In re Marriage of Lewis, 06-19-00046-CV

IN THE MATTER OF THE MARRIAGE OF ANGELA LYNN LEWIS AND MARTIN PAUL LEWIS

No. 06-19-00046-CV

Court of Appeals Sixth Appellate District of Texas at Texarkana

Date Submitted: December 9, 2019

January 3, 2020

On Appeal from the County Court at Law Bowie County, Texas

Trial Court No. 18-D-0158-CCL

Before Morriss, C.J., Burgess and Stevens, JJ.

Memorandum Opinion by Justice Burgess MEMORANDUM OPINION

As a result of Angela Lynn Lewis's petition for divorce from her husband, Martin Paul Lewis, the trial court granted a "no-fault" divorce in accordance with Section 6.001 of the Texas Family Code. See TEX. FAM. CODE ANN. § 6.001. In dividing community property, the trial court (1) awarded each party their own retirement accounts and two horses, (2) awarded Martin a Ford Fusion and the "cheaper of the two horse trailers," (3) awarded Angela a "2007 truck" and the "more expensive of the two horse trailers," and (4) assigned responsibility for any debts associated with the property they were awarded. In addition, the trial court found Martin responsible for Internal Revenue Service (IRS) debt associated with early withdrawals from his retirement account, which he secreted from Angela and failed to report on their joint tax return. However, the court ordered the parties to split the fees for the certified public accountant (CPA) who assisted Angela in receiving innocent spouse relief from the IRS.

On appeal, Angela argues that the trial court erred in failing to enter findings of fact and conclusions of law and that its division of community property was inequitable because (1) Angela should have received half of the remaining balance of Martin's retirement account since he made early withdrawals from the account, (2) Martin should have been required to pay all of the CPA's fees, (3) Angela should have been awarded the Ford Focus, and (4) the trial court should have found Martin liable for tax delinquencies for every year of their marriage. We find that the lack of findings of fact and conclusions of law did not result in harmful error and that the trial court's division of community property was not an abuse of discretion. Accordingly, we affirm the trial court's judgment.

I. The Evidence at Trial

Martin and Angela married in 2004. In 2011 or 2012, Martin retired from his job at Fay-J Packaging, where he had worked since approximately 1987. At the time of his retirement, the value of his retirement annuity was $234,000.00. Unbeknownst to Angela, Martin began withdrawing sums from his retirement account to pay for rent, pay a $15,000.00 loan and other debts, build a barn, buy horses, and purchase pest control equipment to start his own business. Martin testified that he continued to withdraw money even when he was working because he could not cover the bills. Angela testified that Martin transferred hundreds of dollars into their joint account to pay household bills and expenses associated with the care of their four horses. Angela also testified that Martin built a barn on property that they were renting, which cost $2,300.00 in materials. By the time of trial, Martin had drawn his retirement account "down to about [$]50,000."

Martin admitted that he hid the withdrawals from his retirement account from Angela, that he did not report them on joint tax returns for several years, and that as a result, the parties owed the IRS approximately $20,000.00. Although their tax returns were always filed jointly, Angela testified that she had never signed a tax return since the beginning of their marriage. Angela also testified that she was shocked when she discovered notices of deficiencies from the IRS for 2008, 2012, and 2014.

After their separation in 2017, Angela met with Robby Selph, a CPA, who filed for and obtained innocent spouse status from the IRS for Angela for 2008, 2012, and 2014. Selph testified that Angela also received a deficiency notice for tax year 2015 and was in the process of obtaininginnocent spouse status for that year. He informed the trial court of a proposed delinquency for 2016, which had not yet been assessed, and said that Angela would file her 2017 tax return separately. Angela's bill for Selph's services was $3,000.00, and she testified that she wished for Martin to pay those fees.

Although Selph testified that Angela received no benefit from the funds withdrawn from Martin's retirement account, the evidence from Martin and Angela showing that Martin contributed to household bills showed otherwise. In addition to that evidence, Martin also testified that he sent money to Angela after their separation for horse feed, shoeing, and veterinarian bills for the horses, including one bill totaling $2,000.00. Angela admitted that Martin was no longer living in their rental home and that she was benefitting from the barn on the rental property. Notably, there was no evidence showing that the $180,000.00 withdrawn from the retirement account benefited Martin's separate estate as opposed to the community estate.

Angela asked the trial court to award her one-half of the balance in Martin's retirement account after he paid the IRS deficiencies. Angela also testified that she had worked during the entire marriage and that taxes were withdrawn from her paycheck. There was no testimony as to whether Martin or Angela made more money or who had accrued more money in their retirement accounts. She was employed by DeKalb Physicians Clinic for the past three and a half years, had worked for Dr. Michael Saldino for six years before that, and was employed by other doctors and James Bowie Independent School District before that.

When asked about division of other property, Martin testified that he would like to have one of the vehicles that was parked on the rental property occupied by Angela, one of the twohorse trailers, and horses Deacon and Boss.¹ When asked about the vehicles parked on the rental property, Angela testified that there was a Ford Fusion and a Dodge truck, prompting the following discussion:

Q. You said you have a Ford truck. What model is it?

A. Mine is a Dodge.

Q. A Dodge truck, I'm sorry.

A. Mine is a '07.

Q. 2007 truck?

A. Yes.

In dividing the community property, the trial court provided its ruling and the basis for its ruling in open court, as follows:

With regards to the division of the marital estate -- let me address the tax liability first and Mr. Selph's testimony with regards to the innocent spouse claims that have been granted by the IRS to the petitioner for the years '08, '12 and '14. There's no reason before the Court to believe that that will not be the case for '15 and '16. So, with regards to tax years '15 and '16, the respondent will be solely responsible for any IRS issues for those two tax years. With regards to '17, Mr. Selph indicated that those tax returns have not been filed yet. Each party will be responsible for their own tax liability for 2017.

Now, with regards to the two vehicles, there [is] little or no evidence with regards to those. The Court is going to award the '07 truck to the petitioner, and the Ford Fusion to the respondent. With regards to the horse trailers, if there's two horse trailers, the respondent will be ordered -- awarded the cheaper one and his tack. Boss will be the separate property of the respondent.

. . . .. . . . With regards to the other three horses, the Court is going to award the two unnamed horses to the petitioner, and Decon to the respondent.

The Court is going to award each party the retirement benefits that they've accumulated individually throughout the marriage. . . . Other than that, the Court is going to award each party the property they have in their possession along with any debts associated therewith. Each party will be responsible for any debts or other financial obligations he or she may have incurred since the date of separation. . . . Each party will be responsible equally for one[-]half of that, split -- split the $3,000 Selph debt.

Angela appeals.

II. The Lack of Findings of Fact and Conclusions of Law Is Not Harmful Error

Angela argues that the trial court erred in failing to issue findings of fact and conclusions of law. The record shows that Angela timely requested findings and timely filed a notice of past due findings. We have held that "[f]ollowing a proper request and reminder, it is mandatory for a trial court to make and file findings of fact and conclusions of law." Culver v. Culver, 360 S.W.3d 526, 538 (Tex. App.—Texarkana 2011, no pet.) (quoting In re Grossnickle, 115 S.W.3d 238, 253 (Tex. App.—Texarkana 2003, no pet.)). Therefore, "[f]ailing to file findings of fact and conclusions of law was error." Id.

However, the error was not harmful. "Although 'harm to the complaining party is presumed unless the contrary appears on the face of the record,' a trial court's 'failure to make findings is not harmful error if "the record before the appellate court affirmatively shows that the complaining party suffered no injury."'" Id. (quoting Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996) (per curiam) (quoting Cherne Indus. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989); Las Vegas Pecan & Cattle Co. v. Zavala Cty., 682 S.W.2d 254, 256 (Tex. 1984)). "When the trialcourt announces its reasons for its ruling in open court, the appellant's ability to present the appeal is not harmed because there was no need to guess the reasons for the trial court's adverse ruling." Id.

Here, the trial court announced its reasons for the disposition in open court, and we find that those statements provide the basis for its ruling. In short, we are not forced to guess the trial court's reasoning. As a result, we find that the trial court's error was not harmful. See id.

III. The Trial Court's Division of Community Property Was Not an Abuse of Discretion

A. Standard of Review

The division of community property need not be equal. Matter of Marriage of Mozley, No. 06-16-00004-CV, 2016 WL 4256926, at *3 (Tex. App.—Texarkana Aug. 12, 2016, no pet.) (mem. op.)....