                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                               §
 MIGUEL REYES,
                                               §               No. 08-13-00070-CV
                           Appellant,
                                               §                   Appeal from
 v.
                                               §                388th District Court
 NORMA REYES,
                                               §             of El Paso County, Texas
                           Appellee.
                                               §               (TC # 2006CM6082)

                                               §

                                         OPINION

       This is an appeal from a final decree of divorce following a bench trial. Miguel challenges

the sufficiency of the evidence to support (1) the appointment of Norma as the joint managing

conservator with the right to determine the primary residence of the child; (2) the monthly child

support awarded; (3) the division of the marital estate; and (4) “reimbursement” to Norma.

                                   FACTUAL SUMMARY

       The couple was married on March 24, 1997 and had three children who at the time of trial

were 15, 14, and 9 years of age. No discovery was conducted during the pending of the divorce

and neither party filed sworn inventories and appraisements of property. This appeal proceeds

without the benefit of findings of fact and conclusions of law. As the petitioner in the court

below, Norma testified first.   Miguel’s counsel asked no questions despite being given an
opportunity for cross-examination. Norma’s counsel rested. Miguel’s attorney rested without

calling a single witness. At that point, Norma’s attorney moved to reopen the evidence and the

trial court granted the request. Counsel called Miguel. The following exchange ensued:

       MR. FLORES: I’ll call Mr. Reyes.

       MR. ROMAN: Your Honor, may I have one minute -- a chance to visit with my
       client?

       THE COURT: Sure.

       MR. ROMAN: May we step outside?

       THE COURT: Yes.

                                                *****

       Recess taken

       MR. ROMAN: I’m sorry, Your Honor. We rest. No witnesses. No testimony.

                                   STANDARDS OF REVIEW

                                         Legal Sufficiency

       When a party challenges the legal sufficiency of the evidence to support an adverse finding

on which he did not have the burden of proof at trial, the party must demonstrate that there is no

evidence to support the adverse finding. Wise v. SR Dallas, LLC, 436 S.W.3d 402, 408

(Tex.App.--Dallas 2014, no pet.); Thornton v. Dobbs, 355 S.W.3d 312, 315 (Tex.App.--Dallas

2011, no pet.). An appellate court will sustain a legal sufficiency or “no-evidence” challenge if

the record shows: (1) the complete absence of a vital fact, (2) the court is barred by rules of law or

evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence

offered to prove a vital fact is no more than a scintilla, or (4) the evidence establishes conclusively

the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). In our

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review, we must credit favorable evidence if a reasonable trier of fact could and disregard contrary

evidence unless a reasonable trier of fact could not. City of Keller, 168 S.W.3d at 827; Wise, 436

S.W.3d at 408. If more than a scintilla of evidence supports the challenged finding, the legal

sufficiency challenge fails. Wise, 436 S.W.3d at 408.

                                         Factual Sufficiency

       A factual sufficiency point requires examination of all of the evidence in determining

whether the finding in question is so against the great weight and preponderance of the evidence as

to be manifestly unjust. In re King’s Estate, 244 S.W.2d at 660; Worsham Steel Co., 831 S.W.2d

at 81. The reviewing court cannot substitute its conclusions for those of the jury. If there is

sufficient competent evidence of probative force to support the finding, it must be sustained.

Carrasco v. Goatcher, 623 S.W.2d 769 (Tex.App.--El Paso 1981, no writ). It is not within the

province of this court to interfere with the jury’s resolution of conflicts in the evidence or to pass

on the weight or credibility of the witness’s testimony. Benoit v. Wilson, 150 Tex. 273, 239

S.W.2d 792 (1951); Reynolds v. Kessler, 669 S.W.2d 801, 807 (Tex.App.--El Paso 1984, no writ).

Where there is conflicting evidence, the jury’s verdict on such matters is generally regarded as

conclusive. Clark v. National Life & Accident Ins. Co., 145 Tex. 575, 200 S.W.2d 820, 821 (1947);

Oechsner v. Ameritrust Texas, N.A., 840 S.W.2d 131, 136 (Tex.App.--El Paso 1992, writ denied).

In a bench trial, findings of fact are the equivalent of a jury answer to the special issues. Associated

Telephone Directory Publishers, Inc. v. Five D’s Publishing Co., 849 S.W.2d 894, 897

(Tex.App.--Austin 1993, no writ); Lorensen v. Weaber, 840 S.W.2d 644 (Tex.App.--Dallas 1992),

rev’d on other grounds sub nom.; Exxon Corp. v. Tidwell, 816 S.W.2d 455, 459 (Tex.App.--Dallas




                                                   3
1991), rev’d on other grounds, 867 S.W.2d 19 (Tex. 1993); A-ABC Appliance of Texas, Inc. v.

Southwestern Bell Tel. Co., 670 S.W.2d 733, 736 (Tex.App.--Austin 1984, writ ref’d n.r.e.).

                                  Abuse of Discretion Standard

       The term “abuse of discretion” is not susceptible to rigid definition. Landon v. Jean–Paul

Budinger, Inc., 724 S.W.2d 931, 934 (Tex.App.--Austin 1987, no writ). The test for an abuse of

discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate

case for the trial court’s action, but whether the court acted without reference to any guiding rules

and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985), cert.

denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986), citing Craddock v. Sunshine Bus

Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (Tex.Comm.App.--1939, opinion adopted). Stated

differently, the appropriate inquiry is whether the ruling was arbitrary or unreasonable. Smithson

v. Cessna Aircraft Company, 665 S.W.2d 439, 443 (Tex. 1984); Landry v. Travelers Insurance

Co., 458 S.W.2d 649, 651 (Tex. 1970). The mere fact that a trial judge may decide a matter

within his discretionary authority in a different manner than an appellate judge in a similar

circumstance does not demonstrate that an abuse of discretion has occurred. Southwestern Bell

Telephone Co. v. Johnson, 389 S.W.2d 645, 648 (Tex. 1965); Jones v. Strayhorn, 159 Tex. 421,

321 S.W.2d 290, 295 (1959).

                       Overlapping Standards in the Family Law Context

       An appeal directed toward demonstrating an abuse of discretion is one of the tougher

appellate propositions. Most of the appealable issues in a family law case are evaluated against an

abuse of discretion standard, be it the issue of property division incident to divorce or partition,

conservatorship, visitation, or child support. While the appellant may challenge the sufficiency


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of the evidence to support findings of fact, in most circumstances, that is not enough. If, for

example, an appellant is challenging the sufficiency of the evidence to support the court’s

valuation of a particular asset, he must also contend that the erroneous valuation caused the court

to abuse its discretion in the overall division of the community estate. In the child support

context, an appellant may challenge the sufficiency of the evidence to support a finding of net

resources, a finding of the proven needs of the child, a finding of voluntary unemployment or

under-employment, or a finding of a material and substantial change in circumstances. Once we

have determined whether sufficient evidence exists, we must then decide whether the trial court

appropriately exercised its discretion in applying the child support guidelines to the facts

established.

       We proceed now to the testimony as it relates to Miguel’s issues for review.

                     RIGHT TO DETERMINE PRIMARY RESIDENCE

       In his first issue, Miguel complains of the sufficiency of the evidence to support a finding

that it is in the children’s best interest for Norma to be awarded the right to determine their primary

residence. In support of his argument, he cites only the Holley factors. Holley v. Adams, 544

S.W.2d 367, 371-372 (Tex. 1976).

       Norma testified that the children were living with her and she asked for primary custody.

She recounted that Miguel visits the children very little and it would be in the children’s best

interest if he became more involved. Miguel’s entire testimony about the children is as follows:

       Q: And you want standard visitation with your children?

       A: I’m hoping I get full custody.

       Q: You want full custody?


                                                  5
       A: Yes, sir.

       Q: How often have you been seeing them lately?

       A: Since I -- recently I’ve been having problems with my current employment.
       Somebody called and complained that I had two jobs. And since I didn’t do
       nothing wrong, they changed my schedule. So right now I’m working seven to
       three.

       Q: Seven a.m. to three p.m.?

       A: Seven a.m. to three p.m. And I’m getting off of there, and going to my other
       job. I’m getting off until six or maybe seven, and working on my days off. And
       before I used to work from 11 to seven, and go to work at the other from eight to
       three.

       Q: So you don’t have any time for the children?

       A: Right now, no. But if I get custody, I’ll quit one job.

        In Texas, we presume that joint managing conservator is in the best interest of the children.

TEX.FAM.C ODE ANN. § 153.131(b).          A party seeking sole managing conservatorship must

present evidence to rebut the presumption. Miguel’s testimony that he wanted “full custody” is

tantamount to a request for sole conservatorship, although he did not plead for that relief. Nor did

he offer any testimony to rebut the presumption. As for the right to designate primary residency,

Miguel’s own testimony demonstrates that he is currently unable to care for the children. His

plan for the future was speculative at best. Norma testified that the children had been living with

her at her residence during the pendency of the divorce while Miguel was living with his mother.

Neither Miguel nor his mother testified to living arrangements for the children, sufficiency of the

bedrooms, proximity to schools, or plans for after school care. We also note Norma’s unrefuted

testimony that Miguel was verbally abusive and repeatedly threatened to call the police for things

she had done of which he did not approve. It is further noteworthy that the trial court granted the


                                                 6
divorce on grounds of cruelty predicated on Miguel’s abuse. Because the evidence was both

legally and factually sufficient, we overrule Issue One.

                           PROPRIETY OF CHILD SUPPORT AWARD

          In his second issue, Miguel complains the evidence is legally and factually insufficient to

support the child support award. Norma is employed cleaning houses. Miguel works for the

Housing Authority and also performs maintenance at Casa Mobile Homes. He admitted earning

between $32,000 and $33,000 annually “plus deductions”. The trial court admitted into evidence

– without objection -- the parties’ 2011 joint federal income tax return. Norma testified that

Miguel had earned $33,214 that year and that none of her income was included in that figure. She

asked the court to base child support on that income and the trial court ordered support in the

amount of $690.

         In his brief, Miguel complains that the trial court abused its discretion in calculating and

ordering payment of child support without evidence of his income independent of Norma’s

testimony. He also chastises the trial court for calculating the award without evidence of his net

income after deductions. He is wrong on both counts.

         The Family Code incorporates the Office of the Attorney General’s revised tax rates.

TEX.FAM.C ODE ANN. § 154.061 (West 2014). Miguel admitted to gross annual income of

$33,214.1 Dividing that number by 12, he has gross monthly income of $2767. Applying the tax
           1




rates, his net monthly income is $2327.00. Because the parties have three children, child support

would properly be based at 30% or $698.                 Because the undisputed evidence supports the



1 Miguel’s brief argues that the 2011 tax return included Norma’s income. Not only did Norma specifically dispute
this, the reporter’s record does not support this assertion. While Miguel said “that’s both incomes”, upon further
questioning by Norma’s attorney, he explained that he worked two jobs and reported both incomes.

                                                        7
calculations performed by the trial court, the support order does not constitute an abuse of

discretion. We overrule Issue Two.

                                        DIVISION OF PROPERTY

          In his third issue, Miguel challenges the trial court’s division of the marital estate.

Specifically, he complains that there was no evidence from which the trial court could determine

the value of his 401K, the value of the residence, the amount of insurance proceeds related to roof

damages, the amount of the income tax refund, and the cost of CHIP.2

                                               Value of the 401K

         Norma did not testify about the 401K arising from Miguel’s employment with the Housing

Authority. Her attorney advised the court that she was seeking one half of the account. Miguel

did not mention it either and he certainly was the party possessing information concerning its

value. Notably, the trial court divided it equally. While the court could not value it based on the

evidence presented, neither could it err in dividing it equally. An equal division would in no way

contribute to a disproportionate division.

                           The Value of the Residence and Insurance Proceeds

        Norma testified that the parties had received insurance proceeds of approximately $4,228

for damage to the roof of the home. Miguel did not use the money to fix the roof and instead

deposited it into his bank account. According to her, the house is getting worse and leaking

because the roof has not been repaired. She introduced into evidence photographs depicting the

damage, including unfinished floors, roof damage, ceiling damage, leaks in the duct work, and

unfinished walls.       When asked whether the home could be sold in that condition, Norma

2 In passim he mentions that the failure to produce evidence of valuation materially affects the amount of money that
Norma should pay him for his interest in, repair and improvements to the house, a matter he neither pled nor produced
evidence to support.
                                                         8
answered no. She asked that the house be awarded to her as well as the insurance proceeds so that

she could proceed with repairs.

        Miguel recalled receiving the insurance money for the roof damage, although he could not

remember the amount. He admitted that the proceeds were in his bank account. He spoke of his

plans to repair the home, but he called them “future plans”. Because he routinely provided

maintenance on mobile homes -- sheet rock, drywall, tile work -- he could do the repairs himself.

But he acknowledged that the house had been in damaged condition for at least six months. He

blamed Norma, claiming that he would “start projects, and then somebody starts yelling at me, and

I just put my tools away.” He did not dispute Norma’s testimony that the house was unsaleable

nor did he offer an opinion of value. The trial court, having the opportunity to review the pictures

of the extensive damage, could have chosen to believe Norma’s testimony that the house had no

equity value until it was repaired. The court awarded the home and one half of the insurance

proceeds for roof damage to Norma.

                                        The IRS Tax Refund

        Norma testified that the parties had received a 2011 income tax refund of $6,400. She

wanted half of it so that she could put it towards additional repairs to the house. Miguel did not

mention the refund. The trial court’s order divided the 2011 and 2012 refunds equally. Miguel

argues that “the evidence was insufficient to support the trial court’s orders for reimbursement to

Norma Reyes from income tax return.” The income tax refund was community property and

subject to division. It was not reimbursement for anything. It happened to be in Miguel’s

possession, and the trial court divided it equally. The 2012 tax return had not yet been filed, but

the court ordered an equal division of the refund, if any.


                                                 9
                                                   Vehicles

         The record reveals that the parties owned four vehicles: a van, a Chrysler sedan, a 2008

Ford Expedition and a 1999 Ford F150 truck. Miguel testified that the van and the Chrysler “ain’t

worth anything right now.” He wanted both the Expedition and the truck. He did not opine as to

value. He admitted the Chrysler belonged to Norma. Norma sought the Chrysler and the truck.

The trial court awarded her the two vehicles she requested, one of which had no value. The other

was nine years older than the vehicle awarded to Miguel.

                                             Personal Property

         Norma asked for the furniture in the home. She agreed that Miguel should receive his

tools and personal belongings, adding that his tools had more value than anything in the home.

                                                   Analysis

        Norma was awarded the home, the Chrysler sedan, the Ford truck, the furniture, one half of

the insurance proceeds for roof repair, one half of the 2011 income tax refund, and one half of

Miguel’s 401K plan. Miguel received the van, the Expedition, his tools and belongings, one half

of the 2011 income tax refund, and one half of his 401K plan. The truck and the Expedition were

the only two functioning vehicles -- according to Miguel -- and each spouse received one vehicle

of comparable size.3 With the exception of the home, the remainder of the property was divided

equally. Given the broad discretion possessed by the trial court, we cannot say that it abused its

discretion in believing Norma’s testimony and photographs that the house had no equity due to the

extensive damage.

        Each party in a divorce proceeding has a responsibility to produce evidence of the value of

various properties to provide the trial court with a basis upon which to make the division. Higgins

3 We reiterate that Miguel asked for both the Expedition and the F150.
                                                       10
v. Higgins, 2000 WL 1757765 *2 (Tex.App.--El Paso, Nov. 30, 2000, no pet.) (No.

08-99-00266-CV ); Wallace v. Wallace, 623 S.W.2d 723, 725 (Tex.Civ.App.--Houston [1st Dist.]

1981, writ dism’d). An appellant who does not provide property values to the trial court cannot

complain on appeal of the trial court’s lack of complete information. Higgins, 2000 WL 1757765

*2; LeBlanc v. LeBlanc, 761 S.W.2d 450, 452–53 (Tex.App.--Corpus Christi 1988), writ denied

per curiam, 778 S.W.2d 865 (Tex. 1989).

           Here, as in Capellen v. Capellen, 888 S.W.2d 539, 543 (Tex.App.--El Paso 1994, writ

denied), Miguel was present at trial and testified. He presented no evidence to contradict the values

offered by Norma nor did he provide the court with his own values. Miguel cannot now complain

on appeal that the values found by the trial court were not supported by sufficient evidence. Id.,

citing Collora v. Navarro, 574 S.W.2d 65, 69 (Tex. 1978); Mata v. Mata, 710 S.W.2d 756, 758

(Tex.App.--Corpus Christi 1986, no writ). We overrule Issue Three.4

                                             REIMBURSEMENT

          We understand Miguel to argue that the trial court erred in “reimbursing” Norma for

unproven costs of CHIP health insurance coverage and the income tax refund. He then conflates

his argument to attack the trial court’s ruling on the basis that it does not qualify as equitable

reimbursement. His arguments far miss the mark. Equitable reimbursement as recognized in

common family law parlance was not an issue before the court.

         Norma testified that she currently had CHIP health insurance and although she did not

know the exact cost, she did have the insurance cards. Miguel did not speak to health care. The



4 Miguel does not argue that the division was disproportionate, only that no evidence of value supports the division.
We have concluded that the evidence supports the division. We further note that a disproportionate division would
not have been an abuse of discretion because the divorce was granted on the basis of cruelty, a finding Miguel does not
challenge.
                                                          11
trial court ordered Norma to continue coverage under a governmental medical assistance program

or health plan for each child. In return, Miguel was to pay Norma medical support, as additional

child support, of $113 per month pursuant to TEX.FAM.CODE ANN. § 154.181 (West 2014). The

parties were also directed to each pay one half of the unreimbursed medical expenses. The statute

mandates that the cost of health insurance coverage for all children may not exceed 9% of the

obligor’s annual resources as described by § 154.062(b). In turn, that statute mandates the

calculation of net resources. As we have explained above, Miguel’s monthly net resources are

$2327.99. Nine percent of this number equals $209.52. The decree orders monthly medical

support of $113. Because Miguel does not challenge the court’s calculation, we overrule Issue

Four. Having overruled all issues presented, we affirm the judgment of the trial court.


December 10, 2014
                                     ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.
(Rivera, J., not participating)




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