Guillermo Quijano Jr. v. Quijano

347 S.W.3d 345

Guillermo QUIJANO Jr., Appellant,

v.Marita QUIJANO, Appellee.

Nos. 14–09–01074–CV

14–10–00567–CV.

Court of Appeals of Texas, Houston (14th Dist.).

July 28, 2011.

Carl J. Selesky, Sara Razavi, Houston, for appellant.Martha Bourne, Jeremy Patrick Heallen, Houston, for appellee.Panel consists of Justices BROWN, BOYCE, and JAMISON.

OPINION

MARTHA HILL JAMISON, Justice.

In these companion appeals, appellant Guillermo Quijano, Jr. challenges (1) a final decree of divorce, dissolving his marriage to appellee Marita Quijano and dividing their marital assets; and (2) an amended Qualified Domestic Relations Order (QDRO) issued by the trial court to effect a lump sum child support obligation. Respecting the final decree, Guillermo raises a single issue contending that the trial court did not have sufficient evidence of the value of the marital estate to render a just and right division of the property. Respecting the QDRO, Guillermo raises a single issue contending that the trial court's order was void as a matter of law because it altered the division of property contained in the decree. We overrule both issues and affirm both the decree and the order.

I. Background

Guillermo and Marita were married on September 23, 1993. They had one child together. Marita filed for divorce on April 10, 2009. Although Guillermo was served with the lawsuit shortly thereafter, he never filed an answer. At the default judgment hearing on September 25, 2009, Marita offered into evidence a proposed division of marital property and an unsworn inventory, as well as supporting documentation for the figures contained therein. She also presented her own testimony in support of her proposed division. Marita's proposed division valued the entire marital estate (community assets minus community liabilities) at $395,686.39. In the document, it was further proposed that Guillermo be awarded assets and liabilities totaling $109,793.15, and Marita be awarded assets and liabilities totaling $285,893.24.

In the final decree of divorce, signed September 25, the trial court dissolved the marriage between the parties, resolved possession and access issues dealing with the only child of the marriage, and substantially adopted Marita's proposed division of the marital assets. The court specifically awarded the marital home to Marita as well as various accounts and personal property, including the entirety of a Bank of America checking account. To Guillermo, the court awarded property in the Philippines as well as various accounts, including a Chase business checking account, a vehicle, and his business. The court also assigned various liabilities to each of the parties.

Regarding the 2008 and 2009 tax years, the court ordered the parties to file separate federal income tax returns listing only their respective individual earnings. This ruling further made it clear that each party was responsible for any tax liability resulting from their separate returns, and each would be entitled to any refund on said returns. The court further ordered each party to indemnify the other for any tax liability associated with the individual's tax returns for those years.

Additionally in the decree, the court found that a lump sum award of child support was appropriate under the circumstances of the case. For that express purpose, the court ordered that Marita receive $89,929.78, to be derived from three community property retirement accounts in Guillermo's name. The accounts in question were (1) a Roth Individual Retirement Account with TD Ameritrade, (2) a retirement plan with ING, and (3) a 401 K savings plan (designated “RCG Information Technology, Inc. 401 K Savings Plan”) with The Prudential Insurance Company. At the same time as the final decree, the court issued two QDROs to effect the lump sum child support award. One of the QDROs was addressed to the ING account, and one was addressed to the Prudential account.¹ In both, the child was named as “Alternate Payee” and funds were to be transferred out of Guillermo's retirement accounts and into an account bearing the child's name. Regarding taxation of withdrawals, both stated: “Alternate Payee [the child] and Respondent [Guillermo] are each responsible for the appropriate taxability of distributions made to them, and are hereby ORDERED to report any distributions which either of them may receive on their respective federal income tax returns for the year received.”

On October 23, 2009, Guillermo timely filed a motion for new trial. The trial court denied the motion but reformed the judgment to make it consistent with Marita's pleadings regarding conservatorship of the child.

Subsequently, the court issued an amended QDRO on March 17, 2010. This amended QDRO addressed only the Prudential account.² It again named the child as “Alternate Payee” and ordered funds transferred into an account bearing his name. Regarding taxes, however, the amended QDRO stated as follows: “The Respondent [Guillermo], who is the Participant in the Plan referred to herein, shall be responsible for the taxability of any distribution to the Alternate Payee [the child] and is hereby ORDERED to report such distribution on his Federal Income Tax Return for the year in which it is received.” Additionally, the amended QDRO provides that if the child, as Alternate Payee, were to die before receiving his full share of the funds, his designated beneficiaries would be paid a lump sum cash payment in the amount of the remaining funds. We will first address Guillermo's contentions regarding the final decree; we will then discuss his contentions regarding the amended QDRO.

II. Appeal From Final Decree

In his appeal from the divorce decree, Guillermo raises a single issue contending that the division of the community estate contained in the decree should be reversed and remanded because the trial court did not have sufficient evidence at the default judgment hearing to effect a just and right division of the property. Specifically, Guillermo challenges the court's rulings in regard to four items, contending that: (1) the statements used to establish the values in a Chase bank account were too old; (2) the amount awarded from a Bank of America account was different than what the bank statement indicated was in the account; (3) the court improperly included estimated closing costs in valuing real property owned by the parties and granted to Marita; and (4) the court erred in dividing the community estate without knowing the value of the parties' tax liabilities for 2008 and 2009. We will discuss each item in turn.

A. Standards of Review

The Texas Family Code requires the trial court in a divorce proceeding to “order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.” Tex. Fam.Code § 7.001. We review a trial court's division of property under an abuse of discretion standard. Swaab v. Swaab, 282 S.W.3d 519, 524 (Tex.App.-Houston [14th Dist.] 2008, pet. dism'd w.o.j.). A trial court has wide discretion in making a just and right division. Walston v. Walston, 119 S.W.3d 435, 438 (Tex.App.-Waco 2003, no pet.) (citing Cockerham v. Cockerham, 527 S.W.2d 162, 173 (Tex.1975)). To convince an appellate court to disturb a trial court's property division, an appellant must show that the court below clearly abused its discretion by a division or an order that is manifestly unjust and unfair. Sharma v. Routh, 302 S.W.3d 355, 360 (Tex.App.-Houston [14th Dist.] 2009, no pet.).³ Assessments of the legal and factual sufficiency of the evidence are not independent grounds for reversal, but they are relevant factors in assessing whether the trial court abused its discretion. Id.

The value of community assets is generally determined as of the date of divorce or as close to that date as possible. Van Heerden v. Van Heerden, 321 S.W.3d 869, 880 (Tex.App.-Houston [14th Dist.] 2010, no pet.). If an appellate court determines that there is reversible error affecting the “just and right” division of the community estate, the court must remand the entire community estate for a new division. Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex.1985); Fischer–Stoker v. Stoker, 174 S.W.3d 272, 282 (Tex.App.-Houston [1st Dist.] 2005, pet. denied).

B. Chase Bank Account

In the decree, the court awarded Guillermo the entirety of a business checking account at Chase Bank. Marita's inventory and proposed division of property indicated that this account contained a balance of $15,651.18. Guillermo complains on appeal that the documentation Marita provided to support this number, an account statement from Chase, was dated almost six months prior to the date of the default judgment hearing. The statement was dated March 31, 2009, and the hearing occurred on September 25, 2009. According to Guillermo, the staleness of this evidence prevented the trial court from effecting a just and right division of the marital estate.

As mentioned above, the value of community assets should generally be determined as of the date of divorce or as close to that date as possible. See Van Heerden, 321 S.W.3d at 880. That does not necessarily mean, however, that the trial court could not use figures from a six-month-old statement when that was the best evidence presented to the court regarding that account. Despite being served with the lawsuit, Guillermo did not appear and present his own evidence. Had he participated in the proceedings, he could have presented a more contemporaneous statement. The six-month gap by itself did not render the evidence insufficient to support the trial court's assessment of value in the Chase checking account and did not render the court's division of property manifestly unjust and unfair. Cf. Handley v. Handley, 122 S.W.3d 904, 908 (Tex.App.-Corpus Christi 2003, no pet.) (finding no abuse of discretion where court adopted figures from appraisal...