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Akukoro v. Akukoro

Court of Appeals of Texas, First District

December 19, 2013

EMELDA AKUKORO, Appellant
v.
KERRY AKUKORO, Appellee

On Appeal from the 245th District Court, Harris County, Texas, Trial Court Cause No. 2011-62330

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

MEMORANDUM OPINION

REBECA HUDDLE, JUSTICE

Emelda Akukoro appeals the trial court's final decree of divorce. She challenges (1) the trial court's grant of Kerry Akukoro's claims for equitable reimbursement, (2) the trial court's failure to offset those claims with her own claims for reimbursement, (3) the trial court's failure to file findings of fact and conclusions of law, and (4) the trial court's grant of Kerry's motion for nunc pro tunc judgment. We affirm.

Background

Pre-trial events

In October 2011, Kerry filed for divorce from Emelda. The trial court entered a temporary restraining order and an order setting a hearing for temporary orders. Among other things, the temporary restraining order prohibited both parties from "[s]elling, transferring, assigning, mortgaging, encumbering, or in any other manner alienating any of the property of Petitioner or Respondent, whether personalty or realty, and whether separate or community, except as specifically authorized by this order, " and "[m]aking withdrawals from any checking or savings account in any financial institution for any purpose, except as specifically authorized by this order." It provided that each party was authorized "[t]o make expenditures and incur indebtedness for reasonable and necessary living expenses for food, clothing, shelter, transportation, and medical care, " "[t]o make expenditures and incur indebtedness for reasonable attorney's fees and expenses in connection with this suit, " [t]o make withdrawals from accounts in financial institutions only for the purposes authorized by this order, " and "[t]o engage in acts reasonable and necessary to conduct [their] usual business and occupation." In November 2011, Emelda answered and filed a counter-petition for divorce.

On December 19, 2011, the trial court signed partial agreed temporary orders. The orders appointed Kerry and Emelda Temporary Joint Managing Conservators of their four children, and provided that Emelda would have the exclusive right to designate the primary residence of the children. Emelda was also awarded exclusive and private use and possession of the couple's house while the divorce case was pending. The orders directed Kerry to pay Emelda monthly child support. The orders also provided that Kerry and Emelda would each receive 50% of any income from an investment business they co-owned, Genuine Export, Inc., and made various provisions regarding the operation of a co-owned home health business, Blessed Home Health Services, Inc. ("Blessed Home"). The orders contained the same prohibitions as the temporary restraining order regarding disposing of property and making withdrawals from accounts.

After entry of the temporary orders, the parties entered into three agreements. The Mediated Settlement Agreement encompassed all issues related to the care of the children.[1] The parties' first Rule 11 agreement provided that Kerry would pay Emelda $125, 000 for her ownership interest in Blessed Home.[2]On July 23, 2012, the parties entered into a second Rule 11 agreement, in which they agreed that (1) all real estate and the amounts in all bank accounts would be divided 50/50, (2) each person would keep the vehicles that were held in their own name, and (3) each person would keep the personal property in their possession. This agreement specified the amounts in each bank account, and noted that a Bank of America account ending in 1710 held in Emelda's name contained $61, 126 and a Wells Fargo Account ending in 8513 held in Emelda's name contained $20, 572. It also specified that these accounts had contained $107, 466.06 and $59, 681.14, respectively, in November 2011, subsequent to the trial court's entry of the temporary restraining order. The agreement also specified that the trial would be limited to proving up the divorce and to the "equitable reimbursement claims of both parties."

Trial

Trial was held in October 2012. At trial, Kerry contended that his separate estate had three bases for reimbursement. First, Kerry introduced evidence that, on November 4, 2011, after the trial court had entered its temporary restraining order, the 1710 account contained $107, 466.06 in community funds. As of February 6, 2012, the 1710 account contained only $61, 126. Second, Kerry introduced evidence that, on November 30, 2011, the 8513 account contained $59, 681.14 in community funds. As of January 31, 2012, the 8513 account contained only $20, 572. Kerry contended that Emelda had wasted the difference—a total of $85, 449.20—because she could not show the withdrawals were for reasonable and necessary living expenses. Kerry requested that he receive reimbursement of half of the amount that Emelda withdrew from the 1710 account, $23, 170, and half of the amount that Emelda withdrew from the 8513 account, $19, 470.

Third, Kerry testified that he had paid $2, 000 per month from January 2012 to October 2012 towards the mortgage on the couple's house, which included approximately $1, 215 towards the monthly payment plus approximately $785 towards principal to catch up the arrearages in the account based on an agreement with the bank. Kerry requested that he be reimbursed one half of the total amount he paid towards the mortgage, $10, 000.

Kerry's claims for reimbursement totaled $52, 640. Kerry requested that the trial court award him 100% of the interest in the house and 100% of his retirement account, instead of the 50% of each of these as allocated in the July 23, 2012 Rule 11 agreement, in order to make this reimbursement. The parties had agreed in their second Rule 11 agreement that their equity in the home totaled $56, 000, and therefore Emelda's 50% interest was worth roughly $28, 000. The after-tax value of 50% of Kerry's retirement account was approximately $25, 000. Accordingly, these two items combined totaled approximately $53, 000.

Emelda testified that she received $8, 000 to $10, 000 per month in each of November and December 2011 and January and February 2012 from Blessed Home, and then received a lump sum of $125, 000 when she sold her interest in the business. She also testified that she received $2, 000 per month in child support from Kerry. She agreed that Kerry paid all of the expenses associated with their house.

Regarding her expenses, Emelda testified that she spent no more than $4, 000 on family expenses per month. She testified that although she was awarded sole possession of the couple's house during the pendency of the case, she moved in January 2012 to another location, where she prepaid $14, 000 for a year's worth of rent. She also testified that she incurred $49, 669 in legal expenses related to the divorce prior to the date of trial.

Emelda testified that she understood the withdrawal and spending prohibitions in the temporary orders, but that she had used the $85, 449.20 withdrawn from the 1710 and 8513 accounts between October 2011 and February 2012 for her "business and family expenses." She testified that she used approximately $46, 000 that she withdrew from the 1710 account to buy a new business and approximately $40, 000 that she withdrew from the 8513 account for "family expenses."

Emelda also testified that, although she agreed in the July 23, 2012 Rule 11 agreement to split the $61, 126 in the 1710 account and the $20, 572 contained in the 8513 account equally with Kerry, she withdrew and spent that money. She testified that at the time she entered into the agreement, she had already withdrawn and spent the $61, 126 in the 1710 account on her legal, business, and family expenses. She testified that she purchased another business for $200, 000 after selling her interest in Blessed Home, using the $125, 000 she received from the sale of her interest in Blessed Home plus an additional $75, 000.

Emelda testified that she had claims to offset Kerry's claims for reimbursement. Specifically, Emelda testified that she gave Kerry money so that he could buy a car, and he promised to pay her back that money. Kerry objected to this testimony as not relevant, and the trial court sustained the objection.

The trial court entered written findings on October 8, 2012. It found that Emelda "spent, transferred, or otherwise removed" the $61, 126 contained in the 1710 account and the $20, 572 contained in the 8513 account that she had agreed in the July 23, 2012 Rule 11 agreement to split with Kerry 50/50, and that $40, 849 of these amounts were Kerry's funds. The trial court also found that Kerry expended $20, 000 toward the payment of loans arising from the mortgage on the couple's house, and that Kerry's equitable reimbursement claim for $10, 000 based on these payments should be granted. The trial court concluded that Emelda should be awarded the 1710 and 8513 accounts, and Kerry should be awarded 100% of the interest in the couple's house and 100% of his retirement plan. It signed a final decree of divorce on October 31, 2012.

Post-trial events

On November 6, 2012, Emelda filed a request for findings of fact and conclusions of law pursuant to Rule 296 of the Texas Rules of Civil Procedure. The trial court annotated the request on December 3, 2012, indicating that the request had been called to the court's attention on November 28, 2012. The trial court did not enter additional findings or conclusions based upon the request. On December 5, 2012, Emelda filed a notice of past due findings of fact and conclusions of law.

On November 30, 2012, Kerry filed a "Motion for Judgment Nunc Pro Tunc and Request for Hearing to Enter." Kerry requested a judgment nunc pro tunc because "[t]he judgment signed by the court contains a clerical error; specifically, it failed to accurately and consistently reflects [sic] the previously filed Mediated Settlement agreement terms related to health insurance for said children." The October 31, 2012 decree required that Kerry pay for health insurance for the children. The trial court granted the motion and signed a nunc pro ...


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