Richard E. Hawkins v. Amy Hawkins ( 2006 )

Affirmed and Memorandum Opinion filed June 20, 2006

Affirmed and Memorandum Opinion filed June 20, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00117-CV

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RICHARD E. HAWKINS, Appellant

V.

AMY HAWKINS, Appellee

On Appeal from the 328th District Court

Fort Bend County, Texas

Trial Court Cause No. 04CV134199

M E M O R A N D U M   O P I N I O N

This case is an appeal from a final divorce decree.  Richard E. Hawkins and Amy L. Hawkins were married on November 29, 1991.  There were no children born of the marriage.  On January 28, 2004, Mrs. Hawkins filed a petition for divorce.  Following a bench trial, the trial court entered the divorce decree dividing the marital estate between the parties.  In three issues, Mr. Hawkins challenges the trial court=s property division. Specifically, Mr. Hawkins contends that the trial court erred by (1) characterizing a television as community property instead of his separate property, (2) awarding Mrs. Hawkins a disproportionate share of assets, and (3) allowing his mother-in-law to testify about the value of a Afour-wheeler.@ Because all issues are clearly settled in law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

I. Characterization of Television as Community Property

In his first issue, Mr. Hawkins contends that the trial court erred by incorrectly characterizing a television as community property instead of his separate property and awarding it to Mrs. Hawkins.  There is a statutory presumption that property possessed by either spouse during or on dissolution of marriage is community property.  See Tex. Fam. Code Ann. '3.003 (Vernon 1998).  To overcome this presumption, a spouse must present clear and convincing evidence to establish the property is separately owned.  See id.  The spouse claiming separate property must trace the property through evidence showing the time and means by which the spouse originally obtained possession of the property.  See Smith v. Smith, 22 S.W.3d 140, 144 (Tex. App.CHouston [14th Dist.] 2000, no pet.).

At trial, Mr. Hawkins testified that his parents gave him money Afor Christmas and a birthday present@ to Abuy the electronics.@^[1] He further testified that he used the money to purchase two large televisions.  Mrs. Hawkins testified that she purchased the couple=s Aentertainment center@ with community funds. ^[2]  The trial court awarded one of the disputed televisions to Mr. Hawkins and the other to Mrs. Hawkins.

In the absence of any documentation or testimony to corroborate his assertions that the televisions were separate property, Mr. Hawkins failed to meet his burden to overcome the community property presumption.  Testimony that property was purchased with separately owned funds is generally not, without more, sufficient to rebut the presumption.  See Bahr v. Kohr, 980 S.W.2d 723, 728 (Tex. App.CSan Antonio 1998, no pet.).  Moreover, as the sole judge of witness credibility, the trial court could have reasonably disbelieved Mr. Hawkins and believed Mrs. Hawkins.  See Murff v. Murff, 615 S.W.2d 696, 700 (Tex. 1981) (noting in relevant part that the trial court in a divorce case has the opportunity to observe the parties on the witnesses stand and determine their credibility). 

Further, even if the trial court mischaracterized the television, any error did not have more than a de minimis effect on the trial court=s Ajust and right@ division of the estate.  See Vandiver v. Vandiver, 4 S.W.3d 300, 302 (Tex. App.CCorpus Christi 1999, pet. denied) (noting that if Athe trial court mischaracterizes property in its division of the marital estate, the error does not require reversal unless the mischaracterization would have had more than a de minimis effect on the trial court=s just and right division of the property@); McElwee v. McElwee, 911 S.W.2d 182, 189 (Tex. App.CHouston [1st Dist.] 1995, writ denied) (same); see also Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex. 1985).  Accordingly, we overrule Mr. Hawkins=s first issue.

II. Disproportionate  Division of Property in ANo-Fault@ Divorce

In his second issue, Mr. Hawkins contends that the trial court abused its discretion by awarding Mrs. Hawkins a disproportionate share of assets Awhere the grounds for divorce was insupportability.@ The Texas Family Code requires the trial court to Aorder a division of the estate of the parties in a manner that the court deems just and right, having due regard of the rights of each party . . .@  Tex. Fam. Code Ann. ' 7.001 (Vernon 1998).  We review the trial court=s division of property in a divorce decree under an abuse of discretion standard. Murff, 615 S.W.2d at 698.  AMathematical precision in dividing property on divorce is usually not possible.@ Id. at 700.  Wide latitude and discretion rests with the trial court, and it Ais empowered to use its legal knowledge and its human understanding and experience@ in dividing the property.  Id. We will reverse on appeal only if the property division is so disproportionate as to be manifestly unjust and unfair.  Smith, 22 S.W.3d at 143.

To support his contention that the trial court=s division of property was disproportionate, Mr. Hawkins notes that the trial court awarded Mrs. Hawkins the majority of the money the couple held as Aretirement funds.@ It is not clear which of the couple=s accounts Mr. Hawkins is including in his calculation of Aretirement funds.@ However, he specifically complains that the trial court awarded Mrs. Hawkins $102,000 from two mutual fund accounts held in Mr. Hawkins=s name.  The record reveals the net value of those two accounts as $122,000.^[3]  Therefore, if the two accounts had been divided equally between the two parties, $41,000 of the amount awarded to Mrs. Hawkins would have been awarded to Mr. Hawkins.

To determine whether the trial court=s division of the property was Amanifestly unjust and unfair,@ we must considerCnot only what Mr. Hawkins classifies as Aretirement funds@Cbut all of the property.  See Martin v. Martin, 797 S.W.2d 347, 351 (Tex. App.CTexarkana 1990, no writ) (noting that Ain order to determine if a division is manifestly unjust, the comparison must include all of the property, including the real estate@).  Here, the trial court awarded Mr. Hawkins the couple=s home with approximately $34,000 in equity and most of the electronics and furnishings.  In addition, Mrs. Hawkins received approximately $42,000 in credit card debt compared to the approximately $17,800 assigned to Mr. Hawkins.  The trial court also awarded Mr. Hawkins a gun collection valued at approximately $30,000.  The home equity, the disparity in debt, and the value of the gun collection roughly account for the difference in the amounts received by the parties from the two mutual fund accounts.  The disproportionate amount awarded to Mrs. Hawkins therefore appeared to compensate for other disparities in favor of Mr. Hawkins.  Mr. Hawkins does not argue, and we do not find, that the remaining assets were divided disproportionately.^[4]

Moreover, even if the trial court=s property division was slightly disproportionate in favor of Mrs. Hawkins, Acommunity property need not be divided equally.@ Murff, 615 S.W.2d at 699.  Mr. Hawkins appears to argue that the trial court may not award a disproportionate share of property to one party in a no-fault divorce.  See Philips v. Philips, 75 S.W.3d 564, 572B73 (Tex. App.CBeaumont 2002, no pet.) (noting that Awhen dissolution of marriage is sought solely on the ground of insupportability, evidence of fault . . . may not be considered by the trial court in its just and right division of the community estate.@). However, fault (when at issue) is one factor among many the trial court may consider in its division. Id.  (noting ten nonexhaustive Anon-fault@ factors the trial court may consider in dividing a community estate); Murff, 615 S.W.2d at 699.  The trial court may also consider factors such as the parties= capacities and abilities, disparity in earning capacities or of incomes, whether one of the parties has wasted community assets, business opportunities, education, relative physical condition, relative financial condition and obligations, disparity of ages, size of separate estates, and nature of the property.  Murff, 615 S.W.2d at 699; Philips, 75 S.W.3d at 572B73. Here, there is no indication the trial court considered Afault@ as a factor when dividing the estate.  The record indicates that the earning capacity of Mr. Hawkins was approximately $100,000 as compared to Mrs. Hawkins, who earned approximately $60,000. The trial court could have concluded that Mrs. Hawkins would need a disproportionate amount of the parties= cash assets to offset the additional amount of community debt she was taking and/or to start anew after having been displaced from her home.  Therefore, we conclude that even if the trial court=s division was slightly disproportionate in favor of Mrs. Hawkins, any disproportion was justified by additional factors within the court=s discretion to consider.  Mr. Hawkins failed to show from the record that the trial court=s division of the property was so disproportionate as to be manifestly unjust and unfair. Accordingly, we overrule Mr. Hawkins=s second issue.

III. Valuation of AFour-Wheeler@

In his third issue, Mr. Hawkins contends that the trial court erred by allowing his mother-in-law to testify as to whether a four-wheeler would have  appreciated or depreciated in value over a time period of approximately one year.  The trial court awarded the couple=s four-wheeler to Mrs. Hawkins.  Mr. Hawkins claimed the value of the four-wheeler was about $1,500.  However, at trial, Mr. Hawkins=s mother-in-law testified that she sold the four-wheeler about a year ago to Mr. and Mrs. Hawkins for about $1,000.  She further testified that she arrived at the price Aby going to the NADA website, and the price that I was given after I put in the details of what the machine was a thousand dollars or thereabout.@ She was next asked whether the four-wheeler would have gone up or down in value from the time she sold the vehicle.  Over Mr. Hawkins=s objection that the question called for speculation, she replied that the four-wheeler Awould have depreciated.@ No further questions were asked concerning the depreciation value.

Even if the trial court erred in allowing the testimony, any error as to whether or not the four-wheeler depreciated in the last year was harmless.  The depreciation value is de minimis in this case and did not affect the trial court=s Ajust and right@ division of the property.  See McElwee, 911 S.W.2d at 189 (discussing harmless error in relation to de minimis values).  Accordingly, appellant=s third issue is overruled.

The judgment of the trial court is affirmed.

/s/        Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed June 20, 2006.

Panel consists of Justices Hudson, Fowler, and Seymore.

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^[1]  It is unclear from the record exactly which of the couple=s Aelectronics@ Mr. Hawkins was claiming at trial to be separate property.  However, on appeal, he argues only that the television awarded to Mrs. Hawkins was improperly characterized.  

^[2]  Mrs. Hawkins states in her brief that Ashe personally purchased the television with community funds.@  However, it is not clear from the record whether the television sets or other electronic equipment  were included in her testimony concerning the Aentertainment center.@ 

^[3]  Mr. Hawkins appears to refer to two accounts he categorized on his appraisal form as Abrokerage/mutual fund accounts.@  He listed the value of the accounts as $70,000 and $52,000. The accounts were not included in the section entitled Aretirement benefits.@  Under federal law, the division of certain private retirement benefits upon divorce may not be enforced in the absence of a Qualified Domestic Relations Order (QDRO). See 26 U.S.C. ' 401(a)(13)(B) (2000); 29 U.S.C. ' 1056(d)(3) (2000). In a footnote in his brief, Mr. Hawkins contends that the trial court=s failure to issue a QDRO shows the trial court abused its discretion by failing to follow applicable guiding rules and principles.  Mrs. Hawkins contends that the two accounts at issue did not require a QDRO because they were not defined contribution plans.  We cannot ascertain the exact nature of either account from the record and therefore also cannot determine whether a QDRO was required.  If a QDRO was required, Mrs. Hawkins will have to petition the trial court for the order before she will be able to obtain her portion of the funds.  See Tex. Fam. Code Ann. ' 9.103 (Vernon 1998). However, the issuance of a QDRO order has no affect on the division of the property itself or Mr. Hawkins=s contention that the division was so disproportionate as to be manifestly unjust and unfair.

^[4]  Mr. Hawkins does contend that the trial court divided many of the couple=s  assets Awithout regard to the value of the property.@ However, both parties submitted inventories and appraisements of the community assets and liabilities.  The trial took place over three days, and the record contains three volumes of testimony concerning everything from the value of a charm bracelet to the age and brands of various pots and pans and dinnerware.  Mr. Hawkins does not point to, and we do not find, a specific asset or class of assets the trial court awarded disproportionately without regard to value.