Affirmed and Memorandum Opinion filed July 24, 2012.




                                          In The

                       Fourteenth Court of Appeals
                                   NO. 14-10-00629-CV
                                  ___________________

                         CONNIE SUSAN WALSH, Appellant

                                             V.

                          JAMES HENRY WALSH, Appellee


                       On Appeal from the 247th District Court
                               Harris County, Texas
                         Trial Court Cause No. 2007-46926


                         MEMORANDUM OPINION

       In this appeal from a divorce decree dissolving the marriage of appellant, Connie
Susan Walsh (“Connie”), and appellee, James Henry Walsh (“James”), Connie challenges
the trial court’s division of the marital property. In her sole issue, Connie contends the
trial court abused its discretion in its valuation of certain marital property. We affirm.

                                     I. BACKGROUND

       After twenty years of marriage, James petitioned for divorce, and Connie filed a
counter-petition. During the marriage, the parties acquired Cinnamon Valley Resort (“the
resort”), which is located in Arkansas and includes two parcels of real property and
vacation cabins. The resort is owned by a corporation, and the spouses are the only
shareholders and officers.

       In October 2009, the trial court conducted a bench trial, during which the parties
presented evidence regarding the value and proposed disposition of the resort, among other
marital property. Consistent with their latest respective inventories, Connie contended the
fair market value of the resort was $2,494,000 whereas James advanced a figure of
$1,600,000. Connie requested that James be awarded the resort, although James testified
he did not want this asset. James proposed that the trial court order the resort to be sold
and the proceeds divided equally.

       After hearing evidence, the trial court orally announced it granted the divorce and a
rendition regarding the marital property would be forthcoming. In December 2009, the
trial court issued a rendition. However, the trial court heard additional testimony in
February 2010, after it was informed that Connie had sold or removed property awarded to
James. Subsequently, the trial court issued a final rendition.

       On April 14, 2010, the trial court signed a final divorce decree. The court ordered
that the resort be sold with each spouse to receive half of the net proceeds and outlined
requirements for the sales process. In its Findings of Fact and Conclusions of Law, the
court found that the values of the marital assets are “as reflected in [James’s] trial
inventory,” except for some of Connie’s jewelry. Connie timely filed a motion for new
trial and an amended motion for new trial. In a written order, the trial court denied
Connie’s “motion for new trial.”

                                       II. ANALYSIS

       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 (West 2006). The
values of individual items “‘are evidentiary to the ultimate issue of whether the trial court

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divided the properties in a just and right manner.’” Zeptner v. Zeptner, 111 S.W.3d 727,
740 (Tex. App.—Fort Worth 2003, no pet.) (quoting Finch v. Finch, 825 S.W.2d 218, 221
(Tex. App.—Houston [1st Dist.] 1992, no writ)). The values of community assets are
generally determined as of the date of divorce or as close to that date as possible. Quijano
v. Quijano, 347 S.W.3d 345, 349 (Tex. App.—Houston [14th Dist.] 2011, no pet.).

       We review a trial court’s division of marital property under an abuse-of-discretion
standard. Id. To obtain reversal of a property division, an appellant must show that the
trial court clearly abused its discretion by rendering a division or an order that is manifestly
unjust and unfair. Id. A trial court abuses its discretion when it acts arbitrarily or
unreasonably or without reference to any guiding rules or principles.               Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985); Swaab v. Swaab, 282
S.W.3d 519, 524 (Tex. App.—Houston [14th Dist.] 2008, pet. dism’d w.o.j.).           Legal and
factual sufficiency of the evidence are not independent grounds of error but are relevant
factors in assessing whether the trial court abused its discretion. Quijano, 347 S.W.3d at
349. “The trial court in a divorce case has the opportunity to observe the parties on the
witness stand and to evaluate their credibility, and the reviewing court may not impose its
own opinions of credibility contrary to those of the fact finder.” Dewalt v. Dewalt, No.
14-06-00938-CV, 2008 WL 1747481, at *2 (Tex. App.—Houston [14th Dist.] Apr. 17,
2008, no pet.) (mem. op.) (citing Murff v. Murff, 615 S.W.2d 696, 700 (Tex. 1981); City of
Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005)). The trial court does not abuse its
discretion if its decision is based on conflicting evidence and some evidence of a
substantive and probative character supports the decision. See In re Barber, 982 S.W.2d
364, 366 (Tex. 1998); Swaab, 282 S.W.3d at 525.

       In her sole issue, Connie contends the trial court abused its discretion by incorrectly
valuating the resort at $1,600,000 instead of $2,494,000 because the evidence is legally and
factually insufficient to support the finding. Apparently, Connie recognizes this valuation
did not affect the amount each party was awarded relative to the resort because the court

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ordered that it be sold and the proceeds shared equally, regardless of the sales price.
Nevertheless, Connie contends the entire division of marital property was not just and right
as a result of the purportedly errant valuation. Specifically, Connie asserts that James was
awarded a “disproportionately” greater share overall of the parties’ property but a lesser
share of their debts. Connie emphasizes she was the party solely responsible for operating
the resort during the couples’ three-year separation. Therefore, Connie suggests that, by
undervaluing the resort, the court deprived Connie of “equitable credit” for her efforts in
enhancing its value.

       Assuming, without deciding, that Connie preserved her complaint for appellate
review, we conclude the trial court did not abuse its discretion by valuating the property at
$1,600,000 because some evidence of a substantive and probative character supports the
finding. For the following reasons, Connie contends evidence of the $2,494,000 figure
was “overwhelming” but no more than a scintilla of evidence supported the $1,600,000
figure: (1) an appraisal showed the value at $2,494,000; (2) James made a bare,
unsupported assertion in his inventory that the value was $1,600,000; (3) James testified he
“agreed” and “was comfortable” with the appraised value of $2,494,000; and (4) Connie
was much more knowledgeable about the resort because of her sole responsibility for the
property during the separation.

       Connie indeed presented an appraisal for $2,494,000; however, it was performed
almost three years before trial. Additionally, James did not testify at trial that he “agreed”
and “was comfortable” with this appraised value. Rather, James acknowledged that he
had agreed with the $2,494,000 figure when he testified by deposition several months
before trial. At the time of his deposition, James had not reviewed any other appraisal;
thus, he originally listed $2,494,000 on his inventory. At trial, James testified that he no
longer believed the value was $2,494,000 and listed $1,600,000 on his most recent
amended inventory because he was informed within several weeks before trial of another
appraisal. James explained that he discovered this appraisal and obtained a copy only

                                              4
because Connie mentioned it relative to her attempt to procure another loan for the
property. We recognize James did not directly state that the fair market value in the more
recent appraisal was $1,600,000. However, as Connie acknowledges, the clear import of
James’s testimony was that his $1,600,000 figure was based on the appraisal.

       Connie suggests that James was not competent to opine on the value of the resort
because he lacked familiarity with its operation. James acknowledged that he wanted to
sell the resort when the couple separated because “it was not doing well” but Connie
refused, so James told her to assume responsibility for its operation and he had not visited
the property for several years before trial. However, for approximately seventeen years
before their separation, the couple jointly operated the resort and visited there regularly,
and, at trial, James was still able to describe the nature and condition of the resort.
Moreover, James indicated he was familiar with the financial situation of the resort at the
time of trial and testified that “it doesn’t make money,” the couple was incurring further
debt by infusing money into the property, and it was “not a good business proposition.”
Nevertheless, irrespective of whether James possessed sufficient knowledge to opine on
the value, he indicated his figure was based on a more recent appraisal—not simply his
opinion.

       Connie emphasizes that this appraisal was not introduced at trial.         However,
Connie did not object, such as on hearsay grounds, to James’s testimony regarding this
appraisal. In fact, Connie’s counsel elicited the testimony by asking James why the value
changed in his inventory. Further, even Connie acknowledged that there had been a more
recent appraisal. Accordingly, the trial court was free to consider James’s testimony as
some evidence regarding the value of the resort at the time of trial.

       We acknowledge, as asserted by Connie, that the $2,494,000 appraisal showed a
detailed analysis whereas there was no such analysis by which to judge the $1,600,000
figure because the more recent appraisal was not introduced at trial. However, the trial
court was free to weigh this factor against the fact that Connie’s trial testimony adopting
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the $2,494,000 figure was impeached. Specifically, Connie acknowledged that, during
her deposition several months before trial, she testified the value of the resort was
$1,100,000—an even lower figure than subsequently assigned by James and adopted by
the trial court. When asked in the deposition how she arrived at $1,100,000, Connie
replied, “[t]he value of the [resort] has gone down because the market is not good and our
occupancy is horrible.” At trial, Connie did not adequately explain why she decided to
claim the $2,494,000 figure again, other than expressing the $1,100,000 figure was “just
my opinion.”

       However, “[g]enerally, a property owner is qualified to testify to the value of her
property even if she is not an expert and would not be qualified to testify to the value of
other property.” Reid Road Mun. Util. Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 337
S.W.3d 846, 852–53 (Tex. 2011) (citing Porras v. Craig, 675 S.W.2d 503, 504 (Tex.
1984)). “The rule is based on the presumption that an owner will be familiar with her own
property and know its value.” Id. at 853. The rule may be applied in the present case
although the resort is corporate property because Connie is an officer in a managerial
position with duties related to the property. See id. at 854–55. Further, although the
party typically relying on the “Property Owner Rule” would likely be the proponent of the
opinion, we find no reason the rule may not be applied to Connie’s opinion testimony
although it was used by James for impeachment purposes. Therefore, Connie’s emphasis
on her familiarity with the property was actually a factor negating the $2,494,000 figure
because the trial court could consider her previous “opinion” that the property was no
longer worth $2,494,000 as inconsistent with her trial testimony. In fact, Connie agreed at
trial that the resort is “in pretty dire financial straits.” Consequently, contrary to Connie’s
suggestion, the $2,494,000 appraisal and her trial testimony were not conclusive regarding
the value of the resort.

       Moreover, in its Findings of Fact and Conclusions of Law, the trial court recited,
“Connie’s testimony on many issues was not credible.” Accordingly, as sole judge of

                                              6
witness credibility, the trial court was free to consider other factors negating Connie’s
credibility when deciding whether to adopt her proposed value for the resort.

       Finally, Connie cites Vazquez v. Vazquez, 292 S.W.3d 80 (Tex. App.—Houston
[14th Dist.] 2007, no pet.), In re Marriage of Brown, 187 S.W.3d 143 (Tex. App.—Waco
2006, no pet.), and Wilson v. Wilson, 132 S.W.3d 533 (Tex. App.—Houston [1st Dist.]
2004, pet. denied), in which courts reversed marital-property divisions for lack of
supporting evidence.     However, Connie’s reliance on these cases is misplaced.             In
Vasquez, the wife testified merely that her proposed final division was “fair and equitable,”
but the record did not reflect any specifics regarding the nature or value of the property or
debts; and in the husband’s appeal, the wife actually conceded there was insufficient
evidence to support the property division as just and right. See 292 S.W.3d at 85. In
Brown, the trial court awarded the wife 100% of the community estate based on very
general evidence regarding the estate, a “sketchy” listing of assets, and no discussion
regarding the value of assets, outstanding debts, and other relevant considerations. See
187 S.W.3d at 148. In Wilson, the evidence was sparse and inconsistent regarding the
value of the entire community estate, the wife failed to identify any community assets
except a few items for which she generally provided values, and she did not identify what
assets she characterized as “the rest of the property” although she requested that it be
awarded to her husband and she obtain an equivalent money judgment. See 132 S.W.3d at
537–38. In contrast to these cases, the spouses in the present case presented testimony
regarding the value of the sole asset at issue on appeal and the rest of their marital estate.
       In summary, the trial court was presented with the following: Connie’s proffered
appraisal of $2,494,000, with supporting analysis, performed three years before trial, her
opinion several months before trial that the value had declined to $1,100,000, and her trial
testimony again adopting $2,494,000; versus James’s agreement with the $2,494,000
figure several months before trial, followed by his trial testimony advancing a $1,600,000
figure based on a more recent appraisal, albeit without supporting analysis. Under these
circumstances, we cannot conclude the trial court abused its discretion by valuating the
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property at $1,600,000. See Smith v. Grayson, No. 03-10-00238-CV, 2011 WL 4924073,
at *11–12 (Tex. App.—Austin Oct. 12, 2011, pet. dism’d) (mem. op.) (holding trial court
did not abuse its discretion in adopting value of spouses’ real property as presented in
taxing authority’s appraisal, rather than wife’s opinion or real estate appraiser’s opinion,
because valuation was based on conflicting evidence, with some probative evidence
supporting the finding).

       Accordingly, we overrule Connie’s sole issue and affirm the trial court’s divorce
decree.




                                                 /s/       Charles W. Seymore
                                                           Justice



Panel consists of Justices Seymore, Boyce, and Mirabal.1




       1
           Justice Margaret Garner Mirabal sitting by assignment.
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