In the Matter of the Marriage of Tiffany M. Lynch and Scott P. Lynch and in the Interest of W.C.L., E.S.L., L.M.L., J.E.L., and D.T.L., Children v. the State of Texas ( 2023 )


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  •                              In the
    Court of Appeals
    Sixth Appellate District of Texas at Texarkana
    No. 06-23-00001-CV
    IN THE MATTER OF THE MARRIAGE OF
    TIFFANY M. LYNCH AND SCOTT P. LYNCH
    AND IN THE INTEREST OF W.C.L., E.S.L., L.M.L., J.E.L., AND D.T.L., CHILDREN
    On Appeal from the County Court at Law
    Fannin County, Texas
    Trial Court No. FA-19-44473
    Before Stevens, C.J., van Cleef and Rambin, JJ.
    Memorandum Opinion by Justice van Cleef
    MEMORANDUM OPINION
    Scott P. Lynch appeals from the final decree of divorce from Tiffany M. Lynch. On
    appeal, Scott argues that the trial court abused its discretion by denying a motion to compel
    discovery urged on the day of trial, by allowing the testimony of a court-appointed, child-custody
    evaluator, and by preventing testimony via Zoom. Scott also argues that the trial court erred by
    failing to appoint a conservator with the exclusive right to designate the children’s primary
    residence, by ordering an allegedly unjust division of the marital estate, and by denying his
    motion for new trial.
    We find that (1) the trial court did not err by denying a motion to compel discovery urged
    on the day of trial, (2) the trial court did not abuse its discretion by admitting testimony from a
    child-custody evaluator, (3) Scott failed to preserve any complaint about exclusion of Zoom
    testimony, (4) the trial court named Tiffany as the conservator with the right to designate the
    primary residence of the children but omitted that finding from the judgment due to clerical
    error, (5) the trial court did not err by its just and right property division, and (6) the trial court
    did not err by denying the motion for new trial. After modifying the judgment to show that
    Tiffany has the right to designate the primary residence of the children, we affirm the trial
    court’s judgment.
    I.     Factual Background
    Tiffany and Scott were married on September 12, 2010. They ceased to live together as
    husband and wife in October 2019, and the record shows that Tiffany filed for divorce the
    following month.        Tiffany and Scott, who were both described as good parents, sought
    2
    conservatorship of their children, fifteen-year-old Wayland,1 ten-year-old Edgar, six-year-old
    Libby, four-year-old Joy, and three-year-old Darren.2
    The trial court issued temporary orders requiring Scott to pay the mortgage on the marital
    home during the pendency of the case. It also ordered that Tiffany and Scott have possession of
    the children on a “week on/week off basis,” which allowed the children to remain in the marital
    home while Tiffany and Scott rotated out of the home each week.
    The trial court also appointed Ellen Hutton as the child-custody evaluator. Hutton met
    with each parent, and her evaluation stated that Scott’s beliefs “led to him buying gold and
    stocking up on ammo and guns as well as stockpiling non-perishable food.” According to
    Hutton, Tiffany alleged that Scott was a daily marihuana user. Scott admitted to Hutton that he
    used marihuana but said he had not done so for “some time.” Hutton’s investigation revealed
    that Scott “was against modern medicine, cancer treatment, . . . and basic childhood vaccines.”
    As a result, Hutton recommended that Tiffany “have the exclusive right to make medical and
    psychiatric decisions on behalf of the children.” She also noted that Tiffany was “a stay-at-
    home-mom/work-at-home mom for the last 8 years” and that Tiffany believed that role was
    “what the children [were] familiar with.”
    Hutton also observed the children and conducted interviews with Wayland and Edgar.
    As far as his relationship with Scott, Wayland said that “the two of them don’t really
    enjoy one another’s company very much,” and he felt that Scott treated him differently from his
    1
    Scott is not Wayland’s biological father but adopted him.
    2
    We use pseudonyms to protect the identity of the minor children. See TEX. R. APP. P. 9.8.
    3
    biological children. Hutton’s report said that she “became aware of a recent incident in which
    [Edgar] texted his mother stating: ‘Ok so dad just pushed [Wayland] up against the fridge and
    is kind of abusing him’” because Wayland was “not doing the dishes right when [Scott] asked.”
    Edgar stated in his interview that Scott “does save things and wants to be prepared if something
    happens” and that Scott was a good father.
    Tiffany and Scott agreed that Scott should not have possession of and access to Wayland
    anymore.    After conducting her evaluation, Hutton recommended that Tiffany and Scott
    “continue with the week on, week off schedule” of possession to the remaining children.
    On September 26, 2022, the trial court signed a final decree of divorce. The order
    dissolved the marriage, gave Tiffany sole managing conservatorship of Wayland, and appointed
    Tiffany and Scott as joint managing conservators of the remaining children. The order recited
    that the parties had agreed that Scott should not have possession of or access to Wayland at any
    time but awarded Scott possession of and access to the other children on an alternating week-
    on/week-off basis. As Wayland’s sole managing conservator, Tiffany had the exclusive right to
    designate Wayland’s primary residence, but the order did not list which parent had the exclusive
    right to designate the primary residence of the remaining children. Pursuant to the decree,
    Tiffany and Scott were “each ORDERED to maintain a residence for the children that [was]
    zoned for the Leonard Independent School District until further order of the Court.”
    As for the property division, the trial court found that Scott failed to support his separate
    property claims by clear and convincing evidence. It also found that, even though its temporary
    orders required Scott to make mortgage payments, he “was intentionally delinquent in the
    4
    payment of the mortgage on the marital residence in an amount in excess of $53,000.00 at the
    time of trial,” despite having the financial means to make the payments. Accordingly, the trial
    court awarded Tiffany the first $25,000.00 from the sale of the marital home as reimbursement
    for Scott’s “non-payment of the mortgage during the divorce and to equalize the division of the
    estate,” plus “[f]ifty-precent of the remaining [net] proceeds” from the sale of the marital home,
    a “2014 Ford Expedition,” and Tiffany’s online business, “known as ST Goods TX,” among
    other things. Scott was awarded the remaining fifty percent of net proceeds of the sale of the
    property after subtracting the first $25,000.00 awarded to Tiffany, a “2013 Hyundai Sonata,” a
    “2018 Branson 5220 CH Tractor,” a “Cab [sic] Cadet riding lawn mower,” and his online
    business, “known as TXM56,” among other things.
    II.    There Was No Error in the Trial Court’s Finding that the Motion to Compel Urged
    on the Day of Trial Was Untimely
    In his first point of error, Scott argues that the trial court abused its discretion by failing
    to compel production of some of Tiffany’s financial records. We disagree.
    Scott first filed a motion to compel discovery responses on October 13, 2021. In her
    response, Tiffany said that she replied “to each and all of the items contained in the Motion to
    Compel asking [Scott] to specify which documents [he] believe[d] [were] in [her] possession” so
    that she “could adequately respond.”         Tiffany’s response stated that she had “provided
    responsive information on numerous occasions, asserted objections and provided additional
    explanations,” and included a response “to each specific item in [Scott’s] Motion to Compel,”
    5
    “[i]rrespective of the lack of merit of [the] motion.” As a result, the trial court did not hold a
    hearing and took no action on Scott’s October 2021 motion.3
    At 4:26 p.m. on Friday, February 11, 2022, just three days before trial, Scott filed an
    amended motion to compel. Trial began on Monday, February 14. On the day of trial, Scott
    argued,
    “[W]e have been asking for documents from [Tiffany], and periodically, some
    documents would come, but as recently as January 21st of 2022, we asked
    [Tiffany], will you please provide the additional documents regarding your Wells
    Fargo account from October of 2021 until the present time. We do not have
    those.”
    After Scott requested documents from other accounts, Tiffany objected “to an argument on a
    Motion to Compel that was filed Friday afternoon and was not set before the Court.” The trial
    court informed Scott that he had enough time to handle discovery matters and that it would not
    “start covering that issue” on the day of trial. Contrary to the statements made by Scott in his
    brief, Scott did not seek a continuance of the trial at that time.
    In its findings of fact and conclusions of law, the trial court noted that it had previously
    continued the trial based on Scott’s request, that Scott had filed the motion “three days prior to
    the trial,” and that “[s]aid motion was not set for hearing.” As a result, the trial court found that
    Scott “waived any complaints of inadequate discovery by not presenting the same to the Court
    prior to the trial date although ample time to do so was allowed by the Court.” The court further
    found “that during the 28 months between the filing of the original petition and trial of this
    3
    The record does not establish that Scott actually brought his first motion to compel to the trial court’s attention.
    6
    matter, sufficient time existed for the parties to conduct discovery and seek any relief from the
    Court to compel discovery.”4
    “To preserve error on a discovery dispute, the appealing party must obtain a ruling by the
    trial court on the discovery issue.” U. Lawrence Boze’ & Assoc., P.C. v. Harris Cnty. Appraisal
    Dist., 
    368 S.W.3d 17
    , 32 (Tex. App.—Houston [1st Dist.] 2011, no pet.). Accordingly, “[t]he
    Texas Supreme Court has held ‘the failure to obtain a pretrial ruling on discovery disputes that
    exist before commencement of trial constitutes a waiver of any claim for sanctions based on that
    conduct.’” Corona v. Pilgrim’s Pride Corp., 
    245 S.W.3d 75
    , 84 (Tex. App.—Texarkana 2008,
    pet. denied) (quoting Remington Arms Co. v. Caldwell, 
    850 S.W.2d 167
    , 170 (Tex. 1993) (orig.
    proceeding)). “This is in accord with the general rule that, as a prerequisite to a complaint for
    appellate review, the record must show that the trial court, either expressly or implicitly, ruled on
    the motion.” 
    Id.
     (citing TEX. R. APP. P. 33.1(a)(2)(A)).
    Here, the record shows that Scott failed to bring any motion to compel to the trial court’s
    attention until the day of trial. After the trial court made clear that it found Scott’s motion
    untimely, Scott failed to ask for a continuance. Simply put, Scott “waived any objections to
    these matters by failing to request a pretrial hearing on the alleged discovery abuse and by
    requesting a[nother] preferential trial setting.” Remington Arms Co. v. Caldwell, 
    850 S.W.2d 167
    , 170 (Tex. 1993) (orig. proceeding); see Peters v. Volkswagen Grp. of Am., Inc., No. 01-21-
    00634-CV, 
    2023 WL 5436383
    , at *4 (Tex. App.—Houston [1st Dist.] Aug. 24, 2023, pet. filed)
    (mem. op.) (“determining that the trial court never ruled on the discovery motion, we hold that
    4
    At trial, Tiffany said that she had produced all the information requested during discovery.
    7
    [movant] has failed to preserve [his] complaint regarding the discovery dispute for our review”);
    Corona, 
    245 S.W.3d at 84
    ; Burgess v. Feghhi, No. 12-04-00367-CV, 
    2007 WL 2178544
    , at *6
    (Tex. App.—Tyler July 31, 2007, pet. denied) (mem. op.) (finding that motion to compel movant
    waived complaints by failing to request a hearing and that, as a result, the trial court did not have
    an opportunity to rule on whether objections to discovery requests were valid).
    After reviewing the record, we find proper the trial court’s ruling that Scott waived his
    motion to compel, which was not timely heard prior to trial. We overrule Scott’s first point of
    error.
    III.     The Trial Court Did Not Abuse its Discretion by Allowing Testimony from the
    Child-Custody Evaluator
    In his second point of error, Scott argues that the trial court abused its discretion by
    admitting Hutton’s testimony because it did not comply with the requirements of Section
    107.109 of the Texas Family Code.5 “We review a trial court’s decision” to allow Hutton’s
    testimony “for an abuse of discretion.” Fleming v. Wilson, 
    610 S.W.3d 18
    , 21 (Tex. 2020) (per
    curiam). “A trial court abuses its discretion when it acts ‘without reference to any guiding rules
    or principles; or in other words, [when it acts] arbitrarily or unreasonably.’” In re J.J.R.S., 627
    The trial said that it would “take this under advisement” and expressly stated that it was not going to rule on the
    5
    matter at that time. After trial, the court issued the following written finding:
    The Court finds that Ellen Hutton, a person duly qualified under the Texas Family Code to
    conduct custody evaluations, was appointed by the Court to perform a custody evaluation in
    conformity with the provisions of Chapter 107 of the Texas Family Code. The Court further finds
    and concludes that Ellen Hutton is qualified to give expert testimony on the subject matter to
    which she was asked to testify. Ellen Hutton testified at trial that she in fact conducted the child
    custody evaluation and testified to the results of her evaluation. The Court found Ms. Hutton and
    her report to be unbiased, thorough, in compliance with all conditions of the Texas Family Code
    regarding child custody evaluations, and credible.
    As a result, we will discuss the testimony at trial which could have impacted the trial court’s decision.
    
    8 S.W.3d 211
    , 218 (Tex. 2021) (alteration in original) (quoting Worford v. Stamper, 
    801 S.W.2d 108
    , 109 (Tex. 1990) (per curiam)).
    Scott’s complaint is governed by Section 107.109 of the Texas Family Code, which
    states, in relevant part,
    (a)     A child custody evaluator may not offer an opinion regarding
    conservatorship of a child who is the subject of a suit or [sic] possession of or
    access to the child unless each basic element of a child custody evaluation as
    specified in this section and each additional element ordered by the court, if any,
    has been completed, unless the failure to complete an element is satisfactorily
    explained as provided by Subsection (b).
    (b)     A child custody evaluator shall:
    (1)     identify in the report required by Section 107.113 any basic
    element or any additional element of a child custody evaluation described
    by this section that was not completed;
    (2)     explain the reasons the element was not completed; and
    (3)     include an explanation of the likely effect of the missing element
    on the confidence the child custody evaluator has in the evaluator’s expert
    opinion.
    (c)     The basic elements of a child custody evaluation under this subchapter
    consist of:
    (1)    a personal interview of each party to the suit seeking
    conservatorship of, possession of, or access to the child;
    (2)    interviews, conducted in a developmentally appropriate manner, of
    each child who is the subject of the suit who is at least four years of age
    during a period of possession of each party to the suit but outside the
    presence of the party;
    (3)     observation of each child who is the subject of the suit, regardless
    of the age of the child, in the presence of each party to the suit, including,
    as appropriate, during supervised visitation, unless contact between a party
    and a child is prohibited by court order or the person conducting the
    9
    evaluation has good cause for not conducting the observation and states
    the good cause in writing provided to the parties to the suit before the
    completion of the evaluation;
    (4)     an observation and, if the child is at least four years of age, an
    interview of any child who is not a subject of the suit who lives on a full-
    time basis in a residence that is the subject of the evaluation, including
    with other children or parties who are subjects of the evaluation, where
    appropriate;
    (5)    the obtaining of information from relevant collateral sources,
    including the review of:
    (A)     relevant school records;
    (B)     relevant physical and mental health records of each party to
    the suit and each child who is the subject of the suit;
    (C)    relevant records of the department obtained under Section
    107.111;
    (D)     criminal history information relating to each child who is
    the subject of the suit, each party to the suit, and each person who
    lives with a party to the suit; and
    (E)     notwithstanding other law, records or information from any
    other collateral source that may have relevant information;
    (6)    for each individual residing in a residence subject to the child
    custody evaluation, consideration of any criminal history information and
    any contact with the department or a law enforcement agency regarding
    abuse or neglect; and
    (7)    assessment of the relationship between each child who is the
    subject of the suit and each party seeking possession of or access to the
    child.
    TEX. FAM. CODE ANN. § 107.109.
    Scott argues that Hutton failed to interview all the children and failed to obtain school
    records, physical and mental health records, criminal background checks, and other collateral
    10
    information. After examining each argument, we find that the trial court did not abuse its
    discretion by concluding that Hutton complied with Section 107.109.
    As for Scott’s argument that Hutton did not interview all the children, Hutton was only
    required to interview the children who were at least four years of age. At the time of her
    interviews, Hutton testified that she met with Wayland, Edgar, and Libby, but did not meet with
    Joy and Darren because they were under four years old at the time.6 Hutton said, and her report
    reflected, that Libby, who was six, “expressed no desire to meet with [her] despite being present
    with her mother and father for interviews.” Because Libby would not speak with Hutton, the
    trial court could have found that forcing her to interview was not developmentally appropriate.
    Next, Scott argues that Hutton failed to obtain school records. Section 107.109(c)(5)(A)
    only requires the gathering of relevant school records.                          TEX. FAM. CODE ANN.
    § 107.109(c)(5)(A). As for the children that were attending school, Hutton’s report noted that
    they had no learning or behavior problems. Since “[n]either parent reported any issues” with the
    children in school, Hutton testified that school records were irrelevant to her evaluation. 7 As a
    result, the trial court could have concluded that the school records were not relevant to the issue
    of conservatorship.
    6
    Scott acknowledges that Joy was three years old at the time of Hutton’s interviews but argues that Hutton should
    have conducted an interview after Joy turned four, which occurred before the report was written. Even assuming
    that Hutton was required to attempt another interview, Hutton’s report stated that Joy “was observed to be
    apprehensive or shy at her home visit and it was determined that meeting with her would not be necessary.” As a
    result, the trial court could have determined that Hutton complied with Section 107.109(b).
    7
    Although cross-examination showed that Hutton knew Edgar had excessive absences from school, nothing showed
    that the absences, which Tiffany said “primarily occurred on Scott’s week [of possession],” were the result of any
    parental fault. Also, the evidence showed that Edgar successfully made up his absences by attending summer
    school.
    11
    Next, Scott argues that Hutton failed to obtain physical and mental health records, which
    are only required if relevant, and criminal records.                       See TEX. FAM. CODE ANN.
    § 107.109(c)(5)(B), (D). Tiffany testified that there were no substantial medical issues with any
    of the children and that medical records would not produce relevant information. Tiffany
    testified that neither she, Scott, nor the children had any criminal history. Hutton also testified
    that she did not gather medical or psychological records since Scott and Tiffany had no medical
    or psychological concerns.8 Hutton’s report stated that neither Scott nor Tiffany was listed in the
    Texas Child Abuse/Neglect Central Registry.                  When asked about Scott’s and Tiffany’s
    counseling records, Hutton said she did not obtain them because she spoke with each parent
    about their concerns and believed she did her “due diligence.” Based on the record establishing
    that Tiffany and Scott were both good parents, the trial court could have determined that physical
    and mental health records were not relevant to the determination of conservatorship and that no
    criminal records existed.
    Next, Scott argues that Hutton failed to obtain other relevant collateral information, but
    he admits that he and Tiffany “gave the evaluator multiple collateral sources who provided
    character reference letters.”       As a result, Scott’s argument that Hutton did not obtain this
    information is meritless. Instead, Scott’s complaint relates to the thoroughness of Hutton’s
    follow-up with persons who provided character reference letters, which was proper fodder for
    cross-examination instead of grounds for rendering Hutton’s report inadmissible.                         This is
    because “a party’s complaints that an . . . expert’s testimony did not consider all the relevant
    8
    Although Edgar sought medical treatment for sleepwalking and urinating, the trial court could have found that this
    matter was not relevant to the issue of conservatorship.
    12
    facts ‘go to its weight, not its admissibility.’” See Starwood Mgmt., LLC by & through Gonzalez
    v. Swaim, 
    530 S.W.3d 673
    , 681 (Tex. 2017) (per curiam) (quoting Ford Motor Co. v. Ledesma,
    
    242 S.W.3d 32
    , 40–41 (Tex. 2007)).
    After reviewing Scott’s arguments and the appellate record, we find that the trial court
    did not abuse its discretion by admitting Hutton’s testimony. We overrule Scott’s second point
    of error.
    IV.     Scott Did Not Preserve Error About the Exclusion of Testimony via Zoom
    At the conclusion of the first day of trial, Scott asked whether two unnamed witnesses
    could testify by Zoom on the second day of trial. Scott clarified that one of his witnesses was in
    Kansas City and the other was in Louisiana, but the trial court did not allow testimony by Zoom.
    Scott failed to name the witnesses he sought to introduce and did not explain the substance of
    their testimony or why the witnesses were necessary to his case.9 Even so, Scott’s brief contains
    the names of the witnesses he wanted to call via Zoom and explains the substance of their
    testimony. We find that Scott failed to preserve his complaint for our review.
    “To preserve error concerning the exclusion of evidence, the complaining party must
    actually offer the evidence and secure an adverse ruling from the court.” In re R.N., 
    356 S.W.3d 568
    , 572 (Tex. App.—Texarkana 2011, no pet.) (quoting Lister v. Walters, 
    247 S.W.3d 381
    , 383
    n.1 (Tex. App.—Texarkana 2008, no pet.)). An offer of proof is required to preserve error. Id.;
    see Culver v. Culver, 
    360 S.W.3d 526
    , 531 n.9 (Tex. App.—Texarkana 2011, no pet.) (“To
    challenge the exclusion of evidence, a party must: (1) attempt to introduce the evidence; (2) if an
    Also, the clerk’s record does not contain Scott’s designation of witnesses at trial or subpoenas of the witnesses he
    9
    wished to call by Zoom.
    13
    objection is made, specify the purpose for which the evidence is offered and give the trial court
    reasons why the evidence is admissible; (3) obtain a ruling from the court; and (4) if the court
    rules the evidence inadmissible, make a record, either through an informal offer of proof or a
    formal bill of exceptions, of the evidence the party desires admitted.”).
    In its findings of fact and conclusions of law, the trial court found “that no bills of
    exception . . . nor . . . offer of proof . . . [was] made in regard to any alleged excluded testimony
    or evidence.” Since Scott did not make an offer of proof or file a formal bill of exceptions
    specifying the substance of his witnesses’ testimony, nothing enables us to determine whether
    the testimony would have been admissible. Therefore, any error in the trial court’s ruling has not
    been preserved for our review. See Culver, 
    360 S.W.3d at
    531 n.9. As a result, we overrule
    Scott’s third point of error.
    V.      The Trial Court Gave Tiffany the Right to Designate the Primary Residence
    A.      We Must Modify the Judgment to Reflect that Tiffany Had the Right to
    Designate the Primary Residence
    Next, Scott acknowledges that the trial court’s findings of fact show that it gave Tiffany
    the right to determine the primary residence of Edgar, Libby, Joy, and Darren. Even so, Scott
    argues that the trial court erred by failing to include that finding in its final decree. Because the
    record shows that the trial court made a clerical error by omitting this information, we modify
    the trial court’s judgment.
    “When an appellate court is presented with a conflict between a judgment and subsequent
    findings and conclusions, the appellate court has the power to modify the judgment to conform
    with the findings of fact and conclusions of law.” In re Marriage of Edwards, 
    79 S.W.3d 88
    ,
    14
    101 (Tex. App.—Texarkana 2002, no pet.). Scott is correct in noting that the trial court’s
    judgment did not state which parent had the right to designate the children’s primary residence.
    However, the findings of fact issued after the judgment stated, “It is in the best interest of the
    children, . . . that TIFFANY M. LYNCH have the right to designate the primary residence of
    [Edgar, Libby, Joy, and Darren].” As discussed below, the record supported the trial court’s
    decision. As a result, we modify the trial court’s judgment to reflect that Tiffany had the
    exclusive right to designate the primary residence of Edgar, Libby, Joy, and Darren.
    B.      The Trial Court Did Not Abuse its Discretion by Denying Scott’s Request to
    Establish the Primary Residence
    Scott argues that the trial court erred by failing to give him the exclusive right to
    determine the primary residence of Edgar, Libby, Joy, and Darren. We disagree.
    “An appellate court reviews a trial court’s order regarding conservatorship under an
    abuse of discretion standard.”       In re Marriage of Christensen, 
    570 S.W.3d 933
    , 937
    (Tex. App.—Texarkana 2019, no pet.) (citing Gillespie v. Gillespie, 
    644 S.W.2d 449
    , 451 (Tex.
    1982)). “A trial court abuses its discretion when it acts arbitrarily and unreasonably or without
    reference to any guiding principles.” 
    Id.
     (citing Downer v. Aquamarine Operators, Inc., 
    701 S.W.2d 238
    , 241–42 (Tex. 1985)). “However, ‘[i]n family law cases, the abuse of discretion
    standard of review overlaps with traditional standards of review.’” 
    Id.
     (alteration in original)
    (quoting In re C.G.L., No. 06-13-00068-CV, 
    2014 WL 887778
    , at *3 (Tex. App.—Texarkana
    Mar. 6, 2014, no pet.) (mem. op.)). “Thus, ‘legal and factual insufficiency are not independent
    grounds of reversible error, but instead are factors relevant to our assessment of whether the trial
    court abused its discretion.’” 
    Id.
     (quoting In re C.G.L., 
    2014 WL 887778
    , at *3).
    15
    “Of course, in making our evaluation, we recognize that ‘[t]he trial court is in the best
    position to observe the demeanor and personalities of the witnesses and can “feel” the forces,
    powers, and influences that cannot be discerned by merely reading the record.’” 
    Id.
     (alteration in
    original) (quoting Bates v. Tesar, 
    81 S.W.3d 411
    , 424 (Tex. App.—El Paso 2002, no pet.)).
    “Moreover, a trial court does not abuse its discretion if there is some evidence of a probative and
    substantive character to support its decision.”                     
    Id.
     (citing Bates, 
    81 S.W.3d at
    424–25).
    “Accordingly, we consider whether the trial court had sufficient evidence upon which to exercise
    its discretion and whether it erred in exercising that discretion.” 
    Id.
     at 937–38.
    Scott argues that, while in Tiffany’s care, one of the younger children had found a knife,
    a child had stepped on a sharp object, a child had fallen from a highchair, and Joy and Darren
    had diaper rash.10 Scott also said he had found a moldy cup and a dirty diaper neglected by
    Tiffany. Even so, there was testimony establishing, and the trial court found, that both parents
    were good parents. The evidence also showed that Tiffany had been a stay-at-home mother to
    the children for eight years, that she had plans to live in a home on her parent’s land with the
    children while the marital home was being sold, and that Scott had not yet acquired a residence.11
    10
    The trial court noted that “all children get diaper rash.” The court continued,
    I just don’t understand how those are something - - stepping on a sharp object. My
    goodness gracious. Falling out of a highchair. I think everybody’s gone through that. To try to
    sit here and say somebody is not being a good mother or dad because they let those things happen,
    that’s just not right. And I hope you have gotten that out of your system and we can go on down
    the road. Because I evaluate both of you this way: You’re both very intelligent. You’re both very
    caring parents.
    11
    Moreover, the trial court heard evidence that Edgar had witnessed a physical altercation between Scott and
    Wayland. When determining matters of conservatorship, the trial court is required to consider a history of domestic
    violence. See TEX. FAM. CODE ANN. § 153.004 (Supp.).
    16
    “[T]he best interest of the child shall always be the primary consideration of the court in
    determining the issues of conservatorship and possession of and access to the child.” Id. at 938
    (quoting TEX. FAM. CODE ANN. § 153.002). “The trial court has wide latitude in determining
    what is in the best interest of the child.” Id. (citing Gillespie, 644 S.W.2d at 451). In light of the
    evidence, and because Scott had not yet established a residence, we cannot say that the trial court
    abused its discretion by awarding Tiffany the right to determine the primary residence of Edgar,
    Libby, Joy, and Darren. We overrule Scott’s fourth point of error.
    VI.    The Trial Court Did Not Err by its Just and Right Division of the Marital Estate
    In his fifth point of error, Scott challenges the trial court’s property division. “The Texas
    Family Code requires the trial court to divide a marital estate in a ‘just and right’ manner,
    considering the rights of the parties.” In re Marriage of Thomas, No. 06-22-00048-CV, 
    2023 WL 1987947
    , at *1 (Tex. App.—Texarkana Feb. 14, 2023, no pet.) (mem. op.) (quoting Scott v.
    Scott, 
    805 S.W.2d 835
    , 841 (Tex. App.—Waco 1991, writ denied) (citing TEX. FAM. CODE ANN.
    § 7.001; In re Marriage of Moncey, 
    404 S.W.3d 701
    , 706 (Tex. App.—Texarkana 2013, no
    pet.))). “Trial courts can only divide community property, and the phrase ‘estate of the parties’
    encompasses the community property of a marriage.” 
    Id.
     (quoting Pearson v. Fillingim, 
    332 S.W.3d 361
    , 363 (Tex. 2011) (per curiam)).             “We review the trial court’s division of
    [community] property under an abuse[-]of[-]discretion standard.” 
    Id.
     (alterations in original)
    (quoting In re Marriage of Price, No. 10-14-00260-CV, 
    2015 WL 6119457
    , at *3 (Tex. App.—
    Waco Oct. 15, 2015, no pet.) (mem. op.) (citing Murff v. Murff, 
    615 S.W.2d 696
    , 698 (Tex.
    1981))).
    17
    Scott does not complain that the trial court mischaracterized any of his separate property
    as community property. Instead, he complains that, based on his calculations, he received a
    disproportionate share of community assets. Scott’s argument is based on the following chart,
    included in his brief:
    Description                           [Tiffany]             [Scott]
    Marital home (estimated net proceeds)                      $70,000           $70,000
    Her business                                               $23,000
    His business                                                                  $4,000
    Ford Expedition and related debt                            -$4,027
    Hyundai                                                                        $5,889
    Branson tractor and related debt                                               $2,475
    Credit Card Debt                                       -$12,874.13        -$11,564.98
    Attorney’s fees                                        -$64,466.26           -$53,250
    Payment to [Tiffany]                                       $25,000           -$25,000
    Total                                                     $101,099            $45,799
    (Footnotes omitted). Aside from mathematical error, Scott’s chart fails to account for the
    evidence admitted at trial, including that Scott was employed by Fannie Mae as an appraisal
    evaluator and made approximately $100,000.00 per year.12 Also, the record shows that Scott had
    used some community property to purchase gold and silver bars, which were awarded to him, in
    addition to over $15,000.00 worth of guns and ammunition.
    Further, even assuming that Tiffany received a disproportionate share of community
    assets, Scott cannot show an abuse of discretion. “In reviewing the property division, we
    ‘consider (1) whether the trial court had sufficient information upon which to exercise its
    discretion and (2) whether the trial court abused its discretion by dividing the property in a
    12
    Scott’s income was community property. See TEX. FAM. CODE ANN. §§ 3.001, 3.003.
    18
    manner that is manifestly unjust and unfair.’” In re Marriage of Mena & Fernandez, No. 06-21-
    00088-CV, 
    2022 WL 3907926
    , at *1 (Tex. App.—Texarkana Aug. 31, 2022, no pet.) (mem. op.)
    (quoting Willis v. Willis, 
    533 S.W.3d 547
    , 551 (Tex. App.—Houston [14th Dist.] 2017, no pet.)).
    “[T]he Supreme Court of Texas identified various factors that the trial court may consider
    when dividing the community estate.” Id. at *2 (quoting Willis, 
    533 S.W.3d at 551
    ) (citing
    Murff, 615 S.W.2d at 698–99). Among these factors are “the relative earning capacity and
    business experience of the spouses, their relative financial condition and obligations, their
    education, [and] the size of the separate estates.” Id. (quoting Willis, 
    533 S.W.3d at 551
    ) (citing
    Murff, 615 S.W.2d at 698–99). “Because the trial court considers these factors in dividing
    community property, ‘[t]he division of the parties’ estate need not be equal.’”13 Id. (alteration in
    original) (quoting In re Marriage of Hultquist & Cook, No. 14-19-00896-CV, 
    2021 WL 2252129
    , at *3 (Tex. App.—Houston [14th Dist.] June 3, 2021, no pet.) (mem. op.) (citing Kaley
    v. Kaley, No. 14-17-00768-CV, 
    2019 WL 2097490
    , at *3 (Tex. App.—Houston [14th Dist.] May
    14, 2019, no pet.) (mem. op.))).14
    The trial court’s findings of fact said that it awarded Tiffany the first $25,000.00 from the sale of the home “to
    13
    equalize the division of the [community] estate.”
    14
    Scott also states that he is entitled to reimbursement because he used separate property to improve the marital
    home. “When improvements are made during the marriage, there is a presumption that the funds expended on such
    improvements came from community property funds.” In re Marriage of Edwards, No. 06-12-00016-CV, 
    2012 WL 4503413
    , at *3 (Tex. App.—Texarkana Oct. 2, 2012, no pet.) (mem. op.) (citing TEX. FAM. CODE ANN. § 3.003(b)).
    In denying Scott’s claim, the trial court impliedly found that Scott could not trace the expenditures used in
    improving the home to his separate property by clear and convincing evidence. Further, Scott was required to prove
    that unjust enrichment of the community estate would occur if his separate estate were not reimbursed, but the trial
    court did not make such a finding. See TEX. FAM. CODE. ANN. § 3.402(b)(3), (e) (Supp.). Moreover, the proper
    measure of reimbursement is the value of the enhancement to the benefitted estate, but Scott’s brief focuses on cost
    of the improvement and fails to point to any evidence showing the value of enhancement. See TEX. FAM. CODE.
    ANN. § 3.402(d) (Supp.).
    19
    Scott argues that “[t]he parties do not have vastly different earning capacities.” We
    disagree. While Tiffany had a high school diploma and stopped working outside of the home
    after the first year of marriage, Scott had graduated from the University of Texas and worked as
    a licensed real estate appraisal evaluator. In addition to his $100,000.00 salary, Scott had an
    online business like the one operated by Tiffany. Scott testified that Tiffany had no assets prior
    to the marriage, but that he had a home and $10,000.00. Scott also inherited approximately
    $200,000.00 from his mother. As a result, the trial court could have decided that there was
    considerable disparity in the size of the parties’ separate estates and in their education and
    earning capacity.
    After reviewing the record, we decline to disturb the trial court’s property division
    because Scott has not shown that the trial court “clearly abused its discretion by a division that
    [was] manifestly unjust and unfair.” In re Marriage of Moncey, 
    404 S.W.3d at 706
     (quoting
    In re Marriage of Robbins, No. 06-10-00019-CV, 
    2010 WL 3168402
    , at *2 (Tex. App.—
    Texarkana Aug. 12, 2010, no pet.) (mem. op.)). We overrule Scott’s fifth point of error.
    VII.   The Trial Court Did Not Err by Denying the Motion for New Trial
    In his last point of error, Scott argues that the trial court erred by failing to grant a new
    trial based on the alleged discovery of new evidence. “We review a trial court’s denial of a
    motion for new trial under an abuse of discretion standard.” Storck v. Tres Lagos Prop. Owners
    Ass’n, Inc., 
    442 S.W.3d 730
    , 741 (Tex. App.—Texarkana 2014, pet. denied) (citing In re R.R.,
    
    209 S.W.3d 112
    , 114 (Tex. 2006) (per curiam)). “Under this standard, we may not overrule the
    trial court’s decision unless the trial court acted unreasonably or in an arbitrary manner, without
    20
    reference to guiding rules or principles.” 
    Id.
     at 741–42 (quoting El Dorado Motors, Inc. v. Koch,
    
    168 S.W.3d 360
    , 368 (Tex. App.—Dallas 2005, no pet.) (citing Beaumont Bank, N.A. v. Buller,
    
    806 S.W.2d 223
    , 226 (Tex. 1991))). “In our review, we indulge every reasonable presumption in
    favor of the trial court’s refusal of a new trial.” 
    Id.
    The evidence at trial showed that both Tiffany and Scott had online resale businesses and
    that both purchased and resold sneakers. Scott’s motion for new trial stated,
    On or about April 1, 2022[,] Scott P. Lynch discovered that [Tiffany] had been
    stealing from an area he had locked with his personal belongings at the marital
    residence, including inventory for his eBay shoe business. [Scott] found
    conclusive evidence that [Tiffany] had been stealing from his eBay inventory that
    was locked up and secured at the marital residence. While it is unknown how
    [Tiffany] gained access to this locked area, it is noted that she also gained access
    to a closet that [Scott] had locked up and secured based on exhibits she produced.
    It is estimated that [Tiffany] stole approximately 74 pairs of shoes and that she
    has either sold and/or listed said shoes in her eBay store, STGoodsTX. The
    estimated retail value of this merchandise . . . is $9,407.
    Scott also complained that Tiffany had sold the children’s Disney movies, which were once
    inside of the marital home and belonged to the community.
    The trial court granted a hearing on Scott’s motion for new trial. Scott did not testify at
    the hearing. Instead, Scott argued about the missing shoes, admitted his list of shoes that he
    claimed were stolen, and showed photos of shoes sold on Tiffany’s website. Tiffany responded
    that Scott had no proof that she had taken any of Scott’s property. After hearing argument, the
    trial court stated, “I don’t find any of the arguments to really fall in the nature of credible newly
    discovered evidence that would require a new trial.”
    Given that Tiffany and Scott both had a resale business, we defer to the trial court’s
    implied finding that there was no evidence that Tiffany had taken Scott’s shoes instead of selling
    21
    the shoes she had purchased. As for the Disney movies, Scott introduced evidence showing that
    he had purchased them from Tiffany, but the trial court had already awarded Tiffany all
    collectible and personal effects in her possession, and nothing showed that the Disney movies
    were not in her possession. As a result, we find no abuse of discretion in the trial court’s
    decision to deny the motion for new trial.
    We overrule Scott’s last point of error.
    VIII. Conclusion
    We modify the trial court’s judgment to reflect that Tiffany has the exclusive right to
    designate the primary residence of Edgar, Libby, Joy, and Darren. As modified, we affirm the
    trial court’s judgment.
    Charles van Cleef
    Justice
    Date Submitted:           November 30, 2023
    Date Decided:             December 20, 2023
    22
    

Document Info

Docket Number: 06-23-00001-CV

Filed Date: 12/20/2023

Precedential Status: Precedential

Modified Date: 12/20/2023