                                                                                ACCEPTED
                                                                            14-14-00526-CV
                                                            FOURTEENTH COURT OF APPEALS
                                                                         HOUSTON, TEXAS
                                                                       6/19/2015 2:54:39 PM
                                                                      CHRISTOPHER PRINE
                                                                                     CLERK




                        No: 14-14-00526-CV              FILED IN
                                                  14th COURT OF APPEALS
         ________________________________________________
                                                     HOUSTON, TEXAS
                                                    6/19/2015 2:54:39 PM
              IN THE FOURTEENTH COURT      OF APPEALS
                                                    CHRISTOPHER A. PRINE
                                                             Clerk
         ________________________________________________

                       SUSANA I. VILLALPANDO

                                          Appellant,
                                 v.

                       ARMANDO VILLALPANDO,
                                         Appellee.
__________________________________________________________________

        FROM THE 257TH DISTRICT COURT OF HARRIS COUNTY, TEXAS
                            No. 2012-30887
__________________________________________________________________

                         APPELLEE’S BRIEF
__________________________________________________________________

                               RENATO SANTOS, JR.
                               ATTORNEY AT LAW
                               State Bar No. 17646450
                               3605 Katy Fwy., Suite 102
                               Houston, Texas 77007
                               Telephone: (713) 862-9631
                               Facsimile: (713) 862-9647
                               renato.santos3@att.net

                               Counsel for Appellee


                    ORAL ARGUMENT REQUESTED
                            CERTIFICATE OF PARTIES

       Pursuant to TEX. R. APP. P. 38.1(a), a complete list of the names of all
interested parties is provided below so that the members of this Honorable Court may
at once determine whether they are disqualified to serve or should recuse themselves
from participating in the decision of the case.

Appellant: Susana I. Villalpando

      Counsel for Appellant:    Lydia Pilgrim
                                ATTORNEY AT LAW
                                2730 Stemmons Freeway, Suite 770
                                Dallas, Texas 75207
                                Trial counsel

                                Judith A. Grantham
                                ATTORNEY AT LAW
                                1912 Vista Oaks Drive
                                Carrollton, Texas 75007
                                Appellate counsel

Appellee:   Armando Villalpando

      Counsel for Appellee:     Adolfo Vasquez
                                ATTORNEY AT LAW
                                405 Main Street, Suite 910
                                Houston, Texas 77002
                                Trial counsel

                                Renato Santos, Jr.
                                ATTORNEY AT LAW
                                3605 Katy Freeway, Suite 102
                                Houston,Texas 77007
                                Appellate counsel

Trial Judge:       Honorable Judy Warne


                                        -ii-
                                              TABLE OF CONTENTS

                                                                                                               PAGE

Certificate of Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        ii

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Statement Regarding Oral Arugment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of Reply Points. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2-3

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-30

I.       The Trial Court Did Not Abuse Its Discretion By Granting the Divorce on the
         Basis of Insupportability Rather Than on Basis of Fault. . . . . . . . . . . . . . . . . 6

         A.        The Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-7

         B.        The Law and Evidence Support The Court’s Decision to Grant the
                   Divorce on basis of Insupportability. . . . . . . . . . . . . . . . . . . . . . . . . . 7-9

         C.        Appellant Waived the Cruelty Ground for Appellate Review. . . . . . 9-11

         D.        No Reversible Error in Denying a Divorce on Fault Grounds Where
                   Divorce is Still Granted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-13

         E.        Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13


                                                            -iii-
II.      The Trial Court Did Not Abuse its Discretion in the Division of the
         Community Estate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-16

         A.       The Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-5

         B.       The Court’s Division of the Property was Not Unjust nor Unfair. . 15-23

         C.       Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

III.     The Trial Court Did Not Abuse Its Discretion In Disposing of Appellee’s
         Reimbursement Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

         A.       The Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

         B.       Appellant Waived the Reimbursement Ground for Appellate Review. . 24

         C.       No Funds Were Used to Enhance Appellee’s Separate Estate. . . . . 24-25

         D.       Appellant Failed to Present Evidence to Support Her Claim. . . . . 25-27

IV.      The Trial Court Did Not Abuse its Discretion in Setting Appellee’s Child
         Support Obligation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27-30

         A.       The Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27-8

         B.       The Law and Evidence Support The Court’s Determination. . . . . . 28-30

Conclusion and Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31




                                                         -iv-
                                     INDEX OF AUTHORITIES

Cases:                                                                                             Page

Anderson v. Gilliland, 684 S.W.2d 673 (Tex.1985). . . . . . . . . . . . . . . . . . . . . . . . . . 26

Augusta Dev. Co. v. Fish Oil Well Serv'g Co., 761 S.W.2d 538
     (Tex.App.—Corpus Christi 1988, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Bahr v. Kohr, 980 S.W.2d 723, 728 (Tex.App.-San Antonio 1998, no pet.) . . . . . . 18

Barrientos v. Nava, 94 S.W.3d 270 (Tex. App.–Houston [14th Dist.] 2002). . . . . .30

Bell v. Bell, 513 S.W.2d 20 (Tex.1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Boyd v. Boyd, 131 S.W.3d 605 (Tex.App.-Fort Worth 2004, no pet.) . . . . . . . . . . . 18

Cain v. Bain, 709 S.W.2d 175 (Tex.1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 30

Cusack v. Cusack, 491 S.W.2d 714
     (Tex. Civ. App.-Corpus Christi 1973, writ dism'd). . . . . . . . . . . . . . . . . . . 8, 9

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex.1985). . . . . . . . . . . 28

Evans v. Evans, 14 S.W.3d 343 (Tex.App.-Houston [14th Dist.] 2000, no pet.). . .14

Fielder v. Abel, 680 S.W.2d 655 (Tex.App.—Austin 1984, no writ). . . . . . . . . . . .10

Garza v. Garza, 217 S.W.3d 538 (Tex. App.-San Antonio 2006, no pet.). . . . . . . 7,18

Graves v. Tomlinson, 329 S.W.3d 128
     (Tex. App.-Houston [14th Dist.] 2010, pet. denied). . . . . . . . . . . . . . . . . . . . 18

Grayson v. Grayson, 103 S.W.3d 559 (Tex. App.-San Antonio 2003, no pet.). . . . .7

Hailey v. Hailey, 176 S.W.3d 374
      (Tex.App.-Houston [1st Dist.] 2004, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . 25

                                                    -v-
Hill v. Hill, 971 S.W.2d 153 (Tex.App.-Amarillo 1998, no pet.) . . . . . . . . . . . . . . . 9

Hood v. Texas Indem. Ins. Co., 146 Tex. 522, 209 S.W.2d 345 (1948). . . . 12, 19, 22

Imatani v. Marmolejo, 606 S.W.2d 710 (Tex.Civ.App.1980, no writ). . . . . . . . . . . 10

In re A.B.P., 291 S.W.3d 91 (Tex. App.-Dallas 2009, no pet.). . . . . . . . . . . . . . . 6, 7

In re D.I.B., 988 S.W.2d 753 n. 10 (Tex.1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

In re Marriage of Richards, 991 S.W.2d 32
      (Tex. App.-Amarillo 1999, pet. dism'd). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

In re P.J.H., 25 S.W.3d 402 (Tex.App.–Fort Worth 2000, no pet.). . . . . . . . . . . . .28

In the Interest of D.S., 76 S.W.3d 512 (Tex.App.–Houston [14 Dist.] 2002). . . . . . 28

Markowitz v. Markowitz, 118 SW 3d 82
     (Tex.App.-Houston [14th Dist.] 2003, no writ). . . . . . . . . . . . . . . . . . . . . . . 11

McGalliard v. Kuhlmann, 722 S.W.2d 694 (Tex.1986). . . . . . . . . . . . . . .. 12, 19, 22

Murff v. Murff, 615 S.W.2d 696 (Tex.1981). . . . . . . . . . . . . . . . . . . . . . . . 13, 16, 20-1

Penick v. Penick, 783 S.W.2d 194 (Tex.1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25-6

Phillips v. Phillips, 75 S.W.3d 564 (Tex. App.-Beaumont 2002, no pet.). . . . . . . . 9

Rivas v. Rivas, 452 S.W.3d 49 (Tex. App.-El Paso 2014, no pet.) . . . . . . . . . . . . . . 6

Rodriguez v. Rodriguez, 860 S.W.2d 414 (Tex.1993). . . . . . . . . . . . . . . . . . . . . . . 27

Rogers v. Rogers, 754 S.W.2d 236
     (Tex.App.-Houston [1st Dist.] 1988, no writ) . . . . . . . . . . . . . . . . . . . . . . . . 26

Roosth v. Roosth, 889 S.W.2d 445
      (Tex.App.– Houston [14th Dist.] 1994, writ denied). . . . . . . . . . . . . . . . . . 27

                                                 -vi-
Sandone v. Miller-Sandone, 116 S.W.3d 204 (Tex.App.-El Paso 2003, no pet.). . .14

Stecklein v. Stecklein, 466 S.W.2d 421
      (Tex.Civ.App. —San Antonio 1971, n. w. h.) . . . . . . . . . . . . . . . . . . . . . . . . 9

Swaab v. Swaab, 282 S.W.3d 519 (Tex.App.–Houston [14th Dist.] 2008) . . . . . . . 28

Tate v. Commodore County Mut. Ins. Co., 767 S.W.2d 219
      (Tex.App.-Dallas 1989, writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . 12, 19, 22

Tex. Dep't of Human Servs. v. White, 817 S.W.2d 62 (Tex.1991). . . . . . . . . . . . . . . 12

Vallone v. Vallone, 644 S.W.2d 455 (Tex.1982). . . . . . . . . . . . . . . . . . . . . . . . . .25-6

Vickery v. Comm'n for Lawyer Discipline, 5 S.W.3d 241
      (Tex. App.-Houston [14th Dist.] 1999, pet. denied). . . . . . . . . . . . . . . . . . . . 23

Wilemon v. Wilemon, 930 S.W.2d 290 (Tex.App.--Waco 1996, no writ). . . . . . . 27-8

Worford v. Stamper, 801 S.W.2d 108 (Tex.1990). . . . . . . . . . . . . . . . . . . . . . . . . 4, 7

Zeptner v. Zeptner, 111 S.W.3d 727 (Tex.App.-Fort Worth 2003, no pet.) . . . . . 25-6

Zeifman v. Michels, 212 S.W.3d 582 (Tex.App.-Austin 2006, pet. denied). . . . . . 28

Zieba v. Martin, 928 S.W.2d 782
      (Tex.App.-Houston [14th Dist.] 1996, no writ). . . . . . . . . . . . . . . . . . . . . 7, 15

Constitution:

TEX. CONST. XVI, § 15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Statutes:

TEX. FAM. CODE ANN. § 3.001 (Vernon 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

TEX. FAM. CODE ANN. § 3.002 (Vernon 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

                                                      -vii-
TEX. FAM. CODE ANN. § 3.003(a) (Vernon 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . 18

TEX. FAM. CODE ANN. § 3.003(b) (Vernon 2011). . . . . . . . . . . . . . . . . . . . . . . . . . 18

TEX. FAM. CODE ANN. § 3.006 (Vernon 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

TEX. FAM. CODE ANN. § 6.001 (Vernon 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

TEX. FAM. CODE ANN. § 7.001 (Vernon 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

TEX. FAM. CODE ANN. § 154,121 (Vernon 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . 27

TEX. FAM. CODE ANN. § 154.122(a) (Vernon 2011). . . . . . . . . . . . . . . . . . . . . . . . 27

TEX. FAM. CODE ANN. § 154.129 (Vernon 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . 16


Rules:

TEX. R. APP. P. 38.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TEX. R. APP. P. 38.2(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1, 2

TEX. R. APP. P. 44.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TEX. R. CIV. P. 296. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . 9

TEX. R. CIV. P. 297. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . 9

TEX. R. CIV. P. 298. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . .10

TEX. R. CIV. P. 299. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . 9, 21




                                                         -viii-
TO THE COURT OF APPEALS:

      ARMANDO VILLALPANDO, hereinafter referred to as Appellee, files this

brief in support of his request for an affirmance in Cause No. 2012-30887, and would

show this Honorable Court as follows:

                                          I.

                   STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to Texas Rules of Appellate Procedure 38.1, 39.1, and 39.2, Appellee

does not request oral argument before this Court of Appeals. Appellee believes that

the facts and arguments are adequately presented in the briefs and in the record and

the decisional process will not be significantly aided by oral argument. If, however,

this Court should grant oral argument to Appellant, Appellee does not waive oral

argument in such a circumstance, and will present oral argument before this Court of

Appeals.

                                         II.

                            STATEMENT OF THE CASE

      Pursuant to TEX. R. APP. P. 38.2(a)(1)(B), appellee challenges all facts asserted

in appellant's brief. This is an appeal from a final judgment granting a decree of

divorce. The Honorable Judy Warne rendered a judgment granting a divorce,

dividing the community property and establishing conservatorships for possession

                                          1
and child support of the parties’ minor children. (CR. 35). The judgment was signed

on June 6, 2014. (CR. 60). Appellant timely filed her notice of appeal on July 3,

2014. (CR. 71-2).

                                         III.

                          STATEMENT OF REPLY POINTS

POINT 1:     The trial court did not abuse its discretion by granting the divorce on the
             basis of insupportability rather than on the basis of fault.

POINT 2:     The trial court did not abuse its discretion in division of the parties
             community property.

POINT 3:     The trial court did not abuse its discretion in disposing of appellant’s
             reimbursement claim.

POINT 4:     The trial court did not abuse its discretion in setting the amount of child
             support.


                                         IV.

                               STATEMENT OF FACTS

      Pursuant to TEX. R. APP. P. 38.2(a)(1)(B), Appellee challenges all factual

statements in Appellant’s brief. A statement of the pertinent facts in the record will

be included under each reply point. The following is a brief statement of facts:

      Appellee and Appellant were married on or about June 15, 2003. (RR. 20).

Appellee is 51 years old and Appellant is 29 at time of trial. (RR. 11). They are the


                                           2
parent of two children ages 9 and 8. (RR. 11, 14). During the marriage, the parties

accumulated community property that includes a homestead on Berry Road, a 100

acre property in Chambers County, several properties in Mexico and vehicles. (RR.

21, 33, 35-41, 89-94). Prior to the marriage, appellee purchased several properties

some of which he co-owns with his ex wife and his brother. (RR. 24-29). He also

runs a body shop. (RR. 19).

      The parties separated on February 10, 2010, and appellant moved to Dallas.

(RR. 16, 20). Appellee filed for divorce in May, 2012, and the trial court heard the

case on the merits on April 2, 2014. On April 3, 2014, the court made its rendition

and a judgment was signed on June 6, 2014. (CR. 35, 37). It is this judgment that is

on appeal.




                                         3
                                         V.

                          SUMMARY OF THE ARGUMENT

      The trial court did not abuse its discretion in granting a divorce basis on

insupportability rather than on the basis of fault, in its division of the community

estate nor in the setting of the amount of monthly child support. Courts evaluate most

appealable issues in family law cases, including the issues raised in this case, under

an abuse of discretion standard. A trial court abuses its discretion, so as to require

reversal, when it acts arbitrarily or unreasonably without reference to any guiding

rules or principles.

1.    The Family Code allows a judge to grant a divorce on insupportability grounds

as well as on fault grounds. The parties asked for a divorce on both insupportability

and on fault. Appellee testified to the elements of insupportability and the court

granted the divorce on that ground. Appellant failed to request a finding on fault and

waived the issue for purpose of this appeal. Even if the trial court should have

granted the divorce on fault, appellant was not harmed because she got the relief

requested which was the divorce.

2.    In a divorce decree, the trial court shall divide the estate of the parties in a

manner that the court deems just and right. The trial court does not abuse its

discretion when some evidence of a probative and substantive character exists to

                                          4
support the division. The court’s division of the community estate gave appellant a

54.3% share and appellee a 45.7% share.           The denial of separate property,

reimbursement and fraud on the community claims was supported by the law and the

evidence resulting in a just and right division of the community estate. Therefore,

there was no abuse of discretion in the division of this estate.

3.    Child support guidelines are intended to guide the courts in determining an

equitable amount of child support in a suit affecting the parent-child relationship.

The amount of child support established by the guidelines is presumed to be

reasonable, and a support order that conforms to the guidelines is presumed to be in

the child's best interest. Here, the trial court set the amount of child support in

accordance with the child support guidelines after considering testimony and

evidence present at trial concerning appellee’s self-employment income from his

work as an automobile body repairman and his rental properties. Because the court’s

determination of net resources and monthly child support was supported by probative

and substantive evidence and is allowed by the applicable statutes, it comported with

the law and evinced a legitimate exercise of discretion by the trial court. Hence, no

abuse of discretion occurred.




                                          5
                                          VI.

                                     ARGUMENT

I.    The Trial Court Did Not Abuse its Discretion by Granting the Divorce on
      the Basis of Insupportability Rather Than on the Basis of Fault.

      Both parties filed pleadings requesting the dissolution of their marriage.

Appellee requested a divorce on insupportability and abandonment grounds. (CR. 5).

Appellant requested a divorce on insupportability and cruel treatment. (CR. 32). The

court granted the divorce on insupportability grounds. (CR. 38, 87).

      Under Issue Number One, Appellant contends that a new trial should be

granted because the trial court abused its discretion by failing to grant her a divorce

on the basis of cruelty. In support she argues that (1) no finding of fact and/or

conclusion of law was made to support the judgment denying her request for such

relief and (2) there was sufficient evidence of cruelty by appellee to grant the divorce

on fault grounds. (Appellants’ Brief, pgs. 15-22). These arguments are without merit.

      A.     The Standard of Review.

      Courts evaluate most appealable issues in family law cases, including the issues

raised in this case, under an abuse of discretion standard. In re A.B.P., 291 S.W.3d 91,

95 (Tex. App.-Dallas 2009, no pet.); see Rivas v. Rivas, 452 S.W.3d 49, 54 (Tex.

App.-El Paso 2014, no pet.) (indicating family law issues such as property division,


                                           6
conservatorship, visitation or child support are reviewed under an abuse of discretion

standard); Grayson v. Grayson, 103 S.W.3d 559, 561 (Tex. App.-San Antonio 2003,

no pet.) (same). A trial court abuses its discretion, so as to require reversal, when it

acts arbitrarily or unreasonably without reference to any guiding rules or principles.

A.B.P., 291 S.W.3d at 95. In the family law context, insufficiency of the evidence

does not constitute an independent ground for reversal error; rather, a claim that the

evidence is insufficient to support the judgment is merely a relevant factor in

determining whether the trial court abused its discretion. Id.; Garza v. Garza, 217

S.W.3d 538, 549 (Tex. App.-San Antonio 2006, no pet.).                Accordingly, in

determining whether a trial court abused its discretion, courts consider whether the

trial court (i) had sufficient evidence upon which to exercise its discretion, and (ii)

erred in its exercise of that discretion. A.B.P., 291 S.W.3d at 95; Grayson, 103

S.W.3d at 561. The trial court does not abuse its discretion when some evidence of

a probative and substantive character exists to support the decision. Zieba v. Martin,

928 S.W.2d 782, 787 (Tex.App.-Houston [14th Dist.] 1996, no writ). Courts view the

evidence in the light most favorable to the trial court's decision and indulge every

reasonable presumption in favor of the trial court's judgment. Id. at 791.

      B.     The Law and Evidence Support the Court’s Decision to Grant the
             Divorce on The Basis of Insupportability.



                                           7
      Section 6.001 of the Texas Family Code sets out the elements for

insupportability. See TEX. FAM. CODE ANN. § 6.001 (Vernon 2006). The ground of

insupportability, which is commonly referred to as a no-fault divorce, contains three

elements: (1) the marriage has become insupportable because of discord or conflict;

(2) discord or conflict destroys the legitimate ends of the marriage; and (3) there is

no reasonable expectation of reconciliation. In re Marriage of Richards, 991 S.W.2d

32, 37 (Tex. App.-Amarillo 1999, pet. dism'd). The sufficiency and weight of the

evidence necessary to meet the requirements of insupportability must be left to the

sound discretion of the court or jury trying the case. Cusack v. Cusack, 491 S.W.2d

714, 720 (Tex. Civ. App.-Corpus Christi 1973, writ dism'd).

      Here, appellee testified that he was seeking a divorce on the basis of

insupportability, meaning that he and appellant could no longer live as husband and

wife and that he was not going to reconcile with appellant. (RR, 15). The trial court

made a finding that “[t]he marriage of Petitioner and Respondent has become

insupportable because of discord or conflict of personalities that destroys the

legitimate ends of the marriage relationship and prevents any reasonable expectation

of reconciliation.” (CR 83). Appellant did not challenge this finding on appeal.

Thus, there is sufficient evidence and a finding that support the trial court’s decision

to grant a divorce on that basis.

                                           8
       “When insupportability is relied on as a ground for divorce by the complaining

spouse, if that ground is established by the evidence, a divorce must be granted the

complaining party, without regard as to whether either, both or neither of the parties

are responsible for or caused the insupportability.” Cusack, at 717; see also, Stecklein

v. Stecklein, 466 S.W.2d 421 (Tex.Civ.App. —San Antonio 1971, n. w. h.); Phillips

v. Phillips, 75 S.W.3d 564, 576 (Tex. App.-Beaumont 2002, no pet.) (finding that it

was legislature's intent to make decree of no-fault divorce mandatory if party alleges

insupportability and establishes statutory elements). There is no abuse of discretion

when the court does what the law mandates.

      C.     Appellant Waived the Cruelty Ground for Appellate Review.

      A court is obligated (in a non-jury trial) to enter findings of fact and

conclusions of law when they are timely requested. TEX. R. CIV. P. 296, 297. Once

findings are entered, they serve to "form the basis of the judgment upon all grounds

of recovery and of defense embraced therein." Tex.R. Civ. P. 299. Furthermore, "the

judgment may not be supported upon appeal by a presumed finding upon any ground

of recovery or defense, no element of which has been included in the findings...." Id.

      Courts have construed those words to mean that one waives (for appellate

purposes) a theory of recovery or defense unless the proponent of the theory secures

a finding on the theory or an element of the theory. Hill v. Hill, 971 S.W.2d 153, 156

                                           9
(Tex.App.-Amarillo 1998, no pet.);         Fielder v. Abel, 680 S.W.2d 655, 656

(Tex.App.—Austin 1984, no writ); Imatani v. Marmolejo, 606 S.W.2d 710

(Tex.Civ.App.1980, no writ). And, the concept works to the detriment of both

appellant and appellee. For instance, an appellant arguing that the trial court erred in

rejecting his defense must make sure that he requested the court to make a finding

upon the defense. If he does not, then the defense is waived. Augusta Dev. Co. v. Fish

Oil Well Serv'g Co., 761 S.W.2d 538, 542 (Tex.App.—Corpus Christi 1988, no writ).

Similarly, if the appellee fails to request findings upon all his theories of recovery he

is precluded from arguing that the court erred in failing to grant relief on the theories

it omitted from its findings. Fielder, 680 S.W.2d at 656.

      In this case, following the signing of the decree of divorce, appellant filed a

request for findings of fact and conclusions of law. After getting notice that the

findings were past due, the court made and filed certain findings of fact and

conclusions of law including a finding that the marriage had become insupportable.

None of the findings of fact or conclusions of law speak to the issue of cruelty as

appellant claimed in her pleadings and in trial. At the time the trial court filed its

findings of fact, appellant had the right to request additional or amended findings

under Rule 298, T.R.C.P. Appellant, however, did not file a request for additional

or amended findings of fact and conclusions of law and particularly, appellant made

                                           10
no request for a specific finding on her cruelty issue. The failure to make such a

request precludes appellant from arguing that the court erred in failing to grant her

a divorce on the basis of cruelty.

      In her brief, Appellant argues that appellee should have requested additional

findings on appellant’s cruelty ground and, because he did not, there is no support in

the findings for the court’s judgment denying her a divorce on such ground.

(Appellant’s Brief, pgs. 16-17). This claim overlooks the clear mandate of the rule

and the case law that the proponent of the theory of recovery is the one that must

secure a finding on the theory or an element of the theory to avoid waiver of the

theory on appeals. Because appellant failed to secure such a finding, she is precluded

from arguing here that the trial court abused its discretion in not granting a divorce

on her cruelty ground.

      D.     No Reversible Error in Denying a Divorce on Fault Grounds Where
             Divorce is Still Granted.

      To obtain reversal of a judgment based upon an error in the trial court, the

appellant must show that (1) the error occurred; and (2) it probably caused rendition

of an improper judgment, or probably prevented the appellant from properly

presenting the case to the appellate court. TEX. R. APP. P. 44.1(a); Markowitz v.

Markowitz, 118 SW 3d 82, 92 (Tex.App.-Houston [14th Dist.] 2003, no writ). In re



                                         11
D.I.B., 988 S.W.2d 753, 756 n. 10 (Tex.1999); Tex. Dep't of Human Servs. v. White,

817 S.W.2d 62, 63 (Tex.1991).

      In her brief, Appellant argue that there was sufficient evidence to grant a

divorce on cruelty and that somehow she was harmed by the trial court not granting

a divorce in her favor on her cruelty ground because the court did not consider fault

in the division of the community estate. (Appellant’s Brief, pgs. 18-22). These claims

are fallacious for several reasons.

      First, as the fact-finder, the trial court is the sole judge of a witness' credibility

and the weight of his testimony. See Tate v. Commodore County Mut. Ins. Co., 767

S.W.2d 219, 224 (Tex.App.-Dallas 1989, writ denied). The trial court has the right

to accept or reject any part or all of a witness' testimony. See Hood v. Texas Indem.

Ins. Co., 146 Tex. 522, 209 S.W.2d 345, 346 (1948). It may believe one witness and

disbelieve others. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986).

Here, appellant presented evidence that appellee was cruel to her and appellee

testified that he wanted a divorce, not because of fault on either party, but for the fact

that they could not live together as husband and wife. By its ruling, the court accept

appellee’s testimony and rejected appellant’s testimony on the issue of fault.

      Second, there is nothing in the record to show that the court did not consider

fault in the division of the estate. And, although fault in the breakup of the marriage

                                            12
is a factor that the court may consider in the dividing the community property, it is

not a factor that the court must consider. Murff v. Murff, 615 S.W.2d 696, 698

(Tex.1981). Hence, there is no abuse of discretion in not considering fault in the

division of the estate. Lastly, assuming for argument purpose that the trial court erred

in not granting a divorce on fault grounds, there is no reversible error here because

appellant got what she asked for, her divorce.

      E.     Conclusion.

       The evidence and the law support the trial court’s decision to grant the divorce

on the basis of insupportability. Additionally, appellant failed to preserve her

complain that the court abused its discretion in not granting a divorce in her favor on

fault grounds and/or failed to show that she was harmed by the court’s ruling.

      Under the facts of this case and the applicable law, this Court should overrule

Appellant’s Issue One.




                                          13
II.   The Trial Court Did Not Abuse its Discretion in the Division of the
      Community Estate.

      Under Issue Number Two, Appellant argues that a new trial should be granted

because the trial court failed to make a just and right division of the community

estate. In support, Appellant argues that the court (1) failed to consider fault and the

Murff factors; (2) failed to properly characterized some of the separate property; (3)

awarded a disproportionate share to appellee and (4) failed to calculate a reconstitute

community estate amount based on fraud. (Appellant’s Brief, pgs. 22-35). All of

these arguments are without merit.

      A. The Standard of Review.

      In a divorce decree, the trial court shall divide the estate of the parties "in a

manner that the court deems just and right." Tex. Fam.Code Ann. § 7.001 (Vernon

2006). Appellate courts review a trial court's division of property under an abuse of

discretion standard. Evans v. Evans, 14 S.W.3d 343, 345-46 (Tex.App.-Houston [14th

Dist.] 2000, no pet.). They apply the same two-prong test as previously stated to

determine whether the trial court abused its discretion. Sandone v. Miller-Sandone,

116 S.W.3d 204, 206 (Tex.App.-El Paso 2003, no pet.). They must first ask whether

the trial court had sufficient information upon which to exercise its discretion. Evans,

14 S.W.3d at 346. They then determine whether the trial court abused its discretion



                                          14
by causing the division of property to be manifestly unjust or unfair. Id. The trial

court does not abuse its discretion when some evidence of a probative and substantive

character exists to support the division. Zieba, 928 S.W.2d at 787. The courts view

the evidence in the light most favorable to the trial court's decision and indulge every

reasonable presumption in favor of the trial court's judgment. Id. at 791.

      B.     The Court’s Division of the Property was Not Unjust nor Unfair.

      Based on the findings of fact and conclusions of law and supported by the

evidence, the community property of the parties consisted of a homestead at 1701

Berry Road, Houston, Texas 77093, a 100 acre property in Chambers County,

properties in Zacatecas and Jalisco, Mexico, money in the bank accounts and vehicles

in their possession. (RR. 21-23; 33-41; CR. 85,86).

      Appellee got $69,000 in equity on the homestead, $3,000 equity in the

Zacatecas property in Mexico, $4,000 in checking accounts and $2,500 value of his

vehicle. (CR. 54-56). He also got the $40,000 liability on the Chambers County

Property award to him and $2,700 owed to IRS. (CR. 85,86). This gave him a total

net share of the community estate of $35,800. Appellee got all the Jalisco properties,

two of which had a combined value of $29,000 and a third property that no value was

given. (CR. 56,85-86). She also got three vehicles in her possession valued at

$13,500 and no community debt. (CR. 56, 85-86). This gave her a net share of the

                                          15
community estate of $42,500. (CR. 85-86). The total value of the community estate

including the debt is $78,300, giving appellant 54.3% and appellee 45.7% of the

estate.

          1.    Consideration of the Murff factors is discretionary.

          Appellant contends that she pleaded several factors, including fault, the value

and nature of the separate property, the disparity in ages and earning capacities and

the parties’ capacities and abilities to earn income, that should have been considered

by the trial court in dividing the community estate and, based on the findings of fact

and conclusions of law, the trial court did not take these factors into consideration in

its division of the community estate. The court’s failure to consider these factors was

an abuse of discretions according to appellant. (Appellant’s Brief, pgs. 23-25).

          In Murff, 615 S.W.2d at 699, the Supreme Court approved consideration by the

trial court of several factors in making a just and right division of the property

including the ones listed by appellant in this case. The Court, however, did not say

that a trial court must consider all the factors mentioned. Instead, the Court said “[i]n

exercising its discretion the trial court may consider many factors and it is presumed

that the trial court exercised its discretion properly. Id., Bell v. Bell, 513 S.W.2d 20,

22 (Tex.1974).

          Here, in its findings of fact, the trial court mentioned some of the factors it

                                             16
considered in dividing the property included the nature and value of the community

property and the debt associated with it. Although it did not mention the parties’

separate property and the ages and earning capacities and abilities as factors, there is

no indication that she did not consider them in dividing the community estate. The

court did acknowledge in its findings several pieces of properties and a business that

were confirmed as appellee’s separate property. In light of the fact that the equity in

the property is not much, that appellee is taking on all the community debt and that

appellant got more than fifty percent of the net equity in the community, this Court

should find that there was no abuse of discretion in the approach taken by the trial

court in dividing the estate.

      2.     No abuse of discretion in the characterization of separate property.

      Appellant contends that the court failed to properly characterize the Los Alpes

property in Zacatecas, Mexico and the Zapata property in Jalisco, Mexico. This

mischaracterization affected Appellant’s reimbursement claim and resulted in a

disproportionate distribution of the community estate to appellee according to

appellant. (Appellant’s Brief, pgs. 25).

      The character of marital property is determined by the inception of title rule.

TEX. FAM. CODE ANN. § 3.006 (West 2011). Separate property includes property

owned by a spouse before marriage and acquired by a spouse during marriage by gift,

                                           17
devise, or descent. Id. § 3.001; TEX. CONST. art. XVI, § 15. Community property

is property acquired by either spouse during the marriage that is not separate property.

TEX. FAM. CODE ANN. § 3.002. On dissolution of a marriage, all property possessed

by either spouse is presumed to be community property. Id. § 3.003(a). To overcome

this presumption, a spouse must generally trace and identify, by clear and convincing

evidence, the property it claims is separate property. Bahr v. Kohr, 980 S.W.2d 723,

728 (Tex.App.-San Antonio 1998, no pet.); TEX. FAM. CODE ANN. § 3.003(b).

"Tracing involves establishing the separate origin of the property through evidence

showing the time and means by which the spouse originally obtained possession of

the property." Boyd v. Boyd, 131 S.W.3d 605, 612 (Tex.App.-Fort Worth 2004, no

pet.). The clear and convincing evidence standard is generally "not satisfied by

testimony that property... is separate property when that testimony is contradicted or

unsupported by documentary evidence tracing the asserted separate nature of the

property." Graves v. Tomlinson, 329 S.W.3d 128, 139 (Tex. App.-Houston [14th

Dist.] 2010, pet. denied). Any doubt as to the character of property should be

resolved in favor of the community estate. Garza, 217 S.W.3d at 548.

      At trial, Appellee testified that he purchased the lot on Los Alpes property

before the marriage and built a house on the property during the marriage. (RR. 76).

Appellee’s inventory states that the property is valued at $28,000, the house is

                                          18
unfinished and has debt of $25,000. (RR. Exh. 17, p 6). Appellee also testified that

the Zapata property in Jalisco, Mexico was purchased during the marriage. (RR. 71-

72). Appellant testified that they built a house on the Los Alpes property during the

marriage and the property is valued at $200,000. (RR. 141, 152). She also testified

that she did not pay for Zapata property but got it from her mother as a gift. (RR.

150). Her sister corroborated appellant’s testimony about the Zapata property. (RR.

179). No documentary evidence was introduced to support their claims as to the

separate nature of the properties and as to the respective value of each. The court

ruled that both of these properties were community property, accepted appellee’s

valuation and award each property to the party claiming that it was his/her separate

property. (CR. 55, 56, 85).

      As the fact-finder, the trial court is the sole judge of a witness' credibility and

the weight of his testimony. See Tate, 767 S.W.2d at 224. The trial court has the right

to accept or reject any part or all of a witness' testimony. See Hood, 146 Tex. 522, 209

S.W.2d at 346. It may believe one witness and disbelieve others. See McGalliard v.

Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986).

      Based on the high burden of proof of clear and convincing evidence, the

conflicting testimony and the lack of documentary evidence concerning these

properties, the trial court was within her right to resolve any doubt in favor of the

                                          19
community estate. Therefore, there was no abuse in the characterization of these

properties.

         3. No abuse of discretion in the distribution of the community estate.

         Appellant contends that conflicts in the inventory and the findings as to the

amount of debt associated with the community property awarded to appellee resulted

in a disproportionate distribution of the community estate to appellee. (Appellant’s

Brief, pgs. 29-32). In support, Appellant argues that based on the value and the debt

of the properties awarded to the parties per the court’s findings, Appellant got a net

amount of $29,000 or 48% of the community estate and appellee got $32,000 or 52%

of the community. (RR. 30). However, if we consider appellee’s doubtful, $65,000

debt claim on the Alpes property in his inventory, his net share would be $97,000,

constituting 77% of the community estate. (RR. 31). This substantial different in

awards is not equitable and constitutes an abuse of discretion in the division of the

community property according to appellant. (RR. 32). This argument is without

merit.

         The trial court in a divorce case has the opportunity to observe the parties on

the witness stand, determine their credibility, evaluate their needs and potentials, both

social and economic. Murff, 615 S.W.2d at 700. As the trier of fact, the court is

empowered to use its legal knowledge and its human understanding and experience.

                                            20
Id. Although many divorce cases have similarities, no two of them are exactly alike.

Id. Mathematical precision in dividing property in a divorce is usually not possible.

Id. Wide latitude and discretion rests in these trial courts and that discretion should

only be disturbed in the case of clear abuse. Id.

      As was stated in response to point one above, the court’s findings "form the

basis of the judgment upon all grounds of recovery and of defense embraced therein."

Tex.R. Civ. P. 299. Thus, the resolution of the amount of debt associated with the

property awarded to appellee should be based on the court’s findings and not on what

appellee wrote in an inventory. Nowhere in the findings did the trial court say it was

recognizing a $40,000 debt on the Alpes property. The court, as the ultimate fact-

finder, did recognize the $25,000 debt that appellee said was owed to his brother in

law. This debt is included in the calculations proposed by appellee above which

gives appellant a 54% share of the community. Thus, although the mathematical

calculations do not add up to a 50-50 split, the trial court exercised the best

discretion allowed by the facts of this case in the distribution of the community

property.

      4.     Appellant failed to preserve the fraud and reconstitution issues for
             appellate review and there is no evidence of fraud.

      Appellant contends that the court abused its discretion in dividing the



                                          21
community estate because it failed to calculate and divide a reconstituted estate based

on fraud on the community. In support, appellant claims that she requested this relief

in her pleadings and, because the court did not make a finding against her, the court

was required to calculate the amount depleted, recalculate the value of the community

estate and divide the community estate accordingly. (Appellant’s Brief, pgs. 34-35).

      Appellant failed to preserve this issue for appellate review because she failed

to secure a finding on the issue. Appellee incorporates by reference the law and

argument set forth in Argument I, C above. Additionally, appellant failed to present

any legal authority in support of her claim that there was fraud on the community or

her claim that the trial court must make a negate finding on her fraud claim or suffer

the consequences of having to guess at an amount for the depleted property so it

could reconstruct the amount of the community estate.

      Lastly, as the fact-finder, the trial court is the sole judge of a witness' credibility

and the weight of his testimony. See Tate, 767 S.W.2d at 224. The trial court has the

right to accept or reject any part or all of a witness' testimony. See Hood, 146 Tex.

522, 209 S.W.2d at 346. It may believe one witness and disbelieve others. See

McGalliard , 722 S.W.2d at 697.

      The reviewing court, on the other hand, is not a fact-finder and cannot pass

upon a witness' credibility or substitute its judgment for that of the fact-finder even

                                            22
if there is conflicting evidence that would support a different conclusion. See Cain

v. Bain, 709 S.W.2d 175, 176 (Tex.1986). Thus, there is no appellate review from a

trial court's decision to find one fact as opposed to another so long as there is some

evidence in the record which, if believed, would support the trial court's finding.

Vickery v. Comm'n for Lawyer Discipline, 5 S.W.3d 241, 266 (Tex. App.-Houston

[14th Dist.] 1999, pet. denied)(footnote 5).

      All of the allegations of fraud are based on appellant’s testimony and

suppositions that appellant must have committed fraud because he did not deposit

rental payments in a bank account and did not report these payments in his tax

returns. Appellant testified that he used these money to pay expenses and take trips

to Mexico with his wife. There is no evidence of fraud in this case and therefore,

there was no abuse of discretion in the court not doing what is mandated in Section

7.009 of the Family Code.

      C.     Conclusion.

       The evidence and the law support the trial court’s just and right division of the

community property. This Court should overrule Appellant’s Issue Two.




                                          23
III.   The Trial Court Did Not Abuse its Discretion in Denying Appellant’s
       Reimbursement Claim.

       Under Issue Number Three, Appellant argues that a new trial should be granted

because the trial court failed to dispose of her reimbursement claim. This argument

is without merit because (1) appellant failed to preserve the issue for appellate review,

(2) there is no separate estate to get reimbursement from and (3) appellant failed to

present evidence on the amount of the claim.

       A.    The Standard of Review.

       Appellee incorporates the standard of review set forth in Argument I.

       B.    Appellant Waived the Reimbursement Ground for Appellate Review.

       Appellee incorporates the case law and arguments set forth in Argument I, C

above. Because appellant failed to secure a finding on her reimbursement issue, she

waived the issue for appellate review.

       C.    No Funds Were Used to Enhance Appellee’s Separate Property.

       Appellant’s reimbursement claim is based on her prior argument in Issue Two

that the Alpes property in Zacatecas, Mexico was appellee’s separate property, that

funds from the community estate were used to build a house on that property and

therefore the community property should be reimbursed for those funds. Appellant

is not claiming that funds or assets from her separate property were used to benefit



                                           24
the community estate or appellee’s separate property.

      "The rule of reimbursement is purely an equitable one." Vallone v. Vallone, 644

S.W.2d 455, 458 (Tex.1982). A right of reimbursement arises when the funds or

assets of one estate are used to benefit and enhance another estate without itself

receiving some benefit. Id. at 459. A right of reimbursement also arises when

community time, talent, and labor are used "to benefit and enhance a spouse's separate

estate, beyond whatever care, attention, and expenditure are necessary for the proper

maintenance and preservation of the separate estate, without the community receiving

adequate compensation." Id.

      Here, the trial court ruled that the Alpes property was community property.

Therefore, appellant’s argument fails because any community estate funds used to

benefit the Alpes property were used to benefit the community estate itself.

      D.     Appellant Failed to Present Sufficient Evidence to Support Her Claim.

      A party claiming the right of reimbursement must plead and prove that the

expenditures and improvements were made and that they are reimbursable. Id.; Hailey

v. Hailey, 176 S.W.3d 374, 384 (Tex.App.-Houston [1st Dist.] 2004, no pet.).

"Whether the situation involves the payment of a purchase money debt or a capital

improvement, the enhancement value is the measure of reimbursement." Zeptner v.

Zeptner, 111 S.W.3d 727, 735 (Tex.App.-Fort Worth 2003, no pet.) (citing Penick v.

                                         25
Penick, 783 S.W.2d 194, 197 (Tex.1988)). The enhanced value of separate property

is the difference between the fair market value before and after any improvements

made by the community during the marriage. Rogers v. Rogers, 754 S.W.2d 236, 239

(Tex.App.-Houston [1st Dist.] 1988, no writ); see also Anderson v. Gilliland, 684

S.W.2d 673, 675 (Tex.1985).

      Reimbursement is not available as a matter of law, but lies within the discretion

of the court. Vallone, 644 S.W.2d at 459; Zeptner, 111 S.W.3d at 735. In evaluating

the merits of a claim for reimbursement, the trial court should consider "all the facts

and circumstances and determine what is fair, just, and equitable." Penick v. Penick,

783 S.W.2d 194, 197 (Tex.1988); see also Zeptner, 111 S.W.3d at 735. The trial court

should not simply return to the spouse seeking reimbursement the actual amount

advanced to the other spouse's separate estate without regard to the benefits received

in turn by the community estate. Penick, 783 S.W.2d at 197-98; Zeptner, 111 S.W.3d

at 735.

      In her brief, appellant claims that the Alpes property is appellee’s separate

property, that $100,000 was sent to Mexico to build a house on that property and that

she wanted reimbursement in the amount of $50,000 which represents one-half of the

money sent for the construction. Even if we assume for sake of argument that the

property is separate property, appellant’s claim fails because no evidence was

                                          26
presented as to the fair market value of the property before and after the

improvements were made by the community property. Therefore, appellant was not

entitled to reimbursement.

      Based on the law and the evidence, this Court should overrule appellant’s Issue

Three.

IV.   The Trial Court Did Not Abused Its Discretion in Setting Appellee’s
      Monthly Child Support Obligation.

      A.     The Standard of Review.

      A trial court has discretion to set child support within the guidelines of the

Texas Family Code. See, TEX. FAM. CODE ANN. § 154.121; Rodriguez v. Rodriguez,

860 S.W.2d 414, 415 (Tex.1993); Roosth, 889 S.W.2d 445, 452 (Tex.App.– Houston

[14th Dist.] 1994, writ denied). An amount of child support established by the

guidelines is presumed to be reasonable, and a support order that conforms to the

guidelines is presumed to be in the child's best interest. Tex. Fam. Code § 154.122(a).

Once the trial court, after evaluating all the evidence, has made its determination as

to the amount of the child support obligation, that ruling will not be disturbed absent

a clear abuse of discretion. Rodriguez, 860 S.W.2d at 415; Wilemon v. Wilemon, 930

S.W.2d 290, 293 (Tex.App.--Waco 1996, no writ).

      The test for abuse of discretion is whether the trial court acted without



                                          27
reference to any guiding rules or principles; in other words, whether the act was

arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,

241-42 (Tex.1985). In determining whether the trial court abused its discretion, the

evidence is viewed in the light most favorable to the trial court's action, indulging

every presumption in favor of the judgment. In the Interest of D.S., 76 S.W.3d 512

(Tex.App.–Houston [14 Dist.] 2002). Legal and factual sufficiency claims are not

independent grounds of error, but are incorporated into a determination of whether

the trial court abused its discretion. See, Wilemon, 930 S.W.2d at 293. When a party

asserts that the trial court abused its discretion due to a lack of evidence, courts have

engaged in a two-pronged inquiry to determine whether the trial court (1) had

sufficient information on which to exercise its discretion, and (2) erred in its

application of discretion. See, Swaab v. Swaab, 282 S.W.3d 519, 525

(Tex.App.–Houston [14th Dist.] 2008); Zeifman v. Michels, 212 S.W.3d 582, 588

(Tex.App.-Austin 2006, pet. denied). If some probative and substantive evidence

supports the trial court's findings, the trial court does not abuse its discretion. In re

P.J.H., 25 S.W.3d 402, 405 (Tex.App.–Fort Worth 2000, no pet.).

      B.     The Law and the Evidence Support the Trial Court’s Determination.

      Under Issue Four, Appellant contends that the trial court abused its discretion

in setting appellee’s child support obligation based on net resources as presented in

                                           28
his financial statement instead of setting it based on an analyzes of the documents and

testimony presented during the trial.   This argument however is not supported by the

trial court’s findings and the evidence.

      Appellant testified that he has averaged about $25,000 to $32,000 per year

since 2007 and his gross income for 2013 was $31,202. (CR. 103, 113). He also

testified that he pays child supports for one other child. (RR. 103). Based on this

evidence, the percentage to be applied to appellee’s net resources would be 22.5

percent since the number of children before the court was two. TEX. FAM. CODE ANN.

§ 154.129. In its findings, the court stated that it considered the testimony and

evidence concerning appellee’s gross self-employment income as a automobile

repairman and his gross rental income from 2007 to the present. (CR. 85). The court

also stated that the amount of child support ordered was according to the percentage

guidelines. Id. The Court found that appellee’s net resources per month were

$2,023.37. Id. As a result, the court set the monthly support obligation at $457.20.

      In her brief, Appellant conducts an analyzes of appellee’s income tax returns

including attached schedules, other monthly expenditures and receipts for rental

payments and concludes that appellee is vague and deceptive in the way he reports

income and expenditures and has greater gross income and net resources upon which

to pay a greater amount of child support than the amount ordered. This opinion,

                                           29
however, fails to recognize that the trial court is the sole judge of the credibility of the

witnesses and the weight to be given their testimony. Barrientos v. Nava, 94 S.W.3d

270, 288 (Tex. App.–Houston [14th Dist.] 2002, no pet.). It also fails to recognize

that this court cannot pass upon a witness' credibility or substitute its judgment for

that of the fact-finder even if there is conflicting evidence that would support a

different conclusion. See Cain, 709 S.W.2d at 176.

       Because there is probative and substantive evidence to support the court

decision, the trial court’s determination of appellant’s net resources and monthly

support obligation was not arbitrary nor unreasonable. Therefore, there was no abuse

of discretion in setting appellee’s child support and this court should overruled

appellant’s Issue Four.

                              CONCLUSION AND PRAYER

       The record in this case does not support the allegations that the trial court

abused its discretion in granting a divorce, dividing the community estate and in

setting appellee’s child support obligation.

       WHEREFORE, Appellee prays that the judgment in this case be affirmed.

                                           Respectfully submitted,

                                          /s/ Renato Santos, Jr.
                                          RENATO SANTOS, JR.
                                          Counsel for Appellee

                                            30
                                         State Bar No. 17646450
                                         3605 Katy Fwy., Suite 102
                                         Houston, Texas 77007
                                         Telephone: (713) 862-9631
                                         Facsimile: (713) 862-9647
                                         renato.santos3@att.net

                           CERTIFICATE OF COMPLIANCE

      The undersigned attorney for the appellee certifies that this document contains

6,722 words as indicated by the word-count function of the WordPerfect X5 computer

program used to prepare it, excluding the sections of the document listed in Texas

Rule of Appellate Procedure 9.4(i) (1).

                                         /s/ Renato Santos, Jr.
                                         RENATO SANTOS, JR.

                             CERTIFICATE OF SERVICE

      The undersigned attorney for the appellee certifies that a copy of this brief was

served on the following lead counsel for all parties to the trial court’s judgment on the

19th day of June, 2015, as required by Texas Rule of Appellate Procedure 6.3 and

9.5(b), (d), (e), as follows: Ms. Judith A. Grantham, 1912 Vista Oaks Drive,

Carrollton, TX 75007, Attorney for Susana Villalpando By: Pro-Doc Electronic

Service.

                                         /s/ Renato Santos, Jr.
                                         RENATO SANTOS, JR.


                                           31
