Date: 06-30-2011

Case Style: Beata L. Popek v. John P. Popek

Case Number: 14-10-00201-CV

Judge: William J. Boyce

Court: Texas Court of Appeals, Fourteenth District on appeal from the 247th District Court of Harris County

Plaintiff's Attorney: John K. Grubb for BeataL Popek

Defendant's Attorney: Deborah Lowe Thompson and Sallee S. Smyth for John Popek

Description: Beata Popek appeals the trial court’s final divorce decree on numerous grounds. We reverse and remand in part and affirm as modified in part.

Background

Beata and John Popek married on June 27, 1991 in Illinois. The couple had a troubled marriage; Beata suffered from depression and John had alcohol problems. John entered an alcohol rehabilitation program in 2002. At that time, Beata discovered that she was pregnant with their daughter, R.P. John completed the rehabilitation program and moved to Texas with Beata. R.P. was born on April 20, 2003.

Beata, John, and R.P. moved to Virginia in 2005 when John accepted employment with a government agency. The couple continued having marital difficulties while living in Virginia. When John asked for an employment transfer to Houston, Beata did not want to move to Texas but wanted to stay in Virginia. She did not have sufficient resources to remain in Virginia and decided to move with John and R.P. to Texas.

Beata, John, and R.P. moved in with John’s sister and her family to save money. John and Beata had many arguments while living with John’s sister’s family. After an argument on November 22, 2007, Beata left the house without R.P. Beata took the couple’s only car and left to visit her mother in Chicago for two weeks. Upon her return, John filed for divorce.

Based on Beata and John’s stipulations, the trial court entered temporary orders on January 16, 2008. The temporary orders provided, among other things, that: (1) the parties would have joint managing conservatorship of R.P.; (2) R.P. would live with John; (3) Beata could have overnight possession of R.B. on the first, third, and fifth weekend from Friday evening at 6 p.m. to Sunday afternoon at 4 p.m. if Beata lived in a two bedroom apartment and provided age appropriate beds for her and R.B.; (3) Beata would pay child support starting March 15, 2008, or two weeks after she started full-time employment; (4) R.P. would remain on John’s medical insurance but Beata and John would share any unreimbursed medical expenses for R.P.; (5) the parties would obtain on or before January 31, 2008 a software program entitled Ourfamilywizard.com to communicate with each other about R.P.’s activities; and (6) the non-possessory party could call the possessory party’s land line to speak to R.P. between 7 p.m. and 7:30 p.m.

Both parties filed motions to modify the temporary orders, and the trial court held a hearing on April 29, 2008. At the hearing, John testified that Beata had not obtained Ourfamilywizard.com and had not paid child support. John testified that Beata had engaged in inappropriate conversations with R.P. over the telephone. John admitted that he had refused to allow Beata contact with R.P. in March 2008 after R.P. became upset and started crying on the phone while speaking with Beata. John asked the trial court to order Beata to attend counseling before allowing her possession of R.P.

Beata also testified at the hearing. She admitted that she did not obtain a two bedroom apartment and that she did not go to her required appointment with a psychologist, Dr. Laval, on March 1, 2008. Beata also did not pay Dr. Laval as previously ordered by the trial court. Beata admitted to sleeping while R.P. was in her care; she also admitted to crying in front of R.P. Beata testified that she expected her five-year-old daughter to communicate with her by e-mail. Beata also testified that she takes medication for depression, hypertension, and cholesterol.

The trial court denied the motions to modify temporary orders. The trial court ordered that Beata would be allowed visitation when she had an appropriate apartment and saw Dr. Laval. The trial court further ordered that Beata’s future visitations with R.P. take place at the SAFE program so they could be monitored. The trial court stated, “I do not want you crying around this kid. I do not want the blubbering stuff to go on. It’s inappropriate and it is upsetting to a child. I also do not want anything — sir, I’m ordering you to tape any conversation that she has with the child. If I find that she’s discussing anything about this case with the child, we will stop all telephone contact. That is real sick behavior, ma’am. You do not need to be telling her you know, just tell her you love her and that’s it. You don’t need to be, mommy — so much of what I’m hearing is your needs, not hers.”

The parties agreed to step up periods of possession on July 7, 2009. Since then, Beata has had unsupervised overnight possession of R.P. from 6 p.m. on Friday to 6 p.m. on Sunday.

The trial court held a hearing on October 2, 2009, at which the parties addressed pretrial matters and Beata waived her right to jury trial. Beata acknowledged that she had not filed an inventory and stated that she “does not have a problem” with the trial court using John’s inventory. Beata also stipulated to John’s child support proposal; to joint managing conservatorship; and to a Harris county residence restriction. The trial court set the case for trial on October 19, 2009.

At the two-day bench trial, the trial court heard testimony from John and Beata. John expressed his concerns about R.P.’s emotional well-being if Beata obtained expanded standard possession of R.P. John testified that Beata makes R.P. feel guilty and continues to put R.P. “in the middle between us. Beata makes promises to [R.P.] that she cannot keep. Beata makes demands of [R.P.] that she shouldn’t.” John testified that Beata asked R.P. throughout the divorce proceedings to ask John to extend R.P.’s visitations with Beata and go against the set possession schedule. According to John, R.P. gets angry, obstinate, sad, withdrawn, and confused when Beata breaks her promises to R.P.

John testified that he is concerned about R.P.’s physical well-being because R.P. returned with sunburns and, on two occasions, injuries from overnight visits with Beata. According to John, Beata does not provide for R.P.’s basic physical needs; he stated that Beata asked him to pack clothes, toothpaste, and vitamins for R.P. The first weekend John did not pack extra underwear, R.P. wore the same underwear the entire weekend. In July 2009, R.P. came home without underwear on even though John had packed underwear.

John testified that Beata overmedicated R.P. during one overnight possession; R.P. was drowsy and quiet when John picked R.P. up. John stated that there had been other times during the marriage when Beata had difficulty giving R.P. medication properly. On another occasion, John informed Beata that R.P. was not allowed to go to the swimming pool per doctor’s instructions because R.P. was suffering from ear infections. Despite the doctor’s instructions, Beata took R.P. to the pool. After a visit with Beata in June 2009, R.P. came home and complained of a stomach ache and had diarrhea; R.P. told John that she ate pizza, spaghetti, ice cream, and grapes that “tasted really bad and they were wrinkly.”

John also testified that Beata “thinks of herself first before” R.P. He stated that, “Each and every time that I have picked [R.P.] up, she hasn’t had a bath after two days of being in the pool. She is full of, she reeks of chlorine, has got two days of suntan lotion on. I mean, just, and it hasn’t changed since the beginning of this whole process.” John also testified that R.P. is usually “hungry for dinner” when he picks her up from a visit with Beata because Beata stays at the pool with R.P. and then rushes home; John drives R.P. home to have dinner.

John acknowledged that he had been an alcoholic in the past; he stated that he has been sober since August 28, 2002 and that he regularly attends A.A. meetings. John denied being upset and having an argument with Beata when she came to R.P.’s graduation from Kindercare.

Beata testified at length at trial. She asserted that an expanded standard possession order would be in R.P.’s best interest. She testified that she was R.P.’s primary caretaker before the Popeks moved from Virginia to Texas. Beata acknowledged telling her doctors that she had felt overwhelmed from the time R.P. was born, had anger issues, did not want to go out of the house, and that she “just wanted to stay up all night, eat, and watch TV.” Beata denied sleeping during the day while taking care of R.P. or being asleep when John came home from work. Beata also denied that R.P. had been anemic and that the cause of R.P.’s anemia was a poor diet; however, she admitted that R.P. had been taking medication for anemia.

Beata testified that John physically abused her when he was drunk; she also acknowledged feeling like a victim for a very long time. Beata has been suffering from clinical depression since 1999 and has been taking medication to treat her depression. Her medical records show that she “had bouts with feeling suicidal” in August 2007.

Evidence further revealed that Beata met and communicated with two men, Tony and Chris, over the internet in 2007 while living in Virginia. At trial, Beata denied inviting Chris into her and John’s home and having sexual relations with Chris on May 24, 2007. However, Beata’s interrogatory responses and Dr. Laval’s report showed that Beata admitted having sexual relations with Chris in the family home while R.P. was asleep. Beata later acknowledged that her “act of infidelity” was a poor decision. E-mails also showed that Beata wanted to ask her mother to babysit R.P. so Beata could have sex with Tony. However, Beata denied actually having sex with Tony. She stated that Tony was a friend and that she did not believe her conversations with Tony were inappropriate.

Beata denied telling people before moving to Texas in 2007 that she was getting a divorce and that she was happy and looking for a job in Virginia. She later acknowledged considering divorce and looking for a job and a roommate because she did not plan to move with John and R.P. to Texas. Beata considered moving to Illinois to live with her mother, but then decided to move with John and R.P. to Texas. Beata testified that she left John and R.P. in November 2007 because she felt crowded and tense in the home of John’s sister.

Beata testified that her mother provides almost all of her financial support; she also testified that her mother only paid some of her bills. Beata stated that she started working in April or May 2008 and that she is able to earn about $12.00 per hour, or $23,000 a year. Beata admitted that she was supposed to pay John child support for R.P. on March 15, 2008 but started paying the support on July 14, 2008. Beata testified that she wants to go back to college to earn a business degree in order to improve her earning ability.

Beata stated that she renewed the lease on her one bedroom apartment and that she bought a proper bed for R.P. on April 1, 2009; R.P. previously slept on an inflatable bed during visitations. Beata admitted not exercising all of her periods of possession or telephone possession and testified that she understands this is upsetting to R.P. She acknowledged crying on the telephone; telling R.P. how much she missed her; sending R.P. certified mail to tell her how much she missed her; talking to R.P. about trying to set up possession periods contrary to the court’s order; and asking R.P. to ask John for more possession periods. Beata testified that she felt it was appropriate for her to tell R.P. over the telephone that she had broken her foot and was in horrible pain. Beata testified that she drove herself to work even though she was taking Vicodin pain medication.

Beata admitted not giving R.P. a bath or a shower during R.P.’s weekend visits but instead putting her in the swimming pool. She admitted that she let R.P. go to the pool even though R.P. was not supposed to go swimming. She also admitted that R.P. got sunburns and was injured during visitations with her. Beata denied sending R.P. home to John without underwear. She also denied overmedicating R.P.

Beata testified that she did not visit with Dr. Laval for an evaluation as agreed and ordered by the trial court. She also testified that she no longer sees a counselor for her anger and mental health problems and that she does not recall when she last saw a counselor. Beata has been treated for clinical depression since 1999. She admitted that she is feeling like a victim. Beata testified that she has changed in the past two years and that she has become wiser, less overwhelmed, more content but sad about losing her family and not seeing R.P. as much.

Beata testified that her current employer is flexible so that she could take and pick up R.P. from school if the court were to grant her request for expanded possession. The trial court questioned how much time it would take to travel from Beata’s workplace to school and then to her apartment in the late afternoon or evening. Also, there was concern about how much time it would take to drive R.P. from Beata’s apartment to school considering morning rush hour traffic. Beata testified that it takes 45 minutes to drive from R.P.’s school to her apartment.

After John and Beata testified, the trial court listened to excerpts from telephone conversations between R.P. and Beata. The parties rested and the trial court asked to address John and Beata. The trial court expressed concern about Beata’s parenting skills. The trial court stated that it would enter a standard possession order and that possession could be modified in the future depending on whether Beata gets counseling and “things later” change. The trial court also stated that it is convinced that Beata needed “some time to work on” herself and needed to “take some serious, serious parenting classes.” At the conclusion of trial, the court granted the parties’ divorce and took the final division of the parties’ marital estate under advisement.

On November 11, 2009, the trial court held a hearing on John’s motion for emergency hearing to modify temporary orders and issue further temporary orders that would modify Beata’s possession and access of R.P. “in such a manner that it would be in the child’s best interest and protect the child’s physical, emotional and psychological well-being.” At the hearing, John acknowledged denying Beata visitation and telephone access with R.P. because R.P. broke her leg during the last fifteen minutes of the October 18, 2009 possession with Beata. Questioning Beata’s parenting skills and R.P.’s safety, John asked the trial court to modify Beata’s possession of R.P. The trial court denied his request for modification.

The trial court held a hearing on January 28, 2010 before signing the final divorce decree. At the hearing, Beta and John stated that they had agreed to most of the items and language in the proposed decree. However, Beata objected to the trial court ordering her to pay certain amounts in cashier’s checks to John. She contended that the trial court should enter a judgment against her for John to enforce “as any other judgment in the state of Texas . . . by delivering it to the Sheriff or Constable with a Writ of Garnishment.” The trial court rejected Beata’s request. The trial court signed the final divorce decree on January 28, 2010. Beata timely filed her appeal.

Analysis

On appeal, Beata raises five issues attacking the propriety of the trial court’s standard possession order and the marital estate division.

1. Expanded Possession

In her first issue, Beata argues that the trial court abused its discretion by failing to order expanded standard possession under Texas Family Code section 153.317.

A trial court has broad discretion to decide the best interest of a child in family law matters such as custody, visitation, and possession. In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.—Houston [14th Dist.] 2009, no pet.); see Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). A trial court abuses its discretion when it acts arbitrarily, unreasonably, or without reference to any guiding principle. Baltzer v. Medina, 240 S.W.3d 469, 475 (Tex. App.—Houston [14th Dist.] 2007, no pet.).

We remain mindful that the trial court is best able to observe and assess the witnesses’ demeanor and credibility, and to sense the “‘forces, powers, and influences’” that may not be apparent merely from reading the record on appeal. In re A.L.E., 279 S.W.3d at 427 (quoting Niskar v. Niskar, 136 S.W.3d 749, 753 (Tex. App.—Dallas 2004, no pet.). Therefore, we defer to the trial court’s resolution of underlying facts and to credibility determinations that may have affected its decision, and we will not substitute our judgment for the trial court’s. Id.

Under an abuse of discretion standard, legal and factual insufficiency are not independent grounds for asserting error but are relevant factors in assessing whether the trial court abused its discretion. Id. at 427; Baltzer, 240 S.W.3d at 475. There is no abuse of discretion if some evidence of a substantive and probative character exists to support the trial court’s decision. In re A.L.E., 279 S.W.3d at 428; Baltzer, 240 S.W.3d at 475. We consider only the evidence most favorable to the trial court’s ruling and will uphold its judgment on any legal theory supported by the evidence. In re A.L.E., 279 S.W.3d at 428.

Beata requests relief under the amended 2009 version of section 153.317. See Tex. Fam. Code Ann. § 153.317 (Vernon Supp. 2009). Section 153.317 provides: “If elected by a conservator, the court shall alter the standard possession order . . . to provide for one or more . . . alternative beginning and ending possession times for the described periods of possession, unless the court finds that the election is not in the best interest of the child.” Id. Therefore, the trial court may enter an expanded possession order if it determines that expanded possession is in the child’s best interest.

Beata argues that the trial court may “craft an order in any manner to serve in the best interests of a child;” however, Beata complains that the trial court “completely disregarded professional evidence and psychological recommendations favorable to ordering an expanded standard possession order” and based its decision on John’s testimony and one taped conversation played in open court. Beata also asserts that the trial court was biased against her because it accepted John’s “evaluation of events despite his lack of psychological background.” According to Beata, the trial court should not have entered a standard possession order because she is “a loving and involved mother with no substance abuse issues or problems with law enforcement.”

The trial court did not abuse its discretion by refusing to grant Beata expanded possession of R.P. The trial court was involved in this case from the very beginning in January 2008 and was familiar with the parties and their behavioral history. During the two-day trial, the trial court listened to Beata and John’s testimony and heard excerpts of telephone conversations between Beata and R.P. Among the numerous exhibits, the parties presented at trial were Beata’s e-mails showing her mindset and actions as well as Dr. Laval’s evaluation and recommendation.

John testified that he is concerned about R.P.’s emotional well-being because Beata made R.P. feel guilty; put R.P. “in the middle” of their arguments; made promises to R.P. she could not keep; made inappropriate demands of R.P.; “th[ought] of herself first before” thinking of R.P; and asked R.P. to request more visitation time with Beata. According to John, R.P. would get sad, withdrawn, confused, angry, and obstinate when Beata would break her promises to R.P. John also expressed concern about R.P.’s physical well-being because Beata would not provide for R.P.’s basic physical needs during overnight possessions. John testified that Beata did not have any clothes for R.P. at her apartment; did not bathe R.P. during her possession periods; did not follow doctor’s orders; and overmedicated R.P. on one occasion.

Beata admitted that she did not bathe R.P. but instead took her to the pool during overnight possessions; that she let R.P. go to the pool contrary to doctor’s instructions; that R.P. suffered sunburns and was injured twice during her possession periods; and that she asked R.P. to ask John for more possession periods. Beata acknowledged not exercising all of her periods of possession or telephone possession and stated that she understood that this is upsetting to R.P. She admitted crying on the telephone and knowing that this would be upsetting to R.P. She also admitted telling R.P. “over and over” how much she missed her; sending R.P. messages over the internet how much she missed her; and even sending R.P. certified mail to tell her how much she missed R.P. Beata testified that she did not think it was inappropriate to tell R.P. that she was suffering horrible pain after breaking her foot.

Further, Beata acknowledged that she has been battling and taking medication for clinical depression since 1999. Beata admitted feeling overwhelmed and feeling like a victim for a very long time. Beata testified that she no longer sees a counselor for her anger and mental health problems; she stated that she does not recall when she last saw a counselor. Beata also admitted exercising poor judgment. She did not testify truthfully in court regarding her infidelity — a fact she admitted in her responses to interrogatories. Beata’s testimony during trial often was inconsistent and her answer to uncomfortable questions often was: “I don’t know.”

At trial, the court expressed concern regarding how much time it would take to drive from Beata’s apartment to R.P.’s school. Beata testified that the commute time depends on the traffic but that it would take approximately 45 minutes to drive from R.P.’s school to her apartment — a trip R.P. would have to make Thursday and Friday afternoons and Friday and Monday mornings under Beata’s expanded possession request.

Dr. Laval’s evaluation and recommendation of October 24, 2008 also was introduced into evidence. In his report, Dr. Laval stated that he administered a personality test on John and Beata. He stated that Beata “demonstrates emotional instability, dissatisfaction, and restlessness. . . . Her results are typical of individuals who are feeling depressed, unhappy, dysphoric, and indecisive. They lack confidence and feel inadequate, worthless, and helpless. Typically, they have very low energy and may have concomitant feelings of tension, irritability and insecurity. They feel pessimistic about the future and they withdraw from social contact. These individuals may experience periods of increased agitation and moderate to severe levels of anxiety. They feel socially and emotionally alienated, persecuted, and misunderstood. . . . They tend to be hypersensitive to rejection.” With regard to John, Dr. Laval stated that John has “very low levels of emotional distress, and there is an absence of significant symptoms associated with anxiety or depression.”

Dr. Laval’s report also reflects that he “administered the Parent Child Relationship Inventory (PCRI), a test designed to identify specific aspects of the parent-child relationship that may cause problems and to give an overall picture of the parents[’] view of their relationship with their child.” Dr. Laval stated that John and Beata’s results were similar except for Beata’s “low score on parental support. This is typical of parents who describe themselves as over-burdened by their parental responsibilities and as having very stressful lives.”

Dr. Laval concluded that Beata “is experiencing much more psychological turmoil and emotional instability.” Although Dr. Laval recommended that “Beata be allowed to have [R.P.] in a manner generally consistent with an expanded standard possession order,” he also recommended that Beata “continue to be involved in individual counseling where her issues with depression and her relationship with R.P., particularly her style of communicating with her, can be addressed.” Yet, Beata admitted at trial that she no longer sees a counselor and that she has no recollection of when she last saw a counselor.

At the end of trial, the court listened to excerpts of telephone conversations between Beata and R.P. These telephone conversations “either took place after Dr. Laval’s report or they were never heard by Dr. Laval.” The excerpts show that Beata (1) often asks R.P. to tell her that she loves and misses Beata; (2) asks R.P. if she is going to ask how Beata is doing; (3) makes R.P. feel bad when R.P. does not say “I love you” sincerely enough and “like she really means it;” (4) makes R.P. feel bad when R.P. does not “feel like talking;” (5) cries on the phone and makes R.P. cry hysterically; (6) encourages R.P. to ask John to allow more visitations with Beata; and (7) thinks R.P. “is only happy because she knows she is going to be seeing [Beata] in a matter of days.”

After hearing all the evidence, including the taped telephone conversations, the trial court expressed concern about Beata’s parenting skills:

Those tapes are awful, ma’am. I’m sure you love this little girl but your parenting skills are awful. You really need to get some help in understanding perhaps yourself but also this child. Because even when they were pleasant conversations, it’s all about you. It’s not about her. She’s only six years old. She can’t be for you everything you want her to be. She can’t be always telling you that she loves you. She’s not always going to say what it is that you need her to say and it’s you needing things from her. She’s the one who needs the unconditional love of a mother.

* * *

She’s cheerful because she’s going to see me soon. It’s all about you. I’m not saying this in a blaming way. I’m saying it in what I hope will be a helpful way for you to go and get some counseling and some help for this because I know you want to be for your daughter what she needs you to be. And I don’t think you’ve done it maliciously at all but I do think you’ve got some mental health problems that you really need to address and work through.

* * *

And what I heard was a little girl who was being asked to be the grownup, to be taking care of the mom because you were hurt and wounded and your ankle hurt or whatever else, and that she was trying to care for you. She doesn’t need to be in the role of caring for you. She’ll get to do that when you’re 80. Then she’ll get to take her turn at caring for you but not when she’s six.

The trial court then stated that it would enter a standard possession order and further explained:

I’m convinced that you need some time to work on you. And you’ve probably dedicated a lot of yourself to this little girl in the previous years and this in a way is a gift for you because it’s a time for you to really get some therapy and really do some work on understanding yourself and understanding why you’ve chosen some of the paths that you have chosen and to take some serious, serious parenting classes. I mean, not this four-hour COPE thing or whatever, you know, but, I mean, some real heavy duty stuff.

The trial court also stated that a later modification of possession will depend on Beata getting counseling, getting stronger, and improving her parental skills. The trial court further expressed concern about Beata’s cognitive dissonance and encouraged her to work on that condition because “[p]eople don’t exactly know where you’re coming from when they see [body language] that’s different than what’s coming out of your mouth.” That trial court stated, “I was watching you when you were on the stand and one of the things that you did was, somebody would ask you a question and you’d say, no. You’d be nodding, yes, while you’re saying, no, out of your mouth, or you’d be saying, yes, while you were shaking your head, no. That’s cognitive dissonance.”

Contrary to Beata’s contention on appeal, the record establishes that the trial court was not biased against Beata; did not disregard Dr. Laval’s evaluation and recommendation; did not merely base its determinations on John’s testimony but also on Beata’s testimony, who confirmed most of John’s assertions; and did not base its decision on a single conversation but on the numerous conversation excerpts played at trial.

Having considered the record before us and the deference to be given to the trial court’s resolution of underlying facts and credibility determinations that may have affected its decision, we conclude that the trial court acted within its discretion finding that expanded possession was not in R.P.’s best interest and entering a standard possession order. Accordingly, we overrule Beata’s first issue.

2. Reimbursement

In her fifth issue, Beata contends that the evidence is legally and factually insufficient to support a $5,000 reimbursement award in John’s favor against Beata’s separate property estate. In the final divorce decree, the trial court ordered Beata to pay John $5,000 in the form of a cashier’s check to reimburse him “for monies [Beata] spent before the marriage to make a down payment” on a condominium Beata purchased in Illinois prior to her marriage to John. Beata contends that no evidence was presented in the trial court to support the $5,000 reimbursement award and that the trial court abused its discretion.

The record establishes that John abandoned his $5,000 reimbursement claim against Beata’s separate property at trial when his counsel asked him: “And I see that you also have a claim down here for $5,000.00 for a reimbursement claim against your wife’s separate property estate. And what are you asking the Court to do to change with regards to that?” In response to his counsel’s question, John stated: “Again, I’m no longer requesting that reimbursement.”

Further, John states in his brief that he “agrees that the trial court’s decision to award him reimbursement in the amount of $5,000.00 should be set aside.” John acknowledges that he did not offer any evidence to support his reimbursement claim because he abandoned the claim during trial. According to his brief, “John agrees that the award of $5,000 as reimbursement to his separate estate against Beata should not have been included in the Final Decree of Divorce” and should be struck from the decree.

Based on the record and John’s admission on appeal that he abandoned his reimbursement claim against Beata, we conclude that the trial court erred by ordering Beata to pay John $5,000 in the form of a cashier’s check as reimbursement. Because John was not entitled to the reimbursement, the reimbursement award is struck from the final divorce decree. Accordingly, we sustain Beata’s fifth issue.

3. Division of Marital Estate

In her second issue, Beata contends that the trial court abused its discretion by dividing the marital estate in a manner “so inequitable that it cannot constitute a just and right division.”

We review a trial court’s division of community property for an abuse of discretion. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981); Knight v. Knight, 301 S.W.3d 723, 728 (Tex. App.—Houston [14th Dist.] 2009, no pet.); see also Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998). The test for an abuse of discretion is whether the trial court acted arbitrarily or unreasonably, or whether it acted without reference to any guiding rules or principles. Swaab v. Swaab, 282 S.W.3d 519, 524 (Tex. App.—Houston [14th Dist.] 2008, pet. dism’d w.o.j.).

In a divorce decree, the trial 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.” Tex. Fam. Code Ann. § 7.001 (Vernon 2006). A trial court’s division need not be equal and may take into consideration many factors, such as the spouses’ capacities and abilities, benefits which the party not at fault would have derived from a continuation of the marriage, business opportunities, education, relative physical conditions, relative financial conditions and obligations, disparity in age, size of separate estates, the nature of the property, and disparity in income and earning capacity. Knight, 301 S.W.3d at 728 (citing Murff, 615 S.W.2d at 699).

A trial court does not abuse its discretion if there is some evidence of a substantive and probative character to support the decision. Id. However, because the trial court’s discretion is not unlimited, there must be some reasonable basis for an unequal division of the property. Id. Under an abuse of discretion standard, the legal and factual sufficiency of the evidence are not independent grounds of error, but are merely relevant factors in assessing whether an abuse of discretion has occurred. Id.

Beata contends that the trial court’s division of the marital estate is unjust because (1) John’s inventory shows that there are insufficient assets in the estate for Beata to accomplish the $33,250 cash payment ordered in the decree; (2) the cash award is “impossible” and would leave Beata destitute because the estate does not have enough funds for Beata to pay a judgment for $33,250; (3) the estate division is inequitable considering that the bulk of the debt awarded to John constitutes John’s student loans.

We first will address Beata’s contention that the property division was inequitable because the bulk of the debts awarded to John was his own student loans. According to John’s inventory, John’s student loans in the amount of $102,000 and Beata’s student loans in the amount of $28,121.91 were listed as community liabilities. Beata did not file her own inventory and agreed to John’s inventory. She cannot now argue that loans are not community liabilities subject to just and right division.

Further, Beata and John had significant community debt. The total value of the marital estate was negative. Contrary to Beata’s contention that the division was not favorable to her, the decree reflects that the trial court’s disproportionate division actually favors Beata. Under the decree, John was awarded approximately $15,000 in community assets and an additional $33,250 to be paid by Beata in cash. However, because we have held in issue five that the trial court erroneously awarded John $5,000 as reimbursement and this award is to be struck from the decree, John’s cash award is reduced to $28,250. Taken together, assets awarded to John would total approximately $44,000. Community debts totaling approximately $187,000 were allocated to John; therefore, John was awarded a negative net value of approximately $143,000.

Beata was awarded approximately $22,000 in community assets. In addition to the $28,250 cash payment Beata is required to make to John, the trial court awarded approximately $28,000 in community debt to Beata — this amount represents Beata’s student loans. Beata’s debts total approximately $56,000; therefore, she was awarded a negative net value of approximately $44,000. Compared to John’s negative $143,000 value, Beata cannot establish that the trial court’s property division is inequitable in John’s favor and unjust when the trial court ordered John to pay approximately three fourths of the community debts.

We next address Beata’s argument that the trial court’s property division was not just and right because (1) John’s inventory shows that there were insufficient assets in the marital estate for Beata to accomplish the $33,250 cash payment ordered in the decree; and (2) the cash award is “impossible” and would leave Beata destitute because the estate does not have sufficient funds from which a money judgment for $33,250 could be paid.

Beata does not cite any authority, and we have found none, to support her argument on appeal. To the contrary, courts have held that “[a] trial court may order a party to pay a cash sum to the other party, even when there is no cash in the community estate.” Finch v. Finch, 825 S.W.2d 218, 224 (Tex. App.—Houston [1st Dist.] 1992, no pet.); see Thomas v. Thomas, 603 S.W.2d 356, 358 (Tex. Civ. App.—Houston [14th Dist.] 1980, writ dism’d); see also Murff, 615 S.W.2d at 699; Simpson v. Simpson, 727 S.W.2d 662, 663 (Tex. App.—Dallas 1987, no pet.); Hanson v. Hanson, 672 S.W.2d 274, 278-79 (Tex. App.—Houston [14th Dist.] 1984, writ dism’d). Therefore, the payment of a money judgment is not rendered impossible merely because a marital estate does not have sufficient cash funds to cover the amount of the money judgment a spouse was ordered to pay in the divorce decree. See Finch, 825 S.W.2d at 224; Thomas, 603 S.W.2d at 358.

Accordingly, we overrule Beata’s second issue.

In sub-issue (a) of issue three, Beata argues that the trial court abused its discretion by ordering Beata to make cash payments to John when “no circumstances exist to justify the use of a money judgment to divide” the marital estate because (1) the court did not “display that partition in kind was unworkable;” (2) no cash existed in the estate for Beata to make the ordered cash payments; and (3) the trial court failed to consider Beata’s “earning capacity, her property or her lack of resources.”

The trial court is given broad discretion to divide the marital estate “in a manner that the court deems just and right.” Tex. Fam. Code Ann. § 7.001; Knight, 301 S.W.3d at 728 n.5; see also Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex. 1985). The award of a money judgment is one of the methods a trial court may divide property in a divorce proceeding in the exercise of its discretion. Simpson v. Simpson, 727 S.W.2d 662, 663 (Tex. App.—Dallas 1987, no writ); Ratcliff v. King, No. 03-08-00424-CV, 2009 WL 2837706, at *5 (Tex. App.—Austin August 31, 2009, no pet.) (mem. op.); see Murff, 615 S.W.2d at 699. A trial court’s division may take into consideration many factors. Knight, 301 S.W.3d at 728; see Murff, 615 S.W.2d at 699. The nature of the assets and the circumstances of the parties may provide adequate justification for a trial court to utilize a money judgment to achieve an equitable division of the estate. See Hanson, 672 S.W.2d at 278-79.

Nothing in the record supports Beata’s contention that the trial court failed to consider her “earning capacity, her property or her lack of resources.” Nor does a just and right division require a trial court to award all community debts to the spouse with the greater earning potential or greater resources. Further, as we have stated above, the parties’ marital estate consisted primarily of debt. There was not much to divide except for the parties’ debts. The overall property division favors Beata, considering that the trial court ordered John to pay approximately three fourth of the community debts.

Additionally, two of the cash payments Beata was ordered to make were for debts on a credit card held in John’s name. This circumstance may reflect a legitimate concern about whether Beata would timely pay the debt on a credit card issued in John’s name. The third cash payment ordered was for a portion of a debt John owed to his mother. This circumstance may reflect a legitimate concern about whether Beata would actually pay John’s mother.

Considering Beata’s complaint that the trial court was not justified in using a money judgment to divide the parties’ estate because no cash existed in the estate for Beata to make the ordered cash payments, we already have stated in issue two that a trial court may order one party to pay a cash sum to the other party, even when there is no cash in the community estate. Finch, 825 S.W.2d at 224; Thomas, 603 S.W.2d at 358.

Accordingly, we overrule sub-issue (a) of issue three.

In sub-issue (b) of issue three, Beata contends that the award of a money judgment against her constitutes an abuse of discretion because it creates an impossibility and a serious hardship.

Beata’s impossibility argument re-urges the complaint she previously raised in issue two and sub-issue (a) of issue three; she argues the trial court abused its discretion by awarding a money judgment against her because she “did not have such cash on hand and such cash did not exist in the community estate of the parties.” Beata cites no authority, and we have not found any, for the proposition that an impossibility to satisfy a money judgment exists because a spouse does not have “such cash on hand and such cash did not exist in the community estate” to satisfy the amount of the money judgment awarded to the other spouse.

Additionally, we already have held that the payment of a money judgment is not rendered impossible merely because a marital estate does not contain sufficient cash funds to cover the amount of the money judgment a spouse was ordered to pay in the divorce decree. See Finch, 825 S.W.2d at 224; Thomas, 603 S.W.2d at 358. We overrule sub-issue (b) with regard to Beata’s impossibility argument.

We next address Beata’s assertion that the trial court abused its discretion by ordering her to pay the amount of $33,250 within four days after signing the divorce decree because there was no evidence showing that she could secure this amount within four days. According to Beata, the trial court should have tailored the cash payment order to a time frame that would not create substantial hardship.

‘“A trial court should set the term for payment of the cash judgment for as short a period as possible without imposing a serious hardship on the party responsible to pay the judgment.”’ Finch, 825 S.W.2d at 224 (quoting Hanson, 672 S.W.2d at 279).

John responds in his brief that “[d]espite terms which ordered Beata’s performance within a short period of time as well as evidence to suggest that Beata’s own financial liquidity may have been insufficient to satisfy the amounts due, these circumstances do not exclude the possibility that she could have obtained the necessary sums from outside sources, including her mother, who she admitted had consistently supported her throughout the divorce, including payment of $25,000 to Beata’s first attorney.” John further states that “[t]here is absolutely no evidence in the record to suggest that it would have been impossible for Beata to secure the cash amount of $28,250.00 due and owing to John within the time required.”

We are not persuaded by John’s argument. The record establishes that Beata earns $12.00 per hour; must pay John child support for R.P.; must pay John reimbursement for R.P’s medical insurance; has little property; and carries a lot of debt while earning a modest monthly income. There is nothing in the record to suggest that Beata could get a loan or otherwise secure a cash amount of $28,250 within four days, considering also that she cannot offer collateral or valuables in that amount. Although Beata acknowledged that her mother had provided financial support in the past, there is no evidence in the record to indicate that her mother was able and willing to give Beata $28,250 in cash. Evaluating the evidence in this case, we conclude that the trial court did not “set the term for payment of the cash judgment for as short a period as possible without imposing a serious hardship on” Beata. See Finch, 825 S.W.2d at 224; Hanson, 672 S.W.2d at 279.

Having concluded that the time frame imposed on Beata to make cash payments in the amount of $28,250 within four days of the signing of the divorce decree imposes a serious hardship, we conclude that the trial court abused its discretion and we sustain Beata’s sub-issue (b) in that regard.

4. Contemptible Offense

In her fourth issue, Beata asserts that “[t]he Court’s entry of an order to deliver $33,250.00 in cashier’s checks is improper because it creates a contemptible offense in violation of the Texas Constitutional prohibition on imprisonment for debts.” According to Beata, the decree language characterizes her as a constructive trustee of the cash funds, who is subject to contempt, and not as a debtor, who is not subject to contempt. Beata also argues that the trial court abused its discretion by ordering her “to pay a third party debt” creating “a contemptible offense in violation of the Texas Constitution.”

Beata’s complaint is premature, and we have previously recognized that we are not empowered to give advisory opinions. See Waite v. Waite, 64 S.W.3d 217, 223 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). A complaint is not ripe when determining whether the party has a concrete injury depends on contingent or hypothetical facts, or upon events that have not yet come to pass. Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 852 (Tex. 2000). Because that is the case here, we may not grant Beata relief. Beata has not been held in contempt. And whether Beata could or would be held in contempt if she violates the terms of the divorce decree “depends on contingent or hypothetical facts, or upon events that have not yet come to pass.” See id. Additionally, Beata conceded during oral argument that here complaint is not ripe for review.

Accordingly, we overrule Beata’s fourth issue.

* * *

See: http://www.14thcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=88426

Outcome: We overrule Beata’s first, second, and fourth issues. We sustain Beata’s third issue with regard to the time constraint the decree imposes on Beata to make cash payments to John within four days of the signing of the divorce decree; we overrule the remainder of her third issue. We sustain Beata’s fifth issue. Having sustained the fifth issue, we order the cash payment in the amount of $5,000 awarded to John as reimbursement struck from the divorce decree. Having sustained the third issue with regard to the cash payment delivery time frame, we reverse and remand for the trial court to set the term for cash payments in the amount of $28,500 for as short a period as possible without imposing a serious hardship on Beata; we affirm the remainder of the trial court’s final divorce decree as modified.

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