Zieba v. Martin

• Decision Date: 12 September 1996
• Docket Number: No. 14-94-00104-CV,14-94-00104-CV
• Parties: Lorraine Lynn ZIEBA, Appellant, v. Bill Lee MARTIN, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 782

928 S.W.2d 782

Lorraine Lynn ZIEBA, Appellant, v. Bill Lee MARTIN, Appellee.

No. 14-94-00104-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

Sept. 12, 1996.

Rehearing Overruled Sept. 12, 1996.

Peter R. Meeker, Austin, for appellant.

Kenneth D. Junck, Houston, for appellee.

Before HUDSON, FOWLER and EDELMAN, JJ.

OPINION ON REHEARING

FOWLER, Justice.

We overrule appellant's motion for rehearing, but withdraw our previous opinion and substitute this one for it. Appellant, Lorraine Zieba, appeals from a judgment dividing the marital estate in her divorce from appellee, Bill Martin. Zieba and Martin lived together for two and one-half years before they were married on February 14, 1985. The couple separated in March 1990, when Zieba began divorce proceedings. The case was tried to the court in July 1993, resulting in a Final Decree of Divorce and Judgment. In support of its property division, the trial court entered findings of fact and conclusions of law. ¹ The court also granted some but not all of Zieba's timely requested additional and amended findings of fact and conclusions of law. In ten points of error, Zieba attacks the trial court's judgment and findings with regard to the property division and the award of attorney's fees. Because we find the trial court abused its discretion in dividing the marital estate and because the court's findings cannot support its award of attorney's fees, we reverse the judgment below.

I. NO FINDINGS AND CONCLUSIONS ON VALUE

At the outset, we address Zieba's contention in point of error ten that the trial court erred in failing to make findings of fact and conclusions of law as to the values of the community and separate estates and the basis for its determination of her reimbursement claims. The trial court's initial findings of fact and conclusions of law do not contain findings on these issues. Although Zieba timely requested additional findings on these issues, the court denied her request.

If findings of fact and conclusions of law are properly requested, the trial court has a mandatory duty to file findings and conclusions. Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex.1989). The trial court's failure to comply with a proper request to prepare and file findings and conclusions is presumed harmful, unless the record affirmatively shows that the complaining party suffered no injury. Id. An appellant is harmed if there are two or more possible grounds on which the court could have ruled and the appellant is left to guess the basis for the trial court's ruling. Goggins v. Leo, 849 S.W.2d 373, 379 (Tex.App.--Houston [14th Dist.] 1993, no writ); Electronic Power Design, Inc., v. R.A. Hanson Co., 821 S.W.2d 170, 171 (Tex.App.--Houston [14th Dist.] 1991, no writ). The proper remedy in that situation is to abate the appeal and direct the trial court to correct its error pursuant to rule 81(a) of the Rules of Appellate Procedure. ² Cherne Indus., 763 S.W.2d at 773; Electronic Power, 821 S.W.2d at 171-72.

In this case, Zieba cannot claim harm because she argues the property division was an abuse of discretion even if the court chose to accept Martin's valuations. In essence, then, we have no dispute as to the valuations the court made because we have been asked to review the case using Martin's valuations. Viewed in that posture, we hold that the trial court's failure to file findings and conclusions on value was not harmful and abatement of this case is unnecessary. See Humble v. Humble, 805 S.W.2d 558, 563 (Tex.App.--Beaumont 1991, writ denied) (holding that trial court is not compelled to make findings of value where there was no material dispute of value). Point of error ten is overruled.

II. STANDARD OF REVIEW

The next question confronting this court is the standard of review. Attacking the sufficiency of the evidence, Zieba argues the trial court's findings do not support the court's division of the marital estate. The trial court, however, has wide discretion in dividing the estate of the parties and that division should be corrected on appeal only when an abuse of discretion has been shown. Murff v. Murff, 615 S.W.2d 696, 698 (Tex.1981). Under this abuse of discretion standard, the legal and factual sufficiency of the evidence are not independent grounds of error, but are merely relevant factors in assessing whether the trial court abused its discretion. ³ Mai v. Mai, 853 S.W.2d 615, 618 (Tex.App.--Houston [1st Dist.] 1993, no writ); In re Marriage of Driver, 895 S.W.2d 875, 877 (Tex.App.--Texarkana 1995, no writ). An abuse of discretion does not occur where the trial court bases its decision on conflicting evidence or where some evidence of a substantial and probative character exists to support the trial court's division. See Wood v. O'Donnell, 894 S.W.2d 555, 557 (Tex.App.--Fort Worth 1995, no writ); D.R. v. J.A.R., 894 S.W.2d 91, 95 (Tex.App.--Fort Worth 1995 writ denied).

III. REIMBURSEMENT

In points of error three through eight, Zieba argues the trial court refused to fully reimburse the community for the community payment of a purchase money note, for improvements to Martin's separate property, and for certain personal expenditures by Martin. The trial court awarded Zieba $100,657 as her one-half of the reimbursement to the community estate. In light of this award, Zieba attacks the factual sufficiency of the evidence supporting the trial court's initial findings and conclusions 9, 11, 12, 17, and 23, which generally support the trial court's property division. As we noted, "factual insufficiency" is not a proper ground for reversal under an abuse of discretion standard. See Wood, 894 S.W.2d at 557; D.R., 894 S.W.2d at 95. Furthermore, while these initial findings and conclusions do not differentiate findings of fact from the conclusions of law, the findings are clearly conclusions of law that the property division was "just and right." Thus, we may review the conclusions of law only to determine whether they are correct. See id.

Reimbursement is an equitable doctrine, and a court of equity is bound to look at all the facts and circumstances and determine what is fair, just and equitable. Penick v. Penick, 783 S.W.2d 194, 197 (Tex.1988); Gutierrez v. Gutierrez, 791 S.W.2d 659, 663 (Tex.App.--San Antonio 1990, no writ). The trier of fact should consider the benefits and detriments to each estate. Gutierrez, 791 S.W.2d at 553. "Reimbursement is not available as a matter of law but lies in the discretion of the court." Id. (quoting Vallone v. Vallone, 644 S.W.2d 455, 459 (Tex.1982)). Great latitude must be given to the trial court in applying equitable principles to value a claim for reimbursement. Penick, 783 S.W.2d at 198. An equitable claim for reimbursement is not merely a balancing of the ledgers between the marital estates. Id. The discretion to be exercised in evaluating a claim for reimbursement is equally as broad as the discretion exercised in making a just and right division of the community estate. Id.; Gutierrez, 791 S.W.2d at 663.

A. Purchase Money Indebtedness

In points of error three and four, Zieba contends the trial court abused its discretion by reimbursing her only $30,657 for her share of community funds spent on Martin's separate property commercial real estate. As confirmed in the judgment, Martin owns as his separate property certain commercial real estate located on 5600 W. 34th Street in Houston. Martin is the sole shareholder of Texas Sign Erectors (Texas Sign), a corporation that installs advertising signs for oil companies. The business is located on the 34th Street property. The court apparently concluded that Texas Sign was a community asset because it did not include that property among the property listed in the judgment as "confirmed separate property" of one or the other spouse. See TEX.FAM.CODE ANN. §§ 5.01, 5.02 (Vernon 1993) (property other than separate property is community property and property possessed by either spouse during or on dissolution of marriage is presumed to be community property).

Prior to the marriage, Martin sold the 34th Street property to a third party who then assumed the mortgage payments. During the marriage, the third-party defaulted on the mortgage and returned the property to Martin. When the property was returned in April 1987, the principal balance on the mortgage note was $361,905 and the accrued interest was $294,659. Martin's last payment made on the note before the divorce was in January 1993. At that time, the principal balance on the note was $149,720 and the accrued interest was $454,556. Thus, the amount of principal and interest paid was $212,185 and $159,897, respectively, or a total of $372,082. Martin used the income from Texas Sign to pay both separate and community property debts and obligations, including the principal and interest on the purchase money note for the 34th Street property. The trial court awarded Zieba $30,657 as her one-half of the reimbursement for the community funds spent on Martin's separate purchase money indebtedness.

Zieba contends the trial court erred in failing to find Martin's payments for the purchase money indebtedness on his separate property was $394,525, including principal and interest (requested additional finding of fact 25) and in refusing to reimburse the community for that amount (requested additional conclusion of law 1). ⁴ The advancement of funds by one marital estate to another for payment of a purchase money debt or for a capital improvement are essentially identical and therefore, subject to the same kind of measurement. Penick, 783 S.W.2d at 197. The enhancement value is the measure of reimbursement in both situations. Gutierrez, 791 S.W.2d at 663. That is, the trier of fact should consider the benefits and detriments to each estate. Id. The trial court may not simply return to the contributing estate the actual amount advanced to reduce the principal indebtedness on the benefitted estate's...