Julio M. Aguilera v. Delmis S. Aguilera ( 2014 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00034-CV
Julio Marcos AGUILERA,
Appellant
v.
Delmis Sirey AGUILERA,
Appellee
From the 408th Judicial District Court, Bexar County, Texas
Trial Court No. 2011-CI-16322
Honorable Larry Noll, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Karen Angelini, Justice
Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: April 23, 2014
AFFIRMED
Julio Marcos Aguilera appeals from a final judgment of divorce, chiefly complaining about
the property division, conservatorship order, and child support. In an opinion dated February 26,
2014, we abated and remanded this appeal to the trial court for the entry of findings pursuant to
section 154.130(b) of the Texas Family Code. See TEX. FAM. CODE ANN. § 154.130(b) (West
2014). The trial court has filed its findings with the court, and after consideration of the issues,
we affirm the judgment of the trial court.
04-13-00034-CV
BACKGROUND
Julio and Delmis Sirey Aguilera married in 2003. The couple had one daughter, born in
2001. In 2011, Delmis filed for divorce and Julio filed a counterpetition for divorce. Following a
bench trial, the divorce was granted on the basis of irreconcilable differences. The final decree of
divorce appointed Julio and Delmis as joint managing conservators of their daughter, and gave
Delmis the exclusive right to designate the child’s primary residence. Julio was ordered to pay
child support in the amount of $250, with $144 of that amount being credited by his social security
disability payments. Delmis was awarded the couple’s home, and was ordered to assume the
mortgage, property taxes, and insurance on the home. In terms of personal property, each party
was awarded the items it asked for, with the exception of the power generator, the lawn mower,
and the lawn tools, which were awarded to Delmis. The parties were each ordered to pay one half
of the $26,000 of credit card debt held in Delmis’s name; Julio was ordered to pay the $9,000
credit card debt held in his name. Julio was awarded his social security lump sum award, which
he testified was about $15,000, as well as the proceeds, if any, of a pending personal injury lawsuit.
The parties were ordered to pay their own legal fees. Julio timely appealed.
DISCUSSION
In his pro se brief, Julio presents several issues for review. The bulk of his complaints
relate to the property division, the conservatorship order, and the child support order. Delmis did
not file an appellee’s brief. We reasonably, yet liberally, construe appellate briefs so that the right
to appellate review is not lost by waiver. See Weeks Marine, Inc. v. Garza, 371 S.W.3d 157, 162
(Tex. 2012); see also Delgado v. Combs, No. 07–11–00273–CV, 2012 WL 4867600, at *2 (Tex.
App.—Amarillo Oct. 15, 2012, no pet.) (mem. op.) (“While pro se litigants must comply with the
law and rules of procedure, pro se pleadings and briefs are to be liberally construed.”).
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Standard of Review
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. See In re A.B.P., 291 S.W.3d 91, 95
(Tex. App.—Dallas 2009, no pet.); Lindsey v. Lindsey, 965 S.W.2d 589, 592 (Tex. App.—El Paso
1998, no pet.). A trial court abuses its discretion when it acts arbitrarily or unreasonably, or
without any reference to guiding rules and principles. Worford v. Stamper, 801 S.W.2d 108, 109
(Tex. 1990) (per curiam); see also Gonzalez v. Gonzalez, 331 S.W.3d 864, 866 (Tex. App.—Dallas
2011, no pet).
In family law cases, legal and factual sufficiency challenges do not constitute independent
grounds for asserting error, but are relevant factors in determining whether the trial court abused
its discretion. Moore v. Moore, 383 S.W.3d 190, 198 (Tex. App.—Dallas 2012, pet. denied). To
determine whether the trial court abused its discretion because the evidence is legally or factually
insufficient to support the trial court’s decision, we consider whether the trial court (1) had
sufficient evidence upon which to exercise its discretion, and (2) erred in its application of that
discretion. Moroch v. Collins, 174 S.W.3d 849, 857 (Tex. App.—Dallas 2005, pet. denied). We
conduct the applicable sufficiency review when considering the first prong of the test. Id. We
then determine whether, based on the elicited evidence, the trial court made a reasonable decision.
Id. A trial court does not abuse its discretion if there is some evidence of a substantive and
probative character to support the decision. Id.
Division of Community Estate
Julio first argues that the trial court erred in dividing the community assets, specifically in
awarding the couple’s home to Delmis and in ordering him to pay half of Delmis’s credit card
debt. The trial court has broad discretion in dividing the marital estate in a manner that the court
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deems just and right. See TEX. FAM. CODE ANN. § 7.001 (West 2006); Murff v. Murff, 615 S.W.2d
696, 698 (Tex. 1981). The trial court is afforded broad discretion in dividing the community estate,
and we must indulge every reasonable presumption in favor of the trial court’s proper exercise of
its discretion. Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998); Murff, 615 S.W.2d at 698;
In re Marriage of C.A.S. and D.P.S., 405 S.W.3d 373, 384 (Tex. App.—Dallas 2013, no pet.).
The property division need not be equal, and a trial court may consider many factors when
exercising its broad discretion to divide the marital property. Murff, 615 S.W.2d at 699. Debts
and liabilities incurred jointly by the parties must be considered by the trial court in determining a
just and right division of the community estate and must be apportioned to one or both of the
spouses. Bush v. Bush, 336 S.W.3d 722, 740 (Tex. App.—Houston [1st Dist.] 2010, no pet.). The
party complaining of the division of the community estate has the burden of showing from the
evidence in the record that the trial court’s division of the community estate was so unjust and
unfair as to constitute an abuse of discretion. See Mann v. Mann, 607 S.W.2d 243, 245 (Tex.
1980); Vannerson v. Vannerson, 857 S.W.2d 659, 672 (Tex. App.—Houston [1st Dist.] 1993, writ
denied).
Julio argues that although Delmis financed the house because of his bankruptcy history, he
actually made the $22,118 down payment, and the deed to the house contains both his and Delmis’s
names. Also, Delmis was unemployed from 2003 to 2009 and did not financially contribute to the
household; therefore, the trial court should have ordered a 60/40 division of the house as Julio
requested. Julio additionally argues that the trial court erred in ordering him to pay half of Delmis’s
approximately $26,000 credit card debt, because he alleges the cards were not used to pay for
community assets, and the debt was acquired solely by Delmis during the three years the couple
was separated prior to divorce.
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We disagree that the trial court abused its discretion in dividing the community assets and
liabilities. First, the award of the house to Delmis was not inequitable given the disparity in the
parties’ financial conditions and earning abilities. See Murff, 615 S.W.2d at 699. Delmis currently
works in foodservice for a school district for 35 hours a week and earns $9.20 an hour. Delmis
does not have a college degree and her past employment history comprised solely of retail work.
In the year prior to trial, she had paid the mortgage and all bills without any help from Julio. In
August 2011, Julio received a lump sum social security payment in the amount of approximately
$15,000, and, according to Delmis, he did not share any of the money with her. The trial court
awarded the entirety of the lump sum payment to Julio. Based on this evidence, we cannot say the
trial court abused its discretion in awarding the home to Delmis.
As to the credit card debt, there was testimony that although Delmis had been a stay-at-
home mother for much of their daughter’s life, she obtained part-time employment in 2009 once
Julio was unable to work. She did not, however, earn enough money to pay for all of the family’s
expenses, so she charged expenses to the credit cards. She testified that the $26,000 in credit card
debt is attributed to household expenses. Julio did not present any evidence to contradict her
testimony. Accordingly, the trial court did not abuse its discretion in ordering Julio to pay half of
the approximately $26,000 in credit card debt acquired during the parties’ marriage for the benefit
of household expenses.
Based on the above, we conclude that there is some evidence of a substantive and probative
character to support the decision of the trial court to award the couple’s home to Delmis and to
order Julio to pay one half of Delmis’s credit card debt. Thus, we conclude that the division was
not manifestly unjust and unfair and that the trial court did not abuse its discretion in so dividing
the marital assets and liabilities. See TEX. FAM. CODE ANN. § 7.001.
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Conservatorship
Next, Julio maintains that the trial court erred in awarding Delmis “full custody of the
child,” i.e., in appointing Delmis as primary joint managing conservator with the exclusive right
to establish the child’s primary residence. Julio asserts that his permanent disability and inability
to work full-time would allow him to spend more time with his daughter than Delmis, and that his
higher education level would permit him to help his daughter with her homework and also allow
him to earn more income than Delmis in the future. He also asserts that his daughter has
established stronger bonds with his family than with Delmis’s.
The best interest of the child is the primary consideration of the trial court in determining
the issues of conservatorship and possession of and access to the child. TEX. FAM. CODE ANN.
§ 153.002 (West 2014). Trial courts have wide latitude in determining the best interests of a minor
child. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982).
Here, the record reflects that the couple’s daughter continued residing with her mother in
the family home after Julio moved out of the house in November 2011. Julio lives in a small
efficiency apartment with only one king-sized bed, and the child has her own room in the family
home awarded to Delmis. The child was doing well in school and got along well with her mother.
Although Delmis admitted that the child was also happy when with her father, there were no
allegations that Delmis was unable to care for or provide for the child. This evidence is sufficient
to allow a reasonable person to find that it would be in the best interest of the child to designate
Delmis as primary joint managing conservator with the exclusive right to determine the child’s
primary residence. Additionally, given that Julio produced no evidence to the contrary, the trial
court’s finding is not so against the overwhelming weight of the evidence as to be clearly wrong
and unjust. The trial court had sufficient facts on which to exercise its discretion and made a
reasonable decision based on those facts. Accordingly, the trial court did not abuse its discretion
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in designating Delmis as the parent with the exclusive right to designate the child’s primary
residence.
Child Support
Next, Julio argues that the trial court erred in setting child support in excess of the statutory
guidelines. A trial court has discretion to set child support within the parameters provided by the
Family Code. Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011). The Family Code provides that:
In applying the child support guidelines for an obligor who has a disability and who
is required to pay support for a child who receives benefits as a result of the
obligor’s disability, the court shall apply the guidelines by determining the amount
of child support that would be ordered under the child support guidelines and
subtracting from that total the amount of benefits or the value of the benefits paid
to or for the child as a result of the obligor’s disability.
TEX. FAM. CODE ANN. § 154.132 (West 2014); In re K.N.C., 276 S.W.3d 624, 626 (Tex. App.—
Dallas 2008, no pet.). Pursuant to the guidelines, Julio should pay twenty percent of his net
monthly resources. TEX. FAM. CODE ANN. § 154.125(b) (West 2014). Julio testified that his only
income comes from social security disability insurance in the amount of $817 per month. Twenty
percent of that amount is $163.40. Thus, the $250 of support ordered by the trial court exceeds
the statutory guidelines by $86.60. Because the trial court ordered that the child support obligation
should be offset by the $144 in social security benefits that Julio’s daughter receives every month
due to Julio’s disability, Julio must pay Delmis $106 per month.
At the time of trial, Julio was 56 years old. Julio testified that he was born in Cuba and
graduated from the University of Havana as a forensic technician. He moved to Miami in 1980
and briefly worked as a waiter before moving to the “electronic business” field. He worked for
Lojack for several years before he and Delmis moved to San Antonio in 2006. In 2007, Julio
began working for Time Warner Cable, and was employed there for almost two years. Julio was
injured in an on-the-job car accident, and he no longer works due to a permanent disability; he
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suffers from back and neck pain that prevents him from sitting for long periods of time. He has
incurred $75,000 in medical bills as a result of his injury.
Julio additionally testified that he used to repair computers in his garage to make extra
money, and that he could do that again if he had a garage to work in. “I got five technical degrees
that pretty much I can use at any time to upgrade the income or add on to the income that I have
from social security, plus I have a computer - - a computer desk or technical department in my
garage where I used to have a very good clientele until I was forced out of the house . . . .” He
stated that he would like to have possession of the couple’s home so that he could “start making
money out of my garage and offer my daughter a better future.” He currently lives in an efficiency
apartment. Julio further testified that he is a real estate agent and could make money selling
houses. Delmis testified that she works in foodservice for a school district, and previously worked
in retail.
The trial court found that the application of the child support guidelines would be
inappropriate because Julio’s income is significantly less than what he could earn because of
intentional unemployment. The trial court further found that Julio is: (1) capable of performing
computer work; (2) capable of performing other work in real estate; (3) in receipt of a lump sum
social security payment in the amount of $15,800; (4) expected to receive proceeds from an
automobile accident lawsuit; and (5) the recipient of monetary gifts from family members. In light
of these findings, as well as Julio’s testimony that he earned between $75 and $700 extra per week
performing computer work, the trial court found that Julio’s net monthly earning potential is
$1,250. Because 20% of $1,250 is $250, the trial court set child support at $250, with credit for
the $144 received from the Social Security Administration for the one child.
Texas Family Code section 154.066 provides that “[i]f the actual income of the obligor is
significantly less than what the obligor could earn because of intentional unemployment or
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underemployment, the court may apply the support guidelines to the earning potential of the
obligor.” TEX. FAM. CODE ANN. § 154.066(a) (West 2014); Iliff, 339 S.W.3d at 78. A trial court’s
finding of intentional unemployment and its decision to base child support on earnings potential
rather than actual earnings must be supported by the record. Iliff, 339 S.W.3d at 82. As always,
the “paramount guiding principle” of the trial court in child support decisions should be the best
interest of the child. Id. at 81 (citing Rodriguez v. Rodriguez, 860 S.W.2d 414, 417 n.3 (Tex.
1993)).
“The law has long recognized parents have a legal duty to support their children during
their minority.” Iliff, 339 S.W.3d at 81. “A parent who is qualified to obtain gainful employment
cannot evade his or her child support obligation by voluntarily remaining unemployed or
underemployed.” Id. “Concurrently, the court must consider ‘a parent’s right to pursue his or her
own happiness’ with a parent’s duty to support and provide for his or her child.” Id. at 81-82
(quoting In re E.A.S., 123 S.W.3d 565, 570 (Tex. App.—El Paso 2003, pet. denied)). “The court
must engage in a case-by-case determination to decide whether child support should be set based
on earning potential as opposed to actual earnings.” Id. at 82. “Once the obligor has offered proof
of his or her current wages, the obligee bears the burden of demonstrating that the obligor is
intentionally unemployed or underemployed.” Id. “The burden then shifts to the obligor, if
necessary, to offer evidence in rebuttal.” Id.
During the divorce trial, the court heard evidence that Julio possessed several degrees and
licenses, including one in real estate and another in computer technology. Julio admitted that he
was able to work, but explained that without access to his house’s garage, he no longer has the
ability to earn extra income by repairing computers. The trial court, however, awarded Julio all of
his tools, which should allow him to continue repairing computers. In addition, the trial court
found that Julio has other avenues of resources, including the lump sum payment he received from
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social security, the monetary gifts he receives from family, and the expected settlement proceeds
from a personal injury lawsuit. See TEX. FAM. CODE ANN. § 154.062(b)(5) (West 2014) (net
resources includes social security benefits); id. §154.123(b)(3) (West 2014) (court may consider
any financial resources available for support of child when setting support in amount other than
that established by guidelines). Based on this record, we hold the trial court did not abuse its
discretion in its child support determination.
Jury Trial
Julio next complains that he was denied his right to a jury trial. Julio asserts that his
counsel told him, without explanation, that the “judge didn’t allow a jury trial.” Although the
record reflects that Julio requested a jury trial, it does not reflect that he paid the jury fee. Even
assuming the requisite fee was paid, Julio failed to object to the trial court’s conducting a bench
trial. See In re D.R., 177 S.W.3d 574, 580 (Tex. App.—Houston [1st Dist.] 2005, pet. denied);
Sunwest Reliance Acquisitions Grp., Inc. v. Provident Nat’l Assurance Co., 875 S.W.2d 385, 387
(Tex. App.—Dallas 1993, no writ). Accordingly, we conclude Julio has waived any error because
he failed to object when the trial court proceeded with a bench trial. See In re K.M.H., 181 S.W.3d
1, 16 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (opin. on reh’g).
Misrepresentation by Defense Counsel
Julio contends that his attorney never presented any evidence in court that could change
the final decree of divorce. Julio, however, wholly fails to cite any authority to support his
contentions. Absent citations to the record, legal authorities or substantive or clear analysis, we
conclude Julio has failed to preserve this argument for review. See Franz v. Katy Indep. Sch. Dist.,
35 S.W.3d 749, 755 (Tex. App.—Houston [1st Dist.] 2000, no pet.); Keever v. Finlan, 988 S.W.2d
300, 314 (Tex. App.—Dallas 1999, pet. dism’d); see also TEX. R. APP. P. 38.1(i).
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Fault
Finally, Julio argues that the trial court erred in granting the divorce on the ground of
irreconcilable differences when there was evidence that Delmis committed adultery. A trial court
“may grant a divorce in favor of one spouse if the other spouse has committed adultery.”
TEX. FAM. CODE ANN. § 6.003 (West 2006); In re Marriage of C.A.S., 405 S.W.3d at 383. Adultery
can be shown by direct or circumstantial evidence. In re S.A.A., 279 S.W.3d 853, 856 (Tex. App.—
Dallas 2009, no pet.). There must, however, be clear and positive proof, and mere suggestion and
innuendo are insufficient to prove adultery. Id.
The record before us does not contain clear and positive proof that Delmis committed
adultery. Julio accused Delmis of having an extra-marital affair, but Delmis denied it, and there
was no other testimony or evidence presented to support Julio’s allegation. Accordingly, we
cannot conclude that the trial court erred in granting the divorce on the ground of irreconcilable
differences.
CONCLUSION
Based on the foregoing, we overrule Julio’s issues on appeal and affirm the judgment of
the trial court.
Rebeca C. Martinez, Justice
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