COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
MARTHA A. DELGADO, § 08-17-00163-CV
Appellant, § Appeal from the
v. § 388th District Court
JOSE LUIS DELGADO, § of El Paso County, Texas
Appellee. § (TC# 2015DCM5202)
OPINION
This is an appeal from a decree of divorce dissolving the marriage between Appellant
Martha A. Delgado (“Wife”) and Appellee Jose Luis Delgado (“Husband”), and dividing the
couple’s community property. Wife challenges the property division, which she asserts
disproportionately favors Husband.
BACKGROUND
The parties ceased living together as husband and wife in May 2015. In July 2015,
Husband filed for divorce on the ground of insupportability. He testified at trial that Wife had
been unfaithful, and also that she had stopped cooking and cleaning for him and an adult son who
still lived at home.1 He acknowledged asking her to give him her front door key, but denied kicking
1
This son was a minor at the time the divorce was filed, but had turned eighteen by the time of trial.
her out of the marital residence. Wife, on the other hand, testified that Husband was drunk, took
her keys, and kicked her out of the house.
Husband is a high school graduate with one year of university education. He testified that
although Wife did not graduate from high school, her English skills are better than his. Husband’s
gross wages are approximately $2,100 per month. His weekly take-home pay is $335. He has
diabetes and high blood pressure, and is considering applying for disability. He has a 401(k)
valued at approximately $9,000, against which he took a $7,000 loan, which he is repaying through
payroll deductions.
Wife testified concerning a variety of jobs she has held in the past, including a job as a
secretary, one assisting a business with its accounting, and one making telephone collections.
Husband acknowledged that Wife worked off and on during the marriage, but testified that she did
not help pay any of the household bills other than groceries. He indicated that she used much of
her earnings to buy herself clothes. Wife testified, though, that she did buy some things for the
house, such as a microwave. At the time of trial, Wife was living with her daughter and helping
care for her grandchildren. The daughter was paying her approximately $1,200 per month.
Husband testified that the marital residence has a value of approximately $80,000 to
$90,000, with a mortgage balance of $8,000 to $9,000. The parties stipulated that the home was
appraised for tax purposes at $94,000. All of the couple’s furniture is paid for, as is Husband’s
2009 Honda Accord. Husband pays $412 monthly for a 2012 Mercedes owned by the couple’s
son, Jose Delgado, Jr., and $242 monthly for a 2014 Hyundai Genesis owned by another son,
Brandon Delgado.
At the time of trial, Wife was driving a 2012 Honda Pilot, which her daughter was helping
her pay for. She testified that she has a number of credit cards in her name but that she stopped
2
paying on those cards when she left the marital residence. She also testified that she did not put
any additional charges on those cards after that time.
On March 23, 2017, the trial court signed a document titled, “Findings and Orders of Final
Divorce” (“Findings and Orders”), which reflects the court’s rulings on the couple’s property.
Husband is awarded the marital residence, the 2009 Honda Accord, and his 401(k). He is
responsible for paying the mortgage on the home, as well as the debt on the 2012 Mercedes and
the 2014 Hyundai. Wife is awarded $34,000, paid in $250 installments over the course of 136
months, as well as a couch, Christmas tree, and decorations that she had specifically requested.
She is responsible for paying “debt in her name.”
On June 27, 2017, the trial court signed a final decree of divorce dissolving the couple’s
marriage on the ground of insupportability. The decree incorporates the rulings reflected in the
Findings and Orders with further details. One such detail is that the monetary award to Wife shall
bear zero percent interest. The decree also states that Wife is responsible to pay debts solely
incurred by her after May 2015, rather than “debts in her name.” Wife now appeals from the final
decree of divorce.
ISSUES
In five issues, Wife asserts that the trial court abused its discretion by (1) dividing the
marital estate without sufficient information before it; (2) dividing the marital estate in a manner
that is manifestly unfair or unjust to Wife; (3) treating the debt on two cars as community debt but
not treating the cars as community assets; (4) granting Wife a money judgment instead of ordering
the community residence sold and the proceeds divided; and (5) ordering that the money judgment
in Wife’s favor bear zero percent interest.
STANDARD OF REVIEW
3
“In a decree of divorce or annulment, the court shall order a division of the estate of the
parties in a manner 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. The court’s determination
of a just and right property division is reviewed for abuse of discretion. Murff v. Murff, 615 S.W.2d
696, 698 (Tex. 1981); Kaftousian v. Rezaeipanah, 511 S.W.3d 618, 621 (Tex.App.—El Paso 2015,
no pet.).
“A trial court enjoys wide latitude in dividing the marital estate, and we presume that the
trial court properly exercised its discretion in reaching its decision. Accordingly, we will not
overturn that decision unless the complaining party demonstrates that it was so unjust and unfair
as to constitute an abuse of discretion.” [Citations omitted]. Kaftousian, 511 S.W.3d at 621; see
Mann v. Mann, 607 S.W.2d 243, 245 (Tex. 1980). Our review employs a two-pronged analysis:
“(1) Did the trial court have sufficient information upon which to exercise its discretion?[;] and
(2) Did the trial court abuse its discretion by making a property division that was manifestly unjust
or unfair?” Chafino v. Chafino, 228 S.W.3d 467, 472 (Tex.App.—El Paso 2007, no pet.).
DISCUSSION
Sufficiency of information upon which to exercise discretion
Wife first contends that the trial court abused its discretion because it did not have sufficient
information upon which to exercise its discretion. See Chafino, 228 S.W.3d at 472. Wife
specifically contends that there is no evidence of the value of (1) the 2012 Mercedes, 2014 Hyundai
Genesis, 2012 Honda Pilot, or 2009 Honda Accord; (2) furniture and other household items
acquired during the marriage; (3) Husband’s 401(k); and (4) her credit card indebtedness.
Wife filed a request for findings of fact and conclusions of law. See TEX.R.CIV.P. 296.
No such findings and conclusions were filed, however, and Wife did not file a notice of past due
4
findings of fact and conclusions of law. See TEX.R.CIV.P. 297. Husband points out that, in these
circumstances, “it is implied that the trial court made all the necessary findings to support its
judgment.” Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989). However, these implied
findings are still subject to challenge for legal and factual sufficiency of the evidence. Id. We
therefore examine the record for evidence concerning each of the categories challenged by Wife
to determine if the trial court had sufficient information about the community estate to exercise its
discretion in dividing that estate.
“Each party in a divorce proceeding has a responsibility to produce evidence of the value
of various properties to provide the trial court with a basis upon which to make the division. And
generally, a party who does not provide the trial court with values for the property cannot complain
on appeal of the trial court’s lack of information in dividing the community estate.” [Citation
omitted]. Howe v. Howe, 551 S.W.3d 236, 254 (Tex.App.—El Paso 2018, no pet.); see Capellen
v. Capellen, 888 S.W.2d 539, 543 (Tex.App.—El Paso 1994, writ denied)(rejecting husband’s
claim of insufficient evidence to value certain property where husband testified but did not offer
proof of values).
Wife testified at trial and offered evidence concerning her past and present earnings. She
did not, however, offer any evidence of the value of any of the couple’s assets or liabilities. The
only asset about which she complains whose value is uniquely within Husband’s knowledge is his
401(k). Husband testified that the value of the 401(k) was approximately $9,000 but that he had
taken out a $7,000 loan from that account. The trial court thus had sufficient information to
conclude that the value of the 401(k) was $2,000. As to the cars, household items, and credit card
debt, Wife did not provide the trial court with any valuation information and cannot now complain
on appeal of the lack of such information. See Howe, 551 S.W.3d at 254; Capellen, 888 S.W.2d
5
at 543. Wife’s first issue is overruled.
Just and right property division
In her second issue, Wife contends that the trial court divided the couple’s property in a
manner that was manifestly unjust or unfair. “Although a trial court does not have to divide the
marital estate equally, it must do so equitably.” Howe, 551 S.W.3d at 253 (citing Murff, 615
S.W.2d at 698-99). A trial court may consider a variety factors, often referred to as “Murff factors,”
to determine whether there is a reasonable basis for an unequal property division. Id. Those factors
include “(1) the spouses’ capacities and abilities; (2) benefits that the party not at fault would have
derived from the continuation of the marriage; (3) business opportunities; (4) relative physical
conditions; (5) relative financial conditions; (6) disparity of ages; (7) size of separate estates; (8)
the nature of the property; and (9) disparity of income or earning capacity.” Id.
An important step in reviewing a trial court’s division of property is to “quantify the size
of the community pie so the reviewing court can know just how large a slice each spouse was
served.” [Internal quotation marks omitted]. Howe, 551 S.W.3d at 253. The community assets
here at issue include (1) the marital residence, valued between $80,000 and $94,000; (2) Husband’s
401(k), valued at approximately $2,000; and (3) two unvalued Honda automobiles.2 The
community liabilities include (1) a mortgage balance of $8,000 to $9,000; (2) $17,000 debt on a
2012 Mercedes; (3) $242 monthly payments on a 2014 Hyundai Genesis; and (4) unvalued credit
card debt.
Clearly, the most significant community asset is the marital residence. The evidence
supports a value of $80,000 and an outstanding debt of $9,000 on that residence. Husband was
2
One of these cars, a fully paid for 2009 Honda Accord driven by Husband, was awarded to Husband. The
second car, a 2012 Honda Pilot driven by Wife, was not awarded to either party, nor was the debt on that
car allocated to either party. While Wife makes note of the failure to include this car in the court’s property
division, she does not assert that omission as error requiring reversal of the decree.
6
awarded the residence, but was also ordered to pay the outstanding debt, resulting in a $71,000
benefit to him. Accounting for the 401(k) also awarded to Husband, Husband was awarded
property worth approximately $73,000. But Husband was also ordered to pay the community debts
owed on two cars owned by the couple’s sons. The debt on only one of those cars, the Mercedes,
is $17,000. The debt on the other is $242 per month. Even accounting only for the debt on the
Mercedes, the $17,000 liability offsets Husband’s assets to a net value of $56,000. He was also,
however, ordered to pay an equalization award of $34,000 to Wife, effectively reducing that
benefit to $22,000.3
Wife, on the other hand, was awarded a $34,000 judgment against Husband, as well as the
household items she specifically requested. While she complains on appeal that the trial court
ordered her to pay credit card debt which “appears to be a large sum,” neither the record nor the
judgment supports that complaint. The judgment orders that Wife shall pay “[a]ll debts, charges,
liabilities, and other obligations incurred solely by [Wife] from and after May 2015 . . . .”
[Emphasis added]. May 2015 is when the couple ceased to live together. Wife testified that she
stopped paying on her numerous credit cards when she moved out of the house, but also that she
had not added any charges to those cards since that time. Thus, the divorce decree does not impose
on Wife (or on Husband) any liability for the credit card debt incurred during the marriage.
Wife contends that the trial court’s property division resulted in a 70/30 split in Husband’s
favor. This contention is based on numerous value estimates in Wife’s brief that have no support
in the record. We confine our review to the record before us, which reveals a nearly equal division
of the community assets, and imposition of responsibility for three community debts (the mortgage
and two car payments for the couple’s sons) on Husband. Nevertheless, even if we were to
3
Wife argues that the present value of the monetary award to her is $25,893.79. This argument is based on
information not contained in the appellate record and will not be considered.
7
construe the property division as favoring Husband to some degree, we examine the Murff factors
recited above to determine whether they provide a reasonable basis for that unequal division.
Wife asserts that there is a significant disparity in income and earning capacity because
Husband earns $2,100 per month and her highest earnings were $1,600 per month. See Howe, 551
S.W.3d at 253 (disparity in income and earning capacity is factor court may consider). But the
$2,100 figure is Husband’s gross pay. He testified that his net pay is $335 per week, which is
approximately $1,340 per month. Wife, on the other hand, testified that she “receives” $1,200 per
month from her daughter, indicating that that is net income rather than gross. Using these figures,
the disparity between Wife’s and Husband’s incomes is not of such magnitude as to impact the
trial court’s exercise of discretion in effecting a just and right property division. See id.
Concerning earning capacity, the record does not reveal Husband’s line of work but it does
show that Wife has typing, computer, and secretarial skills. Wife argues, though, that her
opportunities are more limited because she did not finish high school and Husband has one year
of university education. The record does not reveal the field Husband studied in that year or
whether it has any application to his actual or potential employment. Concerning Wife’s actual
and potential employment, there is evidence that Wife has held a variety of secretarial and office
positions and that, despite the difference in their educations, her use and understanding of English
are better than Husband’s. Further, while the evidence shows that Husband’s net pay is $335 per
week, Wife testified that she has held a job where she received $316 net pay per week. The
disparity between Wife’s and Husband’s earning capacity, if any, is not of such magnitude as to
impact the trial court’s exercise of discretion in effecting a just and right property division. See
id.
Wife also asserts, as a disparity in her favor, that Husband will receive significantly more
8
in social security payments when he retires. There is no evidence in the record to support this
assertion. There is no evidence of Husband’s earnings history and whether, or how much, he has
paid into social security. And, despite Wife’s contention that she spent thirty-five years’ cooking
and cleaning and being a stay-at-home mom, there is evidence that she, too, worked outside the
home during the marriage. In fact, Husband testified that he urged Wife to work precisely so that
she could build up her social security benefits. The parties’ relative potential social security
benefits were not before the trial court and do not enter our analysis.
One factor that does, however, impact the property division analysis is the parties’ relative
physical conditions. See Howe, 551 S.W.3d at 253 (relative physical conditions is factor court
may consider). There is no indication in the record that Wife suffers from any adverse physical
condition. Husband, however, testified that he has diabetes and high blood pressure, and is
considering applying for disability. The trial court was entitled to consider these physical
conditions in determining whether to make an unequal property division in Husband’s favor.
For all the reasons discussed above, the record does not establish that the trial court’s
property division was manifestly unfair or unjust. Wife’s second issue is overruled.
Cars as community debt but not community property
In her third issue, Wife argues that the trial court abused its discretion by treating the debt
on the 2012 Mercedes and the 2014 Hyundai Genesis as community debt, but not treating those
cars as community assets.
“The community property presumption applies to both assets and liabilities. Therefore,
there is a presumption that debt acquired by either spouse during marriage was procured on the
basis of community credit.” [Citation omitted]. Richardson v. Richardson, 424 S.W.3d 691, 697
(Tex.App.—El Paso 2014, no pet.). Further, “[a]n asset purchased on borrowed funds is
9
presumptively community in character . . . .” Id. This presumption may be overcome by clear and
convincing evidence. Viera v. Viera, 331 S.W.3d 195, 204 (Tex.App.—El Paso 2011, no pet.).
“‘Clear and convincing’ means the measure or degree of proof producing in the mind of the fact
finder a firm belief or conviction as to the truth of the allegation sought to be established.”
Hampton v. Texas Dep’t of Protective & Regulatory Servs., 138 S.W.3d 564, 566 (Tex.App.—El
Paso 2004, no pet.).
Neither party contests that the Mercedes and the Hyundai were purchased during the
marriage and that the debt on those cars is community debt. This gives rise to the presumption
that the cars are community property. See Richardson, 424 S.W.3d at 697. But the record reflects
that these cars were given to two of the couple’s sons, while the community retained the
responsibility for paying the loans with which they were purchased. This evidence overcomes the
presumption that the cars are community property; having been gifted to the sons, they are no
longer assets of the community estate. See Handley v. Handley, 122 S.W.3d 904, 911 (Tex.App.—
Corpus Christi 2003, no pet.)(excluding from community estate car purchased during marriage but
sold to daughter before parties separated).
Wife argues that she never indicated at trial that she was willing to give her community
interest in these two cars to her sons. But there is evidence from which the trial court could
conclude that the gifts to the sons were made before Husband and Wife separated. Wife’s third
issue is overruled.
Money judgment in lieu of ordering sale of the marital residence
Wife next contends that the trial court abused its discretion by awarding the marital
residence to Husband and a money judgment to Wife, rather than ordering that the residence be
sold and the proceeds divided.
10
It is generally preferable to divide an estate by partitioning assets in kind rather than using
a money judgment, if an equitable division can be achieved in that way. Hanson v. Hanson, 672
S.W.2d 274, 278 (Tex.App.—Houston [14th Dist.] 1984, writ dism’d). Even so, there are
circumstances which justify the use of a money judgment to balance out a disproportionate award
of assets. Id. For example, “the court may be justified in dividing property in [a] manner other
than ‘in kind’ when due consideration is given to such matters as the nature and type of particular
property involved and the relative conditions, circumstances, capabilities and experience of the
parties.” Id. (quoting In Re Marriage of Jackson, 506 S.W.2d 261, 266 (Tex.Civ.App.—Amarillo
1974, writ dism’d)).
The circumstances of the parties in this case justifies the trial court’s decision to use a
money judgment rather than ordering the sale of the marital residence. Wife testified that she is
living with her daughter. There is no evidence that Wife is paying for her room and board; on the
contrary, she is being paid by her daughter. Husband, on the other hand, testified that his living
expenses already exceed his income, and that he is providing a home for himself as well as one of
the couple’s sons. Husband also testified that, if the house were sold, he and his son would have
nowhere to live. The trial court did not abuse its discretion by considering these circumstances
and concluding that an equitable property division was best achieved by using a money judgment
rather than ordering the sale of the marital residence.
Wife also challenges, as an abuse of discretion, the terms of payment of the money
judgment. “A trial court should set the term for payment of the cash judgment for as short a period
as possible without imposing a serious hardship on the party responsible to pay the judgment.”
Hanson, 672 S.W.2d at 279. The decree orders that Husband pay Wife $34,000 in monthly
installments of $250 over the course of 136 months. The question, then, is whether the trial court
11
abused its discretion by determining that ordering a shorter term for payment would impose serious
hardship on Husband. We conclude it did not.
Ordering a shorter term for paying the $34,000 judgment would necessarily require
increasing the amount of the monthly payments. Husband testified that his weekly net earnings
are $335 per week, or roughly $1,340 per month. The monthly mortgage and car payments he is
ordered to pay under the decree total $1,366. Utilities, food, health insurance, and car insurance
total an additional $1,080 each month. As Husband readily acknowledged, he is already incurring
more in monthly living expenses than he is earning. The evidence supports a conclusion that
ordering an additional monthly liability of more than the $250 ordered by the court would impose
a serious hardship on Husband. See id. Given these circumstances, we cannot conclude that the
trial court abused its discretion by ordering the money judgment paid in $250 installments over
the course of 136 months. Wife’s fourth issue is overruled.
Zero interest on the money judgment
In her final issue, Wife asserts that the trial court abused its discretion by ordering in the
divorce decree that the Husband’s liability on the $34,000 judgment to Wife bear zero percent
interest. Her specific complaint is that the court was prohibited from stating an interest rate of
zero percent in the decree because it did not state an interest rate (or even mention postjudgment
interest) in its rendition of judgment in the Findings and Orders.
The Texas Finance Code provides that “[a] money judgment of a court in this state must
specify the postjudgment interest rate applicable to that judgment.” TEX.FIN.CODE ANN.
§ 304.001. Wife notes that “[p]ost-judgment interest is recoverable even if it is not specifically
awarded in the judgment.” DeGroot v. DeGroot, 369 S.W.3d 918, 926–27 (Tex.App.—Dallas
2012, no pet.). From this principle, she argues that (1) because the Findings and Orders did not
12
specifically award postjudgment interest, she is entitled to recover interest in some amount, and
(2) because zero percent interest is no interest, the court could not order zero percent interest in
the divorce decree. The flaw in this argument is that it treats the Findings and Orders as the
judgment to which the Finance Code applies; it is not.
It is apparent on the face of the Findings and Orders that it was not intended to be the trial
court’s final judgment, or even a complete rendition of judgment. For example, the Findings and
Orders contains blanks concerning significant issues before the court, not the least of which is to
whom a divorce is granted and on what grounds.4 Other rulings in the Findings and Orders are
stated in summary fashion. For example, Husband is ordered to pay the community obligations
for “mortgage [,] mercedes[,] hyundai.” Given the clearly informal, incomplete, and interlocutory
nature of the document, we find no significance in the trial court’s failure to state a rate of
postjudgment interest.
As noted above, the Texas Finance Code requires that a money judgment specify a
postjudgment interest rate. TEX.FIN.CODE ANN. § 304.001. The Final Decree of Divorce here at
issue, which contains the money judgment in Wife’s favor, specifies a postjudgment interest rate
of zero percent. We note that this is not an instance where the trial court overlooked the issue of
postjudgment interest or where such interest was inadvertently omitted from the final judgment.
Rather, the decree recites a specific postjudgment interest rate, and further recites that the money
judgment is part of the division of the parties’ community property. This demonstrates that the
trial court made a conscious determination that a zero percent interest rate was an integral part of
its just and right property division.
4
The Findings and Orders contains the following section:
After reviewing the pleadings and testimony, the following findings and orders are made.
o that a divorce be granted to ___________, effective ____________, on insupportability or fault of
___________ by committing _______________.
13
Wife’s contention on appeal is, in essence, that the trial court had no discretion to order
zero percent interest as a part of its just and right property division. But she has not adequately
preserved or presented this issue. First, Wife did not bring to the attention of the trial court any
assertion that the court could not specify an interest rate of zero percent, and did not inform that
court, through her pleadings, motions, or otherwise, what rate of interest she believed was required.
See TEX.R.APP.P. 33.1 (preservation of error requires making timely complaint to trial court).
Even on appeal, Wife does not cite any authorities establishing that the trial court had no authority
or discretion to specify a rate of zero percent, nor does she identify for this Court what she believes
the rate of postjudgment interest should have been. See TEX.R.APP.P. 38.1 (brief must contain
clear and concise argument supported by appropriate citation to authorities). In addition, Wife has
not identified any legal grounds or authority for this Court to disturb the trial court’s just and right
property division by changing the stated postjudgment interest rate. See id.
For all of the foregoing reasons, Wife’s fifth issue is overruled.
CONCLUSION
Wife has not demonstrated that the trial court’s property division was so unjust and unfair
as to constitute an abuse of discretion. See Kaftousian, 511 S.W.3d at 621. The Final Decree of
Divorce is affirmed.
August 21, 2019
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rodriguez, and Palafox, JJ.
14