Opinion
No. 05-03-00469-CV
Opinion Filed November 16, 2004.
On Appeal from the 256th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 01-16749-Z.
Order Vacated, Affirmed.
Before Justices MOSELEY, O'NEILL, and RICHTER.
MEMORANDUM OPINION
Darlene Kay Walters (Wife) appeals the trial court's divorce decree awarding a claim for economic contribution to Jerry John Walters (Husband). Wife also appeals a temporary order on appeal requiring her to pay Husband's attorneys' fees. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.2(a), 47.4. We conclude the trial court correctly divided the claim for economic contribution, but that the trial court did not enter the temporary order during its plenary power. We vacate the trial court's temporary order and affirm the trial court's judgment.
Appellant's name was changed to Darlene Kay Sabo in the divorce decree.
Before marriage, Wife owed money on a note secured by a lien on her house. After they married, the parties made payments on the secured debt with community property funds. The parties also made capital improvements to the house and its landscaping during the marriage using community funds. There is an indication that some improvements were made before marriage and Husband paid half of some of those costs. Twenty-seven months' after the marriage, Wife filed a petition for divorce. Husband filed a claim for economic contribution and reimbursement. After a bench trial, the court granted a divorce and awarded Husband $27,500 as his share of the claim for economic contribution. Wife filed a notice of appeal and Husband obtained an order from the trial court for temporary orders to pay his attorneys' fees on appeal.
Wife argues the judgment should be reversed because the trial court awarded both economic contribution and reimbursement to Husband. Her argument is based on the trial court's docket sheet where, Wife argues, the trial court found Husband was entitled to $10,000 "reimbursement" for his separate property contributed to the community, and that the community estate had an economic contribution claim for $35,000 against Wife's separate property. Wife argues the trial court awarded Husband half of the community economic contribution claim ($17,500) and the reimbursement claim ($10,000) and that these "findings" are mutually exclusive.
Wife did not request findings of fact and conclusions of law under family code section 6.711 or rule 296, and none were filed. See Tex. Fam. Code Ann. § 6.711 (Vernon Supp. 2004-05) (requiring on proper request written findings on property issues on which disputed evidence was presented); Tex. R. Civ. P. 296. Wife cannot rely on the docket entries as a substitute for findings of fact she never requested. In general, a docket entry forms no part of the record which may be considered on appeal; it is a memorandum made for the trial court and clerk's convenience. Energo Int'l Corp. v. Modern Indus. Heating, Inc., 722 S.W.2d 149, 151 (Tex.App.-Dallas 1986, no writ). Docket entries are inherently unreliable and may not contradict or override a final judicial order. Id. at n. 2. There is no allegation of a clerical error in the judgment; without a clerical error, we will not consider docket entries on appeal. Roever v. Roever, 824 S.W.2d 674, 676 (Tex.App.-Dallas 1992, no writ). Wife's arguments regarding the trial court's docket entries present nothing for review.
Accordingly, we review this case as an appeal from a nonjury trial where findings of fact and conclusions of law were not requested or filed. Thus, it will be implied that the trial court made all the necessary findings to support its judgment. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam). We affirm the trial court's judgment if it can be upheld on any legal theory that finds support in the evidence. Id.; In re W.E.R., 669 S.W.2d 716, 717 (Tex. 1984) (per curiam). We apply the appropriate standards of review. See Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994) (legal sufficiency); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam) (factual sufficiency).
A marital estate that makes an economic contribution to property owned by another marital estate has a claim for economic contribution with respect to the benefitted estate. Tex. Fam. Code Ann. § 3.403(a) (Vernon Supp. 2004-05). The contributions may be made by reducing debt secured by the property, refinancing such debt to the extent it reduces the principal amount, or by making capital improvements to the property. Id. § 3.402(a)(1), (5), (6). The amount of a claim for economic contribution is determined by multiplying the equity in the benefitted property on the date of the divorce by a fraction. Id. § 3.403(b). The fraction's numerator is the amount of the economic contribution by the contributing estate and its denominator is equal to the sum of that same economic contribution, the equity in the benefitted property on the date of the marriage or first contribution, and any additional economic contribution to the benefitted property by the benefitted estate after the first contribution by the contributing estate. Id.; see LaFrensen v. LaFrensen, 106 S.W.3d 876, 879 n. 2 (Tex.App.-Dallas 2003, no pet.).
This case was tried under the prior version of this section. The claim for economic contribution would be the same under the prior version of the statute.
In general, the statutory formula can be expressed as follows:
claim = A x ((B+C+D)/(B+C+D+E+F))
where:
A = Equity on date of dissolution (FMV — secured debt)
B = Economic contribution by contributing estate (debt reduction)
C = Economic contribution by contributing estate (debt refinancing)
D = Economic contribution by contributing estate (capital improvements)
E = Equity on date of first contribution (FMV — secured debt)
F = Economic contribution by benefitted estate (after 1st contribution)
The benefitted property in this case is Wife's separate property-the house she owned before marriage. The evidence raises two forms of economic contribution by the community estate: reduction in secured debt; and capital improvements. We discuss the evidence regarding these and the other components of the claim for economic contribution.
Equity at time of first contribution. There was conflicting evidence of the fair market value of house at the time of marriage, but Wife estimated the value at $200,000. The secured debt on the house at the time of the marriage was estimated at $78,000, making the Wife's equity in the house at the time of the marriage $122,000.
Economic contribution. The evidence is undisputed that mortgage payments were made from community property funds during the marriage, reducing the principal of the note from $78,000 to approximately $54,000. This was an economic contribution in the amount of $24,000 by the community estate for the benefit of Wife's separate property. Tex. Fam. Code Ann. § 3.402(a)(1). The evidence was disputed as to the amount of capital improvements made to the house and its landscaping by the community estate: Wife estimated $30,000, while Husband estimated the amount was more than $60,000. This evidence supports an economic contribution in the amount of at least $30,000 in the form of capital improvements by the community estate. Tex. Fam. Code Ann. § 3.402(a)(6). Thus, the evidence supports a total economic contribution by the community estate to Wife's separate property of at least $54,000 ($24,000 + $30,000). There is no evidence of any additional economic contribution by the benefitted estate during the marriage.
Equity at dissolution of marriage. The appraised value of the house at the time of trial was approximately $250,000. Husband and Wife estimated the fair market value of the house at trial at between $225,000 to $250,000. The principal amount of the debt at the time of trial was approximately $54,000. Thus, the evidence supports an equity amount of $171,000 to $196,000.
Using these numbers, the evidence supports a claim for economic contribution by the community estate against Wife's separate property of more than $60,000. See Tex. Fam. Code Ann. § 3.403(b). Applying the appropriate standards of review, we conclude the evidence is legally and factually sufficient to support the implied findings necessary to support the trial court's judgment.
Using the statutory formula: 196,000 × (54,000/(54,000 + 122,000 + 0)) = 60,136.
If the community marital estate has a claim for economic contribution against a separate marital estate, the trial court shall determine the rights of both spouses in that claim and shall order a division of that claim "in a manner that the court considers just and right, having due regard for the rights of each party." Tex. Fam. Code Ann. § 7.007(a)(1). We review the trial court's division of property for an abuse of discretion. See Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981).
Here, as part of the trial court's division of the marital property, it divided the community economic contribution claim against Wife's separate property by awarding Husband the sum of $27,500. We conclude the trial court's division of the community claim for economic contribution was not an abuse of discretion. Tex. Fam. Code Ann. § 7.007(a)(1).
Wife also argues the evidence is legally and factually insufficient to support an award of reimbursement to Husband. Again, Wife obtained no findings of fact supporting her contention that the trial court effectively made both a contribution and a reimbursement award. Moreover, because the evidence is sufficient to support the judgment as a claim for economic contribution, we do not consider the reimbursement claim. We reject Wife's first two issues.
Wife's third issue challenges the trial court's temporary order pending appeal. Section 6.709 permits the trial court, no later than the thirtieth day after an appeal is perfected and after notice and hearing, to render a temporary order necessary to preserve the property or protect the parties during the appeal. Tex. Fam. Code Ann. § 6.709(a). A temporary order rendered more than thirty days after the appeal is perfected is void. See In re Boyd, 34 S.W.3d 708, 711 (Tex.App.-Fort Worth 2000, orig. proceeding).
Wife perfected this appeal on February 10, 2003. On April 18, 2003, the trial court entered a temporary order requiring her to pay Husband $25,000 in attorneys' fees if her appeal was not successful. Wife argues the temporary order is void because it was not signed within thirty days after the appeal was perfected. Husband agrees that the temporary order is void because it was not rendered within thirty days after the appeal was perfected.
In his brief, however, Husband suggests that this appeal be dismissed because he has been prejudiced by Wife's alleged delay in serving the notice of appeal. See Zephyr v. Zephyr, 683 S.W.2d 18, 19 (Tex.App.-Houston [14th Dist.] 1984, no writ). The alleged prejudice is his inability to obtain temporary orders from the trial court within the thirty-day period allowed by section 6.709. Husband has not, however, filed a motion to dismiss this appeal. See Tex.R.App.P. 10, 42.3. We decline to grant such a sanction as dismissal absent a proper motion and briefing.
We conclude that the order granting temporary orders pending appeal is void. Boyd, 34 S.W.3d at 711. Therefore, we resolve Wife's third issue in her favor and vacate the temporary order. We vacate the trial court's temporary order pending appeal and affirm the trial court's judgment.