COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-018-CV
JEFFREY IRW IN SUGGS APPELLANT
V.
DESIREE LANELLE SUGGS APPELLEE
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FROM THE 271ST DISTRICT COURT OF W ISE COUNTY
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MEMORANDUM OPINION1
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This appeal stems from the divorce of Appellant Jeffrey Irwin Suggs and
Appellee Desiree Lanelle Suggs. In three issues, Jeff complains about child support,
the division and characterization of the community estate, and the imposition of a
lien on his separate property. Because we hold that the trial court did not err or
abuse its discretion, we affirm the trial court’s judgment.
Background Facts
1
See Tex. R. App. P. 47.4.
The couple has two minor children; child support is the only child-related issue
on appeal. Jeff runs his own business, North Texas Frame and Alignment, in
buildings and on land that he purchased from his father before the marriage. At
issue are the characterization and value of the business as well as the community’s
claim against Jeff’s separate estate for payments made by the community on the
note for the separate real property from which Jeff operates the business.
No Findings of Fact and Conclusions of Law
No findings of fact and conclusions of law were filed or requested. In a trial
to the court in which no findings of fact or conclusions of law are filed, the trial court’s
judgment implies all findings of fact necessary to support it.2 W hen a reporter’s
record is filed, however, these implied findings are not conclusive, and an appellant
may challenge them by raising both legal and factual sufficiency of the evidence
issues.3 W here such issues are raised, the applicable standard of review is the
same as that to be applied in the review of jury findings or a trial court’s findings of
2
Pharo v. Chambers County, 922 S.W .2d 945, 948 (Tex. 1996); In re Estate
of Rhea, 257 S.W .3d 787, 790 (Tex. App.—Fort W orth 2008, no pet.).
3
Tex. R. App. P. 34.6(c)(4); BMC Software Belg., N.V. v. Marchand, 83
S.W .3d 789, 795 (Tex. 2002); Estate of Rhea, 257 S.W .3d at 790.
2
fact.4 The judgment must be affirmed if it can be upheld on any legal theory that
finds support in the evidence.5
The Business
In his first issue, Jeff contends that the trial court abused its discretion in
dividing the community estate, focusing on the business. Initially, Jeff contends that
the trial court improperly characterized the business as community property instead
of his separate property. “Property possessed by either spouse during or on
dissolution of marriage is presumed to be community property.”6 This presumption
can be rebutted by clear and convincing evidence.7 Clear and convincing evidence
is defined as that “measure or degree of proof that will produce in the mind of the
trier of fact a firm belief or conviction as to the truth of the allegations sought to be
established.”8 If the evidence shows that separate and community property have
been so commingled as to defy resegregation and identification, the community
presumption prevails.9
4
Roberson v. Robinson, 768 S.W .2d 280, 281 (Tex. 1989).
5
Worford v. Stamper, 801 S.W .2d 108, 109 (Tex. 1990); In re Guardianship
of Boatsman, 266 S.W .3d 80, 85 (Tex. App.—Fort W orth 2008, no pet.).
6
Tex. Fam. Code Ann. § 3.003(a) (Vernon 2006).
7
Id. § 3.003(b).
8
Id. § 101.007 (Vernon 2008); Transp. Ins. Co. v. Moriel, 879 S.W .2d 10,
31 (Tex. 1994).
9
Estate of Hanau v. Hanau, 730 S.W .2d 663, 667 (Tex. 1987).
3
Desiree discussed the business:
A. All the shop tools; it’s power lifts, the jack—not hammers,
but—it’s a head rack, arches and springs. It has a frame
alignment machine; it has a compressor, Matco tools, the nice
ones; all the tools that’s in it, several hoses, different items that
were used in his shop, that were originally purchased with a shop
loan. And some of it had been purchased since then.
Q. And so is it your understanding that at the time that he
purchased the real property that he purchased the equipment, as
well?
A. Yes, ma’am.
Q. As a matter of fact, is there a UCC security agreement
showing—
A. Yes, ma’am.
Q. —tools in his name—
A. Yes, ma’am.
Q. —large equipment?
Does he also have some retained earnings according to
his inventory—
A. Yes.
Q. —documents?
. . . Has Jeff ever made any representations to you about
the value of that business?
A. He has said it’s worth over four, so about $300,000.00.
Q. So you believe that there is value other than just the real estate?
A. Oh, yes, ma’am.
4
....
Q. W here did you come up with this value of $62,500.00 on his
business?
A. On this business, or on the tools and—
Q. I don’t know.
You listed it on your sworn inventory as North Texas
Frame & Alignment; $62,500.00?
A. That would be parts, tools, and machinery inside.
W e took an amount based on the low 50 and the high 75,
and cut it in half because of—some of those—
To replace the alignment —alignment machine and the
toolbox, all the tools that’s in it, the press, the air jacks, all of the
equipment that is in there, air hoses, impact machine
compressor, all of those items, and every tool that’s in that shop
that belongs to North Texas Frame & Alignment, Jeff Suggs,
would be impossible.
Q. Okay.
A. That was our guesstimation.
Q. W ell, and what did you base that guesstimation upon?
W hat knowledge do you have that let’s you determine the
cost of those kinds of tools?
A. Just different things. W e went on-line, and information—
Q. So basically—
A. —Jeff has told me in the past.
Q. Okay. Basically, you and your lawyer came up with that number;
right?
5
A. That is the information Jeffrey and I had discussed in the past.
Desiree also testified that she believed that Jeff owned the business, that Jeff
purchased the business when his father filed for bankruptcy, and that she had never
seen any evidence that Jeff’s father owned any of the equipment or any portion of
the business.
Jeff testified that he bought the business in December 1995, before the
marriage and after his father had declared bankruptcy; Jeff got a loan to pay off the
loan his father had of around $83,000. Jeff testified that he has run the business
since that time. But then he stated that he bought only the buildings and real estate;
the equipment was all his father’s, and his father had installed it in 1983. Jeff then
stated, “I totally refurbished it; not in the top of the line or nothing.” He then again
stated that the equipment belongs to his father but that he owes his father “for it later
on” when he “pays everything off.” Later, Jeff testified that he has never paid rent
for the tools but that he is “supposed to.”
Jeff also admitted that some of the equipment appears on a security
agreement for a loan and that he signed the agreement, but he claimed bank error.
Petitioner’s Exhibit 11, a UCC statement signed by Jeff, includes an asset schedule
showing that tools and equipment with a cost basis of $8,610 and vehicles with a
cost basis of $22,074 were put into service after the date of the marriage.
Jeff’s father did not testify.
6
Given all the evidence, we cannot conclude that the trial court erred by
characterizing the business as community property.
Jeff also contends that no evidence supports the valuation of the business.
W e may sustain a legal sufficiency challenge only when (1) the record discloses a
complete absence of evidence of a vital fact; (2) the court is barred by rules of law
or of evidence from giving weight to the only evidence offered to prove a vital fact;
(3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4)
the evidence establishes conclusively the opposite of a vital fact.10 In determining
whether there is legally sufficient evidence to support the finding under review, we
must consider evidence favorable to the finding if a reasonable factfinder could and
disregard evidence contrary to the finding unless a reasonable factfinder could not.11
Again, Jeff did not request findings of fact and conclusions of law, so we do
not know what value the trial court attributed to the business. Given Desiree’s
testimony explaining how she arrived at the value of $62,500 for the business,
however, we cannot conclude that the trial court abused its discretion to the extent
that it also valued the business at $62,500.
10
Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W .2d 328, 334 (Tex. 1998),
cert. denied, 526 U.S. 1040 (1999); Robert W . Calvert, "No Evidence" and
"Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960).
11
Cent. Ready Mix Concrete Co. v. Islas, 228 S.W .3d 649, 651 (Tex. 2007);
City of Keller v. Wilson, 168 S.W .3d 802, 807, 827 (Tex. 2005).
7
Finally, Jeff complains that the trial court should have divided the community
estate in a different manner to eliminate the need for Jeff to pay Desiree in cash.
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.12 The issue therefore is not
whether the trial court could have divided the estate without requiring Jeff to pay
Desiree in cash but whether some probative evidence supports the trial court’s
decision.13 The evidence shows that the community estate paid $52,000 on Jeff’s
separate real estate note and that Jeff had between $124,000 and $130,000 equity
in his separate real estate. Further, Jeff stipulated that the community had a
$109,032 claim against his separate estate. Accordingly, we hold that the trial court
did not abuse its discretion by ordering Jeff to pay Desiree in cash. W e overrule
Jeff’s first issue.
Lien on Separate Property
In his second issue, Jeff contends that the trial court erred by imposing an
encumbrance on his separate property to secure Jeff’s payment of $37,700 to
Desiree. As the Texas Supreme Court has explained,
12
Jacobs v. Jacobs, 687 S.W .2d 731, 733 (Tex. 1985).
13
See In re S.A.A., 279 S.W .3d 853, 857 (Tex. App.—Dallas 2009, no pet.).
8
W hen dividing marital property on divorce, trial courts may
impose equitable liens on one spouse’s separate real property to
secure the other spouse’s right of reimbursement for community
improvements to that property. Although courts may impress equitable
liens on separate real property to secure reimbursement rights, they
may not impress such liens, absent any compensable reimbursement
interest, simply to ensure a just and right division.14
The decree provides,
Owelty of Partition
The Court, finds that it is necessary to impose an encumbrance
for owelty of partition against the entirety of the property to secure the
payment of the debt resulting from the award.
....
The purpose of the encumbrance is to secure the payment of the
debt of Respondent in favor of Petitioner of $37,700.00, resulting from
the award of the real property in this divorce proceeding.
Jeff stipulated to an economic contribution of $109,032 against his separate real
property. W e therefore cannot conclude that the trial court erred by encumbering
that real property to assure Jeff’s payment to Desiree. W e overrule Jeff’s second
issue.
Child Support
In his third issue, Jeff contends that the trial court abused its discretion by
ordering him to pay $905.75 monthly to Desiree for child support because the trial
court improperly concluded that Jeff’s annual gross income is $60,000. A trial
court’s decision on child support will not be overturned absent an abuse of
14
Heggen v. Pemelton, 836 S.W.2d 145, 146 (Tex. 1992) (citations omitted).
9
discretion.15 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.16 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.17
An abuse of discretion does not occur when the trial court bases its decisions
on conflicting evidence.18 Furthermore, an abuse of discretion does not occur as
long as some evidence of substantive and probative character exists to support the
trial court’s decision.19
W hen asked by her trial counsel what she believed Jeff earns, Desiree
testified,
He has told me previously that he makes more than me, so based on
that, and based on what he makes, plus you add back the gas, or parts
of the gas, and his lunches that he charges to the business, as well as
hunting trips, et cetera, that he charges to the . . . business—or puts on
15
Rodriguez v. Rodriguez, 860 S.W .2d 414, 415 (Tex. 1993).
16
Low v. Henry, 221 S.W .3d 609, 614 (Tex. 2007); Cire v. Cummings, 134
S.W .3d 835, 838–39 (Tex. 2004).
17
E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W .2d 549, 558 (Tex.
1995); see also Low, 221 S.W .3d at 620.
18
In re Barber, 982 S.W .2d 364, 366 (Tex. 1998) (orig. proceeding).
19
Butnaru v. Ford Motor Co., 84 S.W .3d 198, 211 (Tex. 2002).
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the business, and he takes employees or friends, customers, I would
say that he makes about $60,000.00 plus.
She further testified that the $60,000 figure includes “the gas, and other items, and
cash, and any kind of trades, et cetera” as well as “rentals, property where he has
extra income that’s not necessarily reported for these buildings.” She also testified
that “he reports all of his gas, his lunches, meals, et cetera, under company
expenses,” that he accepts cash and trades out work, and that she believes that
$60,000 is an accurate gross figure after expenses. On cross-examination, she
explained,
W e worked full days. You have a lower income, and when you
have months with your contract laborers, et cetera, then you can write
it off to go to lunch. Or if you purchase gas for your vehicles, you can
write off the gas. I do understand that that is permissible when you’re
a sole proprietor. And as a sole proprietor, you write all those items off
separately.
I also understand that he went on hunting trips; there’s several
of those with contract laborers, or customers where the gas or the
dinner was included in the company expense.
....
I understand his owner’s draw is not necessarily his true income.
Finally, she testified that her information was based on what Jeff had told her and
on what she had seen.
Jeff testified that he makes $520 per week after taxes, or about $34,000 per
year. He also said that there is never any money left in the business at the end of
the year that he could distribute to himself. The parties’ 2007 joint tax return shows
11
a net income for the business of about $5,400. Jeff testified that his accountant told
him that he had to pay taxes on $27,000 in 2007. The business’s profit and loss
statement for 2007 shows a net income of $48,535.73. Again, there are no findings
of fact and conclusions of law.
Based on the evidence, we hold that the trial court did not abuse its discretion
to the extent that it resolved the conflicts in the evidence in favor of Desiree and
concluded that Jeff’s annual gross income was $60,000. Jeff does not otherwise
complain about the child support award. W e overrule his third issue.
Conclusion
Having overruled Jeff’s three issues, we affirm the trial court’s judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.
DELIVERED: August 12, 2010
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