Zeptner v. Zeptner, 2-01-254-CV.

• Citation: 111 S.W.3d 727
• Decision Date: 26 June 2003
• Docket Number: No. 2-01-254-CV.,2-01-254-CV.
• Parties: Owen C. ZEPTNER, Appellant, v. Frances R. ZEPTNER, Appellee.
• Court: Court of Appeals of Texas

111 S.W.3d 727

Owen C. ZEPTNER, Appellant, v. Frances R. ZEPTNER, Appellee.

No. 2-01-254-CV.

Court of Appeals of Texas, Fort Worth.

June 26, 2003.

Verner & Brumlsy, P.C., Jimmy L. Verner, Jr., Dallas, for Appellant.

Jerry J. Loftin, Fort Worth, for Appellee.

PANEL A: CAYCE, C.J., DAY and GARDNER, JJ.

OPINION ON REHEARING

ANNE GARDNER, Justice.

After reviewing Appellant's motion for rehearing, we deny the motion, withdraw our March 20, 2003 opinion and judgment, and substitute the following in their place.

In ten issues, Appellant Owen C. Zeptner complains about the trial court's division of the community estate upon his divorce from Appellee Frances R. Zeptner. Because we hold that the trial court abused its discretion in dividing the community estate, we reverse and remand in part and affirm in part.

Factual Background

Owen and Frances were married on or about November 26, 1986 and separated on or about October 28, 1998. They had no children. Owen, Frances, and Paul Cary, a tracing expert, testified at trial. During the trial, the trial court struck both parties' other experts for discovery violations. Additionally, all of Frances's exhibits were returned to her after trial at her attorney's request, so they are not in the appellate record. In the divorce decree, the trial court awarded Owen the following community property:

(1) the lot at 100 East Little, Hamilton, Texas;

(2) the lot at 106 East Little, Hamilton, Texas;

(3) all household assets in his possession or subject to his sole control;

(4) all of his clothing, jewelry, and personal effects;

(5) all funds in his sole name or subject to his sole control, including the business checking account located at SouthTrust Bank;

(6) all retirement funds due to his own employment, including the Fidelity Investment IRA in the amount of $11,239.80;

(7) all union benefits;

(8) all life insurance policies insuring his life;

(9) all brokerage accounts, stocks, bonds, and mutual funds, and securities registered in his name, including dividends, stock splits, and other connected privileges;

(10) the 1994 Chevrolet pickup, valued at $8,000;

(11) the tractor and trailer, valued at $5,000;

(12) insurance checks, valued at $496.95;

(13) $24,000 from the Bank United account; and

(14) $80,000 enhancement value of Petitioner's separate property business known as Accu-Tech Machine and Manufacturing.

The trial court awarded Frances the following community property:

(1) the community residence;

(2) all household assets in her possession or subject to her sole control;

(3) all of her clothing, jewelry, and personal effects;

(4) all funds in her sole name or subject to her sole control;

(5) all retirement funds due to her own employment, including the First Savings Bank IRA in the approximate amount of $49,093.35 and the J.C. Penney's Retirement account in the approximate amount of $16,000;

(6) all union benefits;

(7) all life insurance policies insuring her life;

(8) all brokerage accounts, stocks, bonds, mutual funds, and securities registered in her name, including dividends, stock splits, and other connected privileges, including fifteen shares of Sears Roebuck and Company stock, five shares of Dean Witter Discover and Company stock, and twenty-six shares of Allstate Corporation stock, valued at $1300;

(9) the 1998 Chevrolet Monte Carlo, valued at $12,000;

(10) the prepaid burial plan, valued at $11,000;

(11) $12,500, representing one-half of the improvements made to Owen's separate residence at 104 E. Little, Hamilton, Texas; and

(12) $20,000 from the Bank United account plus any remaining balance after Owen's award of $65,000 was paid.

Owen and Frances were each ordered to pay (a) any debts individually incurred since the separation and (b) all encumbrances, taxes, liens, assessments, and other charges due or to become due on the property each was awarded in the decree unless the decree expressly provided otherwise. The trial court confirmed the following as Owen's separate property: Accu-Tech Machine & Manufacturing,

including but not limited to all furniture, fixtures, machines, equipment, inventory, cash, receivables, accounts, goods, and supplies; all personal property used in connection with the operation of the business; and all rights and privileges, past, present, or future, arising out of or in connection with the operation of the business;

the Hamilton residence; and $41,000 in the Bank United account.

In his motion for new trial, Owen complained that the trial court had erred in dividing the community estate by not considering the fact that Owen had suffered a stroke and attendant medical problems after the trial was completed but before judgment was rendered. Owen argued that as a result of his health problems, he had been unable to work for about six months and could only work part-time thereafter. Further, he alleged that he had incurred substantial bills during this period, which he was unable to pay, and that he had a deficit of $28,884.26, which the court had failed to consider in rendering judgment. Finally, Owen stated that he had been forced to liquidate his Fidelity IRA, take out a $5,500 loan, and collateralize the Hamilton lots, and that the trial court had failed to consider these increased liabilities and decreased assets in its property division.

Other than a medical records affidavit, there was apparently no evidence in the record at the time the judgment was rendered to prove Owen's claims. The same affidavit was attached to the motion for new trial, as well as a summary of outstanding bills and available cash, but no medical records, notes, or collateral agreements appear in the record before us. The trial court denied the motion for new trial.

In findings of fact set out in the decree, the trial court found:

1. The value of the community residence is $120,000;

2. The value of 100 East Little Road, Hamilton, Texas is $7,000;

3. The value of 106 East Little Road, Hamilton, Texas is $6,000.

4. "[T]he `enhanced value' of [Owen's] separate property business, Accu-Tech Machine and Manufacturing ... is $80,000.00."

5. "[R]eimbursable improvements" were made to [Owen's] separate property home "at 104 East Little Road, in the amount of $25,000.00."

6. The Bank United account has an approximate balance of $81,000, $41,000 of which is Owen's separate property. The remaining $40,000 balance is community.

7. Frances's prepaid burial policy is valued at $11,000.

8. The present value of Frances's J.C. Penney retirement plan is $16,000.

9. Owen's tractor and trailer are valued at $5,000.

10. "[Owen's] reimbursement claims are valued at -0-."

Legal Analysis

A trial court is charged with dividing the community estate in a "just and right" manner, considering the rights of both parties. Tex. Fam.Code Ann. § 7.001 (Vernon 1998). The party complaining of the trial court's division of property must demonstrate from evidence in the record that the division was so unjust that the trial court abused its discretion. Pletcher v. Goetz, 9 S.W.3d 442, 446 (Tex.App.-Fort Worth 1999, pet. denied) (op. on reh'g). Under an abuse of discretion standard, legal and factual sufficiency are relevant factors in assessing whether the trial court abused its discretion. Beaumont Bank v. Buller, 806 S.W.2d 223, 226 (Tex.1991). They are not independent grounds of error. Ditraglia v. Romano, 33 S.W.3d 886, 889 (Tex.App.-Austin 2000, no pet.); Crawford v. Hope, 898 S.W.2d 937, 940 (Tex. App.-Amarillo 1995, writ denied). If there is any reasonable basis for doing so, we must presume that the trial court exercised its discretion properly. Pletcher, 9 S.W.3d at 446. We will not disturb the trial court's division unless the record demonstrates "that the division was clearly the result of an abuse of discretion." Id. That is, we will not reverse the case unless the record clearly shows that the trial court was acting arbitrarily or unreasonably. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986).

Reimbursement Claim For Ex-Husband's Lien

In issues six, seven, and eight, Owen complains about the trial court's refusal to order reimbursement from Frances's separate estate to the community estate for community funds that were used to pay off a lien to Frances's ex-husband. Specifically, Owen complains that the trial court's finding that the reimbursement claim was worth zero was against the great weight and preponderance of the evidence. Alternatively, Owen claims that the evidence conclusively established the claim's value at $16,000 (issue six); that the trial court erred in failing to value the claim at $16,000 (issue seven); and that the trial court abused its discretion by failing to consider the claim in its division of the community estate (issue eight).

Findings of fact entered in a case tried to the court have the same force and dignity as a jury's answers to jury questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991). Findings of fact are the exclusive province of the trier of fact. Bellefonte Underwriters Ins. Co. v. Brown, 704 S.W.2d 742, 744-45 (Tex. 1986). A court of appeals cannot make findings of fact; it can only "unfind" facts. Tex. Nat'l Bank v. Karnes, 717 S.W.2d 901, 903 (Tex.1986). Unchallenged findings of fact are binding unless the contrary is established as a matter of law or there is no evidence to support the findings. McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex.1986); Reliance Ins. Co. v. Denton Cent. Appraisal Dist., 999 S.W.2d 626, 629 (Tex.App.-Fort Worth 1999, no pet.). The trial court's findings of fact are reviewable for legal and factual sufficiency of the evidence to support them by the same standards that are applied in reviewing evidence supporting a jury's answer. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994).

If an appellant...