in the Matter of the Marriage of Thomas Eugene Vick and Diana Lynn Vick and in the Interest of M.A v. and L.L v. Children

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-15-00019-CV
IN THE MATTER OF THE MARRIAGE OF THOMAS EUGENE VICK
AND DIANA LYNN VICK AND IN THE INTEREST OF
M.A.V. AND L.L.V., CHILDREN
On Appeal from the 12th District Court
Walker County, Texas
Trial Court No. 14800, Honorable Donald Kraemer, Presiding
November 3, 2016
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appearing pro se, appellant Diana Lynn Vick (wife) appeals from a decree of
divorce dissolving her marriage to appellee Thomas Eugene Vick (husband). She
presents six issues dealing with child support, conservatorship, and property division.
We will sustain wife’s issue challenging the amount of child support she was ordered to
pay husband and remand the case to the trial court for the limited purpose of making a
correct child-support order. Otherwise, we will affirm the trial court’s judgment.
Background
Husband and wife were married in 1981 and ceased living together in May 2010.
Husband filed for divorce in August 2010. Temporary orders rendered in October 2010
placed the couple’s two minor daughters with husband and ordered wife to make
temporary child-support payments. Wife also was ordered to vacate the family’s
residence.
The case in the trial court consumed over four and one-half years and saw
multiple hearings producing a sixteen-volume reporter’s record. A two-day bench trial
was conducted in December 2011. The trial court did not make a decision on property
division, however, and that issue was later referred to a special master. The parties
appeared before the special master during May 2013. An agreement was not reached
so the special master submitted recommendations to the trial court in August 2013.
Wife objected to the special master’s report, apparently because it did not place a value
on each item of property. A final decree of divorce was signed on September 26, 2014.
The trial court then modified the decree twice during the period of its plenary jurisdiction.
Wife appealed. On her motion, we abated the appeal and remanded the case to the
trial court for preparation of findings of fact and conclusions of law.1
Analysis
In a suit affecting the parent-child relationship and when the court divides the
marital estate, absent proof of a clear abuse of discretion, a trial court’s orders will not
be disturbed on appeal. R.J. v. K.J., No. 02-14-00266-CV, 2015 Tex. App. LEXIS
1
In re Marriage of Vick, No. 07-15-00019-CV, 2015 Tex. App. LEXIS 4209 (Tex.
App.—Amarillo Apr. 23, 2015, per curiam order).
2
10212, at *7 (Tex. App.—Fort Worth Oct. 1, 2015, no pet.) (mem. op.) (citing McCain v.
McCain, 980 S.W.2d 800, 802 (Tex. App.—Fort Worth 1998, no pet.)); Marin v. Marin,
No. 14-13-00749-CV, 2016 Tex. App. LEXIS 3178, at *3-4 (Tex. App.—Houston [14th
Dist.] Mar. 29, 2016, no pet.) (mem. op.) (stating court of appeals reviews division of
marital property for abuse of discretion). The test is whether the trial court acted
arbitrarily, unreasonably or without reference to guiding rules or principles. McLane v.
McLane, 263 S.W.3d 358, 362 (Tex. App.—Houston [1st Dist.] 2008, pet. denied),
disapproved on other grounds, Iliff v. Iliff, 339 S.W.3d 74, 83 (Tex. 2011). We review
the evidence in the light most favorable to the trial court’s actions and indulge every
legal presumption in favor of the order. Id. There is no abuse of discretion as long as
the trial court’s decision is based on some evidence of a substantive and probative
character. Brejon v. Johnson, 314 S.W.3d 26, 29 (Tex. App.—Houston [1st Dist.] 2009,
no pet.); Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.—Houston [1st Dist.] 1993,
writ denied). “An abuse of discretion does not exist where the trial court bases its
decisions on conflicting evidence.” Gen. Tire, Inc. v. Kepple, 970 S.W.2d 520, 526
(Tex. 1998) (quoting Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978)).
When property division is at issue the overarching question is whether the trial
court divided the property in a “just and right” manner. Rafferty v. Finstad, 903 S.W.2d
374, 376 (Tex. App.—Houston [1st Dist.] 1995, writ denied); TEX. FAM. CODE ANN.
§ 7.001 (West 2006) (A trial court must make a “just and right” division of community
property with “due regard for the rights of each party”). The property division need not
be equal but it must be equitable. Chafino v. Chafino, 228 S.W.3d 467, 473 (Tex.
App.—El Paso 2007, no pet.). Generally, community assets are valued as of the date
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of divorce or as near that date as possible. Finley v. Finley, No. 02-11-00045-CV, 2015
Tex. App. LEXIS 577, at *32-33 (Tex. App.—Fort Worth Jan. 22, 2015, no pet.) (mem.
op.) (citing Quijano v. Quijano, 347 S.W.3d 345, 349 (Tex. App.—Houston [14th Dist.]
2011, no pet.)). It is also true, however, that the facts of a case may require another
basis for the property division with that decision left to the trial court’s discretion. Id.
(citing Parker v. Parker, 897 S.W.2d 918, 932 (Tex. App.—Fort Worth 1995, writ
denied)); In re Marriage of Hammett, No. 05-14-00613-CV, 2016 Tex. App. LEXIS 5783,
at *11 (Tex. App.—Dallas June 1, 2016, no pet.) (mem. op.) (citing Finley).
To obtain reversal of a trial court’s valuation of property, the complaining party
must show that because of the asserted error the overall property division was
manifestly unjust. Cook v. Cook, 679 S.W.2d 581, 585 (Tex. App.—San Antonio 1984,
no writ). We will not reverse an order setting child support unless the complaining party
demonstrates the trial court clearly abused its discretion. In re J.M.W., 470 S.W.3d 544,
549 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (citing Worford v. Stamper, 801
S.W.2d 108, 109 (Tex. 1990) (per curiam); In re A.M.P., 368 S.W.3d 842, 846 (Tex.
App.—Houston [14th Dist.] 2012, no pet.)).
Valuation of Annuity
In her first issue, wife argues the trial court abused its discretion and in so doing
reversibly erred by using the date of the proceedings before the special master, rather
than the date of divorce, for the purpose of valuing a qualified annuity.
Husband and wife each listed, in their proposed divisions of property, a Variflex
qualified annuity as a community asset. Retirement contributions made by husband’s
4
former employer apparently were invested in the annuity. The decree awarded wife
“45% of Variflex Qualified Annuity 5326 as of May 16, 2013.” Similar language awarded
husband fifty-five percent of the annuity, “as of” the same date.
The record of trial court proceedings includes the special master’s written
recommendation, and shows the master recommended the 45/55 percentage division.
We have no record, however, of the proceedings before the special master. And the
record otherwise contains little information about the annuity. We have neither the
annuity contract nor a summary of its terms. In a motion for new trial, wife made
reference to an “accumulation” of assets in the annuity between the May 2013 date of
valuation and the date of divorce.2 The record does not reflect how such an asserted
accumulation occurred. Nor is the amount of the accumulation or its impact on the
property division shown.
In sum, wife has not demonstrated how, by selecting the May 2013 date rather
than the date of divorce, the trial court abused its discretion. Moreover, even had error
been shown wife does not demonstrate how she was harmed. TEX. R. APP. P. 44.1(a)
(error must have probably caused the rendition of an improper judgment or probably
prevented the appellant from properly presenting the case to the court of appeals).
Wife’s first issue is overruled.
2
Wife’s brief in this court refers to the “increased value of the annuity” over the
sixteen months between the May 2013 date and the date of divorce.
5
Geographic Restriction
In her second issue wife argues the trial court abused its discretion and
reversibly erred by failing to establish a geographic restriction for the minor children’s
residence.3 The decree appointed the parents joint managing conservators of the
children and ordered that husband have the exclusive right to designate their primary
residence. Unlike the temporary orders, the designation does not contain a geographic
restriction.
Wife’s argument supporting her second issue appears to contend the court
abused its discretion by failing either to establish a geographic restriction or, as the
Family Code requires, “specify that the conservator may determine the child’s primary
residence without regard to geographic location.” See TEX. FAM. CODE ANN.
§ 153.134(b)(1)(A),(B) (West 2014). The court’s decree does not contain the phrase
“without regard to geographic location,” but we think the decree is clear that no
geographic restriction was ordered.
It may be, however, that wife’s issue is intended to argue merely that the court
erred by its failure to impose a geographic restriction. The best interest of the child is
always the primary consideration of the court when determining the issues of
conservatorship, and possession of and access to children. TEX. FAMILY CODE ANN.
§ 153.002 (West 2014). Wife’s argument does not address the child’s best interest, but
focuses on wife’s best interest. See Bukovich v. Bukovich, 399 S.W.2d 528, 529 (Tex.
3
One of the two children is now age twenty and apparently serving in the
military. Wife’s second issue thus concerns only the best interest of the younger child,
now age sixteen.
6
1966) (“The desires, acts and claims of the respective parents are secondary
considerations and material only as they bear upon the question of the best interest of
the child”). She presents no persuasive reason the court abused its discretion by its
decision not to order a geographic restriction. Wife’s second issue is overruled.
Child Support Credit
Wife’s third issue appears to center on a claim that the parties reached an
agreement at a hearing to allow wife a $10,800 child-support credit. The credit, wife
urges, was not included in the decree.
The reporter’s record from a January 14, 2013 hearing contains a Rule 114
agreement the terms of which, relevant to this issue, provided that husband could take a
judgment against wife for a $7,425 child-support arrearage. As noted, we have no
record of proceedings before the special master but the clerk’s record contains the
special master’s report. Therein the special master presented a recommended division
of the community property as well as a provision that wife “will receive a credit for
$10,800 for child support as part of this division of property.” The decree appears to
follow the special master’s recommended property division but it does not mention the
child-support credit. In a finding of fact, the trial court stated husband and wife were
“entitled to a relatively equal division of the marital estate.” The trial court may have
adopted the special master’s recommendation, thereby granting the child-support credit.
Husband’s counsel argued that was the case, at a January 12, 2015 hearing. But it
may also be true that the trial court adopted the recommended property division without
4
TEX. R. CIV. P. 11.
7
granting the support credit. In either instance, the record would not permit us to
conclude the court abused its discretion. Wife’s third issue is overruled.
Amount of Child Support
In her fourth issue, wife contends the trial court abused its discretion by fixing the
amount of her monthly child-support obligation in the decree at $1,091.71 when the
record does not support such an order. We agree.
Under an abuse-of-discretion standard, legal and factual evidentiary insufficiency
are not independent grounds of error, but are instead relevant factors to assess whether
the trial court abused its discretion. Henry v. Henry, 48 S.W.3d 468, 475 (Tex. App.—
Houston [14th Dist.] 2001, no pet.). A trial court abuses its discretion by ruling without
supporting evidence. Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012).
In its findings of fact, the court stated the parties agreed to the amount of child
support provided in the decree. Wife challenges the finding.
At a September 2011 temporary orders hearing, wife agreed to pay $1,091.71 as
temporary child support pending trial. Before the presentation of evidence at the
December 2011 bench trial, the court inquired about support agreements. Counsel for
husband and wife each responded that no such agreements had been reached.
Husband testified he sought a child-support order based on statutory guidelines. Wife
offered evidence of income for purposes of the net-resources calculation to determine
the amount of child support. The amount of adjusted income she presented was
$3,226.79, resulting in a monthly support obligation for two children, according to her
calculation, of $806.70. See TEX. FAM. CODE ANN. § 154.125(b) (West Supp. 2016)
8
(containing schedule which court shall presumptively apply in rendering the child-
support order). Other evidence in the record could support other amounts.
Husband does not direct us to, nor do we find, evidence from trial of an
agreement whereby wife bound herself to pay child support of $1,091.71 on divorce.
We find no evidence supporting the trial court’s finding that the parties agreed to the
$1,091.71 amount stated in the decree. As an agreed amount, the figure has no
evidentiary support. Accordingly, and based on its finding of fact, the trial court abused
its discretion by setting wife’s monthly child-support obligation at $1,091.71.
Wife presented some evidence supporting a monthly obligation of $806.70 but
other evidence might lead to a different amount. Because the difference between
$1,091.71 and the other amounts having evidentiary support is not de minimis the error
is not harmless. We sustain issue four and will remand the case in part for recalculation
of wife’s child-support obligation.
Trial De Novo of Special Master’s Recommendation
Wife’s fifth issue is multifarious.5 To the extent we are able, we will consider it.
Wife seems to complain of the trial court’s denial of a trial de novo following her
objection to the special master’s recommended division of property.6
5
A multifarious issue addresses more than one specific ground of error. Shull v.
United Parcel Service, 4 S.W.3d 46, 51 (Tex. App.—San Antonio 1999, pet. denied). A
court may refuse to review a multifarious issue or it may consider the issue if it is able,
with reasonable certainty, to determine the complained-of error. Id.
6
Although appearing pro se and not a licensed attorney, wife is held to the same
standards of appellate presentation as a licensed attorney. See, e.g., Page v. State
Farm Lloyds, No. 10-12-00317-CV, 2013 Tex. App. LEXIS 14779, at *12-13 n.2 (Tex.
9
A January 2013 order of the trial court indicated the parties agreed to
appointment of a special master for property division. The trial court ordered the special
master to “resolve the matter of the property division of the parties.” The order further
provided, “In the event the Special Master is unable to obtain an agreement of the
parties, the Special Master is authorized and ordered to provide a recommendation to
the Court regarding said issue.”
In August 2013, the special master filed her recommendation. It stated the
parties were unable to reach an agreement. The recommendation continued with an
item-by-item property division, but the special master did not state a value for each item
of property. Wife filed an amended motion to set aside the special master’s
recommendation. She argued the court ordered the property equally divided but the
special master awarded husband a disproportionate share by value.
Wife raises no objection on appeal to the court’s appointment of the special
master. See Simpson v. Canales, 806 S.W.2d 802, 811 (Tex. 1991) (orig. proceeding)
(noting if parties consent, the referral to a master “will ordinarily not be subject to
challenge”). And, for several reasons, we find the record does not support wife’s
contention the trial court erred by failing to grant her a trial de novo when she objected
to the master’s recommendation.
We note at the outset that wife relies on appeal on cases addressing masters in
chancery under Rule of Civil Procedure 171. See, e.g., Young v. Young, 854 S.W.2d
App.—Waco Dec. 5, 2013, pet. denied) (mem. op.) (explaining that in Texas pro se
litigants “are held to the same standards as licensed attorneys with regard to
compliance with applicable laws and rules of procedure”).
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698, 700-701 (Tex. App.—Dallas 1993, writ denied). The report of a master appointed
under rule 171 is said to be conclusive “on all issues except those specifically objected
to.” Id. at 701. To the extent objected to, the report is not binding. Issues of fact raised
by the objections are to be tried de novo. Id. The special master here was not
appointed pursuant to rule 171, but by agreement of the parties. The court’s order did
not track the language of rule 171. See id. at 701; Martin v. Martin, 797 S.W.2d 347,
350 (Tex. App.—Texarkana 1990, no writ). Under the language of the court’s order
here, the master’s recommendation was not binding in the same manner as those under
rule 171.
Nor do we read the court’s order to assign the master the task of determining the
values of community assets. The case was tried to the bench in December 2011, and
contested facts were submitted to the trial court during the bench trial. The parties hotly
contested the property division yet at trial presented nothing more than their own widely-
divergent proposed divisions.
Finally, even if we were to find error in the trial court’s denial of a trial de novo on
valuation issues, we have no record of what additional evidence wife would have
offered had the trial court conducted a second evidentiary trial on property division. We
can see no merit to wife’s argument that she should have had a new trial simply
because she objected to the special master’s recommendations.
With less clarity it appears wife further contends the trial court abused its
discretion by adopting the property division recommended by the special master; wife
asserts the court “plagiarized” the master’s recommendation. As noted, in its findings of
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fact, the trial court stated that wife and husband were entitled to “a relatively equal
division of the marital estate.” Wife has not demonstrated that the division contained in
the decree failed to accomplish the court’s intentions, nor has she shown how the trial
court otherwise abused its discretion by following the master’s recommended division.
On this record, we cannot say that the trial court abused its discretion in dividing the
community estate. Wife’s fifth issue is overruled.
Denial of New Trial
By her sixth issue, wife argues the trial court abused its discretion by denying her
motion for new trial heard in November 2014. Her argument centers on a contention
the trial court failed to properly consider the best interest of the children in its
determination of conservatorship and possession. At the November hearing, the court
addressed wife’s motion for new trial filed October 23, 2014. That motion states,
without further elaboration, “the circumstances of the children [made the, basis] of this
suit have changed significantly and neither the Parenting Plan nor the child support
ordered reflect the current state of affairs.” The court denied the motion by written
order. Thereafter, still during the period of its plenary power, the court twice modified its
judgment. Wife filed a motion for new trial following each modification. Her final motion
for new trial was filed February 13, 2015. In that motion, wife did not assert the best-
interest argument she now makes on appeal. Accordingly the issue is not preserved for
our review. TEX. R. APP. P. 33.1(a). Moreover, the relief wife seeks under this issue
depends on our consideration of facts that do not appear in the evidentiary record. We
are prohibited from considering such evidence. See, e.g., Sabine Offshore Serv., Inc. v.
City of Port Arthur, 595 S.W.2d 840, 841 (Tex. 1979) (per curiam) (noting that courts of
12
appeals may not consider affidavits outside the record); In re Marriage of Hernandez,
No. 10-09-00136-CV, 2011 Tex. App. LEXIS 6441, at *10-11, n.3 (Tex. App.—Waco
Aug. 10, 2011, no pet.) (mem. op.) (court could not consider exhibits presented on
appeal which were not part of the appellate record). For those reasons, wife’s sixth
issue is overruled.
Conclusion
We reverse the part of the judgment of the trial court that set the child-support
obligation of wife at the amount of $1,091.71 per month, and remand the cause to the
trial court for a new trial on the proper amount of child support. Otherwise, the judgment
of the trial court is affirmed.
James T. Campbell
Justice
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