Opinion
No. 01-03-00006-CV
Opinion issued July 28, 2005.
On Appeal from the 390th District Court, Harris County, Texas, Trial Court Cause No. 2001-41869.
Panel consists of Chief Justice RADACK and Justices JENNINGS and HANKS.
MEMORANDUM OPINION
Gasper Louis Geaccone (a.k.a. "Gary"), appellant, contests the divorce decree entered favoring Tracy Lyn Geaccone. In five points of error, Gary argues that the trial court erred (1) in its valuation of his dental practice, (2) in its reliance on a false assumption when valuing his dental practice, (3) in rendering a division of the community property that was not just and right, (4) in setting his child support obligation "significantly" over the guidelines, and (5) in setting such child support despite Tracy's failure to meet her burden. We affirm.
Background
Tracy and Gary Geaccone were married on April 11, 1992 and divorced on February 5, 2003. At the time of their divorce, they had a seven-year-old son and a six-year-old daughter. The largest community asset at the time of their divorce was Gary's dental practice located in League City and Bellaire. Gary owned the building that housed the League City practice, but he rented the Bellaire facility.
At trial, both parties presented experts that gave their respective opinions as to the value of Gary's dental practice. One valued the practice as low as $19,000 while the other valued the practice as high as $433,000. The trial court ultimately concluded that Gary's dental practice had a net value of $377,740. Gary was awarded the dental practice, and the trial court awarded Tracy $117,533, partially based on the valuation of the dental practice. The division of the community property amounted to approximately an even 50/50 division.
The value was reached by subtracting the $53,260 of equity in the League City office building from the $433,000 overall appraised value of the dental practice.
The Geaccones shared custody of their children with Tracy being the joint managing conservator with primary custody and control. The trial court determined that Gary had monthly net resources of $10,426, Tracy had monthly net resources of $6,047, and the monthly needs of the couple's two children amounted to $6,684. The trial court ordered Gary to pay $2,500 a month in child support.
Division of Community Property
In points of error one and two, Gary contends that (1) the evidence is legally and factually insufficient to support the trial court's valuation of his dental practice and (2) the trial court erred in its reliance on a false assumption when valuing his dental practice. In point of error three, Gary further argues that the trial court erred in rendering a division of the community property that was not just and right.
Standard of Review
The standard of review for property division issues in family law cases is abuse of discretion. See Schlueter v. Schlueter, 975 S.W.2d 584, 586 (Tex. 1998); Wilson v. Wilson, 132 S.W.3d 533, 536 (Tex.App.-Houston [1st Dist.] 2004, pet denied). A trial court has broad discretion in dividing the "estate of the parties," but must confine itself to community property. Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 139 (Tex. 1977). If a court of appeals finds reversible error that materially affects the trial court's "just and right" division of property, then it must remand the entire community estate for a new division of the property. Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex. 1985) (remanding to trial court for new division of community estate when court of appeals found portion of division lacked evidentiary support). If the division of marital property lacks sufficient evidence in the record to support it, then the trial court's division is an abuse of discretion. See Mai v. Mai, 853 S.W.2d 615, 618 (Tex.App.-Houston [1st Dist.] 1993, no writ) (holding that legal and factual sufficiency are relevant factors in assessing whether trial court abused its discretion).
When an appellant challenges the legal sufficiency of the evidence to support a finding on which it did not have the burden of proof at trial, the appellant must demonstrate on appeal that no evidence exists to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). When reviewing a no-evidence point, the appellate court must view the evidence in a light that tends to support the finding of the disputed fact and disregard all evidence and inferences to the contrary. Lenz v. Lenz, 79 S.W.3d 10, 13 (Tex. 2002). "More than a scintilla" of evidence exists to support a jury finding and a no-evidence point of error will be denied when evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).
In reviewing a verdict to determine the factual sufficiency of the evidence, we must consider and weigh all evidence and set aside the verdict only if the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). The fact finder is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Transmission Exch. Inc. v. Long, 821 S.W.2d 265, 271 (Tex.App.-Houston [1st Dist.] 1991, writ denied). We may not substitute our opinion for that of the trier of fact. Id.
Valuation of Dental Practice
In point of error one, Gary contends that the trial court erred in its valuation of his dental practice when there was no evidence or insufficient evidence to support the trial court's valuation of the practice.
The trial court made a finding that the dental practice had a net value of $377,740, not including the real estate owned by the League City dental office. The trial court further valued the League City office building at $53,260.
Jeffrey Jones, president of Certified Appraisers, Inc., submitted a report indicating that the dental practice had an appraised market value of $433,000. Jones testified that his "values all excluded the issue of personal goodwill."
Gary asked James Michael Hill, who has valued "probably a hundred" professional practices for divorces, to review Jones's appraisal. Hill did not make an independent appraisal. Hill valued the dental practice between $47,000 and $19,000, depending on the accounts receivable. Hill testified that he disagreed with Jones's conclusion because "it includes a substantial amount of goodwill, which in my understanding is not divisible [in] Texas."
Jones's report was admitted without objection, and Gary never requested that the trial court make amended or additional findings regarding its method of valuation, whether the valuation of the dental practice included a nonpiracy agreement, or what the value of such would be. Further, if goodwill was considered, there was no attempt to separate or differentiate personal goodwill from what would be professional goodwill. Without such findings, we cannot determine if there was error, because, without such, the trial court's determination of value cannot be disputed and cannot yield a reversal. See Cherokee Water Co. v. Gregg County Appraisal Dist., 801 S.W.2d 872, 876 (Tex. 1990); Finch v. Finch, 825 S.W.2d 218, 224 (Tex.App.-Houston [1st Dist] 1992, no writ). As an intermediate court of appeals, we are not to become fact finders. Long, 821 S.W.2d at 271.
Here, Jones testified that his values all excluded the issue of personal goodwill and his report supports the trial court's finding that Gary's dental practice had a net value of $377,740. Accordingly, we hold that the trial court did not abuse its discretion in its valuation of the dental practice.
We overrule point of error one.
False Assumption
In point of error two, Gary argues that the trial court erred in valuing his dental practice based on the false assumption that he would enter into a covenant not to compete when he sells the practice. Gary argues that, by doing so, the trial court's valuation included a substantial monetary value for "goodwill."
Again, Jones's report was admitted without objection, and Gary never requested that the trial court make amended or additional findings regarding its method of valuation or the inclusion or exclusion of goodwill. Without such findings, we cannot determine if there was error, because, without such, the trial court's determination of value cannot be disputed and cannot yield a reversal. See Finch, 825 S.W.2d at 224. Further, Gary made no effort, at trial, to establish that any goodwill considered was professional goodwill that is not divisible. See id. (holding that professional goodwill attaches to the professional as a result of confidence in the person's skill and ability and is not divisible upon divorce).
In Nail v. Nail, 486 S.W.2d 761 (Tex. 1972), the supreme court described professional goodwill as something that does "not possess value or constitute an asset separate and apart from his person, or from his individual ability to practice his profession. It would be extinguished in event of his death, or retirement, or disablement, [or] the sale of his practice or the loss of patients, whatever the cause." Id. at 764. This, they held, was not divisible. In contrast, in Salinas v. Rafati, 948 S.W.2d 286 (Tex. 1997), the supreme court explained that a distinction is drawn between the goodwill that attaches to a professional because of confidence in the skill and ability of the individual and the goodwill of a trade or business that arises from its location or its well-established and well-recognized name. Id. at 290.
We overrule point of error two.
Just and Right
In point of error three, Gary argues that, by utilizing an erroneous value of his dental practice coupled with the trial court's award of a $117,533 monetary judgment against him, the division of the community estate was not just and right.
Gary acknowledges in his appellate brief that, given the valuation that the trial court placed on his dental practice, "the partition of the marital estate works out to a 50% share for each spouse." Having held that the evidence supports the trial court's valuation of Gary's dental practice, we further hold that the division of the community estate was just and right.
We overrule point of error three.
Child Support
In points of error four and five, Gary contends that (1) the evidence is legally and factually insufficient to justify a child support obligation that is "significantly over guidelines" and (2) the trial court erred in setting the amount over guidelines when Tracy failed to meet her burden of proof to show that she was entitled to the additional amount.
Standard of Review
A trial court's child support order will not be disturbed unless a clear abuse of discretion is shown on appeal. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). The test for abuse of discretion is to determine if the court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Under an abuse of discretion standard, legal and factual sufficiency of the evidence are not independent grounds of error, but are relevant considerations in evaluating whether there was an abuse of discretion. In the Interest of Pecht, 874 S.W.2d 797, 800 (Tex.App.-Texarkana 1994, no writ). The appellate court cannot simply substitute its judgment for that of the trial court. Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978).
Analysis
A child support obligor with net resources of more than $6,000 per month must first pay the presumptive amount. Tex. Fam. Code Ann. §§ 154.125-.126 (Vernon 2002). That presumptive amount is 25 percent for two children or $1,500. Tex. Fam. Code Ann. § 154.125 (Vernon 2002). After the presumptive amount is subtracted from the proven needs, which in this case totaled $6,684, the court may order any additional amounts as appropriate. See Tex. Fam. Code Ann. § 154.126 (Vernon 2002). In no event may the obligor be required to pay more than 100 percent of the proven needs. Id. The courts are to use "the best interest of the child" principle in determining needs. Rodriguez v. Rodriguez, 860 S.W.2d 414, 418, n. 3 (Tex. 1993). The trial court ordered Gary to pay an additional $1,000 from the $5,184 of the children's remaining needs.
Gary disputes that Tracy's listed expenses represent the children's needs as opposed to the desire to maintain their current lifestyle. Specifically, Gary acknowledges that the expenses for a nanny, a private school, and the maintenance of Tracy's luxury car are part of the children's current lifestyle, but he argues that they are not necessities.
Tracy testified that the monthly tuition for the two children to attend Annunciation Orthodox School is $1,933. She explained that their son needs "special help" with "reading problems," and the private school is attending to his needs. Further, the school has a "group program" for children who are going through divorce. She testified that it would be detrimental to the children to remove them from their school.
Dr. Carol Ann Brady, the children's psychologist, testified that the children feel "safe and good and comfortable" at the private school. She explained that "they have smaller class size, but their biggest plus for the kids is that the children really have an attachment there and they really feel comfortable there. And if youngsters are being stressed in other areas, it's important to maintain whatever plateau of stability you can." Dr. Brady testified that it would be detrimental to the children to be removed from their private school.
Gary also questions the necessity of the nanny. Tracy pays her nanny $1,517 a month, and she described the responsibilities of the nanny as follows:
Well, she picks the kids up from school; she takes them to all their extracurricular activities: They'll have baseball practice, baseball games, soccer practice, during the different seasons — my daughter's had gymnastics before. She makes sure that they get their homework done. She'll help with dinner or she'll stay if I have to work late. She does house cleaning. She helps me with some of the cooking if I can't get home in time. She's really just a lifesaver when it comes to the kids.
Tracy testified that she works for Enron, and her hours are inconsistent. She testified that, if she did not have the nanny, it would cost $1,369 ($148 less than the nanny) if she had to hire different people to do these tasks.
Finally, Gary contests Tracy's contention that the portion of Tracy's monthly $755 car payment on her $42,000 Lexus SUV is attributable to the children at $255 per month. In fact, Tracy testified that the lease on the Lexus was higher than the value of the automobile. She "assumed a liability" by taking the car, and she testified that she was going to look for a less expensive automobile.
Gary, who was determined to have monthly net resources of $10,426, was ordered to pay $2,500 of the proven needs which total $6,684 per month. Tracy, who was determined to have monthly net resources of $6,047, was ordered to provide the remainder of child support "as her circumstances permit." We hold that the trial court did not abuse its discretion when it required Gary to pay $2,500 a month in child support.
We overrule points of error four and five.
Conclusion
We affirm the divorce decree.