COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-163-CV
RUSSELL SCOTT MIZE APPELLANT
V.
ROBIN MICHELLE MIZE APPELLEE
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FROM THE 271ST DISTRICT COURT OF WISE COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
Appellant Russell Scott Mize appeals the final decree entered in his
divorce case, arguing in three issues that the trial court erred by appointing
Appellee Robin Michelle Mize as the joint managing conservator with the
exclusive right to establish the residence of the minor children, by awarding
property to Robin that was not owned by the community, and by not entering
1
… See Tex. R. App. P. 47.4.
findings of fact and conclusions of law. We will affirm the parties’ divorce and
the designation of Robin as the primary joint managing conservator, but we will
reverse and remand for a new trial on property division.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
Robin testified that she and Russell started dating in March 1998, that
they married on or about July 19, 2002, and that they separated on or about
March 21, 2006. Russell is the father of two of the three children that were
born during the marriage.
On June 27, 2006, Robin filed for divorce, and several days later, the trial
court entered temporary orders, naming Robin as the joint managing
conservator with the exclusive right to designate the primary residence of the
children. The following facts are pertinent to the issues Russell raises on
appeal.
A. Testimony Regarding Primary Custodian
1. Robin’s Testimony
Robin testified at the final hearing that she should be named the primary
custodian. She mentioned that Russell had called CPS to report her three
different times and that CPS’s investigations did not reveal any problems with
her home. Robin said that Russell had slashed her tires, had struggled with her
while she was pregnant and while she was holding both of the girls, had broken
2
into her house twice, and had cursed at her. Robin said that Russell had moved
six times since the temporary orders had been entered and that she believed he
was currently living at his girlfriend’s mother’s house. Robin expressed concern
about Russell’s living arrangement because his girlfriend has a criminal history
for manufacturing “dope” and because his daughters do not have a room of
their own at that house. Robin also said that one of their daughters has
allergies that are aggravated by smoke and that they would be aggravated if the
girls lived with Russell because he, his girlfriend, and his girlfriend’s mother all
smoke in the house. Robin testified that Russell is dyslexic and that she was
concerned that he would not be able to help the girls with their homework as
they progressed in school.
Robin admitted that she did not list the above concerns about Russell’s
being appointed as the primary custodian when her deposition was taken
because “I was nervous and he [Russell’s attorney] intimidated me.” Robin
agreed that during her deposition, she testified that she knew of no reason why
Russell should not have custody of the children. She said that she was telling
the truth at that time but that she has since remembered things that Russell has
done. Robin admitted that Russell is a good dad and that the kids are happy
when they are with him.
3
On cross-examination, Robin denied buying or using drugs. She also
denied going to the VFW on July 28 at 2:00 p.m., drinking four beers, and then
driving to pick up her children.
2. Investigator’s Testimony
Richard A. Slatkin, a private investigator, testified that he began helping
Russell with his child custody situation in 2007 by following Robin from her
place of employment to various places that she went. Slatkin testified that he
watched Robin on June 21 around 2:00 p.m. as she got into her car at work
and left the premises at the same time as another car driven by Robin’s sister.
Slatkin followed Robin and her sister to a house in North Richland Hills. Slatkin
testified that it appeared that Robin and her sister were trying to get the owner
of the house to open the door, but they were unsuccessful. They left Robin’s
sister’s car at the house in North Richland Hills and traveled together in Robin’s
white Chevy pickup to an International House of Pancakes at Beach and 820
in Fort Worth.
Once they arrived at the IHOP, Robin’s sister went in, and Robin stayed
in the pickup, talking on her cell phone. A vehicle pulled up with a male driver
in it, and he went directly to Robin’s vehicle. Slatkin later identified the man
as Michael McDougal. McDougal approached the window of Robin’s vehicle,
she gave him cash, and he reached into his shirt pocket and handed her a clear
4
plastic envelope. Slatkin testified that he was too far away to be able to see
whether there was any substance in it. After the exchange, McDougal got
back in his car and left. Slatkin took pictures of what he saw on June 21, and
the trial court admitted the photographs. Slatkin also wrote down McDougal’s
license plate. 2 Slatkin testified that after McDougal left, Robin made a phone
call on her cell phone, and her sister came out of the IHOP. Together, the two
sisters drove back to the house in North Richland Hills.
Slatkin followed Robin again on July 28, 2007. On that date, he followed
her from her work to a VFW bar. Slatkin went inside and watched Robin drink
four beers in an hour and fifteen minutes. Slatkin watched the bar maid pour
the tap. Afterwards, Robin drove to the post office in Newark. Slatkin testified
that Robin’s driving was erratic, so he called the police to report a drunk driver.
After the post office, Robin drove to Russell’s mother’s house to pick up her
children.
3. Russell’s Testimony
Russell said that he did not know of any reason why Robin would
suddenly testify that he should not have custody. Russell admitted that he
2
… A search of the license plate revealed that McDougal has a criminal
history that includes delivery of drugs, delivery of simulated controlled drugs,
theft, resisting arrest, and evading arrest.
5
smokes but testified that his daughter is not allergic to smoke. He said that he
can provide a better atmosphere for the children because he can support them,
can cook for them, and can make sure their needs are taken care of. Russell
testified that because he is self-employed,3 he has a flexible schedule and
would be available to take care of the children if they became sick at school or
daycare. Though he is currently living with Sharon Gilbert and her mother, he
hopes to soon return to living at his own house.
Russell said that Robin does not provide a healthy environment for the
children because there is dog feces on their clothes, in their rooms, and in the
living room. He testified that Robin does not have the right car seats for the
children and that she feeds the children frozen pot pies and pizza or food from
McDonald’s. He also expressed concern about Robin’s “[r]unning around,
drinking all the time.” He testified that he had smelled alcohol on Robin three
or four times when she had come to pick up the children. He stated that he
wants Robin to go to drug and alcohol classes and to have supervised visitation
until she completes the classes.
3
… Robin testified that Russell is a mechanic and had run his own auto
repair shop for years. Russell testified that he is currently self-employed,
performing odd jobs and doing maintenance on houses.
6
4. Robin’s Rebuttal Testimony
Robin testified that on June 21, 2007, she went to look at a house to
buy, and her sister came with her. Robin did not remember the particular
house, saying that she had looked at several houses. Afterwards, her sister
interviewed at IHOP. Robin could not recall why her sister did not drive herself
to the interview since she had driven her car to the house in North Richland
Hills. Robin said that the man who came up to her window “was just some
random guy” who wanted to know where a pawn shop was and tried to sell her
a bracelet, but she told him that she did not have any money and was not
interested in purchasing the bracelet.
Robin said that on July 28, 2007, she had a Coke at the VFW. She said
that she knows she had a can of Coke because that is what she orders every
time she drives there.
B. Property Owned by the Parties
1. Real Property
Robin testified that Russell owned 509 Rogers A and 509 Rogers B in
Newark when she met him. During their marriage, they added to the properties
an air conditioner that cost $2,900 and a Rain Soft System that cost $900.
In 1999, while they were living together but before they were married,
Robin and Russell purchased 410 Rogers. In 2002, also before they were
7
married, Robin and Russell purchased a lot on Wilson Street and moved a house
onto the property. Robin asked the court to award her one-half the cost of the
improvements—the air conditioner, the Rain Soft System, and the relocated
house—made to Russell’s separate property on her claim for economic
contribution. Robin testified that she came up with the values for the property
listed on her initial inventory by checking the deeds to obtain the original loan
amount and by calling the bank to obtain the ending loan balances on properties
for which she had not received a statement.
Russell testified that he is currently residing at 9561 Houston Hill Road
because he had to rent out his house in order to earn money to pay bills. The
parties do not dispute that Russell purchased two pieces of property in the Cain
T. Brush Survey (509 Rogers) prior to the marriage, along with property in the
C.R. Huff Survey and some land from the Rawlings family that consists of
several lots on which there is an auto repair shop, a trailer, and a house.
Russell said that he and Robin had refinanced the property known as 509
Rogers A and B at some point during their marriage, that the loan was for
$58,000, and that the balance is currently about $49,000. With regard to the
$37,000 that they received from refinancing the loan on that property, Russell
testified that Robin “blew it.” They later took out an additional $20,000 loan
on the property, and the balance is currently about $16,000. The Wilson
8
property that Russell purchased right before the marriage for $70,000 has been
paid off. He agreed that they had moved a house onto the property and added
an air conditioner and Rain Soft System to the house located at 509 Rogers.
He testified that ninety percent of the money in their joint checking account
came from rental income and that money was used to purchase the air
conditioner and different systems for the real estate.
2. Vehicles and Trailers
Russell’s counsel questioned Robin about several of the vehicles that she
had listed on her inventory, but she did not know whether the vehicles were
titled in either of their names; she said that they had worked on the vehicles
and bought things for them. After Robin and Russell separated, they each
bought new vehicles.
Robin identified a 1970 Corvette that was sitting behind the shop in a
picture and said that she was asking for it. She also identified a box trailer and
disputed that it was Russell’s mother’s property. Although Robin requested to
be awarded the trailer, she had no idea who it was registered to.
Russell testified that he had inherited a 1992 red extended cab GMC
pickup from his grandfather and owned a boat and large box trailer prior to the
marriage. He stated that he does not own the 1995 one-ton pickup, the black
Dodge pickup, the 1970 Corvette, the 1970 brown Chevy pickup, the 1970
9
white Chevy pickup, a 2004 Ford diesel pickup, a 1970 or 1980 wrecker
pickup, a blue Chevy S10, a dump truck, a white boat with motor and trailer,
any rent car hauling trailers, a blue trailer, an old black trailer, a black mower
trailer, a medium box trailer, a small box trailer, a Bobcat, a skid steer, a new
tractor, or an old tractor—all items listed in Robin’s inventory. Russell said that
he owns a 2006 Chevy pickup, which he bought after he and Robin separated,
and that he owns a blue 1984 Skeeter boat with a trailer and motor. He said
that Robin bought a 2003 Chevy pickup after they separated. He testified that
they do own an old white van that is used for storing junk. Russell testified
that he owned a red sixteen-foot trailer prior to the marriage but that it was
stolen after Robin’s sister borrowed it; he bought a new black trailer to replace
it.
C. Trial Court’s Disposition
After hearing the above evidence, the trial court ordered Robin to
immediately report for a drug screen, which came back negative, and took the
matter under advisement. Approximately four months later, the trial court
signed the final decree, naming Robin the joint managing conservator with the
exclusive right to designate the primary residence of the children.4 The trial
4
… Robin testified at trial that she plans to move from Wise County to the
Keller ISD in Tarrant County.
10
court did not award Robin any real property but did award her a judgment
against Russell in the amount of $24,677 “[f]or the purpose of a just and right
division of property,” and it awarded Robin the following vehicles: a 1995 one-
ton pickup, a black Dodge, a 1970 Corvette, a 1970’s Chevrolet brown pickup,
a 2003 Chevrolet 1500 pickup, a blue boat with a trailer and motor, an
aluminum boat with a trailer and motor, a black trailer (new), and a medium box
trailer. On appeal, Russell challenges the preceding rulings of the trial court.
III. U NTIMELY R EQUEST FOR F INDINGS OF F ACT AND C ONCLUSIONS OF L AW
In his third issue, Russell argues that the trial court erred by failing to
enter findings of fact and conclusions of law. Robin responds that the trial
court properly denied Russell’s request for findings of fact and conclusions of
law because his request was filed more than twenty days after the final
judgment was signed.
Texas Rule of Civil Procedure 296 states that “[i]n any case tried in the
district or county court without a jury, any party may request the court to state
in writing its findings of fact and conclusions of law. Such request . . . shall
be filed within twenty days after judgment is signed . . . .” Tex. R. Civ. P. 296.
Moreover, Texas Rule of Civil Procedure 306a provides that the date of the
judgment “shall determine the beginning of the periods prescribed by these rules
for . . . filing in the trial court the various documents that these rules authorize
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a party to file within such periods, including . . . requests for findings of fact
and conclusions of law.” Tex. R. Civ. P. 306a. A motion for new trial thus
does not extend the time for filing a request for findings of fact and conclusions
of law. See Mengel v. State, No. 13-02-00618-CV, 2004 WL 1932751, at
*2–3 (Tex. App.—Corpus Christi Aug. 31, 2004, no pet.) (mem. op.); see also
Commercial Union Ins. Co. v. La Villa ISD, 779 S.W.2d 102, 110 (Tex.
App.—Corpus Christi 1989, no writ) (analyzing prior version of rule 296 and
holding that the filing of a motion for new trial does not extend the period
within which a request for findings of fact and conclusions of law must be
filed).
Here, the record reveals that the trial court signed the final decree of
divorce on January 28, 2008. Russell filed his motion for new trial on February
21, 2008, and the trial court denied it on March 31, 2008. Russell thereafter
filed his notice of appeal on April 15, 2008, and nine days later filed a request
for findings of fact and conclusions of law. Russell’s request for findings of
fact and conclusions of law, which was filed almost four months after the final
judgment was signed, was untimely and was therefore properly denied by the
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trial court. See Mengel, 2004 WL 1932751, at *2–3; see also Commercial
Union Ins. Co., 779 S.W.2d at 110. We overrule Russell’s third issue.5
IV. R IGHT TO E STABLISH R ESIDENCE
In his first issue, Russell argues that the trial court abused its discretion
by appointing Robin as the joint managing conservator with the exclusive right
to establish the residence of the minor children. Specifically, Russell argues
that Robin did not demonstrate that she would provide a safe, stable,
nonviolent environment for the children.
The family code establishes the best interest of the child as the primary
consideration when courts determine conservatorship of a child. Tex. Fam.
Code Ann. § 153.002 (Vernon 2008). Section 153.134 authorizes a court to
name both parents joint managing conservators if it finds such a designation is
in the best interest of the child. Id. § 153.134(a) (Vernon 2008). Section
153.134(b) requires an order naming joint managing conservators to designate
one as having the exclusive right to determine the child’s primary residence, to
5
… Russell also argues under his third issue that “Rule 296 of the Texas
Rules of Civil Procedure and the cases thereunder should be overruled by this
Court because the cases tell us that the findings of fact and conclusions of law
are a substitute for the jury verdict in a jury trial” and that “[a] simple solution
to the problem is to change the Rules of Procedure to say that the Notice of
Appeal under Rule 25 of the Texas Rules of Appellate Procedure is also a
request for findings of fact and conclusions of law.” We decline Russell’s
request to revise the rules.
13
allocate other rights and responsibilities of the parents, and to include
provisions to minimize disruption of the child’s education, daily routine, and
association with friends. Id. § 153.134(b).
Trial courts are afforded wide discretion in making determinations of
custody, possession, and visitation. In re Marriage of Walker, No. 07-03-
00531-CV, 2005 WL 3488931, at *3 (Tex. App.—Amarillo Dec. 20, 2005, no
pet.) (mem. op.) (citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.
1982)). 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 the act was arbitrary or
unreasonable. Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). An
appellate court cannot conclude that a trial court abused its discretion merely
because the appellate court would have ruled differently in the same
circumstances. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549,
558 (Tex. 1995).
As discussed above, the trial court in the case at hand did not make
findings of fact and conclusions of law. The record before us, however,
demonstrates that the trial court heard negative points about both Robin and
Russell. The trial court had before it testimony that Russell had moved six
times since the temporary orders were entered, that he was living with a
14
woman with drug convictions, that his two daughters did not have their own
room and often shared a room with the woman with drug convictions, that
Russell had committed acts of domestic violence against Robin, that he smoked
and lived with other smokers, and that he could not read well. The trial court
heard testimony from Russell that Robin’s house had dog feces throughout
several rooms, that she did not cook for the children, and that she did not have
the right car seats for the children. The trial court received conflicting
testimony regarding whether one of the children was allergic to smoke and
whether Robin abused alcohol. The trial court also heard Robin admit that
Russell was a good father and that she had failed to mention her concerns
about his shortcomings during her deposition. Yet, the trial court was in the
best position to weigh all of the testimony at the final hearing, including Robin’s
“new” testimony, because the judge who heard the above evidence and signed
the final decree had previously heard other motions argued by the parties and
could weigh their credibility. See In re De la Pena, 999 S.W.2d 521, 526 (Tex.
App.—El Paso 1999, no pet.) (stating that appellate court must give deference
to trial court because it is in the best position to observe the demeanor of the
witnesses and evaluate their credibility).
Giving great deference to the trial court’s decision because it observed
the witnesses and was able to assess intangibles not apparent in the written
15
record, we hold that the trial court did not abuse its discretion by appointing
Robin as the joint managing conservator with the right to establish the
children’s primary residence. See Swaab v. Swaab, No. 14-06-00593-CV,
2008 WL 1838023, at *13 (Tex. App.—Houston [14th Dist.] Apr. 24, 2008,
no pet. h.) (holding that trial court did not abuse its discretion by appointing
mother as joint managing conservator with the exclusive right to establish the
child’s primary residence when evidence showed that mother worked long
hours and father’s house was messy); Shoemake v. Shoemake, No. 13-05-
00421-CV, 2007 WL 1288815, at *6 (Tex. App.—Corpus Christi May 3,
2007, no pet.) (mem. op.) (upholding trial court’s decision to give father the
right to determine the children’s primary residence even though record
contained conflicting evidence that both mother and father could provide a
stable, loving environment). We overrule Russell’s first issue.
V. P ROPERTY D IVISION
In his second issue, Russell contends that the trial court abused its
discretion by awarding Robin property that was not owned by the community
estate. Specifically, Russell complains that several of the vehicles that Robin
was awarded are not owned by the community estate and that the trial court
abused its discretion by ordering him to pay Robin $24,677 to reimburse her for
economic contributions she made to his separate property.
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A. Standard of Review
W e recognize the trial court has wide discretion in dividing the marital
estate, and we presume that the trial court exercised its discretion properly.
Murff v. Murff, 615 S.W.2d 696, 698–99 (Tex. 1981). In dividing the estate
of the parties, the trial court shall order a division of the property “that the
court deems just and right, having due regard for the rights of each party and
any children of the marriage.” Tex. Fam. Code Ann. §7.001(Vernon 2006).
The trial judge may order an unequal division of marital property when a
reasonable basis exists for doing so. Massey v. Massey, 807 S.W.2d 391, 398
(Tex. App.—Houston [1st Dist.] 1991, writ denied) (citing Murff, 615 S.W.2d
at 698–99). This court will correct the trial court’s division of marital property
only when an abuse of discretion has been shown. Murff, 615 S.W.2d at 698.
It is the duty of this court to indulge every reasonable presumption in favor of
the proper exercise of discretion by the trial court in dividing the community
estate. Id.
The family code and the Texas constitution provide that, with a few
exceptions, all property acquired during a marriage is presumed to be
community property. Tex. Const. art. XVI, § 15 ; Tex. Fam. Code Ann. § 5.02
(Vernon 2006). Property possessed by either party during or on dissolution of
17
the marriage is presumed to be community property unless that presumption is
rebutted by clear and convincing evidence. Tex. Fam. Code Ann. § 5.02.
B. No Evidence of Ownership of Vehicles
In the first part of his second issue, Russell complains about the vehicles
that the trial court awarded to Robin. The decree reflects that the trial court
awarded Robin a 1995 one-ton pickup, a black Dodge, a 1970 Corvette, a
1970 Chevrolet brown pickup, a 2003 Chevrolet 1500 pickup, a blue boat with
a trailer and motor, an aluminum boat with a trailer and motor, a black trailer
(new), and a medium box trailer. Of these nine items, Russell contends that the
parties owned only Robin’s 2003 Chevy pickup.
The trial court had before it Robin’s amended inventory and appraisement,
listing numerous vehicles. On direct examination, Robin testified that she
believed that the inventory reflected a complete list of the parties’ assets and
debts. On cross-examination, however, Russell’s counsel questioned Robin
about several of the items that she had included on her inventory:
Q: Mrs[.] Mize, you said the community owns a ‘92 red
extended cab pickup; correct?
A. No. Just that that’s everything that we’ve had.
Q. Okay. I just want to clarify it so the Judge understands
what you’re saying.
....
18
All right. Okay. One-ton pickup, isn’t that-- doesn’t that
belong to your mother-in-law, Mr. Mize’s mother?
A. It’s in her name, but it’s Russell’s pickup.
Q. Okay. So it’s registered to her?
A. Yes.
Q. Okay. No. 3 is a black Dodge pickup, and isn’t it true
that that’s a disabled pickup that belongs to a former customer?
A. It’s a disabled pickup that Russell’s dad, he purchased.
Q. That Russell what?
A. He said he purchased.
Q. He said he purchased it?
A. Yes.
....
Q. That ‘70 Corvette, that’s been gone for two years;
correct?
A. No.
Q. No.
‘70 brown Chevy pickup, that belongs to a
customer being repaired; correct?
A. I don’t believe so.
Q. Okay. Well, let me ask you this: Do you know if there
is a title in either your name or Russell’s name for any of these
vehicles that you’ve listed here?
19
A. No, because when you own it -- the makeover title--
and to my knowledge, he never got it running, or we would’ve
switched over the Corvette.
Q. So would it be fair to say that these are all vehicles
that you’ve seen at some time or another in the-- in or around your
husband over the years?
A. Yes. W e’ve worked on them. We bought things for
them.
Q. And do you know where these vehicles are currently
located at all?
A. Some of them, yes.
Q. Okay. And do you know if any of them are registered
to yourself or to your husband?
A. No, I don’t. [Emphasis added.]
....
Q. Are you asking the Court to give you that trailer?
A. Yes.
Q. And do you have any idea who it is registered to?
A. No.
Q. Do you have any idea when it was purchased?
THE COURT: Hold it.
Do you?
I mean, all these vehicles, where [are] the titles?
20
[Russell’s attorney]: Oh, I do. It’s registered to
Shirley Mize.
THE COURT: Pardon?
[Russell’s attorney]: It’s registered to his mother.
THE COURT: Are there car titles to these vehicles?
[Russell’s attorney]: There are no titles to anything.
This [Robin’s efforts to be awarded the property listed on her
inventory] is just a “throw it at the wall and see what sticks.”
Additionally, Russell specifically testified that the parties do not own the one-
ton pickup, the black Dodge pickup, the 1970 Corvette, the 1970 brown Chevy
pickup, or the medium box trailer.
As reflected above, the evidence of ownership presented to the trial court
was sketchy. Although there is normally a presumption that property
possessed by either party during or on dissolution of the marriage is presumed
to be community property, that presumption appears to have no application in
this case because there was no evidence that the vehicles were owned or
acquired by the parties. Robin admitted that Russell had previously owned and
operated an auto repair shop at which Robin had seen some of the vehicles that
she had listed on her inventory. Robin admitted that the one-ton truck was
registered to Russell’s mother, that his dad had purchased the black Dodge, and
that although she could identify the Corvette and the trailer in the pictures, she
21
did not know under whose name they were registered. One of the attorneys
proffered that the trailer was registered to Russell’s mother. And Russell
testified that the parties do not own the one-ton pickup, the black Dodge
pickup, the 1970 Corvette, the 1970 brown Chevy pickup, or the medium box
trailer. Even affording the trial court wide discretion in making the property
division as it sees fit, we cannot say that the trial court did not abuse its
discretion in awarding vehicles to Robin that the community does not own. We
therefore hold that the trial court abused its discretion by awarding Robin
vehicles in the absence of evidence that the parties owned them. See Panozzo
v. Panozzo, 904 S.W.2d 780, 786 (Tex. App.—Corpus Christi 1995, no writ)
(holding that trial court abused its discretion in awarding wife eighty pieces of
commercial equipment located at Euro-Mex because there was no evidence as
to the ownership of the equipment, the equipment was not in the possession
of either party at the time of dissolution, and the relationship of the parties to
Euro-Mex was not clear from the record). But see Lusk v. Gen. Motors
Acceptance Corp., 395 S.W.2d 847, 849–50 (Tex. Civ. App.—Tyler 1965, no
writ) (holding that wife’s name on certificate of title would not, without further
proof, be sufficient to overcome community property presumption when both
husband and wife had testified that car belonged to them jointly). We sustain
the first part of Russell’s second issue.
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C. Economic Contribution
In the second part of his second issue, Russell contends that the trial
court abused its discretion by awarding Robin $24,677 with six percent interest
against Russell “for the purpose of a just and right division of property” because
such an award was not supported by the evidence. Specifically, Russell
contends that Robin failed to bring forth sufficient evidence for the factfinder
to determine the enhancement value of his separate property. Robin responds
that her proposed property distribution “contained the information needed to
compute the economic contribution formula and reimbursement.”
Here, the trial court had before it Robin’s proposed property distribution,
claiming that she was owed $18,065 in equity on community property,
$14,404 in reimbursement, and at least $37,714 in economic contribution
claims. The trial court also had before it testimony from Russell that he earned
$1,900 a month from renting the properties and that the parties had resided at
one of the properties during the marriage. After hearing the above evidence,
the trial court awarded Robin $24,677 “for the purpose of a just and right
division of property” and did not break down the amount into economic
contribution, reimbursement, or equity. Without the benefit of findings of fact
and conclusions of law, we have no way of knowing exactly what the trial
court factored in when calculating the $24,677, but we presume the trial court
23
considered the appropriate offsetting community benefits, to the extent the
evidence revealed such, and applied the appropriate formulas in arriving at its
number. However, because we are remanding for a new trial on the property
division because vehicles were awarded to Robin that were not proved to be
part of the community estate, the trial court may or may not decide to adjust
the $24,677 award to effectuate a just and right division of property. We are
confident that the trial court will again apply the appropriate formulas and
consider appropriate offsetting community benefits, to the extent the evidence
reveals such, in arriving at the final amount, if any, that will create a just and
right division of the property. See generally Rusk v. Rusk, 5 S.W.3d 299, 310
(Tex. App.—Houston [14th Dist.] 1999, pet. denied) (holding that on remand
the trial court should consider offsetting community benefits—rent-free living
in property, subsequent rental income from property, tax breaks, and
depreciation—in determining award to wife on reimbursement claims). We
therefore sustain the second part of Russell’s second issue.
VI. C ONCLUSION
Having overruled Russell’s first and third issues, we affirm the parties’
divorce and the designation of Robin as the primary joint managing conservator,
but having sustained Russell’s second issue, we reverse and remand to the trial
24
court for a new trial on the property division. See Tex. R. App. P. 43.2(a), (d),
43.3, 44.1(b).
SUE WALKER
JUSTICE
PANEL: CAYCE, C.J.; DAUPHINOT and WALKER, JJ.
DELIVERED: February 5, 2009
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