1 John T. Boyd, Chi ef Justice (Ret.), Sev enth Court of Appeals, sitti ng by assignment. Tex . Gov ’t CodeAnn. §7 5.002 (a)(1 ) (Vern on Sup p. 200 3). NO. 07-01-0200 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L E OCTOBER 7, 2003

______________________________ IN THE M ATTER OF THE MARR IAGE OF ALTA MAESCOTT

AND JOHN THOM AS S COTT

_________________________________ FROM THE 316 TH DISTRICT COURT OF HUTCHINSON CO UNTY; NO. 33,458; HON. JOHN LAGRONE, PRESIDING

_______________________________ Before JOHNSON, C.J., QUINN, J., and BOYD, S.J. 1 OPIN ION John Tho m as S cot

t (J ohn ) ap pea ls from a final divorce decree which ended his 53 year m arri age to Al ta Mae S cott (Alta) and divided the com munity property . The four issues before us fal l within two genera l categori es. The first involves the legal and factual
s uffici ency of the evidence underlying the trial court’s decision to grant the d ivorce an d divide the marital estate. The second con cer ns t he a bility of t he t rial cour

t toaward titl e to realty to one who is not a party to the act ion. W e affirm in part and reverse and rem and in part. Issue One — Sufficiency of the Evidence U nderlying the Grounds for Divor ce2

John initial ly contends that the evidence underlying the trial court’s decision to grant the divorce wasboth legally and factually insufficient. W e disagree. Al ta petiti on ed fo r d i vo rc e o n t he gr ou nd s t ha t t he mar ri ag e h ad be co me insu ppo rta ble due to discord or conflict of personalities that destroys thelegitimate ends of the m arital relati onship and prevents any reasonab le expectation of reconciliation. See T EX . F AM . C ODE A NN . §6.001 (Vernon 1998). Though she did not personally testify at tria l, the record nonetheless contains evidence indicating that 1) the S cotts had not slep t in the
sa me bedroom for

approxim ately 22 years or lived under the sam e roof for one and onehalf years prior to the final hearing, 2) Alta had changed her lifestyle, 3) Alta had attem pted to run John off of the road with a vehicle, 4) John believed Alta was und erm ining his business, and 5) J ohn w ant ed to “g et r id of this dea l.” T his is more than am ple evi dence up on which th e trial court could have determ ined that the m arital relati onship has been impeded, that discord and conflict of personalities existed, and tha t th e m arit al re latio nsh ip had end ed w itho ut r

eas ona ble e xp ectatio n of reconc il iatio n. See Baxla v. Bax la , 522 S.W.2d 736, 739 (Tex. Civ. App.–Da l las 1975, no writ) (holding evidence that indicated
one spo usethr

eat ene d tokill t he o the r an d at tem ptsat r

eco ncili a tion wentfor naught evinced that the m arital relati onship had becom e insupportable). As sta ted in precedent, w hether the evidence is sufficient to establ is h insupportability is left to the discretion of the trial court when the divorce is tried by the court. Id. at 738-39; Cusack v. Cusac k , 491 S.W.2d 714, 720 (Tex. Civ. App.– Corpus Christi 1973, writ dism ’d w.o .j.). We conclude that t he trial cou rt did not abuse its discretion when it held t hat th e ma ri ta l re l at i on sh i p b et we en th e S co tt s h ad be co me insupportable.3 Issue Two — Award to J & J Panhandle Construction, I nc. Next, John asserts that the trial court erred when it a w ard ed t itle to se ver al pa rce ls of realty to J & J Panhandle Construction, Inc. (J & J) even th ough J &J was not a party to the divorce proceeding. We overrule the point. The property

in question (various tra c ts totaling 40 acres) wa s transferred by an entity known a s Riata to John and A lta. At the ti me of the tran sfer, Ri ata owed J & J for work that J & J had perform ed for it. And, to sat isfy the outstanding debt due J & J, Riata transferred the realty to Alta and John, the latter being a director and the president of the corporation. Thereafter, Joh n’sson , Ja m es, inte rve ned in t he d ivor ce p roc eed ing. He did
so alleg ing that he, like his fath er, was a shareholder of J & J and that John had “engaged in fraudulent or dishonest conduct . . . in that he breached his fiduciary duty t o the Corporation by using corporate funds toacquire property in his personal name” and that “he has failed to reveal to other directors and officers pertinent facts adverse to corporate interests . . . .” Thereafter, he prayed for damages, the rem oval of John as a director of J & J, interest, costs, atto rney’s fees, and “such other relief which the Intervenor m ay be entitled.” Though John answ ered the pe titio n, h e did so by general denial. No special exceptions w

ere included in the pleading. Ja mes’ petition can be reasonably interpreted as being in the nature of a sharehol der’s derivati ve suit. That i s, he, as a sharehol der of J & J, initi ate d su it on beh alf of the corpo ration to recover upon claim s of the corporation against its president. A nd, though the petition may have om itted various pleading requirements ma ndated by statute,
see Edlund v. Bounds, 842 S.W.2d 719, 728-29 (Tex. App.–Dallas 1992, no w rit) (holding thatthe shareholder m ust allege in his pleadi ng that he m ade dem and upon the corporate4

officersto prosecute the ac tion and they refuse d or explain why no such dem and was made), no one specially excepted to their absence. Thus, they w ere waived. Similarly waived w

as any com plaint about Jamesfailing to join J & J as a party to the suit. W hile the corporation was a necessary or indispensable party to the proceeding,
see DeBoard v. Cicle Y Of Yoakum, Inc. , 95 1 S. W .2 d 1 27 , 1 34 (T ex. App.–Corpus C hristi 1997), rev’d

on other grounds, 967 S.W.2d 352 (Tex. 1998) (holding it an indis pen sab le partyto a sh areholdersderivativesuit); Providential Inv. Corp v. Dibrell, 320 S.W.2d 415, 418 (Tex. Civ. A pp.–Houston 1959, no writ) (holding it a ne cessa ry party to suc h a suit),
no one objected to its absence below. Thus, the defect was w aived. See Puryear v. Red River Authori ty , 38 3 S .W.2d 8 18, 821 (Te x. Civ

. App.–Am arillo 1964, writ ref’d n.r.e.) (holding that in t he absence of a plea of non-j oinder of necessary parties, the appellate
co urt was not authorized to reverse the trial court’s j udgme nt because of the lack of a
necess aryparty); Cox v. Johnson , 638 S.W.2d 867, 68(Tex . 1982) ( holding that the failure to join an indispensable party generally is notfun dam ental er ror becaus e se ldom

w ill the absence of an indispensable party deprive the trial court of jurisdiction to adjud icate between the parties alrea dy j oined). Final ly, a reading of the record di scloses ample evid ence upon which the factfinder
cou ld have rea son ably dec id ed that the realty actually belonged to J & J. Again, Riata
owe d the corporat ion a debt. Thus, the receivable belonged to J & J, not John, its president and a shareh olde r. Moreover, the conveyance occurred in satisfaction of the debtowed to J & J, according to John’s ow n testimo ny. It is well settled that wh en one partypays the purchase price of realty (that price being satis facti on of th e debt d ue J & J atbar) but title is placed in the name of another, a pur chase money resultin g trust will arise5

in favor of the enti ty providing th e purchase m oney. Nolana Dev. Ass’n v. Corsi , 682 S.W.2d 246, 250 (Tex. 1984). T here existin g evidence illustrating that such a trust arose here, the trial court did not err in vesting J & J w ith title to the land.

Issue Three — S

ale of H orses B elow Fair

Marke t Value Next, John attacks t he legal and factual suf ficie ncy of the eviden ce underlying the trial court’s finding number VI II. In the latter, the trial court stated that on Decem ber

7, 1999, [it] ordered the eleven horses belonging to the parties to be sold and the proceeds paid into the registry of the Court. John . . ., without consulting [Alta] , sold the horses at a private sale for $3, 100, an amoun tbelow

their fair m ark et v alu e, with intent to reacquire said horses after the divorce was final. However, John neither ar gues nor attempts to il lustrate th e effect, if any, th at the court’s finding had upon the j udgme nt ultimately rendered. This is of im port since the burden lay with hi m t o es tablish on appeal that the purported error caused the rendition of an improper judgm ent. In re M .S. , No. 02-0509, 2003 WL 21512654 (Tex . July 3, 20 03); Cresce ndo Inv., Inc. v. Brice , 61 S.W.3d 465, 477 (Tex. App.–San Antonio 2001 , pet

. denied). Consequentl y, we m ay not reverse the j udgme nt of the trial court (assum ing that the error of which he complains w as indeed error). See T EX . R. A PP . P

. 44.1(a) (stating thatno judgm ent m ay be reversed on appea l on the ground that the t rial court made an error of law unless the cou rt of appeals concludes tha t th e er ror com plain ed o f pr

oba bly caused the rendition o f an improper j udgme nt or probably prevented the appellant from prop erly p resenting the case to the court of appeals); Goode v. Shoukf eh , 915 S.W.2d 666, 67 3 ( Te x. App.–Am arillo 1996), affirmed , 943 S.W.2d 441 (Tex. 1997) (overruling the point of error

since the appellant did not claim or attem pt to show that he was harm ed by the purported error).6 Issue Four – V

aluation a nd Division of Pr operty Through his last i ssue, John attacks the trial court’s distribution of the marital estate. He does so by first contending that the trial court erred in valuing two separate tractsof land. Then, he questi ons the suffici ency of the evidence underlying the trial court’s finding thatthe personalty awarded to each litigant was subs tantially equal. W e sus tain the issue. Statute obligates the trial court to divide the ma rital estate, upon the divorce of the parties, “in a m anner th at the court dee m s j ust and right, hav ing due reg ard for the rights of each party an d any c hildren of th e m arriage.” T EX . F AM . C ODE A NN . §7.001 (Vernon 1998). This provision does not obligate the court to divide the property equally. Tate v. Tate , 55 S.W.3d 1, 10 (Tex. App.–E l Paso 2000, no pet.). Indeed, it has long bee n he ld thattrial courts have great discretion in determining how t o d iv id e t he est at e, an d we cannotinterfere with that decision unless and until it is shown t ha t i ts discretion was abused. Murff v. Murff , 615 S.W.2d 696, 698 (Tex. 1981). Wi th this said, we turn to the contentions before us. As to the valuation of

the tw o tra cts of land, the first parcel consists of five acres located in Hutchinson County. On it sits a three bedroom 1700 s q uar e fo ot h ous e in average condition, a detached tw o car garage, another detache d garage, three storage buil dings, a metal shop, two horse stables w it h a pipe fence corral, one water well, a
w indm ill, several chicken coops, and oth er improvem ent s. The trial court valued the pro per ty a t $3 5,6 10. Thiswas t he very sam e value placed upon it by Alta in her verified inv e ntory

and appraisem ent, which doc ument was received into evidence. See Vannerson
v. Vannerson , 857 S.W.2d 659, 671 (Tex. App.–Ho uston [1 stDist.] 1993, no w rit) (holding thatthe trial court could rely upon the contents of a sworn inventory when arriving at its7

conclusions of law); Bailey Co un ty Apprai sal Di st. v. Smal

lwood , 848 S.W.2d 822, 824 (T ex. App.–Am arillo 1993, no writ) (stating that an ow ner is qualified to testify about the marketvalue of

his property). Furtherm ore, she represents (through her brief and verified inventory

and appraisem ent) that the $35,610 fi gure was t he valuation assigned to the parcel by theHutch inson Cou nty A ppraisal Dist rict in 1997 (three years prior to trial). Thus, som e evidence appears of record supp orti ng the trial court’s valuation of the property. Yet, alsoof r

eco rd isother evidence concerning the value of the t ract. For instance, Alta ten der

ed a n ap pra isal w her

ein the appraiser opined thatthe realty had a m arket value of $80,000. He based his opinion upon comparable sales in the area. N ext, a local real estate agent represented that bas ed on hi s i ns pe ct io n o f th e h ome a nd imp ro ve ment s, “we
co uld l ist [the] hom e for sale at an asking price of $125,000 and could probably get an offer som ewh ere in that

price rang e.” Additionally, John valued the parcel from $12 5,000 to $15 0,0 00. Ascan be s een , th is other evidence, including that of Alta’s own appraiser, valued the parcel at a sumfar greater than t hat as signed by the local a ppraisal distri ct three years before trial. More im porta ntly, authority has long recognized that “values reflected by t he ta x r olls do not r eflect ac tual value. ” Housing Authority v. Brown , 256 S.W.2d 656, 659 (Tex . Civ. App.–Dallas 1953, no w rit). Given Brown , Alta’s apparent reli ance on the local tax rolls wh en valuing t he trac t in her inve ntory

and appraisem ent, the trial court’s obvious reliance on Alta’s opinion, and the othe r evidence illustrating a value atleast twice as m uch as the dated valuation assigned the land by lo ca l t ax r ol ls , we conclude that the valua tion pl aced on the la nd by the tria l court i s s o agains t the great8

weight and preponder ance of the evid ence as to m ake the valuation clearly wrong or manifestly unj ust. In short, the evidence underlying the valuation is factually insufficient. Therefore, the findi ng is erro neous. So too is i t harmful. For inst ance , in add it ion to awarding the tract to Alta, the trial court also entered a $12,000 j udgme ntagainst John and in favor of Alta “[f]or the purp ose of a justand rightdivision of property.” Obviously, revaluation of the fiv e ac re p arcel w

ould m ate rially

aff ect thesum , if

any, John is obligated to pay Alta to gain a j ust

and righ t div ision of t heir estate . S o, t he e rro r pr oba bly caused the rendition of an improper j udgme nt. T EX . R. A PP . P

. 44. 1(a )(1 ). A nd, becaus e it di d, we mu st rem and the entire com munity es tate for a new division. Jacobs v. Jacobs , 687 S.W.2d 731, 732 (T ex. 1985) (h olding that whe re error in part of the division of the m arital estatem ate rially affects the trial court’s jus t and right division of the entire estate, the reviewing cour t must remand the entire com munity es tate for a new division); In re Taylor , 992 S.W.2d 616, 621 (Tex. App. –Texarkana 1999, no pet.) (holding the sam e). Having sustained that portion of issue four involving valuation of the five acretract,
we need not consider

the other aspects of t he issue. Accordingly, we reverse that part of the trial court’s judgm ent that divides the com munity es tate of John a nd Alta Scot t and remand the cause for further proceedings. In all other aspects, the j udgme nt of the trial court is affirmed.

Per Curiam