### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-04-00697- CV

M ic hae l D e an Si m s, App e lla nt

v. P atric ia Kaye Sims, Appellee

F ROM THE DISTRICT CO URT OF TOM GREEN COUNTY , 391ST JUDICI AL DISTRICT NO. D-04- 0007 -F , HO NORAB LE THO MAS J. GO SSETT, JUDGE PRESI DING

M E M O R

A N D U M O P I N I O N Appellant Micha el Dea

n Sims and appellee Patricia Kay Sims wer e mar ried for more than eleve n y ear s when a

ppellee f iled for divorc e. F ollowing a bench trial, the trial court signe d a divorce decr ee awa

rding appellee the ca sh in her possession, her rema ining r etireme nt benef its, and the hous e the couple boug ht during the marr iag e. She wa s made re sponsible for the r emainder of the ho us e no te , on wh ic h the y ow e d a bo ut $4 5, 00 0, wa s o rd e re d to pa y a pp e lla nt $ 6, 95 0 “ in e qu ity of the re al prop er t y ,” and w as made responsible for debt she owe d under a

bankruptc y

plan. Appellant wa s awa

rded his truc k and ca sh and personal items in his possession, i ncluding any equipment that re mained fr om his law n car e business. The trial court found that appellant had “be en g uilty of crue l tr eatment” toward a ppellee a nd “knowing ly

and voluntarily

waived a ny interest in” appellee ’s re tirement bene fits. Appellant appeals , arguing that the trial court e rre d in finding that2

he wa ived his interes t in the retire ment benef its and in awar ding a

ppellee a ll of her r emaining retire ment benef

its. W e af

firm the trial c ourt’s divorce decr ee.

F ac tu al B ac kgr ound The pa rti e s were marrie d in May

1992, and appe llee filed f

or divorce in J anuar

y 2004. Appellee worke d at Ver izon for twenty -seve n y ear s, beg inning in September 1976 for $2.80 a

n hour, and wa s the primary

wag e-e arne r during the marr iag e. In 1996, appellant wa s convicted of driving while in to xic a te d , in c a r c e r a te d , a n d p la c e d o n p r o b a ti o n . I n D e c e mb e r 2 0 0 1 , h is p r o b a ti on was revoke d, and he was sent to prison. Appellee took a n ear ly -re tirement pac kag e in Novembe r 2003, while appe llant was still in prison; when she retire d, she wa s ear ning $50,000 a

y ear , and under

the retire ment packa g e she re ce i v ed a $50,000 ca sh sever ance pay ment and a $275,000 lump sum pa y m e n tt h a ts h e p u ti n t o a

r e t i r e m e n ta c c o u n t( “ I RA ” )

. A p p e l l a n tw a s r e l e a s e d f r o m p r i s o nin J anuar y 2004. Appellee testified that throug hout the marria g e, appe llant worke d sporadica lly at dif fe re nt job s. She sa id that most of wh a t app e lla nt ea rn e d “ju st pa id fo r his e xpe ns e s” and the re st “he just spent.” A

ppellee said that appe llant suffer ed fr om chronic e mphy sema, diabe tes, and a back injury , and she did not think a ppellant was capa

ble of doing strenuous phy sical labor a ny more, but she believed he was capa

ble of work that did not require difficult phy sical labor, including lawn ca re. She testified that at the time appellant was sent to jail, he wa s doing la wn work, but wa s not working or earning very much. He spent a lot of t ime drinking and using methamphetamine, a nd she believe d he had be en using drug s since his rele ase f rom prison.3 Appellee testified that app ellant had a bused her phy sically

and ver bally during the marria g e and that there w ere sever al day s when she c ould not g o to w ork bec ause of bruises on her fa c e . In 1 99 6, sh e ob ta ine d a re str a ini ngor de r a g a ins t hi m a ft e r h e punc he d h e r i n the fa c e a nd hit her w ith a telephone r ece iver, but she sa id that he “would br eak my resistanc e down and I

would fee l sorry for him. So I would let him come bac k home, y ou know. And thing s would be g ood for two or three months, and then we’ d be rig ht back in the same situation ag ain.” She testified that in May and Jul y 2001, appellant be at her

and tied her up with a dog leash, telling her that he w ould kill her if she ca lled the police. She said that in the May incident, he disconne cted the te lephone a nd kept her unde r his control for

about five day s; she was tied with the lea sh for a bout two day s, and he tied the leash to his wrist when he slept so she could not esca pe. Appellee testified that in Septe mber 2002, while appellant was in pr ison, s h e was fo rc e d to fi le fo r b a nk

ru ptc y be c a us e sh e c ou ld n ot m a ke the mon thl y pa y me nts on he r c re dit c a rd s, which had be en used to c harg e equipment f or appe llant’s lawn ca

re business. She testified t hat the bankruptc y

cover ed her

auto loan and c redit ca

rd debts incur

red dur ing the m arriag e and be fore appellant we nt to prison, including “thing s that were char g ed for the lawn c are business” like “r iding law mower s, . . . two or three differ ent kinds of self- propelled mowe rs, a we ed eater[] , all kinds of lawn equipment.” She filed for bankruptc y

separ ately

rathe r than jointly

beca use “the y wouldn’t let

me inc lud e him

be c a us e he wa s in

pr iso n. ” Th e ba

nk ru ptc y pr oc e e din g se ttl e d a

bo ut $ 50 ,0 00 in d e bt, she wa s order ed to pay

$40,600 total, and at the time of tria l she still owed $25,000. Appel le e te s ti f

ie d th a t w h e n s h e r e ti r e d , s h e to o k a $ 2 7 5 , 0 0 0 lump s u m p a y me nt instead of a

n annuity that would only

have paid her $1,000 a mont h. To g et t he lum p sum, she had4

to g e t a pp e lla nt’ s si g natur e “ g ivi ng up his ri g hts to the y e a rl y a nnuit y pa y me nts ,” so sh e of

fe re d to pay him $10,000 as part of their sepa ration ag ree ment. Appellee introduced into evide nce a letter sh e se nt t o a

pp e lla nt i n O c tob e r 2 00 3, in w hic h s he sa id s he wa s tr y ing to a rr a ng e he r r e tir e me nt t o g et a lump sum so that she could g ive appellant some cash for hi m to find a plac e to live when he

was re lease d. She s ai d that if she could not g et the lump sum, she would continue wor king a nd

wo uld no t be a ble to g ive a

pp e lla nt a ny c a sh . F or

a pp e lle e to g e t th e lum

p s um, app ell ant had to

“ sig n a pa

pe r fo r Ve ri zon say ing y ou ’r e a wa re I ’m takin g the lum

p su m ins te a d of the mon thl y pay ments. I ’d also want y ou to sig n a paper first befor e I elec t it that I ’m g iving you this money as final pay ment.” Appellant responded in November 2003, writing , “I believe the re a

re more involved [si c] than just the s mall amount y ou are trying to pay me. And if I

have to I ’ll hire me a

lawy er a nd Ibelieve I ’ll have more coming to me than y ou are offe ring . . . . I ’m willing to ac cept Tw enty -F ive Thousand Dollar s ($25,000) to solve this situation. I fee l this amount is equitable f or all conc erne d.” Ap pe lle e a g re e d, a nd

in N ov emb er 20 03, w hil e sti ll i nc a rc e ra te d, a pp e lla nt s ig ne d a

n a ff ida vit

s t at i n g: “In consideration for any and all intere st I may have in my wife’ s pension plan that sh e is o r m a y b e e n t i t l e d

t o w i t h V e r i z o n , Ih e r e b y a c c e p tt h e s u m o f

T w e nty Thousand Dollar s ($20,000.00), pa y able a s follows: the sum of Ten Thousand Dollars ($10,000.00) to be paid to me on or about January 3, 2004; the rema ining Te n Th ou sand Do lla rs ($ 10 ,0 00 .0 0) to b e pa id t o me wi thin f if te e n ( 15 ) d a y s o f m y wife[’]s rece ipt of her pe nsion funds from Ve rizon. “I do this with full knowledg e that upon my acc eptanc e of this money , Iwaive a ny a nd a ll inte re st I may have in any fu nd s sh e may

re c e ive no w o r [i n] th e futur e a s a result of he r pension plan, r etireme nt or any benef its she may

be entitl ed to ar ising from her employ ment with Verizon.Although a ppellant’s af

fidavit states that he w ould rec eive $20,000 in exchang e for any 1 i n t er est in appellee ’s bene fits, his earlier letter to appe llee said he would ag ree to acc ept $25,000. Acc ording t o ap p el lee’ s testimony , it seems that appellant r ece ived $22,000 in cash, a nd appellee may have pa id $3,000 in debts that appellant otherw ise would have owed. Th e $1 5, 00 0 c a shwa s n ot d isc los e d o n a pp e lle e ’s ini tia l in ve nto ry state me nt, a nd

a t tr ia l, 2 when she asked he r attorne y about it, her attorney

said, “I omitted it. I ’m sorry .” 5 Appellee deposited $22,000 into appellant’s ba nk acc ount and “pa id an additional $3,000 in taxes and penalties.” She testified t hat he used the money to finance a truc k, but “trade d 1 it in on another truck and g ot a cash balanc e back” when he fell behind on the pay ments. Appellee also testified that she ha d rec ently g iven appe llant $440 to pay o n e m o n t h ’s truck pa

y ment and ins ur a nce. At

the tim e of

tr ia l, a pp e lle e ha d $ 15 ,0 00 c a shre ma ini ngfr om h e r $ 50 ,0 00 c a sh

se ve ra nc e pa y me nt. She ha d $ 24 5, 00 0 re ma ini ng in he r I RA , whi c h start e d at $2 75 ,0 00 , b e c a us e 2 stocks and bonds had f

allen and she had take n some money out with penalties. F i n a l l y, a p p e l l e e i n t r o d

u c e d a l e t t e r s e n tt o a p p e l l a n ta tt h e p a r t i e s ’ a d dr e s s b y a woman who c alled appe lla n t “s we et h ea rt ,” said she w as “thinking about who is this man that has won my fra g ile hear

t,” and signe d the l etter, “ By e My L ove & friend.” Appellant denie d that he had

a roma ntic relationship wit h the woman, who he said he me t while playing g ames online; he te stified bo th t hat he g a ve he r h is a dd

re ss a nd that he did

no t kn owho w s he g ot t

he a dd re ss. A p p e l l a n td e n i e d dr i n k i n g , u s i n g m e t h a mp h e t a m i n e , o r a b u s i n g a p p e l l e e i n a n y w a y. He te sti fi e d th a t he did

no t kn ow abo ut the $5 0, 00 0 s e ve ra nc e pa y un til a pp e lle e te sti fi e d a

bo ut i t at trial, and he lear

ned about the $275,000 pay ment from his attorney about a month befor e trial. He d e n i e d t h a th e s t i l l o w n e d m o s t o f t h e p r o p e rt y l i s t e d a s i n h i s p o s s e s s i o n o n a

p p e l l e e ’ s i n v e n t o r

y,6

including the lawn car e eq u i p m en t, say ing “ befor e I went to prison, I

sold every

bit of that stuff.” At the t ime of t rial, appe llant owned a tr uck he boug ht for $1,500 and his pe rsonal possessions; of the $2 0 , 0 0 0 h e r e c e iv e d f r o m a p p e ll e e , h e o n ly h a d $ 1 le f t. A p p e ll a n t s a id h e d id n o t h a v e any money to pay his bill s, had not found wor k, and wa s applying f

or disability

. He testified that he did not understand the a ffidavit he sig ned and thoug ht it “was the ag ree ment . . . for me to have enough money to g et a trailer house and a ve hicle.” H e did not know appellee wanted a

divorce until after his re lease from prison and thoug ht she “ne eded spa ce” when he wa s first rele ased, which is why she aske d him to li ve else wher e. Howe ver, in he r Oc tober 2003 letter a bout her re tirement funds, a ppellee did not explicitly

say she wa nted a divorc e, but said, “I ’m sorry this has been such a shock for y ou and so hard to acc ept,” g oing on to sa y that althoug h she had tried to stand by

appellant, a s the time for his rele ase near ed, “r eality sank in and the bubble burst.” She said that althoug h appellant pr omised things would be differe nt this time, she had “ hear d that so many times in the past” and wa s “not taking that chanc e ag ain,” a nd she b elieved she and appellant ha d to learn to be hap p y al o n e bef ore the y could “be happy

with someone else.” She wanted to g ive him money to find a plac e to live, but to do that, she had to g et the lump sum. At the conc lus i o n o f t h e t ri al, the trial c ourt stated that it found that appe llant had phy sically

abused a ppellee dur ing the marria g e and that his “ testimony has bee n less than cr edible. He testified that he di d not know about the—the retirement and the plan she ha d. . . . [I ]n her letter to [ appellant], she clea

rly explains what she is planning, w hy she nee ds to do what s h e is doing.” The c ourt ruled, “My finding [i s] that he has waived his r ight to any retire ment benef

its other than the twenty thousand that has been paid to him.” The trial court g rante d the divorce on g rounds of7

ins up po rt a

bil ity , c ru e lty , an d fe lony c on vic tio n an d mad e a fi nd ingof

fa c t th a t a pp e lla nt w a s “ g uil ty of cr uel treatment toward” appellee and had “knowing ly and voluntarily waived any interest in the retire ment benef

its.”

Discussion I n a divorce proce eding , a trial court must divide the parties’ estate in a manner that the cour t “dee ms just and right.” Tex. Fam. Code Ann. § 7.001 ( West 2006). The cour t i s not require d to divide the community estate e qually , but the division m ust be equitable. O’Carolan v. Hopper , 71 S.W .3d 529, 532 (Tex. App.—Austin 2002, no pet.). The tria l court has br oad, but not unlimit ed discre tion, and an unequa l divisi on must be g rounded in a rea sonable ba sis. Id . The trial

c ourt may c on sid e r f

a c tor s su c h a s th e pa

rt ie s’ a g e s, e du c a tio ns , e a rn ing c a pa c iti e s, bu sin e ss op po rt un iti e s, me dic a l and fi na

nc ia l con dit ion s, a nd se pa ra te e state s, the natur e of

the c omm

un ity pr op e rt y , a nd a ny be ne fi ts that the sp ou se wh o did no t c a us e the dis so lut ion

of the marr ia g e wo uld have e njoy ed had the marria g e co n tinued. Mu rff v . M ur ff , 615 S.W .2d 696, 699 (Tex. 1981); O’Carolan , 71 S.W .3d at 532. We revie w a tria l court’s division of proper t y for an abuse of d i s cre tion. Mu rff

, 6 15 S.W. 2d

a t 69 9; O’Carolan , 7 1 S. W. 3 d a t 5 3 2

. T h e s u f f ic ie n c y o f the

ev idence is releva

nt in considering whether the trial cour

t abused its discretion. O’Carolan , 71 S.W .3d at 532. To amount to an a buse of discr etion, the prope rty division m ust be manifestly unfair. Mann v. M

ann , 6 07 S.W. 2d

24 3, 24 5 ( Te x. 19 80 ); O’Carolan , 71 S.W .3d at 532. Appellee argues t h at “ther e ca n be no doubt” that a

ppellant’s af

fidavit was a

n

a g re e me nt u

nd e r s e c tio ns 4. 10 5 a

nd 7. 00 6 of the fa

mil y c od e . H ow e ve r, the a ff ida vit is s ig ne d o nly8

by appellant, not appe llee, and thus is not a marital proper ty ag ree ment pursuant to section 4.104 of the family

code. See Tex. Fam. Code Ann. §§ 4. 1 0 1 -. 104 (West 2006) (spouses may transfor m

c omm un ity pr op e rt

y int o sep a rate pr op e rt

y ; su c h a g re e me nts mus t be in w ri tin g and sig ne d b y bo th spouses). Fur

ther, appellant repudiated his a g ree ment befor e the tria l court ente red its judg ment, and there fore , the affidavit cannot be considere d an ag ree ment incident to divorce pursuant to sec tion 7.006 of the family

code. Se e id

. § 7.006 (West 2006) (in a divorce proceeding , spouses may enter into written ag ree ment conce rning proper ty division; ag ree ment may be re pudiated or r evised be fore court re nders judg ment unless ag ree ment is binding unde r other la w). How ever , the cour

t could have viewed the aff

idavit as evidenc e of a

n ag ree ment betwee n the p ar t i es as to the dispositi on of appellee ’s re tirement bene fits, an ag ree ment appellee fulfilled when she g ave appellant more than $20,000 cash. The court deter mined that appellee was more cre dible than appe llant and could have decide d that it would be inequitable to disreg ard the parties’ ag ree ment afte r appe llee re lied on the

a g re e me nt i n d e c idi ngto t a ke e a rl y re tir e me nt a

nd in g ivi nga

pp e lla nt t he c a shpa

y me nts

. Ev e n if we dis re g a rd

the tr ia l c ourt ’s fi nd ingof fa c t th a t a pp e lla nt w a ive d h is i nte re st in a pp e lle e ’s re tir e me nt b e ne fi ts, wh e n th e ov e ra ll p ro pe rt y dis tr ibutio n is vie we d as a wh ole , it is not manifestly

unfair so a s to amount to an abuse of discretion. See O ’Carolan , 71 S.W .3d at 532. Appellee was g rante d all of her rema ining r etireme nt benef its, not all of which wer e community

proper ty

. “[A] spouse has a communit y proper ty interest in that portion of re tirement benef its that the other spouse earned during their marri age .” Burchfield v. Finc h , 968 S.W .2d 422, 423 (Tex. App.—Texarkana 1998, pet. denied) (empha sis added)

. I n this case , appellee worke d for Ver izon from September 1976 until November 2003, a nd the par ties were marrie d in May 1992, afte rAp pe lla nt as se rt s tha t all of a

pp e lle e ’s re tir e me nt b e ne fi ts s ho uld be c on sid e re d c omm

un ity 3 proper ty beca use appe llee listed them as such in he r inventory , but any ag ree ment to transform separ ate pr operty

into community

proper ty must be clea

r and une quivocal. See Tex. Fam. Code Ann. §§ 4. 20 2, .2 03 (We st 2 00 6) (s po us e s ma y a g ree t o con ve rt

se pa rate pr op e rt

y int o c omm

un ity proper ty , but ag ree ment must be in writing and signe d by both parties, identify

proper ty in question, and state that property

is being conver

ted to community

proper ty). Th e re wa s n o e vid e nc e of a pp e lle e ’s a g e , e du c a tio nal back grou nd , o r e a rn ingc a

pa c ity 4 sh ou ld s he tr

y to f ind wo rk in h e r r e tir e me nt. 9 appellee had wor

ked at Ve rizon for almost six teen y ear s. Appellee was a lso gr anted the r eal 3 proper ty and was order ed to w rite appellant a chec k for half of the equity the par ties had ac quired; appellant e x presse d no interest in kee ping the house and making t he mortg ag e pay ments, and appellee believed he would be unable to make the pay ments. Appellee was made responsible f or the

e nti re ba nk ru ptc y de bt, wh ic h c ov e re d d e bts sh e te sti fi e d w e re inc ur re d d ur ingthe marr ia g e , at le a st in part for appellant’ s lawn equipment. Although appellant denied it, a ppellee testified that appellant abused dr ug s during the marr iag e and sinc e his rele ase. A ppellee g ave a

ppellant more tha

n $20,000 in c a sh , b ut at the tim e of tr ia l, ab ou t eig ht mon ths la te r, a pp e lla nt ha d noth ing le ft bu t a tr uc k w or th

a bo ut $1 ,5 00 . App e lle e te sti fi e d th a t a pp e lla nt w a s p hy sic a lly

a bu siv e , tw ic e re str a ini nghe r w ith a dog leash a

nd more than once beating her so badly that she skipped work so that no one would see the marks he left on her fac e. At the time of trial, appe llant was about for ty -eig ht y ear s old and had some amount of college education. Although appellant testi fied that, due to his health, he c ould not 4 continue his lawn care business and it “will be pretty hard” for him t o find work, a ppellee be lieved appellant wa s capa

ble of re starting the lawn car e business or finding other employ ment that was not phy sically

taxi ng .10 Conclusion Ba sed on this rec ord, the trial cour t did not abuse its discretion in determining that appellant knowing ly

ag ree d to waive his rig hts to appellee’ s retire ment benef its in ex chang e for

a cash pa y ment and in using that ag ree ment as a g uide in distributing the parties’ estate. Nor wa s the trial court’s unequal di vision of t he communit y estate ma nifestly unfair. See Mann , 607 S.W .2d at 24 5; O’Carolan , 71 S.W .3d at 532. Ther efor e, we overr ule appe llant’s issues on appea l and af firm the trial cour

t’s decr ee of

divorce

.

__________________________________________

David Pury ear , J ustice Be fore Chief J ustice L aw, Justi ces Patter son and Pury ear Affir med Filed: August 4, 2006