Puente v. Puente

GUILLERMO ORESTES PUENTE, Appellant v. ALICIA MARIE PUENTE, Appellee

NO. 01-19-00952-CV

Court of Appeals For The First District of Texas

April 15, 2021

On Appeal from the 245th District Court Harris County, Texas

Trial Court Case No. 2018-17611

MEMORANDUM OPINION

Guillermo Orestes Puente appeals from a final decree of divorce. After a bench trial, the trial court granted Alicia Marie Puente's petition for divorce, divided the marital estate, imposed child support obligations on Guillermo¹, and permanently enjoined Guillermo from committing certain acts against Alicia and their minor children. In four issues, Guillermo contends that the trial court erred in finding him intentionally underemployed and setting his child support obligation above the statutory guidelines, mischaracterizing and distributing property, and permanently enjoining him from committing acts unsupported by the record.

We affirm the trial court's judgment as modified.

Background

Guillermo and Alicia married and they had two children. In March 2018, Alicia petitioned for divorce from Guillermo, citing adultery and insupportability as the grounds for divorce.

At trial, Guillermo testified about his education and employment history. He held an MBA from the University of Houston-Victoria. He enrolled in a Ph.D. program. Although he had finished his coursework, Guillermo needed to complete his dissertation. He was a self-employed real estate broker and an e-commerce professor at Lone Star College. He stopped teaching shortly before trial to work on his dissertation. Guillermo presented evidence of his total business income.

Alicia testified about her reasons for divorcing Guillermo, including his cruel behavior and affair with Alicia's sister, J. Owen. Alicia and Guillermo had agreed to allow Owen to live with them. Alicia invited Owen into their home to help Owen finish college and establish a relationship with Alicia and Guillermo's children. After Owen moved in, Alicia and Owen often argued about the house rules and Alicia's "motherly" behavior towards Owen. Their relationship began to crumble, and their communication stopped.

According to Alicia, Owen no longer wanted to spend time with her. Rather than spend time with Alicia, Owen spent late nights at the gym with Guillermo several times a week. Alicia began suspecting that Owen and Guillermo were having an affair because of the time they were spending together and because Alicia found makeup on his shirt. Alicia often confronted Guillermo about her concerns, and he denied having an affair each time. These confrontations would turn into "heated" and violent arguments. Alicia explained that she stopped accusing Guillermo of cheating in fear that he would become abusive and inflict bruises on her, which had happened in the past. She also testified in detail about abuse against her and the children.

The trial court granted the divorce on grounds of adultery and cruelty committed by Guillermo and entered the final divorce decree in October 2019. The trial court made a finding that "the presumption of joint managing conservatorshipis rebutted though a finding of family violence in the 280th Judicial District Court, Harris County, Texas" and appointed Alicia sole managing conservator of the children. It appointed Guillermo possessory conservator and ordered him to pay $763 in monthly child support. The trial court determined that Guillermo was intentionally underemployed and applied the child support guidelines to Guillermo's earning potential, as opposed to his actual earnings:

The Court finds GUILLERMO ORESTES PUENTE is intentionally underemployed by working a free internship rather than earning income and no evidence was presented by [Guillermo] to what his suppressed income was; therefore, based on the evidence, self-employment guideline is ordered.

The trial court also ordered Guillermo to pay 75% of Alicia's 2018 tax liability, awarded a 60% share of the marital estate to Alicia, and permanently enjoined Guillermo from committing certain conduct against Alicia and the children.

Guillermo appealed.² He filed an appellate brief but Alicia did not. Even though Alicia did not file a brief, we have an independent duty to review the merits of the issues on appeal to determine whether reversal of the trial court's ruling is warranted. See Yeater v. H-Town Towing LLC, 605 S.W.3d 729, 731 (Tex. App.—Houston [1st Dist.] 2020, no pet.); Sullivan v. Booker, 877 S.W.2d 370, 373 (Tex.App.—Houston [1st Dist.] 1994, writ denied) (failure to respond to appellants' brief does not automatically "entitle appellants to a reversal").

Child Support

In his first issue, Guillermo asserts that the evidence is legally and factually insufficient to support the trial court's finding that he was intentionally underemployed or "that he could earn more than his actual, proven income." He also asserts that Alicia failed to carry her burden of showing that he is intentionally underemployed because she presented no evidence to support the trial court's intentional underemployment finding.

A. Standard of review

"A court's order of child support will not be disturbed on appeal unless the complaining party can show a clear abuse of discretion." Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam); Reddick v. Reddick, 450 S.W.3d 182, 187 (Tex. App.—Houston [1st Dist.] 2014, no pet.). A trial court abuses its discretion when its decision is arbitrary, unreasonable, or without reference to guiding rules or principles. See Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); Keith v. Keith, 221 S.W.3d 156, 169 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). A trial court's failure to "analyze or apply the law correctly willconstitute an abuse of discretion." Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).

To determine whether the trial court abused its discretion because the evidence is legally or factually insufficient to support the trial court's decision, we consider whether the trial court (1) had sufficient evidence on which to exercise its discretion, and (2) erred in its application of that discretion. Reddick, 450 S.W.3d at 187. We conduct the applicable sufficiency review when considering the first prong of the test. Id. We then determine whether, based on the evidence, the trial court made a reasonable decision. Id. A trial court does not abuse its discretion if there is some evidence of a substantive and probative character to support the decision. Id.

B. Applicable law

The Texas Family Code establishes guidelines for the trial court to determine an equitable amount of child support. See TEX. FAM. CODE § 154.121. These statutory guidelines are presumed to be in the best interest of the child, but that presumption is rebuttable, and the trial court "may determine that the application of the guidelines would be unjust or inappropriate under the circumstances." Id. § 154.122. If it does so and the evidence rebuts the presumption that applying the guidelines is in the best interest of the child, the trial court may order payments in an amount other than that established by the guidelines. Id. § 154.123(a). If the courtdeviates from the statutory guidelines, then the law requires the trial court to state its reasons for making such findings. Id. § 154.130(b)(4).

Parties must supply the court with proof of their financial status covering at least the last two years. Id. § 154.063. The trial court then reviews the obligor's net resources, including wage and salary income and self-employment income. Id. § 154.062(b). "If the actual income of the obligor is significantly less than what the obligor could earn because of intentional unemployment or underemployment, the court may apply the support guidelines to the earning potential of the obligor." Id. § 154.066(a).

In calculating child support, the trial court must "engage in a case-by-case determination to decide whether child support should be set based on earning potential as opposed to actual earnings." Iliff v. Iliff, 339 S.W.3d 74, 82 (Tex. 2011). After the obligor has furnished the court with evidence supporting his or her current wages, the burden shifts to the obligee to show that the obligor is intentionally unemployed or underemployed. Id. The burden then shifts back to the obligor to offer rebuttal evidence. Id.

C. Intentional underemployment

Guillermo produced copies of tax returns from his real estate business for tax years 2016, 2017, and 2018. He also introduced copies of Form W-2s from LoneStar College for the same tax years. Guillermo's 2017 tax documents showed he earned $37,938 in real estate profits and $8,901³ from Lone Star College.

Guillermo testified that he only had two jobs and that he quit teaching because he needed to concentrate on his dissertation for his doctoral program. Alicia adduced testimony from Guillermo about his employment at a law firm. At first, Guillermo denied that he worked at a law firm at the time of the trial:

Counsel: Isn't it true that you also work at a law office?

Guillermo: I don't.

Counsel: Did you ever?

Guillermo: At one point, yes.

Counsel: When did you work there?

Guillermo: This may be 2015.

Counsel: Okay. Well, in 2018—or if you pull this up right now, this Ajmandi [sic] Law Office is still showing you as the business director, does it not?

Guillermo: I wouldn't recall that.

Guillermo later admitted that he volunteered at the law firm:

Counsel: Okay. Well, the truth is you work there as a business director as we speak, correct?

Guillermo: I volunteer there.

He then changed his testimony and denied working at the law firm:

Counsel: You work at this law office as a business director, don't you?

Guillermo: I don't work there.

Guillermo eventually admitted to volunteering at the law firm and provided reasons for doing so:

Counsel: So, why are you spending your time volunteering when you could be working more?

Guillermo: He's a marketing

...