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At a Glance:
Title:
Brewer v. Brewer
Date:
May 31, 2000
Citation:
04-99-00526-CV
Status:
Unpublished Opinion

Brewer v. Brewer

Court of Appeals of Texas, San Antonio.

Brenda BREWER, Appellant,

v.

Kent BREWER, Appellee.

No. 04-99-00526-CV.

|

May 31, 2000.

From the 150th Judicial District Court, Bexar County, Texas, Trial Court No. 98-CI-16666; Martha Tanner, Judge Presiding.

DUNCAN, Justices.

Opinion

DUNCAN.

*1 Brenda Brewer appeals the trial court’s divorce decree, arguing the trial court erred in failing to award her child support in excess of the statutory guidelines and in failing to divide Kent Brewer’s stock options. While we affirm the trial court’s judgment in part, we reverse and remand the cause for division of the community estate.

FACTUAL AND PROCEDURAL BACKGROUND

After a seventeen-year marriage, during which time Brenda and Kent Brewer had two children, Brenda filed for divorce from Kent. At the trial before the court, Brenda testified that after the divorce she would be moving back to Canada where her family and friends reside. Brenda testified that she would need to find a job after the divorce because she had not been employed since 1991, when she worked as an administrative assistant earning less than $30,000. According to Brenda, if the children lived with her their combined needs would exceed $4000 a month. She specified their needs as follows:

Type of Expense

 

Monthly Amount

 

Yearly Amount

 

Nanny

$1733.33

$20800.00

Babysitting

$100.00

$1200.00

Housekeeper/babysitter

$173.33

$2080.00

Dental check-up with no X-rays

$26.66

$320.00

Dental X-rays

$16.66

$200.00

Teeth cleaning

$16.66

$200.00

Braces

$291.66

$3500.00

Birthdays

$16.66

$200.00

Other children’s birthday’s

$20.00

$240.00

School lunches

$100.00

$1200.00

Field trips

$16.66

$200.00

Tutor

$216.66

$2600.00

Clothing

$500.006

$6000.00

Summer programs

$150.00

$1800.00

Summer camps

$333.33

$4000.00

Christmas presents

$83.33

$1000.00

Sporting activities

$166.66

$2000.00

Girl Scouts/Daisies

$50.00

$600.00

Total

$4011.60

$48140.00

On cross-examination, Brenda testified she based these amounts on estimates that her friends in Canada had given her. Furthermore, she acknowledged that she currently spends about $150 a month on clothing, but that she anticipated that amount would increase to $500 a month in Canada where “[t]here’s four different seasons.” When asked which summer camp she believed would cost $4000 for the children to attend, Brenda responded that she had not spoken with any particular camp and had based her number on an average of what her friends told her. Brenda further admitted that some of the schools in Canada have after-school programs for children. Finally, although Brenda believed her oldest daughter would need tutoring in French to catch up with the other children, she also admitted she did not know exactly when schools in Canada begin teaching French.

Kent testified that in the years 1994 through 1998 his total compensation ranged between $91,700 and $169,418, and he estimated his earnings for 1999 to be $140,600. While in previous years he had included relocation expenses paid for by his employer among his compensation, he did not include such numbers in his 1998 and 1999 compensation amounts, both of which exceeded $140,000. In outlining what he believed to be the couple’s community property, Kent included stock options he received from his current employer.

*2 The trial court reconvened after the trial on the merits and divided the community estate between Kent and Brenda. The court further indicated it was going to make Kent responsible for $2950 a month in child support. However, Kent’s attorney objected to this ruling, arguing Brenda had not proven any needs above the statutory guideline of $1500. The trial court adjourned without making a subsequent ruling. On April 26, 1999, the court entered the divorce decree in which it required Kent to pay only $1500 in child support. However, Kent was also required to pay $1450 in alimony. Brenda filed a motion for new trial on May 25, 1999, arguing, among other things, the trial court erred in failing to award child support in excess of the statutory guidelines and in failing to divide Kent’s stock options. Although the trial court apparently held a hearing on Brenda’s motion and made an oral ruling on the motion as well as its own motion to clarify and enter a judgment nunc pro tunc on June 30, 1999, the court did not enter an order denying Brenda’s motion for new trial and clarifying the divorce decree until November 30, 1999, after Brenda filed this appeal.

STANDARD OF REVIEW

We review a trial court’s award of child support and division of a community estate, as well as its denial of a motion for new trial, under the abuse of discretion standard. Id. at 840.

CHILD SUPPORT

Brenda first argues the trial court erred in failing to award her child support in excess of the statutory guidelines because Kent’s monthly net resources exceeded $6000 a month and the children’s proven needs exceeded the guidelines.

A trial court may order either or both parents in a divorce to pay child support. Id. § 154.125 (Vernon 1996). On the other hand, if the parent who is obligated to pay child support has over $6000 in monthly net resources, the court presumptively applies the guidelines to the first $6000 in net resources, and then “may order additional amounts of child support as appropriate, depending on the income of the parties and the proven needs of the child [ren].” Id. § 154 .126. Under the guidelines, if the parent is responsible for the support of two children, twenty-five percent of his monthly net resources up to $6000 should go toward child support. Id. § 154 .125.

*3 Here, Kent was responsible for the support of two children, and his monthly net resources exceeded $6000. Furthermore, Brenda testified that she estimated the children’s monthly needs to be over $4000 combined. However, the court awarded Brenda only $1500 a month in child support-twenty-five percent of Kent’s first $6000 in net resources. Brenda argues the trial court erred in failing to award her the full amount of the children’s monthly needs because she offered unrebutted testimony that the children’s needs would exceed the statutory guidelines. However, the trial court, as the finder of fact, may accept or reject some or all of a witness’ testimony. 525 U.S. 1142 (1999).

Brenda’s testimony regarding the children’s needs was attacked on cross-examination, and the trial court could have found Brenda’s testimony unpersuasive or incredible. See id. at 581. Furthermore, to the extent Brenda proved any needs above the statutory guidelines, the trial court may have found Brenda would be able to meet those needs out of the same percentage of her net resources, including her anticipated income and alimony, as was applied to Kent’s net resources. See id. Therefore, we hold the trial court did not abuse its discretion in awarding Brenda $1500 a month in child support. See id.

STOCK OPTIONS

Brenda also argues the trial court erred in failing to divide stock options that were in existence at the time of the marriage. We agree.

“[U]nvested stock options [are] a community asset subject to consideration along with other property in the division of the community estate.” Demler v. Demler, 836 S.W.2d 696, 699 (Tex.App.-Dallas 1992, no writ).

While Kent listed stock options among the community assets, the trial court failed to divide these assets in its divorce decree. Brenda brought this omission to the court’s attention in her motion for new trial; however, the trial court did not rule on her motion within seventy-five days after the judgment was signed and the motion was overruled by operation of law. TEX.R.CIV.P. 329b(e).

Kent argues on appeal that the trial court did amend its judgment to allocate all of the stock options to him at the hearing on Brenda’s motion for new trial. However, there is no record of such a hearing and any modification order was required to be in writing and signed by the trial judge. Faulkner, 851 S.W.2d at 188.

*4 Furthermore, the trial court’s addition of the stock option provision was not proper as a judgment nunc pro tunc. A trial court may enter a judgment nunc pro tunc to correct clerical errors, not judicial errors. In determining whether the error at issue is clerical or judicial we look at the original judgment and determine if there is evidence the judgment rendered by the trial court differs from the judgment entered in the record. See America’s Favorite Chicken Co. v. Galvan, 897 S.W.2d 874, 877 (Tex.App.-San Antonio 1995, writ denied). A trial court has no ability to correct a judgment by nunc pro tunc after the expiration of its plenary powers unless the judgment entered differs from the judgment rendered. See id. Here, there is no evidence the trial court rendered a judgment that included the division of the stock options; therefore, the trial court did not have nunc pro tunc power to modify the divorce decree to divide the stock options.

A divorce court retains the power to clarify the division of property in a divorce decree under chapter 9, subchapter A of the Texas Family Code. However, the procedures for clarification under this subchapter “do not apply to existing property not divided on divorce.” TEX.FAM.CODE ANN. § 9.004 (Vernon 1998). Rather, division of undivided property is governed by the procedures in chapter 9, subchapter C of the Texas Family Code, which allow a former spouse to file suit to divide overlooked community property. No such suit has been filed in this case.

Therefore, we hold that the trial court erred in denying Brenda’s motion for new trial to the extent she asked the court to divide the undivided stock options, see Demler, 836 S.W.2d at 699-700, and we hold the trial court’s subsequent attempt to divide the stock options was outside the scope of its jurisdiction. Accordingly, we reverse the divorce decree with regard to the division of the community estate, but we affirm the divorce decree in all other respects.

End of Document
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