                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-09-410-CV


JERREL NEYLAND                                                     APPELLANT

                                       V.

JEANNE RAYMOND                                                       APPELLEE

                                   ------------

        FROM THE 231ST DISTRICT COURT OF TARRANT COUNTY

                                   ------------

                                  OPINION

                                   ------------

                               INTRODUCTION

      Appellant Jerrel Neyland appeals from a final decree divorcing him from

appellee Jeanne Raymond. In three issues, Neyland argues that the trial court

abused its discretion by disproportionately dividing community property in favor

of his ex-wife, Raymond. We affirm.
                FACTUAL AND PROCEDURAL BACKGROUND

      Neyland and Raymond married in 1987. Raymond filed for divorce in July

2008, and the case came to trial on June 18, 2009. The parties stipulated that

they had resolved nearly all issues between them and that the only matter

remaining for the court’s adjudication was the division of the parties’ retirement

accounts and their home in Burundi, Africa. The parties both represented to the

court that there was no dispute concerning the values of the retirement

accounts.1 After hearing testimony from the parties regarding the value of the

Burundi home, the trial court signed a final divorce decree awarding the

retirement accounts to Raymond and the Burundi home to Neyland. Neyland

filed a motion for new trial, attaching new evidence that he claimed would

show that the Burundi home was nearly valueless and that the property division

was therefore manifestly unjust. The trial court denied Neyland’s motion for

new trial, and he now appeals.

                     LAW AND APPLICATION TO FACTS

A.    Standard of Review

      In a divorce proceeding, the trial court is charged with dividing the

community estate in a “just and right” manner, considering the rights of both



      1
      … According to Raymond’s inventory filed with the trial court, the value
of her 401(k) plan was $3,567.96, and the value of her 403(k) plan was
$4,061.16. Neyland’s inventory reported the value of his retirement account
as $22,923.96.

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parties. Tex. Fam. Code Ann. § 7.001 (Vernon 2006); Boyd v. Boyd, 131

S.W.3d 605, 610 (Tex. App.—Fort Worth 2004, no pet.). Trial courts are

afforded wide discretion in dividing marital property upon divorce; therefore, a

trial court’s property division may not be disturbed on appeal unless the

complaining party demonstrates from evidence in the record that the division

was so unjust and unfair as to constitute an abuse of discretion. Jacobs v.

Jacobs, 687 S.W.2d 731, 733 (Tex. 1985); Boyd, 131 S.W.3d at 610.

         In a trial to the court in which no findings of fact or conclusions of law

are filed, the trial court’s judgment implies all findings of fact necessary to

support it. Pharo v. Chambers County, 922 S.W.2d 945, 948 (Tex. 1996); In

re Estate of Rhea, 257 S.W.3d 787, 790 (Tex. App.—Fort Worth 2008, no

pet.).    But when a reporter’s record is filed, these implied findings are not

conclusive, and an appellant may challenge them by raising issues challenging

the sufficiency of the evidence. BMC Software Belg., N.V. v. Marchand, 83

S.W.3d 789, 795 (Tex. 2002); Estate of Rhea, 257 S.W.3d at 790. In family

law cases, however, the abuse of discretion standard of review overlaps with

the traditional sufficiency standard of review; thus, legal and factual

insufficiency are not independent reversible grounds of error but are relevant

factors in assessing whether the trial court abused its discretion. Boyd, 131

S.W.3d at 611.




                                          3
      Accordingly, to determine whether there has been an abuse of discretion

because the evidence is legally or factually insufficient to support the trial

court’s decision, we engage in a two-pronged inquiry: (1) did the trial court

have sufficient evidence upon which to exercise its discretion, and (2) did the

trial court err in its application of that discretion? Id. The applicable sufficiency

review comes into play with regard to the first question. Id. We then proceed

to determine whether, based on the elicited evidence, the trial court made a

reasonable decision. Id.; see also Downer v. Aquamarine Operators, Inc., 701

S.W.2d 238, 241–42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986) (stating

that, to determine whether a trial court abused its discretion, we must decide

whether the trial court acted without reference to any guiding rules or

principles; in other words, whether the act was arbitrary or unreasonable).

B.    Sufficiency of the Evidence

      Neyland addresses the first prong of this inquiry in his first issue by

arguing that the trial court had insufficient evidence of the Burundi home’s

value. The record does not set forth the specific dollar amount that the trial

court found the Burundi home to be worth. However, the trial court’s judgment

implies that it found the home to be sufficiently valuable that its decision to

award Neyland the home and Raymond a total of $30,553.08 in the parties’

three retirement accounts was a just and right division of property. See Pharo,

922 S.W.2d at 948; Estate of Rhea, 257 S.W.3d at 790.


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      Anything more than a scintilla of evidence is legally sufficient to support

the trial court’s implied finding of the Burundi home’s value. See Cont’l Coffee

Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996); Leitch v. Hornsby,

935 S.W.2d 114, 118 (Tex. 1996). When reviewing an assertion that the

evidence is factually insufficient to support the implied finding, we set aside the

finding only if, after considering and weighing all of the evidence in the record

pertinent to that finding, we determine that the evidence supporting the finding

is so weak, or so contrary to the overwhelming weight of all the evidence, that

the answer should be set aside and a new trial ordered. Pool v. Ford Motor

Co., 715 S.W .2d 629, 635 (Tex. 1986) (op. on reh’g); Garza v. Alviar, 395

S.W.2d 821, 823 (Tex. 1965); In re King’s Estate, 150 Tex. 662, 664, 244

S.W.2d 660, 661 (1951).

      Raymond’s inventory listed the current fair market value of the Burundi

home as approximately $50,000 to $70,000. Neyland’s inventory listed the

current fair market value as “unknown.” At trial, Raymond testified that the

home is a “very good high quality house.” It is “a big home” located “in the

capital where it’s like three bedrooms and it is in cement and bricks.” She

explained that the house has “three bedrooms and then one living area and one

dining area and then we have a patio attached to it together, and it has three

rooms and three bathrooms and then one room for the keeper, the garden, you

know.” She added that the home had a garage and a garden and that it sits on


                                        5
an acre of land in Burundi’s capital in “a very nice area” where government

ministers also live. She testified that $70,000 was an accurate value for the

property. She also stated that Neyland had rented out the house after she and

Neyland had left Burundi. She testified that Neyland’s sister had “handled” the

business of renting the house for them but that the sister had spent the rental

money instead of putting it in the bank for them.

      Neyland, for his part, testified that the home was worth only $150. He

said that he had built the house himself twenty years ago but that it now had

a “big crack.” He claimed that he was ready to tear down the house, but he

also testified that his mother and other family members were living in the house

and had been there “for a long time.” He said that his mother had to live in the

house because she had a back problem and living in the house was better for

her than living in the country.

      After reviewing the testimony, we conclude that the trial court had

sufficient evidence upon which to exercise its discretion. The parties’ evidence

on the Burundi home’s value differed widely, but viewing it under the

appropriate standards of review, we hold that the parties’ testimony constituted

sufficient evidence upon which the trial court could base its property division.

See Cont’l Coffee, 937 S.W.2d at 450; Leitch, 935 S.W.2d at 118; Pool, 715

at 635; Garza, 395 S.W.2d at 823. We overrule Neyland’s first issue.




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C.    Reasonableness of the Trial Court’s Exercise of Discretion

      Neyland argues in his second issue that the trial court abused its

discretion   by   awarding    a   disproportionate   division   of   the   parties’

property—“nearly 100%”—to Raymond. Again, because the record does not

contain the trial court’s finding with regard to the Burundi home’s value, we

cannot determine the relative percentages awarded to the respective parties.

We can, however, infer that the trial court found that it was sufficiently

valuable so that the property division was fair under the circumstances of this

case. See Pharo, 922 S.W.2d at 943; Estate of Rhea, 257 S.W.3d at 790.

      Even if we assume, as Neyland urges, that the trial court awarded

Raymond a disproportionately large share of the marital property, a

disproportionate award does not necessarily establish an abuse of discretion.

A trial court may award an unequal division of marital property when a

reasonable basis exists for doing so. Loaiza v. Loaiza, 130 S.W.3d 894, 899

(Tex. App.—Fort W orth 2004, no pet.). The court may consider a variety of

factors in evaluating the parties’ relative positions and crafting a fair—but not

necessarily equal—division of property.2 The trial court did not have evidence


      2
        … These factors include the spouses’ capacities and abilities, benefits
that the party not at fault would have derived from continuation of the
marriage, business opportunities, education, relative physical conditions, relative
financial condition and obligations, size of the separate estates, and the nature
of the property. See Schlueter v. Schlueter, 975 S.W.2d 584, 588 (Tex.
1998); Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981). Other factors that
the trial court may consider are fraud on the community, wasting of community

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before it relating to most of these factors, but it did have Raymond’s testimony

that Neyland had rented out the house and that his sister had used rental

income from the home. It also had Neyland’s testimony of the nature of the

home—that he had built the home himself, that his family had lived in the

Burundi home “for a long time,” and that his mother had stayed there because

of her bad back.

      In light of the trial court’s implied finding that the Burundi home had a

sufficient monetary value to render the property division just and right, and in

light of the testimony regarding Neyland’s family’s longtime use of the home

without any evidence of reimbursement to the community estate, we hold that

Neyland has not shown that the that the division was so unjust and unfair as

to constitute an abuse of discretion in this case. See Jacobs, 687 S.W.2d at

733; Boyd, 131 S.W.3d at 610. We overrule his second issue.

D.    Denial of Motion for New Trial

      In his third issue, Neyland argues that the trial court abused its discretion

by failing to hold a hearing on his motion for new trial and by denying his

motion in spite of the new evidence submitted with it. Whether to grant a new

trial based on newly discovered evidence is within the discretion of the trial



assets, child custody, and fault in the breakup of the marriage.
Schaban-Maurer v. Maurer-Schaban, 238 S.W.3d 815, 820–21 (Tex.
App.—Fort Worth 2007, no pet.).


                                        8
court. Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983), overruled

in part on other grounds by Moritz v. Preiss, 121 S.W.3d 715 (Tex. 2003);

Marvelli v. Alston, 100 S.W.3d 460, 483 (Tex. App.—Fort Worth 2003, pet.

denied).   A party seeking a new trial on the ground of newly discovered

evidence must show that (1) the evidence has come to light after trial, (2) it

was not owing to want of due diligence that the evidence did not come to light

sooner, (3) the new evidence is not cumulative, and (4) the evidence is so

material that it would likely produce a different result if a new trial were

granted. Marvelli, 100 S.W.3d at 483. The due diligence requirement has not

been met if the same diligence used to obtain the evidence after trial would

have had the same result if exercised before trial.       Hutson v. Tri-County

Properties, LLC, 240 S.W.3d 484, 491 (Tex. App.—Fort Worth 2007, pet.

denied).

      Neyland’s motion for new trial attached printouts from various internet

websites regarding Burundi’s financial condition, gross national product, and per

capita income, as well as a currency converter with the exchange rate between

the Burundi franc and the United States dollar. Neyland’s motion does not

contain any contention that these printouts were unavailable at the time of trial,

so he has failed to satisfy the first requirement of obtaining a new trial as to

this evidence. See Marvelli, 100 S.W.3d at 483.




                                        9
      In addition to the internet printouts, Neyland attached the deed to the

Burundi property, a real estate appraisal of the property, and photographs of the

home. Neyland claimed in his motion for new trial that the deed had become

available only after the trial court had heard the evidence and that the real

estate appraisal had been unobtainable prior to trial. He provides no further

explanation regarding why the evidence was not available before trial, and he

does not offer any evidence showing that he exercised due diligence in

attempting to procure this evidence sooner. Moreover, he testified at trial that

“the house in Burundi, the value is almost zero. I’m ready to bring -- to do

everything to present, Your Honor, until you see the house.” He testified that

he had called his sister to find out the exchange rate, and he told the court, “I

can call my sister to take the picture of the house.”

      Neyland’s motion for new trial does not explain why he could not have

already called his sister or otherwise obtained the new evidence before the date

of trial. Neyland has therefore failed to demonstrate that it was not owing to

want of due diligence that the evidence did not come his attention sooner. See

Hutson, 240 S.W.3d at 491; Marvelli, 100 S.W.3d at 483. We hold that the

trial court did not abuse its discretion by denying Neyland’s motion for new

trial. See Jackson, 660 S.W.2d at 809; Marvelli, 100 S.W.3d at 483.

      Neyland also complains that the trial court abused its discretion by failing

to hold a hearing on his motion for new trial. Citing Hensley v. Salinas, 583


                                       10
S.W.2d 617, 618 (Tex. 1979), Neyland asserts that when a party files a

motion for new trial with a sworn affidavit on the grounds of newly discovered

evidence, the trial court must hold a hearing to receive the evidence. But

Hensley does not require a hearing on every motion for new trial that claims

newly discovered evidence; it states only that “when a motion presents a

question of fact upon which evidence must be heard, the trial court is obligated

to hear such evidence when the Motion for New Trial alleges facts, which if

true, would entitle the movant to a new trial and when a hearing for such

purpose is properly requested.”    Id.    Here, Neyland’s motion contained no

showing of due diligence and therefore raised no question of fact regarding his

entitlement to a new trial. Accordingly, the trial court was not required to hold

a hearing on his motion, and it therefore did not abuse its discretion by ruling

on the motion without a hearing. We overrule Neyland’s third issue.

                                 CONCLUSION

      Having overruled Neyland’s three issues, we affirm the trial court’s

judgment.




                                              ANNE GARDNER
                                              JUSTICE

PANEL: GARDNER and MCCOY, JJ.; and WILLIAM BRIGHAM (Senior Justice,
Retired, Sitting by Assignment).

DELIVERED: August 31, 2010


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