TATE v. TATE

OPINION

ANN CRAWFORD McCLURE, Justice.

In this appeal from a final decree of divorce, the only issue before us is whether certain assets were properly characterized as the separate property of Patsy Brashier Tate. We affirm.

FACTUAL SUMMARY

Patsy and Percy Tate were the only witnesses to testify during their divorce proceeding which was tried to the bench. Because the Tates have no minor children, the only issue presented was the division of marital property. Percy disputes the trial court's order confirming that certain assets were Patsy's separate property. The assets in question include a brokerage account at Salomon Smith Barney and $8,000 in travelers' checks.

The record reflects that the brokerage account was originally opened at Shearson Lehman Brothers with the funds of Patsy's father, John Brashier. Patsy helped her father open the account and her name appeared on the account as a joint tenant with the right of survivorship. In September 1991, Mr. Brashier died and Patsy became the sole owner of the account. Sometime between April 30, 1993 and August 28, 1994, Patsy became concerned about the fact that the account was in her name only. She obtained a signature card and had Percy sign it. Thereafter, Percy's name appeared on the account as a joint tenant with right of survivorship. Patsy testified that she decided to add Percy as a second signatory so that he could manage the account in the event she became incapacitated, or so that he would inherit it if she were to die. She and Percy did not discuss the matter and she did not intend to make a gift to Percy.

The record contains seven monthly statements from the brokerage account. The earliest statement available reflects that the original Shearson Lehman Brothers account had a net value of $101,631.69 on February 29, 1992. At that time, the names on the account were John Brashier, deceased, and Patsy Brashier Tate. By the time of trial, the account had been transferred from Shearson Lehman Brothers to Salomon Smith Barney, and had a net value of $50,172.60. After Mr. Brashier's death, Patsy received and reviewed all of the monthly statements, and she was the only one who wrote checks on the account. Patsy wrote checks to cover her living expenses, taxes, insurance, and gifts she bought her children and grandchildren. She also wrote a check for $9,000; $1,000 was taken in the form of cash, and the other $8,000 put into travelers' checks. Neither party made any deposits of community funds into the brokerage account.1 On appeal, Percy complains that the evidence is insufficient to support a finding that the brokerage account and travelers' checks are Patsy's separate property because she failed to trace the assets she inherited from her father.

CHARACTERIZATION OF ASSETS

This appeal proceeds without the benefit of findings of facts and conclusions of law. We therefore presume that the trial court made all necessary findings to support its judgment,2 and we will affirm based upon any legal theory finding support in the evidence. Wilkerson v. Wilkerson, 992 S.W.2d 719, 722 (Tex.App.-Austin 1999, no pet.).

The Presumption

All property on hand at the dissolution of marriage is presumed to be community property. Tex.Fam.Code Ann. § 3.003(a)(Vernon 1998). It is a rebuttable presumption, requiring a spouse claiming assets as separate property to establish their separate character by clear and convincing evidence. Tex.Fam.Code Ann. § 3.003(b). Property owned before marriage, or acquired during marriage by gift, devise or descent, is separate property. Tex.Fam.Code Ann. § 3.001. Community property consists of all property, other than separate property, acquired by either spouse during marriage. Tex.Fam.Code Ann. § 3.002.

Standards of Review

Legal Sufficiency

A legal sufficiency challenge to a fact-finding requiring clear and convincing evidence does not mandate an alteration in the standard of review. In re B.R., 950 S.W.2d 113, 118-19 (Tex.App.-El Paso 1997, no pet.). A "no evidence" or legal insufficiency point is a question of law which challenges the legal sufficiency of the evidence to support a particular fact finding. There are basically two separate "no evidence" claims. When the party having the burden of proof suffers an unfavorable finding, the point of error challenging the legal sufficiency of the evidence should be that the fact or issue was established as "a matter of law." When the party without the burden of proof suffers an unfavorable finding, the challenge on appeal is one of "no evidence to support the finding." See Kimsey v. Kimsey, 965 S.W.2d 690, 699-700 (Tex.App.-El Paso 1998, pet. denied). The latter applies here. In considering a legal sufficiency or "no evidence" point, an appellate court considers only the evidence which tends to support the challenged finding and disregards all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); Parallax Corp., N.V. v. City of El Paso, 910 S.W.2d 86, 89 (Tex.App.-El Paso 1995, writ denied). If any probative evidence supports the fact finder's determination, it must be upheld. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (Tex.1951); Kimsey, 965 S.W.2d at 700; Parallax Corp., 910 S.W.2d at 89.

Factual Sufficiency

"Insufficient evidence" or factual insufficiency involves a finding that is so against the great weight and preponderance of the evidence as to be manifestly wrong. When the party having the burden of proof complains of an unfavorable finding, the point of error should allege that the findings "are against the great weight and preponderance of the evidence." The "insufficient evidence" point of error is appropriate only when the party without the burden of proof on an issue complains of the court's findings. Kimsey, 965 S.W.2d at 700; Neily v. Aaron, 724 S.W.2d 908, 913 (Tex.App.-Fort Worth 1987, no writ). Once again, the latter applies here.

When the burden of proof at trial is by clear and convincing evidence, we apply a higher standard of factual sufficiency review. In re B.R., 950 S.W.2d at 118-19. After considering all of the evidence, we must determine not whether the trier of fact could reasonably conclude that the existence of a fact is more probable than not, as in ordinary civil cases, but whether the trier of fact could reasonably conclude that the existence of the fact is highly probable. Under this standard, we must consider whether the evidence was sufficient to produce in the mind of the fact finder a firm belief or conviction as to the truth of the allegations sought to be established. We will sustain an insufficient evidence point of error only if the fact finder could not have reasonably found the fact was established by clear and convincing evidence. In re B.R., 950 S.W.2d at 119; see also, Neiswander v. Bailey, 645 S.W.2d 835, 835-36 (Tex.App.-Dallas 1982, no writ); Mezick v. State, 920 S.W.2d 427, 430 (Tex.App.-Houston [1st Dist.] 1996, no writ); In the Interest of P.S. and L.S., 766 S.W.2d 833, 835 (Tex.App.-Houston [1st Dist.] 1989, no writ).

Even applying the heightened standard of review, a factual sufficiency point requires us to examine all of the evidence in determining whether the finding in question is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re B.R., 950 S.W.2d at 120-21; Parallax Corp., 910 S.W.2d at 89; Tseo v. Midland American Bank, 893 S.W.2d 23, 25 (Tex.App.-El Paso 1994, writ denied). The reviewing court cannot substitute its conclusions for those of the fact finder. If sufficient competent evidence of probative force exists to support the finding, it must be sustained. In re B.R., 950 S.W.2d at 121; Parallax Corp., 910 S.W.2d at 89; Tseo, 893 S.W.2d at 26; Texas Tech University Health Sciences Center v. Apodaca, 876 S.W.2d 402, 412 (Tex.App.-El Paso 1994, writ denied). We may not interfere with the fact finder's resolution of conflicts in the evidence or pass on the weight or credibility of the witnesses' testimony. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 796 (1951); Southwest Airlines Co. v. Jaeger, 867 S.W.2d 824, 829-30 (Tex.App.-El Paso 1993, writ denied). Where conflicting evidence is present, the fact finder's determination on such matters is generally regarded as conclusive. In re B.R., 950 S.W.2d at 121; Parallax Corp., 910 S.W.2d at 90.

Abuse of Discretion

An appeal directed toward demonstrating an abuse of discretion is one of the tougher appellate propositions. Most of the appealable issues in a family law case are evaluated against an abuse of discretion standard, be it the issue of property division incident to divorce or partition, conservatorship, visitation, or child support. While the appellant may challenge the sufficiency of the evidence to support findings of fact, in most circumstances, that is not enough. If, for example, an appellant is challenging the sufficiency of the evidence to support the court's valuation of a particular asset, he must also contend that the erroneous valuation caused the court to abuse its discretion in the overall division of the community estate.3 Here, however, we are asked to review an alleged characterization error. We must determine not only whether the trial court's finding of separate property is supported by clear and convincing evidence, we must also determine whether the characterization error, if established, caused the trial court to abuse its discretion. These two prongs require first, a showing of error, and second, a showing that the error was harmful. Tex.R.App.P. 44.1(a)(1)(no judgment may be reversed on appeal on the ground that the trial court made an error of law unless the court of appeals concludes that the error complained of probably caused the rendition of an improper judgment). In other words, Percy's argument should be that because of the trial court's characterization error, the size of the community pie was underestimated; as a result, the division of the community estate was manifestly unjust and Percy was served too small a slice.

Variations on a Mischaracterization Theme

Three fact scenarios establish the appropriate structure of an appellant's characterization contention. First, suppose Wife claims Blackacre is her separate property and Husband claims the asset is community property. Second, suppose the trial court characterizes it as community property and awards it to Wife. On appeal, Wife must establish error; she must challenge that the characterization is against the great weight and preponderance of the evidence [a factual sufficiency complaint] or that separate property status was established as a matter of law [a legal sufficiency complaint]. She must also establish that the characterization error was harmful—because of the mischaracterization, the overall division of property constitutes an abuse of discretion. In re Marriage of Morris, 12 S.W.3d 877, 884 (Tex.App.-Texarkana 2000, no pet. h.)(mere mischaracterization of separate property as community property does not require reversal; it is appellant's burden to prove that any disparity in the division was caused by the mischaracterization of property and that it was of such substantial proportions that it constituted an abuse of the trial court's discretion); Magill v. Magill, 816 S.W.2d 530, 533 (Tex.App.-Houston [1st Dist.] 1991, writ denied)(accord).

Now suppose that given the same fact pattern, the trial court characterizes Blackacre as Wife's separate property and awards it to her. This time, Husband appeals. He must first establish error by challenging the legal or factual sufficiency of the evidence to support the separate property characterization. He must also conduct a harm analysis—because of the mischaracterization, the overall division of property constitutes an abuse of discretion. Vandiver v. Vandiver, 4 S.W.3d 300, 302 (Tex.App.-Corpus Christi 1999, pet. filed)(mischaracterization of community property as separate property is not reversible unless the mischaracterization had more than a de minimus effect on the just and right division).

It is only in the third scenario that reversible error exists as a matter of law. In this example, Wife claims Blackacre is separate property and Husband claims it is community property. The trial court characterizes it as community property and awards it to Husband. If Wife can establish that Blackacre is her separate property, it is unnecessary to show harm because divestiture of separate property is reversible error. Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 140 (Tex.1977); In re Marriage of Morris, 12 S.W.3d at 881. In this singular instance, there is no need to demonstrate that the overall property division constitutes an abuse of discretion.

Assuming Mischaracterization Occurred, Was it Harmful?

The circumstances of the Tate divorce fall into the second of the three categories we have outlined. In his two points of error, Percy complains that there is "no evidence" or in the alternative "insufficient evidence" to support a finding that the brokerage account and travelers' checks were Patsy's separate property. He argues that Patsy failed to clearly identify any particular assets in the brokerage account at the time of her father's death and that she failed to trace the assets on hand at the time of divorce to the assets she allegedly inherited. Assuming without deciding that his contentions are correct, Percy's arguments nevertheless fail. He has not attempted to demonstrate how the purported mischaracterization caused the trial court to abuse its discretion or that it had more than a de minimus impact on a just and right division of the community estate. In short, he has wholly failed to conduct a harm analysis. Our review of the record indicates that no harm can be shown.

Although we do not have the benefit of formal findings of fact and conclusions of law, we do have a detailed final decree of divorce which confirms Patsy's and Percy's separate property and which indicates a value for the bulk of the assets.4 Additionally, the record contains Petitioner's Exhibit 9,5 and Respondent's Exhibit 4,6 which fill in most of the gaps left in the final decree. We can thus analyze the extent of the community estate, the valuation of the estate, and the percentage distribution to the parties.

Property Awarded to Patsy

By virtue of the final decree of divorce, Patsy was awarded the following community property:

       Asset                                      Value

2210 Cimmaron, Midland, Texas                    $ 65,000

Itemized household goods and furnishings         $  5,0807

Clothing, jewelry and personal effects           Unvalued

Norwest Bank Account # 7403065707                $    500

IRA account at Exxon Shareholder Investment
 Program # 0806957-0001                          $ 20,549

Policies of life insurance insuring her life     Unvalued

3000 shares of Exxon stock, Certificate
  # V400583                                      $180,000

18 shares of Exxon stock, Certificate
  # V095088                                      $  1,080

250 shares of Oklahoma Gas & Electric
stock, Certificate # NX120782                    $ 12,500

One-half of Merrill Lynch Account
  # 506-15756                                    $ 48,272

Undivided one-half interest in Pecos
  County property                                Unvalued

One-half of the advantage miles through

Citibank Advantage Account
  4128003125334876                               Unvalued
                                                 ________
Total Assets                                     $332,981

    Liability                                  Indebtedness

Dillard's Account # 08-874-711-8                 $     43
Debts incurred solely by Patsy after the
 date of separation                              $ 13,8008
Ad valorem taxes, liens and assessments
 on property awarded Patsy                       Unvalued
                                                 ________
Total Liabilities                                $ 13,843

Net Community Property Awarded to
 Patsy                                           $319,138

Property Awarded to Percy

By virtue of the final decree, Percy was awarded the following community property:

      Asset                                       Value

809 Canonero, Midland, Texas                     $150,000

Itemized household goods and furnishings         $  2,325

Clothing, jewelry and personal effects           Unvalued

Benchmark Credit Union checking account
  # 4855200-00186                                $  1,124

Retirement benefits from Exxon Company,
  USA                                            $ 38,2489

Policies of life insurance insuring her life     Unvalued10

3000 shares of Exxon stock, Certificate
  # N449865                                      $180,000

18 shares of Exxon stock, Certificate
  # H243722                                      $  1,080

One-half of Merrill Lynch Account
  # 506-15756                                    $ 48,272

1996 Buick Park Avenue                           $ 22,000

Undivided one-half interest in Pecos
  County property                                Unvalued

One-half of the advantage miles through

Citibank Advantage Account 4128 0031
  2533 4876                                      Unvalued
                                                 ________
Total Assets                                     $443,049

     Liability                                 Indebtedness

Mortgage on 809 Canonero                         $112,519

GMAC lien on 1996 Buick Park Avenue              $ 21,177

Benchmark Credit Union Account
  # 4855200-00197                                $  2,000

Citibank Advantage Visa Account
  # 4128 0031 2533 4873                          $  2,032

Debts incurred solely by Percy after the
  date of separation                             Unvalued11

Ad valorem taxes, liens and assessments
  on property awarded Percy                      Unvalued

1997 federal income tax liability                $  1,109
                                                 ________
Total Liabilities                                $138,837

Net Community Property Awarded to
  Percy                                          $304,212

Based on this analysis, the net value of the community estate was $623,350, which was divided between the parties with Patsy receiving 51 percent and Percy receiving 49 percent. If the brokerage account funds [$50,172] and the travelers' checks [$8,000] are added to the community and awarded to Patsy, the net value of the community estate is $681,522; the resulting percentage distribution is 55 percent awarded to Patsy and 45 percent awarded to Percy. The characterization error, if any, represents 8.5 percent of the total estate.

Disproportionate Division

The Family Code requires that the trial court divide the estate of the parties in a manner that is just and right having due regard for the rights of each party. Tex.Fam.Code Ann. § 7.001. There is no requirement that the court effectuate an equal division. Vandiver, 4 S.W.3d at 302, citing Murff v. Murff, 615 S.W.2d 696, 699 (Tex.1981). The courts have determined a number of factors which may justify a disproportionate division. Murff, 615 S.W.2d at 698-99. Without the benefit of findings of fact, Percy cannot establish whether the court intended to make a nearly-equal division, or whether it determined that a disproportionate division was justified, and if so, what factors were considered. Patsy specifically pled that the equities justified a disproportionate division, alleging the following factors:

Fault

As grounds for divorce, Patsy pled both insupportability and cruel treatment by Percy. However, the divorce was granted solely on the basis of insupportability. Further, there is no evidence in the record concerning fault in the breakup of the marriage, and accordingly, no testimony appears concerning the benefits the innocent spouse would have derived from a continuation of the marriage.

Age

The record reveals that as of the date of trial, Patsy was 68 years of age and Percy was 77. Their marriage had spanned some 47 years.

Need for Future Support

Percy was receiving Social Security benefits of $800 per month and retirement benefits through Exxon of $1,848 per month. Patsy was receiving Social Security benefits of $375 per month. By virtue of the property division, Percy would additionally receive Exxon stock dividends of $412; Patsy would receive Exxon stock dividends of $412, Oklahoma Gas & Electric stock dividends of $55, and rental income of $825. The rental income was derived from the Cimarron property, which had at one time been the marital residence. The home became rental property when the parties built the Canonero townhouse in 1982.

When the parties separated, Patsy stayed with various relatives, first in Monahans and later in Arkansas. She briefly rented a small home in Midland, but after a month, she returned to Arkansas to live with her aunt. She asked the court to award her the rental property, which she intended to sell in order to purchase a home and a new car.12 Thus, post-divorce, Patsy's income would be limited to $842, while Percy would have income of $3,060.

Percy took the position in the trial court that his monthly expenses included a house note of $782, common area maintenance of $135, pool maintenance of $100, and a car note of $477, leaving disposable income of $1,566. Giving him the benefit of the doubt in this regard, his income is still nearly twice that of Patsy's. Further, the trial court may not have believed it necessary that he continue to reside in the 3,000 square foot marital townhome.13

Attorneys' Fees

As we have noted, Patsy testified to accumulated attorneys' fees in the sum of $13,800. Percy indicated he had paid certain legal fees during the period of separation, but never testified to any outstanding fees which he had incurred.

Size and Nature of Separate Estates

Both parties claimed separate property. The trial court confirmed Patsy's separate property, including the following:

Utilizing the trial court's values where provided and otherwise accepting Percy's values, Patsy's separate estate totaled $73,602. The trial court also confirmed Percy's separate property as including:

Percy listed the value of the farm as unknown; utilizing his values for the remainder of the assets, his separate estate totaled $2,423.

CONCLUSION

In the absence of an issue concerning divestiture, we can draw the following conclusions. If property is mischaracterized and the mischaracterization affects the just and right division of the community estate, we must remand the entire community division. Evans v. Evans, 14 S.W.3d 343, 345 (Tex.App.-Houston [14th Dist.] 2000, no pet. h.), citing Robles v. Robles, 965 S.W.2d 605, 621 (Tex. App.-Houston [1st Dist.] 1998, pet. denied). If the mischaracterization has a de minimus effect on the division, then there has been no showing of an abuse of discretion. See id. It is only when the court mistakenly characterizes property that is of such magnitude that it materially affects the just and right division of the community estate that reversible error is demonstrated. Id. citing In re Marriage of Taylor, 992 S.W.2d 616, 621 (Tex.App.-Texarkana 1999, no pet.).

The trial court has broad discretion in effectuating the division of property on divorce and the division effectuated here was nearly equal. Yet in awarding Patsy 51 percent of the community estate, the trial judge may well have taken into consideration the $50,172.60 in the brokerage account and the $8,000 in travelers' checks which had been confirmed as her separate property and which were available for her future support. It is equally plausible that had the trial court characterized those assets as community property, the estate would have been divided disproportionately, given Patsy's established need for future support. In the absence of findings of fact and conclusions of law, Percy cannot show otherwise. On this record, we cannot conclude that a comparative 55 percent to 45 percent distribution in Patsy's favor constitutes an abuse of discretion. The characterization error, if any, is accordingly harmless. We affirm the judgment of the trial court.