Divorce on Cruelty Ground Not Required Even When the Facts Show it (Plus Characterization, Property Division, Fraud Claims, and Child Support)

Archive, Blog, Brad M. LaMorgese

In Villalpando v. Villalpando, the 14th Houston Court of Appeals (Nov. 17, 2015) affirmed the trial court’s property division, child support award, and its failure to grant a divorce on the ground of cruelty. This case involved multiple family law issues and the substantive issues are addressed below.

Cruelty: Even though the record contained evidence of cruel acts by the husband against the wife, the trial court was not required to grant a divorce on the ground of cruelty. Cruelty is a permissive ground for divorce, and the trial court could grant the divorce on insupportability instead.

Characterization: The trial court did not err in characterizing two parcels of real estate as community property. The wife’s claim of a gift of real estate from her mother was rebutted by documents showing the real estate was purchased by the wife during the marriage in her name, despite the wife’s evidence that her mother purchased the property for her as a gift. Ironically, the court also rejected the wife’s contention that the other real property was the husband’s separate estate, finding that the husband did not prove the property was his separate property.

Property Division: The trial court also made a just and right division, despite wife’s complaint that the trial court awarded the husband a disproportionate division. The wife complained that the trial court should have given her a larger share of property and did not properly consider the Murff factors for giving her a disproportionate share of property. Based on the court of appeals calculations, the wife was awarded a disproportionate share of property — not the husband — so the trial court did not err in dividing the community property. Part of the issue was that there were some unknown values of property awarded to the parties and their value was not clear from the record.

Reconstituted Estate: The wife also complained of the trial court’s failure to make findings of fact on her fraud/reconstituted estate claim. The court basically rejected this claim because the wife failed to request additional findings of fact on this issue under TRCP 298.

Child Support: The court of appeals also rejected the wife’s claim that the child support was set too low. The husband produced five years of tax returns and receipts from his rental properties. The court concluded this was sufficient information for the trial court to determine the husband’s net resources. The wife had claimed that the trial court should have surmised that the husband was under-reporting his income, and that his tax returns were “suspicious.” The court of appeals found that the wife’s suspicions were not evidence, and thus the trial court correctly set child support.