Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 130th District Court of Matagorda County,
Chief Justice Valdez and Justices Rodriguez and Benavides
V. RODRIGUEZ JUSTICE
an appeal from a divorce decree which divided the marital
estate of appellant Kay Nordt Banker and appellee John
Banker. By four issues, Kay contests several aspects of the
trial court's decree. Kay contends that the trial court
abused its discretion in dividing certain estate assets and
in rendering an untimely judgment. Kay also contends that the
trial court erred in failing to award her pre-judgment
interest. We reverse and remand in part, and we affirm in
part on condition of remittitur.
John were married in November 1990. They purchased two
businesses during the course of the marriage: Banker Crop
Insurance Agency, Inc., a business operated by Kay; and El
Campo Livestock, Inc. (ECL), a livestock auction house
operated by John. Kay filed for divorce in September 2010.
trial was held in April 2013. At trial, the court admitted
Kay's testimony, her inventory of estate assets, and most
of her exhibits concerning the value of the assets. Kay also
offered the testimony of two experts: Jessica Putz, a
property-valuation expert, and Stephen Gonsoulin, a
business-valuation expert, who primarily testified concerning
his appraisal of ECL. Kay's experts proposed to testify
on the values of estate assets and also in support of
Kay's theory that John had committed fraud on the estate;
according to Kay, John had arranged for the sale of a large
quantity of cattle through ECL and concealed the proceeds
objected to Gonsoulin and Putz's testimony on various
grounds and offered a rebuttal expert. The trial court agreed
with John, finding that Kay's experts had relied on
several dubious assumptions. The trial court prevented Putz
from testifying altogether and later entered findings that
Gonsoulin's testimony was neither credible nor valid. Kay
does not challenge these rulings on appeal.
support of his case, John offered several exhibits and his
own testimony on the value of the estate's assets.
However, the trial court did not admit the majority of
John's exhibits, including John's sworn inventory.
the April 2013 trial, the court deferred judgment and ordered
John and Kay to attend mediation, which ultimately proved
unsuccessful. On April 17, 2014, the trial court circulated a
non-final draft of its divorce decree by letter to the
parties. On April 28, 2014, Kay filed a motion to reconsider
the draft decree and a motion to divide the community estate
13, 2014, the trial court entered a decree of divorce with a
division of property. The decree listed the reason for
divorce as adultery by John. As relevant to this appeal, the
decree awarded John sole ownership of ECL, multiple vehicles
and trailers which were titled in John's name, and all
"goods . . . in the possession of the husband or subject
to his sole control." The decree awarded Kay sole
ownership of Banker Crop Insurance and a bank account with
First Victoria Bank, among other things. Ultimately, the
trial court divided the estate 55% to Kay and 45% to John. To
achieve this division, the trial court entered an offsetting
judgment and lien of $455, 133 against John, payable to Kay.
28, 2014, Kay filed a request for findings of fact and
conclusions of law. On August 12, Kay filed a motion for new
trial and a motion to modify the judgment. On August 26, Kay
filed a notice of past-due findings. On September 15, Kay
filed her second amended petition for divorce as well as a
motion for leave to file the petition. In her second amended
petition, Kay pleaded for pre-judgment interest for the first
time. On September 25, the trial court entered an order
granting Kay's motion to modify and vacating the original
decree pending the entry of a modified decree. On October 30,
Kay filed an amended motion for leave to file her second
amended petition, a motion for judgment, and a notice of
appeal. On January 28, 2015, the trial court granted
Kay's motion to modify the judgment. Among other things,
the trial court indicated that it would increase the
offsetting judgment against John from $455, 133 to $676, 733.
March 27, John filed a motion to modify, primarily seeking a
reduction of the offsetting judgment to $573.643.91. On May
11, the trial court denied John's motion and entered its
modified final decree of divorce. The decree included the
$676, 733 offsetting judgment lien in favor of Kay, but
excluded pre-judgment interest.
12, Kay again requested findings of fact and conclusions of
law, and on June 9, Kay again moved for a new trial. Kay
filed this appeal on August 6, 2015.
appeal, we remanded the matter to the trial court for the
entry of findings of fact and conclusions of law. The trial
court entered findings and conclusions on December 10, 2015.
Among its findings, the trial court rejected Kay's fraud
theory and the evidence which supported it. The trial court
also concluded that the judgment should be modified to grant
Kay pre-judgment interest on the offsetting judgment.
However, the trial court did not modify the judgment to grant
Kay pre-judgment interest.
appeal, Kay presents four issues. By her first and third
issues, Kay argues that the trial court erred in valuing and
distributing certain community assets. By her second issue,
Kay argues that the trial court erred in delaying the
rendition of judgment for two years and rendering judgment
based on outdated evidence of property values. Also within
her second issue, Kay argues that the trial court erred in
failing to grant a new trial to receive updated evidence. By
a fourth issue, Kay argues that the trial court erred in
failing to grant her pre-judgment interest.
Standard of Review and General Applicable Law
review the trial court's division of property to
determine whether the trial court abused its discretion by
making a division that was manifestly unjust and unfair.
Vandiver v. Vandiver, 4 S.W.3d 300, 303 (Tex.
App.-Corpus Christi 1999, pet. denied). A trial court has
wide discretion in making a just and right division.
Handley v. Handley, 122 S.W.3d 904, 907 (Tex.
App.-Corpus Christi 2003, no pet.). In an abuse of discretion
analysis, legal and factual sufficiency are not independent
grounds of error, but rather relevant factors in assessing
whether the trial court abused its discretion. Id.
There is generally no abuse of discretion on grounds of
insufficiency if some probative evidence supports the trial
court's findings. In re Barber, 982 S.W.2d 364,
366 (Tex. 1998) (orig. proceeding). We presume on appeal that
the trial court correctly exercised its discretion when
dividing the fruits of a marriage, and the appellant bears
the burden to show from the record that the division was so
disproportionate, and thus unfair, that it constitutes an
abuse of discretion. O'Carolan v. Hopper, 414
S.W.3d 288, 311 (Tex. App.-Austin 2013, no pet.); see
Saldana v. Saldana, 791 S.W.2d 316, 319 (Tex. App.-
Corpus Christi 1990, no writ). As the finder of fact for the
proceeding, the trial court is the exclusive judge of the
credibility of the witnesses, the weight to be given their
testimony, and the best means to resolve inconsistencies in
the evidence. Bos v. Smith, 492 S.W.3d 361, 381
(Tex. App.-Corpus Christi 2016, pet. filed);
Handley, 122 S.W.3d at 911.
review a trial court's conclusions of law de novo to
determine their correctness. City of Austin v.
Whittington, 384 S.W.3d 766, 779 n.10 (Tex. 2012)
(citing BMC Software Belg., N.V. v. Marchand, 83
S.W.3d 789, 794 (Tex. 2002)). But we will not reverse an
erroneous conclusion if the trial court rendered the proper
judgment. Id. Regardless of the label, the trial
court's designation of a finding of fact or conclusion of
law is not controlling on appeal. Ray v. Farmers'
State Bank of Hart, 576 S.W.2d 607, 608 n.1 (Tex. 1979).
Conclusions which are actually findings will be treated as
findings, and vice versa. See Smith v. Smith, 112
S.W.3d 275, 279 (Tex. App.-Corpus Christi 2003, pet. denied).
decree of divorce or annulment, the court shall order a
division of the estate of the parties in a manner that the
court deems just and right, having due regard for the rights
of each party and any children of the marriage. Tex. Fam.
Code Ann. § 7.001 (West, Westlaw through 2015 R.S.). The
value of community assets is generally determined at the date
of divorce. Handley, 122 S.W.3d at 908;
O'Carolan, 414 S.W.3d at 312. In valuing the
assets in the estate, if several values are given, or if a
witness testifies that the value may be higher or lower than
his estimate, the court's determination of the value
should be within the ranges in the evidence. Van Heerden
v. Van Heerden, 321 S.W.3d 869, 880 (Tex. App.-Houston
[14th Dist.] 2010, no pet.); Mata v. Mata, 710
S.W.2d 756, 758 (Tex. App.-Corpus Christi 1986, no writ).
Where the uncontested evidence establishes only one value,
the trial court cannot draw a different inference.
Mata, 710 S.W.2d at 758; see also Cruz v.
Cruz, No. 13-04-00540-CV, 2006 WL 2371342, at *3 (Tex.
App.-Corpus Christi Aug. 17, 2006, no pet.) (mem. op.).
Valuation of Specific Assets
first issue, Kay contends that the trial court incorrectly
assessed the value of three groups of assets which were
awarded to John: ECL itself, ECL's business good will,
and multiple vehicles. Kay also urges error in the trial
court's appraisal of two bank accounts which were awarded
to her. According to Kay, these values were either
unsupported by or directly contrary to the available
evidence, they rendered the overall division manifestly
unjust, and therefore constituted an abuse of discretion.
Valuation of ECL
trial court found that ECL had a fair market value of $1,
446, 489.09 under an "asset-based approach" to
business valuation. Kay asserts that the trial court did not
admit any probative evidence to support this valuation; she
claims that this figure was instead derived from John's
inventory, which was not admitted into evidence. Kay further
contends that the only record evidence of ECL's value is
what she describes as her expert's own asset-based
valuation of ECL at $1, 680, 000.
response, John insists that his own testimony on the value of
ECL supports the trial court's finding and judgment. John
primarily relies on the "property-owner rule, "
arguing that this rule entitled him to testify to the value
of the business.
inventory and appraisement that has not been admitted into
evidence is more like a party's pleading. Barnard v.
Barnard, 133 S.W.3d 782, 789 (Tex. App.-Fort Worth 2004,
pet. denied); see Tschirhart v. Tschirhart, 876
S.W.2d 507, 509 (Tex. App.-Austin 1994, no writ). Unless a
party's inventory and appraisal has been admitted into
evidence, it may not ...