                                  NO. 12-09-00212-CV

                      IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

JANET HARRIS PENNINGTON,                     §      APPEAL FROM THE 1ST
APPELLANT

V.                                           §      JUDICIAL DISTRICT COURT OF

RONALD LEE PENNINGTON,
APPELLEE                                     §      SAN AUGUSTINE COUNTY, TEXAS

                                 MEMORANDUM OPINION
       Janet Pennington (Janet), appearing pro se, appeals the trial court’s final decree of
divorce. On appeal, Janet presents nine issues. We affirm.


                                         BACKGROUND
       Ronald Lee Pennington (R.L.) and Janet were married in 1994, and R.L. filed a petition
for divorce on November 12, 2008. The trial court conducted the final divorce hearing on March
4, 2009 and signed the final decree of divorce on May 22, 2009. In this divorce decree, R.L. was
awarded one piece of real property located in San Augustine County, Texas, various personal
property, funds on deposit in a Compass bank account, all sums related to benefits existing by
reason of R.L.’s employment, such as retirement, pension, stock, 401(k), and disability, and a
2000 Dodge Pickup. Janet was awarded two pieces of real property (one in Nacogdoches
County and one in Angelina County), various personal property, a 2000 Toyota Camry, and a
“mineral interest in the Spivey property.” The division of property also assigned the debts of the
estate. R.L. was assigned the debt owed on two credit cards and all unassigned debt that he and
Janet incurred from and after November 1, 2008. Janet was assigned debts owed on three credit
cards, medical bills, and all unassigned debt that she and R.L. incurred from and after November
1, 2008. Further, the decree confirmed other property as either R.L.’s or Janet’s separate
property.
       On June 3, 2009, Janet filed for a motion for new trial stating that the evidence was
legally and factually insufficient to support the property division and that the trial court abused
its discretion in making the property division. After the hearing, the trial court denied the motion
and signed an order stating that the evidence is sufficient and the court did not abuse its
discretion. This appeal followed.


                                      DIVISION OF PROPERTY
       In her first issue, Janet argues that the trial court awarded R.L. a disproportionate share of
the marital assets. In her ninth issue, Janet asserts that in dividing the marital assets, the trial
court did not assign the correct value to her claims for economic contribution and
reimbursement. Because these two issues are related, we address them together.
Standard of Review and Applicable Law
       Trial courts shall divide the estate of the parties 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 (Vernon
2006). We review a trial court's division of property under an abuse of discretion standard. Von
Hohn v. Von Hohn, 260 S.W.3d 631, 640 (Tex. App.–Tyler 2008, no pet.). In determining
whether the trial court abused its discretion, we review the entire record to determine if the trial
court acted arbitrarily and unreasonably. Toles v. Toles, 45 S.W.3d 252, 266 (Tex. App.–Dallas
2001, pet. denied). A trial court does not abuse its discretion if there is some evidence of a
substantive and probative character to support the decision. Von Hohn, 260 S.W.3d at 640. We
reverse a trial court’s division of property only if the error materially affects the court’s just and
right division of the property. Id. Thus, errors in the valuation of property do not require
reversal unless the errors cause the division made by the trial court to be manifestly unjust. Id. at
641. Once reversible error affecting the “just and right” division of the community estate is
found, an appellate court must remand the entire community estate for a new division.
Sheshtawy v. Sheshtawy, 150 S.W.3d 772, 780 (Tex. App.–San Antonio 2004, pet. denied)
(quoting Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex. 1985)).
       A spouse is entitled to a division of only the property that the community owns at the
time of the divorce. Von Hohn, 260 S.W.3d at 641. The assets of the community estate are

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valued as of the time of the dissolution of the marriage. Id. Moreover, the factfinder must have
an evidentiary basis for its findings. Salinas v. Rafati, 948 S.W.2d 286, 289 (Tex. 1997). If the
trial court did not make any valuation findings, an appellate court does not know what share of
the marital estate either party received. See Wells v. Wells, 251 S.W.3d 834, 841 (Tex. App.–
Eastland 2008, no pet.). When the record does not include any findings of fact or conclusions of
law filed by the trial court or any request for findings of fact and conclusions of law, we must
presume the trial court made all the necessary findings to support its judgment. Id. at 838. If the
trial court’s implied findings are supported by the evidence, we must uphold the judgment on any
theory of law applicable to the case. Id. at 838-39.
Analysis
       Janet complains that the trial court awarded R.L. a disproportionate share of the marital
assets. However, Janet did not timely request findings of fact from the trial court. See TEX. R.
CIV. P. 296. Consequently, the trial court did not file findings of fact that reflected the values it
assigned to each asset or liability or the total value of the community property. Without findings
of fact, we do not know what share of the marital estate each party received, the basis for the
division, or the values the trial court assigned to the community assets. See Chacon v. Chacon,
222 S.W.3d 909, 916 (Tex. App.–El Paso 2007, no pet.). Nor do we know the values the trial
court assigned Janet’s economic contribution and reimbursement claims. See id. Furthermore,
we must presume that the trial court made all the necessary findings to support its judgment.
Wells, 251 S.W.3d at 841. When we apply this presumption to the record before us, we cannot
conclude that the trial court abused its discretion in dividing the community estate. Accordingly,
we overrule Janet’s first and ninth issues.


                                          NEW EVIDENCE
       In her second issue, Janet argues that she has new evidence to show she had more assets
at the time she was married. Specifically, Janet asserts that various medical conditions prevented
her from remembering past details clearly at trial. She contends that she asked her attorney the
night before trial for a continuance, but that her attorney stated that it would cost more money if
the trial was delayed, which Janet asserts she could not afford. Consequently, she asks this court
to consider the evidence. Because the record reflects that this evidence was not presented to the
trial court, it is not part of the record and cannot be considered on appeal. See Hartman v. State,

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198 S.W.3d 829, 842-43 (Tex. App.–Corpus Christi 2006, no pet.) (“[A]ppellate courts cannot
consider items which are not part of the record from the trial court.”). We overrule Janet’s
second issue.


                                                FALSE TESTIMONY
         In her third, fourth, fifth, sixth, seventh, and eighth issues, Janet argues that R.L. gave
false testimony during the final hearing on the divorce. “In a bench trial, the trial court is the
sole judge of the credibility of the witnesses, assigns the weight to be given their testimony, may
accept or reject all or any part of their testimony, and resolves any conflicts or inconsistencies in
the testimony.” Liberty Mut. Ins. Co. v. Burk, 295 S.W.3d 771, 777 (Tex. App.–Fort Worth
2009, no pet.) (quoting Rich v. Olah, 274 S.W.3d 878, 884 (Tex. App.–Dallas 2008, no pet.));
see also Murff v. Murff, 615 S.W.2d 696, 700 (Tex. 1981). As a reviewing court, “we may not
pass upon the credibility of the witnesses or substitute our judgment for that of the trier of fact,
even if a different answer could be reached upon review of the evidence.” Id. Because the trial
court was the exclusive judge of R.L.’s credibility, we cannot conclude that the trial court abused
its discretion by believing R.L.’s testimony. We overrule Janet’s third, fourth, fifth, sixth,
seventh, and eighth issues.


                                                    DISPOSITION
         The judgment of the trial court is affirmed.


                                                                BRIAN T. HOYLE
                                                                    Justice


Opinion delivered February 28, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)



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