NO. 07-03-0081-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL C MAY 11, 2004

______________________________ IN THE MATTER OFTHE MARRIAG E OF WALT ER CHARLES BROGAN, III AND TINA MAR IE BROGAN AND IN THE I NTEREST OF WILLIAM CHRISTOPHE R BROGAN AND SHAUN PATRICK BROGA N, MINOR CHILDREN

_________________________________ FROM THE CO UNTY COURT AT LAW NUMBER TW O OF LUBBO CK COUNTY;

NO. 2001-514,816; HONORABLE D RUE FARM ER, JUDGE

_______________________________ Before JOHNSON, C.J., and QUINN and REAV IS, JJ. MEMORA NDUM OPIN ION Presenting four issues, app ellant Tina Marie Brogan contends the trial court erred in failing to en force a settlement agr eement between her and her hus band, Walter Charles B rogan and abu sed its di scretion in makin g its division of the propert y and sett ing th e amountof child support . By her issues, she contends the trial court (1) erred in findi ng the settlement agr

eement wasneither a sett lement agreement nor a part ition an d exchan ge2

agreement , (2)abus ed i ts d isc ret ion in fa ili ng to pr operly val ue a m ajority

of b ot h community

and separate estate property , (3) abused i ts discretion in awarding only $1,500 in child support, and (4) err ed in str iking her supplement to counterclaim and answer to Charles’s current ple ading insofar as it pled causes of action by Brogan, Ltd. against Brog an, P.A . We affirm.
Tina and Charles were married on May 25, 1991, and two chi ldren were born of the marriage. Charles filed his petitio n for divorce on August 7, 2001. The case was set for a non-jury

trial on M ay 7, 2002, and following a recess, addi tional evi dence was r eceived until the parties r

ested and closed on July 2, 2002 . The trial court signed the decree of divorce on December 6, 2002, whic h was follow ed by Tina’s request for findi ngs of fact and conclusionso f law , which were f iled by the trial cour t on A ugus t 6, 2 003 . Bef ore we commence our analysis, we first set out the sta ndard of review in a non-jury trial. Standard of Revi ew
Findi ngs of fact

in a bench t ri al ha ve the same for ce as a jury’s verdict upon jury ques tio ns. City of Clute v. City of Lake J acks on, 559 S.W .2d 391 , 395 (Te x.Civ.App .-- Houston [14th Dist.] 1977, wri t r ef’d n.r .e. ). However, the f indi ngs are not conc lusi ve when
a complete s tat ement of fact s appear s in the r ecord if t he contrary is e stabl ished as a matter of law or if there is no evidenc e to sup port the f indi ngs. Mi ddlet on v. Kawasaki Steel Corp., 687 S .W .2d 42, 44 (Tex.Ap p.--Hous ton [14th D ist.] 1985), w rit r ef’ d n.r .e. , 699 S.W .2d 199 (Te x. 1985) (pe r curiam ). Find ings of fact are revi ewable for

factu al an d leg al3

suffi ciency

u nd er t he s ame sta nd ard s th at a re a pp lied in revi ewing e vid ence suppor ti ng a jury’s answer. Zie ben v. Plat t, 786 S.W .2d 797 , 799 (Tex. App.- -Houst on [14t h Dist .] 1990,
no writ); see al

so W . W en de ll Hall, Revisi ti ng Standar

ds of R ev iew in Civ il App ea ls , 24 S T
. M ARY ’ S L.J. 104 5, 1145 (1993).
Our revi ew of tr ial court concl usion s of l aw is de nov o. In re Humphrey s, 880 S.W .2d 402, 403 (Tex. 1994), cert . deni ed , 513 U.S. 96 4, 115 S . Ct. 427, 13 0 L. Ed. 2 d 340 (1 994). How ever, as not ed above, alt hough f indi ngs o f factare revi ewable for l egal and fact ual
su ffi cie nc y, an att ack on t he suffi ciency of th e evi dence must be di rect ed at s pecif ic f indi ngs of fact rat her t han at the j udgment as a whole. In re M.W ., 959 S.W .2d 661, 6 64 (Tex .App. --Ty ler 1997, w rit denied). Furt her, the r ule h as oft en been other wise st ated t hat i f the tri al
cour t’s fi nding s of fact are no t chal lenge d bya poi nt of err or on a ppeal , t heyare bind in g upon the ap pell ate cour t. Nort hwest Par k Homeowners Ass’n , Inc. v. Br undret t, 970 S.W .2d 700, 704 (Tex .App.- -Amaril lo 19 98, pet . deni ed); Cart er v. Car ter , 736 S .W .2d 775 , 777 (Tex.A pp.--Hou ston [14 th Dist.] 1987 , no writ).
Settl ement A greement By her fi rst issue, Tina a ctual ly present s two cont enti ons. F irst, she co ntends th e find ing of fact

thatthe Brogan Settl ement was nei ther a sett lement agreement nor a part it ion and exchange agreement i s agai nst t he grea t wei ght and prepon derance of the evi dence. By her sec ond c ontention , she as serts there wa s insufficien t evidence to sup po rt the cou rt’s find ing t hat t he Brogan Sett lement was un enforc eable . W e dis agree.1 In all materi al res pects, the doc ument i s set o ut ve rbati m. 4 Second Conte nti on
Tina a rgues t he evi dence was i nsuffi cient to su pportthe co urt ’s f indi ng that the Brog an Sett lem ent was unen forceable. However, in Am erica’s Favorit e Chicken C o. v. Samaras, 929 S.W .2d 617 , 62 2 (T ex.A pp .--S an An ton io 19 96 , writ den ied) , the cou rt he ld thatwh eth er a n ag ree m en t is leg ally en for ce ab le or b indin g is a ques tion of law. See also Ro nin v. Lerner, 7 S .W .3d 883 , 8 86 (Te x.A pp.–Houst on [1st Dis t.] 19 99 , no pet .). Tin a’s second cont enti on is over rul ed.
First Cont enti on
W it hout advi ce o r any ass ist ance fr om counsel or others, on Nov ember 11, 200 1, Tina and Char les prepared and si gned a two and one- half page wri tte n document ent it led “Brog an Sett lement. ” The wr it ing c an best be descr ibed a s a “ho mem ade” do cument organi zed i n two sect ions. 1 By the first section, C harles ag reed to

C p ay $9,000 chil d support unt il you ngest so n gradu ates f rom hi g h school or i s 18;

C pay pri vate school tui ti on for the ch il dren;

C pay health insu rance u ntil the sons e nter college o r longer;

C put asi de money for thei r col lege educati on as possi ble;

C paythe ir psyc olog ist’s (sic ) bills unti l dee med no longer necessary by their provider;

C upon the “understandi ng” that Tina w ill voluntarily reduce the “am ount” by wh at ev er

h er t ak e- ho me payis whe n she becomes employ ed; and5

C upon remarri age, co- habit ati on, or sal e of 9111 Salem Dri ve, supp ort will decrease to 1/2 or $5,0 00 per m onth, wh ichever is larger. By the se cond sect ion, the pa rti es prov ided for a spli t of t heir comm u nit y proper tyas foll ows:

C all busi ness ent it ies b ecome the pr oper ty of Char le s; HRT, Preven ti on W orks, and W . Chuck Brogan, II I, M.D. Ph. D., i nclud ing h ouse at4612 13th St. a nd busi ness pro pert y at 4110 22nd Pl ace;

C content s of 3310 31st St . become the sole proper tyof Char les;

C 9111 Sal em becom e the p roper tyof Ti na Brogan ;

C content s of 9111 Salem wil l be spli t as mutual ly agreed upon;

C pe rso na l ban k ac co un ts re m ain p ers on al;

C amount in t he jo intchecki ng accountand savi ngs account wil l be the proper tyof Ti na Brogan ;

C Charl es Bro ga n an d T ina B rog an reta in the irli fe i nsurance poli cies a s the ir so le a nd se pa rat e p rop ert y;

C regarding Broga n, Ltd.:

Charl es to buy

4110 22nd Pl ace from the L td. for $85,000 above t he const ruct ion l oan amount curr en tly ow ed to A m eric an Sta te B an k an d w ill pay the t axes cur rent ly owed. Tina wil l r etai n ow ne rsh ip of 9109 Salem Drive and 31 10 31s t Street.
The agreem ent con cluded : [t] he sto ck acc ou nt a s cu rren tly held by Paine W ebbe r (Rolf Siebe rt, broker) will be s plit 50/50, sh are for share . The pa rties agree to w ill their portions to their children, W illi am C. Brog an and Shau n P. Bro gan.6

Thereafter, the Brogan Set tlement was delivered to a neutral at torney w ho drafted and pre pared documents, deeds, ag reements, partner ship dissol ution agreement, and ot he r documents to implement the plan . The document s prepared by the neutral att

orney were dated December

31, 2001, and signed by Charles; however, Tina did not sign them until January22, 2002, and testified t hat she was willi ng to sig n the decree at t he hearing on June 17. Upon Tina’s re fusal to sign the decree of divorce and documents, Charles deemed the agreement not binding and p roceeded wi th the divor ce. By her

brief, Tina contends the agreement purported to be a final resolution of the i ssues address ed and nothing was left to further negotiatio n, except the execution of docu ments. To encourage the settlement of marital property divisi ons the Legis lature authori zed written agreements “ concerning the divis ion of the p r operty and th e liabilit ies of the spouses and mai ntenance of eit her sp ouse.”Tex. Fam. Code Ann. § 7.006 (Vernon 1998). However, the statute prov ides that either spouse may repudiate the agreement before the divorce. Also, secti on 7.006 provi des that the w ritten agreement is not binding upon the courtunless it finds

that the terms of

the written agreement are just and right. Moreover, the trial cour

t is not bound by

the parties’ writte n a gr eement which does not purport to settle the entire property division. Finn v. Fi nn, 658 S.W .2d 735, 747 (Tex .App.--Dall as 1983, wri t ref’d n.r.e)

. Written property sett lement agreemen ts as authorized by section 7.006 are governed by gener

al contract l aw. Deen v . Deen, 631 S.W.2d 2 15, 217 (T ex.Civ.App.--7

Amarillo 1982, no writ). As we noted in Souri gnav ong v. M ethodist Healt hcare Sys. , 977 S.W.2d 382, 385 (Tex.App.--Amarillo 1998, no pet.), a meeting of the mindsof the parties is essential to the creation of a v alid contrac t. Accordin gly, t he court may not make a contract for the parties , and an agreement which i s subject to fut ure negotiati ons is not binding upon the pa rt ies. See Fort Worth Indep. School Di st. v. Fo rt Worth, 22 S.W.3d 831, 846 (Tex. 2000); see also Central Texas Microg raphics v . Leal, 908 S.W.2d 292, 296 (Tex.App.--San Antonio 199 5, no writ).
T he intent ion of the partiesto an agreement is normally a question of fact. See Scott v. Ingle Bros. Pacific , Inc., 489 S.W.2d 554, 555 (Tex. 1972)

. Also see, Ishin Speed Sport, I nc. v. Rutherford, 933 S.W .2d 343, 348 (Tex.App. --Fort Wo rth 1996, no writ). However, whether an agreement is legally enforceable is aquestion of la w. Ronin , 7 S.W.3d at 886 . Becaus e Tina a ttacks t he fac tual suf ficien cy of an a dverse f inding o n which she had the burden ofproof, she must dem onstrate that the adverse f indin g is againstthe g reat

wei ght and p repo nder

anceof th e ev iden ce. Aft er considering all the evidence, a court of appeals may only set aside the finding if the evidence is so weak or if the finding is so against the great weight and preponderan ce of the evidence that it is clearlywrong and unjust. Dow Chemical Co. v. Franc is, 46 S.W.3d 237, 242 (Tex. 2001); see also Pool v. Ford Motor Co., 715 S.W .2d 629, 635 (Tex. 1986 ). By her brief, Tina carefully r eviews the evidence re garding hers and Charles’s intentions re garding the agreement prepared by them without the assistance of counsel.8

Notwiths tanding the abl e analysis , it fails to overcome the s everal flaws and defic iencies which r enders the document incomplete and unenforceable.
Liabilities. Section 7.006 r equires tha t the writte n agreement must also cover the liabiliti es of the parti es. How ever, the November 24, 2001 docum ent does not address allocation of li abilitieswhich, according to the record, are significant. Further, it does not attemptto cover the ordinary income tax l iability

for the year 200 1 and the potential income tax liability

which may

have been brou ght about as a r esult of a propert

y divi sion a n d dissolution of a partnership.
All Prop erty . Under Finn , 658 S.W.2d at 747, the trial court is not bou nd by a n agreement

which does

notpurport to se ttle the entire proper ty. Her e, a comparison of the proper ty mentioned in the N ovember 24, 2001 document with the property and assets r eflected by the record and the decr ee demonstrates that

the automobiles, investmen t retirement

accounts, one note receiva bl e, and significant accounts re ceivable w ere not covered. M oreover, t he office furniture and eq uipment, computer s oftware, and medical equipment

described ascommunity pr operty in the findings of fact w ere not covered either.
No Residuary

Clause. As used in a proper ty settlement

agreement incorporated into a decree of divorce, a resi duary cla use may be effective to tr ansfer property

not speciallyset a side to ei ther part y, to t he sp ouse as de signa ted i n the resid uary c laus e. See Buys v . Buys, 924 S .W.2d 3 69, 371 (Tex. 1996). Here, however , even thoug h the2 Provisi ons for l ife esta tes in pers ona lty are not favored. Bridges v . First N ational

Bank in Dall as, 430 S.W.2d 376, 382 (Tex.Ci v.App.--D allas 1968, no w rit). 9 agreement

did n ot ad dres s all t he pr ope rty, because of the absence of a residuary

clause, the homemade agreement was an incomplete division of th e property of the parties.
Paine Webber A

ccount. By the final s ection, the par ties stated t h at the stock account atPaine W ebber would be “split 50/50, share for share. The parties agree to will their portions to their children. . . .” This provision presents considerable uncertaint y. Did the parties i ntend to make a contract to make a will and be bound by the cont ract, or did the parties contemplate that t he stock would be held by them as life tenants , with t h e remainder to the children? 2
Funds fo r College. The amount of mo ney which Charles w ould set aside for the college education of the child ren was contingent and th e amount not desig nated. We have not overlooked Tina’s contention that t he document constit utes a partiti on of community pr

operty according to s ection 4.103 of the F amily Code. However, the word “partition”does not appear i n the document bu t instead, speaks of “splittin g” community property and providi ng for child support, medical insurance, and education for the c hildren. These provisi ons are foreig n to a partition of property but instead, indi cate an intentio n that the agreement is incident to a divorce, not a partition. Mo reover, man y of the flaws and deficiencies noted above also apply to any agreement, par

tition, or ot herwise.3 Issue restated for purpo ses of our analysis.
4 Tina complains of the value assig ned to (a) Bake r Se ibert Stock Account at $780,000; (b) finding that household furnishi ngs in her possession w ere wort h $150,000; (c) finding that books in her possessi on were w orth $50,000; (d)

finding lease d equipment was a liabili ty of

$666,512.39, and (e)

finding that

line of credit

owed by Brogan P.A. was $393,796.76 at the ti me of divorce. 10 Acco rdin gly, considering the eviden ce a nd controlli ng law, we do not find that the finding by the tri al court that the Brogan Sett lement was ne ith er a settlement ag reement nor a partition and exchange agreement is contrary to the great

weight and preponderance of the evidence or

that it is clearly

wrong and unjust. Iss ue one is overruled. By her second is sue 3 Tina contends she was harmed by the property

divisi on of the parties’ community estate because the tri al court abused its discr etion by fail ing to properly value a maj ority o f bo th co mmu nity a nd se para te es tate prop erty. 4 We disagree. Because most appeals of family law cases terminate in a court of app eals, we take this opportunity

to revis it familiar rules as presented i n a decis ion of t he Texas Supr eme Court. In M urff

v. Murff, 615 S. W.2d 696, 700 (Tex. 1981) , the Supreme Cour t concluded: [t]he trial cour

t in a divorce case has the opportunity to observethe parties on the witne ss stand, determine their cr edibility , evaluate t heir needs and potentials, both social and economic. As the trier of fact, the court is empowered to use its l egal know ledge and its human unde r standing and experience. Although many divorce cases have similarit ies, no two of them are exactly

alike. Mathematical precision in dividing property in a divorce is usuallynot possible. Wide latitude and discreti on rests in t he trial cour t and that discreti on should only be disturbed i n the case of clear abuse.11

Equality in the division of property is not required and under Murff , this Courtind ulges every reasonable pr

esumption in favo r of

the proper ex

ercise of discretion by the trial court in dividin g the community estate. Id . at 698; Johnson v . Johnson, 948 S.W.2d 835, 838 (Tex.App.-- San Antonio 1997, pet. denied). The trial cour t is requ ired to dividethe property in a manner that is just and right. To assist the trial cour t, the partieshave th e responsibil ity

to provi de evidence of thevalue of the pr operty. Wallace v. Wallace, 6 23 S.W.2d 723, 725 (Tex.Civ.App.--Houst on [1st Dist .] 1981, writ dism’d). Tina has a heavy burden to show from t he evidence i n the record that t he division was so unjust and unfair as to constitutean abuse of discr etion. Wilson v. Wilson, 44 S.W .3d 597, 600 (Tex.App.
-- Fort Worth 2001, no pet.); Wallace , 623 S.W.2d at 725

. Baker Seibert

Account Althou gh Tina does not chal lenge the trial court’ s finding that 90 percent of the account was her separate propert yand that Charl es had a separate property i nterest of 10 p erc ent, she contends the value of the a ccount wasonly $510,000. As a resul t, she argues she was harmed by the tri al court’s error in fix ing the value. We disagree. Because a trial courtcann ot di vest a spou se ofsepa rate prop erty, Eggemeyer v. Eg germeyer , 554 S.W.2d 137, 139-40 (Tex . 1977), and did not disturb her proportionate interest i n the account, the valueof th e account is of no conse que nce f or t hesepur pose s. E ven if t h e trial court’s finding of val ue was err oneous, a questi on we need not d ecide, Tina was not prejudiced or harmed by any overestimation of its value bec ause her 90 percent was12

awarded to her. Pelz ig v. Berkebile, 931 S.W.2d 398, 403 (Tex.App.--C orpus Chri sti 1996, no writ)

. Household Furnishings and Books and Leasing and Evaluations Tina recognizes that wher e the value of

property is uncontested or even if contested, the trial court does not abus e its discr etion as long as the val ue assigned to the asset is within the range of the evidence. Pelzig , 931 S.W.2d at 398. In her revi ew of the evidence of

the household fu rnishings, jewelry, and books in her possessi on, among other things, Tina referenced val ues which she placed on some of the items in her answers to interrogatories. She does not refer to the record where suc h evidence can be found and the clerk’s record does not include Tina’s answers to interrogatories. However, it appears the trial court accepted theestimates or evidence offered by Charles. In response, Tina argues that the purchase price of the jew elry or art work does not const itute market value for these purposes. However, the estimates and opinion of Charl es were admi tted without any objecti on and thus were be for e the trial cour t fo r all p urpo ses. Tex. R. Evid. 103(a); see also Lubbock County, Tex. v. Strube, 953 S.W .2d 847, 855 (Tex.App. --Austin 1997, pet. denied). Moreover, the admission ofevidence is a matter of discretion, an d error is notsubject to reversal in the absence of a showing that the error was calculated to cause and probably d id cause rendi tion of an improper judgment

. Exxon C orp. v. West Texas Gathering Co., 868 S.W .2d 299 (Tex. 1993).13

Focusing now on the l iabilities of the community es tate for equipment leas es totaling approximately $666,000, Tina contends that in real ity, alt hough entitled as Equipment Leases, becau se Charles ha s a right to purchase the equipment at the end of the lease term for a sugges ted nominal amount, we should remand to the trial court for an evaluation of th e value of the equipment covered by the lease s. However, under Wallace , 623 S.W.2d at 725, Tina had the b urden to prov ide evidence of the value of the property, but the record does n ot demonstrate that she offered any ev iden ce of the value of the equipment upon termination of the lease s. Wilson , 44 S.W.3d at 600.
Fina lly, the trial court found Charles owed $393,796 on his l ine of credit tothe bank. Tina points out, howev er, that the banker testified the line had been red uced from $500,000 to $311,000 which, if correct, would be an excess liability of $72,000. However, even if $72,000 is added to Charles’s award of community pro perty, the adjusted awa rds would be $176,805 to Charles an d $640,275 to Tin a. Compared to the values and award here, any such adjustment is de minimis . Accordingly, considering that mathematica l precision is not req uired and other factors discus sed above, we concl ude Tina has not met her b urden to show from the e vidence in the record th at the divi sion was so unjust and unfair as to cons titute an abuse of di scretion. I ssue two i s overru led. By her third issue , Ti na contends the trial court abu sed its disc retion in aw arding only$1,500 in chil d support. We disagree. Ti na grounds her argument

upon an incorrect premise wh en she argues :14

[a]ssuming that the trial court ignored all of Tina’s tes timony reg arding the minimal reasonable needsof the children, the only ot her evidence in the record concerning the need of the child is D r. Brogan’ s exhibit 29A.
To the contrary , w e d o not assu me th e tria l cou rt ign ored any evi den ce bu t inst ead , we extend every reasonable presumption to t he proper exercise of discretion by the trial court consistent

with therecord. H uls v. H uls, 616 S.W.2d 312, 315 (Tex.C iv.App.-- Housto n [1st Dist.] 1981, n o writ)

. Furth er by se ction 10 of the decr ee, the trial court order ed Charles topay $1,500 per month to Tina as chi ld support. Then by section 11, entitled “Additional Child SupportSchool Tuition” the court ordered Charles to pa y the All Saint’s S chool tu ition th rough high school. In addition, b y section 12 entitled “ Medical Suppor t,” Charle s was or

dered to providemedical support and health insur ance. Accordi ng to the ev idence, the tuition was approximately $1,982 per month. The medical expenses were cal culated at $118 (medical insurance), plus one-half of ot her medical, psycholog ist, and dental expens es. In total, the trial court order

ed Charlesto pay $3,420, plus the medical in surance and ass ociated dental and medical ex penses per mon th. Cons idering t hat the trial court found that Tina has specialized training and work experience and is capable of employment and th at the total amountof the support orde red to be paid i s withi n the guideli nes set out in s ection 154.126 of the Family

Code, we conclude the support aw ard was not

an abuse of discr

etion by the trial cour t. Issue thr

ee is overruled.15

By her fourth iss ue, Tina contendsthe trial court erred i n striking her supplement to counterclaim and answer to petitioner’ s current pl eadings ins ofar as it pled causes of action by Broga n, Ltd. agains t Brogan P.A. We disagree. By her brief, Tina al leges that Br ogan, Ltd., a l imited partner ship, bought t he property at 4110 22nd Street based upon an agreement by Brogan P .A., a professiona l as socia tion, to lease the pr operty for 10 years and pay a rent of $36,000 per month. Without joining B rogan Ltd. or Brogan P.A. as parties, b y her suppl emental counte rclai m, she alleged that she antici pated a breach of the ag reement and req uested the court to either compel execu tion of the lease by Brogan, P.A. by

specific perfor mance or damages. Counsel for Charles o bjected to the p leading contending th e limited part nership and the professional association had not been made parties. Citing S chlueter v . Schlueter, 9 75 S.W.2d 584 (Tex. 1998), Tina ar gues that her action for fraud should be l itigated in this act ion. While the Court did hol d that there is no independent

tortcause of action between spous es for damages to the community es tate, thatrule doesnotmake the trial court’s ac tion rever

sible erro r for sever

al reasons. First, Brogan Ltd. and Brogan P.A. were not made p arties to the su it. Second a nd more important

however , Sch lueter

did not bar Tina’s presentation of ev idence claimi ng fraud on the community through the “ just and rig ht” provi sion. However, Tina di d not attempt to offer any evi dence and the court ’s ruling did not bar any such evid ence. Moreover, because Tina did not make a formal bill of exception and present any evi dence as requ ired16

by Rule 33.2 of

the Texas Rules

of Appellate Procedure, this i ssue was n ot preserved for review

. Se e Spivey

v. James, 1 S.W.3d 380, 385 (Tex.App.--Texarkana 1999, pet. denied). Iss ue four is overruled. Accordingl y, the judg ment of the trial court is affirmed.

Don H. Reavis Justice Quinn, J., not p articipa ting.