Opinion
No. 12-06-00077-CV
Opinion delivered January 31, 2007. PUBLISH.
Appeal from the County Court at Law of Nacogdoches County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
MEMORANDUM OPINION
Bobby Dale Adkison appeals from a final decree of divorce. On appeal, Bobby presents six issues. We affirm.
BACKGROUND
Bobby and Sarah Elizabeth Adkison were divorced in 1983. They each married again, divorced, and remarried one another on June 1, 1985. On June 24, 2004, Sarah filed for divorce, requesting that she be awarded a disproportionate share of the parties' estate. In her amended petition, Sarah also requested attorney's fees, expenses, costs, and interest through trial. Both parties filed inventory and appraisements, itemizing their separate and community property assets. Bobby filed a motion for a hearing on spoliation of records, alleging that Sarah took all the parties' records from the home and had not produced or returned the records to him. In the motion, Bobby claimed the records were "essential" to tracing his separate property assets. Bobby requested that the trial court set a hearing on the motion, find that Sarah spoliated records, and either relieve him of his burden to trace his separate assets or conclude that the spoliated records would support his tracing of separate assets. According to the clerk's record, the trial court never set Bobby's motion for a hearing.
A bench trial on the divorce was held on April 25, May 20, and June 22, 2005. On June 24, Bobby filed a trial amendment, requesting reimbursement of his separate estate for funds or assets expended for payment of liabilities of the community estate. The final decree of divorce included a finding that Bobby was at fault for the breakup of the marriage and that there was a "great" disparity of earnings between the parties. The trial court found that the real property, including the Butler and Adams tracts, and the livestock, including cattle, was community property. Further, the trial court found that Bobby had a reimbursement claim against the real property of the parties and ordered that, upon the sale of the real property, Bobby was to be paid thirty-nine percent of the net proceeds as reimbursement to his separate estate. The trial court ordered the remaining sixty-one percent of the net proceeds from the sale of real and personal property community assets to be divided, with Sarah receiving sixty percent of the proceeds and Bobby receiving forty percent. The trial court appointed a receiver to take charge and possession of all real and personal community property unless otherwise agreed to by the parties. The trial court ordered that Bobby pay Sarah's attorney's fees through trial and further awarded Sarah attorney's fees in the amount of $10,000 in the event the case was appealed. This appeal followed.
This tract of approximately 31.91 acres located in Nacogdoches County, Texas was conveyed to Bobby on March 24, 1999. The deed included a recital that the consideration for the conveyance was "[ten dollars] and other good and valuable consideration."
This tract of approximately 65.35 acres located in Nacogdoches County, Texas was conveyed to Bobby and Sarah on March 1, 1989. The deed included a recital that the consideration for the conveyance was "[ten dollars] and other good, valuable and sufficient considerations, receipt of which is hereby acknowledged, and for which no lien, express or implied is reserved."
STANDARD OF REVIEW
We review a trial court's division of property under an abuse of discretion standard. Moroch v. Collins , 174 S.W.3d 849, 857 (Tex.App. — Dallas 2005, pet. denied); see also Garza v. Garza , No. 04-03-00888-CV, 2006 WL 2871256, at *5 (Tex.App.-San Antonio Oct. 11, 2006, no pet.). A trial court does not abuse its discretion if there is some evidence of a substantive and probative character to support the decision. Garza , 2006 WL 2871256, at *5; Moroch , 174 S.W.3d at 857. Further, we review a trial court's findings for legal and factual sufficiency. Garza , 2006 WL 2871256, at *5; Moroch , 174 S.W.3d at 857. However, in family law cases, the abuse of discretion standard of review overlaps with the traditional sufficiency standards of review and, as a result, legal and factual sufficiency are not independent grounds of reversible error. Garza , 2006 WL 2871256, at *5; Moroch , 174 S.W.3d at 857. Instead, they constitute factors relevant to our assessment of whether the trial court abused its discretion. Garza , 2006 WL 2871256, at *5; Moroch , 174 S.W.3d at 857. Thus, in considering whether the trial court abused its discretion because the evidence is legally or factually insufficient, we apply a two prong test: (1) whether the trial court had sufficient evidence upon which to exercise its discretion, and (2) whether the trial court erred in its application of that discretion. Garza , 2006 WL 2871256, at *5; Moroch , 174 S.W.3d at 857. We then consider whether, based on the evidence, the trial court made a reasonable decision. Garza , 2006 WL 2871256, at *5; Moroch , 174 S.W.3d at 857.
DIVISION OF COMMUNITY PROPERTY
A trial court is charged with dividing the estate of the parties in a "just and right" manner, considering the rights of both parties. TEX. FAM. CODE ANN. § 7.001 (Vernon 2006); Jacobs v. Jacobs , 687 S.W.2d 731, 733 (Tex. 1985); Moroch , 174 S.W.3d at 855. Property possessed by either spouse during or on dissolution of marriage is presumed to be community property. TEX. FAM. CODE ANN. § 3.003(a) (Vernon 2006). To overcome this presumption, a party must present clear and convincing evidence that the property is separate. Id .; Garza , 2006 WL 2871256, at *4. "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. TEX. FAM. CODE ANN. § 101.007 (Vernon 2002). In order to overcome the community property presumption, the burden is on the spouse claiming certain property as separate to trace and clearly identify the property claimed to be separate. Boyd v. Boyd , 131 S.W.3d 605, 612 (Tex.App.-Fort Worth 2004, no pet.). Tracing involves establishing the separate origin of the property through evidence showing the time and means by which the spouse originally obtained possession of the property. Id . As a general rule, mere testimony that property was purchased with separate funds, without any tracing of the funds, is insufficient to rebut the community property presumption. Garza , 2006 WL 2871256, at *4; Moroch , 174 S.W.3d at 855. Any doubt as to the character of property should be resolved in favor of the community estate. Garza , 2006 WL 2871256, at *4; Moroch , 174 S.W.3d at 856.
FINDINGS OF FACT
Initially, we must determine whether the trial court made findings of fact and conclusions of law. Bobby argues that the trial court made findings of fact and conclusions of law on pages five and six of the final decree of divorce and that they were sufficient to be challenged on appeal. We disagree. Under the Texas Rules of Civil Procedure, any party may request the trial court to state in writing its findings of fact and conclusions of law. TEX. R. CIV. P. 296. Under the Texas Family Code in a suit for dissolution of marriage in which the trial court has rendered a judgment dividing the estate of the parties and upon a request by a party, the trial court shall state in writing its findings of fact and conclusions of law. TEX. FAM. CODE ANN. § 6.711 (Vernon 2006). A request for findings and conclusions under section 6.711 of the Texas Family Code must conform to the Texas Rules of Civil Procedure. Id. Moreover, findings of fact "shall not" be recited in a judgment and must be filed with the clerk of the court as a document or documents separate and apart from the judgment. TEX. R. CIV. P. 299a.
In this case, no findings of fact or conclusions of law were requested or filed under either the Texas Rules of Civil Procedure or the Texas Family Code. Thus, we conclude that there are no findings of fact or conclusions of law to be challenged on appeal. See Frommer v. Frommer , 981 S.W.2d 811, 814 (Tex.App.-Houston [1st Dist.] 1998, pet. dism'd). Accordingly, we presume that the trial court made all necessary findings to support its judgment. Worford v. Stamper , 801 S.W.2d 108, 109 (Tex. 1990); Frommer , 981 S.W.2d at 813. If the trial court's implied findings are supported by the evidence, we must uphold its judgment on any theory of law applicable to the case. Worford , 801 S.W.2d at 109; Boyd , 131 S.W.3d at 611.
BUTLER TRACT AND SPOLIATION
In his first issue, Bobby contends that he paid off a note on the Butler tract and that the trial court erred in failing to find a reimbursement claim against that tract. Sarah argues that the Butler tract was purchased before Bobby sold the hardware store, which was the alleged source of the funds to purchase this tract. She also contends that Bobby produced no records to support his claim. Regarding any lack of documentary evidence related to his reimbursement and separate property claims, Bobby contends in his fourth issue that this court should reverse and remand the trial court's decision based upon the spoliation of evidence. Sarah argues that Bobby never obtained a ruling from the trial court and, as such, has waived his complaint.
Applicable Law
A claim for reimbursement includes payment by one marital estate of the unsecured liabilities of another marital estate. TEX. FAM. CODE ANN. § 3.408 (Vernon 2006). The trial court shall resolve a claim for reimbursement by using equitable principles, including the principle that claims for reimbursement may be offset against each other if the court determines it to be appropriate. Id . The party claiming the right of reimbursement has the burden of pleading and proving that the expenditures and improvements were made and that they are reimbursable. Vallone v. Vallone , 644 S.W.2d 455, 459 (Tex. 1982). Reimbursement is not a matter of law, but lies within the discretion of the trial court. Id .
Spoliation is the improper destruction of evidence relevant to a case. Kang v. Hyundai Corp. , 992 S.W.2d 499, 502 (Tex.App.-Dallas 1999, no pet.). Intentional spoliation of evidence relevant to a case raises a presumption that the evidence would have been unfavorable to the cause of the spoliator. Ordonez v. M.W. McCurdy Co., Inc. , 984 S.W.2d 264, 273 (Tex.App.-Houston [1st Dist.] 1998, no pet.). When a party believes that another party has improperly destroyed evidence, it may either move for sanctions or request a spoliation presumption instruction. Trevino v. Ortega , 969 S.W.2d 950, 954 (Tex. 1998) (Baker, J., concurring). At that point, a trial court should determine whether sanctions or a presumption is justified. Id. However, as a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion. TEX. R. APP. P. 33.1(a)(1). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly or refused to rule on the request, objection, or motion, and the complaining party objected to the refusal. TEX. R. APP. P. 33.1(a)(2).
Analysis
According to the deed admitted into evidence, Bobby acquired the Butler tract on March 24, 1999. Bobby admitted that he bought the land during his marriage. He testified that he paid for the property with separate funds after selling stock in a hardware store. However, he admitted that the deed indicated he paid cash for the property. Bobby's testimony and the couple's 1999 federal income tax records confirm that Bobby sold 100 shares of Circle A Hardware, Inc. stock. The federal income tax records reflect that the sale took place in September 1999, while Bobby and his expert witness, James T. Davis, testified that the sale was completed in November 1999. Bobby acknowledged that he lacked any documentation supporting his claim for reimbursement to his separate property estate. Davis, a certified public accountant, testified that he originally attempted to prepare a formal tracing of Bobby's separate property, but records such as bank statements, real estate closing statements, deeds, and household records were unavailable. Because the Butler tract was purchased during the marriage, the property was presumed to be community property. See TEX. FAM. CODE ANN. § 3.003(a). The evidence confirmed Bobby's testimony that he purchased the tract before he sold the hardware store stock, and both Bobby and Davis admitted that they were unable to trace his separate funds from the sale of the stock to the purchase of the tract. As such, Bobby's testimony that he purchased the tract with separate funds, without any tracing, was insufficient to rebut the community property presumption. See Boyd , 131 S.W.3d at 612. Because the Butler tract was community property and part of the community marital estate, the trial court did not err by failing to find that Bobby had a reimbursement claim against the Butler tract. See TEX. FAM. CODE ANN. § 3.408. Accordingly, we overrule Bobby's first issue.
Bobby argues that Sarah spoliated records resulting in a lack of documentary evidence related to his claims of reimbursement and separate property. Consequently, he contends that we should reverse and remand the trial court's decision. Bobby filed a motion on spoliation of records, but the trial court never set the motion for a pretrial hearing nor did Bobby obtain a ruling on his motion during trial. In his motion for new trial, Bobby never mentioned or objected to the trial court's failure to rule on his spoliation motion, but instead based his request for a new trial on the appointment of a receiver. As a prerequisite to presenting a complaint on appeal, a party must either get a ruling from the trial court or object to the trial court's failure to rule. See TEX. R. APP. P. 33.1(a)(2). Because the trial court never ruled on Bobby's motion and Bobby never objected to the trial court's failure to rule, he has waived his spoliation complaint. See TEX. R. APP. P. 33.1(a)(2). Accordingly, we overrule Bobby's fourth issue.
ADAMS TRACT
In his second issue, Bobby contends that the trial court abused its discretion in finding the Adams tract of land to be community property. He argues that this tract of land was exchanged for a tract of land he owned when he was single. Sarah contends that the deed to the property reflects the tract was purchased in both their names during the marriage and that Bobby offered no evidence to support his claim. According to the deed admitted into evidence, Bobby and Sarah bought the Adams tract on March 1, 1989, which was during the marriage. He admitted that the land was acquired in both parties' names and that the deed indicated he paid cash for the property. However, Bobby testified that he traded property he bought while he was still single for the Adams tract. However, he did not know if he advised his accountant that he traded properties even though he knew "like-for-like" transfers were not taxable. Also, Bobby could not recall completing the appropriate tax documents regarding the transfer of properties.
Because the Adams tract was purchased during the marriage, the property was presumed to be community property. See TEX. FAM. CODE ANN. § 3.003(a). Moreover, a deed from a third party in the names of both husband and wife raises a presumption that the property is community property. Dutton v. Dutton , 18 S.W.3d 849, 852 (Tex.App.-Eastland 2000, pet. denied). Bobby offered no documentation that the Adams tract was exchanged for another property that he acquired while he was single. In fact, the documentary evidence suggests that he and Sarah paid cash for the property. Thus, Bobby's testimony that he traded another property for the Adams tract, without any tracing, was insufficient to rebut the community property presumption. See Boyd , 131 S.W.3d at 612. Because there was insufficient evidence to rebut the community property presumption, the trial court did not abuse its discretion in finding the Adams tract to be community property. See Garza , 2006 WL 2871256, at *4-5; Moroch , 174 S.W.3d at 856-57. Accordingly, we overrule Bobby's second issue.
CATTLE
In his third issue, Bobby argues that the trial court abused its discretion in finding that fifty-six cows were community property. He contends that he received sixty head of cattle as part of the consideration for the sale of his separate property hardware business. Bobby further argues that fifty-six or fifty-seven of the original sixty head of cattle still exist and can be specifically identified by their brands. Sarah contends that Bobby offered no proof of the original transaction or his claim that the cows could be and were properly identified. At trial, Bobby testified that part of the consideration for the sale of the hardware store stock in 1999 was sixty cows. One of the exhibits introduced during trial included a breakdown of the hardware store stock sale, which contained a statement by the buyer that he traded sixty cows to Bobby as part of the purchase price. The breakdown was signed by the buyer and acknowledged before a notary public on November 15, 2004. Sarah objected that the statement was hearsay. The trial court responded that the exhibit had already been admitted under advisement, but then sustained part of the objection, noting that the statement may have been hearsay. Bobby's attorney state that Sarah may have waived her objection because she did not object to the hearsay when the exhibit was first introduced.
Bobby testified that these cows, known as the "Barton" cows, had identification brands and that, at the time of trial, he still owned approximately fifty-six or fifty-seven of these cows. He acknowledged lacking documentation regarding the sale of the rest of the cattle. According to their 1999 joint federal income tax return, Bobby and Sarah acquired thirty-five cows and one bull on September 1, 1999, which were designated in parentheses as "Barton." Their 2000 joint federal income tax return identified fifteen cows and one bull as Barton cows. In another section of that same tax return, the parties stated that they had sold twenty cows, but there was no designation that these were Barton cows.
Sandra Vanover, a certified public accountant, stated that she had prepared Bobby's income tax returns since 1986. She implied that Bobby obtained the sixty cows when he purchased fifty shares of hardware store stock "way back when." Davis testified that the 1999 joint income tax return contained an entry on the depreciation schedule corresponding to the date of the stock sale that represented the cattle received in the sale. Although Davis admitted that the entry indicated thirty-five cows and one bull, he believed that this entry may have been a typographical error. He stated that the average purchase price of other cattle acquired by Bobby the same year indicated that the value of the Barton cattle would have been almost two and one half times as much unless there were sixty, not thirty-six, cows.
Because the Barton cows were acquired during the marriage, the cattle were presumed to be community property. See TEX. FAM. CODE ANN. § 3.003(a). Bobby did not produce any receipt for the Barton cattle and his testimony that he received the cattle as part of the stock sale, without any tracing, was insufficient to rebut the community property presumption. See Boyd , 131 S.W.3d at 612. However, Bobby offered, as documentary evidence, the breakdown statement from the buyer of the stock. Nonetheless, the trial court appeared to sustain Sarah's objection that the statement was hearsay. Even if Sarah waived her objection, the statement is not clear and convincing evidence of Bobby's separate property. The statement did not appear to be part of the original sale documents and appeared to have been created four years after the stock sale. Moreover, the breakdown and Bobby's testimony indicated that there were sixty cattle involved in the trade, while only thirty-six cattle were designated as "Barton" cows in the 1999 tax return. Further, Bobby did not produce evidence, other than his own testimony, that fifty-six or fifty-seven Barton cattle existed at the time of trial. Because Bobby could not produce clear and convincing evidence that he received sixty cows as part of the stock sale and that fifty-six or fifty-seven of those cattle remained in his possession, there was insufficient evidence to rebut the community property presumption, and the trial court did not abuse its discretion in finding the cattle to be community property. See Garza , 2006 WL 2871256, at *4-5; Moroch , 174 S.W.3d at 856-57. Accordingly, we overrule Bobby's third issue.
RECEIVER
In his fifth issue, Bobby argues that the trial court abused its discretion in appointing a receiver. He contends that neither party requested a receiver nor was there any evidence supporting the appointment of a receiver. Sarah argues that the trial court was within its discretion to make the appointment in the event the parties could not reach an agreement about the property.
Applicable Law
A trial court has broad powers to enlist the aid of a receiver in order to effectuate its orders and judgments. Vannerson v. Vannerson , 857 S.W.2d 659, 673 (Tex.App.-Houston [1st Dist.] 1993, writ denied). The appointment of a receiver is left to the discretion of the trial court. Id .; see also In re W.T. Waggoner Estate , 163 S.W.3d 161, 165 (Tex.App.-Amarillo 2005, no pet.). However, receivership is an extraordinarily harsh remedy and the appointment of a receiver, without notice, is one of the most drastic actions known to law or equity and should be exercised with extreme caution and only in great emergency or imperative necessity. Rusk v. Rusk , 5 S.W.3d 299, 306 (Tex.App.-Houston [14th Dist.] 1999, pet. denied). In fact, the trial court has a duty to initially determine if the parties' community property is subject to partition in kind. Id . at 307 (citing Hailey v. Hailey , 331 S.W.2d 299, 303 (Tex. 1960)). If so, the trial court must equitably divide the community property between the parties. Id . If not, the trial court can appoint a receiver and order so much of the property as is incapable of partition to be sold and the proceeds divided between the parties in such portions as may be a just, fair, and equitable partition. Id .
Analysis
In the final decree of divorce, the trial court found that, after hearing the evidence and argument of counsel, proper grounds existed for the appointment of a receiver. Thus, the trial court appointed a receiver to take charge and possession of the parties' community property unless otherwise agreed to by the parties. As noted above, there were no findings of fact and conclusions of law. Accordingly, we presume that the trial court made all necessary findings to support the final decree of divorce. Worford , 801 S.W.2d at 109; Frommer , 981 S.W.2d at 813.
In its decree, the trial court found that the community property included a ranching operation and a poultry farming operation. Sarah testified that she had no objection to the trial court ordering the sale of the properties and dividing the proceeds, and also admitted she had no objection to Bobby keeping the "farm" if he could "pay [her] off." Bobby stated that he had no objection to selling the poultry operation. The evidence at trial showed that the farming and ranching operations were in very close proximity to each other and, thus, may not have been easily segregated. Also, the trial court found that Bobby had a large reimbursement claim against the community property. Finally, the trial court ordered a receiver only if the parties could not otherwise agree upon a disposition of their community property. Because the trial court found that Bobby had a large reimbursement claim against the community property, the ranching and farming operations may not have been easily segregated, and a receiver would be appointed only if the parties could not agree on the disposition of their community property, we conclude that the trial court did not abuse its discretion in appointing a receiver. In re Waggoner Estate , 163 S.W.3d at 165; Vannerson , 857 S.W.2d at 673. Accordingly, we overrule Bobby's fifth issue.
APPELLATE ATTORNEY'S FEES
In his sixth issue, Bobby contends that the trial court abused its discretion in awarding appellate attorney's fees to Sarah's attorney. He argues that this award is typed in, indicating that it was an afterthought. Moreover, Bobby contends that no testimony or evidence was presented at trial as to the reasonableness and necessity of appellate attorney's fees. Sarah argues that she offered the amount of appellate fees pursuant to a stipulation of evidence.
Applicable Law
We will not disturb a trial court's award of attorney's fees absent an abuse of discretion. Hall v. Hubco, Inc. , No. 14-05-00073-CV, 2006 WL 300314, at *8 (Tex.App.-Houston [14th Dist.] Feb. 9, 2006, pet. denied). Expert testimony is required to support an award of attorney's fees. Cantu v. Moore , 90 S.W.3d 821, 826 (Tex.App.-San Antonio 2002, pet. denied). A trial court has no authority to adjudicate the reasonableness of attorney's fees on judicial knowledge without evidence. Id. However, a stipulation constitutes some evidence of the reasonableness of requested attorney's fees. Hall , 2006 WL 300314, at *8.
No agreement between attorneys or parties touching any suit will be enforced unless it be in writing, signed, and filed with the papers as part of the record, or unless it be made in open court and entered of record. TEX. R. CIV. P. 11. A stipulation is "an agreement, admission, or concession made in a judicial proceeding by the parties or their attorneys, respecting some matter incident thereto." Herschbach v. City of Corpus Christi , 883 S.W.2d 720, 734 (Tex.App.-Corpus Christi 1994, writ denied) (quoting Nat'l Union Fire Ins. Co. v. Martinez , 800 S.W.2d 331, 334 (Tex.App.-El Paso 1990, no writ)). It constitutes a binding contract between the parties, may be used to limit or exclude the issues to be tried, and even obviates the need for proof on the litigable issue. ExxonMobil Corp. v. Valence Operating Co. , 174 S.W.3d 303, 311 (Tex.App.-Houston [1st Dist.] 2005, pet. denied). A stipulation made in open court is not enforceable unless the parties dictate into the record all material terms of the agreement and their assent. Herschbach ,, 883 S.W.2d at 734.
Analysis .
Although Bobby argues that the award of attorney's fees on appeal was an afterthought, the evidence at trial contradicts his claim. On the third hearing date, Sarah's attorney stated that he and Bobby's attorney had talked and stipulated that, if the case was appealed, "the prevailing party would be entitled to reasonable attorney['s] fees of [$10,000] to the Court of Appeals." The trial court asked Bobby's attorney if it was an agreed stipulation. Bobby's attorney stated that it was. Sarah's attorney reiterated their agreement in closing argument and requested a judgment for that amount of attorney's fees if the case was appealed. In the divorce decree, the trial court awarded Sarah $10,000 in attorney's fees "in the event this case is appealed."
We next consider whether evidence was presented at trial as to the reasonableness and necessity of appellate attorney's fees. Sarah's attorney stated, in open court, that the "reasonable" attorney's fees for an appeal was $10,000, and Bobby's attorney agreed. This stipulation constituted a binding contract between Bobby and Sarah, and obviated the need for proof on the issue of appellate attorney's fees. ExxonMobil Corp. , 174 S.W.3d at 311. Thus, the parties' stipulation was some evidence of the reasonableness of attorney's fees. See Hall , 2006 WL 300314, at *8. Because the parties stipulated in open court to reasonable attorney's fees on appeal, the trial court did not abuse its discretion in awarding appellate attorney's fees to Sarah's attorney. See Hall , 2006 WL 300314, at *8; Herschbach , 883 S.W.2d at 734. Accordingly, we overrule Bobby's sixth issue.
DISPOSITION
The judgment of the trial court is affirmed .