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Lucy v. Lucy

Court of Appeals of Texas, Eighth District, El Paso

April 12, 2005

PAUL LUCY, Appellant
v.
JOAN WAUGH LUCY, Appellee.

          Appeal from 383rd District Court of El Paso County, Texas (TC# 96-CM-7150)

          Before Panel Barajas, C.J., McClure, and Chew, JJ.

          OPINION

          ANN CRAWFORD McCLURE, JUSTICE

         This is an appeal from a division of property incident to divorce. At issue is an amorphous award of "reimbursement" in favor of Joan Lucy which is also characterized in the final decree as a judgment to equalize division. On appeal, Paul Lucy complains that the evidence is legally or factually insufficient to support the reimbursement award. For the reasons that follow, we affirm.

         FACTUAL SUMMARY

         The parties were married in 1991 and separated in 1996. Each had children from a prior marriage and considerable separate property. A decree of divorce was entered in December 1996. When disputes arose concerning the division of property, Paul filed a petition for bill of review and Joan sought post-judgment partition of previously undivided assets. The trial court set aside the decree and following a bench trial, rendered judgment confirming the parties' separate property and dividing the community estate.

         As Paul frames the issues, this appeal concerns Joan's recovery upon two reimbursement claims. The first relates to rental income. At the time of the marriage, Paul owned a home located at 10632 Quezada Street. During the marriage, the parties resided in Joan's house located at 10900 Dave Marr. Characterization of these houses is not in issue. When the parties separated, Paul told Joan that he could not move back in to the Quezada property because it had been rented. Joan claimed that she did not know the property had been rented, nor had she seen any of the rental income. She sought to recover $43, 200, representing the rental income from the property during marriage. The second issue relates to the depletion of a bank account. Prior to marriage, Joan's checking account contained $53, 947.84. She added Paul's name to the account and gave him free access to write checks as he saw fit. Joan listed the account as community property on her inventory, and the parties ultimately stipulated to characterization at trial. At that time, the account balance was $10, 244.72. In her testimony, Joan highlighted unusual withdrawals Paul had made. For example, she testified that one month he had withdrawn $13, 000 but she never found out why. She claimed that Paul wrote checks totaling $170, 348. She requested reimbursement for $43, 703.12, representing the difference in the beginning and ending balance of the account.

         THE NATURE OF THE PLEADINGS

         In her pleadings, Joan alleged that Paul had committed economic torts against the community estate as well as spousal torts against her personally as a result of the transmission of a sexually transmissible disease, assault, and intentional infliction of emotional distress. Applicable to our analysis, Joan sought a disproportionate division based upon fault in the breakup of the marriage, the wasting of community assets, the size and nature of the parties' separate estates, common law reimbursement, statutory reimbursement (economic contribution), [1] Jensen [2] reimbursement, breach of fiduciary duty, mismanagement of the marital estate, and fraud. She also sought "a judgment against [Paul] for the losses to the community estate and [Joan], occasioned by the improper conduct of [Paul]."

         TERMS OF THE DECREE

         The final decree contains the following paragraph:

Judgment and Lien to Equalize Division
The Court finds that each party has claims for reimbursement and the court having considered the evidence and the merits of such claim and, having offset said claims, further finds that [Joan] is entitled to a judgment against [Paul] in the amount of $28, 000.00.

         All other claims for reimbursement were denied. The decree also specifies that Joan was granted a divorce on the ground of cruelty.

         FINDINGS OF FACT

         Paul requested that the trial court prepare both traditional and statutory findings of fact and conclusions of law. See Tex.Fam.Code Ann. 6.711; Tex.R.Civ.P. 296. The statute limits the required findings to (1) the characterization of each party's assets, liabilities, claims, and offsets on which disputed evidence has been presented; and (2) the value or amount of the community estate's assets, liabilities, claims, and offsets on which disputed evidence has been presented. It does not restrict the court's ability to make additional findings pursuant to Rule 296. In this instance, however, the trial court entered only the statutory findings and the record does not reveal that additional findings were requested. Pertinent to our analysis, the court found:

         value of claims and offsets

         Reimbursement Claims of [Paul]

1) For community time, toll, [sic] efforts and funds used to improve wife's separate home (residence of parties) @ ...

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