Newberry v. Newberry

• Decision Date: 14 September 2011
• Docket Number: No. 08–10–00062–CV.,08–10–00062–CV.
• Citation: 351 S.W.3d 552
• Parties: Ruel NEWBERRY, Appellant, v. Brisa NEWBERRY, Appellee.
• Court: Texas Court of Appeals

351 S.W.3d 552

Ruel NEWBERRY, Appellant,

v.Brisa NEWBERRY, Appellee.

No. 08–10–00062–CV.

Court of Appeals of Texas, El Paso.

Sept. 14, 2011.

Marlene Gonzalez, El Paso, TX, for Appellant.

Brisa Newberry, El Paso, TX, pro se.

Before CHEW, C.J., McCLURE, and RIVERA, JJ.

OPINION

DAVID WELLINGTON CHEW, Chief Justice.

Appellant appeals a final divorce judgment, arguing that the evidence at trial was legally insufficient to support a finding of cruelty, legally and factually insufficient to support a finding of adultery, and that the division of the community estate was disproportionate to him.

Mr. Ruel Newberry and Ms. Brisa Newberry were married on September 1, 2002. Before marriage, they entered into a prenuptial agreement. After living in Tucson, Arizona for some years, where Appellee earned a Master's in Business Administration, and Appellant worked as an engineer, they moved to El Paso, Texas after Appellee's father, Victor Villalobos (“Mr. Villalobos”) offered each of them jobs. They owned a home in Arizona and bought a second house in El Paso on Oscar Perez Avenue.

Appellee filed for divorce on March 5, 2008. Appellant filed a general denial, and then a counterpetition. In his counterpetition, he sought a disproportionate division of the community estate based on fault grounds, among others.

The trial court held a hearing on this matter on various dates from March 2009 through September 2009, and at the end of trial, the court declared the parties divorced. The trial court rendered judgment on October 6, 2009, entering a judgment in final divorce/annulment and a final divorce decree on January 28, 2010. In its final decree, the court granted Appellee divorce from Appellant “on the grounds of insupportability, adultery and cruelty.” Upon Appellant's request, the court filed findings of fact and conclusions of law on March 8, 2010 to support its judgment. In its findings of fact, the trial court determined in part:

5. The legitimate ends of the marriage between Petitioner and Respondent had been destroyed because Respondent, Ruel Newberry, committed adultery during the marriage and because Ruel Newberry was guilty of cruel treatment towards Brisa Newberry, which renders the parties further living together insupportable and such behavior by Respondent prevents any reasonable expectation of reconciliation. In addition thereto, the marriage of Petitioner and Respondent had become insupportable because of discord and conflict of personalities that destroyed the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation.

On February 19, 2010, Appellant filed his notice to appeal the court's judgment.

In his first two issues, Appellant challenges the legal and factual sufficiency of the evidence to support the adultery finding and the legal sufficiency of the evidence to support the cruelty finding, which were the bases for the disproportionate award of the marital estate going to Appellee.

When reviewing the record to determine whether there is legally sufficient evidence to support the judgment, we examine only the evidence and inferences that support the verdict. Minnesota Min. and Mfg. Co. v. Nishika Ltd., 953 S.W.2d 733, 738 (Tex.1997); Henry v. Henry, 48 S.W.3d 468, 474 (Tex.App.-Houston [14th Dist.] 2001, no pet.). If more than a scintilla of evidence exists to support the lower court's finding, the legal sufficiency challenge fails. Minnesota Min. and Mfg. Co., 953 S.W.2d at 738; Henry, 48 S.W.3d at 473. “More than a scintilla of evidence exists where the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Henry, 48 S.W.3d at 473, citing Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). In a factual sufficiency review, we examine all the evidence in the record, both for and against the lower court's findings, and reverse only if it is so against the great weight of the evidence as to be clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996).

Appellant asserts the trial court erred in finding that he committed adultery based only on Appellee's testimony that he was in a room with his high school sweetheart with the door closed and lights off for more than twenty minutes. He claims that “[g]iven the motive of Brisa to fabricate an adultery claim (going through a divorce involving the disputed division of thousands of dollars of property and liabilities) and circumstances under which this evidence was acquired (just before Appellant and Appellee separated), very little weight should be given to this sparse and nebulous testimony.” Appellant concludes that because the trial court erred in granting Appellee a divorce on the fault ground of adultery, we should remand this case in order for the trial court to reconsider its division of the community estate.

Adultery can be shown by circumstantial evidence. See Morrison v. Morrison, 713 S.W.2d 377, 380 (Tex.App.-Dallas 1986, writ dism'd). At trial, Appellee testified Appellant admitted to her that when he attended a party at a friend's house, he went into a room with his high school sweetheart, Liza, and stayed in there with her with the doors closed and lights off for more than twenty minutes. She testified that this happened after she and Appellant had ceased being sexually intimate. Appellant testified that he never did anything wrong outside of the marriage, but admitted that he viewed pornography online because Appellee had refused to have sex. We defer to the fact finder's determination with regard to credibility and weight to be given their testimony, and conclude that the evidence was legally and factually sufficient to support the trial court's finding of adultery as a basis for the divorce. See Tex.Fam.Code Ann. § 6.704(b) (West 2006); see Morrison, 713 S.W.2d at 380 (concluding adultery can be shown by circumstantial evidence).

In Issue One, Appellant contends that Appellee was not entitled to a divorce on the fault ground of cruelty because the evidence was legally insufficient to support this finding. The sufficiency and weight of the evidence necessary to prove cruelty under the trial court's standard of proof must, of necessity, be left to the sound discretion of the trier of fact. In re Marriage of Rice, 96 S.W.3d 642, 648 (Tex.App.-Texarkana 2003, no pet.). We shall not disturb the trial court's finding of cruelty absent abuse of discretion. Id. at 648. In a divorce proceeding, one party's testimony may alone be sufficient to support the judgment. Henry, 48 S.W.3d at 474 (finding husband's testimony, by itself, would support trial court's judgment and therefore no abuse of discretion); Ingram v. Ingram, 376 S.W.2d 888, 888–89 (Tex.Civ.App.-Waco 1964, no writ)(wife's uncorroborated testimony satisfies test for sufficiency).

Appellant argues that the court erred in concluding that he engaged in “cruelty” based on the sole evidence in the form of Appellee's testimony that “she caught Ruel on several occasions viewing pornographic materials and masturbating” as he did so. He argues that this conduct at most showed that he was suffering from a psychological condition or disorder, which required professional treatment, and not that he “willfully inflicted suffering on his wife.” According to Appellant, the evidence does not support a finding that he engaged in cruel treatment of Appellee because there was nothing “willful” about his conduct. Appellant's complaint, again, goes to fault as a basis for the disproportionate property division.

Although infrequent since the introduction of no-fault divorce, a Texas court may still grant a divorce on the ground of cruel treatment. Henry, 48 S.W.3d at 473. A spouse's conduct rises to the level of cruel treatment when his or her conduct renders the couple's living together insupportable. Id., citing Tex.Fam.Code Ann. § 6.002; Finn v. Finn, 185 S.W.2d 579, 582 (Tex.Civ.App.-Dallas 1945, no writ). “Insupportable” means “incapable of being borne, unendurable, insufferable, intolerable.” Henry, 48 S.W.3d at 473–74, citing Cantwell v. Cantwell, 217 S.W.2d 450, 453 (Tex.Civ.App.-El Paso 1948, writ dism'd). Mere disagreements or trifling matters will not justify granting a divorce for cruelty. Shankles v. Shankles, 445 S.W.2d 803, 807 (Tex.Civ.App.-Waco 1969, no writ). If, for instance, the complaining spouse suffers only nervousness or embarrassment, a trial court may not grant the divorce on the ground of cruelty. Golden v. Golden, 238 S.W.2d 619, 621 (Tex.Civ.App.-Waco 1951, no writ). Abuse need not be limited to bodily injury; nonetheless, physical abuse will support granting a divorce on cruelty grounds. Waheed v. Waheed, 423 S.W.2d 159, 160 (Tex.Civ.App.-Eastland 1967, no writ); Cote v. Cote, 404 S.W.2d 139, 140 (Tex.Civ.App.-San Antonio 1966, writ dism'd); Blackburn v. Blackburn, 163 S.W.2d 251, 255 (Tex.Civ.App.-Amarillo 1942, no writ). Acts occurring after separation may be used to support a finding of cruelty. Redwine v. Redwine, 198 S.W.2d 472, 473 (Tex.Civ.App.-Amarillo 1946, no writ).

Adultery may be considered to be cruelty sufficient to support the grant of a divorce on that ground. Winkle v. Winkle, 951 S.W.2d 80, 90–1 (Tex.App.-Corpus Christi 1997, writ denied) (concluding evidence of husband's adultery could support trial court's finding of cruel treatment). The accumulation of several different acts of cruelty may constitute sufficient grounds on which to grant a divorce. Hester v. Hester, 413 S.W.2d 448, 450 (Tex.Civ.App.-Tyler 1967, no writ); Emerson v. Emerson, 409 S.W.2d 897, 900 (Tex.Civ.App.-Corpus Christi 1966, no writ); Wauer v. Wauer, 299 S.W.2d 719, 721 (Tex.Civ.App.-Amarillo 1957, no writ).

At trial, Appellee testified that she caught Appellant viewing pornographic materials on television and on the Internet, and masturbating to them numerous times since 2003. Appellee testified that when she co...