Touponse v. Touponse

GEORGE TOUPONSE, Appellant v. SUSAN TOUPONSE, Appellee

No. 02-20-00285-CV

Court of Appeals Second Appellate District of Texas at Fort Worth

July 1, 2021

On Appeal from the 324th District Court Tarrant County, Texas

Trial Court No. 324-654417-19

Before Kerr, Womack, and Walker, JJ.

Memorandum Opinion by Justice Walker MEMORANDUM OPINION

After the trial court entered a final divorce decree that ended the marriage between appellant George Touponse and appellee Susan Touponse and that divided the community estate, George appealed and challenged portions of the trial court's property division. Specifically, he argues that two real-property awards were abuses of discretion because the trial court improperly characterized them as part of the community estate. We conclude that the trial court improperly characterized the real properties because they were owned by a limited-liability company, not the parties. Because that mischaracterization materially affected the trial court's division, we reverse that portion of the trial court's final divorce decree that divided the community estate and remand the entire community estate for a new division.

I. BACKGROUND

George and Susan married in December 1993 and primarily lived in Connecticut. Susan moved to Texas in April 2018 to take a job at a Fort Worth private school. George, who had founded and operated several home-construction businesses in Connecticut during the marriage, stayed in Connecticut. George told Susan that he wanted to leave Connecticut and that he would move to Texas in 12 to 18 months after he sold "things, properties." George never moved and eventually stopped sending Susan money.

On January 14, 2019, Susan filed a petition for divorce in Texas, seeking a just-and-right division of the community estate; George answered but did not challengethe trial court's personal jurisdiction over him. See Tex. Fam. Code Ann. §§ 6.301, 6.305; Tex. R. Civ. P. 120a.1, 121; see also Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703 (1982) (recognizing personal-jurisdiction requirement is a waivable right). On October 28, the trial court set the case for a December 11 trial. Mediation was unsuccessful.

On December 3—eight days before trial—George's father and his company, GGT Properties Inc., filed a lawsuit in Connecticut against three of George's businesses: Long Horizon Development, LLC; Bella Vista Associates, LLC; and Touponse Enterprises, Inc. In the suit, George's father and GGT alleged that, "[b]etween June of 2011 and 2019," GGT leased equipment to Long Horizon, Bella Vista, and Touponse Enterprises, with the understanding that the rents would be paid "on a running account." They alleged that the three companies owed, in total, $770,644 in unpaid rent.¹

Two days later on December 5, George filed a counterpetition for divorce, asking for a just-and-right division of the community estate if a division agreement could not be reached. See Tex. Fam. Code Ann. § 7.006. On December 6, George moved to continue the December 11 trial on the basis of the Connecticut lawsuit. The trial court denied the continuance motion on December 9. On December 10,Susan amended her petition, continuing to request a just-and-right division but asking that the Connecticut lawsuit "be the sole responsibility" of George because the suit had been "filed very late in this action."

At the December 2019 bench trial, the main issues between the parties were property related. Susan's financial expert, Thomas Stewart, calculated the fair-market value for the community-ownership interest in six entities: (1) Long Horizon; (2) Touponse Enterprises; (3) Ashford Woods, LLC; (4) Bella Vista; (5) T4 Holdings, LLC; and (6) Twin Farms, LLC. Stewart testified that the unpaid-rents claim in the Connecticut suit was "unusual" because (1) George had never mentioned that equipment rentals were overdue when George had led Stewart in an on-site observation of the entities and their assets and (2) the rentals were not reflected in the entities' corporate tax returns even though the rental payments "alleged to be owed go back several years." Susan proffered as an exhibit the equipment lease between GGT and Touponse Enterprises, which George and George's father had signed on January 10, 2019—four days before Susan had filed for divorce.

George's expert, Robert Bailes, reviewed Stewart's report and several business documents and testified to a different valuation for Long Horizon, Touponse Enterprises, and Twin Farms.

In George's court-ordered inventory and appraisement, which was admitted as a trial exhibit, George indicated that the Connecticut lawsuit involved a $582,211 "liability owed" to GGT and George's father. He valued his interest in T4 Holdingsat $22,000 and in Ashford Woods at $48,000. George's valuations of T4 Holdings and Ashford Woods seemed to include two properties: 486 South Main Street owned by T4 Holdings and 0 Bunker Hill Road owned by Ashford Woods.

In a January 17, 2020 letter "rendition," the trial court detailed its property division. The trial court also expressed skepticism about the Connecticut lawsuit:

I am skeptical as to the lawsuit that has been filed by Husband's father's company against the entities owned by the community and by Husband's father. In the lawsuit, Husband's father's company is attempting to recover lease payments on equipment with those payments going back as far as 2011. The lease upon which the lawsuit is apparently based was signed on January 10, 2019, and the divorce was filed four days later on January 14, 2019. Husband and his father could not even get the names straight on the lease as, on the lease, Husband's company has leased the equipment to his father's company.² This, in my opinion, is a blatant attempt on the part of Husband to defraud Wife and the community estate. Husband is ordered to indemnify and hold Wife and the community estate harmless from all costs, losses, damages, or any recovery of any kind by Husband's father's company including any attorney's fees reasonably and necessarily incurred by Wife in the defense of that lawsuit.

The trial court signed a final decree of divorce on June 26, 2020, dividing the marital estate. As relevant to George's appellate complaints, the trial court awarded to George as his separate property (1) the South Main Street property and the Bunker Hill property; (2) a 50% interest in Long Horizon, Twin Farms, and T4 Holdings; and (3) a 33% interest in Ashford Woods. George's separate-property award as to LongHorizon and Twin Farms was awarded "subject to [Susan's] equitable interest." To that end, the trial court ordered George to pay Susan $700,000 partially due to "her equitable interest in the businesses." Finally, the trial court ordered George to indemnify Susan and the community estate from any liability arising from the Connecticut lawsuit.

George filed a motion for new trial attacking the trial court's valuation of Touponse Enterprises. Although the trial court held a hearing on the motion, it was overruled by operation of law. See Tex. R. Civ. P. 329b(c). At George's request, the trial court made findings of fact and conclusions of law that tracked the prior letter rendition, including the trial court's skepticism of the timing and purpose of George's father's Connecticut lawsuit. See Tex. Fam. Code Ann. § 6.711. In its findings, the trial court characterized the South Main Street and Bunker Hill properties as part of the community estate, valued South Main Street at $209,400, and valued Bunker Hill at $122,600. The trial court also explained that it had considered Stewart's and Bailes's testimony and the fact that "Stewart [had] made an on site observation in Connecticut and was directed by [George] on that visit."³

II. REVIEW OF PROPERTY DIVISION

In his appellate issue, George contends that the trial court's property division was an abuse of discretion. He points to the trial court's "compound of errors,"⁴ including awarding the South Main Street and Bunker Hill properties even though they were owned by limited-liability companies.

A. STANDARDS

In dividing a marital estate, the trial court is to do so in a manner that it deems "just and right, having due regard for the rights of each party." Tex. Fam. Code Ann. § 7.001. We review the trial court's property division for an abuse of discretion, and presume that it exercised its discretion properly. See Murff v. Murff, 615 S.W.2d 696, 698-99 (Tex. 1981). A trial court abuses its discretion if the division is manifestly unfair. Mann v. Mann, 607 S.W.2d 243, 245 (Tex. 1980).

Although the trial court is not required to divide the marital estate equally, its division must be equitable and supported by a reasonable basis in the record. See Halleman v. Halleman, 379 S.W.3d 443, 452 (Tex. App.—Fort Worth 2012, no pet.); O'Carolan v. Hopper, 71 S.W.3d 529, 532 (Tex. App.—Austin 2002, no pet.). See generally Cameron v. Cameron, 641 S.W.2d 210, 223 (Tex. 1982) ("[W]e continue thenational trend endorsing the use of marital property as the means of settling the equities between divorcing spouses."). To the extent George argues that the evidence does not support the trial court's property division, we are still guided by the abuse-of-discretion standard but consider the evidentiary support (or lack thereof) as a factor relevant to our assessment of the trial court's exercise of discretion. See Hinton v. Burns, 433 S.W.3d 189, 193-94 (Tex. App.—Dallas 2014, no pet.); Zeptner v. Zeptner, 111 S.W.3d 727, 734 (Tex. App.—Fort Worth 2003, no pet.) (op. on reh'g).

B. REAL PROPERTIES AWARDED TO GEORGE

George contends that the trial court's separate-property award regarding the South Main Street and Bunker Hill properties was an abuse of discretion because the properties were owned by business entities, not the parties; because the valuation failed to account for any debts attached to the properties; and because the properties had already been included in the...