In re In re Mozley
| Decision Date | 12 August 2016 |
| Docket Number | No. 06-16-00004-CV,06-16-00004-CV |
| Parties | IN THE MATTER OF THE MARRIAGE OF LISA MOZLEY AND WILLIAM MOZLEY, AND IN THE INTEREST OF F.M., A CHILD |
| Court | Court of Appeals of Texas |
On Appeal from the 303rd District Court Dallas County, Texas
Before Morriss, C.J., Moseley and Burgess, JJ.
After a voyage of almost twenty-nine years, the marriage of Lisa Mozley and William "Rick" Mozley unfortunately hit the rocks. The wave that finally broke over the marriage and drove it ashore was Rick's admitted extramarital affair with family "friend," Mollie. To be sure, there had been other waves pushing the marriage toward its dissolution. Rick had admitted to an earlier affair, adding to a still earlier affair Lisa had had. Other less devastating waves that played a role in the marriage's end included persistent disagreements concerning money, intimacy, and what values to teach their children.
The couple sought and received a divorce. Though they had asserted grounds that included insupportability, Rick's infidelity, and Lisa's cruelty, the Dallas County1 trial court, after a year of contentious litigation and three days of trial, granted the divorce based on insupportability, awarded each party his or her separate property, divided the community assets proportionately, and denied Lisa's request for spousal maintenance. Lisa appeals, urging multiple grounds for reversal.
We affirm the trial court's judgment because (1) it was within the trial court's discretion to base the divorce on insupportability, (2) it was within the trial court's discretion not to award Lisa a disproportionate share of the marital estate and not to award spousal maintenance, and (3) the trial court's response times were not unreasonable.
Each of Lisa's issues is to be reviewed using an abuse-of-discretion standard. Applewhite v. Applewhite, No. 02-12-00445-CV, 2014 WL 787828, at *1 (Tex. App.—Fort Worth Feb. 27, 2014, no pet.) (mem. op.); see also Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981); Pickens v. Pickens, 62 S.W.3d 212, 214 (Tex. App.—Dallas 2001, pet. denied). An abuse of discretion occurs if the trial court acts without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); In re Marriage of Ford, 435 S.W.3d 347, 350 (Tex. App.—Texarkana 2014, no pet.). Under the abuse-of-discretion standard, legal and factual sufficiency of the evidence are relevant factors in determining whether the trial court abused its discretion. Pickens, 62 S.W.3d at 214.
No findings of fact or conclusions of law appear in this record. Therefore, we are to presume that the trial court "made all findings necessary to support its judgment[,] and we affirm if there is any legal theory sufficiently raised in the evidence in support of the judgment." Endsley Elec., Inc. v. Altech, Inc., 378 S.W.3d 15, 21 (Tex. App.—Texarkana 2012, no pet.) (citing Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003)); see Rosemond v. Al-Lahiq, 331 S.W.3d 764, 766-67 (Tex. 2011). However, since the reporter's and clerk's records were filed, these implied findings are not conclusive, and the legal and factual sufficiency of the evidence may be challenged. Nat'l Fire Ins. Co. of Hartford v. CE Design, Ltd., 429 S.W.3d 806, 810 (Tex. App.—Dallas 2014, no pet.).
Lisa and Rick were married June 29, 1985. For the first sixteen years of their marriage, Lisa worked as a school teacher. She quit teaching when their youngest child was born. In thesecond year of their marriage, Rick was hired by Judd, Thomas, Smith & Company, a prominent certified public accounting firm. He became a partner in the firm around 1997. The couple had two children, Andrew and Farish, who were twenty-five and nineteen years of age, respectively, at the time of trial. During the course of their marriage, Lisa and Rick amassed a sizeable community estate, including their marital home, a ranch, Rick's partnership interest, Rick's 401k plan at his firm, Lisa's retirement benefits from teaching, and investments. In addition, Lisa inherited oil and gas interests, stocks, and royalty income from her grandparents.
In February 2014, Rick began an extramarital affair with Mollie. Then, on March 28, Rick asked Lisa for a divorce. When asked if he was having an affair, Rick initially denied it. Lisa soon discovered the truth and filed this action.
The trial court granted the divorce based on insupportability. Lisa complains that the trial court erred in failing to grant her a divorce based on Rick's adultery. She argues that, since Rick admitted to his ongoing affair with Mollie and the earlier extramarital affair, and because he showed no remorse, the trial court should have granted her a divorce on the grounds of adultery. "On the petition of either party to a marriage, the court may grant a divorce without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation." TEX. FAM. CODE ANN. § 6.001 (West 2006). This provision gives the trial court discretion to grant a divorce based on insupportability when there is legally and factually sufficient evidence to support such a finding. In re S.B.H., No. 05-14-00585-CV, 2016 WL 462495, at *6 (Tex. App.—Dallas Feb. 5, 2016, no pet.) (mem. op.); Baker v. Baker, 469 S.W.3d 269, 279-80(Tex. App.—Houston [14th Dist.] 2015, no pet.). Unlike the at-fault grounds for divorce, this provision "does not require the trial court to grant a divorce to either party." Clay v. Clay, 550 S.W.2d 730, 733 (Tex. Civ. App.—Houston [1st Dist.] 1977, no writ); see, e.g., TEX. FAM. CODE ANN. § 6.003 (West 2006) ().
Lisa does not challenge the sufficiency of evidence supporting the trial court's granting of the divorce based on insupportability. Certainly, the evidence supports the trial court's judgment. At trial, Lisa testified that there had always been issues regarding money, intimacy, and sex. Although she sought counseling, Rick only attended a few sessions. She also testified that, early in the marriage, she had an extramarital affair that continued to be a source of irritation during the marriage. Lisa testified that, after she discovered his affair, she moved out of the marital home in Dallas and eventually moved to Austin to avoid seeing Rick with Mollie. She also testified of Rick's deceit in allowing Lisa to use her separate property to fund part of the purchase price of their ranch when he had had an extramarital affair a few months earlier. Lisa accused Rick of cruelty in carrying on the affair with Mollie and allowing her to insinuate herself into their lives. Rick testified that he had been unhappy in the marriage for a long time and that he had not felt any sense of partnership with Lisa in the marriage since before 2010. He admitted to his extramarital affair with Mollie. He also testified that he had had another extramarital affair in 2010 that Lisa did not know about until after the divorce was filed. He maintained that Lisa and he had disagreed over money their entire marriage and that he disagreed with Lisa over the morals and values to be taught to their children. In addition, Lisa testified that she had attempted to reconcile with Rick,but had been unsuccessful. This is sufficient evidence to support the granting of the divorce based on insupportability.
No doubt, given Rick's admissions, the evidence would also support a finding of adultery. See TEX. FAM. CODE ANN. § 6.003. However, Section 6.003 is also discretionary. S.B.H., 2016 WL 462495, at *7; Applewhite, 2014 WL 787828, at *1; Lisk v. Lisk, No. 01-04-00105-CV, 2005 WL 1704768, at *5 (Tex. App.—Houston [1st Dist.] July 21, 2005, no pet.) (mem. op.). When there is evidence of both insupportability and adultery, the trial court has discretion to grant the divorce on either ground. S.B.H., 2016 WL 462495, at *7. In such cases, the trial court does not abuse its discretion by granting a divorce based solely on insupportability. Id.; see also Baker v. Baker, 469 S.W.3d 269, 280 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (when evidence could support granting of divorce on both cruelty and insupportability, no abuse of discretion to grant divorce solely on the basis of insupportability); Applewhite, 2014 WL 787828, at *1-2 (). Here, the trial court did not abuse its discretion in granting the divorce based on insupportability.
Lisa also complains that the trial court erred in not considering fault in the marriage and in not awarding her a disproportionate share of the community estate and spousal maintenance. Lisa's primary argument is that the trial court should have found fault because of Rick's admitted adultery and that it should have awarded her, as the innocent spouse, the benefits she would expect from the continuation of the marriage. This would include both a disproportionate portion of thecommunity estate and spousal maintenance. Lisa also points out that Rick's earning capacity, as a partner in a successful CPA firm, greatly exceeds her earning capacity as a teacher and one that has not taught in twenty years.
In its decree, the trial court is required to order a division of the community estate in a manner that it deems just and right, having...
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