Villalpando v. Villalpando

Citation480 S.W.3d 801
Decision Date17 November 2015
Docket NumberNO. 14–14–00526–CV,14–14–00526–CV
Parties Susana I. Villalpando, Appellant v. Armando Villalpando, Appellee
CourtCourt of Appeals of Texas

Judith A. Grantham, Carrollton, TX, for Appellant.

Adolfo Vasquez, Renato Santos, Jr., Houston, TX, for Appellee.

Panel consists of Chief Justice Frost and Justices Christopher and Donovan.

OPINION

Kem Thompson Frost, Chief Justice

This is an appeal from a divorce decree. The trial court granted the parties a divorce on the basis of insupportability, divided the community property, and ordered the husband to pay child support. On appeal, the wife complains of the trial court's failure to grant her a divorce on grounds of cruelty and challenges both the property division and child-support award. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant Susana Villalpando and appellee Armando Villalpando were married in June 2003. They resided in Harris County and had two children during their marriage. In February 2010, Susana moved to Dallas with the children. In November 2012, Armando filed for divorce on the basis of insupportability. Susana counter-petitioned for divorce on the grounds of cruel treatment.

At trial, Armando testified he had a problem with alcohol during the course of the marriage. Susana testified that Armando was physically and emotionally abusive when he was drinking. According to Susana, Armando pushed her, pulled her hair, and left bruises on her arms. Susana testified Armando would threaten to kill her, have their children taken away from her, or kill himself. Susana's sister also testified that Armando engaged in this behavior. The trial court granted a divorce solely on the basis of insupportability.

In relation to the parties' property, Armando testified at trial that he and Susana owned many properties and four vehicles. Neither party submitted documentary evidence of the value for most of the properties. Armando submitted into evidence tax returns for the previous five years and a "Financial Information Statement" indicating that Armando had net resources of $2,032.37 per month. The trial court divided the parties' community property and based its child-support calculation on Armando having $2,023.37 in net monthly resources. Susana challenges these rulings on appeal.

II. ANALYSIS
A. Divorce on Insupportability Grounds

The trial court granted Susana's request for a divorce, but it granted the divorce solely on the grounds of insupportability. See Tex. Fam. Code Ann. § 6.001 (West, Westlaw through 2015 R.S.). In her first issue, Susana asserts the trial court abused its discretion by failing to grant her a divorce on cruelty grounds.

Texas Family Code Section 6.002, entitled "Cruelty" states "[t]he court may grant a divorce in favor of one spouse if the other spouse is guilty of cruel treatment toward the complaining spouse of a nature that renders further living together insupportable." Id. § 6.002 (emphasis added). Section 6.002 does not require a trial court to grant a divorce on the basis of cruel treatment even if the record reveals evidence of cruelty. See Baker v. Baker, 469 S.W.3d 269, 279 (Tex.App.—Houston [14th Dist.] Jun. 25, 2015, no pet.) ; Clay v. Clay, 550 S.W.2d 730, 734 (Tex.Civ.App.—Houston [1st Dist.] 1977, no writ). Instead, the trial court has the discretion to choose among reasons supported by the evidence for granting a divorce. See Baker, 469 S.W.3d at 279. Under the plain wording of section 6.002, the trial court did not abuse its discretion in granting the divorce on the basis of insupportability rather than on the basis of cruelty. See id. Accordingly, we overrule Susana's first issue.

B. Property Division

In Susana's second issue, she challenges the trial court's division of the community estate, arguing that: (1) the trial court mischaracterized two pieces of separate property as community property, (2) in dividing the community estate, the trial court failed to consider all of the factors Susana raised, (3) the trial court abused its discretion in granting a disproportionate amount of the estate to Armando, and (4) the trial court abused its discretion in failing to calculate the amount of the reconstituted estate.

1. Characterization of Property

Susana argues that the trial court mischaracterized two pieces of property, which the parties refer to as the Los Alpes property and the Emiliana Zapata property. The trial court determined both are community property, but Susana asserts they are both separate property. According to Susana, the Los Alpes property is Armando's separate property and the Emiliana Zapata property is her separate property.

In a divorce decree, the trial court must divide the community property 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 (West, Westlaw through 2015 R.S.). To convince this court to disturb the trial court's division of property, Susana must show the trial court clearly abused its discretion by a division or an order that is manifestly unjust and unfair. See Sharma v. Routh, 302 S.W.3d 355, 360 (Tex.App.—Houston [14th Dist.] 2009, no pet.). Under this standard, the legal and factual sufficiency of the evidence are not independent grounds of error, but they are relevant factors in assessing whether the trial court abused its discretion. Id. If the trial court mischaracterizes a spouse's separate property as community property and awards some of the property to the other spouse, then the trial court abuses its discretion and reversibly errs. See id.

Under both the Texas Constitution and the Texas Family Code, a spouse's separate property consists of (1) the property the spouse owned or claimed before marriage, and (2) the property the spouse acquired during marriage by gift, devise, or descent. Tex. Const. art. XVI, § 15 ; Tex. Fam. Code Ann. § 3.001 (West, Westlaw through 2015 R.S.); Sharma, 302 S.W.3d at 360. Community property, by contrast, consists of all property, other than separate property, acquired by either spouse during the marriage. Tex. Fam. Code Ann. § 3.002 (West, Westlaw through 2015 R.S.); Sharma, 302 S.W.3d at 360. All property possessed by either spouse during or on dissolution of marriage is presumed to be community property. Tex. Fam. Code Ann. § 3.003 (West, Westlaw through 2015 R.S.); Sharma, 302 S.W.3d at 360. The burden of overcoming this presumption rests on the party asserting otherwise, and the standard of proof is by clear and convincing evidence. Sharma, 302 S.W.3d at 360. "Clear and convincing" evidence means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Id. Whether property is separate or community is determined by its character at the inception of the party's title. Id. Inception of title occurs when a party first has a right of claim to the property by virtue of which title is finally vested. Id.

Los Alpes Property

First, Susana argues that the trial court abused its discretion by classifying as community property, the property described as Lot 1, Pinos, Zacatecas, Mexico ("Los Alpes Property") as this property is Armando's separate property. Armando asserted in the trial court that the house was his separate property; he listed it as separate property in his sworn inventory and testified that he acquired the lot in December 2002, before the parties' marriage.

As the factfinder, the trial court alone determines the credibility of the evidence and the witnesses, the weight to give their testimony, and whether to accept or reject all or any part of their testimony. Duruji v. Duruji, No. 14–05–01185–CV, 2007 WL 582282, at *5 (Tex.App.—Houston [14th Dist.] Feb. 27, 2007, no pet.) (mem. op). The record contains no documentary evidence relating to the Los Alpes Property and only a few words of oral testimony relating to the characterization of the Los Alpes Property. The trial court could have discredited this portion of Armando's testimony and determined that evidence did not prove by the clear-and-convincing standard that the Los Alpes Property is Armando's separate property. See Zamarripa v. Zamarripa, No. 14–08–00083–CV, 2009 WL 1875580, at *3 (Tex.App.—Houston [14th Dist.] Jun. 30, 2009, pet. denied) (mem. op.); Rosensky v. Rosensky, No. 01–09–01029–CV, 2011 WL 743164, at *6 (Tex.App.—Houston [1st Dist.] Mar. 3, 2011, no pet.) (mem. op.).

Emiliana Zapata Property

Second, Susana asserts the trial court abused its discretion by classifying the property in Ojuelos, Mexico ("Emiliana Zapata Property"), as community property. Susana contends she established the Emiliana Zapata Property is her separate property. The parties both testified that the property was acquired during the marriage. According to Armando, Susana purchased the property during the marriage; he contends the property is therefore community property. Susana stated that the property was a gift from her mother and, therefore, is her separate property. Susana acknowledged that the deed stated the property was sold to Susana during the marriage, but she testified the property was sold to Susana's mother, who gifted the property to Susana. According to Susana, her mother had Susana's name put on the deed because her mother wanted to gift the property to Susana.

The record contains conflicting evidence as to the nature of this property. It was within the purview of the trial court, as fact finder, to resolve conflicts in the evidence and pass on the weight and credibility of the witnesses' testimony. See Zagorski v. Zagorski, 116 S.W.3d 309, 317–18 (Tex.App.—Houston [14th Dist.] 2003, pet. denied). The trial court reasonably could have found, based on Armando's testimony, and Susana's admission that the deed listed Susana as a buyer, that Susana purchased the property during the marriage. See id. Accordingly, the trial court did not...

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