
NO. 07-05-0403-CV

IN THE COURT OF APPEALS


FOR THE SEVENTH DISTRICT OF TEXAS


AT AMARILLO


PANEL C


SEPTEMBER 26, 2006


______________________________



YOLANDA NELSON AND JAMES L. JOHNSON, APPELLANTS


V.


ALBERTSON'S, INC., APPELLEE



_________________________________


FROM THE COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY;


NO. 04-23919-1; HONORABLE R. BRENT KEIS, JUDGE


_______________________________


Before QUINN, C.J., and REAVIS and HANCOCK, JJ.
ON SECOND AMENDED JOINT MOTION TO DISMISS

	By opinion and judgment dated July 13, 2006, this Court affirmed the trial court's
order granting monetary sanctions in favor of appellee Albertson's, Inc. and against
appellants Yolanda Nelson and James L. Johnson.  On August 2, 2006, Nelson and
Johnson filed a motion for rehearing, and on August 28, 2006, the parties filed a first
amended joint motion to dismiss the appeal relying on Rule 42.1(a)(2)(B) of the Texas
Rules of Appellate Procedure.  The parties indicated they had reached a settlement.  The
joint motion to dismiss, however, was not accompanied by a signed agreement to be filed
with the Clerk of the Court, and resultantly was denied.  The motion for rehearing was
overruled on September 8, 2006.
	While our plenary power continues, the parties have now filed a second amended
motion to dismiss the appeal with an executed copy of the Compromise Settlement
Agreement.  We now withdraw our opinion and judgment of July 13, 2006, and in lieu
thereof, grant the joint motion to dismiss the appeal.  The trial court's order granting
monetary sanctions is set aside without regard to the merits and the cause is remanded
to the trial court for rendition of judgment in accordance with the Compromise Settlement
Agreement.  See Tex. R. App. P. 42.1(a)(2)(B).  
	It is so ordered.
						Don H. Reavis
						     Justice


al court was the testimony of appellant and appellee.  
	The final decree awarded appellee all property, with the exception of a toolbox and
tools that both sides agreed were the separate property of appellant.  The assets awarded
appellee included two residences which were community property, along with any
indebtedness on the properties. One of the residences was a mobile home purchased for
$60,000 on lots purchased for about $30,000.  According to the testimony of appellee, the
mobile home had been lost through foreclosure prior to the final hearing.  She also testified
that foreclosure proceedings were about to be initiated on the other residence, valued at
$14,000. 
	Appellant does not assert that he was divested of any separate property by the trial
court's judgment.  He contends, though, that five items of community property, a television,
living room furniture, bedroom furniture, a stove and a refrigerator, valued on his list at a
combined value of $8,975, were mischaracterized by the trial court as the separate
property of appellee, and that the mischaracterization of those assets lead to an unjustly
unequal division of the community property. 
	At the outset, we note our disagreement with appellant's contention that the
inclusion of the list of items as an exhibit to the divorce decree indicates that the trial court
found all the items on the list to be in existence or found that any of the items had the
values listed. We view the exhibit simply as the trial court's method of identifying the items
by their number on the list, in the same manner as the items were referred to by number
during both parties' testimony. 
	Appellant's first issue presumes that the trial court found the five disputed items to
have been appellee's separate property. Appellee argues that the final decree also can be
construed simply as awarding the disputed items to her, thereafter to be her separate
property. Although the language of the final decree is unclear, and appellee's reading of
it is not unreasonable, for purposes of this opinion we will assume that appellant is correct
that the trial court determined the five disputed items were appellee's separate property
and not the community property of her marriage to appellant. 
	Neither party requested  findings of facts and conclusions of law following the trial
court's decision.  In a non-jury trial, where no findings of fact or conclusions of law are filed
or requested, it is implied that the trial court made all the necessary findings to support its
judgment. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989). When, however, as
here, a reporter's record is provided, the sufficiency of the evidence to support implied
findings of fact may be challenged. Id.; In re Williams, 998 S.W. 2d 724, 729
(Tex.App.-Amarillo 1999, no pet.). A judgment based on implied findings that are
supported by sufficient evidence is to be affirmed on any applicable theory of law. See
Point Lookout West, Inc. v. Whorton, 742 S.W. 2d 277, 278 (Tex. 1987).
	Community property consists of all property, other than separate property, acquired
by either spouse during the marriage. Tex. Fam. Code Ann. § 3.002 (Vernon 1998).
Property in the possession of either spouse during or on dissolution of marriage is
presumed to be community property. Tex. Fam. Code Ann. § 3.003(a). This presumption
may be rebutted with clear and convincing evidence the property is separate property. Tex.
Fam. Code Ann. § 3.003(b). 
	We construe appellant's first issue, in which he argues that appellee's testimony
alone was not sufficient to rebut the presumption that the disputed items were community
property, as a challenge to the factual sufficiency of the evidence. Clear and convincing
evidence is that degree of proof sufficient to produce in the mind of the factfinder a firm
belief or conviction as to the truth of the allegations sought to be established. Tex. Fam.
Code Ann. § 101.007 (Vernon 2002).   In considering appellant's factual sufficiency
challenge, we consider all the evidence, In re Williams, 998 S.W. 2d at 729, and sustain
his challenge if the trial court's finding is so contrary to the overwhelming weight of the
evidence as to be clearly wrong and unjust. Id.; Hill v. Hill, 971 S.W. 2d 153, 158
(Tex.App.-Amarillo 1998, no pet.). (1) 
	In support of his argument, appellant cites Tarver v. Tarver, 394 S.W. 2d 780 (Tex.
1965), McElwee v. McElwee, 911 S.W. 2d 182 (Tex.App.-Houston [1st Dist.] 1995, writ
denied) and Mortenson v. Trammell, 604 S.W. 2d 269 (Tex.App.-Corpus Christi 1980, writ
ref'd n.r.e.) for the proposition that some manner of tracing of the origin of the disputed
items was required. Appellant's reliance on those cases is misplaced. Each of those cases
involved efforts to identify the source of funds used for the acquisition of assets during a
marriage. No issue requiring tracing is presented in this case.
	Appellant testified that each of the five disputed items was acquired during the
marriage. Appellee testified that she owned three of the five disputed items (the television
and the bedroom and living room furniture) before her marriage to appellant. She also
testified that appellant had sold the television. Her testimony about the stove and
refrigerator was more ambivalent. She stated that both items were her separate property,
and in the context of the trial court's questioning of her, it would not be unreasonable to
construe the statement as one that she owned the items before the marriage. At another
point, she stated that the stove and refrigerator were contained in the mobile home that
was repossessed which, since that mobile home was acquired during the marriage, may
suggest that the appliances were also. Appellant also testified that the refrigerator was
located in the mobile home, but stated that the stove he was describing was located in the
other residence. He asserted that both items should still be on hand. Although the clear
and convincing evidence standard requires proof weighing heavier than merely the greater
weight of the credible evidence, there is no requirement that the evidence be unequivocal
or undisputed. G.B.R., 953 S.W.2d at 396, citing State v. Addington, 588 S.W.2d 569, 570
(Tex. 1979). It was the task of the trial court to evaluate the credibility of the witnesses and
resolve conflicts in testimony. On this record, we are unwilling to say a conclusion that the
five disputed items were owned by appellee before the marriage and were therefore her
separate property is so contrary to the overwhelming weight of the evidence as to be
clearly wrong.
	Even if the trial court was guilty of mischaracterizing the community or separate
property character of one or more of the disputed items, the mischaracterization did not
necessarily have a significant effect on the division of the parties' community property.
Appellee's testimony was to the effect that the five disputed items had minimal value, and
to the effect that three of the five items were no longer available for division between them,
having been sold or repossessed. The record supports a conclusion, then, that the effect
of any mischaracterization of those assets was de minimis.  McElwee v. McElwee, 911
S.W.2d at 189.   We overrule appellant's first and second issues. 
	In a divorce decree, the trial court "shall order a division of the estate of the parties
in a manner that the court deems just and right, having due regard for the rights of each
party and any children of the marriage." Tex. Fam. Code Ann. § 7.001.  A trial court has
broad discretion in making the division of community property, and its division is to be
affirmed unless the court has abused its discretion. Murff v. Murff, 615 S.W.2d 696, 698
(Tex. 1981); see Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998).   "In exercising
its discretion the trial court may consider many factors and it is presumed that the trial court
exercised its discretion properly."   Murff, 615 S.W.2d at 698. The "just and right" division
of the community estate need not be equal. Schlueter, 975 S.W.2d at 588; Forgason v.
Forgason, 911 S.W.2d 893, 896 (Tex.App.-Amarillo 1995, writ denied). 
	A court may abuse its discretion by ruling arbitrarily, unreasonably or without
reference to any guiding rules and principles, or without supporting evidence.  Bocquet v.
Herring, 972 S.W. 2d 19, 21 (Tex. 1998); Morrow v. H.E.B., Inc. , 714 S.W. 2d 297, 298
(Tex. 1986). When determining whether the court has abused its discretion, we must view
the evidence in the light most favorable to the trial court's actions and indulge in every legal
presumption in favor of the judgment.  Tucker v. Tucker, 908 S.W.2d 530, 532
(Tex.App.-San Antonio 1995, writ denied).	
	When questioned by the court during the hearing, appellant admitted that six items
he had identified as community property were in fact appellee's separate property. 
Appellant also testified that law books he listed at $5,500 actually had been purchased for
$850, a freezer listed at a value of $750 had been destroyed and an automobile he valued
at $3,300 had been purchased for $500.
	Appellee testified she had acquired most of the property that appellant claimed to
be community property prior to her marriage to appellant, that some of the items appellant
listed did not exist and others had been repossessed. Appellee also testified that
appliances and other items belonging to the community estate had been taken and sold
by appellant prior to his incarceration, and that he was responsible for the loss of other
assets. Appellee testified that she had no place to live. 
	Appellant, relying on the factors referenced in Murff, 615 S.W.2d at 699, contends
there were no factors to support a disproportionate division of community property.  The
factors a court may consider in making a just and right division of property are not limited
to those identified in Murff. See Abernathy v. Fehlis, 911 S.W.2d 845, 848
(Tex.App.-Austin 1995, no writ). Phillips v. Phillips, 75 S.W.3d 564, 573
(Tex.App.-Beaumont 2002, no pet.), cited by appellant, does not stand for a contrary rule.
The circumstances of each marriage dictate what factors should be considered in the
division of property upon divorce.  Young v. Young, 609 S.W.2d 758, 761 (Tex. 1980).
	A spouse may recover an appropriate share not only of property existing in the
community at the time of divorce, but also that which her spouse  improperly depleted from
the community estate. Schlueter, 975 S.W.2d at 589.  The trial court also may consider
whether one of the parties to the marriage has wasted community assets. Phillips, 75
S.W.3d at 573; see Schlueter, 975 S.W.2d at 589; Beard v. Beard, 49 S.W.3d 40, 66
(Tex.App.-Waco 2001, pet. denied).  
	On this record, and in the absence of findings concerning the values of any of the
assets of the community estate, we presume that the trial court properly considered the
entire circumstances of the parties, including the brief duration of their time together, and
correctly exercised its discretion in dividing their property. We cannot say that the court
acted arbitrarily or without evidence to support its decision. Appellant's third issue is
overruled.  The judgment of the trial court is affirmed. 

							James T. Campbell
							         Justice

1. Some courts of appeals have applied a more stringent standard of review in cases
involving factual sufficiency of evidence to meet the "clear and convincing" burden of proof.
See, e.g., In Interest of G.B.R., 953 S.W. 2d 391 (Tex.App.-El Paso 1997, no writ). We
apply the traditional standard here, following this court's opinion in Hill v. Hill, 971 S.W. 2d
153, 158 (Tex.App.-Amarillo 1998, no pet.). We would affirm the trial court's finding
concerning the separate property nature of the five disputed items, though, even under the
more stringent standard of review, being unable to say that the trial court could not
reasonably have found it to be established by clear and convincing evidence. See G.B.R.,
953 S.W. 2d at 396. 

