Hanson v. Hanson
| Decision Date | 03 May 1984 |
| Docket Number | No. A14-83-571CV,A14-83-571CV |
| Citation | 672 S.W.2d 274 |
| Parties | Constance Elaine HANSON, Appellant, v. Frederick W. HANSON, Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
John H. Holloway, Houston, for appellant.
John C. Pavlas, Taylor, Hays, Price, McConn & Pickering, Houston, for appellee.
Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
Appellant appeals from the judgment entered in a divorce action after a non-jury trial. In her points of error she complains 1) that the trial court's partition of the community property was so unfair as to constitute an abuse of discretion; 2) that the trial court abused its discretion in awarding a majority of the community property to appellee and in awarding appellant a money judgment with specific terms of payment to compensate her for the difference; 3) that the trial court abused its discretion in failing to provide appellant with adequate security for payment of the money judgment. We hold that the trial court erred by failing to provide adequate security for the payment of the judgment. We affirm in part and reverse and remand in part.
The trial judge did not make any findings of fact and conclusions of law, so we must affirm the judgment if it can be supported on any theory presented by the record, and we must view the evidence in the light most favorable to the judgment. Thomas v. Thomas, 525 S.W.2d 200 (Tex.Civ.App.--Dallas, 1975, no writ); Peterson Sales Co. v. Mica, Inc., 623 S.W.2d 679 (Tex.Civ.App.--Houston [1st Dist.] 1981, no writ). Therefore, in reviewing the division of the parties' community estate we accept as true appellee's evidence as to the values of the community assets and the amounts of community liabilities.
The chart below represents the trial court's partition of the community assets and liabilities.
COURT'S DIVISION
----------------------------------------
WIFE, Appellant HUSBAND, Appellee
------------------- --------------------------
ASSETS ASSETS
------------------- --------------------------
1. 1978 Mercedes $ 18,000.00 1. Cash $1,800.00
2. 1978 Ford Van 2,800.00 2. House in Katy 220,000.00
3. Cash 200.00 3. Memorial Townhouse 94,400.00
4. Pandemonium -0- 4. Corpus Christi 72,950.00
Productions Condo
5. Connie Hanson, -0- 5. Accts. Rec.- 4,000.00
Ltd. Employees
6. Household 17,691.00 6. Dr. Hanson, P.A. 216,400.00
------------
TOTAL $ 38,691.00 7. Retirement Plan 91,540.00
------------------- ------------ 8. Keogh Plan 14,000.00
9. 21 ft. Cabin Cruiser 4,500.00
10. 1979 Cadillac Seville 7,500.00
11. Motorcycle 1,000.00
12. Household Furniture 5,000.00
------------
TOTAL $ 733,090.00
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DEBTS DEBTS
------------------- --------------------------
1. Car Loan $ 15,000.00 1. Atty. Fee-- $ 3,500.00
2. Hahne Debt 14,937.00 Taylor, Hays, Price
3. Atty. Fees-- 19,526.00 McConn & Pickering
Haynes & 2. FIT Liability 88,000.00
Fullenweider 3. Acct. Payable 7,821.00
4. Atty. Fees-- 1,241.00 4. Residence Mortgage 159,000.00
Soffar 5. Townhouse Mortgages 86,000.00
5. Accting. Fees-- 6. Corpus Christi 64,930.00
Carroll N. Mortgages
Thompson 4,400.00
------------ ------------
TOTAL: $ 55,104.00 TOTAL $ 409,251.00
------------------- --------------------------
TOTAL NET (16,413.00) TOTAL NET $ 323,839.00
------------------- --------------------------
Money Judgment k 185,000.00 Money Judgment - 185,000.00
------------ ------------
NET AWARD: $ 168,587.00 NET AWARD: $ 138,839.00
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WIFE = 54% of Net Estate
HUSBAND = 46% of Net Estate
The cash judgment awarded to appellant was ordered to be paid as follows: 1) $40,000 paid on or before June 1, 1983 and 2) $2000 per month beginning with the first payment on July 1, 1983 and continuing every month thereafter until the $185,000 judgment is completely paid based upon a 9% annual interest rate on the unpaid balance. Appellee is not obligated to completely pay the judgment before July 1, 1989. The court did not grant appellant any lien or security for the judgment.
The appellant essentially contends in her first, fourth, and fifth points of error that the trial court's division of the community property and liabilities was so unjust and unfair as to constitute abuse of discretion requiring reversal. Article 3.63 of Vernon's Texas Family Code, V.T.C.A. provides:
In a decree of divorce or annulment the court shall order a division of the estate of the parties in a manner that the court deems fair and right, having due regard for the rights of each party and any children of the marriage.
The court's duty is to make equitable division of the estate, considering the conditions and needs of the parties and all the surrounding circumstances. Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002 (1950). The trial court's discretion in dividing the estate of the parties should be corrected on appeal only where an abuse of discretion is shown in that the disposition of the estate is manifestly unfair and unjust. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923); Murff v. Murff, 615 S.W.2d 696 (Tex.1981).
Appellant contends that the trial court did not properly consider and evaluate 1) the benefit which appellant, as the spouse not at fault, would have derived from the estate of appellee through a continuance of the marriage and 2) the disparity of earning power, business opportunities, and capabilities between the parties in its division of the community estate.
The Supreme Court has held in Young v. Young, 609 S.W.2d 758, 762 (Tex.1980), that a trial court may consider fault in the division of the property, but it is not required to consider fault in all cases where a divorce is granted on fault grounds. In this case there is conflicting evidence concerning the issue of fault. Even if the trial court did not consider fault at all, this would not constitute an abuse of discretion requiring reversal.
Appellee is a licensed obstetrician/gynecologist and has a future earning capacity of about $200,000 per year while appellant's earning capacity is about $12,000 per year. Appellant received about 54% of the net community estate. The net value of the estate received by appellant including the cash judgment is about $168,000. She was awarded $2000 per month as support for the two children placed in her custody.
Apart from extraneous considerations a trial court fulfills its duty to divide the estate equitably if it awards each party half of the community estate. A trial court has discretion to award one party more than half the estate because of a large disparity in the earning capacities of the parties. Murff v. Murff, 615 S.W.2d 696, 699 (Tex.1981). However, we cannot say that a large disparity in earning capacities requires the trial court to award substantially more than half of the estate to the spouse with the lesser earning capacity. This is especially true in the circumstances of this cause where appellant has received property of substantial value, reasonable child support and there is no showing that appellant had financial needs in excess of the property awarded to her. Although the disparity in earning capacities between the parties may have justified awarding appellant a larger portion of the estate, we hold that the trial court's approximately equal division of the estate was not manifestly unfair and fell within the bounds of its discretion.
Appellant complains that the trial court's division was inequitable because the trial court failed to consider $8000 of attorney's fees expended by appellee. She asserts that these fees were paid with community funds and that it was error for the trial court to not have awarded her reimbursement for her share of these funds. Because there are no findings of fact, we cannot determine whether the trial court considered these matters in its division of the estate; therefore appellant has waived this complaint.
Appellant's points of error one, four and five are overruled.
Appellant contends in her second point of error that trial court abused its discretion in awarding the majority of the community property to appellee and in compensating for the difference by awarding appellant a money judgment. Appellant asserts that a trial court should partition property in kind to achieve an equitable division of the estate and that an award of a money judgment should only be used in lieu of partition to avoid fractionalizing items of the estate. Murff v. Murff, 601 S.W.2d 116, 121 (Tex.Civ.App....
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