### NUMBER 13 - 11 - 00116 - C V 

## COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRIST I - EDINBURG

FIDEL BARRERA JR. , Appellant,

v. MICHELLE ANN BARRERA , Appellee.

On appeal from the 267 th District Court o f Victoria County, Texas.



## MEMORANDUM OPINION 1


### Before Justices Rodriguez, Benavides, and Perkes Memorandum Opinion by Justice Rodriguez This is a divorce case involving the conservatorship of children and the division of the marital estate. By three issues, appellant Fidel Barrera Jr., contends that the trial court abused its discretion when it: (1

- 2) awarded the right to determine the c hildren's

1 Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See T EX

. R. A PP

. P . 47.4.2

primary resi dence to the grandmother; and (3 ) rendered a division of the marital estate in a manner that was not just and right. We reverse and remand, in part, and affirm, in part.

I. R IGHT TO D ETERMINE THE P RIMARY R ESIDENCE OF THE C HILDREN By his first issue, appellant contends that the trial court abused its discretion when it gave the children's maternal grandmother the exclusive right to determine the primary residence of the children when she had not filed any pleadings in which she requested possession of or access to the children. Appellee agrees that the trial court abused its discretion in this regard. Orders arising from a suit affecting the parent

- child relation ship will be overturned on appeal if the complaining party demonstrates an abuse of discretion by the trial court. In re C.A.M.M. , 243 S.W.3d 211, 214 (Tex. App.

— Houston [14th Dist.] 2007, pet. denied) (citing Worford v. Stamper , 801 S.W.2d 108, 109 (Tex. 1990) (per curiam)). A trial court abuses its discretion if it incorrectly interprets or improperly applies the law. In re Dep't of Family & Protective Servs. , 273 S.W.3d 637, 642

- 43 (Tex. 2009) (orig. proceeding); Walker v. Packer

, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding)). A trial court does not properly apply the law by awarding relief to a person who has not requested such relief in a live pleading. In re Russell, 321 S.W.3d 846, 855 (Tex. App.

— Fort Worth 2010, orig. proceeding). O nly a c onservator is to be awarded the exclusive right to determine the primary residence of the child. T EX

. F AM

. C ODE A NN

. § 153.134 (West 2008). Applying the law to the facts of this case and acknowledging the agreement of the parties, we, too, agree that beca use the maternal grandmother did not appear in this3

proceeding, the trial court should not have awarded her any rights. 2 Se e id

. ; In re Russell, 321 S.W.3d at 855. We sustain appellant's first issue. By his second issue, appellant asserts that the evidence at trial supports his request to be named joint managing conservator with the exclusive right to determine the children's primary residence and asks this Court to render judgment in that regard. How ever, based on our review of the record, we conclude that it would be improper to render judgment without evidence as to what is currently in the best interest of the children and without proper determinations of fact. See Gray v. Shook , 329 S.W.3d 186,
2 00

- 01 (Tex. App.

— Corpus Christi 2010, pet. filed) (discussing similar facts where the trial court improperly appointed the grandparent as sole man aging conservator and determining that a remand was necessary for the determination of the best interest of th e child in establishing a conservatorship between the child's parents); see also T EX

. R. A PP

. P. 43.3(b) ("When reversing a trial court's judgment, the court must render the judgment that the trial court should have rendered, except when .

. . the interest s of justice require a remand for another trial."). Therefore, we overrule appellant's second issue.
II. D IVISION OF THE M ARITAL E STATE By his third issue, appellant contends that the trial court abused its discretion when it refused to order appellee to repay $13,000 to appellant's mother. He argues that this was a debt incurred solely by appellee. Appellant asserts that by failing to order appellee to repay this debt out of her share of his retirement account, the trial court acted in a manner that di rectly conflicted with its pronouncement that appellee pay "[a]ll debts, charges, liabilities, and other obligations incurred solely by [her] from and after January

2 It is undisputed th at the children's maternal grandmother did not file any pleadings and did not testify or otherwise appear at any hearings in this cause.4

2007," thus rendering a division of the marital estate that was not just and right. See
T EX

. F AM

. C ODE A NN

. § 7.001 (West 2006)

. Review of the trial court's division of the community estate is governed by an abuse

- of

- discretion standard. Murff v. Murff , 615 S.W.2d 696, 698 (Tex. 1981). The trial court is vested with broad discretion in divi ding the marital estate at divorce. Id. Equal division of the marital estate is not required. Id. Upon appeal, it is presumed that the trial court exercised its discretion properly, and the cause will be reversed only where there is a clear abuse of di scretion. Id. "In a decree of divorce .

. . , 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." T EX

. F AM

. C ODE A NN

. § 7.001 ; see Ridgell v. Ridgell , 960 S.W.2d 144, 147 (Tex. App.

— Corpus Christi 1997, no pet.) ("A clear abuse of discretion is shown only if the division of property is manifestly unjust and unfair."). A trial court does not abuse its discretion if th ere is some evidence of a substantive and probative character to support the decision. Knight v. Knight , 301 S.W.3d 723, 728 (Tex. App.

— Houston [14th Dist.] 2009, no pet.). However, because the trial court's discretion is not unlimited, there must be som e reasonable basis for an unequal division of property. Id. Appellant contends that when the trial court did not find the $13,000 was appellee's separate liability, it must have erroneously found that it was a gift to appellee from appellant's mother. Ba sed on this contention, appellant argues that appellee did not meet her burden in proving that it was a gift. This contention presumes, however, that the trial court found that the $13,000 was a gift to appellee. No findings of fact were5

requested or fil ed; therefore, the trial court's judgment implies all findings of fact necessary to support it. Sixth RMA Partners, L.P., v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003). In this case, the trial court stated that it was not going to order appellee to pay the

mon ey back. And, among other things, there is evidence that establishes it was appellant who obtain ed the $13,000 from his mother

— money to be used to post appellee's bond in Louisiana where she was being held on drug charges and to hire an attorney. Appelle e never spoke with appellant's mother about the money. Based on the above, we conclude that there is some evidence of a substantive and probative character to support the decision of the trial court not to order appellee to repay the $13,000; the trial cou rt could have decided that the $13,000 was community property, that it was appellant's separate liability, or that it was even a gift to appellant from his mother. See Knight , 301 S.W.3d at 728. Thus, we conclude that the division was not manifestly unjust and unfair and that the trial court did not abuse its discretion in so dividing the marital estate. See T EX

. F AM

. C ODE A NN

. § 7.001; Ridgell, 960 S.W.2d at 147. We overru le appellant's third issue.
III. C ONCLUSION We reverse and remand the determination of the conservatorship of the children and affirm the trial court's division of the marital estate.

NELDA V. RODRIGUEZ Justice

Delivered and filed the 26th day of January , 201 2

.