                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                              NO. 02-13-00229-CV


BYRON EARL WALKER                                                  APPELLANT

                                       V.

SHERYL LEE WALKER                                                   APPELLEE


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          FROM THE 90TH DISTRICT COURT OF YOUNG COUNTY

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                           MEMORANDUM OPINION1

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      In four issues, Appellant Byron Earl Walker appeals from a final decree of

divorce. We will affirm.

      Byron and Appellee Sheryl Lee Walker married in 1986. They separated

for some time after the marriage but reunited and had three children, one of

which was younger than eighteen (C.L.W.) when Byron filed for divorce in July


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       See Tex. R. App. P. 47.4.
2011, alleging that the marriage had become insupportable.           Sheryl filed a

counterpetition for divorce, alleging adultery, cruel treatment, and insupportability

and requesting that she be appointed the parent with the exclusive right to

designate C.L.W.’s primary residence, that Byron pay her child support, and that

the trial court divide the community estate.

      The primary issue at the final bench trial in February 2013 concerned the

division of the Walkers’ community estate, which included, among other things, a

residence, a 220-acre tract of land, three pickup trucks, a horse trailer, Sheryl’s

teacher retirement account, an investment account, personal property, credit

card debt, and an $80,000 promissory note held by Farmers Bank of Newcastle.

Also included in the community estate was Byron’s 50% ownership interest in

RWE Services, LLC, an entity that performs right-of-way mowing and

construction; Byron’s 50% ownership interest in BW & RR Services, LLC, an

entity that owns cattle; and Byron’s 25% ownership interest in Cattlemen’s Land

& Livestock, LLC, an entity that also runs cattle. Several witnesses testified

about Byron’s salary and the benefits that he receives from his employment, and

Sheryl offered testimony to support her allegations that Byron had committed

adultery and had treated her cruelly. The trial court signed a final decree that

dissolved the Walkers’ marriage, divided the community estate, outlined the

conservatorship of C.L.W., and set Byron’s child-support obligation. The trial

court also entered findings of fact and conclusions of law.



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      In his first issue, Byron argues that the trial court abused its discretion by

awarding him certain cattle that were no longer part of the community estate. He

contends that the trial court erred by disregarding evidence that the cattle had

been sent to a feedlot in July 2011 and sold.

      We review a trial court’s division of community property under an abuse of

discretion standard. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). A trial

court abuses its discretion if the court acts without reference to any guiding rules

or principles, that is, if the act is arbitrary or unreasonable. Low v. Henry, 221

S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex.

2004). Legal and factual sufficiency are not independent grounds of error here,

but they are relevant factors in deciding whether the trial court abused its

discretion. Halleman v. Halleman, 379 S.W.3d 443, 447 (Tex. App.—Fort Worth

2012, no pet.). The factfinder is the sole judge of the credibility of the witnesses

and is responsible for resolving conflicts in the evidence, weighing the evidence,

and drawing reasonable inferences from basic facts to ultimate facts. City of

Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005); Sw. Bell Tel. Co. v. Garza,

164 S.W.3d 607, 625 (Tex. 2004).

      The evidence demonstrates that Byron executed a promissory note on

July 26, 2011, payable to Farmers National Bank of Newcastle in the amount of

$80,000 and secured by cattle purchased by Byron. Bruce Bailey of Farmers

National Bank inspected the cattle in early July 2011, shortly before Byron filed

for divorce, and was led by Byron to believe that the cattle would be shipped to

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grass and put with a bull in Oklahoma. Near the end of January 2012, Bailey

sought to perform an inspection of the collateral cattle, but he experienced

difficulty coordinating an opportunity to do so. According to Bailey, Byron was

not entirely forthright with him when he was trying to locate the cattle. Byron

eventually told Bailey that the cattle had been sent to a feedlot in Kansas and

sold, but Byron did not tell Bailey what feedlot they had been sent to, and Bailey

was never able to verify Byron’s claim, nor did he get paid when the cattle were

sold.

        Sonya Bratcher, the bookkeeper for RWE, BW & RR, and Cattlemen’s,

testified that she performed an audit as part of a search for the cattle but that she

was unable to determine where they had gone. Likewise, Sheryl testified that

she did not know anything about the missing cattle or the $80,000 promissory

note.

        Byron testified that the cattle were sent to a feedlot in Kansas shortly after

Bailey’s inspection and were sold, but he had no documents evidencing the

transaction, nor could he remember the name of the feedlot, the town in which it

was located, or when the cattle were sold.           When asked about the facts

surrounding the cattle, Byron said that Sheryl had all of the documentation.

Contrary to Byron’s testimony that the cattle had been sent to a feedlot in July

2011, Byron executed a financial statement dated November 12, 2012—

approximately three months before trial—in which he claimed to own livestock

valued at $164,500. And Sheryl’s inventory and appraisement, also admitted in

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evidence, identified a similar number of cattle also valued at $164,500. Byron

complains that Sheryl’s inventory is inaccurate, but the trial court was responsible

for weighing the evidence.

      The trial court’s twelfth conclusion of law, which Byron does not challenge,

states that he “failed to properly account for assets.” Indeed, Sheryl contends

that “[t]he lower court was presented with evidence that Byron, less than three

months before trial, was claiming ownership of cattle worth $164,500.00. Either

he was not telling the truth at that time or he was not telling the truth to the trial

court.” [Footnote omitted.] Accordingly, deferring to the trial court’s resolution of

conflicting testimony and the inferences that reasonably could have been drawn

therefrom, and considering the trial court’s unchallenged conclusion; Bailey’s,

Sonya’s, and Sheryl’s testimony that they did not know what happened to the

cattle; Byron’s testimony that he had no documentation and knew very few facts

about the feedlot transaction; and the evidence that Byron owned cattle three

months before trial, we hold that the trial court did not abuse its discretion by

awarding Byron the cattle. We overrule his first issue.

      Byron argues in his second issue that the trial court abused its discretion

by excessively and disproportionately dividing the community estate in favor of

Sheryl.

      The trial court shall order a division of the parties’ estate in a manner that

the court deems just and right, having due regard for the rights of each party.

Tex. Fam. Code Ann. § 7.001 (West 2006). The property division need not be

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equal but it must be equitable, and a trial court may consider numerous factors

when exercising its broad discretion to divide the marital property, including the

relative earning capacity and business opportunities of the parties, the parties’

relative financial condition and obligations, the parties’ education, the size of the

separate estates, fault in the breakup of the marriage, and the probable need for

future support. Murff, 615 S.W.2d at 699. A disproportionate division must be

supported by some reasonable basis. Smith v. Smith, 143 S.W.3d 206, 214

(Tex. App.—Waco 2004, no pet.). We apply an abuse of discretion standard of

review. Murff, 615 S.W.2d at 698.

       According to Byron, the trial court’s division of the community estate

resulted in him being awarded negative $735,844.39 and Sheryl being awarded

$134,487.99. Aside from the debt associated with several trucks, which Byron’s

business was paying him to lease, and the $80,000 promissory note, which

Sheryl claimed to know nothing about, the vast majority of the community debt

awarded to Byron can be attributed to his ownership interests in RWE, BW & RR,

and Cattlemen’s.     Specifically, the trial court awarded Byron 100% of the

ownership interests in each of the three entities, and according to Ronnie

Robertson, Byron’s business partner, RWE had a negative net worth of

approximately $664,000, BW & RR had a negative net worth of approximately

$874,000, and Cattlemen’s had a negative net worth of approximately $1.7

million.   The divorce decree details the numerous promissory notes that the

entities were responsible for paying, and because Byron was a 50% owner of

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both RWE and BW & RR and a 25% owner of Cattlemen’s, this community debt

negatively affected Byron’s overall recovery. Nevertheless, Robertson explained

that much of the debt was incurred as start-up expenses and that the businesses

had been hurt by the recent drought, but he said that he wanted to stay in

business, pay off the debt, and make money. The trial court awarded Sheryl 0%

of the community interest in any of the three entities; thus, while she took on no

debt associated with the businesses, she will not be entitled to benefit from them

financially like Byron.

      The trial court’s disproportionate property division is also supported by

evidence that Byron committed adultery and, as detailed in the fourth issue,

evidence that Byron had treated Sheryl cruelly. See Murff, 615 S.W.2d at 699.

We also notice that Byron’s proposed division of the community estate

recommended that the trial court award him negative $710,940—a figure that is

substantially similar to the negative $735,844.39 that was actually awarded.

Thus, Byron appears to have received almost precisely what he had asked for.

We hold that the disproportionate division has a reasonable basis and that the

trial court did not abuse its discretion in its division of the community estate. See

Tex. Fam. Code Ann. § 7.001; Murff, 615 S.W.2d at 699. We overrule Byron’s

second issue.

      In his third issue, Byron argues that the trial court erred by ordering him to

pay Sheryl $1,000 per month in child support. Byron posits that his net income

totals $4,333.33 per month and because twenty percent of that figure is less than

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$1,000 per month, he complains that the trial court erred by not entering findings

explaining the upward deviation from the 20% guideline. See Tex. Fam. Code

Ann. §§ 154.125(b), .130(a)(3) (West 2014). Although the trial court later entered

supplemental findings, Byron complains that they are improper because the trial

court had previously recused itself.

      Family code section 154.130 requires findings on monthly net resources

when the trial court orders an amount of child support that varies from the

statutory percentage guidelines. Id. §154.130(a)(3). Byron relies on evidence

that his monthly net resources are $4,333.33 to arrive at his conclusion that the

trial court varied from the statutory guidelines, but the problem with this argument

is that there was varying testimony regarding the amount of Byron’s monthly net

resources.   While part of the evidence set the figure at $4,333.33, other

evidence—one of Byron’s own exhibits—set the figure at $5,895.39.             Thus,

Byron relies upon a figure at the lower end of the evidentiary spectrum detailing

his monthly net resources to conclude that the trial court improperly varied

upward from the 20% statutory guideline.       A more accurate calculation must

consider not just part of the evidence, as Byron urges, but all of it. Twenty

percent of the average of the $5,895.39 and $4,333.33 figures equals

approximately $1,022—a figure slightly more than what the trial court ordered

Byron to pay as child support. See Norris v. Norris, 56 S.W.3d 333, 341‒42

(Tex. App.—El Paso 2001, no pet.) (“Given the fluctuation in Robin’s income, an

order based upon the average amount of monthly net resources for the years

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1997 and 1998 was not an abuse of discretion.”). In its original findings of fact,

the trial court found that “[t]he amount of child support ordered by the Court is in

accordance with the applicable percentage guidelines.”            The evidence is

sufficient to support this finding because the $1,000 in monthly child support

ordered by the trial court is within the purview of the $1,022 figure.2 Accordingly,

we hold that the trial court was not required to enter section 154.130 findings and

that it did not abuse its discretion in setting the amount of child support. To the

extent that the trial court did somehow abuse its discretion, we hold that, in light

of the entire record, any error was harmless.       See Tex. R. App. P. 44.1(a);

Friermood v. Friermood, 25 S.W.3d 758, 761 (Tex. App.—Houston [14th Dist.]

2000, no pet.). We overrule Byron’s third issue.

      In his fourth issue, Byron argues that the trial court abused its discretion by

dissolving the marriage in part on the ground of cruelty. In addition to many

highly offensive text messages that Byron sent Sheryl during the pendency of the

divorce, she testified that Byron had choked her numerous times, put a loaded

gun to her head, hit her with a belt, hit her while she was pregnant, and

threatened to kill her and her parents. Byron denied physically abusing Sheryl,

but as the factfinder, the trial court could have resolved the conflicting testimony

against Byron.    We hold that the trial court did not abuse its discretion by


      2
        The difference benefits Byron. We also note that the temporary orders
required Byron to pay child support in the amount of $1,000 per month. Byron
testified that he only paid roughly $5,000 over the course of nineteen months.

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dissolving the marriage in part on the ground of cruelty. We overrule Byron’s

fourth issue.

      Having overruled Byron’s four issues, we affirm the trial court’s judgment.



                                                  /s/ Bill Meier

                                                  BILL MEIER
                                                  JUSTICE

PANEL: GARDNER, WALKER, and MEIER, JJ.

DELIVERED: June 12, 2014




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