Ricky Whitten v. Frances Whitten ( 1999 )

Ricky Whitten v. Frances Whitten

IN THE

TENTH COURT OF APPEALS

No. 10-98-095-CV

     RICKY WHITTEN,

                                                                              Appellant

     v.

     FRANCES WHITTEN,

                                                                              Appellee

From the 66th District Court

Hill County, Texas

Trial Court # 34,789

O P I N I O N

      This is an appeal of a judgment dissolving the marriage of Ricky Whitten and Frances Whitten, and in the interest of Richie Whitten, Samuel Whitten, Robert Whitten, and Melody Whitten, minor children.

FACTUAL BACKGROUND

      Ricky and Frances were married in 1981. In 1982, Ricky was injured in a collision. The personal injury suit filed as a result of the collision named Ricky and Frances as plaintiffs and asserted claims for pain and suffering, medical expenses, lost earnings, lost earning capacity and loss of consortium. The lawsuit was settled in 1985, and the settlement provided as follows:

1) $306,000.00 at the time of settlement ($60,000 of which was paid to the Whittens, the balance to their lawyer and the workers compensation carrier), and

2) an annuity, paying:

a) $2,025.00 monthly measured by the life of Ricky (guaranteed for thirty years);

b) an $18,000.00 lump sum payment in 1990;

c) a $30,000.00 lump sum payment in 1995;

d) a $52,000.00 lump sum payment in 2000; and

e) a $90,000.00 lump sum payment in 2005.

The annuity named Ricky as the measuring life, Frances as the primary beneficiary, and the contingent beneficiary as the “Trustee as Specified in Frances Whitten’s Will.” None of the settlement money already received was left at the time of the divorce.

      The only disputed issues at trial were the division of the unpaid balance of the annuity and the amount of child support. The court awarded Frances 35% of the future monthly annuity payments and the two future lump-sum payments. The court ordered Ricky to pay child support of $910.00 a month, based on his income as a truck driver and on his 65% of the future monthly annuity payments, including the lump sum payments.

      Neither party requested Findings of Fact and Conclusions of Law under Texas Rule of Civil Procedure 296 or Texas Family Code Section 154.130. Ricky appeals bringing five points of error. His first, second and fifth points of error will be considered together and then his third and fourth points of error will be considered.PROPERTY CHARACTERIZATION AND DIVISION

      By his first and second points of error, Ricky asserts that the evidence was legally and factually insufficient to support the trial court’s award of 35% of the personal injury settlement to Frances. Ricky’s fifth point of error asserts the court erred in considering circumstances other than those existing at the time of the divorce.

      The trial court is vested with broad discretion in making a “just and right” division of community property. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). The trial court’s division should be reversed on appeal only where an abuse of its discretion is shown such that the disposition made of such property is manifestly unjust and unfair. See Humble v. Humble, 805 S.W.2d 558, 562-63 (Tex. App.—Beaumont 1991, writ denied). An appellant attacking a division of property in a divorce proceeding has the heavy burden to show the trial court’s failure to characterize property as the separate property of one spouse resulted in a division that is not just and right. See Scott v. Scott, 805 S.W.2d 835, 841 (Tex. App.—Waco 1991, writ denied).

      Without Findings of Fact and Conclusions of Law, the judgment of the trial court must be affirmed if it can be upheld on any legal theory that finds support in evidence, and all necessary fact-findings in support of such judgment are implied. See Pharo v. Chambers County, 922 S.W.2d 945, 948 (Tex. 1996). To decide whether the trial court abused its discretion, this court will consider the evidence as a whole, with all reasonable inferences that may be drawn therefrom considered in the light most favorable to the appellee. See Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992).

      Ricky and Frances were both parties to the personal injury lawsuit which included claims for pain and suffering, medical expenses, lost earnings, lost earning capacity, and Frances’s claim for loss of consortium. Ricky and Frances both signed a release of their claims. The community recovered for lost income, lost earning capacity during marriage, and medical expenses, past and future. See Graham v. Franco, 488 S.W.2d 390, 396 (Tex. 1972). The separate estates of Ricky and Frances recovered for personal injuries, pain and suffering, and loss of consortium. See Whittlesey v. Miller, 557 S.W.2d 665, 669 (Tex. 1978). Because the settlement did not specify the amount of recovery for any of the individual claims, the trial court had to determine the amount of separate and community interests in the settlement and to divide any community interest.

      The Family Code provides that all property possessed during marriage or on dissolution of marriage is presumed to be community property and the party claiming that such property is separate must prove so by clear and convincing evidence. Tex. Fam. Code Ann. § 3.003 (Vernon 1998). A spouse who receives settlement proceeds from a lawsuit during marriage bears the burden of demonstrating what parts of the settlement, if any, are separate property. See Kyles v. Kyles, 832 S.W.2d 194 (Tex. App.—Beaumont 1992, no writ).

      Frances provided clear and convincing proof that some part of the settlement was her separate property by introducing the release she signed relinquishing her loss of consortium claim, and the court heard evidence about Frances’s loss of consortium to determine what amount of the settlement was her separate property. Frances testified that Ricky changed so much after the accident that Frances had to learn to love him again. She further testified that he lost his temper more, suffered from memory loss, and they argued more. Also, Frances testified that Ricky became physically violent toward her on at least two occasions after the accident and did not remember being violent afterwards. According to Frances’ testimony, Ricky began having affairs after the accident, and this caused her pain.

      The trial court could have properly found that the settlement was: a) part Ricky’s separate property, b) part Frances’ separate property, and c) part community property based on the pleadings in the personal injury lawsuit and the release signed in the settlement of the lawsuit. The trial court could have awarded Frances a separate property interest and a share of the community property interest in the future annuity payments as there was clear and convincing evidence of her separate property claim and evidence to sustain her loss of consortium claim. We cannot overturn the judgment just because we cannot say how much of the 35% the court awarded her was her separate property. The trial court’s judgment can be upheld on this theory. Ricky’s first and second points of error are overruled.

       Ricky’s fifth point of error asserts the court should not have awarded 35% of the personal injury settlement under the circumstances that existed at the time of the divorce, apparently complaining about Frances’s testimony of his post-settlement affairs. Because Ricky made no objection to Frances’s testimony at the trial level, his fifth point of error is waived.

CHILD SUPPORT

      By his third point of error, Ricky asserts the court erred in awarding 35% of the future lump sum payments to Frances because it reduced the amount of child support payable to the children and thus was not in their best interests. Ricky’s fourth point of error asserts the court erred in failing to deduct the amount of expense for health insurance coverage for the children from his available net resources as required by Section 154.062 (d) (5) of the Texas Family Code. Tex. Fam. Code Ann. §154.062(d) (Vernon 1998). Ricky did not request Child Support Findings under Section 154.130 of the Texas Family Code. His third and fourth points of error are overruled. Tex. Fam. Code Ann. §154.130 (Vernon 1998).

      The judgment of the trial court is affirmed.

                                                                         ROBERT M. CAMPBELL

                                                                         Justice (Sitting by Assignment)

Before Chief Justice Davis,

      Justice Vance and

      Justice Campbell (Sitting by Assignment)

Affirmed

Opinion delivered and filed May 12, 1999

Do not publish  

ze: 12pt">      Duty is always the threshold inquiry, which is a question of law for the court to decide. See Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). The operative question in this appeal is: did the hospital have a duty to Rebecca Cobb with respect to the pedicular hardware kit that was used in her operation. I have no difficulty in finding a duty under general negligence principles, considering the risk, foreseeability, and the likelihood of injury weighed against the social utility of the hospital's conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing that burden on the hospital. See Van Horn v. Chambers, 970 S.W.2d 542 (Tex. 1998) (citing the balancing test of Greater Houston Transp., 801 S.W.2d at 525 (Of all these factors, foreseeability of the risk is "the foremost and dominant consideration.")).

      negligence

      Under this record, a fact issue exists about whether the Hospital breached its duty and thereby contributed to Rebecca Cobb's injuries.

SUMMARY

      Because the summary judgment evidence raises genuine issues of material fact about a breach of duty by the Hospital and damages proximately resulting from the breach, I join in the decision to reverse the summary judgment and remand the cause for trial. El Chico, 732 S.W.2d at 311.

                                                                   BILL VANCE

                                                                   Justice

Opinion delivered and filed May 30, 2001

Publish