Claude L. Dailey v. Patricia Ann Dailey and William J. Brotherton ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00097-CV
Claude L. Dailey § From the 324th District Court
§ of Tarrant County (324-486706-10)
v.
§ January 10, 2013
Patricia Ann Dailey and William J.
Brotherton § Opinion by Justice Meier
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgment. It is ordered that the judgment of
the trial court is affirmed.
It is further ordered that Appellant Claude L. Dailey shall pay all costs of
this appeal, for which let execution issue.
SECOND DISTRICT COURT OF APPEALS
By_________________________________
Justice Bill Meier
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00097-CV
CLAUDE L. DAILEY APPELLANT
V.
PATRICIA ANN DAILEY AND APPELLEES
WILLIAM J. BROTHERTON
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FROM THE 324TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Claude L. Dailey (―Dailey‖) appeals the trial court’s final decree
of divorce. In three issues, Dailey contends that the evidence is legally and
factually insufficient to support the trial court’s implied finding of fraud; that the
trial court erred by awarding appellee Patricia Ann Dailey (―Wife‖) an equitable
1
See Tex. R. App. P. 47.4.
2
lien against his separate property; and that the trial court erred by awarding
spousal maintenance and a disproportionate division of community property. We
will affirm.
II. BACKGROUND
Wife sued Dailey, her husband of fifty years, for divorce on October 27,
2010. With her petition, Wife also filed a supporting affidavit wherein, among
other things, she contended that Dailey had been draining community financial
assets without her permission. On the same day, the trial court entered a
temporary restraining order and set the order for hearing. On December 7, 2010,
Dailey, through his attorney William Brotherton, filed an original answer, counter-
petition for divorce, and a request that the court abate all action in this
proceeding ―pending physical and psychological evaluations on both parties.‖
Also on December 7, 2010, the parties agreed to a mutual temporary
injunction. On December 20, 2010, Wife filed her first amended petition for
divorce. In her petition, Wife specifically requested that she be awarded a
disproportionate share of the community estate based on, among other things,
fraud on the community. Nine days later, the trial court conducted a hearing on
the temporary orders, but Dailey did not appear. The trial court ordered
temporary spousal support of $5,070 per month. The trial court also ordered
mutual temporary injunctions against both parties. Dailey later filed a motion for
―De Novo Hearing on Temporary Spousal Support.‖ The motion was initially set
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for hearing, but the hearing was continued due to Wife’s attorney having been in
a car accident.
On February 14, 2011, Brotherton filed an agreed motion to withdraw as
Dailey’s counsel. Brotherton later filed an intervention for attorney’s fees, which
was eventually granted by the trial court. Shortly after Brotherton filed the motion
to withdraw, Dailey filed a 207-page, pro se motion for continuance regarding his
motion for a hearing on temporary spousal support. In his motion, Dailey
contended that he needed a continuance because he did not have his file from
Brotherton. The trial court granted the continuance, rescheduling the hearing for
March 18, 2011.
Brotherton filed a brief regarding Dailey’s motion for continuance. In his
brief, Brotherton indicated that contrary to Dailey’s contention, he had provided
Dailey a complete copy of his entire file on February 21, 2011, one week after
filing his motion to withdraw. Dailey filed a second motion for continuance on
March 16, 2011, which was never ruled on. Two days later, the trial court heard
Dailey’s motion regarding temporary spousal support. Dailey appeared
telephonically. At the hearing, Dailey testified that at that time he made only
$1,700 monthly and that he was no longer employed. But on cross-examination,
Wife introduced paystubs indicating that Dailey was still employed and making
more than $4,000 bi-weekly. Dailey admitted that he had withdrawn over
$600,000, which was in violation of the temporary injunction, but he said that the
monies were ―history.‖ The trial court admonished Dailey for having not shown
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up at the hearing in person. The trial court also openly expressed that it
questioned Dailey’s veracity regarding Brotherton having given him the case file,
Dailey’s alleged lack of earnings, and Dailey’s reason for not having appeared at
the hearing in person.
Over the next month, Dailey filed numerous documents, including
objections to spousal maintenance, motions to strike evidence, motions to lift
restraining orders, and motions for the trial court judge to recuse himself. Dailey
appealed the denial of the judge’s recusal to this court and the temporary orders,
which were dismissed.
In addition to violating the temporary injunction, the record indicates that
Dailey also violated discovery orders. On July 14, 2011, the trial court heard
Wife’s motion to compel; Dailey again did not appear. Wife filed numerous
motions herself, including a motion for enforcement and for modification of
temporary orders designed at securing temporary support. On July 19, 2011, the
trial court signed an order to compel discovery and also granted sanctions
against Dailey.
After a further motion to compel discovery and for sanctions were granted
against Dailey, the trial court found on August 24, 2011, that Dailey had failed to
pay spousal support as ordered. The trial court ordered a judgment against
Dailey in the amount of $45,630. Afterwards, the trial court granted additional
motions to compel discovery, for sanctions, and for enforcement against Dailey.
On November 30, 2011, Dailey filed a motion for continuance regarding the final
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trial. In his motion, Dailey contended again that he did not have his file from
Brotherton. The trial court held the trial on December 8, 2011. Once again,
Dailey failed to appear. The trial court noted on the record that Dailey had failed
to appear at several hearings in the case. The trial court also overruled Dailey’s
November 30 motion for continuance.
At trial, Wife testified that she and Dailey had been married since 1960,
and that they ceased living together on October 24, 2010. Wife testified that she
was seeking a disproportionate award of the community estate based on fraud
committed on the community, as well as fault in the breakup of the marriage and
her health conditions. Wife testified that Dailey works for Lloyd’s Register Energy
Americas and that he made more than $100,000 annually. She also submitted in
evidence records that were subpoenaed from Lloyd’s Register regarding Dailey’s
employment and compensation. She also provided testimony regarding the
couple’s finances. Wife then submitted records from their various bank accounts,
which indicated several withdrawals and transfers made by Dailey while the
temporary restraining order was in place. Specifically, Wife introduced evidence
of a summary of transactions by Dailey demonstrating that he had withdrawn
$625,099.59 from community accounts during the pending of this divorce action.
The trial court granted the divorce. In its order, the trial court awarded
Wife a monetary judgment against Dailey in the amount of $226,276. To secure
payment regarding this award, the trial court placed an equitable lien on one of
Dailey’s separate properties located in Gladewater, Texas. The trial court also
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ordered Dailey to pay $1,732 monthly spousal maintenance to Wife. Additionally,
the trial court confirmed past-due amounts owed by Dailey pursuant to earlier
court orders in the amount of $65,910 to Wife and $21,000 in Wife’s attorney’s
fees. The trial court also awarded $43,680.04 to Brotherton for the attorney’s
fees incurred by Dailey. This appeal followed.
III. DISCUSSION
A. Fraud on the Community
In part of his first issue, Dailey contends that the evidence is legally and
factually insufficient to support evidence of fraud on the community.2 We
disagree.
2
In his brief, and prior to reaching his first stated issue, Dailey contends
that his motion for new trial was improperly overruled by operation of law, that
Wife ―used fraudulent means to procure default,‖ that a new trial would not work
hardship to Wife, and that he ―had meritorious defenses.‖ Even though these
sub-issues seem to invoke the Craddock factors regarding the legality of
attacking a default judgment, we agree with Wife that these introductory sections
to this issue are ―confusing.‖ See Craddock v. Sunshine Bus Lines, Inc., 134
Tex. 388, 393, 133 S.W.2d 124, 126 (1939). We address the issue because,
even though not addressed in a motion for new trial, legal and factual sufficiency
can be raised for the first time on appeal when, like here, the trial was held to the
bench. See Tex. R. Civ. P. 324(a). Dailey also inserts a section in this portion of
his brief titled, ―The Court Manifested Bias Against [Dailey].‖ It is not clear how
this allegation affects Dailey’s overall contention that the trial court erred by
impliedly finding fraud on the community, but we agree with Wife that whatever
issue Dailey is attempting to raise is inadequately briefed. See Sunnyside
Feedyard, L.C. v. Metro. Life Ins. Co., 106 S.W.3d 169, 173 (Tex. App.—Amarillo
2003, no pet.) (―Failure to brief, or to adequately brief, an issue by an appellant
effects a waiver of that issue on appeal.‖).
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1. Standard of Review
When a party attacks the factual sufficiency of an adverse finding, we
examine the entire record, considering the evidence both in favor of and contrary
to the challenged finding. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
We must consider all the evidence and determine whether the adverse finding is
so weak and against the great weight and preponderance of the evidence that it
is clearly wrong and unjust. Id.
A ―no evidence‖ or legal insufficiency point is a question of law that
challenges the legal sufficiency of the evidence to support a particular fact
finding. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). In
determining whether the evidence is legally sufficient to support a factfinder’s
determination, we must determine whether the evidence before the court would
allow reasonable and fair-minded people to find the facts at issue. Id. We
consider all of the evidence in the light most favorable to the challenged finding
and indulge every reasonable inference that would support it, crediting favorable
evidence if a reasonable factfinder could and disregarding contrary evidence
unless a reasonable factfinder could not. Id. Anything more than a scintilla of
evidence is legally sufficient to support the finding. Cont’l Coffee Prods. Co. v.
Cazarez, 937 S.W.2d 444, 450 (Tex. 1996).
2. Law Pertaining to Fraud on the Community
A fiduciary duty exists between a husband and a wife regarding the
community property controlled by each spouse. Zieba v. Martin, 928 S.W.2d
8
782, 789 (Tex. App.—Houston [14th Dist.] 1996, no writ). Although a spouse has
the right to dispose of community property under his control, he may not dispose
of his spouse’s interest in community funds if actual or constructive fraud exists.
Mazique v. Mazique, 742 S.W.2d 805, 807–08 (Tex. App.—Houston [1st Dist.]
1987, no writ). ―Fraud on the community‖ is a judicially created concept based
on the theory of constructive fraud and is applied when there is a breach of a
legal or equitable duty which violates the fiduciary relationship existing between
spouses. Zieba, 928 S.W.2d at 789. Although not actually fraudulent, any such
conduct in the marital relationship is termed fraud on the community because it
has all the consequences and legal effects of actual fraud. Id.
Constructive fraud does not require an intent to defraud but is instead the
breach of a legal or equitable duty that the law declares fraudulent because it
violates a fiduciary relationship. Id.; see Jean v. Tyson-Jean, 118 S.W.3d 1, 9
(Tex. App.—Houston [14th Dist.] 2003, pet. denied). A presumption of
constructive fraud arises when one spouse disposes of the other spouse’s
interest in community property without the other’s knowledge or consent. Tyson-
Jean, 118 S.W.3d at 9; Mazique, 742 S.W.2d at 808. The disposing spouse then
bears the burden of proof to show fairness in disposing of community assets.
Zieba, 928 S.W.2d at 789; see Morrison v. Morrison, 713 S.W.2d 377, 379 (Tex.
App.—Dallas 1986, writ dism’d); Horlock v. Horlock, 533 S.W.2d 52, 55 (Tex.
Civ. App.—Houston [14th Dist.] 1975, writ dism’d w.o.j.).
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In this case, a presumption that Dailey committed constructive fraud arose
when Dailey himself testified that he had taken over $600,000 from community
funds and when Wife testified that she did not know he was doing so and that he
did not have her consent. The record reveals that some of the withdrawals he
took from community funds transpired while he was under court order not to do
so. Rather than carry his burden to show fairness in disposing of these
community assets, Dailey contended that the monies were used for investments,
but when pushed on this issue, Dailey responded crassly that they were ―history.‖
In addition to his admission, Wife introduced records of withdrawals by
Dailey from community accounts totaling more than $625,000.3 Because Dailey
never rebutted this presumption, he failed to overcome the presumption that his
disposing of the couple’s assets was constructive fraud.
After considering all of the evidence, and deferring to the factfinder for
issues of credibility, we conclude that a reasonable factfinder could have found
that Dailey committed constructive fraud on the community by withdrawing these
monies and that he failed to rebut the presumption that he committed
constructive fraud. See Loaiza v. Loaiza, 130 S.W.3d 894, 902 (Tex. App.—Fort
Worth 2004, no pet.) (―By failing to show the fairness of the expenditures,
3
In his brief, Dailey complains of the admission of these records at trial.
But Dailey did not object to the admission of these records at trial and thus
waived his complaint on appeal. See Tex. R. App. P. 33.1; Bay Area Healthcare
Group, Ltd. v. McShane, 239 S.W.3d 231, 235 (Tex. 2007) (per curiam).
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[husband] failed to rebut the presumption of constructive fraud that arises when
one spouse disposes of the other spouse’s one-half interest in community
property without [her] knowledge or consent.‖). As such, we hold that the trial
court’s determination was not so weak and against the great weight and
preponderance of the evidence that it is clearly wrong and unjust. Cain, 709
S.W.2d at 176. Accordingly, we overrule this portion of Dailey’s first issue on
appeal.
3. Division of Property
In part of his first and third issues, Dailey argues that the trial court erred
by awarding Wife a disproportionate division of community property. Wife,
among many arguments, counters that even assuming that the division was
disproportionate, the trial court was within its discretion to award her an offset
based on the trial court’s implied finding that Dailey committed fraud upon the
community. We agree with Wife.
A trial judge is charged with dividing the community estate in a ―just and
right‖ manner, considering the rights of both parties. Tex. Fam. Code Ann.
§ 7.001 (West 2006); Watson v. Watson, 286 S.W.3d 519, 522 (Tex. App.—Fort
Worth 2009, no pet.). The court has broad discretion in making a just and right
division, and absent a clear abuse of discretion, we will not disturb that division.
Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex. 1985); Boyd v. Boyd, 131 S.W.3d
605, 610 (Tex. App.—Fort Worth 2004, no pet.). We must indulge every
reasonable presumption in favor of the trial court’s proper exercise of its
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discretion in dividing marital property. Pletcher v. Goetz, 9 S.W.3d 442, 446
(Tex. App.—Fort Worth 1999, pet. denied) (op. on reh’g). The trial court is not
required to divide community property equally, and we must presume that the
trial court properly exercised its discretion in dividing the marital estate. Murff v.
Murff, 615 S.W.2d 696, 698–99 (Tex. 1981).
Like in this case, in a non-jury trial when no findings of fact or conclusions
of law are filed or requested, we must presume that the trial court made all the
necessary findings to support its judgment. Pharo v. Chambers Cnty., 922
S.W.2d 945, 948 (Tex. 1996); Byrnes v. Byrnes, 19 S.W.3d 556, 561 (Tex.
App.—Fort Worth 2000, no pet.). Consequently, 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. See Worford v. Stamper, 801 S.W.2d 108,
109 (Tex. 1990). Among a myriad of factors the trial court may consider when
making a just and right division, two are (1) a spouse’s dissipation of the
community estate and (2) any misuse of community property. Vannerson v.
Vannerson, 857 S.W.2d 659, 669 (Tex. App.—Houston [1st Dist.] 1993, writ
denied); see Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998) (stating
that wasting of community assets may be considered).
Under the facts in this case, Wife may recover not only her share of the
property that existed in the community at the time of the divorce, but also that
which was improperly depleted from the community estate. See Schlueter, 975
S.W.2d at 589. Dailey admitted that he divested the community of over
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$600,000, and he stated that those monies were ―history.‖ The evidence at trial
supports the trial court’s implied finding of fraud and provides a legal basis for the
alleged disproportionate award to Wife of the community estate. We overrule
these portions of Dailey’s first and third issues.
4. Equitable Lien on Dailey’s Separate Property
In his second issue, Dailey argues that the trial court erred by awarding an
equitable lien against his separate property located in Gladewater, Texas.
Specifically, Dailey argues, ―Trial courts may not impose liens on a spouse’s
separate property for the general purpose of securing a just and right division of
marital property.‖ Although we agree that this is the general rule of law, we
disagree that the trial court did just that in this case.
When dividing marital property upon divorce, and absent a reimbursement
interest to the community, trial courts may not impose liens on a spouse’s
separate property for the general purpose of securing a just and right division of
marital property. Heggen v. Pemelton, 836 S.W.2d 145, 146 (Tex. 1992). But
trial courts may impose equitable liens on one spouse’s separate property as a
means for securing the discharge of payments owed by one spouse to the other.
Id.; see also Mullins v. Mullins, 785 S.W.2d 5, 11–12 (Tex. App.—Fort Worth
1990, no writ) (reviewing case law on authority of trial court’s power to impose
equitable liens on separate property and holding that trial court did not err by
securing wife’s money judgments against husband with a note and ―Deed of
Trust Lien on every item of [husband’s] separate property.‖); Day v. Day, 610
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S.W.2d 195, 198 (Tex. Civ. App.—Tyler 1980, writ ref’d n.r.e.) (reviewing the
development of the practice by trial court’s imposing equitable liens on separate
property to ensure compliance with court-ordered division of property).4
In this case, the trial court awarded Wife a money judgment of $226,276.
Further, in its order, the trial court found that an equitable lien on Dailey’s
Gladewater property was necessary to ensure payment of this award from Dailey
to Wife. We conclude that the trial court did not err by placing an equitable lien
on Dailey’s separate property in order to ensure Dailey’s payment to Wife of the
monetary award. See Bell v. Bell, 540 S.W.2d 432, 441 (Tex. Civ. App.—
Houston [1st Dist.] 1976, no writ) (holding that trial court was within its discretion
by placing a lien on husband’s separate property to secure payment of $20,000
in cash to wife in divorce action); see also Mozisek v. Mozisek, 365 S.W.2d 669,
670 (Tex. Civ. App.—Fort Worth 1963, writ dism’d) (―The court had authority to
fix an equitable lien on appellant’s separate property to secure the payment of
the money judgment to appellee.‖). The trial court’s decision to do so is further
buttressed by evidence in the record that Dailey had already refused to follow
court-ordered maintenance and payments during the course of this case. We
overrule this portion of Dailey’s second issue.
4
In Mullins, this court rejected our sister court’s position that such liens are
permissible only against the separate property to which an improvement was
made at community expense. See Smith v. Smith, 715 S.W.2d 154, 161 (Tex.
App.—Texarkana 1986, no writ).
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B. Spousal Maintenance
In the remainder of his third issue, Dailey argues that the trial court abused
its discretion by awarding spousal maintenance to Wife. Specifically, Dailey
argues that ―Wife cannot show evidence of need or lack of resources‖ to support
the trial court’s judgment. We conclude that the appellate record is incomplete
and that Dailey cannot overcome the presumption that the unrecorded portions of
the record support the trial court’s judgment.
The Texas supreme court has consistently held that when an appellant
complains of the factual or legal sufficiency of the evidence, the appellant’s
burden to show that the judgment is erroneous cannot be discharged in the
absence of a complete or an agreed statement of facts. Schafer v. Conner, 813
S.W.2d 154, 155 (Tex. 1991); Englander Co. v. Kennedy, 428 S.W.2d 806, 807
(Tex. 1968). In this case, Dailey admits in his brief that the evidentiary hearing
regarding the temporary spousal maintenance was not recorded, and thus, the
record is incomplete.5 See Long v. Long, 144 S.W.3d 64, 69 (Tex. App.—
El Paso 2004, no pet.) (holding that in a family law case involving unrecorded
5
The scenario of an ―incomplete‖ record is different than a ―partial‖ record
under Texas Rules of Appellate Procedure 34.6(c)(1). See Tex. R. App. P.
34.6(c)(1) (―If the appellant requests a partial reporter’s record, the appellant
must include in the request a statement of the points or issues to be presented
on appeal and will then be limited to those points or issues.‖). When complying
with rule 34.6(c)(1), a portion of the existing record is designated by the parties
and ―constitutes the entire record for purposes of reviewing‖ the raised ―stated
points or issues.‖ See Tex. R. App. P. 34.6(c)(4). In this case, there is no
existing record of the hearing regarding spousal maintenance.
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in camera interviews with minors, reviewing court must presume facts existed to
support trial court’s final judgment). We overrule this remaining portion of
Dailey’s third issue.
IV. CONCLUSION
Having overruled all of Dailey’s issues on appeal, we affirm the trial court’s
judgment.
BILL MEIER
JUSTICE
PANEL: GARDNER, MCCOY, and MEIER, JJ.
DELIVERED: January 10, 2013
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