Smith v. Smith, 10-00-00409-CV.

• Decision Date: 23 June 2004
• Docket Number: No. 10-00-00409-CV.,10-00-00409-CV.
• Citation: 143 S.W.3d 206
• Parties: Karen D. SMITH, Appellant, v. Jerry W. SMITH, Sr., Appellee. and In the Interest of H.T.S., Z.C.S., and E.C.S.
• Court: Texas Court of Appeals

143 S.W.3d 206

Karen D. SMITH, Appellant, v. Jerry W. SMITH, Sr., Appellee. and In the Interest of H.T.S., Z.C.S., and E.C.S.

No. 10-00-00409-CV.

Court of Appeals of Texas, Waco.

June 23, 2004.

Rehearing Overruled August 17, 2004.

Appeal from the 13th District Court, Navarro County, John H. Jackson, J Marnie Ann McCormick, Clark, Thomas & Winters, Austin, for appellant.

Robert York, Moe & York, P.L.L.C., Corsicana, for appellee.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION

BILL VANCE, Justice.

Karen D. Smith (Karen) appeals from the trial court's judgment of divorce awarding managing conservatorship of her three children to Jerry W. Smith, Sr. (Jerry), dividing their community estate, and ordering her to pay child support. Karen raises five issues: (1) the exclusion of evidence as to whether she had separate property and the finding that she had none; (2) whether the division of the community estate was "just and right"; (3) the designation of Jerry as sole managing conservator of the couple's three children; (4) the failure to appoint a guardian ad litem to represent the children; and (5) the amount of child support she was ordered to pay. Because we find no reasonable basis for the disproportionate division of the community estate, we will reverse and remand the community property division, but we affirm the judgment in all other respects.

FACTS

Karen married Jerry on November 24, 1989. During the marriage, Jerry adopted H.T.S., Karen's child from a previous relationship. The couple had two other children, Z.C.S. and E.C.S. Although Karen and Jerry were married for over ten years, they lived on separate floors within their home for the last several years of their marriage.

On November 1, 1999, Jerry filed for divorce and requested immediate temporary relief. On November 3, the court issued a temporary restraining order against Karen and appointed Jerry temporary sole managing conservator of their three children. The same day, Karen was served with notice of a November 15 hearing on these orders.

On November 3, the couple had a fight. Jerry says that Karen pushed him down a flight of stairs and kicked him repeatedly and that she hit H.T.S. Based on these acts, the court issued a protective order on November 4, prohibiting Karen from contacting Jerry or her minor children, except through Jerry's attorney, and excluding her from the family home.

After a hearing on November 24, the court continued the protective order and issued temporary orders naming Jerry temporary sole managing conservator and Karen temporary possessory conservator, with supervised visitation on Saturday afternoons. The order specified the manner in which the parties would provide medical support to their children, but no other child or spousal support was ordered.

On February 11, 2000, Karen, through her attorney of record, filed an original answer that included a general denial and asserted a claim of separate property. On May 5, Jerry filed a First Amended Petition for Divorce. On May 18, Karen, again through her attorney, filed another pleading that she called an "original answer." This pleading included a general denial, but it did not assert a claim of separate property. On July 21, ten days before trial, Karen, pro se, filed an Original Cross-Petition for Divorce. By that time she had ended her representation by counsel. The cross-petition did not include a claim of separate property.

After a bench trial, the court issued a final decree of divorce on September 14. The court appointed Jerry sole managing conservator and Karen possessory conservator and issued a standard possession order. The court ordered Karen to reimburse Jerry $66 per month for health insurance premiums for the children and to pay $225 per month in child support. Jerry replaced Karen as trustee of a trust account held for H.T.S., which had been established earlier in the marriage. The court awarded the majority of the marital estate, including the family home, to Jerry and awarded $6,000 to Karen.¹ Her motion for new trial was denied without hearing on October 10.

On October 31, the court issued findings of fact and conclusions of law. The court found: (1) Karen was capable of making $400 per week; (2) H.T.S., age thirteen, Z.C.S., age ten, and E.C.S., age six, each signed and filed with the court a "Choice of Managing Conservator by Child Ten Years of Age or Older" choosing Jerry as managing conservator; (3) Karen committed family violence against Jerry and H.T.S. on or about November 3, 1999; (4) Karen threatened the welfare of the children; (5) Karen used and stored marihuana in the home in the presence of the children; (6) Karen had provided no significant financial support for her children since about November 4, 1999; (7) certain assets and debts were community property; and (8) during the divorce proceedings, Jerry incurred reasonable and necessary attorney's fees of $7,935 and costs and expenses of $465.70.

The court concluded that: (1) Jerry had separate property consisting of a rocking chair, a twin bed, a dresser, and two quilts; (2) the community property division was just and right, considering the rights of each party and the children of the marriage and Karen's fault in the breakup of the marriage; (3) Karen is likely to commit family violence against Jerry or a household member in the future; and (4) it is in the best interest of the children that Karen have possession of the children pursuant to the terms and conditions of the Texas Standard Possession Order.

EVIDENCE OF KAREN'S SEPARATE PROPERTY

Karen's first issue complains that the trial court erred by not allowing her to prove that she had separate property and by finding that she had none. At trial, the court sustained Jerry's objection to "[a]ny testimony that Mrs. Smith seeks to elicit either from this witness or any other witness regarding separate property" because Karen had no live pleading claiming separate property. Then the court excluded David Foreman's testimony, which Karen asserts would prove that her separate property money was used as the down payment for the family home.

Preservation of a complaint is a prerequisite for appellate court review. Tex.R.App. P. 33.1(a). Error may be predicated on a ruling that excludes a party's evidence only if the substance of the evidence was made known to the court by offer. Tex.R. Evid. 103; Ludlow v. DeBerry, 959 S.W.2d 265, 269-70 (Tex.App.-Houston [14th Dist.] 1997, no writ). The primary purpose of the offer of proof is to enable an appellate court to determine whether the exclusion was erroneous and harmful. Goode, Wellborn & Sharlot, Guide to the Texas Rules of Evidence, § 103.3 at 21 (2nd ed.1993). A secondary purpose is to permit the trial judge to reconsider his ruling in light of the actual evidence. Id. An offer of proof is sufficient if it apprised the court of the substance of the testimony and may be presented in the form of a concise statement. Chance v. Chance, 911 S.W.2d 40, 51-52 (Tex.App.-Beaumont 1995, writ denied). Excluded evidence may also be preserved for appellate review by a post-trial bill of exception. Tex.R.App. P. 33.2. However, when the substance of the evidence is apparent from the record, a formal offer of proof may not be necessary. Tex.R. Evid. 103(a); Akin v. Santa Clara Land Co., Ltd., 34 S.W.3d 334, 339 (Tex.App.-San Antonio 2000, pet. denied). The record shows that Karen did not make an offer of proof or file a formal bill of exception. Moreover, the substance of the evidence she sought to present is not apparent from the record. Her complaint is not preserved for our review.²

Karen also contests the finding that she had no separate property. All property possessed by either spouse during or on dissolution of a marriage is presumed to be community property, until proven otherwise by clear-and-convincing evidence. Tex. Fam.Code Ann. § 3.003 (Vernon 1998). Because Karen did not present evidence of her ownership of separate property, we must presume the correctness of the trial court's finding that she had none. Id.

We overrule Karen's first issue.

COMMUNITY PROPERTY DIVISION

Karen's second issue contends that the trial court unfairly divided the community estate. Tex. Fam.Code Ann. § 7.001 (Vernon 1998). The net value of the community property (assets awarded minus debts apportioned) awarded to Karen was no more than zero and the net value of the community property awarded to Jerry was approximately $15,863. We note at the outset that Jerry has argued that Karen is estopped to complain about the property division because of the acceptance-of-benefits doctrine. Jerry asserts that because Karen withdrew the $6,000 that he tendered to the court's registry in satisfaction of the divorce decree, she accepted the benefits of the court's order. The acceptance-of-benefits doctrine, which is based on a theory of estoppel, states that if a litigant has voluntarily accepted the benefits of a judgment, he cannot afterward appeal therefrom. Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002, 1004 (1950). But acceptance of benefits due to financial duress or other economic circumstances does not constitute voluntary acceptance. Cooper v. Bushong, 10 S.W.3d 20, 23 (Tex.App.-Austin 1999, pet. denied); McAlister v. McAlister, 75 S.W.3d 481, 484 (Tex.App.-San Antonio 2002, pet. denied). Because of the economic circumstances created by the court's property division, Karen's acceptance of the $6,000 was not voluntary. Therefore, the acceptance-of-benefits doctrine does not apply.

The court found the following assets to be community property: (1) the family home, valued at $47,800; (2) a 1999 GMC Sonoma pickup, valued at $17,000; (3) a leased 1998 Toyota RAV4 automobile, of unspecified value; (4) a $200 bank account in Jerry's name; (5) a life insurance policy on Jerry's life, having no value; (6) another account in Jerry's name, valued at $362.94; (7) a 401K account in Jerry's name,...