TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00017-CV
Gilbert Estrada, Jr., Appellant
v.
Dana Deann Garrett-Estrada, Appellee
FROM THE 419TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-FM-20-000953, THE HONORABLE TIM SULAK, JUDGE PRESIDING
MEMORANDUM OPINION
Gilbert Estrada, Jr. appeals from the trial court’s final decree of divorce. 1 In two
issues, Gilbert challenges provisions of the decree that require him to pay portions of the credit
card debt and retroactive child support. For the following reasons, we affirm the trial court’s
final decree of divorce.
BACKGROUND
The parties married in 2000 and have four children. The parties ceased living
together in January 2020, Gilbert petitioned for divorce in February 2020, and Dana
counter-petitioned in April 2020. One of their children was not addressed in their petitions
because he had reached the age of emancipation. The other children are Nathan (born in 2002),
Anna (born in 2006), and Ingrid (born in 2008).
1 Because the parties have similar last names, we refer to them by their first names. To
protect the children’s privacy, we refer to them by pseudonyms.
Before the final hearing in June 2021, the parties entered into a Rule 11
agreement that settled their disputes, except as to retroactive child support and credit card debt. 2
They agreed that “the party with lesser income per either agreement or the Court’s determination
as to statutory net resources shall have the right to off-setting child support” but that “the issue of
retroactive support will be tried” and that “[h]ow the credit card debt is divided will be tried.” At
the beginning of the final hearing, the parties read the Rule 11 agreement into the record, and the
trial court approved it. During the final hearing, the trial court took judicial notice of its file,
and the parties stipulated that Dana was seeking retroactive child support beginning in
September 2020.
The parties at the final hearing testified about their finances and possession and
care of their children. The evidence showed that after the parties separated, Nathan lived
with Gilbert, Anna primarily lived with Dana, and Ingrid alternated staying at the parties’
homes; Nathan turned 18 and then graduated from high school the month before the final
hearing; Dana was employed during the case but struggled financially; Gilbert was unemployed
from March 31, 2020, until “towards the end of September of 2020” 3; the parties’ debts
exceeded their assets; and no child support was paid during the case. 4
2 The Rule 11 agreement also did not resolve the parties’ dispute concerning the
children’s health insurance, but on appeal, Gilbert has not challenged the trial court’s ruling on
this issue.
3 The record reflects that Gilbert received unemployment benefits from March 29 to
September 12, 2020. Dana testified that she was not requesting retroactive child support when
Gilbert was unemployed and answered, “Yes,” when asked, “So just from the time that he was
employed on a contract basis in September until now.”
4 Dana testified that Gilbert occasionally would give her $50 or $100 if she asked
“repeatedly, and over days” and that he initially provided fast food lunches “almost every day”
when Dana “was at work” for Anna and occasionally for Ingrid when she was at Dana’s home.
2
Dana testified that she was employed as an elementary school teacher earning
$4,635 per month and that her income “went to taking care of the children’s needs predominantly
and [her] car payment.” She testified that she was “struggling financially just to pay rent and
medical and buy groceries”; she was going to food pantries; she was “selling [her] plasma to get
money for food”; and her vehicle was repossessed in February because she “was choosing to
spend that money on some food and medications for the kids.” Concerning possession and care
of the children, Dana testified that after the separation, Anna moved with her to an apartment,
and Dana’s mother also moved in with them temporarily for several months because Anna
needed 24-hour care and attention and Dana needed to work. Anna stayed with Dana
“100 percent” of the time except for several weeks on two different occasions when she stayed
with Gilbert, and Ingrid lived a “week on/week off” between the parties’ homes. Concerning her
credit card debt, Dana testified that “easily 90 percent” of the debt was spent on the children’s
needs and that the debt “was already in place” when the parties separated except for debt on her
Macy’s card for some “very inexpensive flatware for the kitchen because [she] left everything at
home when [she] moved out.” She testified that the debt “goes toward providing clothes for the
four children”; expenses to help their oldest child move to college and a college fee of “over
$5,000” 5; medications for Anna and herself; and “the children’s needs, whatever they may have
been, medical, clothing, activities prior to COVID.”
Substantially consistent with Dana’s testimony, Gilbert testified that Nathan lived
with him during the parties’ separation, that Anna had stayed with him for some weeks starting
5 Dana testified that Gilbert asked her to charge the fee of over $5,000 on her credit card
and “ensured [her] that [they], together, would pay that off.”
3
in October 2020 and on another occasion, and that Ingrid alternated between the parties’ homes.
Gilbert, who is an engineer, testified that from September to December 2020, he earned $600 a
day and worked seven days a week in a contract capacity. Beginning in January 2021, he earned
$550 a day and worked five days a week in a contract capacity until he obtained a position in
May 2021 with an annualized salary of $90,000. As to the credit card debt, Gilbert testified that
he should not be ordered to pay the debt that was incurred by Dana because “a large portion” was
for “just items” that Dana “purchased on Amazon” that they “received . . . almost every single
day” during their marriage and that she continued to purchase. He agreed that he was aware that
the charges were “incurred for [his] household” and that the credit card debt included the
payment of college tuition for their oldest child but testified that the oldest child borrowed
money and gave it to Dana “to pay the majority of that back.”
The parties submitted post-trial briefing, providing the trial court with proposed
divisions of their assets and debts including the division of their credit card debt and calculations
to support their competing proposals for the amount of retroactive child support. In their
proposed divisions of their assets and debts, the parties represented to the trial court that their
debts were greater than their assets.
In August 2021, the trial court informed the parties by letter of its rulings on the
amount of retroactive child support and the division of the credit card debt, and in
December 2021, the trial court signed its final decree consistent with its letter ruling. In the final
decree, the trial court ordered Gilbert to pay monthly child support of $486.97, beginning on
July 1, 2021. 6 Because Nathan had reached the age of emancipation at the time of the final
6 The amount of child support going forward was based on the parties’ agreement to a
shared possession schedule for Anna and Ingrid and offsetting child support arrived at by
4
hearing, the trial court did not make orders concerning him in the final decree. In addition to
awarding child support going forward, the trial court awarded retroactive child support of
$10,549.46, which was the amount that Dana had proposed. 7 The trial court ordered Gilbert to
pay this amount over two years, “if necessary, beginning on January 1, 2022,” but “as soon
as possible.”
In its division of the parties’ marital estate, the trial court ordered Gilbert to pay
approximately 60% and Dana to pay approximately 40% of their combined credit card debt.
Dana was ordered to pay $12,604 on seven credit cards in her name, and Gilbert was ordered to
pay $19,345, which was toward a credit card in Dana’s name that was in the amount of $14,259
and the remainder toward the debt on credit cards in his name. 8
After the trial court signed the final decree of divorce, Gilbert requested findings
of fact and conclusions of law but did not file a notice of past due request for findings of fact and
conclusions of law, and the trial court did not file findings or conclusions. See Tex. R. Civ.
P. 296, 297. This appeal followed.
calculating the obligations of each parent with Gilbert, the parent having the higher obligation,
paying the difference to Dana, the parent with the lower obligation.
7 Dana’s calculation of retroactive child support was based on three children, Gilbert’s
monthly income of $9,200 from August 2020 to April 2021 and $7,500 for May 2021, and
Dana’s monthly income of $4,076.16. Based on these numbers, Dana calculated $1,020.98 as
the monthly offsetting child support from August 2020 to April 2021 and $737.21 for May 2021
for a total offsetting amount of retroactive child support of $10,549.46.
8 The trial court also provided that Gilbert could try to negotiate a lesser amount with the
credit card company on the balance owed.
5
ANALYSIS
Credit Card Debt
In his first issue, Gilbert challenges the trial court’s ruling that he “be ordered to
pay credit card debt in the name of [Dana].” Specifically, he argues that the trial court abused its
discretion when it ordered him to pay $14,259 of debt on Dana’s credit card. He argues that the
evidence “was legally and factually insufficient to impose any liability on [him] for a contractual
liability of [Dana],” that there was no evidence or testimony as to the nature of the debt, that it
was uncontroverted that the credit card was in her name, that “she did not act as an agent for
[him] in incurring said debt,” and that there is no statutory basis for ordering him to pay Dana’s
contractual liabilities.
Standard of Review
We review a trial court’s division of the marital estate for abuse of discretion, and
the trial court has broad discretion in making this division. See Penick v. Penick, 783 S.W.2d 194,
198 (Tex. 1988); O’Carolan v. Hopper, 71 S.W.3d 529, 532 (Tex. App.—Austin 2002, no pet.).
“On appeal, we presume that the trial court exercised this discretion properly and will reverse the
cause only where there is a clear abuse of discretion.” Ashraf v. Ashraf, No. 03-11-00467-CV,
2012 Tex. App. LEXIS 4345, at *21 (Tex. App.—Austin May 24, 2012, no pet.) (mem. op.)
(citing Bell v. Bell, 513 S.W.2d 20, 22 (Tex. 1974)); see, e.g., Murff v. Murff, 615 S.W.2d 696,
700 (Tex. 1981) (observing that “[m]athematical precision in dividing property in a divorce is
usually not possible” and that “[w]ide latitude and discretion rests in these trial courts and that
discretion should only be disturbed in the case of clear abuse”).
6
“Under the abuse of discretion standard, a lack of legally or factually sufficient
evidence does not constitute an independent ground for asserting error; instead, it is a relevant
factor in determining whether the trial court abused its discretion.” Mathis v. Mathis,
No. 01-17-00449-CV, 2018 Tex. App. LEXIS 10432, at *7 (Tex. App.—Houston [1st Dist.]
Dec. 18, 2018, no pet.) (mem. op.) (citing Pickens v. Pickens, 62 S.W.3d 212, 214 (Tex. App.—
Dallas 2001, pet. denied)); accord O’Carolan, 71 S.W.3d at 532. “When a sufficiency review
overlaps the abuse-of-discretion standard, we engage in a two-pronged inquiry: (1) whether the
trial court had sufficient information to exercise its discretion and (2) whether the trial court
erred in its application of discretion.” Mathis, 2018 Tex. App. LEXIS 10432, at *7 (citing
Sandone v. Miller-Sandone, 116 S.W.3d 204, 206 (Tex. App.—El Paso 2003, no pet.)). “The
traditional sufficiency review comes into play under the first prong.” Id.
Further, because findings of fact and conclusions of law were not filed, it is
implied that the trial court made all findings necessary to support its judgment. See Worford
v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); In re J.H., 264 S.W.3d 919, 923 (Tex. App.—
Dallas 2008, no pet.); In re R.G.G., No. 03-04-00445-CV, 2005 Tex. App. LEXIS 2373, at *3
(Tex. App.—Austin Mar. 31, 2005, no pet.) (mem. op.). In this context, the judgment must be
affirmed if it can be upheld on any legal theory supported by the evidence. See Worford,
801 S.W.2d at 109. And we view the evidence in the light most favorable to the trial court’s
decision. Id.
7
Did the trial court abuse its discretion in its division of the parties’ credit card debt?
As support for his contention that the trial court abused its discretion in awarding
the disputed credit card debt to him, Gilbert relies on sections 2.501 and 3.201(a) of the Texas
Family Code. Section 3.201(a) states that
A person is personally liable for the acts of the person’s spouse only if: (1) the
spouse acts as an agent for the person; or (2) the spouse incurs a debt for
necessaries as provided by Subchapter F, Chapter 2.
Tex. Fam. Code § 3.201(a). Section 2.501 states that “[e]ach spouse has the duty to support the
other spouse” and that “[a] spouse who fails to discharge the duty of support is liable to any
person who provides necessaries to the spouse to whom support is owed.” Id. § 2.501. These
statutory provisions, however, concern a spouse’s liability to third parties. See, e.g., Tedder
v. Gardner Aldrich, LLP, 421 S.W.3d 651, 655 (Tex. 2013) (observing that marriage does not
create joint and several liability and discussing sections 3.201(a) and 2.501 of Texas Family
Code in context of dispute between law firm and husband over whether husband was liable
to law firm for legal services it rendered to wife); Envision Realty Grp., LLC v. Chen,
No. 05-18-00613-CV, 2020 Tex. App. LEXIS 1959, at *4–5 (Tex. App.—Dallas Mar. 5, 2020,
no pet.) (mem. op.) (stating that section 3.201 of Texas Family Code precluded ex-wife’s
liability for ex-husband’s actions and determining that ex-wife was not liable for third party’s
judgment against ex-husband).
Gilbert has not cited, and we have not found, authority that would support the
application of these statutory provisions to the trial court’s division of the parties’ credit card
debt in the context of its division of the parties’ marital estate. See Tex. Fam. Code § 7.001
(requiring trial court to “order a division of the estate of the parties in a manner that the court
8
deems just and right, having due regard for the rights of each party and any children of the
marriage”); see Bradshaw v. Bradshaw, 555 S.W.3d 539, 543 (Tex. 2018) (defining “just,”
“right,” and “due regard”). The parties’ proposed divisions of their estate included addressing
their combined credit card debts, 9 and the trial court divided that debt roughly 60% to Gilbert
and 40% to Dana.
The evidence supports the trial court’s implied finding that the division of the
credit card debt in the context of its division of the marital estate was just and right. See Tex.
Fam. Code § 7.001. In weighing the rights of the parties and the children, the trial court could
have credited the evidence of the parties’ disparity in earning capacities and income, Gilbert’s
testimony that he was aware that charges were “incurred for [his] household,” and Dana’s
testimony that “easily 90 percent” of her credit card debt was spent on the children’s needs and
“already in place” when the parties separated, including payment of college tuition for their
oldest child. See Bradshaw, 555 S.W.3d at 543 (explaining that “the court is to do complete
equity as between the husband and wife and the children, having due regard to all obligations of
the spouses and to the probable future necessities of all concerned”); Murff, 615 S.W.2d at 699
(stating that it was proper for trial court to consider disparity of earning capacities or of income
in division of marital estate).
9 To the extent that Gilbert complains about the lack of documentary evidence to support
the balance owed on the credit card, Gilbert listed the outstanding balance of $12,320 on his
proposed property division, and Dana listed the amount of $14,259 on her proposed property
division. The trial court, however, tied Gilbert’s assigned debt to the actual credit card account
and authorized Gilbert to negotiate with the credit card company to lessen the balance owed.
Thus, it follows that Gilbert’s liability is limited to the actual balance owed up to but not more
than $14,259.
9
On this record, we conclude that the trial court had sufficient evidence on which
to exercise its discretion and that it did not abuse that discretion by ordering Gilbert to pay
$14,259 of the debt on the credit card in Dana’s name. See Murff, 615 S.W.2d at 700; Mathis,
2018 Tex. App. LEXIS 10432, at *7; Ashraf, 2012 Tex. App. LEXIS 4345, at *21. We overrule
Gilbert’s first issue. 10
Retroactive Child Support
In his second issue, Gilbert challenges the trial court’s ruling that ordered
“retroactive child support in an amount that requires payment of child support for [Nathan] a
child in the possession solely of [Gilbert] for the duration of the case and for a period that
extended beyond the period stipulated to by the parties.” Specifically, Gilbert challenges the
amount of the award—$10,549.46—because it “reflects support for three children before the
Court and covered a calculated duration of support from August 2020 through May 2021.”
Gilbert argues that Dana should not have been awarded support for Nathan because he resided
solely with Gilbert after the parties’ separation until his graduation from high school and that the
parties agreed that the retroactive child support would begin in September 2020.
Standard of Review
We also review a trial court’s award of retroactive child support for abuse of
discretion. Worford, 801 S.W.2d at 109; In re J.H., 264 S.W.3d at 923; see In re J.M.W.,
10 To the extent that Gilbert complains about the trial court’s “refusal to consider
testimony and evidence concerning the value of the property included in the agreement incident
to divorce,” he has not preserved this complaint for our review. See Tex. R. Evid. 103(a)(2)
(requiring party to inform trial court of substance of excluded evidence by offer of proof unless it
was apparent from context). This complaint also has been inadequately briefed. See Tex. R.
App. P. 38.1(i) (requiring brief to “contain a clear and concise argument for the contentions
made, with appropriate citations to authorities and to the record”).
10
470 S.W.3d 544, 549 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (stating that trial court
“enjoys broad discretion in determining the amount of retroactive child support, if any, to be
ordered”). Further, because no findings of fact and conclusions of law were filed, it is implied
that the trial court made all findings necessary to support the award of retroactive child support,
the award must be affirmed if it can be upheld on any legal theory supported by the evidence,
and we view the evidence in the light most favorable to the trial court’s decision. See Worford,
801 S.W.2d at 109.
Did the trial court abuse its discretion as to the amount of retroactive child support?
Gilbert does not dispute that retroactive child support was appropriate. The
evidence showed that no child support was paid during the case. See Tex. Fam. Code
§ 154.009(a) (authorizing trial court to “order a parent to pay retroactive child support” if among
other things, parent “had not previously been ordered to pay support for the child”). Gilbert’s
challenge is to the amount, contending that the trial court should have awarded $4,746.32, the
amount that he proposed to the trial court. 11
“In ordering retroactive child support, the court shall apply the child support
guidelines provided by [chapter 154].” See Tex. Fam. Code § 154.009(b). “The child support
guidelines are intended to guide the court in determining the amount of retroactive child support,
if any, to be ordered.” Id. § 154.131(a). In determining the amount of retroactive child support,
the court also “shall consider the net resources of the obligor during the relevant time period”
11 In his post-trial briefing to the trial court, Gilbert argued:
The total support amount for retroactive support, within the framework of the
parties’ agreement and considering each month’s obligation from October through
the date of trial would total $4,746.32.
11
and whether, relevant here, “the order of retroactive child support will impose an undue financial
hardship on the obligor or the obligor’s family” and “the obligor has provided actual support or
other necessaries before the filing of the action.” Id. § 154.131(b)(3), (4). However, the listed
factors in section 154.131 do not bind the trial court but are “merely intended to guide the trial
court in determining the amount of retroactive child support.” In re J.H., 264 S.W.3d at 924
(citing Garza v. Blanton, 55 S.W.3d 708, 710 (Tex. App.—Corpus Christi–Edinburgh 2001, no
pet.)); see also In re Sanders, 159 S.W.3d 797, 800–01 (Tex. App.—Amarillo 2005, no pet.)
(stating that compliance with guidelines is not mandatory when deciding amount of retroactive
child support). Further, a trial court may order child support in an amount other than that
established by the guidelines, see Tex. Fam. Code § 154.123 (authorizing court to order support
in amount not established by guidelines if “evidence rebuts presumption that application of the
guidelines is in the best interest of the child and justifies a variance from the guidelines”), and is
not bound by the parties’ agreement concerning child support if the court finds that the agreed
amount is not in the best interest of the child, see id. § 154.124 (addressing agreements between
parties for child support and stating that “[i]f the court finds the agreement is not in the child’s
best interest, . . . the court may render an order for the support of the child”).
Gilbert argues that it was uncontroverted that Nathan did not reside with Dana,
that she did not provide financial or medical support to Nathan throughout the case, that she only
supported the other two children during her periods of possession, and that she agreed to limit
the award of retroactive child support from September 2020 to the date of the final hearing. We,
however, must view the evidence in the light most favorable to the trial court’s implied findings
that support the awarded amount. See Worford, 801 S.W.2d at 109. The trial court reasonably
could have found that the parties’ agreement to limit retroactive child support from
12
September 2020 to the final hearing was not in the best interest of the children. See Tex. Fam.
Code § 154.124(d); see Worford, 801 S.W.2d at 109 (stating that judgment must be affirmed if it
can be upheld on any legal theory supported by evidence). Further, assuming without deciding
that the amount awarded varied from the guidelines, the trial court reasonably could have found
that the evidence justified that variance and that it was in the children’s best interest. Although
Nathan resided in Gilbert’s house during the case, Dana testified about expenditures for the
children, which the trial court reasonably could have found included Nathan. The evidence also
showed: (i) except for a few weeks on two different occasions, Anna, who needed significant
care, resided with Dana during the case; (ii) the parties shared possession of Ingrid; (iii) despite
earning significantly more than Dana, Gilbert provided minimal financial assistance to Dana
after the parties ceased living together in January 2020; and (iv) Dana was struggling financially,
including selling her “plasma to get money for food,” going to food pantries, and having her
vehicle repossessed because she “was choosing to spend that money on some food and
medications for the kids.” See Tex. Fam. Code § 154.123(b) (listing needs of children and
financial resources available for support of children among relevant factors for court to consider
in determining amount of child support).
The evidence also supported an implied finding that the amount of retroactive
child support would not “impose an undue financial hardship” on Gilbert or his family. See id.
§ 154.131(b)(3); Bunts v. Williams, No. 01-17-00643-CV, 2019 Tex. App. LEXIS 4267, at *24–
25 (Tex. App.—Houston [1st Dist.] May 23, 2019, no pet.) (mem. op.) (concluding that evidence
was sufficient for trial court to determine that retroactive child support would not be “undue
hardship” when father “did not specifically testify how paying retroactive child support would be
a hardship for him”); In re J.H., 264 S.W.3d at 925 (listing among evidence that supported
13
implied findings for retroactive child, evidence of “a lack of support in the past” and of parent
making approximately $60,000 per year). Although he was unemployed for five to six months
during the case, Gilbert was employed for the first few months after the parties ceased living
together, received unemployment benefits when he was not employed, and then earned
significant income on a contract basis before he became employed in a salaried position, earning
$90,000 annually. He also was given two years from January 2022 to pay the retroactive
child support.
On this record, we conclude that the trial court had sufficient information
on which to exercise its discretion and that it did not abuse that discretion in the
amount of retroactive child support awarded. See Worford, 801 S.W.2d at 109; In re R.G.G.,
2005 Tex. App. LEXIS 2373, at *3 (“We may not substitute our judgment for that of the
trial court on matters committed to the trial court’s discretion.” (citing Walker v. Packer,
827 S.W.2d 833, 839 (Tex. 1992))). We overrule Gilbert’s second issue.
CONCLUSION
For these reasons, we affirm the final decree of divorce.
__________________________________________
Rosa Lopez Theofanis, Justice
Before Justices Baker, Theofanis, and Jones*
Affirmed
Filed: April 28, 2023
*Before J. Woodfin Jones, Chief Justice (Retired), Third Court of Appeals, sitting by
assignment. See Tex. Gov’t Code § 74.003(b).
14