COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-06-376-CV
RAYMOND GLENN HANCOCK APPELLANT
V.
VICKI B. HANCOCK APPELLEE
------------
FROM THE 233RD DISTRICT COURT OF TARRANT COUNTY
------------
MEMORANDUM OPINION 1
------------
Appellee Vicki B. Hancock filed for divorce in August 2004, and after
more than two years of litigation, the trial court granted the divorce and signed
the divorce decree. Appellant Raymond Glenn Hancock filed a timely notice of
appeal. In eight issues, Glenn complains of the trial court’s property division.
Because we hold that the trial court did not abuse its discretion in dividing the
1
… See T EX. R. A PP. P. 47.4.
community estate, we affirm the trial court’s judgment.
I. Findings of Fact and Conclusions of Law
After two days of trial, the trial court found:
....
6. Credible evidence was admitted to support the following
factors for consideration by the Court in ordering a division
of the parties’ estate:
a. GLENN’s 2 fault in the breakup of the marriage;
b. fraud on the community committed by GLENN;
c. benefits VICKI may have derived from the
continuation of the marriage;
d. disparity of earning power of GLENN and VICKI
and their ability to support themselves;
e. earning power, business opportunities,
capacities, and abilities of both spouses; and
f. wasting of community assets by GLENN.
7. The community property of the parties existing and remaining
to be divided as of the date of the trial was valued as
follows:
a. Property with an ascertainable cash value:
2
… The trial court referred to the parties by their full names or initials in
the findings of fact and conclusions of law. In quoted excerpts from the
findings of fact and conclusions of law, we have modified these references by
using only the given names of the parties.
2
...
Hancock Ins. Agency, Inc. $170,520.00
...
....
8. The total value of the community estate existing on the day
of trial was $1,727,842.89.
....
14. GLENN committed fraud on the community and waste of
community assets during the pendency of the divorce
proceeding by improperly disposing of certain community
property.
15. Except for the fraud on the community and waste committed
by GLENN, the community property of the parties remaining
to be divided would have included the following additional
cash assets:
Hancock Insurance Agency, Inc. funds
expended solely to benefit GLENN $171,971.71
Retirement funds withdrawn and expended
solely to benefit GLENN $121,334.70
Cash from Ranch [3] $36,000.00
Total $329,306.41
....
3
… A footnote here provided, “Cash GLENN advised Judge Haddock
(Associate Judge of 233rd Judicial District Court) GLENN had ‘at the ranch’;
Judge Haddock ordered the cash be deposited in HIA account; instead [he]
withdrew $36,000 out of First State Bank account and deposited in HIA[.]”
3
17. Therefore, in making a just and right equitable division of the
community estate, the Court considered the total value of the
community estate to be $2,105,549.30 ($1,727,842.89 +
$329,306.41 + $48,400.00 [cash advances the parties
received from the receiver before trial]).
....
19. VICKI was awarded [$1,227,178.06 in] existing community
property[.]
20. VICKI received $26,600.00 in cash advances of community
property . . . .
21. VICKI thus received $1,253,778.06 of the total community
estate considered by the Court ($1,227,178.06 +
$26,600.00).
22. The percentage of existing community property awarded to
VICKI was 71% ($1,227,178.06/$1,727,842.89)[.] The
percentage of the total value of the community estate
considered by the Court as awarded to VICKI was 59.5%
($1,253,778.06/$2,105,549.30).
....
24. GLENN was awarded [$500,664.83 in] existing community
property[.]
25. GLENN received $22,000.00 in cash advances of community
property. . . .
26. Due to the fraud on the community and waste committed by
GLENN, the Court considered that GLENN also received
[$329,306.41 in] advances of community property[.]
27. GLENN thus received $851,971.24 of the total community
estate considered by the Court ($500,664.83 + $22,000.00
+ $329,306.41).
4
28. The percentage of existing community property awarded to
GLENN was 29% ($500,664.83/1,727,842.89)[.] The
percentage of the total value of the community estate
considered by the Court as awarded to GLENN was 40.5%
($851,971.24/2,105,549.30).
The trial court’s conclusions of law included the following:
....
2. The parties should be divorced on the ground that the
marriage had become insupportable because of discord or
conflict of personalities.
....
4. In determining the total value of the community estate to be
considered by the Court in making a just and right equitable
division of the community estate, the Court should recoup
the amount of community property lost to waste and/or
constructive fraud committed by GLENN.
5. The value of the community property lost to waste and/or
constructive fraud committed by GLENN should be
considered as part of the total value of property awarded to
GLENN.
II. Preliminary Matter: Glenn’s Notebook
Initially, we note that in presenting his issues, Glenn relies on information
found in Respondent’s Exhibit One, “Glenn Hancock’s Submission Notebook.”
Vicki contends that the notebook was admitted as a summary of the witness’s
testimony and that its contents cannot be considered as admissible evidence.
Rule 105(a) of the Texas Rules of Evidence provides that “[w]hen evidence
5
which is admissible as to one party or for one purpose but not admissible as to
another party or for another purpose is admitted, the court, upon request, shall
restrict the evidence to its proper scope.” 4 Evidence admitted for a limited
purpose may be considered for only that purpose. 5
Our review of the record shows that the notebook was offered when the
couple’s adult son, Brad Hancock, was on the witness stand, after he had been
sworn but before he testified. When asked if he had any objections to the
admission of the notebook, Vicki’s lawyer replied,
Your Honor, in the conference that we had at the bench a
few minutes ago, I’m afraid this — and I don’t anticipate there are,
4
… T EX. R. E VID. 105(a).
5
… See Davis v. Gale, 160 Tex. 309, 330 S.W.2d 610, 612–13 (Tex.
1960) (holding that trustee’s deed that plaintiffs introduced for limited purpose
of demonstrating a cloud on their title could not be used as proof of defendant’s
title); Tex. Commerce Bank Reagan v. Lebco Constructors, Inc., 865 S.W.2d
68, 76 (Tex. App.—Corpus Christi 1993, writ denied) (holding evidence
admitted for particular purpose may not be weighed in determining sufficiency
of evidence to show matter outside limitation), overruled on other grounds by
Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 530
(Tex. 1998); Fitzgerald v. LaFreniere, 658 S.W.2d 692, 696 (Tex.
App.—Corpus Christi 1983) (holding document offered for limited purpose of
showing it had been given to party and never re-offered remained subject to
limited tender and was no evidence of other fact sought to be proved), rev’d on
other grounds, 669 S.W.2d 117 (Tex. 1984); see also Peaster Indep. Sch. Dist.
v. Glodfelty, 63 S.W.3d 1, 10 (Tex. App.—Fort Worth 2001, no pet.)
(“[E]vidence specifically offered only for a limited purpose remains subject to
its limited purpose; consequently, such evidence is simply not probative
evidence of any other fact.”).
6
but if there is any settlement negotiations in here, I would object
to that. And if this is being offered as a summary of Mr.
Hancock’s testimony, I don’t have any objections so long as it’s
restricted to a summary —
The trial court replied, “Admitted as a summary of the witness’ testimony.”
Glenn’s attorney referred to the notebook while questioning Brad. Glenn did not
testify at trial. Accordingly, because the trial court admitted the notebook only
as a summary of the witness’s testimony, and the only Mr. Hancock who
testified was Brad, we exclude the notebook from our review of the evidence
and exclude Glenn’s arguments based on the notebook from our analysis. Of
course, to the extent that any specific portion of the notebook was admitted
into evidence without limitation elsewhere during the trial, we will consider
such portion.
III. Standard of Review: Division of a Community Estate
As this court has previously explained,
In a divorce proceeding, the trial court is charged with
dividing the community estate in a “just and right” manner,
considering the rights of both parties. Trial courts are afforded
wide discretion in dividing marital property upon divorce; therefore,
a trial court’s property division may not be disturbed on appeal
unless the complaining party demonstrates from evidence in the
record that the division was so unjust and unfair as to constitute an
abuse of discretion.
To determine whether a trial court abused its discretion, we
must decide whether the trial court acted without reference to any
guiding rules or principles; in other words, we must decide whether
7
the act was arbitrary or unreasonable. We must indulge every
reasonable presumption in favor of the trial court’s proper exercise
of discretion in dividing marital property. Accordingly, we will
reverse only if the record demonstrates that the trial court clearly
abused its discretion, and the error materially affected the just and
right division of the community estate.
. . . In exercising its discretion, the trial court must order an
equitable, but not necessarily equal, division of the community
estate. In dividing the estate, the trial court can consider a variety
of factors, and it is presumed that the trial court exercised its
discretion properly. 6
IV. The Trial Court’s Division of the Hancocks’ Community Estate
In his first issue, Glenn contends that the trial court made an unjust
division of the marital estate.
A. No Waste by Vicki
In his seventh issue, Glenn contends that the trial court failed to take into
account money wasted by Vicki in making a just and right division of the marital
estate. Our review of the admitted evidence reveals that Brad testified that he
had seen “over 10 or 20" bundles of $100 bills before “Y2K hit” in the parties’
Crest Lake home, that he did not recall when he last saw the money but it was
at some point before he was ordered to move in with his father in 2004, and
that when he last knew who had possession of the money, the person in
6
… Schaban-Maurer v. Maurer-Schaban, 238 S.W.3d 815, 820 (Tex.
App.—Fort Worth 2007, no pet.) (citations omitted).
8
possession was Vicki. Glenn does not refer to any other admitted evidence.
The factfinder is the sole judge of credibility of the witnesses.7 As factfinder,
the trial court was in a better position to determine the candor, demeanor, and
credibility of the witnesses.8 We cannot say that the trial court abused its
discretion by implicitly finding that Vicki did not waste any of the community
estate. We overrule Glenn’s seventh issue.
B. Value of Hancock Insurance Agency
In his eighth issue, Glenn contends that the trial court erred by valuing
Hancock Insurance Agency at $170,520.00 when there was no evidence or
factually insufficient evidence to support that finding. Bryan Rice, whom the
trial court appointed to evaluate the insurance agency, testified on the first day
of trial that his opinion as of that date, July 17, 2006, was that the value of
the insurance agency was approximately $204,000.00 subject to a possible
judgment of about $80,000.00. He also testified that the projected renewals
of policies from August 1 through the end of the year was about $3.4 million
in gross premiums for the rest of the year. He estimated that ten percent of
those renewal dollars, or $340,000.00, would be the approximate agency
7
… Id. at 821–22.
8
… Id.
9
revenue for the remainder of the year. He testified that he used that
percentage rate because it was historical and that on average the rate ranged
from 8 to 12 percent. He also testified that in constructing a current balance
sheet for the agency, he considered “cash, a check that’s receivable from the
IRS, [and] a small assessment for furniture and supplies,” and then he
“subtracted from the total assets of [$]442,000 the liabilities of about
$170,000.00 to get to an unadjusted book value of about [$]272,000,” and
then he “assessed a 25 percent discount for lack of marketability of the
agency,” reaching a net value of $204,099.00.
More than five weeks later, on the second day of trial, August 24, 2006,
Bryan Rice identified Petitioner’s Exhibit 9S2 as “a two-page document wherein
[he] brought forward . . . the valuation of the agency and more current
numbers[,] taking into account more updated facts and circumstances.” The
document summarizes his opinion as to the agency’s value as of that date,
August 24, 2006. The first page of the exhibit provides a computation ending
in $170,520.00, labeled as “Adjusted Value?” Rice explained how he arrived
at the value,
I summed the assets of the agency and future — or income to be
earned in the next — through the end of this year and then
deducted future expenses and liabilities to arrive at a net asset
value. I subtracted a 25 percent discount for lack of marketability
on the net assets and came to a net value of the agency. And I
10
also provided a — I’d say a hypothetical calculation taking into
account whether or not the contingent liability or the liability related
to the . . . building that . . . the Hancock Insurance Agency vacated
— there is . . . apparently, a judgment against the corporation for
unpaid rents, and there’s a question in my mind as to whether that
amount is actually going to ever be paid, so I provided the Court a
scenario if it’s going to be paid or if it’s not going to be paid.
....
. . . . I would be the one to have made the payment because
I’m the Receiver for the corporation, and I’ve not been served with
any type of document ordering me to pay the judgment. I’ve not
received any direction from any attorney or court to pay the
judgment.
Rice also explained that he considered future commissions in valuing the
business
[b]ecause they . . . represent likely benefits to be earned by this
. . . business in the very near future, within the next four months
or — so[. T]hese commissions have a very lengthy history of being
earned year after year. As . . . I stated, there’s no guarantee that
these commissions will be earned, but I would say it’s probable
that they will be earned.
He also testified that the 25% discount is a higher than normal discount for a
controlling interest, in his opinion.
On cross-examination, Rice admitted that there was no buyer for the
agency at the time and that he had not been approached by a potential buyer
during his term of receivership, which had lasted about eighteen months.
Vicki testified that she believed that Glenn had taken actions to diminish
11
the value of the agency and had diverted business from the agency. As
evidence, she pointed to the fact that Glenn had transferred their personal
homeowners’ insurance and auto insurance policies from the agency without
her knowledge. She received a letter after the fact from the insurance company
stating that the agent of record (Glenn) had been changed to another agency.
She also testified that Glenn had, during the pendency of the divorce, set up
two other companies, Hancock Insurance & Associates and National Healthcare
Insurance Resources, to which he had diverted $300–$400,000.00, receiving
proceeds under a different business name that the trial court had ordered the
receiver to receive. She testified that she thought that this action also
contributed to the decline or the demise of the agency. Further, she testified
that in her opinion, if Glenn had been doing all he could to improve the value of
the agency, it would be worth more than $204,000.00, and that prior to the
divorce, they had been offered 1.5 times the “book” of business for the
company. At the time she testified, that measure would have made the agency
worth about $600,000.00.
Glenn’s expert, Robert Martin, testified that the agency had approximately
twelve large accounts before receivership but only one as of the first day of trial
and that the diminution in value of the business since it had entered into
receivership was indicative of Glenn’s importance to the business.
12
Glenn contends that Rice’s report is based on an incorrect assumption
that the agency will have a 100% renewal rate. The evidence shows that Rice
considered the longevity of the accounts for which he projected renewals, the
short term that would elapse before the revenue would start rolling in, and the
possibility that the customers would not renew. This possibility also appears
woven into the higher-than-usual 25% discount rate. Glenn’s reliance on the
lost profits analysis in Szczepanik v. First Southern Trust Co. 9 in arguing that
there is no evidence as a matter of law of the agency’s value is therefore
misplaced.
Glenn also complains that Rice failed to reduce the agency’s value by a
liquidated judgment of $61,387.00. Rice explained why he did not include that
amount in his estimated value of the company but also noted the amount on
the report and his alternate estimate behind it.
Glenn additionally contends that Rice did not render an opinion that the
value was $170,520.00 but rather questioned whether that amount was the
value. Rice testified that the exhibit summarizes his opinion as to the agency’s
value as of that date, August 24, 2006. The first page of the exhibit, which
provides an estimate of the value ignoring the alleged judgment against the
9
… 883 S.W.2d 648, 650 (Tex. 1994).
13
company, provides a computation ending in $170,520.00, labeled as “Adjusted
Value?”. We conclude that the evidence easily lends itself to a conclusion that
Rice opined that the estimated value of the company on August 24, 2006 was
$170,520.00.
Finally, Glenn argues that the anticipated renewals should not have been
included in the value at all because they would not be earned or received until
after the divorce and thus were not themselves community property. Because
the business was the community asset being valued, not the individual
renewals, we cannot say that Rice improperly considered the anticipated
revenue in valuing the agency or that the trial court abused its discretion by
including the amount in its valuation of the agency.
As the factfinder, the trial court was the sole judge of the credibility of
witnesses and the weight to be given to their testimony 10 and could resolve any
inconsistencies in the evidence. 11 Based on the above discussion, we hold that
the trial court did not abuse its discretion by valuing the insurance agency at
$170,520.00. We overrule Glenn’s eighth issue.
C. Fraud on the Community and Waste Supported by Evidence
10
… Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.
2003).
11
… McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).
14
Apparently as subissues to his global issue contending that the trial court
abused its discretion in dividing the community estate, Glenn contends that the
evidence is legally and factually insufficient to support the trial court’s findings
that he committed fraud on the community and wasted community assets.
As this court has previously explained,
The Texas Supreme Court has recognized waste of
community assets as a factor to be taken into consideration in the
division of the community estate. . . .
. . . . A fiduciary duty exists between a husband and a wife
regarding the community property controlled by each spouse.
“Fraud on the community” is a judicially created concept based on
the theory of constructive fraud and is applied when there is a
breach of a legal or equitable duty, which violates this fiduciary
relationship existing between spouses. Although not actually
fraudulent, any such conduct in the marital relationship is termed
fraud on the community because it has all the consequences and
legal effects of actual fraud since the conduct tends to deceive the
other spouse or violates marital confidences.
A presumption of constructive fraud arises where one spouse
breaches the fiduciary duty owed to the other spouse and disposes
of the other spouse’s one-half interest in community property
without the other’s knowledge or consent. When that occurs, the
burden of proof is on the disposing spouse to show fairness in
disposing of community assets.12
Waste of community assets occurs when a spouse wrongfully depletes the
12
… Loaiza v. Loaiza, 130 S.W.3d 894, 900–01 (Tex. App.—Fort Worth
2004, no pet.) (citations omitted).
15
community’s assets without the other spouse’s knowledge or consent.13
The trial court found that Glenn had committed fraud on the community
and had wasted community assets by improperly disposing of certain
community property during the pendency of the divorce. Specifically, the trial
court found that Glenn had expended $171,971.71 of Hancock Insurance
Agency, Inc. funds and $121,334.70 of retirement funds for his sole benefit.
Glenn had also disobeyed the trial court’s order to deposit $36,000.00, cash
on hand “at the ranch,” into the insurance agency account. The trial court
found that, but for Glenn’s fraud on the community and waste, the community
estate would have been larger by $329,306.41.
1. The $171,971.71 in Insurance Agency Funds
Glenn contends that Vicki offered no evidence why the $171,971.71 in
the insurance agency’s funds that the trial court found were expended solely
to benefit Glenn were a waste or fraud on the community. Vicki testified that
Glenn paid himself the $171,971.71 from the insurance agency without the
trial court’s approval while there were temporary orders in place “that said how
much money” each spouse was to receive. She answered affirmatively when
asked indirectly whether she “felt [those] were benefits that [Glenn] received
13
… Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998).
16
that [she] didn’t receive equal benefit from” and indicated that he was not
authorized by the trial court to make them and that she objected to them.
The accountant for the agency, Walter Virden, testified that the Hancocks
had paid bills out of the insurance agency that would generally get reclassified
as shareholder distributions; that he had had to make those kinds of
adjustments “pretty much the entire time” —twenty-five years—that he had
been representing them; that in the past, even before the divorce, ranch
expenses had been paid out of the agency; and that Vicki’s numbers did not
account for any deposits that Glenn or Vicki might have made into the agency.
When asked if he “notice[d] anything unusual or anything that would suggest
that Glenn . . . ha[d] personally benefitted from” the agency funds, Virden
answered, “Well, there’s a — no, because here I can’t tell — like — well,
there’s a Dish Net — Dish Network (sic) for $35.25. I don’t know what that
would be for.” He answered, “Perhaps, “ when asked whether Glenn had
“probably personally benefit[t]ed” from that. On cross-examination, Virden
stated that he did not know “whether [Glenn] did or . . . did not receive
personal benefit” from the funds.
Virden testified,
The explanation for those items would have been in the books of
the company under various expense categories. And, also, there
were items of credits where money was paid back to the
17
corporation either from Hancock Insurance or from Mr. Hancock or
Mrs. Hancock . . . [,] and those credits are not reflected in these
numbers.
He also testified that a total of $114,000.00 in deposits had been made that
were not reflected in Vicki’s numbers.
The burden was not on Vicki to justify the expenditures. Because Vicki
put on evidence that the money was spent without her consent, it became
Glenn’s burden to show that the $171, 971.71 was expended fairly. 14 Further,
the trial court as the factfinder was the sole judge of the credibility of the
witnesses and the weight to be given to their testimony 15 and could resolve any
inconsistencies in the evidence. 16
2. The Retirement Funds of $121,334.70
Regarding the withdrawn retirement funds of $121,334.70, Glenn also
claimed that there was no evidence or insufficient evidence to support the trial
court’s finding that he had wasted or committed fraud on the community. Vicki
testified that Glenn had withdrawn $250,000.00 from the Southwest Securities
retirement accounts. Of that amount, $50,000.00 was sent directly to the IRS.
Of the remaining $200,000.00, Glenn used $100,000.00 to purchase a
14
… See Loaiza, 130 S.W.3d at 901.
15
… See Golden Eagle Archery, Inc., 116 S.W.3d at 761.
16
… See McGalliard, 722 S.W.2d at 697.
18
certificate of deposit (CD). The trial court admitted an exhibit showing that
Glenn received a cashier’s check of $101,334.70 for the matured CD. Glenn
deposited the check into the ranch account, receiving $90,000.00 in cash. He
testified at an earlier hearing that he paid $75,000.00 in cash to his sister.
There is no evidence regarding the remaining $15,000.00. Vicki requested
recoupment of the entire amount of the matured CD—$101,334.70.
Out of the other $100,000.00, Vicki testified that seven or eight days
after Glenn requested a $50,000.00 distribution from Southwest Securities, he
deposited $50,000.00 into an account at First State Bank. Glenn wrote some
checks to himself and for ranch related expenses and incurred other
miscellaneous debits totaling approximately $20,000.00.17 Vicki sought
recoupment of the $20,000.00. Glenn contends that the entire $20,000.00
was for the payment of ranch expenses.
Again, it was not Vicki’s burden to prove that the expenditures were
unfair, but, once she challenged them, Glenn’s burden to prove that they were
fair.18 The trial court as the factfinder was the sole judge of the credibility of
17
… Petitioner’s exhibit 81 reveals that the actual total amount withdrawn
from the account—including checks and other debits—was $19,814.69. Given
the size of the estate, the $185.31 discrepancy is immaterial.
18
… See Loaiza, 130 S.W.3d at 901.
19
the evidence 19 and could harmonize it.20
3. The $36,000.00 Cash from Ranch
W ith regard to the $36,000.00, Glenn contends that no evidence was
admitted on this issue. Vicki testified as follows:
Q. And then there was $36,000.00 that Mr. Hancock paid
from the First State Bank pursuant to — in his opinion, pursuant to
a Court order; is that correct?
A. Yes.
Q. What is your recollection of the $36,000.00 that Mr.
Hancock was to put into Hancock Insurance Agency?
A. Well, during court, Judge Haddock had asked if he had
any other funds, any cash funds, anywhere. She said hidden under
a rock or whatever. And he said yes, he did, he had $36,000.00
at the ranch in cash. And she had ordered him to deposit that
money into the agency account the next morning — or by a certain
— by 9:00 a.m., I believe.
Q. So instead of taking $36,000.00 in cash from his
ranch, he went to the First State Bank and withdrew $36,000.00,
correct?
A. Yes.
Q. And he deposited that into Hancock Insurance Agency?
A. Yes.
19
… See Golden Eagle Archery, Inc., 116 S.W.3d at 761.
20
… See McGalliard, 722 S.W.2d at 697.
20
Q. And that’s 36,000 of retirement money, basically,
right?
A. Yes.
Q. That’s — the money from — from Southwest Securities
went directly to First State Bank —
A. Uh-huh.
Q. [I]s that right?
A. Yes.
Petitioner’s Exhibit 81 shows that Glenn made a $36,000.00 withdrawal
from his First State Bank account. Vicki testified about it:
Q. And is that the $36,000.00 . . . withdrawn by Mr.
Hancock and deposited into Hancock Insurance Agency?
A. Yes.
Q. . . . . Do you believe that this was the $36,000.00 Mr.
Hancock was referring to that he had in cash?
A. No.
Q. Why is that?
A. Well, because he’s writing a check on this account to
deposit it. That’s not a cash deposit.
Vicki asked for a recoupment of the $36,000.00. Glenn had the burden to
prove that the disbursement of the $36,000.00 from the bank in lieu of the
21
$36,000.00 in cash that he, by his own admission, had at the ranch was fair,21
and the trial court was the sole judge of the credibility of the evidence and the
weight, if any, each item of evidence should have. 22
Additionally, the trial court’s file, which we presume the trial court
judicially noticed, 23 shows that the trial court granted six different motions to
compel discovery filed by Vicki. Among other things, the trial court specifically
found that Glenn had violated agreed interim temporary orders dated August
27, 2004 by improperly cancelling Vicki’s health insurance coverage, incurring
indebtedness ($75,000.00) for purposes other than legal expenses when he
borrowed money from his sister, and withdrawing $47,564.57 via cashier’s
check and paying off the entire balance of the debt on his 2004 Chevrolet
motor vehicle. The trial court also found that Glenn violated temporary orders
dated November 16, 2004 by failing to pay three months’ spousal support to
Vicki; by withdrawing all proceeds ($101,334.70) of a CD and misrepresenting
or refusing to disclose to the trial court, or both, the existence, amount, or
21
… See Loaiza, 130 S.W.3d at 901.
22
… See Golden Eagle Archery, Inc., 116 S.W.3d at 761; see also
McGalliard, 722 S.W.2d at 697.
23
… See T EX. R. E VID. 201; Barnard v. Barnard, 133 S.W.3d 782, 786
(Tex. App.—Fort Worth 2004, pet. denied) (“[T]he trial court may take judicial
notice of its file at any stage of proceedings and is presumed to have done so
with or without a request from a party.”).
22
location of the $101,334.70; by withdrawing $90,000.00 in cash from his
checking account; by transferring the sum of $75,000.00 to his sister, and by
withdrawing all proceeds ($56,845.96) of another CD.
Based on the above discussion, we hold that the trial court’s findings that
Glenn committed fraud on the community and wasted community assets in the
total amount of $329,306.41 are supported by legally and factually sufficient
evidence.
D. Benefits from Continuation of the Marriage, Disparity of Earning
Power, Business Opportunities, Capabilities, and Abilities
Supported By Evidence
Also apparently as subissues to his contention that the division was
unjust, Glenn contends that “absolutely no evidence” was admitted as to any
of the benefits that Vicki would have derived from the continuation of the
marriage and that “[t]he only evidence of the disparity of earning power,
business opportunities, capabilities[,] and [the parties’] ability to support
themselves was in favor of Vicki,” that is, it portrayed Vicki as the person who
was more financially capable.
In fact, the trial court heard evidence that
• the last time Vicki had gainful employment other than self-
employment was approximately in 1976;
• she had been out of the job market for approximately thirty years;
• she had no current sources of income at the time of trial;
23
• she had zero net resources at the time of trial;
• she estimated that her health insurance would run
$1,100.00–$1,500.00 per month and that her monthly living
expenses would run $11,840.21;
• although she seemed somewhat knowledgeable and had some
knowledge of the accounts, she was of limited assistance in
discovering the history of and how the insurance agency works;
• Glenn is covered by Medicare;
• he started at least two other companies during the pendency of the
divorce;
• he is a licensed insurance agent;
• he was the only employee of the insurance agency on the first day
of trial and was primarily responsible for generating virtually all of
the income of the business, except a very small amount of casualty
insurance;
• the insurance agency had approximately twelve large accounts
before receivership and only one as of the first day of trial;
• the diminution in value of the business since it entered receivership
was indicative of Glenn’s importance to the business.
Based on our review of the evidence before the trial court, who was the
sole factfinder and judge of the credibility of the witnesses and who could
resolve the inconsistencies in the evidence, we hold that the evidence was
legally and factually sufficient to support the trial court’s implicit finding that
the above factors weighed in favor of giving Vicki a larger share of the
community estate.
24
E. No Evidence of Glenn’s Fault in the Breakup of the Marriage,
But No Harm
In his second issue, Glenn contends that the trial court erred by granting
a disproportionate award of the marital estate on the basis of fault when the
divorce was granted on the ground of insupportability. In his third issue, Glenn
contends that the trial court erred by awarding a disproportionate share of the
marital estate when no evidence was admitted as to Glenn’s fault. While we
agree with Glenn that there is no evidence of Glenn’s fault in the breakup of the
marriage, the challenged finding of fact regarding fault actually states,
6. Credible evidence was admitted to support the following
factors for consideration by the Court in ordering a division
of the parties’ estate:
a. GLENN’s fault in the breakup of the marriage;
b. fraud on the community committed by GLENN;
c. benefits VICKI may have derived from the continuation
of the marriage;
d. disparity of earning power of GLENN and VICKI and
their ability to support themselves;
e. earning power, business opportunities, capacities, and
abilities of both spouses; and
f. wasting of community assets by GLENN. [Emphasis added.]
The finding does not clearly state that the trial court considered fault as a
factor. Further, the associated conclusion of law provides, “Based on the
25
factors found by the Court, VICKI should receive a disproportionate share of the
parties’ community property.” Because neither the finding nor the conclusion
clearly and unambiguously provides that the trial court actually considered
Glenn’s fault in awarding the division of property, we do not make that leap,
indulging, as we must, “every reasonable presumption in favor of the trial
court’s proper exercise of discretion in dividing marital property.” 24
Further, because the evidence otherwise supports the trial court’s
disproportionate division of property based on all the factors discussed above,
we hold that the erroneous finding that there was evidence of fault is
immaterial and harmless. 25 We therefore overrule Glenn’s third issue. Because
there was no evidence of fault, we do not reach his second issue.26
F. No Double Recovery by Vicki
In his fourth issue, Glenn contends that the trial court erred in dividing the
marital estate by essentially granting Vicki a double recovery. A review of the
trial court’s findings of fact and conclusions of law shows that the trial court
awarded the couple a 71/29% split of the existing community that would have
been an approximately 59.5/40.5% split absent Glenn’s fraud on the
24
… Schaban-Maurer, 238 S.W.3d at 820.
25
… See T EX. R. A PP. P. 44.1(a); Loaiza, 130 S.W.3d at 904.
26
… See T EX. R. A PP. P. 47.1.
26
community and waste and advances that they both received. The findings also
show that the trial court relied on other factors besides waste and fraud in
making the disproportionate division, such as benefits that Vicki may have
derived from the continuation of the marriage, the disparity of earning power
between Glenn and Vicki, and the earning power, business opportunities,
capacities, and abilities of both spouses, all discussed above. Because the trial
court’s findings show that the trial court considered more than Glenn’s fraud
on the community and waste of the community assets in dividing the property,
we cannot say that the trial court awarded Vicki a double recovery or abused
its discretion. No independent money judgment was awarded here. Glenn’s
reliance in this regard on Twyman v. Twyman 27 and on our rejection of the
wife’s arguments seeking an additional judgment in Loaiza 28 is thus misplaced.
We overrule Glenn’s fourth issue.
G. Glenn Not Entitled to Fifty Percent of the Amount He Wasted
In his fifth issue, Glenn contends that the trial court erred by granting
Vicki a judgment for 100% of the alleged amount wasted by Glenn when she
would only be entitled to an award of fifty percent of the amount allegedly
wasted. The trial court did not award Vicki an additional judgment. Instead,
27
… 855 S.W.2d 619, 625 (Tex. 1993).
28
… 130 S.W.3d at 900.
27
the trial court awarded Vicki a disproportionate share of the community estate
based on many factors, including Glenn’s wasting of the community assets.
Additionally, we point out that contrary to Glenn’s assertion that “half of
those funds would have been [his] in any event,” the trial court has no duty to
divide a community estate, much less a specific asset, equally between the
parties upon divorce.29 We overrule Glenn’s fifth issue.
H. Division of Assets on Hand at the Time of Trial
In his sixth issue, Glenn contends that the trial court erred by dividing the
community estate based on assets not on hand at the time of trial. The
findings of fact given above show that the trial court divided the assets on
hand. The trial court’s explanation of how the assets wasted and disposed of
through Glenn’s fraud on the community impacted the ultimate division does
not replace the actual division. We overrule Glenn’s sixth issue.
I. The Trial Court’s Division of the Hancocks’ Estate Not Unjust
Given the above discussion, we hold that Glenn has not demonstrated
that the trial court abused its discretion in dividing the community estate. We
overrule his first issue.
V. Conclusion
29
… See T EX. F AM. C ODE A NN. § 7.001 (Vernon 2006); Osuna v. Quintana,
993 S.W.2d 201, 209 (Tex. App.—Corpus Christi 1999, no pet.).
28
Having overruled Glenn’s eight issues as well as his subissues, we affirm
the trial court’s judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL B: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.
DELIVERED: July 31, 2008
29