robert's separate property for three years without paying rent. We do not necessarily say that the court, in its exercise of discretion, had to calculate reimbursement differently because of this factor. But we do hold that a court must at least consider offsetting benefits when a litigant asks it to do so, as Robert did in this case. We reverse and remand to the trial court for consideration of the offsetting benefits that Robert asked the court to take into account.

B. China Bo Restaurant.

In points three through nine Robert challenges the court's granting reimbursement for community payments toward and enhancement of his separate property restaurant. Most of the facts on this issue were undisputed. Before this marriage Robert and his brother inherited the China Bo Restaurant, each owning an undivided half interest. In June 1986 they executed a five-year lease, with a monthly rental of $700. They also borrowed $17,000 from the Laredo National Bank to improve and prepare the leased premises for the tenant. As part of the lease arrangement, the tenant agreed to spend an additional $5,000 on improvements, the cost of which would be absorbed by Robert and his brother in the form of rent abatements for the first seven months. This amounted to seven months of free rent worth $700 per month. After these first seven months, the monthly rental payments were sent to the bank and were applied to the $17,000 note.

The court granted Patsy reimbursement for half the amount of the payments and also for half the amount of the enhanced value. In its findings of fact and conclusions of law, the court stated that the judgment awarded reimbursement for one-half the following:

c) L.N.B. [Laredo National Bank]--China Bo loan/note (separate property) amount paid on the note, from monthly $700.00 rentals to September 1987 is $10,500.00.... [$5,250.00]

d) Enhanced value to China Bo realty, from improvements made--as per L.N.B. loan and China Bo monthly $700.00 rentals is $21,682.00.... [$10,841.00]

Robert attacks these findings and conclusions on various grounds. Because we sustain two of his complaints, we do not discuss the others.

Robert argues that the court awarded Patsy a double recovery by ordering reimbursement for every payment of community funds and reimbursement for the amount that those funds increased the value of the restaurant property. We agree that the judgment, considered in light of the court's findings and conclusions, awards a double recovery. The undisputed evidence establishes that the $5,000 spent...

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