

Opinion filed November 18,
2010
 
                                                                       In The
                                                                              
  Eleventh
Court of Appeals
                                                                   __________
 
                                                         No. 11-08-00255-CV 
                                                    __________
 
                               CHRISTOPHER
MILLER, Appellant
 
                                                             V.
 
                             MADELEINE
JEAN MILLER, Appellee

 
                                   On
Appeal from the 90th District Court
 
                                                          Stephens
County, Texas
 
                                                     Trial
Court Cause No. 29,166
 

 
                                            M E M O R A N
D U M   O P I N I O N
 
            Madeleine
Jean Miller sued Christopher Andrew Miller[1]
(Chris) for divorce.  The trial court entered a final decree of divorce based
in part on jury questions.  Chris has appealed, asserting error in the division
of the marital estate.  We affirm.  
            Chris
presents seven issues for appellate review.  In the first issue, he contends
that the trial court abused its discretion by making a manifestly unjust
division of the marital estate.  In the second issue, Chris asserts that the
evidence is insufficient to support the jury’s finding that Sunrise Trucking
had a value of $1.2 million.  He contends in the third issue that the evidence
is legally and factually insufficient to support the trial court’s valuation of
the 40% share of Sunrise Trucking awarded to him.  Chris argues in his fourth
issue that the evidence is legally and factually insufficient to support the
jury’s findings regarding fraud and the $477,700 loss caused thereby and in his
fifth issue that the trial court erred in awarding the full amount of those
fraud damages to Madeleine.  In his sixth and seventh issues, Chris complains
that several of the trial court’s findings of fact and conclusions of law were
meaningless and that several of them were not supported by pleadings or
evidence.  
            In
an action for divorce, Texas law requires the trial court to divide the estate
of the parties in a manner that is “just and right, having due regard for the
rights of each party.”  Tex. Fam. Code
Ann. § 7.001 (Vernon 2006).  The trial court need not effectuate an
equal division of the marital estate.  Murff v. Murff, 615 S.W.2d 696,
699 (Tex. 1981).  In making its decision, the trial court may consider many
factors, including fault, the conduct of the errant spouse, the spouses’
capacities and abilities, benefits which the party not at fault would have
derived from continuation of the marriage, business opportunities, education,
relative physical conditions, relative financial condition and obligations,
disparity of ages, size of separate estates, and the nature of the property.  Id.;
see Young v. Young, 609 S.W.2d 758, 761-62 (Tex. 1980).  
We
review a trial court’s division of property under an abuse of discretion
standard. Wells v. Wells, 251 S.W.3d 834 (Tex. App.—Eastland 2008, no
pet.).  A trial court abuses its discretion when it acts without reference to
any guiding rules or principles.  Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241-42 (Tex. 1985).  When an appellant in a divorce proceeding
challenges the trial court’s order on legal or factual sufficiency grounds, we
do not treat these as independent grounds of reversible error but, instead,
consider them as factors relevant to our assessment of whether the trial court
abused its discretion.  Wells, 251 S.W.3d at 838; Boyd v. Boyd,
131 S.W.3d 605, 611 (Tex. App.—Fort Worth 2004, no pet.).  To determine whether
the trial court abused its discretion because the evidence is legally or
factually insufficient, we consider (1) whether the trial court had sufficient
evidence upon which to exercise its discretion and (2) whether the trial court
erred in the application of that discretion.  Wells, 251 S.W.3d at 838; Boyd,
131 S.W.3d at 611; Lindsey v. Lindsey, 965 S.W.2d 589, 592 (Tex. App.—El
Paso 1998, no pet.).  We must indulge every reasonable presumption in favor of
the trial court’s proper exercise of its discretion in dividing marital property. 
Wells, 251 S.W.3d at 841; Pletcher v. Goetz, 9 S.W.3d 442, 446 (Tex.
App.—Fort Worth 1999, pet. denied).  
            The
trial court found that Chris was at fault in the breakup of the marriage and
that he had expended community funds to provide a house for and to support a
woman other than Madeleine. The community funds used by Chris for such purposes
were derived from the parties’ ownership of Sunrise Trucking, Inc.  The trial
court found that the parties acquired Sunrise, a closely held corporation, as community
property during their marriage but that Chris, as the controlling shareholder,
director, and officer, failed to account for large sums of money earned by
Sunrise. In addition to finding that Chris committed fraud on the community,
the trial court found that he concealed and misrepresented information
regarding the financial affairs of Sunrise.
The
trial court did not divide the marital estate equally.  It awarded 60% of
Sunrise to Madeleine and 40% to Chris.  Sunrise’s assets included a trucking concern
that operated out of Eastland, Texas, and a ranch in Oklahoma.  Excluding
Sunrise, which the jury had valued at $1.2 million, the trial court awarded
assets with a net value of $459,989.69 to Madeleine and assets with a net value
of $171,179.28 to Chris.
            A
review of the record shows that the trial court did not abuse its discretion by
dividing the marital estate disproportionately.  In addition to fault, evidence
of Chris’s fraud on the community was before the trial court.  Testimony
indicated that Chris purchased a house without his wife’s knowledge.  Chris
also furnished the house and paid the monthly bills using Sunrise funds.  The
evidence indicated that Chris’s girlfriend lived in that house.   The record
shows that Chris purchased a Harley-Davidson motorcycle for $16,000 but, at the
time of trial, could not account for the motorcycle or any funds from its sale. 
Chris sold Sunrise equipment and cattle but, at the time of trial, could not
account for the proceeds.  The evidence indicated that Chris withdrew a
substantial amount of cash from Sunrise and that he could not remember what he
had done with the money.  Sunrise’s accountant testified that stockholder
distributions to Chris were $179,658 in 2005, $162,398.97 in 2006, $121,217.66 through
the month of June 2007, and about $18,000 plus another $84,400 for July and
August 2007.  These stockholder distributions were in addition to amounts paid
for the extra house, a ranch in Oklahoma, meals, utilities, gas, insurance,
fencing, and other expenses related to the ranch.  The record shows that, although
Sunrise’s income was sufficient for Chris to withdraw such substantial amounts
of cash and Sunrise’s gross revenue was as high as $1.8 million in 2006 and was
$1.12 million through August 2007, Sunrise failed to pay some of its payroll
taxes and had incurred tax liens of just over $243,000.  Evidence was also
introduced that Sunrise, under Chris’s control, had overbilled its main
customer in excess of one million dollars over a four-year period. 
            Chris
complains on appeal that the jury overvalued Sunrise and that the jury’s
valuation of Sunrise was not supported by the evidence.  There was much debate
at trial regarding the value of Sunrise; the opinions varied from negative
$50,000 as the net book value of the trucking concern (which included the tax
debt but excluded the value of Sunrise’s ranch in Oklahoma), to $250,000 as the
book value on a “tax basis” – as opposed to the fair market value – of Sunrise,
to $1.7 million as a fair market value if Sunrise were valued as a going
concern, to an estimated value by Madeleine of between $1.5 million and $1.8
million based on the inventory and Chris’s income.  Sunrise’s CPA testified
that the book value of Sunrise is not reflective of its true value and that
fair market value is based on other factors, especially the amount of income
produced.  There was evidence from which the jury could have determined that Sunrise
was worth $1.2 million.  Moreover, the actual value of Sunrise is of limited
importance in this appeal with respect to the trial court’s division of the
marital property.  In its decree, the trial court did not rely on the value of
Sunrise but, rather, awarded shares of Sunrise stock to the parties.  Thus, regardless
of the value of Sunrise or its assets, the ownership of Sunrise was divided
60/40 between the parties.  
            Chris
also asserts that no evidence supports the trial court’s finding regarding the
value of the acreage awarded to Madeleine and that the trial court undervalued
the acreage awarded to Madeleine.  Contrary to Chris’s assertion, the trial
court’s finding is supported by Plaintiff’s Exhibit No. 42, Madeleine’s
inventory and appraisement.  The exhibit indicated that the equity in the
acreage near their Stephens County home was $210,892, the exact amount found by
the trial court.  Chris appears to have mistaken the amount of net equity in
the acreage and the house combined, $439,612.33, for the equity in the acreage
alone.
            Because
of Chris’s actions, the lack of paper trails, and the manner in which Sunrise’s
books were kept, the jury had a difficult task in determining the amount of
fraud committed by Chris upon the community.  However, there was evidence from
which the jury could have found that the community suffered a loss of at least
$477,700.  Contrary to Chris’s assertion, the record does not indicate that the
trial court awarded this entire amount to Madeleine.  The trial court did not
make a finding regarding the amount of fraud but “considered” the jury’s
finding of fraud on the community in “arriving at a just and right division of
the marital estate.”  The trial court also considered other relevant factors,
including the benefits that Madeleine, a school teacher, would have derived
from the continuation of the marriage.
            We
hold that the trial court did not abuse its discretion in its disproportionate
division of the Millers’ marital estate.  The trial court had sufficient evidence
upon which to exercise its discretion, and the trial court did not err in its
application of that discretion.  Issues 1, 2, 3, 4, and 5 are overruled.  
            In
the last two issues, Chris complains that the trial court entered meaningless
findings and conclusions and other findings and conclusions that were not
supported by the pleadings or the evidence.  The trial court’s entry of
meaningless findings and conclusions, if error, is not reversible error.  A
review of the record shows that the findings were supported by the evidence at
trial.  
Chris
also complains of the trial court’s listing in the decree of some of Sunrise’s
trucking equipment because there was no testimony regarding such equipment. 
The record contains various exhibits admitted at trial, including Madeleine’s
inventory and appraisement, listing not only these specific pieces of equipment
but also other Sunrise equipment.  As indicated by the trial court, this
equipment was owned by Sunrise; it was not included in the trial court’s division
of the marital property.  Furthermore, in light of the evidence regarding
Chris’s lack of cooperation and his fraudulent acts, the trial court did not
abuse its discretion by entering specific orders to effectuate the peaceable
transfer of the majority ownership of Sunrise to Madeleine and to order Chris
from interfering therewith.  Issues 6 and 7 are overruled. 
            The
judgment of the trial court is affirmed.  
  
 
                                                                                                JIM
R. WRIGHT
                                                                                                CHIEF
JUSTICE
 
November 18,
2010
Panel consists of:  Wright, C.J.,
McCall, J., and Strange, J.




[1]We note that the name shown on the pleadings, the
decree, and other documents is Christopher Andrew Miller but that the name
shown on the notice of appeal (from which we obtain the appellant’s name) is
Christopher Miller. 


