Lucy v. Lucy

• Decision Date: 12 April 2005
• Docket Number: No. 08-02-00523-CV.,08-02-00523-CV.
• Citation: 162 S.W.3d 770
• Parties: Paul LUCY, Appellant, v. Joan Waugh LUCY, Appellee.
• Court: Texas Supreme Court

162 S.W.3d 770

Paul LUCY, Appellant, v. Joan Waugh LUCY, Appellee.

No. 08-02-00523-CV.

Court of Appeals of Texas, El Paso.

April 12, 2005.

John P. Mobbs, El Paso, for Appellant.

Karen L. Landinger, Ray, Valdez, McChristian & Jeans, P.C., El Paso, for Appellee.

Before Panel BARAJAS, C.J., McCLURE, and CHEW, JJ.

OPINION

ANN CRAWFORD McCLURE, Justice.

This is an appeal from a division of property incident to divorce. At issue is an amorphous award of "reimbursement" in favor of Joan Lucy which is also characterized in the final decree as a judgment to equalize division. On appeal, Paul Lucy complains that the evidence is legally or factually insufficient to support the reimbursement award. For the reasons that follow, we affirm.

FACTUAL SUMMARY

The parties were married in 1991 and separated in 1996. Each had children from a prior marriage and considerable separate property. A decree of divorce was entered in December 1996. When disputes arose concerning the division of property, Paul filed a petition for bill of review and Joan sought post-judgment partition of previously undivided assets. The trial court set aside the decree and following a bench trial, rendered judgment confirming the parties' separate property and dividing the community estate.

As Paul frames the issues, this appeal concerns Joan's recovery upon two reimbursement claims. The first relates to rental income. At the time of the marriage, Paul owned a home located at 10632 Quezada Street. During the marriage, the parties resided in Joan's house located at 10900 Dave Marr. Characterization of these houses is not in issue. When the parties separated, Paul told Joan that he could not move back in to the Quezada property because it had been rented. Joan claimed that she did not know the property had been rented, nor had she seen any of the rental income. She sought to recover $43,200, representing the rental income from the property during marriage. The second issue relates to the depletion of a bank account. Prior to marriage, Joan's checking account contained $53,947.84. She added Paul's name to the account and gave him free access to write checks as he saw fit. Joan listed the account as community property on her inventory, and the parties ultimately stipulated to characterization at trial. At that time, the account balance was $10,244.72. In her testimony, Joan highlighted unusual withdrawals Paul had made. For example, she testified that one month he had withdrawn $13,000 but she never found out why. She claimed that Paul wrote checks totaling $170,348. She requested reimbursement for $43,703.12, representing the difference in the beginning and ending balance of the account.

THE NATURE OF THE PLEADINGS

In her pleadings, Joan alleged that Paul had committed economic torts against the community estate as well as spousal torts against her personally as a result of the transmission of a sexually transmissible disease, assault, and intentional infliction of emotional distress. Applicable to our analysis, Joan sought a disproportionate division based upon fault in the breakup of the marriage, the wasting of community assets, the size and nature of the parties' separate estates, common law reimbursement, statutory reimbursement (economic contribution),¹ Jensen² reimbursement breach of fiduciary duty, mismanagement of the marital estate, and fraud. She also sought "a judgment against [Paul] for the losses to the community estate and [Joan], occasioned by the improper conduct of [Paul]."

TERMS OF THE DECREE

The final decree contains the following paragraph:

Judgment and Lien to Equalize Division

The Court finds that each party has claims for reimbursement and the court having considered the evidence and the merits of such claim and, having offset said claims, further finds that [Joan] is entitled to a judgment against [Paul] in the amount of $28,000.00.

All other claims for reimbursement were denied. The decree also specifies that Joan was granted a divorce on the ground of cruelty.

FINDINGS OF FACT

Paul requested that the trial court prepare both traditional and statutory findings of fact and conclusions of law. See TEX.FAM.CODE ANN. 6.711; TEX.R.CIV.P. 296. The statute limits the required findings to (1) the characterization of each party's assets, liabilities, claims, and offsets on which disputed evidence has been presented; and (2) the value or amount of the community estate's assets, liabilities, claims, and offsets on which disputed evidence has been presented. It does not restrict the court's ability to make additional findings pursuant to Rule 296. In this instance, however, the trial court entered only the statutory findings and the record does not reveal that additional findings were requested. Pertinent to our analysis, the court found:

VALUE OF CLAIMS AND OFFSETS

Reimbursement Claims of [Paul]

1) For community time, toll, [sic] efforts and funds used to improve wife's separate home (residence of parties) @ 1900 Dave Marr, El Paso, Texas.

Amount Claimed: $78,000

Amount Found by Court: $23,500

* * * * *

Reimbursement Claims of [Joan]

1) For reimbursement on rental income received by Husband from rental of his separate property house at 10632 Quezada St., El Paso, Texas. Mrs. Lucy claimed she had no knowledge he was renting his house and receiving income. Rented for 36 months.

Amount Claimed: (36 mos × $1,200 mo.) = $43,200

Disposition: Claim allowed

* * * * *

6) Reimbursement for Mrs. Lucy's separate property funds used by Mr. Lucy for various purposes (some known, some unknown to her, as itemized by amounts in account exhibits). Funds from wife's s/p³ account at GECU # 8050037

Amount Claimed: $43,703

Amount found by Court from evidence: $9,148.80

Offsets as determined by Court

The husband's allowed claim for $23,500 for improvements done to wife's s/p home (the residence of the parties), was offset against the wife's allowed claim of $43,200 for the husband's rental income. The resulting balance of $19,700 was added to the other claim allowed to the wife for $9,148 on her claim for separate property funds used by Mr. Lucy.

Net Balance on Reimbursement Claims: A $28,848 reimbursement owed by Mr. Lucy to Mrs. Lucy.

The court further entered a finding of fault against Paul "for considerable emotional and physical abuse."

SUFFICIENCY OF THE EVIDENCE

In his first issue for review, Paul challenges the sufficiency of the evidence to support reimbursement for rental income. His second issue complains that the evidence is insufficient to support reimbursement of money Paul withdrew from Joan's bank account. Our analysis must of necessity employ overlapping appellate standards of review. We first address the distinctions between them and how they overlap in the family law arena.

Standards of Review

Traditional Sufficiency Review

In considering a legal sufficiency or "no evidence" point, an appellate court considers only the evidence which tends to support the jury's findings and disregards all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); Worsham Steel Co. v. Arias, 831 S.W.2d 81, 83 (Tex.App.-El Paso 1992, no writ). If any probative evidence supports the jury's determination, it must be upheld. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951); Neily v. Aaron, 724 S.W.2d 908, 913 (Tex.App.-Fort Worth 1987, no writ).

A factual sufficiency point requires examination of all of the evidence in determining whether the finding in question is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 244 S.W.2d at 660; Worsham Steel Co., 831 S.W.2d at 81. The reviewing court cannot substitute its conclusions for those of the jury. If there is sufficient competent evidence of probative force to support the finding, it must be sustained. Carrasco v. Goatcher, 623 S.W.2d 769 (Tex.App.-El Paso 1981, no writ). It is not within the province of this court to interfere with the jury's resolution of conflicts in the evidence or to pass on the weight or credibility of the witness's testimony. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792 (1951); Reynolds v. Kessler, 669 S.W.2d 801, 807 (Tex.App.-El Paso 1984, no writ). Where there is conflicting evidence, the jury's verdict on such matters is generally regarded as conclusive. Clark v. National Life & Accident Ins. Co., 145 Tex. 575, 200 S.W.2d 820, 821 (1947); Oechsner v. Ameritrust Texas, N.A., 840 S.W.2d 131, 136 (Tex.App.-El Paso 1992, writ denied). In a bench trial, findings of fact are the equivalent of a jury answer to the special issues. Associated Telephone Directory Publishers, Inc. v. Five D's Publishing Co., Inc., 849 S.W.2d 894, 897 (Tex.App.-Austin 1993, no writ); Lorensen v. Weaber, 840 S.W.2d 644 (Tex.App.-Dallas 1992), rev'd on other grounds sub nom.; Exxon Corp. v. Tidwell, 816 S.W.2d 455, 459 (Tex.App.-Dallas 1991), rev'd on other grounds, 867 S.W.2d 19 (Tex.1993); A-ABC Appliance of Texas, Inc. v. Southwestern Bell Tel. Co., 670 S.W.2d 733, 736 (Tex.App.-Austin 1984, writ ref'd n.r.e.).

Abuse of Discretion Standard

Most of the appealable issues in a family law case are evaluated against an abuse of discretion standard, be it the issue of property division incident to divorce or partition, conservatorship, visitation, or child support. Tate v. Tate, 55 S.W.3d 1, 5-6 (Tex.App.-El Paso 2000, no pet.). An appeal directed toward demonstrating an abuse of discretion is one of the tougher appellate propositions. While the appellant may challenge the sufficiency of the evidence to support findings of fact, in most circumstances, that is not enough. If, for example, an appellant is challenging the sufficiency of the evidence to support the court's valuation of a particular asset, he must also contend that the erroneous valuation caused the court to abuse its discretion in the overall division of the community estate.

The term "abuse of discretion" is not...