Affirmed and Opinion Filed July 24, 2018 

# S

In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-16-01516-CV IN THE INTEREST OF A.G. AND C.B.G., CHILDREN On Appeal from the 255th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-14-16771 

### MEMORANDUM OPINION Before Justices Bridges, Evans, and Whitehill Opinion by Justice Bridges Alfonso Gonzalez appeals the tria l court’s final decree of divo rce. In two issues, Gonzalez argues the trial court reversibly erred in failing to file find ings of fact and conclusions of law and abused its discretion in dividing the parties’ property disprop ortionately and inequitably. We affirm the trial court’s judgment. In September 2014, Claudia Ruiz filed her petition for divorce. The petition stated Ruiz and Gonzalez had married in May 2004, they had two children, an d the marriage had become insupportable. In her request for division of the marital esta te, Ruiz requested that she receive two houses that were part of the community estate. Attached to the petition was a copy of the Dallas County standing order regarding children, pets, property, and c onduct of the parties which ordered the parties, among other things, to refrain from (1) destroying , removing, concealing, encumbering, transferring, or otherwise harming or reducing the value of the property of one or–2– both of the parties and (2) misrep resenting or refusing to disc lose to the other party or to the Court, on proper request, the existen ce, amount, or location of any pr operty of one or both of the parties. In January 2015, Gonzalez filed a counterpetition for divorce i n which he requested, among other things, that Ruiz be enjoined from “[p]lacing one or more telephone calls, in an offensive and repetitious manner, without a legitimate purpose of communi cation” and changing the beneficiary designation on any life insurance policy. Gonzalez claimed ownership of “certain separate property” but did not i dentify the separate property. Gonzalez requested temporary orders regarding the children and regarding discovery, including an or der that Ruiz provide a sworn inventory and appraisement of al l the separate and community pr operty of the parties and their debts and lia bilities. In February 2015, Gonzalez filed an amended counterpetition in which he requested that he be designated as the conserva tor of the children with the ri ght to designate their primary residence and that Ruiz be ordered to make child support paymen ts. Gonzalez requested temporary orders regarding the children ordering Ruiz to pay child suppor t, health insurance premiums, and 50 percent of the children’s unins ured medical expenses while t he case was pending. In September 2016, Ruiz filed an amended divorce petition reque sting that Gonzalez be ordered to pay child support for the time period that the parti es were separated and he failed to pay child support. Ruiz requested tha t the trial court confirm chi ld support and medical support arrearages owed by Gonzalez and order Gonzalez to reimburse Rui z for 50 percent of uninsured medical expenses that Ruiz incurred during the pendency of the case. Ruiz requested a disproportionate share of the pa rties’ estate for the following reasons: (1) fault in the breakup of the marriage; (2) benefits [Ruiz] may have derived from the con tinuation of the marriage; (3) disparity of earning power of the spouses and their ability to support themselves; (4) education and future employability of the spouses; (5) community indebtedness and liabilities; (6) tax–3– consequences of the division of property; (7) earning power, bu siness opportunities, capacities, and abilities of the spouses; ( 8) need for future support; (9) nature of the property involved in the division; (10) wasting of community assets by the spouses; and (11) attorney’s fees to be paid. Ruiz requested that the trial court enjoin Gonzalez from making withdrawals from any checking or savings account for any purpose or spending any sum of cash in his possession or subject to his control, except as specifical ly authorized by court order. In a hearing before the court on September 12, 2016, Ruiz submi tted a summary of the relief she was requesting, which the court admitted without obj ection. Gonzalez failed to present his requested relief. Ruiz test ified that, soon after she and Gonzalez separated, she discovered Gonzalez had been exchanging “many texts” with another woman, V ianney Palacios. Ruiz remembered seeing Gonzalez and Palacios together in the parking lot at Gonzalez’s job “around six in the afternoon.” Ruiz asked who Palacios was, and Gonzal ez said she was a paralegal who was “dropping him off.” After Gonzalez told Ruiz this, Ruiz “r eached for his phone and his keys,” but Gonzalez “fought [her] for his phone.” Ruiz said she was “ willing to forgive and forget” because of the children, but Gonzalez was not interested in rec onciling. Ruiz testified that, giving Gonzalez “credit for $4400,” he owed $5500 in child support arr earages. Ruiz also testified and introduced an exhibit showi ng $3369.48 in unreimbursed medical expenses was owed. On crossexamination, Ruiz agreed that th e unreimbursed medical expenses were “supposed to be halved.” Ruiz testified she was asking the court to award her a dispropo rtionate division of the property because she thought Gonzalez was hiding income. Ruiz testified Gonzal ez has a second job in real estate, but he did not disclose that he had real es tate income during the course of the case. Ruiz testified Gonzalez ha d not filed income taxes since 2008, but he “talks about having a business partner that he flips houses with.” Ruiz testified sh e also asked for a disproportionate division because the debts, bills, and health insurance costs w ere all in her name, and it was only–4– her credit that was being affect ed by any delinquencies. Ruiz submitted a summary of expenses to establish her financial situation, which was admitted withou t objection. Regarding the vehicles Ruiz listed in her inventory, she admitted a Toyota Sequoia she listed was in Gonzalez’s father’s name, but she testified “We paid for that car,” it was paid off , and it was the car Ruiz had “always driven.” Caroline Roberts-Daley, a family court counselor, testified she performed the child custody evaluation in this case. Roberts-Daley testified Ruiz is “a ve ry caring mother” who “loves her kids very much.” Roberts-Daley met wi th Ruiz “five or six times” an d visited Ruiz’s home, which provided a room for each child and was “child focused.” Robert s-Daley testified Ruiz was concerned about Gonzalez not pay ing child suppor t and “him expo sing the children this early to a relationship that [Ruiz] felt he had with another woman.” Gonz alez told Roberts-Daley that Palacios was “a business partner,” and they “repair and fix hom es to sell.” The children told Roberts-Daley that they had gone fishing with Palacios’s son, a nd they went to restaurants and to Palacios’s home. The children said that, at Palacios’s home, G onzalez and Palacios “talk” in Palacios’s bedroom with the door locked. Regarding documentati on Roberts-Daley requested, Ruiz provided the requested material, but Gonzalez was missing letters of reference and a “letter from employment verification.” R oberts-Daley testified Gonzale z never gave her information that would help her verify his employ ment. Roberts-Daley visited Go nzalez’s home and determined the children had to share a r oom but had “their own set of draw ers and clothes.” Gonzalez testified that, “for many years,” Ruiz said she was no t happy with the marriage. Gonzales blamed Ruiz’s “change in lifestyle” for the breakdown of the marriage. Gonzalez testified Ruiz “wante d to go out more with her cousins,” and “s he wouldn’t come home when she went out.” Gonzalez testified Ru iz “would go out wearing certa in clothes, dressed a certain way, but she came back a certain way.” When asked what was so speci al about her clothes, Gonzalez–5– replied, “Very provocative.” Gonzalez testified Ruiz went out to clubs “at least once a month,” and “There was never an inciden t where she went out and came ho me that night.” Gonzalez testified that, in January 2016, he had a Ford 250 tru ck stolen, and he “received a check.” The trial judge asked Gonzalez the amount of the che ck, and Gonzalez answered, “I don’t recall.” The trial judge asked if the amount was more th an $5000, and appellant answered, “Maybe? I mean, I don’t recall, to be honest with you.” In re sponse to questioning by his counsel, Gonzalez testified he spent the money he received for the truck on “Necessities, spent on the children.” Gonzalez testified he had not paid al l his child su pport because he “started a new job,” and his income “dropped significantly.” On cross-examination, Gonzalez said he was making $20.91 per hour and also had a r eal estate license since 2002. Gonzalez said he had helped Palacios purchase homes with her money, but he was not getting paid for “counseling and advising” her. When asked if he closes the door when he’s in the bedroom with Palacios, Gonzalez answered, “At that time, yes,” but he denied locking the door. Gonzalez also denied being in an intimate relationship with Palacios. Gon zalez confirmed that he “want[e d] the Court to believe” Palacios was his business partner, he wa s not getting any money from “fl ipping of these houses,” and he had not “made anything as a real estate agent.” At the conclusion of the hearing, the trial judge orally pronou nced findings that it was in the best interest of the children to give Ruiz the exclusive ri ght to determine the primary residence of the children, receive child s upport, and make educational de cisions. The judge ordered Gonzalez to pay $550 per month in child support and confirmed a $5500 child-support judgment and a medical support judgment of $5580. The judge also awarde d Ruiz an $1816.74 judgment for unreimbursed medical expenses. Regarding the property divi sion, the judge awarded one house to Ruiz and ordered the other one sold and the proceeds split e qually between Ruiz and Gonzalez. The judge awarded Gonzalez the i nsurance check for payment of h is stolen truck. On September–6– 30, 2016, the trial judge signed a final decree of divorce in k eeping with her oral pronouncements. In October 2016, Gonzalez filed a request for findings of fact and conclusions of law and a motion for new trial. The trial court took no action on Gonzalez’s re quest or motion, and this appeal followed. We first address Gonzalez’s sec ond issue in which he complains the trial court abused its discretion in disproportionately and inequitably dividing the p arties’ property. Specifically, he argues the trial court granted Ruiz 72% of the property and 28% of the property to Gonzalez, and this division “was so manifestly unjust and unfair so as to con stitute an abuse of discretion.” Gonzalez also complains the trial court mischaracterized proper ty and liability in dividing the property without any legally or f actually sufficient evidence t o support such a cha racterization. An appellate court reviews a tria l court’s divisi on of property under an abuse of discretion standard. Reisler v. Reisler , 439 S.W.3d 615, 619 (Tex. App.—Dallas 2014, no pet.) (citing
Moroch v. Collins , 174 S.W.3d 849, 857 (Tex. App.—Dallas 2005, pet. denied)). T he trial court is afforded broad discretion in d ividing the community estate a nd an appellate cou rt must indulge every reasonable presumption in favor of the trial court’s prop er exercise of its discretion.
Schlueter v. Schlueter , 975 S.W.2d 584, 589 (Tex. 1998); Murff v. Murff , 615 S.W.2d 696, 698 (Tex. 1981); In re Marriage of C.A.S. and D.P.S. , 405 S.W.3d 373, 384 (Tex. App. —Dallas 2013, no pet.). A trial court does not abuse its discretion if there is some evidence of a substantive and probative character to support the decision. In re Marriage of C.A.S. , 405 S.W.3d at 383; Moroch , 174 S.W.3d at 857. To determine whether the trial court abused its discretion, an appellate court considers whether the trial court: (1) had sufficient evidence upon which to exercise its discretion; and (2) erred in its exe rcise of that discretion. In re Marriage of C.A.S. , 405 S.W.3d at 383; In re
A.B.P. , 291 S.W.3d 91, 95 (Tex. App. —Dallas 2009, no pet.). The app licable sufficiency review comes into play with regard to the first question. In re Marriage of C.A.S. , 405 S.W.3d at 383;–7– Moroch , 174 S.W.3d at 857. An appellate court then proceeds to deter mine whether, based on the elicited evidence, the trial cour t made a reasonable decision. In re Marriage of C.A.S. , 405 S.W.3d at 383; Moroch , 174 S.W.3d at 857. In family law cases, the abuse of discretion standard of review overlaps with the traditional sufficiency standards of review. Moroch , 174 S.W.3d at 857; see also In re A.B.P. , 291 S.W.3d at 95 (discussing standard). Whe n deciding if the trial court abused its discretion, the legal and factual sufficiency of the evid ence are not independent grounds of reversible error, but instead constitute factors relevant to an appellate court’s assessment of whether the trial court abused its discretion. In re Marriage of C.A.S. , 405 S.W.3d at 383; Moore v. Moore , 383 S.W.3d 190, 198 (Tex. App. —Dallas 2012, pet. denied); Moroch , 174 S.W.3d at 857. In a divorce decree, the trial court shall order a division of the parties’ estate in a manner that the trial court deems just and right, having due regard fo r the rights of each party. T EX

. F AM

. C ODE A NN . § 7.001 (West 2006); In re Marriage of C.A.S. , 405 S.W.3d at 384. The property division need not be equal and the trial court may consider man y factors when exercising its broad discretion to divide the marital property. Murff , 615 S.W.2d at 699; In re Marriage of C.A.S. , 405 S.W.3d at 384. Mathematical precision in dividing property in a divorce is usually not possible. Murff , 615 S.W.2d at 700. The party com plaining of the division of the community estate has the burden of showing from the evidence in the record that the tria l court’s division of the community estate was so unjust and unfair as to constitute an abuse of di scretion. In re Marriage of C.A.S. , 405 S.W.3d at 384. Here, Ruiz submitted a summary of the relief she was requesting , which the court admitted without objection. Gonzalez failed to present his requested re lief. Ruiz submitted a summary of expenses to establish her financial situation which was admitte d without objecti on. Gonzalez did not object to Ruiz’s testimony and admission into evidence of a summary showing Gonzalez owed–8– $5580 in unpaid health insurance. Ruiz testified that, giving Gonzalez “credit for $4400,” he owed $5500 in child support arrearages. Ruiz also testified and int roduced an exhibit showing $3369.48 in unreimbursed medical expenses was owed. On cross-examination , Ruiz agreed that the unreimbursed medical expenses were “supposed to be halved.” Ru iz testified she also asked for a disproportionate division because the debts, bills, and health insurance costs were all in her name. In each case, Gonzalez did not object to Ruiz’s testimony or th e admission of her supporting documents. At the conclusion of the hearing, the trial court orally ordere d Gonzalez to pay Ruiz $550 per month in child support and confirmed a $5500 child-support judgment and a medical support judgment of $5580. The judge also awarded Ruiz a $1816.74 judg ment for unreimbursed medical expenses, which was fifty percen t of the total a mount. Regardi ng the property div ision, the judge awarded one house to R uiz and ordered the other one sold and th e proceeds split equally between Ruiz and Gonzalez. The judge awa rded Gonzalez the insurance ch eck for payment of his stolen truck. Gonzalez did not dispute or object to Ruiz’s testimony, her documentation, or the trial court’s oral division of the parties’ property. Under these ci rcumstances, we conclude Ruiz’s testimony and supporting documentation constituted some evidenc e of a substantive and probative character to support the trial court’s decision. See In re Marriage of C.A.S. , 405 S.W.3d at 383;
Moroch , 174 S.W.3d at 857. Gonzalez has failed to meet his burden of showing from the evidence in the record that the trial cour t’s division of the community estate was so unjust and unfair as to constitute an abuse of discretion. In re Marriage of C.A.S. , 405 S.W.3d at 384. We overrule Gonzalez’s second issue. In his first issue, Gonzalez argues the trial court reversibly erred in failing to file findings of fact and conclusions of law. Section 6.711(a) of the family code provides that in a suit for dissolution of marriage, on request by a party, the court shall state in writing its findings of fact–9– and conclusions of law concerning : (1) the characterization of each party’s assets, liabilities, claims, and offsets on which disputed evidence has been present ed; and (2) the value or amount of the community estate’s assets, liabilities, claims, and offsets on which disputed evidence has been presented. T EX

. F AM

. C ODE A NN . § 6.711(a) (West 2006); In re Marriage of C.A.S. , 405 S.W.3d at 380. Harm to the complaining party is presumed unless the c ontrary appears on the face of the record when the party makes a proper and timely request for fin dings and the trial court fails to comply. Tenery v. Tenery , 932 S.W.2d 29, 30 (Tex. 1996). However, a trial court’s fail ure to make findings is not harmful error if “the record before the ap pellate court affirmatively shows that the complaining party suffered no injury.” Id. (quoting Cherne Indus. v. Magallanes , 763 S.W.2d 768, 772 (Tex. 1989). When there is evidence in the app ellate record to support the trial court’s decision, the failure to make findings and conclusions is considered harmless error. Id. Here, we have already concluded Ruiz’s testimony and supporting documentation constituted some evidence of a substantive and probative character to suppo rt the trial court’s decision. Under these circumstances, we conclude the trial court’s failure to m ake findings and conclusions was harmless error. We overrule Gonzalez’s first issue. We affirm the trial court’s judgment.

161516F.P05 /David L. Bridges/ DAVID L. BRIDGES JUSTICE–10– 

# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT

IN THE INTEREST OF A.G. AND C.B.G., CHILDREN,

No. 05-16-01516-CV On Appeal from the 255th Judicial District Court, Dallas County, Texas Trial Court Cause No. DF-14-16771. Opinion delivered by Justice Bridges. Justices Evans and White hill participating. In accordance with this Court’s opinion of this date, the judg ment of the trial court is AFFIRMED

. It is ORDERED that appellee Claudia Ruiz recove r her costs of this appeal fr om appellant Alfonso Gonzalez, III.
Judgment entered July 24, 2018.