Vandiver v. Vandiver, 13-97-417-CV

• Citation: 4 S.W.3d 300
• Decision Date: 14 October 1999
• Docket Number: No. 13-97-417-CV,13-97-417-CV
• Parties: (Tex.App.-Corpus Christi 1999) EARNEST LUCIAN VANDIVER, Appellant, v. JOAN JANKOW VANDIVER, Appellee. . July, 29 1999. Opinion Overruling Motion for Rehearing
• Court: Court of Appeals of Texas

Page 300

4 S.W.3d 300 (Tex.App.-Corpus Christi 1999)

EARNEST LUCIAN VANDIVER, Appellant, v. JOAN JANKOW VANDIVER, Appellee.

No. 13-97-417-CV.

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI.

July, 29 1999.

Opinion Overruling Motion for Rehearing October 14, 1999.

On appeal from the 245th District Court of Harris County, Texas.

Before Chief Justice Seerden and Justices Yanez and Hill.¹

O P I N I O N

Opinion by Justice John Hill (Assigned).

Earnest Lucian (E. L.) Vandiver appeals from the decree of divorce that dissolved his marriage with Joan Jankow Vandiver. He presents two issues on appeal: whether the trial court erred by mischaracterizing certain property as Joan's separate property and, if so, whether the court's overall property division must be set aside as not being just and right. We affirm.

The first issue presented is whether the trial court erred by mischaracterizing certain property as Joan's separate property. The property involved consists of approximately $500,000 worth of investment accounts. E. L. indicates that he is attacking the factual sufficiency of the evidence to support the trial court's finding that these assets were Joan's separate property.

Findings of fact in a case tried to the court have the same force and effect as a jury's verdict on special issues. See Gregory v. Sunbelt Savings, F.S.B., 835 S.W.2d 155, 158 (Tex. App. -- Dallas 1992, writ denied). In reviewing a factual sufficiency point of error, we consider all of the evidence and reverse the finding only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is wrong and manifestly unjust. Id.

The property at issue here involves a certificate of deposit, an annuity contract, a number of mutual funds, and certain brokerage accounts. Evidence was presented that Joan, who had worked as a legal secretary, tried to keep her separate property separate. She sought to segregate money that she had before the marriage in separate accounts. In the later years of the marriage, she received substantial sums from her mother in the form of gifts. Her mother also gave her husband and daughter gifts. E. L. always wrote Joan a check in the amount of his gift. While all of those funds initially went into a joint savings account, Joan subsequently transferred the money to an account in which only separate property was placed. She indicated that she invested in mutual funds that would generate capital gains, as opposed to dividends or interest. Annually, E. L. signed a document indicating that the property at issue was Joan's separate property. Nevertheless, both parties acknowledged that the origin of the property in the separate property accounts could not be traced.

There is a statutory presumption that all property possessed by husband and wife at the time of the dissolution of their marriage is community property. See TEX. FAM. CODE ANN. 3.003(a) (Vernon's 1997). To show otherwise, the spouse must trace and clearly identify the property claimed as separate property. See Estate of Hanau v. Hanau, 730 S.W.2d 663, 667 (Tex. 1987), (citing Tarver v. Tarver, 394 S.W.2d 780, 783 [Tex. 1965]). Inasmuch as Joan was unable to trace the property and meet this burden, we hold that the evidence is insufficient to support the trial court's characterization of the property as Joan's separate property.

If, however, the trial court mischaracterizes property in its division of the marital estate, the error does not require reversal unless the mischaracterization would have had more than a de minimis effect on the trial court's just and right division of the property. See McElwee v. McElwee, 911 S.W.2d 182, 189 (Tex. App. -- Houston [1st Dist.] 1995, writ denied); Hunt v. Hunt, 952 S.W.2d 564, 568 (Tex. App. -- Eastland 1996, no writ). In this case, although the value of the property mischaracterized is great, the trial court found that its property division is just and right, regardless of any mischaracterization of the property. Consequently, the mischaracterization did not affect the trial court's just and right division of the property. We therefore overrule issue number one.

E. L. urges in issue number two that the trial court's overall division of the property must be set aside as not being just and right due to the trial court's mischaracterization of the property. E. L. argues, based upon the value of the property, that the just and right division would be affected in more than a de minimis fashion by the trial court's mischaracterization.

E. L. relies upon Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex. 1985); McElwee v. McElwee, 911 S.W.2d at 190; and Bradley v. Bradley, 725 S.W.2d 503, 505 (Tex. App. -- Corpus Christi 1987, no writ). These authorities support the principle that we have already referred to, that there must be a reversal if the mischaracterization affected the trial court's just and right division. As we have noted, however, the mischaracterization did not affect the just and right division in this case because the trial court found that its property division was just and right, regardless of any mischaracterization. There was no such finding made in any of the cases relied upon by E. L.

Community property need not be equally divided. See Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981). In making a division of the property, the trial court may consider such factors as the spouses' capacities and abilities; benefits which the party not at fault would have derived from continuation of the marriage; business opportunities, education, relative physical conditions, relative financial condition and obligations; disparity of ages; size of separate estates; and the nature of the property. Id. The consideration of a disparity in earning capacities or incomes is proper and need not be limited by necessitous circumstances. Id. We must presume that the trial court exercised its discretion properly, and we are not to disturb that discretion on appeal unless a clear abuse of discretion has been shown. See Vallone v. Vallone, 644 S.W.2d 455, 460 (Tex. 1982).

The trial court found that evidence was presented supporting the following factors for consideration by the court: (1) E. L.'s greater earning power and ability to support himself; (2) his education and further employability; (3) his fault in the breakup of the marriage; (4) Joan's need for further support; (5) the nature of the property involved in the division; (6) E. L.'s failure to follow court orders; (7) Joan's health problems; (8) needs of the child of the marriage; (9) community indebtedness and liabilities; (10) reimbursement; (11) the size and nature of the separate estates; and (12) attorney's fees to be paid by each party. We hold that the trial court did not abuse its discretion in finding that the division of the property is just and right. E. L. makes no claim that the evidence does not support these findings or that these factors, taken together, do not support the trial court's division of the property as being a just and right division, assuming the disputed property is community property. We overrule E. L.'s second issue.

The judgment is affirmed.

OPINION ON REHEARING

Earnest Lucian Vandiver contends on rehearing that we erred in upholding the trial court's division of the marital estate, despite the mischaracterization of a significant amount of that property. We overrule E. L.'s motion for rehearing because the trial court did not abuse its discretion in finding that the property division is just and right, notwithstanding any mischaracterization of the property.

In a suit for divorce, the trial court is to order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage. TEX. FAM. CODE ANN. 7.001 (Vernon, 1998). We interpret the court's findings in this case to mean that the court would divide the property in the same way, finding that it is a just and right division, regardless of whether the property in question is separate or community. As we noted in our original opinion, E. L. has made no contention in this appeal that the trial court abused its discretion in making such a finding on the basis that the evidence is insufficient to support the finding or that the factors set forth in Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981), do not support the finding. In view of the trial court's finding, E. L. has the burden on appeal to show that the trial court abused its discretion in making the just and right division. This he has failed to do.

E. L. contends that the trial court's finding that the division is just and right,...