                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-14-00044-CV


K.T.                                                                  APPELLANT

                                         V.

M.T.                                                                    APPELLEE


                                      ----------

           FROM THE 90TH DISTRICT COURT OF YOUNG COUNTY
                       TRIAL COURT NO. 31091

                                      ----------

   CONCURRING AND DISSENTING MEMORANDUM OPINION 1

                                      ----------

       I concur with the majority’s opinion regarding Wife’s seventh, first, second,

and third issues. But because I do not believe this court should reach the merits

of Wife’s fourth, fifth, and sixth issues, I must respectfully dissent from those

parts of the majority’s opinion.



       1
       See Tex. R. App. P. 47.4.
         “If an appellate court finds reversible error in any part of the trial court’s

property division that materially affects the just and right division of the

community estate, it must remand for a new division of the entire community

estate.” Reisler v. Reisler, 439 S.W.3d 615, 620 (Tex. App.—Dallas 2014, no

pet.) (citing Jacobs v. Jacobs, 687 S.W.2d 731, 732–33 (Tex. 1985)); see

Zeptner v. Zeptner, 111 S.W.3d 727, 741 (Tex. App.—Fort Worth 2003, no pet.)

(op. on reh’g). In sustaining Wife’s third issue, we held there was error in the trial

court’s property division because it found that the deferred compensation

account was a gift to the children, and thus, it did not consider it in determining a

just and right division of the community estate. I would end the analysis there.

The division of property will be retried on remand based on our disposition of that

issue.     Thus, any other issues implicating the division of property are not

necessary to the final disposition, and we need not reach them. See Tex. R.

App. P. 47.1. I would therefore decline to further address the merits of Wife’s

fourth issue regarding the property division. The same would be true concerning

her fifth issue regarding spousal maintenance and her sixth issue regarding child

support. See Roberts v. Roberts, 402 S.W.3d 833, 841 (Tex. App.—San Antonio

2013, no pet.) (en banc) (“Because the trial court cannot make a proper

maintenance determination without considering the financial resources of each

spouse upon dissolution of the marriage, and we are remanding the cause for a

just and right division of the marital estate—which will affect the parties’ financial

resources—we reverse the portion of the trial court’s order awarding spousal


                                            2
maintenance. Therefore, we do not address Martin’s points of error pertaining to

the spousal maintenance awards.”); Vazquez v. Vazquez, 292 S.W.3d 80, 86

(Tex. App.—Houston [14th Dist.] 2007, no pet.) (“[B]ased on our holding that

insufficient evidence supports the division of the marital estate, we remand the

child support determination, including the health insurance and life insurance

obligations, to the trial court because such a claim may be ‘materially influenced’

by the property division.” (quoting Wilson v. Wilson, 132 S.W.3d 533, 539 (Tex.

App.—Houston [1st Dist.] 2004, pet. denied))).

      I am also concerned that in addressing the merits of Wife’s complaint

regarding her child support obligation, the majority states that the trial court’s

award of spousal support was more consistent with its finding that Wife’s “drug

addiction and issues significantly contribute to her lack of ability to be employed,”

implying that it is therefore inconsistent with an award of child support. The trial

court further recites in its findings that the physician records indicate that Wife

could do some work and lists examples of activities that she has performed. I do

not see how we can divine the trial court’s thought process from these findings. I

do not know whether its reasoning is that Wife is incapable of work due to

addiction or that her addiction problems make her ability to obtain employment

more problematic. Either way, it is not necessary to make that determination,

and to the extent that the majority does so, I respectfully dissent.




                                          3
                                 /s/ Lee Gabriel

                                 LEE GABRIEL
                                 JUSTICE

DELIVERED: August 13, 2015




                             4
