Opinions, Nov. 17, 2015

Today, the Fourteenth Court of Appeals released its published opinion in Villalpando v. Villalpando, No 14-14-00526-CV, affirming the decree entered by the 257th.

Susana and Armando Villalpando were married in 2003 and had two children during the marriage. In February 2010, Susana moved to Dallas with the children. In November 2012, Armando filed for divorce, alleging insupportability as the grounds. Susana counterpetitioned for divorce on the grounds of cruel treatment.

At trial, Susana and her sister testified to Armando’s physical abuse of Susana. The COA notes Armando testified he had a drinking problem during the marriage, but does not indicate he contested Susana’s allegations of domestic violence. The trial court granted the divorce on the grounds of insupportability.

Also at trial, the parties testified that they own “many properties and four vehicles” but neither party submitted documentary evidence to support the values of most of the properties. Armando submitted into evidence 5 years of tax returns and an FIS showing his monthly net resources. The trial court divided the parties’ community property and ordered child support based on Armando’s FIS.

On appeal, Susana challenged the grounds upon which the divorce was granted, the division of the property, and the amount of child support ordered. As for the grounds, the COA stated that the trial court had discretion to deny the request for the cruel treatment grounds without further analysis.

Susana also challenged the division of property, arguing:

(1) the trial court mischaracterized two pieces of separate property as community property, (2) in dividing the community estate, the trial court failed to consider all of the factors Susana raised, (3) the trial court abused its discretion in granting a disproportionate amount of the estate to Armando, and (4) the trial court abused its discretion in failing to calculate the amount of the reconstituted estate.

On the first point, the COA held that (I bet you know where this is going) because there was either little evidence or conflicting evidence regarding the characterization of the two pieces of property, the trial court could have reasonably found there was insufficient evidence to meet the clear and convincing evidence standard to overcome the CP presumption.

As to the second point, Susana argued the trial court did not consider the evidence of fault or the disparities in the parties ages, abilities, earning capacities, and separate estates, but she did not cite any portion of the record indicating this. If anything, the COA stated, it appeared from the record the trial court took those factors into account and awarded Susana a larger portion of the community estate.

Susana also argued Armando received a disproportionate share of the CP based on several assertions, e.g. the evidence was insufficient to find there was a $16,000 debt on one of the properties. The COA added up the values of Susana’s award and then Armando’s and found “[c]ontrary to Susana’s assertions, the trial court awarded her a disproportionately higher amount of the community estate.”

As for the reconstituted estate allegation, Susana alleged the trial court erred by failing to make a finding of fact that Susana failed to prove an actual or constructive fraud by Armando on the community estate. The COA noted that Susana requested findings of fact and conclusions of law, which the trial court issued. But the findings of fact and conclusions of law issued by the trial court did not include a finding of fact or conclusion of law related to the claim of fraud on the community or Susana’s request for a reconstituted estate. Because Susana did not request additional findings, she waived the right to complain on appeal about the trial court’s purported failure to make the omitted findings of fact or conclusions of law.

Susana alleged the trial court erred by denying her reimbursement claim, but this allegation hinged on Susana’s assertion one of the properties should have been characterized as separate property. Because the trial court did not err in finding it was community property, the improvements thereon benefited the community estate.

Finally, Susana challenged the order for child support, arguing the evidence was legally and factually insufficient to support the order. On review, the court uses a two-prong test to determine whether the trial court abused its discretion: 1) Did the trial court have sufficient information upon which to exercise its discretion? 2) If so, did the trial court abuse its discretion by rendering a child-support order that was manifestly unjust or unfair? The COA found Armando’s FIS, 5 years of tax returns, and receipt for rental properties were sufficient to establish Armando’s monthly net resources. Susana did not produce any evidence supporting her contention that Armando was underreporting his income.






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