      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-04-00697-CV



                                 Michael Dean Sims, Appellant

                                                 v.

                                  Patricia Kaye Sims, Appellee




  FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 391ST JUDICIAL DISTRICT
      NO. D-04-0007-F, HONORABLE THOMAS J. GOSSETT, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Michael Dean Sims and appellee Patricia Kay Sims were married for more

than eleven years when appellee filed for divorce. Following a bench trial, the trial court signed a

divorce decree awarding appellee the cash in her possession, her remaining retirement benefits, and

the house the couple bought during the marriage. She was made responsible for the remainder of

the house note, on which they owed about $45,000, was ordered to pay appellant $6,950 “in equity

of the real property,” and was made responsible for debt she owed under a bankruptcy plan.

Appellant was awarded his truck and cash and personal items in his possession, including any

equipment that remained from his lawn care business. The trial court found that appellant had “been

guilty of cruel treatment” toward appellee and “knowingly and voluntarily waived any interest in”

appellee’s retirement benefits. Appellant appeals, arguing that the trial court erred in finding that
he waived his interest in the retirement benefits and in awarding appellee all of her remaining

retirement benefits. We affirm the trial court’s divorce decree.



                                       Factual Background

                The parties were married in May 1992, and appellee filed for divorce in January 2004.

Appellee worked at Verizon for twenty-seven years, beginning in September 1976 for $2.80 an hour,

and was the primary wage-earner during the marriage. In 1996, appellant was convicted of driving

while intoxicated, incarcerated, and placed on probation. In December 2001, his probation was

revoked, and he was sent to prison. Appellee took an early-retirement package in November 2003,

while appellant was still in prison; when she retired, she was earning $50,000 a year, and under the

retirement package she received a $50,000 cash severance payment and a $275,000 lump sum

payment that she put into a retirement account (“IRA”). Appellant was released from prison in

January 2004.

                Appellee testified that throughout the marriage, appellant worked sporadically at

different jobs. She said that most of what appellant earned “just paid for his expenses” and the rest

“he just spent.” Appellee said that appellant suffered from chronic emphysema, diabetes, and a back

injury, and she did not think appellant was capable of doing strenuous physical labor anymore, but

she believed he was capable of work that did not require difficult physical labor, including lawn care.

She testified that at the time appellant was sent to jail, he was doing lawn work, but was not working

or earning very much. He spent a lot of time drinking and using methamphetamine, and she believed

he had been using drugs since his release from prison.


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               Appellee testified that appellant had abused her physically and verbally during the

marriage and that there were several days when she could not go to work because of bruises on her

face. In 1996, she obtained a restraining order against him after he punched her in the face and hit

her with a telephone receiver, but she said that he “would break my resistance down and I would feel

sorry for him. So I would let him come back home, you know. And things would be good for two

or three months, and then we’d be right back in the same situation again.” She testified that in May

and July 2001, appellant beat her and tied her up with a dog leash, telling her that he would kill her

if she called the police. She said that in the May incident, he disconnected the telephone and kept

her under his control for about five days; she was tied with the leash for about two days, and he tied

the leash to his wrist when he slept so she could not escape.

               Appellee testified that in September 2002, while appellant was in prison, she was

forced to file for bankruptcy because she could not make the monthly payments on her credit cards,

which had been used to charge equipment for appellant’s lawn care business. She testified that the

bankruptcy covered her auto loan and credit card debts incurred during the marriage and before

appellant went to prison, including “things that were charged for the lawn care business” like “riding

law mowers, . . . two or three different kinds of self-propelled mowers, a weed eater[], all kinds of

lawn equipment.” She filed for bankruptcy separately rather than jointly because “they wouldn’t let

me include him because he was in prison.” The bankruptcy proceeding settled about $50,000 in debt,

she was ordered to pay $40,600 total, and at the time of trial she still owed $25,000.

               Appellee testified that when she retired, she took a $275,000 lump sum payment

instead of an annuity that would only have paid her $1,000 a month. To get the lump sum, she had

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to get appellant’s signature “giving up his rights to the yearly annuity payments,” so she offered to

pay him $10,000 as part of their separation agreement. Appellee introduced into evidence a letter

she sent to appellant in October 2003, in which she said she was trying to arrange her retirement to

get a lump sum so that she could give appellant some cash for him to find a place to live when he

was released. She said that if she could not get the lump sum, she would continue working and

would not be able to give appellant any cash. For appellee to get the lump sum, appellant had to

“sign a paper for Verizon saying you’re aware I’m taking the lump sum instead of the monthly

payments. I’d also want you to sign a paper first before I elect it that I’m giving you this money as

final payment.” Appellant responded in November 2003, writing, “I believe there are more involved

[sic] than just the small amount you are trying to pay me. And if I have to I’ll hire me a lawyer and

I believe I’ll have more coming to me than you are offering. . . . I’m willing to accept Twenty-Five

Thousand Dollars ($25,000) to solve this situation. I feel this amount is equitable for all concerned.”

Appellee agreed, and in November 2003, while still incarcerated, appellant signed an affidavit

stating:

           “In consideration for any and all interest I may have in my wife’s pension plan that
           she is or may be entitled to with Verizon, I hereby accept the sum of Twenty
           Thousand Dollars ($20,000.00), payable as follows: the sum of Ten Thousand
           Dollars ($10,000.00) to be paid to me on or about January 3, 2004; the remaining Ten
           Thousand Dollars ($10,000.00) to be paid to me within fifteen (15) days of my
           wife[’]s receipt of her pension funds from Verizon.

           “I do this with full knowledge that upon my acceptance of this money, I waive any
           and all interest I may have in any funds she may receive now or [in] the future as a
           result of her pension plan, retirement or any benefits she may be entitled to arising
           from her employment with Verizon.



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               Appellee deposited $22,000 into appellant’s bank account and “paid an additional

$3,000 in taxes and penalties.”1 She testified that he used the money to finance a truck, but “traded

it in on another truck and got a cash balance back” when he fell behind on the payments. Appellee

also testified that she had recently given appellant $440 to pay one month’s truck payment and

insurance. At the time of trial, appellee had $15,000 cash remaining from her $50,000 cash

severance payment.2 She had $245,000 remaining in her IRA, which started at $275,000, because

stocks and bonds had fallen and she had taken some money out with penalties.

               Finally, appellee introduced a letter sent to appellant at the parties’ address by a

woman who called appellant “sweetheart,” said she was “thinking about who is this man that has

won my fragile heart,” and signed the letter, “Bye My Love & friend.” Appellant denied that he had

a romantic relationship with the woman, who he said he met while playing games online; he testified

both that he gave her his address and that he did not know how she got the address.

               Appellant denied drinking, using methamphetamine, or abusing appellee in any way.

He testified that he did not know about the $50,000 severance pay until appellee testified about it

at trial, and he learned about the $275,000 payment from his attorney about a month before trial. He

denied that he still owned most of the property listed as in his possession on appellee’s inventory,



       1
           Although appellant’s affidavit states that he would receive $20,000 in exchange for any
interest in appellee’s benefits, his earlier letter to appellee said he would agree to accept $25,000.
According to appellee’s testimony, it seems that appellant received $22,000 in cash, and appellee
may have paid $3,000 in debts that appellant otherwise would have owed.
       2
        The $15,000 cash was not disclosed on appellee’s initial inventory statement, and at trial,
when she asked her attorney about it, her attorney said, “I omitted it. I’m sorry.”

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including the lawn care equipment, saying “before I went to prison, I sold every bit of that stuff.”

At the time of trial, appellant owned a truck he bought for $1,500 and his personal possessions; of

the $20,000 he received from appellee, he only had $1 left. Appellant said he did not have any

money to pay his bills, had not found work, and was applying for disability.

               He testified that he did not understand the affidavit he signed and thought it “was the

agreement . . . for me to have enough money to get a trailer house and a vehicle.” He did not know

appellee wanted a divorce until after his release from prison and thought she “needed space” when

he was first released, which is why she asked him to live elsewhere. However, in her October 2003

letter about her retirement funds, appellee did not explicitly say she wanted a divorce, but said, “I’m

sorry this has been such a shock for you and so hard to accept,” going on to say that although she had

tried to stand by appellant, as the time for his release neared, “reality sank in and the bubble burst.”

She said that although appellant promised things would be different this time, she had “heard that

so many times in the past” and was “not taking that chance again,” and she believed she and

appellant had to learn to be happy alone before they could “be happy with someone else.” She

wanted to give him money to find a place to live, but to do that, she had to get the lump sum.

               At the conclusion of the trial, the trial court stated that it found that appellant had

physically abused appellee during the marriage and that his “testimony has been less than credible.

He testified that he did not know about the—the retirement and the plan she had. . . . [I]n her letter

to [appellant], she clearly explains what she is planning, why she needs to do what she is doing.”

The court ruled, “My finding [is] that he has waived his right to any retirement benefits other than

the twenty thousand that has been paid to him.” The trial court granted the divorce on grounds of

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insupportability, cruelty, and felony conviction and made a finding of fact that appellant was “guilty

of cruel treatment toward” appellee and had “knowingly and voluntarily waived any interest in the

retirement benefits.”



                                             Discussion

               In a divorce proceeding, a trial court must divide the parties’ estate in a manner that

the court “deems just and right.” Tex. Fam. Code Ann. § 7.001 (West 2006). The court is not

required to divide the community estate equally, but the division must be equitable. O’Carolan v.

Hopper, 71 S.W.3d 529, 532 (Tex. App.—Austin 2002, no pet.). The trial court has broad, but not

unlimited discretion, and an unequal division must be grounded in a reasonable basis. Id. The trial

court may consider factors such as the parties’ ages, educations, earning capacities, business

opportunities, medical and financial conditions, and separate estates, the nature of the community

property, and any benefits that the spouse who did not cause the dissolution of the marriage would

have enjoyed had the marriage continued. Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981);

O’Carolan, 71 S.W.3d at 532. We review a trial court’s division of property for an abuse of

discretion. Murff, 615 S.W.2d at 699; O’Carolan, 71 S.W.3d at 532. The sufficiency of the

evidence is relevant in considering whether the trial court abused its discretion. O’Carolan, 71

S.W.3d at 532. To amount to an abuse of discretion, the property division must be manifestly unfair.

Mann v. Mann, 607 S.W.2d 243, 245 (Tex. 1980); O’Carolan, 71 S.W.3d at 532.

               Appellee argues that “there can be no doubt” that appellant’s affidavit was an

agreement under sections 4.105 and 7.006 of the family code. However, the affidavit is signed only


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by appellant, not appellee, and thus is not a marital property agreement pursuant to section 4.104 of

the family code. See Tex. Fam. Code Ann. §§ 4.101-.104 (West 2006) (spouses may transform

community property into separate property; such agreements must be in writing and signed by both

spouses). Further, appellant repudiated his agreement before the trial court entered its judgment, and

therefore, the affidavit cannot be considered an agreement incident to divorce pursuant to section

7.006 of the family code. See id. § 7.006 (West 2006) (in a divorce proceeding, spouses may enter

into written agreement concerning property division; agreement may be repudiated or revised before

court renders judgment unless agreement is binding under other law). However, the court could have

viewed the affidavit as evidence of an agreement between the parties as to the disposition of

appellee’s retirement benefits, an agreement appellee fulfilled when she gave appellant more than

$20,000 cash. The court determined that appellee was more credible than appellant and could have

decided that it would be inequitable to disregard the parties’ agreement after appellee relied on the

agreement in deciding to take early retirement and in giving appellant the cash payments.

               Even if we disregard the trial court’s finding of fact that appellant waived his interest

in appellee’s retirement benefits, when the overall property distribution is viewed as a whole, it is

not manifestly unfair so as to amount to an abuse of discretion. See O’Carolan, 71 S.W.3d at 532.

               Appellee was granted all of her remaining retirement benefits, not all of which were

community property. “[A] spouse has a community property interest in that portion of retirement

benefits that the other spouse earned during their marriage.” Burchfield v. Finch, 968 S.W.2d 422,

423 (Tex. App.—Texarkana 1998, pet. denied) (emphasis added). In this case, appellee worked for

Verizon from September 1976 until November 2003, and the parties were married in May 1992, after

                                                  8
appellee had worked at Verizon for almost sixteen years.3 Appellee was also granted the real

property and was ordered to write appellant a check for half of the equity the parties had acquired;

appellant expressed no interest in keeping the house and making the mortgage payments, and

appellee believed he would be unable to make the payments. Appellee was made responsible for the

entire bankruptcy debt, which covered debts she testified were incurred during the marriage, at least

in part for appellant’s lawn equipment. Although appellant denied it, appellee testified that appellant

abused drugs during the marriage and since his release. Appellee gave appellant more than $20,000

in cash, but at the time of trial, about eight months later, appellant had nothing left but a truck worth

about $1,500. Appellee testified that appellant was physically abusive, twice restraining her with

a dog leash and more than once beating her so badly that she skipped work so that no one would see

the marks he left on her face. At the time of trial, appellant was about forty-eight years old and had

some amount of college education.4 Although appellant testified that, due to his health, he could not

continue his lawn care business and it “will be pretty hard” for him to find work, appellee believed

appellant was capable of restarting the lawn care business or finding other employment that was not

physically taxing.


        3
         Appellant asserts that all of appellee’s retirement benefits should be considered community
property because appellee listed them as such in her inventory, but any agreement to transform
separate property into community property must be clear and unequivocal. See Tex. Fam. Code Ann.
§§ 4.202, .203 (West 2006) (spouses may agree to convert separate property into community
property, but agreement must be in writing and signed by both parties, identify property in question,
and state that property is being converted to community property).
        4
         There was no evidence of appellee’s age, educational background, or earning capacity
should she try to find work in her retirement.

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                                           Conclusion

               Based on this record, the trial court did not abuse its discretion in determining that

appellant knowingly agreed to waive his rights to appellee’s retirement benefits in exchange for a

cash payment and in using that agreement as a guide in distributing the parties’ estate. Nor was the

trial court’s unequal division of the community estate manifestly unfair. See Mann, 607 S.W.2d at

245; O’Carolan, 71 S.W.3d at 532. Therefore, we overrule appellant’s issues on appeal and affirm

the trial court’s decree of divorce.



                                              __________________________________________

                                              David Puryear, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: August 4, 2006




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