In the Matter of Marriage of Loggins, No. 06-05-00130-CV (Tex. App. 7/25/2006)

• Court: Texas Court of Appeals
• Writing for the Court: Carter
• Decision Date: 25 July 2006
• Docket Number: No. 06-05-00130-CV.,06-05-00130-CV.
• Citation: In the Matter of Marriage of Loggins, No. 06-05-00130-CV (Tex. App. 7/25/2006), No. 06-05-00130-CV. (Tex. App. Jul 25, 2006)
• Parties: IN THE MATTER OF THE MARRIAGE OF LAQUITA ANN LOGGINS AND MICHAEL O'NEAL LOGGINS.

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IN THE MATTER OF THE MARRIAGE OF LAQUITA ANN LOGGINS AND MICHAEL O'NEAL LOGGINS.

No. 06-05-00130-CV.

Court of Appeals of Texas, Sixth District, Texarkana.

Submitted: May 4, 2006.

Decided: July 25, 2006.

On Appeal from the 6th Judicial District Court, Red River County, Texas, Trial Court No. CV00574.

Before MORRISS, C.J., CARTER and ROSS, JJ.

MEMORANDUM OPINION

Memorandum Opinion by Justice CARTER.

The trial court granted Michael O'Neal Loggins and LaQuita Ann Loggins¹ a divorce, divided their property, and granted LaQuita a $25,000.00 judgment against Michael. The marriage was very brief—they married May 30, 2004, and separated about July 30, 2004. Likewise, the divorce hearing was brief—consisting of twenty-seven pages of transcribed testimony. Michael contends: (1) the evidence is factually insufficient to support a $25,000.00 judgment, (2) the trial court abused its discretion in the division of the community property, (3) the trial court erred in failing to grant a new trial based on newly discovered evidence, and (4) the trial court erred in failing to grant Michael a continuance.

I. Factual Sufficiency to Support the $25,000.00 Judgment

LaQuita was granted a $25,000.00 judgment against Michael. The judgment specified that the $25,000.00 award was granted for two reasons: (1) a just and right division of the community property and (2) damages caused by Michael to LaQuita. We will examine reasons specified by the trial court for the award.

A. Judgment As a Division of the Community Property

To disturb a trial court's division of property, it must be shown that the trial court clearly abused its discretion by dividing the property in a manner that is manifestly unjust and unfair. In making this determination, we look to whether the trial court acted arbitrarily or unreasonably, without reference to any guiding rules or principles. Our analysis focuses on a two-pronged inquiry: (1) Did the trial court have sufficient information on which to exercise its discretion and (2) Did the trial court abuse its discretion by causing the property division to be manifestly unjust or unfair? A trial court abuses its discretion when it rules without supporting evidence. See O'Carolan v. Hopper, 71 S.W.3d 529, 532-33 (Tex. App.-Austin 2002, no pet.).

We first note that, in the brief submitted to this Court, LaQuita defends the judgment only on the basis of the tort allegedly committed by Michael against LaQuita and does not argue that it is justified based on a division of community property. The divisible community property identified by the parties consisted of patio furniture, a computer, personal effects, and approximately $4,700.00 from a bank account. As will be discussed later, the trial court divided that property and ordered LaQuita to pay Michael $2,000.00 (by offset from her $25,000.00 judgment) of the $4,700.00 from the bank account. A trial court may order a judgment from one spouse to the other in an effort to effect an equitable division of the community property. Schlueter v. Schlueter, 975 S.W.2d 584, 588 (Tex. 1998). However, since the amount of the judgment is directly referable to the value of the community estate, the judgment may not exceed the entire community estate unless it is shown that one party committed fraud on the community by improperly disposing of property. See Lucy v. Lucy, 162 S.W.3d 770 (Tex. App.-El Paso 2005, no pet.). Here, the value of the entire community estate was substantially less than $25,000.00. There is no pleading or evidence that Michael committed fraud on the community estate or has depleted the community such that it is not possible to equitably divide the community property. Therefore, it was an abuse of discretion to award a $25,000.00 judgment for the purpose of effecting a fair and just division of the community estate.

B. Judgment Based on Tort Damages

In LaQuita's petition for divorce, she alleged Michael had intentionally and knowingly assaulted her on or about July 23, 2004, causing bodily injury.² She also alleged such acts constituted an intentional infliction of emotional distress.³ At the divorce hearing, Michael was asked if he attempted to kill his wife in July 2004, to which he replied, "I would like to invoke my Fifth Amendment rights." He also invoked his right to remain silent to questions about allegations by other wives of physical abuse, violations of protective orders, a history of violence toward women, changing the locks on the house, and the description of any community property acquired during the marriage. LaQuita testified that, on July 24, 2004, Michael mixed a drink for her and she passed out. She alleges that it contained cocaine and Valium. She apparently was hospitalized and incurred $4,000.00—$5,000.00 in medical expenses. LaQuita further testified that, after the incident, she was "near death." As a result of that event, Michael has been indicted for aggravated assault. Based on these allegations, LaQuita argues the trial court properly granted her a tort recovery of $25,000.00.

Michael argues that there is factually insufficient evidence to justify a finding of assault or a tort committed against his wife and also argues that the amount of the award is not supported by factually sufficient evidence. In a factual sufficiency review, we review all of the evidence to determine whether the evidence supporting the finding is so weak or the evidence to the contrary so overwhelming that the finding should be set aside and a new trial granted. Garza v. Alviar, 395 S.W.2d 821 (Tex. 1965).

There were pleadings and proof that Michael committed the tort—the testimony of LaQuita is some evidence she was injured as a result of consuming the drink he prepared for her. Additionally, Michael elected to invoke his Fifth Amendment right to remain silent when asked about the incident. While Michael has the right to invoke his privilege not to incriminate himself, in civil cases invoking that right may have negative consequences. A fact-finder may draw an adverse inference against a party who pleads the Fifth Amendment. Tex. Capital Sec., Inc. v. Sandefer, 58 S.W.3d 760, 779 (Tex. App.-Houston [1st Dist.] 2001, pet. denied) (citing Baxter v. Palmigiano, 425 U.S. 308, 318 (1975)); see also Tex. R. Evid. 513(c). Refusal to answer questions by asserting the privilege is relevant evidence from which the finder of fact in a civil action may draw whatever inference is reasonable under the circumstances. Lozano v. Lozano, 983 S.W.2d 787, 791 (Tex. App.-Houston [14th Dist.] 1998), rev'd on other grounds, 52 S.W.3d 141 (Tex. 2001). Therefore, based on LaQuita's testimony and the inference that may reasonably be drawn by the trier of fact by Michael's invocation of his Fifth Amendment right, there is factually sufficient evidence to prove the assault. Therefore, we will review the evidence to determine if it is factually sufficient to support the amount of the award.

It is established that a tort claim may be joined in a divorce action. Twyman v. Twyman, 855 S.W.2d 619, 624 (Tex. 1993). We must examine the evidence to determine if it is factually sufficient, just as we would any other tort action. In this case, the evidence concerning the tort is very scant.⁴ LaQuita's evidence on this subject is contained on three pages of the trial record. She testified that, after consuming the drink prepared by Michael, she passed out and thereafter incurred medical expenses of $4,000.00—$5,000.00 as a result of her "hospital stay." When asked her condition after the incident, she replied "near death." She also stated she was afraid of Michael.

The evidence raises elements of damages for medical expenses, physical pain, and mental anguish. The medical expenses are unchallenged as being $4,000.00—$5,000.00. That would necessarily mean that the additional $20,000.00—$21,000.00 was awarded for LaQuita's physical pain and mental anguish. The only direct evidence that may relate to the pain she suffered is her statement that she was "near death." The existence of conscious pain and suffering may be established by circumstantial evidence. Sunbridge Healthcare Corp. v. Penny, 160 S.W.3d 230, 248 (Tex. App.-Texarkana 2005, no pet.). Mental anguish damages generally require a showing of direct evidence of the nature, duration, and severity of the mental anguish, thus establishing a substantial disruption in the daily routine. Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 54 (Tex. 1997); Saenz v. Fid. & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996); Penny, 160 S.W.3d at 251. Historically, some types of disturbing or shocking injuries have been found sufficient to support an inference that the injury was accompanied by mental anguish. Generally, qualifying events have demonstrated a threat to one's physical safety or reputation or involved the death of, or serious injury to, a family member. Penny, 160 S.W.3d at 251 (citing Parkway Co. v. Woodruff, 925 S.W.2d 434, 445 (Tex. 1995)).

We find the evidence of conscious pain and mental anguish is extremely meager. LaQuita testified she was unconscious after consuming the drink. Since the injury is an objective one for which she was hospitalized, it may be inferred or presumed that she endured some pain as a consequence. Penny, 160 S.W.3d at 248. However, no other evidence was presented concerning conscious pain and suffering. As to mental anguish, the evidence is altogether lacking concerning its nature, duration, or severity. We find that the evidence is factually insufficient to support the award for pain and mental anguish, and we suggest a remittitur of $10,000.00 from the $25,000.00 judgment.

II. Division of Community Property

As discussed, the trial court granted the $25,000.00 judgment for two reasons: 1) division of the property and 2) tort damages. We have found that it was proper to award a judgment for tort damages, though the evidence is factually insufficient to support the entire...