Zorilla v. Wahid

• Decision Date: 18 July 2002
• Docket Number: No. 13-01-175-CV.,13-01-175-CV.
• Citation: 83 S.W.3d 247
• Parties: Mirta ZORILLA, Appellant, v. Nurul WAHID, Appellee.
• Court: Texas Court of Appeals

Page 247

83 S.W.3d 247

Mirta ZORILLA, Appellant, v. Nurul WAHID, Appellee.

No. 13-01-175-CV.

Court of Appeals of Texas, Corpus Christi.

July 18, 2002.

COPYRIGHT MATERIAL OMITTED

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Kelly K. McKinnis, McAllen, for Appellant.

Alberto Garcia, Rodriguez, Tovar & Garcia, M. Steven Deck, Law Office of John King, McAllen, Albert Garcia, Brownsville, for Appellee.

BEFORE: Chief Justice VALDEZ and Justices YAÑEZ and RODRIGUEZ.

OPINION

Opinion by Chief Justice VALDEZ.

Physicians Mirta Zorilla and Nurul Wahid appeal a trial court judgment granting their divorce and an order awarding temporary support to Zorilla. Zorilla and Wahid do not seek to alter the trial court's judgment insofar as it affects custody of the parties' two children. We affirm the award of temporary support, and we modify the judgment, and as modified, affirm.

I. Mirta Zorilla's Appeal

Zorilla raises five issues on appeal. She contends (1) the trial court erred in dividing the children's education fund as community property because the fund was her separate property, (2) the trial court abused its discretion in dividing the property of the parties; (3) the trial court's order dividing the property was against the great weight and preponderance of the evidence, (4) the trial court erred in entering a decree which ordered $1,500 per month as child support because the amount awarded is incorrect, and (5) the trial court erred in awarding attorney's fees.

Children's Education Fund

In her first issue, Zorilla argues that the children's education fund was her separate property because it was acquired under the law of New York, where the couple was married, and thus the trial court erred in dividing it as community property. The children's education fund was an investment account held in Zorilla's own name worth approximately $600,000.

The Texas Family Code provides that community property consists of the property, other than the separate property, acquired by either spouse during marriage. See TEX.FAM.CODE ANN. § 3.002 (Vernon 1998); Barnett v. Barnett, 67 S.W.3d 107, 111 (Tex.2001). Separate property includes the property owned or claimed by the spouse before marriage. TEX.FAM.CODE ANN. § 3.001 (Vernon 1998); Barnett, 67 S.W.3d at 111. Whether property is separate or community is determined by its character at inception. Barnett, 67 S.W.3d at 111.

There is a presumption under the family code that property held during marriage is community property. TEX.FAM.CODE ANN. § 3.003(a) (Vernon 1998). Only community property is subject to the trial court's division of the marital estate, and the trial court may not divest one party of his separate property. Cameron v. Cameron, 641 S.W.2d 210, 220 (Tex.1982).

Under Texas Family Code section 7.002, the "quasi-community property statute," Texas courts apply a "just and right" property division regardless of the nature of the legal system of the previous domicile of the parties. TEX.FAM.CODE ANN. § 7.002 (Vernon 1998); see Ismail v. Ismail, 702 S.W.2d 216, 219 (Tex.App.-Houston [1st Dist.] 1985, writ ref'd n.r.e.) (regarding predecessor statute). A just and right division applies to property acquired while domiciled in another state that would have been community property if the acquiring spouse was domiciled in Texas at the time of acquisition. TEX.FAM.CODE ANN. § 7.002 (Vernon 1998); see Ismail, 702 S.W.2d at 219.

The children's education account would have been community property had it been acquired while Zorilla was domiciled in Texas, thus, the trial court had discretion to divide the account in a just and right manner. See TEX.FAM.CODE ANN. §. 7.002. Zorilla's first issue is overruled.

Property Division

Zorilla attacks the marital property division in her second and third issues. She argues that the trial court abused its discretion in dividing the property, and that the court's order dividing the marital property was against the great weight and preponderance of the evidence. According to Zorilla's brief, she was awarded a net amount of $725,106, or approximately sixty percent of the property, and Wahid was awarded a net amount of $479,257.60, or approximately forty percent of the marital estate.

In a divorce decree, the trial court shall order a division of the parties' estate in a manner that the court "deems just and right." TEX.FAM.CODE ANN. § 7.001 (Vernon 1998). Trial courts have wide discretion in making a just and right decision. Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex.1998). Under an abuse of discretion standard, legal and factual sufficiency are not independent grounds of error, but are relevant factors in assessing whether the trial court abused its discretion. In re H.S.N., 69 S.W.3d 829, 831 n. 1 (Tex.App. — Corpus Christi 2002, no pet.).¹

The community property need not be equally apportioned between the parties. Murff v. Murff, 615 S.W.2d 696, 698-99 (Tex.1981). The trial court may consider many factors, including the parties' earning capacities, education, business opportunities, physical condition, financial condition, age, size of separate estates, nature of the property, and the benefits that the spouse who did not cause the breakup of the marriage would have enjoyed had the marriage continued. Id. at 699; Walston v. Walston, 971 S.W.2d 687, 691 (Tex.App. — Waco 1998, pet. denied). The court may consider a spouse's dissipation of the community estate, as well as the spouse's misuse of community property. Vannerson v. Vannerson, 857 S.W.2d 659, 669 (Tex.App. — Houston [1st Dist.] 1993, writ denied). A disproportionate award may also be considered when a spouse conceals community assets. Rafidi v. Rafidi, 718 S.W.2d 43, 45 (Tex.App. — Dallas 1986, no writ). A spouse's failure to make court-ordered temporary support payments or failure to obey the court's temporary order restricting the use of community assets may also justify a disproportionate award from the community estate. Jones v. Jones, 699 S.W.2d 583, 585 (Tex.App. — Texarkana 1985, no writ).

The record contains evidence indicating that Wahid contributed less than an equal share to the family's finances, dissipated the family's assets, and failed to make court-ordered payments. However, the record also contains evidence from which the trial court may have inferred that Zorilla attempted to conceal assets by transferring them into a friend's name, misrepresented her income, and quit or cut back on her employment in order to obtain additional funds from Wahid.

Based on the record evidence, we conclude that the trial court did not abuse its discretion in awarding sixty percent of the marital estate to Zorilla. Schlueter, 975 S.W.2d at 589. Zorilla's second and third issues are overruled.

Child Support

In her fourth issue, Zorilla contends that Wahid is purposefully underemployed, and thus the child support amount should be increased to reflect his potential earnings. Alternatively, Zorilla argues that the trial court erred in ordering $1,500.00 per month in child support because "the amount is incorrect."

The trial court is accorded broad discretion in setting and modifying child support payments and, absent a clear abuse of discretion, the trial court's order will not be disturbed on appeal. In re Davis, 30 S.W.3d 609, 616 (Tex.App. — Texarkana 2000, no pet.); Stocker v. Magera, 807 S.W.2d 753, 754 (Tex.App. — Texarkana 1990, writ denied). In determining whether the trial court abused its discretion, we view the evidence in the light most favorable to the trial court's action, indulging every presumption in favor of the judgment. In re P.J.H., 25 S.W.3d 402, 405 (Tex.App. — Fort Worth 2000, no pet.). If some probative and substantive evidence supports the trial court's findings, the trial court did not abuse its discretion. Id.

Wahid's net resources exceeded $6,000 per month. If a parent's net resources exceed $6,000 per month, the court shall "presumptively" apply the percentage guidelines to the first $6,000 of the parent's net resources. TEX.FAM.CODE ANN. § 154.126 (Vernon 1996). The court may further order additional amounts of child support as appropriate, depending on the income of the parties and the proven needs of the child. Id.

However, if a parent's actual income is significantly less than he could earn because of his intentional unemployment or underemployment, the court may apply the child support guidelines to his earning potential rather than to his actual net resources. TEX.FAM.CODE ANN. § 154.066 (Vernon 1996); Davis, 30 S.W.3d at 616. To make a finding of intentional underemployment or unemployment, there must be evidence the parent reduced his income for the purpose of decreasing his child support payment. P.J.H., 25 S.W.3d at 405. The requisite intent, or lack thereof, to be underemployed or unemployed for the purpose of determining a child support award may be inferred from such circumstances as the parent's education, economic adversities, business reversals, business background, and earning potential. Davis, 30 S.W.3d at 617; P.J.H., 25 S.W.3d at 405-06. At the same time, the court must keep in mind a parent's right to pursue his or her own happiness. DuBois v. DuBois, 956 S.W.2d 607, 610 (Tex.App. — Tyler 1997, no pet.). Once the parent who is obligated to pay child support has offered proof of his or her current wages, the other parent bears the burden to show that the obligor is intentionally underemployed or unemployed. Id.

Zorilla argues that Wahid should pay additional child support on grounds that, if he changed jobs, he could earn as much as $350,000 annually, rather than the $145,000 that he made in 1999. Although Wahid, a licensed physician, is board-certified in oncology, he works in the mental health field rather than oncology. According to Zorilla, Wahid is "purposefully under employing himself' because he could earn much more by working in the field of his board certification.

Based on the record before this Court, we conclude that the trial...