Handley v. Handley

• Decision Date: 04 December 2003
• Docket Number: No. 13-01-441-CV.,13-01-441-CV.
• Citation: 122 S.W.3d 904
• Parties: Herman Lee HANDLEY, Appellant, v. Irene A. HANDLEY, Appellee.
• Court: Texas Court of Appeals

122 S.W.3d 904

Herman Lee HANDLEY, Appellant, v. Irene A. HANDLEY, Appellee.

No. 13-01-441-CV.

Court of Appeals of Texas, Corpus Christi-Edinburg.

December 4, 2003.

John A. George, Victoria, for appellant.

Stephen Cihal, Victoria, for appellee.

Before Chief Justice VALDEZ and Justices RODRIGUEZ and AMIDEI.¹

OPINION

Opinion by Chief Justice VALDEZ.

Appellant, Herman Lee Handley, filed for divorce on September 10, 1999 alleging that his marriage to appellee, Irene A. Handley, had become insupportable due to discord or conflict of personalities that destroyed the legitimate ends of the marriage with no hope of reconciliation. See Tex. Fam.Code Ann. § 6.001 (Vernon 1998). The trial court granted the divorce on March 5, 2001 and divided the community property in favor of appellee. By thirteen issues appellant claims the trial court abused its discretion when it divided the property and that the evidence was factually insufficient to show appellant abused his wife. We affirm.

I. Facts and Procedural History

As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex.R.App. P. 47.4.

II. Discussion

A. Division of Property

We review the trial court's division of property in a divorce action for an abuse of discretion. Butler v. Butler, 975 S.W.2d 765, 767 (Tex.App.-Corpus Christi 1998, no pet.). A trial court has wide discretion in making a just and right division. Zorilla v. Wahid, 83 S.W.3d 247, 252 (Tex.App.-Corpus Christi 2002, no pet.). Legal and factual sufficiency are not independent grounds of error, but rather relevant factors in assessing whether the trial court abused its discretion. Id. A trial court abuses its discretion when it divides property on values that were not in evidence. Martin v. Martin, 797 S.W.2d 347, 351 (Tex.App.-Texarkana 1990, no writ). Further, a trial court's division of property that is manifestly unjust is an abuse of discretion. O'Carolan v. Hopper, 71 S.W.3d 529, 532 (Tex.App.-Austin 2002, no pet.).

The Texas Family Code requires the trial court in a divorce decree to divide "the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage." Tex. Fam. Code Ann. § 7.001 (Vernon 1998). The trial court may consider various factors in making a just and right division including: (1) spouses' capacities and abilities; (2) benefits which the party not at fault would have derived from the continuation of the marriage; (3) business opportunities; (4) relative physical conditions; (5) relative financial conditions and obligations; (6) disparity of ages; (7) size of separate estates; (8) the nature of the property; and (9) disparity of earning capacity. Murff v. Murff, 615 S.W.2d 696, 699 (Tex.1981); Zorilla, 83 S.W.3d at 252. The value of community assets is generally determined at the date of divorce. Grossnickle v. Grossnickle, 935 S.W.2d 830, 837 (Tex. App.-Texarkana 1996, writ denied).

In his first, second, fifth, and seventh issues, appellant complains that the trial court failed to divide the marital estate in a just and right manner because he used values from appellee's inventory which were not admitted into evidence, erred in valuing the marital home at $64,900 because it was not a value introduced into evidence, and valued the property from the date of separation rather than the date of divorce.

The record on appeal shows that appellee submitted a sworn inventory and appraisal with the trial court on December 1, 2000. This appraisal listed appellee's opinion of the value of the community property and her separate property. Although appellee's inventory was never offered into evidence, she testified without objection to the values in the inventory filed with the court. See Mata v. Mata, 710 S.W.2d 756, 758 (Tex.App.-Corpus Christi 1986, no writ) (stating "an owner may testify to the value of his property, both real and personal, if he declares he knows the market value"). Further, the record shows appellee had personal knowledge of the values of the marital property because she testified she was responsible for making mortgage, insurance, and other payments for the benefit of marital estate. See Mata, 710 S.W.2d at 758.

The record does not show the trial court abused its discretion in valuing the marital home at $64,900. The $64,900 value the trial judge assigned to the home was based on the closing statement for the home, which appellant offered into evidence. See Grossnickle, 935 S.W.2d at 844 (stating no error where trier of fact reaches figure between the values offered by the parties). Further, the record does not show the trial court valued the marital property at the date of separation instead of the date of divorce. On August 30, 2000, about three months before trial, the marital home was appraised at $72,000 by John W. Hall, a certified residential real estate appraiser. See Phillips v. Phillips, 75 S.W.3d 564, 574 (Tex.App.-Beaumont 2002, no pet.) (finding no abuse of discretion where trial court used appraisal done eight months before trial). Moreover, appellee's testimony at trial included values of the marital property at the time of divorce.

The record does not show the trial court abused its discretion in its valuation of the marital property. Appellant's first, second, fifth, and seventh issues are overruled.

In his third and fourth issues, appellant claims the trial court abused its discretion when it determined the mortgage on their home was worth $29,000 because the only evidence at trial was appellant's testimony that the mortgage was $25,000.

The record does not support appellant's contentions. Appellant introduced into evidence a closing statement on the 2503 Miori Lane home which listed the purchase price of the home as $64,900 and noted the couple made a down payment of $33,524. The mortgage on the home at the date of purchase was $31,376. Appellee testified the $31,376 mortgage had been reduced since the date of purchase because she was making monthly payments of $543 for the mortgage, insurance, and taxes on the 2503 Miori Lane property. See Mata, 710 S.W.2d at 758. Also, appellant's own inventory and appraisement, which was introduced into evidence, lists the mortgage on the marital home as $29,000. We conclude that the trial court had sufficient evidence from which to determine the value of the mortgage of the 2503 Miori Lane property.

Appellant's third and fourth issues are overruled.

In his sixth issue, appellant argues the trial court abused its discretion when it failed to include an owelty lien² on appellee's marital homestead in the trial court's original ruling on December 29, 2000. Appellant claims this was harmful error because appellee filed for bankruptcy following the trial.

Appellant relies on Hanson v. Hanson, 672 S.W.2d 274 (Tex.App.-Houston [14th Dist.] 1984, writ dism'd w.o.j.) to show the trial court abused its discretion. In that case, the couple owned $733,090 in assets which included real estate worth $387,350. Id. at 276. The trial court awarded the wife an unsecured $185,000 money judgment, which was to be paid in monthly installments of $2,000 after the husband made an initial payment of $40,000. Id. The court of appeals reversed, holding the judgment was unrealistic and inequitable since the husband had valuable real estate from which to protect the wife's judgment and because the repayment term was unduly long. Id. at 279. However, the court noted that its decision was fact-specific and that failure to provide a security interest for a cash judgment is not necessarily an abuse of discretion. Id.

Here, the trial court heard testimony regarding appellant's and appellee's income. Appellee worked three jobs since the date of divorce while appellant was unemployed and living on a fixed income. Accordingly, the trial court awarded appellee both the marital home and the community liabilities and gave appellant a $4,250 money judgment to be secured by the marital home. See Walker v. Walker, 527 S.W.2d 200, 203 (Tex.Civ.App.-Fort Worth 1975, no writ) (stating nature of property and ability of parties to manage property may be taken into consideration to prevent encumbered property from being lost in foreclosure).

Unlike the unsecured $185,000 money judgment to be paid in minimal increments in Hanson, appellant was only awarded a $4,250 money judgment, and there was no court order prolonging appellee's terms of repayment. Appellant does not establish, nor does the record show, these payment terms are either unrealistic or inequitable. Further, the mere fact that appellee went bankrupt does not mean that the trial court abused its discretion in failing to include an owelty lien in favor of appellant. See Goldberg v. Goldberg, 392 S.W.2d 168, 172 (Tex.Civ.App.-Fort Worth 1965, no writ) (holding failure to include lien for money judgment is not abuse of discretion). We find the trial court did not abuse its discretion in failing to include an owelty lien in the divorce decree. Appellant's sixth issue is overruled.

In his eighth issue, appellant claims the trial court erred in finding the debt owed on the 1994 Toyota to be $2,460.42 because this came from evidence not in the record. However, appellee testified that this amount was for the balance on a $4,000 loan secured by the Toyota used to pay off a tax liability owed by the couple. See Mata, 710 S.W.2d at 758. The trial court had sufficient evidence on which to base its award of $2,460.62. Appellant's eighth issue is overruled.

In his ninth issue, appellant contends the trial court abused its discretion when it valued the 1994 Ford truck at $8,325 because it was based on appellee's inventory, which was not in evidence. In appellant's initial inventory filed with the court, he valued the 1992 Ford Pickup at $6,000. Appellee...