Gerald Lee Orton v. Pamela Faye Orton ( 2002 )

                                 NUMBER 13-01-00580-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                                CORPUS CHRISTI

GERALD LEE ORTON,                                                            Appellant,

                                                   v.

PAMELA FAYE ORTON,                                                          Appellee.

                        On appeal from the 359th District Court

                              of Montgomery County, Texas.

                                   O P I N I O N

                     Before Justices Hinojosa, Yañez, and Castillo

                                  Opinion by Justice Castillo

This is an appeal from a property division in a post-answer default divorce decree.  Appellant, Gerald Lee Orton, raises two issues for our review: (1) whether the decree reflects the trial court=s ruling and whether the evidence is legally sufficient to support the property division; and (2) whether the trial court erred in refusing to set aside the default judgement and grant a new trial.^[1]  We affirm in part, and reverse and remand in part.

BACKGROUND

Pamela and Gerald Orton were married on August 3, 1996, and ceased living together on or about March 10, 2000.  No children were born of the marriage.   Pamela filed the divorce petition alleging as grounds therefor insupportability and cruelty.  In the petition, she alleged she was entitled to a disproportionate share of the community estate.  Gerald was served with citation, filed an answer, and a counter-claim for divorce. Initially represented by counsel, Gerald ultimately represented himself upon the withdrawal, with court approval, of his attorney on December 7, 2000.   On March 23, 2001, the trial court sent notice that the final hearing date was set for non-jury trial on May 17, 2001.  Prior to the time of the hearing, appellant retained counsel but counsel did not make an appearance in the case prior to May 17, 2001.  A bench trial was held^[2] whereupon the trial court pronounced judgment awarding Pamela sixty percent of the community part of Gerald=s retirement account and ordering Gerald to pay the outstanding community debt.  Neither Gerald nor his attorney appeared for the final hearing.  The day after the hearing, Gerald, through counsel, filed a motion to set aside default judgment seeking a new trial.  Following a hearing, the trial court denied his motion.  This appeal ensued.

SUFFICIENCY OF THE EVIDENCE

In the first issue presented, Gerald asserts that the decree as drafted and signed was not what the court ordered and there is no evidence to support the decree.  In particular, Gerald=s complaint involves the division of: (1) the retirement account; and, (2) the debts.  No findings of fact or conclusions of law were properly requested or filed in this case and so we must therefore presume the trial court made all necessary findings to support its judgment if there is any probative evidence in the record to support such judgment.  Allen v. Allen, 717 S.W.2d 311, 313 (Tex. 1986).  We must affirm such judgment if it can be sustained on any legal theory that finds support in the record.  Id.

Standard of Review

In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party.  Tex. Fam. Code Ann. ' 7.001(Vernon 1998).  The court shall also determine the right of both spouses in a retirement plan. Tex. Fam. Code Ann. '7.003 (Vernon 1998).  In a divorce proceeding, a trial court has wide latitude in the exercise of its discretion in dividing marital property and thus that division should only be corrected on appeal when an abuse of discretion is proven.  Zieba v. Martin, 928 S.W.2d 782, 790 (Tex. App.BHouston [14th Dist.] 1996, no writ); Dankowski v. Dankowski, 922 S.W.2d 298, 304 (Tex. App.BFort Worth 1996, no writ).   Under this standard, legal sufficiency is not an independent issue on appeal but merely a relevant factor to be considered in determining whether the trial court has abused its discretion.   Zieba, 928 S.W.2d at 786.  The party complaining of the division must be able to demonstrate from the record that the division was so unfair and unjust as to constitute an abuse of discretion.  Id. at 790.  We must indulge every reasonable presumption in favor of the trial court=s proper exercise of its discretion.  Vannerson v. Vannerson, 857 S.W.2d 659, 669 (Tex. App.BHouston [1st Dist.] 1993, writ denied).  Yet the trial court does not have unlimited discretion in dividing property; there must be some reasonable basis for an unequal division of the property.   Zieba, 928 S.W.2d at 790.  Where there has been an abuse of discretion, though, the appellate court may not substitute its judgment for the trial court=s division of property; rather, remand is required. Jacobs v. Jacobs, 687 S.W.2d 731, 732 (Tex. 1985); McKnight v. McKnight, 543 S.W.2d 863, 866 (Tex. 1976).  Moreover, the reviewing court must not limit the remand to particular aspects of the division; rather, the entire community estate must be remanded for a new division. Jacobs, 687 S.W.2d at 733.     

The Retirement Account

Gerald asserts that the trial court did not have the evidence to find that sixty percent of his retirement account was community property, since the evidence showed that he was not married during the entire time he participated in the retirement plan. Particular to this issue, Pamela testified that Gerald had a retirement account through his employment with the State. She testified that the two were married in 1996 and that he had worked with the State  agency for about ten years.  Her counsel stated, AWe=re asking for an unequal distribution of this only asset.@ Whereupon the trial court asked if Gerald had been married to Pamela Athe entire ten years he worked for the State and counsel replied ANo.@  Thereafter, the following discourse occurred:

THE COURT: Was he married to Pamela during the entire ten years he worked for the State?

MS. WARREN: No, sir.  He was B

THE COURT: Why is she entitled to 50 or 60 percent?  You=ve already done the mathematics.

MS.  WARREN: Of only the community part of it, not the entire, the entire part, Your Honor.

THE COURT: Why would you say he=s [sic] entitled to the, .60 the unequal distribution?

MS. WARREN: Well, I think in part B

THE COURT: In terms of your allegations that you list?

MS.  WARREN: We have alleged cruel physical and mental treatment. 

THE COURT: I want to know as what fault have you alleged.

The trial court then received evidence regarding the cruel treatment alleged.  

The trial court pronounced judgment stating, AI will adopt the Petitioner=s position with regard to the .60 to be multiplied toward the community property benefit participation in the Texas State Retirement benefits.@  The trial court later stated,@ I=ll go with your position on the QDRO,^[3] 60 percent of the part when they were married.@ Counsel then advised Pamela, AThat means the Court is awarding you $137.00 upon B from his annuity, and his annuity is about 560, so he=s getting like 430 something.@  Later, Pamela asked, AThat means I=m going to get the retirement?@  And the trial court answered, AWhen it comes to fruition.@ 

According to the QDRO the trial court signed, the beginning date is fixed at the parties= date of marriage:

4.  As a part of a just and right division of the estate of the parties, Alternate Payee^[4] is hereby awarded a portion of any benefits payable with respect to Participant which Participant, or Participant=s designated beneficiary, surviving spouse, or estate may become entitled to receive from the Plan, by way of a return of accumulated contributions or by way of any annuity that may become payable as a result of Participant=s participation in the Plan, such portion to be determined by:

multiplying sixty percent (60%) by a fraction, the numerator of which is the amount of credited service with the Plan earned by Participant between August 3, 1996, and the date the divorce was granted, and the denominator of which is the amount of credited service by Participant under the Plan on the date the divorce was granted, and then multiplying that product by the value of the benefit that would be payable to Participant or Participant=s designated beneficiary, surviving spouse, or estate by the Plan, as if the Participant were eligible to receive such benefit on the date the divorce was granted.

We hold that the trial court=s judgment as entered reflects disposition of the community part of the retirement account and excludes retirement contributions made outside the duration of the marriage.  The record does not show that the trial court found that sixty percent of the retirement account was community property; rather, the trial court awarded an unequal distribution of the community part of the retirement account.  The QDRO also complies with the trial court=s oral pronouncement of the division of the retirement.   

Pamela alleged cruelty and, when asked by the trial court as to the allegation of fault, testified that he treated her like she was nothing, constantly Aputting her down.@  She added that he Agot into@ pornography when she was in nursing school and had relations with her once in the four years of their marriage.^[5]  In a default case, the petitioner must still prove the grounds for the divorce.  Considine v. Considine, 726 S.W.2d 253, 254 (Tex. App.BAustin 1987, no writ).  The court may grant a divorce in favor of one spouse if the other spouse is guilty of cruel treatment toward the complaining spouse of a nature that renders further living together insupportable.  Tex. Fam. Code Ann. ' 6.002  (Vernon 1998).   We hold that the trial court had sufficient evidence before it to find fault and enter an uneven distribution of the retirement account.  See Young v. Young, 609 S.W.2d 758, 761 (Tex. 1980) (fault in breakup of marriage may be considered in division).  Once again we note that a trial court has broad discretion to divide community property to arrive at a just and right allocation thereof. Dankowski, 922 S.W.2d at 304; see also Vannerson, 857 S.W.2d at 668  (even in default decree, court has discretion to make unequal distribution).  Consequently, this Court will disturb the trial court's property division only if it abuses its discretion.  Vannerson, 857 S.W.2d at 668.  We find that the trial court in the present case did not abuse its discretion in the division of the retirement account.^[6]

The  Debt

In his second complaint under his first issue, Gerald asserts that the divorce decree required that he pay a debt that the trial court did not order him to pay.  Essentially, he argues that there is a variance between the proof at trial and the judgment entered and there is no evidence regarding the Alarge amount of credit card debt@ he was ordered to pay.  He adds that the only mention of the debt in the record is the exhibit containing the parties= debt management agreement.  He argues that the exhibit does not mention the six creditors identified in the decree.

At the hearing, Pamela introduced into evidence the parties= debt management agreement with Consumer Credit Counseling Service, whereby the agency would help them repay their debts and help creditors collect the money owed them.  Nowhere in the agreement are creditors identified or total amounts due. When asked by counsel

whether Gerald retained all of the personal property associated with the debt management agreement, Pamela responded, AYes.@  The following colloquy ensued:

Q.  (BY MS. WARREN): Do you ask the Court to order him to pay that payment?

A.  Yes.

THE COURT: Tell me what that means.

MS. WARREN: It mean=s he=s got all of the stuff, she doesn=t have any of the stuff, that=s the debt associated with it, that=s the debt associated with it and we ask he paid B

          THE COURT: Admitted. 

At the time the trial court pronounced judgment, no reference to the community debt was made; rather, the trial court pronounced an award of Athe property of the marriage to the party in possession thereof.@  

The final decree orders Gerald to pay as part of the division of the estate, the Abalance due, including principal, interest, and all other charges, on the obligation payable to Consumer Credit Counseling Service of Gulf Coast Area, I, Houston, Texas given as satisfaction of the creditors and the amounts owed to them as specified in Exhibit A attached hereto and incorporated herein for all purposes.@  Exhibit A lists seven creditors and a debt balance of $21,688.83.^[7] 

The sole evidence before the trial court established the existence of a community debt involving a monthly payment in the amount of $422.00 to Amy creditors@  beginning on June 15, 1998.  The decree connects the debt management agreement with Exhibit A, attached to and incorporated into the decree.  Exhibit A lists the seven creditors and the amounts owed to each with the total of $21,688.83 as the balance.  This was not before the trial court.  There was no evidence at the hearing regarding debt in the amount of $21,688.83.  No specific creditor was identified  and no specific debt total was ever mentioned.  No evidence exists to prove that payments made under the debt management agreement are to be applied to the $21,688.83 debt.  Appellee filed an Amended Inventory and Appraisement which is before us.  In it, under the section regarding liabilities and accounts payable, we find ASee Financial Information Sheet,@ which is not before us.

We acknowledge that the trial court retains plenary power over the judgment and is free to modify the pronouncement until the judge signs the final decree.  Cook v. Cook, 888 S.W.2d 130,131-32 (Tex. App.BCorpus Christi 1994, no writ).  An oral judgment is often tentative and may not cover every detail of the final decree.  Id. Accordingly, the trial court did not err in making a disposition of the debt in the judgment although no pronouncement of its decision regarding allocation of debt was made at the hearing.  Id.

However, appellant complains that there was no evidence regarding the large amount of debt he was ordered to pay.  A Ano evidence@ standard of review is applied when the party not bearing the burden of proof at trial challenges a finding of fact by arguing that the evidence is legally insufficient to support the finding.  Hickley v. Couchman, 797 S.W.2d 103, 109 (Tex. App.BCorpus Christi 1990, writ denied).  A legal sufficiency point may only be sustained when the evidence conclusively establishes the absence of a vital fact, the record discloses no more than a mere scintilla of evidence to prove a vital fact, the court is bound by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, or the evidence established conclusively the opposite of the vital fact.  Hines v. Comm=n for Lawyer Discipline, 28 S.W.3d 697, 701 (Tex. App.BCorpus Christi 2000, no pet.).   We review the legal sufficiency challenge by viewing the evidence in a light that tends to support the disputed fact and must disregard all evidence and inference to the contrary.  Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001).^[8]   If there is more than a scintilla of evidence to support the questioned fact, the Ano evidence@  point fails. Formosa Plastics v. Presidio Eng=rs, 960 S.W.2d 41, 48 (Tex. 1998).  We have reviewed the record and find no evidence proving (1) the debts appellant was ordered to pay and (2) the debts were in fact community debts.  Ordering appellant to pay particular debts to specific creditors in specific amounts in the absence of any evidence as to those particular debts, creditors, or amounts is an abuse of discretion.^[9]  See Mata v. Mata, 710 S.W.2d 756, 760 (Tex. App.BCorpus Christi 1986, no writ)(a division based on values not in evidence was an abuse of discretion).  Because there is no evidence to support the division of the debt, we find that the trial court abused its discretion and so sustain appellant=s first issue.  Accordingly, we find this cause should be remanded for a new division of the entire community estate. Jacobs, 687 S.W.2d at 733.

REMAINING ISSUE

By his second issue presented, appellant complains that the trial court erred in denying his motion to set aside default judgment pursuant to Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939),  because the trial court: (1) awarded him credit card debt that was in appellee=s name which was acquired before the marriage; and, (2) awarded to appellee his separate property.

 As we are already remanding this cause to the trial court for a new division of property, which is the only issue of which appellant complains in this appeal and for which he claimed a meritorious defense, we need not, and do not, address appellant=s second issue.   Tex. R. App. P. 47.1.

CONCLUSION

Because neither spouse has challenged or otherwise complained of the dissolution of the marriage, we affirm the judgment to the extent that it grants a divorce.  Mata, 710 S.W.2d at 760.   We reverse the judgment of the trial court as to the division of property and remand this cause for a new division of the entire community estate. Id.;  Jacobs, 687 S.W.2d at 733.                                                 

ERRLINDA CASTILLO,

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 3rd day of October, 2002.

---

^[1] Appellant=s second point actually reads, AWhether the court erred in granting the Motion for New Trial.@  We read this as a challenge to the trial court=s denial of appellant=s motion to set aside default judgment.

^[2] Pamela introduced records pertaining to Gerald=s retirement and the parties= debt management agreement.  

^[3] Qualified Domestic Relations Order. See generally Tex. Fam. Code Ann. '' 9.101, 9.102, 9.104, and 9.105 (Vernon 1998). 

^[4] The QDRO identifies Pamela as the Alternate Payee and Gerald as the Payee.

^[5] If the husband or wife testifies, the court or jury trying the case shall determine the credibility of the witness and the weight to be given the witness=s testimony.  Tex. Fam. Code Ann. '6.704(b) (Vernon 1998). 

^[6] Appellee provides us the formula presented to the trial court and included in the QDRO.  We note that the formulas for apportioning retirement benefits differ depending on whether the value of the pension plan is at issue.   See May v. May, 716 S.W.2d 705, 710 (Tex.App.BCorpus Christi 1986, no writ) (explaining when each formula should be used).  The formula used when the value of the pension plan is not in issue was set out in Taggart v. Taggart, 552 S.W.2d 422, 424 (Tex.1977) as follows:

 1 x    # years of service while    x value of accrued   =   non‑employee

                   married                          benefit

‑‑‑‑     ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑

 2 # years of service at at date of spouse's share

                  retirement                        retirement                      

This formula is called the Taggart formula.  The decree essentially changes the fraction in the formula to reflect 60% rather than the 50% or 2 as designated in the formula above. Appellant does not contest the value of the retirement plan; rather, he challenges the numerator representing the number of years of service while married, believing that the trial court ordered that portion to be equal to the denominator representing the number of years of service at retirement.  

^[7] The creditors are identified as Montgomery Ward, Sears Roebuck, Associates Card Services, Citibank, Peoples Bank, First North American, and Nations Bank.

^[8] In Formosa Plastics, the supreme court set out a slightly different formulation of the standard of review for the evidence in a legal sufficiency challenge, holding that a proper sufficiency review is conducted by considering all the record evidence in the light most favorable to the prevailing party, indulging every reasonable inference in that party=s favor.  Formosa Plastics vs. Presidio Eng=rs, 960 S.W.2d 41, 48 (Tex. 1998). Despite its holding in Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001) as noted above, the Supreme Court has not overruled Formosa Plastics nor explicitly abandoned the Formosa Plastics= formulation of the review of Aall the record evidence@ as a proper standard for a legal sufficiency review. However, the supreme court has recently signaled a definite preference for the Bradford enunciation of the proper standard of analysis, stating that AWe emphasize, however, that under a legal-sufficiency review, we must disregard all evidence and inferences contrary to the jury=s finding.@ Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex. 2002)(citing to Bradford, 48 S.W.3d at 754).

^[9] We note that Pamela testified that Gerald was in possession of the property associated with the debt.  The trial court awarded the property to the party in possession.  The debt proved up was a monthly payment which is not reflected in the decree.  We also note that the decree requires Pamela to pay AAny and all debts, charges, liabilities, and other obligations incurred solely by the husband from and after March 10, 2000, unless express provision is made in this decree to the contrary.@  We know not from this record whether the creditors identified in the decree are within this category.