“Trial courts have a broad latitude in the division of the marital community property, but that discretion does not extend to a taking of the fee to the separate property of the one and its donation to the other.”
How later courts described this case
- “Trial courts have a broad latitude in the division of the marital community property, but that discretion does not extend to a taking of the fee to the separate property of the one and its donation to the other.”
Written by the judges who cited it.
The opinion
Opinion issued June 5, 2014.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00182-CV
———————————
CURTIS MOORE, Appellant
V.
VERONICA MOORE, Appellee
On Appeal from the 310th District Court
Harris County, Texas
Trial Court Case No. 2011-52535
MEMORANDUM OPINION
In this divorce case, we consider whether the trial court erred in (1)
characterizing appellant’s separate property as community property and including
it in the community property division, thereby causing a property division that was
not just and right; and (1) ordering that the appellant to pay periodic child support
in the amount of $1500 per month. We affirm in part and reverse and remand in
part.
BACKGROUND
Appellant Curtis Moore and appellee Veronica Moore were married on
January 6, 1996 and separated on August 29, 2011. They have one adult daughter
and one fourteen-year-old son. Curtis worked for Halliburton Corporation as a
purchasing supervisor for over 35 years. He was also involved in the real estate
business with his brother since the 1980s.
Veronica filed for divorce on August 31, 2011. Before the separation,
Veronica was not employed, but at the time of trial she was working 30 hours per
week at a shoe store.
After a bench trial, the trial court entered a Final Decree of Divorce that
dissolved the marriage, divided the community property, and determined custody
and child support of the minor child. In the division of real property, the trial court
concluded that 13 pieces of real property or real property interests belonged to the
community and divided them between the parties. In doing so, the court noted
that “CURTIS MOORE owns no separate property that is not part of the
community estate of the parties as described and/or had failed to present sufficient
proof of separate property if he had any,” and “does not own or failed to
2
adequately document ownership of any separate property that is not part of the
community.” The court further noted that “CURTIS MOORE has not been
forthcoming with full disclosure of financial documents.” The trial court also
ordered Curtis to pay $1500 per month in child support. Curtis now brings this
appeal.
JUST AND RIGHT PROPERTY DIVISION
In his first issue on appeal, Curtis contends the trial court’s division of
property was not just and right because (1) separate property was improperly
characterized as community; (2) the evidence is insufficient to support a
reimbursement claim by Veronica; (3) property that belonged to neither spouse
was included in the division; and (4) the trial court’s valuation of certain property
is not supported by the evidence.
Applicable Principles of Law
In a decree of divorce, the trial court must order a just and right division of
the estate of the parties. TEX. FAM. CODE ANN. § 7.001 (Vernon 2006). “Trial
courts can only divide community property, [because] the phrase ‘estate of the
parties’ encompasses the community property of a marriage, but does not reach
separate property.” Pearson v. Fillingim, 332 S.W.3d 361, 363 (Tex. 2011). “Texas
law prohibits courts from divesting spouses of their separate property.” Shanks v.
Treadway, 110 S.W.3d 444, 448 (Tex. 2003).
3
“The trial court has wide discretion in dividing the estate of the parties and
that division should be corrected on appeal only when an abuse of discretion has
been shown.” Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981); see also Garza v.
Garza, 217 S.W.3d 538, 548 (Tex. App.—San Antonio 2006, no pet.). “In
exercising its discretion the trial court may consider many factors and it is
presumed that the trial court exercised its discretion properly.” Murff, 615 S.W.2d
at 699. These factors include: (1) the spouses’ capacities and abilities; (2) benefits
which the party not at fault would have derived from continuation of the marriage;
(3) business opportunities; (4) education; (5) relative physical conditions; (6)
relative financial condition and obligations; (7) disparity of ages; (8) size of
separate estates; (9) the nature of the property; and (10) disparities in earning
capacities and income. Id. “A trial court does not abuse its discretion if there is
some evidence of a substantive and probative character to support the
decision.” Garza, 217 S.W.3d at 549. “Because in family law cases the abuse of
discretion standard of review overlaps with the traditional sufficiency standards of
review, legal and factual insufficiency are not independent grounds of reversible
error; instead, they constitute factors relevant to our assessment of whether the trial
court abused its discretion.” Id.
“Community property does not have to be divided equally, but the division
must be equitable.” Alonso v. Alvarez, 409 S.W.3d 754, 758 (Tex. App.—San
4
Antonio 2013, pet. denied). “A disproportionate division must be supported by
some reasonable basis.” Id. at 758–59.
“Property possessed by either spouse during or on dissolution of marriage is
presumed to be community property.” TEX. FAM. CODE ANN. §3.003(a) (Vernon
2006); see also Garza, 217 S.W.3d at 548. “The degree of proof necessary to
establish that property is separate property is clear and convincing evidence.” TEX.
FAM. CODE ANN. § 3.003(b); see also Garza, 217 S.W.3d at 548. Clear and
convincing evidence is defined as that “measure or degree of proof which will
produce in the mind of the trier of fact a firm belief or conviction as to the truth of
the allegations sought to be established.” TEX. FAM. CODE ANN. § 101.007; see
also Garza, 217 S.W.3d at 548.
“The characterization of property as community or separate is determined by
the inception of title to the property, i.e., when a party first has a right of claim to
the property by virtue of which title is finally vested.” Sink v. Sink, 364 S.W.3d
340, 344 (Tex. App.—Dallas 2012, no pet.). Separate property includes “property
owned or claimed by the spouse before marriage” and “property acquired by the
spouse during marriage by gift, devise, or descent.” TEX. FAM. CODE ANN. § 3.001
(Vernon 2006).
5
Standard of Review
We review the trial court’s characterization of property in a divorce under an
abuse of discretion standard. Raymond v. Raymond, 190 S.W.3d 77, 80 (Tex.
App.—Houston [1st Dist.] 2005, no pet.) (citing Robles v. Robles, 965 S.W.2d 605,
613 (Tex. App.—Houston [1st Dist.] 1998, pet. denied)). We determine the issue
of whether property is separate or community in nature by looking to the facts that,
according to rules of law, give character to the property. Raymond, 190 S.W.3d at
80 (citing McElwee v. McElwee, 911 S.W.2d 182, 188 (Tex. App.—Houston [1st
Dist.] 1995, writ denied)).
A trial court’s findings are reviewable for legal and factual sufficiency by
the same standards used in reviewing the evidence supporting a jury’s
verdict. See Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); Moroch, 174
S.W.3d at 857. In family law cases, however, the abuse of discretion standard
overlaps with the traditional sufficiency of evidence standard of review; as such,
legal and factual sufficiency are not independent grounds of reversible error, but
instead “constitute factors relevant to our assessment of whether the trial court
abused its discretion.” Moroch, 174 S.W.3d at 857 (citing Boyd v. Boyd, 131
S.W.3d 605, 611 (Tex. App.—Fort Worth 2004, no pet.)); Mai v. Mai, 853 S.W.2d
615, 618 (Tex. App.—Houston [1st Dist.] 1993, no writ). To determine whether
the trial court abused its discretion because legally or factually sufficient evidence
6
does not support its decision, we must answer two questions: (1) whether the trial
court had sufficient evidence upon which to exercise its discretion, and (2) whether
the trial court erred in applying its discretion. Moroch, 174 S.W.3d at 857. The
sufficiency of evidence review “comes into play with regard to the first
question.” Id. We must then determine whether, based on the evidence presented at
trial, the trial court made a reasonable decision. Id. To uphold the trial court’s
determination, we must conclude that the decision was neither arbitrary nor
unreasonable. Id. Stated another way, the party challenging the trial court’s
characterization must first establish error by challenging the legal or factual
sufficiency of the evidence to support the property’s characterization and must then
show that because of the mischaracterization, the overall division of the property
was an abuse of discretion. Viera v. Viera, 331 S.W.3d 195, 207 (Tex. App.—El
Paso 2011, no pet.)
Characterization of Certain Properties as Community rather than Separate
Curtis contends that the trial court erroneously characterized as community
property, and awarded to him in the division, three properties that he contends
were already his separate property. In its findings of fact and conclusions of law,
the trial court found that “CURTIS MOORE owns no separate property that is not
part of the community estate of the parties as described and/or failed to present
sufficient proof of separate property if he had any.” We will review the evidence
7
submitted as to each of the challenged properties to determine whether the trial
court erred in its characterization.
692 W. Boundary
The trial court determined that the property located at 692 W. Boundary
Street, Giddings, Texas, was community property, valued the property interest held
by the community to be $56,550, and awarded it to Curtis in the property division.
In her Second Amended Inventory and Appraisement, Veronica listed 692 W.
Boundary Street as a community asset. In his initial Inventory and Appraisement,
Curtis listed 692 W. Boundary as property to be included in the community
property division, without specifically designating it as community or separate. In
the same inventory, Curtis later identifies 692 W. Boundary as his separate
property.1 Curtis’s First Amended Inventory refers to 692 W. Boundary on in the
portion of the inventory in which he lists his separate property. Curtis’s Third
Amended Inventory, which was admitted as an exhibit at trial, again lists 692 W.
Boundary only as a separate asset. Finally, Curtis’s Fourth Amended Inventory,
which was also admitted as an exhibit at trial, also identifies 692 W. Boundary as
his separate property.
At trial, Curtis testified that he was given the property at 692 W. Boundary
in 1990, some six years before he and Veronica were married. The record also
1
Curtis testified at trial that he was initially listing all real property without regards
to characterization.
8
contains a deed showing that Ruth Moore and Irma Moore transferred the property
to Curtis on March 9, 1990. The record also contains information in the
documents that Veronica’s expert provided showing that Curtis obtained the
property by a gift deed in 1990, and that he transferred the property to Michael
Moore in 1995.
Finally, Veronica testified at trial as follows:
Q. In relation to Item 1.4 [the property at 692 W. Boundary], you
would agree with me that your husband actually owned this property
prior to marriage, right?
A. Just the property.
Q. All I asked you about was the property, right?
****
Q. Okay. At some point in time there were apartments built on this
property, true?
A. True.
Q. And when were those built, do you know?
A. No. I don’t know the exact date.
Q. Were they built prior to the marriage or after the marriage?
A. Prior to the marriage.
Later, Veronica was asked, “The property [at 692 W. Boundary] was owned prior
to marriage, correct[?]” to which she responded, “Correct.”
9
Thus, while the trial court had some evidence to support its classification of
the 692 W. Boundary Street property as community, i.e., Veronica’s Second
Amended Inventory and arguably Curtis’s initial Inventory, we note that
Veronica’s assessment of the property is not supported by any documentary
evidence and Curtis’s initial inventory was superseded by amended inventories in
which he clearly identified the property as separate property.
Indeed, we hold that the great weight and preponderance of the evidence
supports the conclusion that Curtis indeed established that the property was
separate. Both Curtis and Veronica testified at trial that Curtis owned the property
before they were married. More importantly, all of the documentary evidence
relating the property, including a real property deed, shows that Curtis acquired the
by gift in 1990. Because there is factually insufficient evidence to support the trial
court’s characterization of the 692 W. Boundary Street property as community
property, the trial court erred by including it in the community property division.
846 W. Austin
The trial court determined that the property located at 846 W. Austin,
Giddings, Texas, was community property, valued the property interest held by the
community to be $11,620, and awarded it to Curtis in the property division.
In her Second Amended Inventory and Appraisement, Veronica listed 846
W. Austin as a community asset. In his initial Inventory and Appraisement, Curtis
10
lists 846 W. Austin only as separate property. Curtis’s First Amended Inventory
lists 846 W. Austin as both community and separate property. Curtis’s Third
Amended Inventory lists 846 W. Austin as both separate and community. Finally,
Curtis’s Fourth Amended Inventory, which was also admitted as an exhibit at trial,
identified 846 W. Austin as both separate and community.
At trial, Curtis testified that he and his brothers, Victor and Michael Moore,
obtained the property at 846 W. Austin in 1985. The record also contains a deed
showing that Curtis, Victor, and Robert Moore purchased the property from Martin
and Norma Halick on July 22, 1985. The record also contains information in the
documents that Veronica’s expert provided showing the deed history of the
property, with the last transfer occurring in 1990.
Finally, Veronica testified at trial as follows:
Q. Page 2 of Petitioner’s 18, Item 1, what property is identified there,
ma’am?
A. 86—846 West Austin, Giddings, Texas.
Q. Okay. And it’s true, is it not that Mr. Moore owned that property
prior to the marriage?
A. Yes.
Again, while the trial court had some evidence to support its classification of
the 846 W. Austin property as community, i.e., Veronica’s Second Amended
Inventory and Curtis’s conflicting inventories, we again note that Veronica’s
11
assessment of the property as community is not supported by any documentary
evidence.
Indeed, we hold that the great weight and preponderance of the evidence
supports the conclusion that Curtis established that the property was separate.
Both Curtis and Veronica testified at trial that Curtis owned the property before
they were married. More importantly, all of the documentary evidence relating the
property, including a real property deed, shows that Curtis and his brothers
acquired the property in 1985. Because there is factually insufficient evidence to
support the trial court’s characterization of the 692 Boundary Street property as
community property, the trial court erred by including it in the community property
division.
Redding Springs Property
In the divorce decree and in the findings of fact and conclusions of law, the
trial court included the property at 6630 Redding Springs, Houston, TX, as
community property. The findings of fact specifically state that the “Court finds
that CURTIS MOORE owns no separate property that is not part of the community
estate[.]” However, in Exhibit A, which is attached to and incorporated into the
Findings of Fact and Conclusions of Law, the Court describes the Redding Springs
property as follows:
12
Lease house at 6630 Redding Springs, Houston, Texas 77086,
separate property of CURTIS MOORE, with the community
reimbursement value of $20,000 awarded to CURTIS MOORE.
We recognize that findings of fact and conclusions of law filed after a judgment
are controlling if there is any conflict between the two documents. Arena v.
Arena, 822 S.W.2d 645, 652 (Tex. App.—Fort Worth 1991, no writ); Bendele v.
Tri–County Farmer’s Co-op, 635 S.W.2d 459, 469 (Tex. App.—San
Antonio),aff’d as modified, 641 S.W.2d 208 (Tex. 1982); Law v. Law, 517 S.W.2d
379, 383 (Tex. Civ. App.—Austin 1974, writ dism’d). However, here there is an
inconsistency within the findings of fact and conclusions of law themselves. In
one portion of the findings, the Redding Springs property is designated as
community, and in Exhibit A, it is described as Curtis’s separate property. The
parties’ briefs are equally confusing as to whether the “reimbursement claim” is to
be awarded to Curtis or to Veronica. Indeed, Veronica’s brief argues that “Mr.
Moore appears to be arguing against an award to himself,” and in another portion
of her brief she states, “If the trial court made any error, it was in awarding Mrs.
Moore $20,000.00 instead of $113,400.00.” It appears to this Court that the trial
court included the Redding Springs property in its community division, but valued
it at only $20,000 in recognition of Curtis’s pre-marriage interest in the property.2
2
At trial, Veronica was asked about the Redding Springs property, and the
following exchange took place:
13
Thus, we will review the sufficiency of the evidence to support the
characterization of the Redding Springs property as community property.
Veronica’s Second Amended Inventory includes the Redding Springs property as
community property. Curtis’s initial inventory list Redding Springs in two places
on his inventory. In its first mention, it is not characterized, but when mentioned
again it is classified as his separate property. In his First Amended Inventory,
Curtis lists Redding Springs only as separate property. The same is true of his
Third and Fourth Amended Inventories. There is also a deed in the record showing
that Curtis obtained the property from the secretary of the Department of Housing
and Urban Development in 1985.
At trial, Curtis testified that he had owned the Redding Springs property
since 1985. Veronica also testified that Curtis owned Redding Springs before
marriage.
Q. And this address, this property that's 1.2, the Redding Springs,
Houston, Texas, did Mr. Moore, you husband, have that prior to your
marriage?
Q. Now this 1.2 property, your proposal is requesting that the Court
only consider $20,000.00 of that value; is that correct?
A. Yes.
Q. So you’re doing that in consideration of your husband having an
interest in it prior to you being married?
A. Yes.
14
A. Yes.
Again, while the trial court had some evidence to support its classification of
the 846 W. Austin property as community, i.e., Veronica’s Second Amended
Inventory and Curtis’s initial inventory, we again note that Veronica’s assessment
of the property as community is not supported by any documentary evidence and
Curtis’s initial inventory was subsequently amended, each time describing Redding
Springs as separate.
Indeed, we hold that the great weight and preponderance of the evidence
supports the conclusion that Curtis established that the property was separate.
Both Curtis and Veronica testified at trial that Curtis owned the property before
they were married. More importantly, all of the documentary evidence relating the
property, including a real property deed, shows that Curtis and his brothers
acquired the property in 1985. Because there is factually insufficient evidence to
support the trial court’s characterization of the Redding Springs property as
community property, the trial court erred by including it in the community property
division.
Abuse of Discretion?
Having concluded above that the evidence is insufficient to support a
characterization of the above-referenced properties as community property, we
must now determine whether the trial court erred in exercising its discretion in
15
dividing the community. When a trial court mischaracterizes separate property as
community property, the error requires reversal if the spouse is divested of the
separate property. See Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 142 (Tex.
1977) (“Trial courts have a broad latitude in the division of the marital community
property, but that discretion does not extend to a taking of the fee to the separate
property of the one and its donation to the other.”).
Here, however, Curtis was not divested of the fee to the separate properties
because they were awarded to him in the division. In such cases, we remand the
entire community estate for a new division only if the trial court’s error materially
affects the trial court’s just and right division of the community estate on the
whole; reversal is not necessary if a mischaracterization of property has only a de
minimis effect on the trial court’s just and right division. See, e.g., Monroe v.
Monroe, 358 S.W.3d 711, 718 (Tex. App.—San Antonio 2011, pet. denied) (“Even
though the jewelry was separate property, we remand the entire community estate
for a new division only if ‘[we] it find[] reversible error in a specific part of the
division that materially affects the trial court’s just and right division of
the entire community estate.’ Reversal is not required if the mischaracterization of
property has only a de minimis effect on the trial court’s just and right division.”)
(quoting Grossnickle v. Grossnickle, 935 S.W.2d 830, 836 (Tex. App.—Texarkana
1996, writ denied) (emphasis added)); Graves v. Tomlinson, 329 S.W.3d 128, 153–
16
54 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (reversing and remanding
for new division when trial court’s mischaracterization of $134,000 in community
property as separate property had “more than a de minimis effect on the trial
court’s just and right division” and “materially affected the court’s just and right
property division”).
Here, the trial court’s findings of fact show that it divided real property
between the parties that had a total value of $455,730. Of this amount, $88,170 of
Curtis’s separate property was erroneously included in the community ($20,000 for
Redding Springs, $56,500 for 692 W. Boundary, and $11,620 for 846 W. Austin).
We cannot say the trial court’s error had a de minimis effect on the trial court’s just
and right division of community property. Therefore, we reverse the trial court’s
property division and remand for a new division that excludes the erroneously
characterized property.
Curtis also complains that 5 other pieces of real property were erroneously
included in the community because neither he nor Veronica possessed an interest
in those properties, and he contends that two items of property were misvalued.
Because we have already found reversible error in the division, we need not
address these claims and decline to do so. The trial court may consider those
issues on remand as well as any reimbursement claims Veronica may have
regarding the properties we have held to be Curtis’s separate property.
17
We sustain Curtis’s first issue on appeal.
CHILD SUPPORT
In his second issue on appeal, Curtis contends the trial court erred in
ordering him to pay periodic child support of $1500 per month. Specifically,
Curtis claims that his gross monthly salary of $8000, plus less than $300 in net
rental income each month, would support a child support award of only $1,273.60
per month.
Standard of Review and Applicable Law
The purpose of child support is to help a custodial parent maintain an
adequate standard of living for a child. Farish v. Farish, 982 S.W.2d 623, 627
(Tex. App.—Houston [1st Dist.] 1998, no pet.) (citing Williams v. Patton, 821
S.W.2d 141, 145 (Tex. 1991)). The determination of the amount of child support to
be paid is left to the discretion of the trial court and will not be disturbed on appeal
absent a clear showing of abuse of discretion. Worford v. Stamper, 801 S.W.2d
108, 109 (Tex. 1990); In re L.R.P., 98 S.W.3d 312, 313 (Tex. App.—Houston [1st
Dist.] 2003, pet. dism’d). A trial court abuses its discretion when it acts without
reference to any guiding rules and principles. Worford, 801 S.W.2d at
109; McGuire v. McGuire, 4 S.W.3d 382, 384 (Tex. App.—Houston [1st Dist.]
1999, no pet.). Sufficiency challenges are not independent points of error in the
child-support context, but are “incorporated into an abuse of discretion
18
determination.” McGuire, 4 S.W.3d at 387 n.2; see Newberry v. Bohn–
Newberry, 146 S.W.3d 233, 235 (Tex. App.—Houston [14th Dist.] 2004, no pet.).
We employ a two-pronged inquiry in such cases: (1) whether the trial court had
sufficient information upon which to exercise its discretion; and (2) whether the
trial court erred in its application of discretion. Moreno v. Perez, 363 S.W.3d 725,
735 (Tex. App.—Houston [1st Dist.] 2011, no pet.). A trial court does not abuse its
discretion when there is some evidence of a substantive and probative character to
support its order. Newberry, 146 S.W .3d at 235.
In determining a child-support award, section 154.062 of the Texas Family
Code requires a court to calculate “net resources” for the purpose of determining
child-support liability. TEX. FAM. CODE ANN. § 154.062(a). “Courts may calculate
net resources on ‘imprecise information,’ and the trial court has “broad discretion
in setting child support.” Ayala v. Ayala, 387 S.W.3d 721, 727 (Tex. App.—
Houston [1st Dist.] 2011, no pet.). “Net resources” include all wage and salary
income, self-employment income, and all other income received. TEX. FAM. CODE
ANN. § 154.062(b). The obligor is required to furnish information sufficient to
accurately identify his net resources and ability to pay child support. In re
N.T., 335 S.W.3d 660, 666 (Tex. App.—El Paso 2011, no pet.); Garner v.
Garner, 200 S.W.3d 303, 306 (Tex. App.—Dallas 2006, no pet.); see TEX. FAM.
CODE ANN. § 154.063. “‘There must be some evidence of a substantive and
19
probative character of net resources’ in order for the court to discharge its duty
under section 154.062.” Miles v. Peacock, 229 S.W.3d 384, 389 (Tex. App.—
Houston [1st Dist.] 2007, no pet.) (quoting Newberry, 146 S.W.3d at
236); Ayala, 387 S.W.3d at 727.
The trial court is not required to accept the obligor’s evidence of income and
net resources as true. In re N.T., 335 S.W.3d at 666; Hardin v. Hardin, 161 S.W.3d
14, 23 (Tex. App.—Houston [14th Dist.] 2004, no pet.), judgm’t vacated, op. not
withdrawn, No. 14–03–00342–CV, 2005 WL 310076 (Tex. App.—Houston [14th
Dist.] Feb. 10, 2005, no pet.). Instead, the trial court may properly determine that
an obligor has higher net resources based on testimony by the obligee and other
evidence in the record. In re N.T., 335 S.W.3d at 666.
Analysis
As the obligor, Curtis bore the burden to present sufficient information of his
net resources and ability to pay child support. Curtis’s 2011 W-2 showed that his
gross wages that year were $95,999.49, or approximately $8,000 per month. Curtis
testified that this amount was inflated because he received a one-time bonus of
$5,000, which he claimed he was not eligible to receive again. While there are
documents purporting to be 2012 pay statements in the record that show a monthly
salary of less than $8,000, these statements do not address the issue of whether
20
Curtis was entitled to receive any sort of bonus, and the trial court could have
concluded that Curtis’s W-2 accurately reflected his gross salary.
Regarding Curtis’s rental incomes, he claimed to have netted only $388.40
per month on his rental properties. In support, he points to his 2010 tax return, in
which he claimed net rental income for the year in the amount of only $288.17 per
month. He bases his insurance, repair, and taxes on the amounts indentified in his
2010 tax return, but was is no other documentary evidence of liabilities and
expenses at the time of trial. There was also testimony that Curtis received $800
per month for the Redding Springs property, $9,600 per year for the apartments at
692 W. Boundary (in another portion of the testimony, Curtis stated he was
receiving $645 per month for each apartment), and $525 per month for the rental of
886 W. West Austin. Curtis was also providing an apartment to his mother rent
free. Based on the scarcity of documentary evidence regarding income and
expenses of Curtis’s rental properties, the trial court could have disbelieved his
testimony that he earned only $388 per month in net rental income, especially in
light of the trial court’s unchallenged finding that “CURTIS MOORE has not been
forthcoming with full disclosure of financial documents.” The credibility of
witnesses in a divorce action is solely under the purview of the trial court, not the
appellate court. Zagorsky v. Zagorsky, 116 S.W.3d 309, 318 (Tex. App.—Houston
[14th Dist.] 2003, pet. denied).
21
Based on this testimony and evidence, the trial court ordered $1500 in
monthly child-support payments, which corresponds to an implied finding that
Curtis had at least $7500 in monthly net resources pursuant to the standard child-
support award schedule. See TEX. FAM. CODE ANN. § 154.125 (providing that the
court shall presumptively order that an obligor pay 20% of monthly net resources
in child support for one child). Because the determination of the child-support
award was supported by the testimony of the parties and the documents introduced
at trial, the trial court’s decision was supported by some evidence of a substantial
and probative character. See In re N.T., 335 S.W.3d at 666–67 (holding that given
appellant’s failure to produce documents of his earnings, the trial court was within
its discretion in basing its net resources determination on the conflicting testimony
of the parties). Accordingly, the trial court did not abuse its discretion in its
determination of the amount of child support.
We overrule Curtis’s second issue.
22
CONCLUSION
Because we cannot say the trial court’s error in mischaracterizing separate
property had a de minimis effect on the trial court’s just and right division of
community property, we reverse the trial court’s property division and remand for
a new division. We affirm the remaining portions of the judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown.
23