appellant accuses the trial judge and counsel for appellee, and another local attorney (not of record) of conspiracy.

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NUMBER 13-02-504-CV


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG



ROBERT THOMAS, Appellant,


v.


ELSY ROBERT, Appellee.

On appeal from the 357th District Court of Cameron County, Texas.



MEMORANDUM OPINION


Before Justices Yañez, Garza, and Wittig (1)

Memorandum Opinion by Justice Wittig

Robert Thomas, appellant pro se, appeals a judgment for divorce and custody. He raises thirteen issues, which we will address in order. Appellant and his former spouse, Elsy Robert, appellee, were previously divorced and subsequently remarried. The first divorce in a suit affecting the parent-child relationship was granted in the 103rd Judicial District Court of Cameron County. That court lost continuing exclusive jurisdiction after the couple re-married and filed suit for the dissolution of their subsequent marriage, combined with a suit affecting the parent-child relationship. See Tex. Fam. Code Ann. § 155.004(a)(2) (Vernon 2006).

1. Background

After a brief second marriage to appellant, appellee filed a petition for divorce. Appellant represented himself until the trial, when he belatedly hired his second counsel. His first counsel never made an appearance, although appellant paid her $1,000. A jury trial was held and the jury found appellee should be sole managing conservator and appellant should be possessory conservator. The trial court adopted the jury finding and awarded child support and visitation. The property division provided that each party should be awarded the property in its possession. Appellee was also awarded attorney's fees. Other background and facts are known to the parties and will not be reiterated. Tex. R. App. P. 47.4.

2. Judge as Advocate and Conspirator

In his first two issues, appellant submits that the trial judge acted as an advocate for appellee and conspired with counsel to give custody of the children to appellee. He argues a judge should be "a neutral and detached judge." Metzger v. Sebek, 892 S.W.2d 20, 37 (Tex. App.-Houston [1st Dist.] 1994, writ denied). We agree. The Metzger court also holds that a trial court's exercise of its "inherent power" is partially promoted by, and partially guided by, the Texas Rules of Civil Procedure, which "provide a trial judge with the tools to facilitate the litigation of lawsuits and, to a certain extent, to prevent abuse of the legal process." Id. at 38 (citing Waguespack v. Halipoto, 633 S.W.2d 628, 629 (Tex. App.-Houston [1st Dist.] 1982, writ dism'd .w.o.j.)). The court's "inherent power," and the applicable rules of procedure and evidence accord judges broad, but not unfettered, discretion in handling trials. Id. In fulfilling its responsibility, the trial court has discretion in expressing itself while managing the trial. See id. However, as appellant correctly points out, the judge should not act as an advocate or adversary to any party. Id.

Appellant contends that at a preliminary hearing, the judge would not allow appellant to bring evidence against appellee. Further, the judge would not allow appellant to testify. Our review of the record indicates this incident took place at a February 25, 2002 hearing, three months before trial. Appellant apparently filed a "Motion to Amend Motion To Modify Temporary Orders." The hearing proceeded with appellant acting pro se. He subpoenaed Dr. Surapureddy Reddy, who then testified on behalf of appellant. At the hearing, the trial court noted that he had interviewed the children in chambers. Then, appellant stated he had six additional witnesses who knew about appellant's marriage, knew both the parties, and had "a lot of knowledge about the case." The trial court indicated he had enough information about the health issue and stated that, "I saw them here healthy, happy." We note that the temporary order sought to be modified was signed just the month before this hearing. Appellant also wanted to change the pick-up place for visitation from a public place very near his residence.

Appellant complains the trial court denied him a continuance. We will discuss this allegation in issue three, infra. Appellant then variously complains about a ruling on appellee's motion in limine concerning the exclusion of evidence of past misconduct. Motions in limine do not preserve error. Huckaby v. A.G. Perry & Son, Inc. 20 S.W.3rd 194, 203, (Tex. App.-Texarkana 2000, pet. denied) (discussing distinction between motion in limine and pretrial ruling on admissibility of evidence). Appellant further complains appellee's attorney was allowed to argue that appellant was only paying $300 per month in child support. He argues counsel for appellee accused appellant of doing whatever he wants "and when Thomas was trying to tell the jury that the judge favored Elsy (which is obvious for the records of this case), the judge made a comment to the jury that he does not grant favors to any one and that he rules only on evidence and he follow (sic) the civil procedure." We do observe a notable amount of interplay between the trial judge, counsel for appellee, and appellant. The trial court's considerable involvement occurred when counsel for appellee was cross-examining appellant during the trial. While other seasoned jurists might not inject themselves to the same extent, we view the exchanges as an attempt by the trial court to manage what was apparently a contentious interchange. See Tex R. Evid. 611(a).

Finally, appellant accuses the trial judge and counsel for appellee, and another local attorney (not of record) of conspiracy. Appellant also accuses his own trial attorney of participating in the conspiracy because of his presentation of the case.

We liberally view appellant's first two issues attacking the conduct of the trial court as an abuse of discretion. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990) (per curiam). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles and therefore acted arbitrarily or unreasonably. Id. A trial court's failure to analyze or apply the law correctly constitutes an abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). In determining whether an abuse of discretion has occurred, we view the evidence in a light most favorable to the court's decision and indulge every legal presumption in favor of its judgment. In re J.I.Z., 170 S.W.3d 881, 883 (Tex. App.-Corpus Christi 2005, no pet.) (citing Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.-Houston [1st Dist.] 1993, writ denied)). Most of appellant's arguments actually center on the conduct of opposing counsel, not the trial judge. Based upon our review of appellant's arguments and his citations to the record, we cannot conclude the trial court acted without reference to any guiding rules or principles. We overrule appellant's first two issues.

3. Withdrawal of Attorney & Continuance

In issue three, appellant contends the trial court abused its discretion by allowing Veronica Farias to withdraw from the case without granting sufficient time to hire new counsel. Issue four complains about the denial of his motion for continuance. The record reflects a hearing on May 20, 2002. Ms. Farias attended the hearing and stated she had not filed an appearance in the case and would not be representing appellant. The judge excused her. We do not find where appellant objected when the trial court excused Ms. Farias. (2) He did object to proceeding with the scheduled hearings before his new attorney could appear. We also note the trial court proceeded with the hearing while a motion to reconsider his recusal was pending. Appellant does not complain about this on appeal. The trial court stated that the pre-trial hearings had already been re-scheduled from the week before in order for appellant to obtain counsel.

Appellant cites Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986), arguing that when a trial court allows an attorney to voluntarily withdraw, it must give the party time to secure new counsel and time for the new counsel to investigate the case and prepare for trial. Id. Further, the right to counsel is a valuable right and its unwarranted denial is reversible error. Id. We agree. However, Villegas also informs us that when the grounds for continuance is the withdrawal of counsel, a movant must show that the failure to be represented at trial was not due to his own fault or negligence. Id. Furthermore, when a movant fails to comply with Texas Rule of Civil Procedure 251's requirement that the motion for continuance be supported by affidavit, we presume that the trial court did not abuse its discretion in denying the motion. Id. Appellant did not submit a motion for continuance at the time of the May 20th hearing. Additionally, at the hearing, there was evidence that appellant bore some responsibility or fault for Ms. Farias's refusal to make an appearance for appellant. Therefore, we conclude that, as far as the May 20th hearing is concerned, the trial court did not abuse its discretion by excusing Ms. Farias or by not allowing time to procure another attorney for that hearing. See id.

Appellant, in the related issue, complains the trial court abused its discretion by denying his motion for continuance. In a ten page affidavit attached to the motion, appellant does complain that he was denied discovery that would disprove "lies" told by appellee at the trial. Appellant does not complain his new attorney did not have sufficient time to prepare for trial. At the hearing, counsel for appellee stated that discovery was answered, although some questions were objected to. Counsel also claimed that appellee had no tax returns. Many of the discovery items were also subject to other court hearings. Appellant's new attorney was hired May 27, 2002 and urged appellant's continuance on May 31, 2002, immediately before trial. Counsel also stated the motion was appellant's third motion for continuance.

The denial of a motion for continuance is reviewed under an abuse of discretion standard. General Motors Corp. v. Gayle, 951 S.W.2d 469, 476 (Tex. 1997) (orig. proceeding). The denial will be reversed if the trial court acted without regard to guiding principles or was arbitrary or unreasonable. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002). If the basis for the requested continuance is "want of testimony," the affidavit must show: (1) that the testimony is material; (2) that due diligence has been used to obtain the testimony; (3) that there is an explanation given for the failure to obtain the testimony; and (4) that the testimony cannot be procured from another source. Tex. R. Civ. P. 252; Tri-Steel Structures, Inc. v. Baptist Foundation of Tex., 166 S.W.3d 443, 448 (Tex. App.-Fort Worth 2005, pet. denied).

Appellant argues he did not have appellee's W-2 forms, that she was hiding community property, and she did not answer interrogatories as to why she remarried appellant. Appellant does not demonstrate that he could not obtain the information from other sources. Nor are we persuaded that his argument about the testimony, concerning which party was trying to kill the other party, would somehow have been avoided by the granting of a continuance. Abuse of discretion is not ordinarily measured by subsequent testimony at a trial that is unknown to the trial judge at the time it makes its ruling. Therefore, we do not conclude the trial court abused its discretion by denying appellant's third motion for continuance. See General Motors Corp., 951 S.W.2d at 476. Issues three and four are overruled.

4. Newly Discovered Evidence

In his fifth issue, appellant complains the trial court erred in overruling his motion for new trial based upon newly discovered evidence. Appellant contends that after the trial, he discovered an audio recording. The recording purports to show that appellee threatened to kill the children. His motion also included allegations that appellee "lied" (perjured herself) about appellant's working hours and community property. We review a trial court's decision on a motion for new trial under an abuse of discretion standard. Champion Int'l Corp. v. Twelfth Court of Appeals, 762 S.W.2d 898, 899 (Tex.1988) (orig. proceeding). To establish an abuse of discretion, the complaining party must demonstrate that the trial court acted unreasonably, arbitrarily, or without reference to guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). When reviewing a trial court's order denying a motion for new trial, we make every reasonable presumption in favor of the trial court's ruling. Jackson v. Van Winkle, 660 S.W.2d 807, 809-10 (Tex.1983); see also GJR Management Holdings, L.P. v. Jack Raus, Ltd.,126 S.W.3d 257, 260 (Tex. App.-San Antonio 2003, pet. denied). A party seeking a new trial on the ground of newly-discovered evidence must show the trial court that: 1) the evidence has come to his knowledge since the trial; 2) it was not owing to the want of due diligence that it did not come sooner; 3) it is not cumulative; and 4) it is so material that it would probably produce a different result if a new trial were granted. Van Winkle, 660 S.W.2d at 809; GJR Management Holdings, L.P. 126 S.W.3d at 260.

According to appellant's own appendix to his brief at tab 19, the tape recording was made in 1996. Appellant did not demonstrate to the trial court or to us that the tape was procured after the trial in 2002, that his knowledge of it occurred after the trial, or that it was not because of a lack of due diligence that the tape was not procured sooner. See id.

With regard to the alleged perjury, a judgment is not procured by perjury unless the perjury prevented the injured party from fully presenting its case at trial or resulted in the court or jury being deceived as to a material issue. McMurry v. McMurry, 67 Tex. 665, 4 S.W. 357, 360 (1887); Warrantech Corp. v. Computer Adapters Services, Inc.,134 S.W.3d 516, 528 (Tex. App.-Fort Worth 2004, no pet.). Appellant makes no argument why his working hours are a material issue other than he "was never taking care of the children." In any event, nothing prevented appellant from setting the record straight through his own testimony or records from his work. Furthermore, each party was awarded the property in its possession. We are not persuaded that either of these matters were, or affected, a material issue or prevented appellant from fully presenting his case. See McMurry, 4 S.W. at 360. We overrule this issue.

5. Vexatious Litigant

Appellant next complains that in a post-judgment proceeding, the trial court erred in finding him a vexatious litigant and enjoining him from filing any lawsuits or motions in the state without first obtaining permission of the administrative judge. See Tex. Civ. Prac. & Rem. Code Ann. § 11.054 (Vernon 2002). The statutory criteria for finding a plaintiff a vexatious litigant are:

A court may find a plaintiff a vexatious litigant if the defendant shows that there is not a reasonable probability that the plaintiff will prevail in the litigation against the defendant and that:


(1) the plaintiff, in the seven-year period immediately preceding the date the defendant makes the motion under Section 11.051, has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been:


(A) finally determined adversely to the plaintiff;


(B) permitted to remain pending at least two years without having

been brought to trial or hearing; or


(C) determined by a trial or appellate court to be frivolous or

groundless under state or federal laws or rules of procedure;


(2) after a litigation has been finally determined against the plaintiff, the plaintiff repeatedly relitigates or attempts to relitigate, in propria persona, either:


(A) the validity of the determination against the same defendant as to

whom the litigation was finally determined; or


(B) the cause of action, claim, controversy, or any of the issues of fact

or law determined or concluded by the final determination against the same defendant as to whom the litigation was finally determined; or


(3) the plaintiff has previously been declared to be a vexatious litigant by a state or federal court in an action or proceeding based on the same or substantially similar facts, transition, or occurrence.


Id.

We review the trial court's ultimate determination that appellant is a vexatious litigant under an abuse of discretion standard. Leonard v. Abbott, 171 S.W.3d 451, 459, (Tex. App.-Austin 2005, pet. denied). It is an abuse of discretion for a trial court to rule arbitrarily, unreasonably, without regard to guiding legal principles, or without supporting evidence. Id. Appellee, who after all was the instigator of this divorce action, did not make her request that appellant be found a vexatious litigant until July 2002. The applicable statute requires a "defendant" to make such a motion on "or before the 90th day after the date the defendant files the original answer or makes a special appearance . . . ." Tex. Civ. Prac. & Rem. Code Ann. § 11.051 (Vernon 2002). The trial court's injunction order of August 2, 2002 states it is based upon appellee's amended motion to have appellant declared a vexatious litigant. Because the original motion was filed several months after the statutory 90-day limit expired, it was an abuse of discretion for the trial court to grant relief under that circumstance. See Dishner v. Huitt-Zollars, Inc., 162 S.W.3d 370, 377 (Tex. App.-Dallas 2005, no pet.). We sustain appellant's sixth issue and set aside the trial court's injunction order dated August 2, 2002, finding appellant a vexatious litigant.

6. Property Division

In his seventh issue, appellant complains the trial court did not divide the community property in a just and proper manner. Appellant argues the trial court did not look into the details of the community property. Apparently, after the jury was excused, the trial court continued the case into August 2002. According to appellant, the trial court denied him a hearing on the property division.

Appellant neither requested nor obtained findings of fact and conclusions of law. When the trial court does not file findings of fact or conclusions of law regarding an issue tried to the court, on appeal, we presume the trial court made all findings in favor of its judgment. Pharo v. Chambers Cty., 922 S.W.2d 945, 948 (Tex.1996) (stating that, in a bench trial in which the trial court does not file findings of fact or conclusions of law, appellate courts presume the trial court made all findings in support of its judgment). Appellant's own pleadings indicate he and appellee remarried on November 17, 2000, and ceased living together as husband and wife on or about December 13, 2001. The trial court awarded appellant all property in his possession and did likewise to appellee. Appellant does not point us to anything in the record that would indicate the community property division was not just and right. Texas law requires that in a decree of divorce, the court shall order a division of the community estate in a manner that the court deems just and right, having due regard for the rights of each party. Tex. Fam. Code Ann. § 7.001 (Vernon 2004); Rafferty v. Finstad, 903 S.W.2d 374, 376, (Tex. App.-Houston [1st Dist.] 1995, writ denied). In effecting a just and right division of the community estate, section 7.001 of the Texas Family Code vests the trial court with broad discretion that will not be reversed on appeal unless the complaining party shows that the trial court clearly abused its discretion. Murff v. Murff, 615 S.W.2d 696, 698 (Tex.1981); Rafferty, 903 S.W.2d at 377. The test of whether the trial court abused its discretion is whether the court acted arbitrarily or unreasonably, and without reference to any guiding principles. Id. at 376. It is the duty of the appellate court to presume that the trial court properly exercised its discretion in dividing the marital estate. Murff, 615 S.W.2d at 699. Because appellant has not met his burden to show the division of community property was not just and right, we cannot conclude the trial court abused its discretion. Rafferty, 903 S.W.2d at 376. This issue is overruled.

7. Attorney's Fees

By appellant's eighth issue, he challenges the trial court's award of attorney's fees to appellee. He argues attorney's fees should be considered by the court in making an equitable division of the community estate. The trial court may award attorney's fees to either party, regardless of which is successful in the trial court or on appeal. We agree. Appellant further argues he had only debts and no assets, and the court erred in awarding attorney's fees without any findings as to whether appellant was able to pay. Appellant also argues the trial court may not make him destitute in order to pay support and fees, citing Herschberg v. Herschberg, 994 S.W.2d 273, 279 (Tex. App.-Corpus Christi 1999, pet. denied) (as with temporary support, the award of temporary attorney's fees must be based on the needs of the applicant as weighed against the ability of the opposing party to pay such fees). Appellant points to evidence from his plea of indigency relating to this appeal. This post-judgment evidence was presumably not before the trial court when it entered the judgment awarding attorney's fees. On the other hand, appellee's attorney testified to the reasonableness of his attorney's fees at the trial. Texas Family Code section 106.002 provides that a "court may render judgment for reasonable attorney's fees and expenses and order the judgment and post judgment interest to be paid directly to an attorney" in a suit affecting the parent-child relationship. Tex. Fam. Code Ann. § 106.002(a) (Vernon Supp. 2006); Tull v. Tull, 159 S.W.3d 758, 760 (Tex. App.-Dallas 2005, no pet.). A trial court does not abuse its discretion in awarding attorney's fees where the attorney testified that the amount was a reasonable and necessary fee for the services performed. See id. We overrule this issue. (3)

8. Passports

According to appellant, the trial court allowed the withdrawal from the record of one of the children's passports seven days before the judgment became final. He cites Texas Rule of Appellate Procedure 12.4(f), which deals with the clerk's duties when a case is on appeal. Without any citation to the record, appellant does not inform us whether there was a proper motion to substitute a duplicate original, either orally or in writing, or whether the action was sua sponte by the trial court. Nor are we informed why appellate rules may apply if, indeed, no judgment has been entered. He also cites "Rule 34.5(f)," which we assume to be appellate rule 34.5(f) dealing with original documents and the trial court's responsibility to determine whether an original document should be inspected by the appellate court. Again, without proper citation to the record, we cannot determine if this rule is even applicable. In any event, a certified copy of a public record may be used in lieu of an official record. Tex. R. Evid. 902(4). Likewise, duplicates are admissible unless there is a question of authenticity or it would be unfair to admit a duplicate under the circumstances. Tex. R. Evid. 1003. (4) Accordingly, we find no abuse of discretion by the trial judge. See Downer, 701 S.W.2d at 241-242. This issue is overruled.

9. Geographical Restrictions

Appellant argues the trial court abused its discretion by not placing geographical restrictions for the residence of the children. He argues that the trial court earlier entered a restraining order not allowing the removal of the children out of the country. He points to his affidavit filed in connection with an earlier hearing, which says that appellee "abducted the children in the year 1997 and hid them in India . . . ." Appellant also informed the trial court that appellee was teaching the children to hate him and that she might abscond with the children again.

Appellant cites Viggiano v. Emerson, 794 S.W.2d 564, 566 (Tex. App.-Amarillo 1990, no writ). Viggiano holds that the trial court may make any temporary order for the safety and welfare of children, including an order prohibiting a person from removing a child beyond a geographic area identified by the court. Id. We agree. However, appellant points to no findings of fact or conclusions of law, nor does he supply us with record references to appellee's testimony or other evidence that supports or undermines his abuse of discretion claim. While we may be sympathetic to appellant's fears, we are not furnished with the required record evidence that would allow us to conclude the trial court abused its discretion. See id.; see also Tex. R. App. P. 38.1(f). We overrule this issue.

10. Denial of Cross Examination

In his eleventh issue, appellant asserts the trial court did not allow his counsel sufficient time to cross examine appellee in order to rebut her false testimony. He cites several cases and authority which contend that the trial court should exercise reasonable control over the questioning of witnesses, that the trial court's authority should be exercised reasonably with a fair opportunity for litigants to present their case, that a fair trial entails due process, and finally, that a party should have the opportunity to present evidence before the rendition of judgment. These principles are indisputable in Texas jurisprudence. Appellant's specific complaint is the purported limitation of cross examination of appellee concerning the issue of passports and appellee's travel to India. In fact, passports were introduced into evidence, and should speak for themselves. The direct examination of appellee encompassed some 36 pages of the record and appellant's cross examination of appellee was 35 pages. Over one-third of the latter's cross-examination was on the travel/passport issue. The trial court eventually interrupted and suggested that appellant's counsel "start wrapping up this line of questioning. I want to hear some questions about child custody." This action by the trial court was in line with both the wording and spirit of Rule 611. Tex. R. Evid. 611(a)(1). The right to cross examination is a vital element in a fair adjudication of disputed facts and it includes "the right to cross examine adverse witnesses and to examine and rebut all evidence." Nat'l Family Care Life Ins. Co. v. Fletcher, 57 S.W.3d 662, 670 (Tex. App.-Beaumont 2001, pet. denied) (citing Richardson v. City of Pasadena, 513 S.W.2d 1, 4 (Tex. 1974)). A fair reading of the record does not disclose the denial of this vital right of cross examination. We overrule this issue.

11. Counsel's Statement of Personal Experience

Again concerning the passport/travel matter, appellant complains that counsel for appellee was allowed to make a statement about his personal experience to the jury. Specifically, during his examination of appellee, adverse counsel stated that he had traveled to other countries and sometimes his passport was not stamped. While appellant is correct that the remark of appellee's counsel is inappropriate and inadmissable, no objection was made at the time of his comments. Thus, this issue is not preserved for our review by a timely objection in the trial court that specifically stated the objection to the statement of personal experience about passports. Tex. R. App. P. 33.1; GTE Mobilnet of S. Tex. Ltd. P'ship v. Pascouet, 61 S.W.3d 599, 612 (Tex. App.-Houston [14th Dist.] 2001, pet. denied). This issue is overruled.

12. Transfer of Case

Appellant next complains that the trial court was without jurisdiction to transfer this case after the trial court lost its plenary jurisdiction. The final decree of divorce was signed August 1, 2002. Nevertheless, the trial court transferred the case affecting the parent-child relationship on February 19, 2003 from the 357th Judicial District Court to the 404th Judicial District Court. He cites State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995). There, the Texas Supreme Court held that judicial action taken after the court's jurisdiction over a cause has expired is a nullity. Id. We observe special statutory provisions attain when dealing with a suit affecting the parent-child relationship. The 357th District Court obtained continuing exclusive jurisdiction under the family code. See Tex. Fam. Code Ann. § 155.004(a)(2) (Vernon 2006). Thereafter, it retains continuing exclusive jurisdiction except as otherwise provided by law. See id. § 155.002 (Vernon 2006). Our review of the record does not reveal either a proper motion to transfer, or factors that would authorize the trial court to transfer this proceeding. Id.; see also id. § 155.301 (Vernon 2006). Accordingly, we sustain appellant's issue thirteen, and order that the case be returned to the 357th Judicial District Court of Cameron County.

13. Cumulative Error

In his final unnumbered issue, appellant invokes the "cumulative error doctrine." Because we have overruled all but two collateral issues presented by appellant, we will not remand the entire case. Gutierrez v. Elizondo, 139 S.W.3d 768, 777 (Tex. App.-Corpus Christi 2004, no pet.).

The judgment of the trial court is affirmed, except that the award of $10,000 additional attorney's fees for an unsuccessful appeal to the Court of Appeals is denied. The judgment is reformed accordingly. The trial court's injunction order dated August 2, 2002, finding appellant a vexatious litigant, is set aside. Likewise, the trial court's transfer order of February 19, 2003, is set aside. The 357th Judicial District Court of Cameron County was the court of exclusive continuing jurisdiction at the time of this appeal. Costs are taxed to the party incurring same.


DON WITTIG,

Justice






Memorandum opinion delivered and filed

this the 15th day of February, 2007.

1.
Retired Fourteenth Court of Appeals Justice Don Wittig assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to the government code. Tex. Gov't Code Ann. § 74.003 (Vernon 2005).

2.
Appellant makes no reference to the record concerning this matter.

3.
Because appellant is partially successful in his appeal, appellee is denied any further attorney's fees for this appeal.

4.
Because of these and other rules guiding the trial court, the usual and customary practice is to liberally allow a party to withdraw original exhibits and substitute duplicate originals absent the necessity for an original exhibit for the trial or appellate court's record.

benefits which a party not at fault would have derived from the marriage had it continued, business opportunities, education, relative physical ......

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NUMBER 13-05-00429-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG WESLEY WARD WARREN, Appellant, v. DIANNE L. WARREN, Appellee. On appeal from the 148th District Court of Nueces County, Texas. MEMORANDUM OPINION Before Chief Justice Valdez and Justices Yañez and Benavides Memorandum Opinion by Chief Justice Valdez After a bench trial, the trial court rendered and signed a decree of divorce. Through two issues and various sub-issues, appellant, Wesley Ward Warren ("Wesley"), appeals the trial court's division of property and award of child support. We affirm in part, reverse in part, and remand. I. Background Wesley and his former wife, Dianne Elizabeth Warren ("Dianne"), were married for 23 years before being divorced on March 8, 2005. Two children were born to their marriage, one son, C.W., and a daughter, K.W., who at the time of the decree were 15 and 16 years old, respectively. The record shows that approximately two years prior to their divorce, Wesley accepted employment with the Newpark Drilling Fluids Corporation ("Newpark"). In accepting the position as Senior Operations Advisor, he received a $20,000 sign-on bonus, 12,000 shares of Newpark stock, a $1,000 car allowance, a country club membership, use of an automobile, and a hunting lease. At the time of divorce, Wesley had an annual income of approximately $130,000, was scheduled to receive $62,000 (1) in "additional compensation," and benefitted from incentive bonuses. Dianne is a 18-year civil service employee. At the time of the divorce she was employed by the Corpus Christi Army Depot, had a degree in industrial engineering, and earned approximately $70,000 a year. Dianne testified that as far as her earning potential is concerned, she has reached the highest grade possible for her position; therefore, her future earning potential is limited. The marital estate in this case is quite substantial. It consists of various stocks, mutual funds, CD's, IRA's, checking accounts, retirement accounts, life insurance policies, vehicles, and real property. In its findings, the trial court valued the community property at $1,784,181.18, of which $1,168,621.52 was awarded to Dianne, roughly 65%, and $615,559.66, or 35%, was awarded to Wesley. In justifying its disproportionate division of property, the trial court cited Wesley's testimony that he believed, because of the inequalities in earning capacity, that Dianne should receive a disproportionate share of the marital estate, as well as his proposed division of property which also suggested a disproportionate division of the marital estate in Dianne's favor. (2) The trial court also ordered Wesley to pay $3,100 per month in child support. As part of its support order, the trial court made the following findings: (1) Wesley's annual income exceeds $130,000; (2) Dianne's annual income is approximately $70,000; (3) Wesley's net resources exceed $6,000 per month; (4) Dianne's net resources average $4,400 per month; (5) the percentage applied to Wesley's net resources for child support by the actual order rendered by the court is 25%; (6) the amount of child support if the percentage guidelines are applied to the first $6,000.00 of Wesley's net resources is $1,500.00; (7) the total proven needs of the children, based on the testimony, on average exceeded $4,000.00 per month; (8) the number of children before the court is two. At the conclusion of evidence, the trial court granted the parties a divorce on grounds of insupportability. Following the denial of Wesley's motion for new trial, Wesley filed a timely notice of appeal. II. Child Support Wesley's first issue consists of four sub-issues that directly challenge the trial court's award of child support. Specifically, in sub-issues one and two, Wesley challenges the trial court's ability to award "additional child support" on top of a fixed monetary amount. Sub-issues three and four can be viewed as a general contention that the overall amount of child support set by the trial court is improper. Because these issues overlap, we will consider them together. A. Applicable Law A trial court has discretion to establish child support within the parameters set out in the child support guidelines of the Texas Family Code. Rodriguez v. Rodriguez, 860 S.W.2d 414, 415 (Tex. 1993); Scott v. Younts, 926 S.W.2d 415, 419 (Tex. App.-Corpus Christi 1996, writ denied). A trial court's order of child support will not be disturbed on appeal unless the complaining party can show a clear abuse of discretion. Rodriguez, 860 S.W.2d at 415; Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). In determining whether the trial court abused its discretion, we view the evidence in the light most favorable to the trial court's action, indulging every presumption in favor of the judgment. Zorilla v. Wahid, 83 S.W.3d 247, 253 (Tex. App.-Corpus Christi 2002, no pet.). If some probative and substantive evidence supports the trial court's findings, the trial court did not abuse its discretion. Id. The family code provides that when the obligor's net resources exceed $6,000 per month, the court is to apply the presumptive percentage guidelines to the first $6,000. (3) Tex. Fam. Code Ann. § 154.126(a) (Vernon 2002). The presumptive percentage guideline applied to the net resources of an obligor with two children before the court is 25%. Id. §§ 154.125, 154.126. Applying the presumptive percentage guideline to the first $6,000 of Wesley's monthly net resources, we find the proper presumptive award of child support to be $1,500. Id. § 154.125. The trial court "may order additional amounts of child support as appropriate, depending on the income of the parties and the proven needs of the child." Id. § 154.126(a). If the court orders more than the presumptive award, section (b) requires that the court first determine the proven needs of the child. Id. § 154.126(b). If the needs of the child exceed the presumptive amount, the court must subtract the presumptive amount from those needs. Id. The court must then allocate between the parties the responsibility to meet the additional needs of the child, depending on the circumstances of the parties. Id. "However, in no event may the obligor be required to pay more child support than the greater of the presumptive amount or the amount equal to 100 percent of the proven needs of the child." Id. The Texas Supreme Court has interpreted this section of the family code to provide that the "needs of the child" include more than "bare necessities of life" and courts must follow the paramount guiding principle of "the best interest of the child" in determining the award. Rodriguez, 860 S.W.2d at 417 n.3. In cases involving child support in excess of the guidelines, section 154.126 defines the trial court's discretion. Any such award must be calculated according to the formula set forth in that provision. If a trial court calculates the child support according to section 154.126, and the amount ordered is less than 100 percent of the child's proven needs, it is unlikely that the trial court has abused its discretion. See In re Gonzalez, 993 S.W.2d 147, 160 (Tex. App.-San Antonio 1999, no pet.); accord Scott, 926 S.W.2d at 422. B. Analysis Because the trial court awarded $3,100 in child support, which is greater than the presumptive amount of $1,500, the court was required to find that the proven needs of the children exceeded the presumptive amount. Tex. Fam. Code Ann. § 154.126(b). The entire body of evidence concerning the children's needs was presented by Dianne. She testified that in preparing her testimony she went through various documents and calculated her monthly expenses over a six month period. According to this budget, Dianne, working as an engineer/supervisor for the Corpus Christi Army Depot, earned approximately $4,400 per month. Her total expenses for the six month period, including both her expenses and that of her two children, averaged approximately $8,905 per month. We note that although Dianne included her own expenses in reaching the $8,905 figure, the budget itself separately list the expenses of each of her two children. We further note that Wesley did not specifically object to the presentation of Dianne's budget or to its contents during the hearing. Indeed, on cross-examination, he agreed that Dianne was in the best position to explain the needs of the children. Dianne's budget is meticulous. It includes such expenses as $1,350 for house rent; $458 for food for her and the children; $100 for the children's meals away from home; and a $315 clothing expense for both children. At trial, Dianne testified that because her daughter, K.W., has begun driving, her automotive gas bill has nearly doubled. Her budget indicates that she spends approximately $100 per month to put gas in K.W.'s. automobile and $223 a month for maintenance. Dianne also testified that the children's personal needs have increased since the separation. According to Dianne, the children's expenses include sporting activities, athletic clubs, sports equipment, birthday parties, school and sports photographs, as well as church activities and retreats. Dianne's budget indicates an average expense of $264 a month for the children's church activities, $219 to maintain an athletic club membership, an average of $208 to maintain the children's school expenses, $48 for haircuts, $118 for books and magazines, and $58 per month to maintain cable television, including internet service. Dianne's budget also includes general household expenses, such as $130 a month for electricity, $50 a month for water, a monthly household telephone bill at $31, a family cell phone expense at $390 per month, and a miscellaneous household expense at $280. Adding these expenses together, approximately $4,072 can be attributed to the needs of the children. Dianne recommended that the children receive a fixed amount of $3,100 per month. Applying § 154.126(b) of the Texas Family Code, when the presumptive amount of child support required by the guidelines ($1,500) is subtracted from the proven needs ($4,000) then the resulting unmet needs are $2,500. The trial court ordered Wesley to pay $3,100 per month in child support. Thus, the portion of unmet needs allocated to Wesley is $1,600. (4) Based on the evidence, and because $3,100 a month is less than 100 percent of the proven needs of the children, and is within the calculations required by the code, we cannot say that the court abused its discretion. See In re Gonzalez, 993 S.W.2d at 160. C. Additional Child Support In addition to the $3,100.00 per month ordered by the trial court, Wesley was required: (1) purchase and maintain at [Wesley's] sole cost and expense, a separate automobile for use and operation by each child, which automobile [sic] provides reasonable safe and reliable transportation; (2) provide and cover, at [Wesley's] sole cost and expense, automobile liability insurance in at least the minimum limits required by Texas law; and (3) reimburse [Dianne], on half of all customary extracurricular activities on which children are engaged, such as, but without limitation, athletics, music, camps, proms, etc. This portion of the trial court's order is problematic. First, the requirement that Wesley "purchase" an automobile for each child is misleading. At the divorce hearing, both parties acknowledged that their daughter had already been provided her own car, and that the son would receive Wesley's Chevy Tahoe once he is old enough to drive. Second, no evidence was introduced that showed the estimated cost of providing insurance for each vehicle. Third, the record shows that Dianne included the children's extracurricular activities and the approximate cost of vehicle maintenance as part of her total expenses supporting her recommendation that Wesley pay $3,100 in child support, which, as noted above, was awarded by the trial court. As a result of these factors, it is entirely unclear as to the exact amount of child support Wesley is required to pay, or, as discussed below, whether the trial court included both the automotive maintenance expense and extracurricular activities expense in reaching the $3,100 award. Ideally, a child support order should always specify the exact amount the obligor is required to pay. See In re Grossnickle 115 S.W.3d 238, 249 (Tex. App.-Texarkana 2003, orig. proceeding) (order requiring father to pay one-half of unspecified costs of child's attendance at private school was too vague to be enforceable). While we acknowledge that circumstances may exist where it will be necessary to include support provisions which do not set dollar limits, such instances are rare and usually occur because of the impossibility to place a value on the obligation itself. See In re Marriage of Thurmond, 888 S.W.2d 269, 277 (Tex. App-Amarillo 1994, writ denied) (obligor required to pay as child support all "reasonable repairs and maintenance" on the parties' home even though such an order leaves the amount indefinite). In contrast, where an obligation has an ascertainable value but for whatever reason it is left undetermined, the inclusion of the obligation within a support order, without any reference as to its specific value, in addition to a set monetary amount, will usually create uncertainty as to the total amount of child support an obligor will be required to pay. For example, here, Wesley is ordered to provide automobile insurance for each of the children's vehicles in addition to the $3,100 monthly award. Because of the failure to introduce into evidence the approximate cost of providing insurance for both vehicles, we are left guessing as to the total amount of child support Wesley is expected to pay in the following years. The test of the certainty required of an order enforceable by contempt is that it must spell out the details of compliance in clear, specific, and unambiguous terms so that the person affected by the order will readily know what obligations are imposed on him. Ex Parte Slavin, 412 S.W.2d 43, 44 (Tex. 1967). By that test, the mere requirement that Wesley provide insurance for both of the children's vehicles, without any indication as to its approximate cost, and without any specification as to whom payment should be made, when payment should be made, or whether it be paid in installments or whether a lump sum payment is sufficient, is too vague to be enforceable. See Grossnickle, 115 S.W.3d at 249. Indeed, we distinguish the obligation to provide insurance from those obligations whose monetary value are inherently impossible to ascertain. Cf. In re Marriage of Thurmond, 888 S.W.2d at 277 (recognizing that in those situations where the value of a support provision cannot be ascertained, there must be some objective standard by which the obligation may be measured.) As such, the absolute failure to take into account the exact effect this obligation has on the total amount of child support Wesley is required to pay results in a support obligation that is both uncertain and indefinite. We reverse this portion of the support order. See Grossnickle, 115 S.W.3d at 249. Wesley is also required to provide vehicle maintenance for the children's vehicles and pay one-half of the children's school related expenses. In contrast to the automobile insurance obligation, Dianne detailed the approximate cost of vehicle maintenance at $223 and $208 dollars for the children's school related activities. Where, like here, the value of an obligation is known, and where a trial court has availed itself of the family code's child support guidelines in reaching a support order, the assumption, based on the statutory requirement that the trial court consider the "proven needs" of the children, is that the amount reached is all-inclusive of those needs. See Tex. Fam. Code Ann. § 154.126(b) ("The proper calculation of a child support order that exceeds the presumptive amount established for the first $6,000 of the obligor's net resources requires that the entire amount of the presumptive award be subtracted from the total proven needs of the child.") (emphasis added). As the family code clearly contemplates an exact dollar amount based on those needs, any award of "additional child support" must not have been included within the evidence supporting the monetary award, otherwise, a windfall in the form of a double recovery exist for the obligee. Here, Dianne's budget clearly allocates a set amount for both vehicle maintenance and the children's school related activities. Dianne's budget was also the only evidence used to prove up the children's needs. Because the expected cost of providing automotive maintenance and the cost of providing for the children's extracurricular activities was used as evidence supporting her recommendation that Wesley pay $3,100 a month in child support, and because the trial court utilized the family code's formula in reaching the $3,100 award, we assume, without any evidence indicating otherwise, that these values were included in the trial court's overall assessment of the "proven needs" of the children. Thus, the requirement that Wesley provide these obligations in addition to the $3,100 constitutes a clear double recovery for Dianne. For this reason, we also reverse this portion of the support order. In sum, we find that sufficient evidence exists warranting the trial court's award of $3,100 per month in child support. Furthermore, because of the uncertainty created in its "additional" insurance obligation, and because the obligations to provide for the children's extracurricular activities and automotive maintenance constitutes a double recovery, we reverse these portions of the support order. Lastly, as noted above, the obligation that Wesley "purchase" an automobile for each child is contrary to the evidence presented at the divorce hearing; each child either has or will be provided a vehicle by the parties. For this reason, we also reverse this portion of the support order. III. Property Division Wesley's second issue consists of three sub-issues that challenge the trial court's division of property. In sub-issue one, Wesley asserts the trial court erred in characterizing certain unvested stock options as community property. In sub-issue two, Wesley argues that the trial court abused its discretion in dividing the marital estate as a result of assessing improper values on certain assets. Sub-issue three is a general contention that the trial court abused its discretion by dividing the community property in a manner that was not just or equitable and that the division is not supported by evidence. A. Stock Options Wesley first argues that the trial court erred in awarding Diana 65% of 8,000 stock options that remained unvested at the time of trial. According to Wesley, this award was improper because (1) the options could not be classified as community property, and (2) their value depended upon his post-divorce effort (i.e., continued employment with the company). Wesley was issued the stock options on June 9, 2004, so he acquired them while he and Dianne were still married. At trial, Wesley testified that he received the stock options as part of an incentives package offered to him by Newpark. Wesley emphasized, however, that his right to exercise the options was contingent on his continued employment with Newpark. The stock agreement shows that the 8,000 shares of Newpark stock were scheduled to vest over a three year period. Thus, of the 8,000 shares, 2,667 were scheduled to vest on June 9, 2005; 2,667 shares were to vest on June 9, 2006; and 2,666 were scheduled to vest on June 9, 2007. Wesley argues that because these options could not be exercised at the time of divorce, and were contingent on continued employment on his part, they constituted separate property, consequently, the trial court could not award any interest in them to Dianne. At the time of trial, it was well settled that stock options acquired during marriage were considered a contingent property interest and a community asset subject to division upon divorce. (5) See Boyd v. Boyd, 67 S.W.3d 398, 410-11 (Tex. App-Fort Worth 2002, no pet.); Kline v. Kline, 17 S.W.3d 445, 446 (Tex. App.-Houston [1st Dist.] 2000, pet. denied); Charriere v. Charriere, 7 S.W.3d 217, 219 (Tex. App.-Dallas 1999, no pet.); Bodin v. Bodin, 955 S.W.2d 380, 381 (Tex. App.-San Antonio 1997, no pet.); Delmer v. Delmer, 836 S.W.2d 696, 699 (Tex. App.-Dallas 1992, no writ). The fact that stock options were not fully vested by the time of divorce did not affect their character as community property, as long as the options were acquired during the marriage. See Boyd, 67 S.W.3d at 410; Kline, 17 S.W.3d at 446; Bodin, 955 S.W.2d at 381. Here, it is undisputed that the stock options were acquired during the marriage; thus, they were a contingent community property interest subject to divestiture by the trial court. See Boyd, 67 S.W.3d at 410. We hold that the trial court properly characterized the stock options as community property, and therefore did not abuse its discretion in dividing the stock options accordingly. Id. B. Property Valuations In sub-issue two, Wesley contends that the trial court abused its discretion by improperly valuing certain community property, leading to a division of the estate that varied from the court's intended 65/35 split. Wesley first contends the trial court erred in valuing Dianne's pension at $4,996. When valuing a retirement or benefits plan for the purpose of dividing it, the number of months the parties were married under the plan is divided by the total number of months the spouse was employed under the plan at the time of divorce. Shanks v. Treadway, 110 S.W.3d 444, 446 n.3 (Tex. 2003); Berry v. Berry, 647 S.W.2d 945, 946-47 (Tex. 1983). That fraction is then multiplied by the non-employee spouse's "just and right" share in the community interest as determined by the trial court, which is then multiplied by the value of the community's interest in the plan at the time of the divorce. Shanks, 110 S.W.3d at 446 n.3 (emphasis added). In its Findings of Fact and Conclusions of Law, the trial court found that Dianne's pension plan was valued at $4,996. At trial, Dianne testified that the current cash value of her pension was $4,996; no other evidence was introduced to dispute this amount. On appeal, Wesley argues that Dianne's pension is worth either $4,996 or $524,953 (the estimated value of her pension after 36 years of service). The law is clear. The value of a retirement or benefits plan is calculated at the time of divorce rather than at the time of retirement. Shanks, 110 S.W.3d at 446 n.3; Berry 647 S.W.2d at 946-47. Because Wesley did not present any evidence disputing the $4,996 figure, and because Wesley does not provide this Court with any sort of analysis showing that the trial court improperly valued her plan at the time of divorce, we are unable to find that the trial court abused its discretion in valuing Dianne's pension at $4,996. See generally Naguib v. Naguib, 137 S.W.3d 367, 374-76 (Tex. App.-Dallas, 2004 pet. denied). Wesley further contends that the trial court incorrectly valued the following items: (1) a 2004 incentive bonus (valued at $19,417.20); (2) employer provided car allowance (valued at $12,000); (3) closing cost on a new home provided by employer (valued at $7,000); and (4) an employer provided hunting lease (valued at $16,000). Wesley argues that each item should have been excluded from the trial court's total allocation of the parties' community assets; therefore, the trial court committed error in assigning these items "on his side of the ledger." The total assigned value for these items is $54,417.20. Lastly, Wesley argues that the trial court failed to include Dianne's annual leave, valued at $8,277. The total value of the community property divided by the trial court amounted to $1,784,181.18, of which $1,168,621.52 was awarded to Dianne and $615,559.66 was awarded to Wesley. In terms of percentages, Dianne received approximately 65% of the community estate, while Wesley received 35%. For purposes of analysis, with the exception of Dianne's pension, we will assume without deciding that the trial court improperly valued the above items. Accepting Wesley's argument that the trial court erred in allocating $54,417.20 as part of the community estate, and also erred in excluding $8,227 of Dianne's annual leave, Dianne would receive approximately 68% of the community estate with Wesley receiving 32%, an adjustment of approximately 3%. (6) The mere fact that certain assets are either undervalued or overvalued does not, in and of itself, constitute an abuse of discretion. Thomas v. Thomas, 603 S.W.2d 356, 358 (Tex. App.-Houston [14th Dist.] 1980, writ dism'd). In the instant case, we find that giving Dianne, at most, 68% of the estate rather than the 65% intended, does not constitute an abuse of discretion. See Thomas, 603 S.W.2d at 358 (affirming 60/40 split where valuation error could have resulted in a 70/30 split); see also Bogle v. Bogle, No. 13-05-608-CV, 2007 Tex. App. LEXIS 7151, at *9 (Tex. App.-Corpus Christi Aug. 24, 2007, no pet. h.) (affirming a 65/35 split where valuation error could have resulted in a 73/27 split). C. Disproportionate Division of Property in a "No Fault" Divorce In his final sub-issue, Wesley contends that the trial court abused its discretion in awarding Dianne a disproportionate division of the community estate. The Texas Family Code requires the trial court to "order a division of the estate of the parties in a manner that the court deems just and right, having due regard of the rights of each party . . ." Tex. Fam. Code Ann. § 7.001 (Vernon 2006). We review the trial court's division of property in a divorce decree under an abuse of discretion standard. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). "Mathematical precision in dividing property on divorce is usually not possible." Id. at 700. Wide latitude and discretion rests with the trial court, and it "is empowered to use its legal knowledge and its human understanding and experience." Id. We will reverse on appeal only if the property division is so disproportionate as to be manifestly unjust and unfair. Smith v. Smith, 22 S.W.3d 140, 143 (Tex. App-Houston [14th Dist.] 2000, no pet.). Community property does need to be divided equally, but the division must be equitable. See Kimsey v. Kimsey, 965 S.W.2d 690, 704 (Tex. App.-El Paso 1998, pet. denied). The Texas Supreme Court has given us a non-exclusive list of factors which the trial court may consider in dividing the marital estate. See Murff, 615 S.W.2d at 698-99. These factors include the disparity and abilities of income or earning capacity, the spouses' capacities and abilities, benefits which a party not at fault would have derived from the marriage had it continued, business opportunities, education, relative physical condition and obligations, disparity of ages, size of separate estates, and nature of the property. Id.; see also Garcia v. Garcia, 170 S.W.3d 644, 653 (Tex. App.-El Paso 2005, no pet.). The trial court's findings of fact suggests that because of the disparity in income between the parties, and because Dianne essentially had to start anew, it awarded a disproportionate share of the community estate to Dianne. The record supports these findings. Wesley is a senior operations advisor for Newpark. His annual income is approximately $130,000. On top of his salary, Wesley was scheduled to receive $62,000 in "additional compensation." He also benefits from a monthly car allowance ($1,000), a country club membership, a furnished automobile, and a hunting lease, all provided by Newpark. Wesley also owns Newpark stock and is provided yearly performance incentive bonuses. Dianne testified that Wesley had always been in charge of the family's finances, that she relied on his income to pay all major expenses, and that her monthly income (approximately $4,400 net) went to the "well-being of the household." The record shows that Dianne has been a civil service employee for 18 years and earns approximately $70,000 a year. Critically, on cross-examination, Wesley acknowledged that his earning capacity is greater than Dianne's, and, therefore, she should receive a greater share of the community estate. Based on the record as provided, we are unable to find that the trial court abused its discretion in awarding a disproportionate division in Dianne's favor. The trial court had before it ample evidence suggesting a great disparity in the relative earning capacities of the parties. Its findings especially emphasize the fact that Wesley testified that he earns more than Dianne and that she should receive a greater share of the community estate. With no physical limitations or illnesses demonstrated by the record, Wesley who was forty-seven at the time of trial, can expect to continue to achieve continuing financial success, and as the record demonstrates, had already taken steps in that direction. Though she benefitted from Wesley's success during the marriage, Dianne would necessarily be deprived of those benefits because of the divorce. Because disparity in income is among the many factors a trial court may consider in making the division of the marital estate, see Murff, 615 S.W.2d at 699, we hold that Wesley has not demonstrated that the trial court's decision to award Dianne 65% (or potentially 68%) of the community property was so disproportionate as to be inequitable. Therefore, Wesley has not demonstrated that the trial court clearly abused its discretion by that disposition. Wesley also seems to argue that because the trial court granted the divorce without regard to fault, any fault on his part is not to be considered in the division of the community estate. The record here, however, does not indicate that fault was considered by the trial court. As Wesley concedes, the trial court, through its amended findings of fact and conclusions of law, recanted any impression that its original findings of fact implicated him in an adulterous affair while he was married to Dianne. Although the record shows that Dianne alleged and testified that Wesley was unfaithful during their marriage, Wesley denied those allegations. The fact-finder is the sole judge of the weight and credibility of the evidence. See O'Carolan v. Hopper, 71 S.W.3d 529, 533 n.4 (Tex. App-Austin 2002, no pet.). Because the divorce was granted on no-fault grounds, and because the record does not demonstrate that fault was considered as a factor in dividing the estate, we are unable to sustain Wesley's argument on appeal. Id. Accordingly, we overrule Wesley's final issue. IV. Conclusion In summary, we reverse only those portions of the child support order requiring Wesley to "purchase" an automobile for each child, requiring Wesley to provide automotive insurance on each of the children's vehicles, requiring Wesley to provide automotive maintenance, and to provide for the children's extracurricular activities. We sustain, however, the trial court's award of $3,100 per month in child support. All points of error challenging the trial court's division of property are overruled. The judgment of the trial court is affirmed in part, reversed in part, and remanded for further proceedings consistent with this disposition. /s/ ROGELIO VALDEZ ROGELIO VALDEZ, Chief Justice Memorandum Opinion delivered and filed this the 13th day of March, 2008. 1. The record shows that Wesley was scheduled to receive the $62,000 in three installments. The first disbursement of $17,000 occurred on December 15, 2004, a second installment of $20,000 was scheduled to occur on December 15, 2005, and the final installment of $25,000 was set to occur on December 15, 2006. 2. Wesley's proposed division of the marital estate suggested a 56.3%/43.7% split in Dianne's favor. 3. Wesley does not dispute that he earns more than $6,000 per month, and because he agrees that he should pay at least the guideline maximum, we are only concerned with section 154.126 of the family code, dealing with child support in excess of the guideline maximum. 4. The sum of the presumptive amount of child support ($1,500) and the portion of unmet needs allocated to Wesley ($1,600) is $3,100. 5. In September 2005, the Texas Legislature amended the family code to provide for the characterization and division of stock options. See Tex. Fam. Code Ann. §§ 3.007(d)-(f) (Vernon 2006). The statute outlines a time-rule formula to establish the percentage of each stock option that is separate property based on the portion attributable to the spouse's separate contribution after divorce. The numerator is the period in months from the date the option can be exercised. The denominator is the period in months from the date the option is granted to the date the option can be exercised. This fraction is applied to each option to determine the separate property interest. This case was tried prior to the statute's enactment, consequently, it has no application to the case at hand. 6. Deducting the $54,417.20 from the community estate, but adding $8,227 to it from Dianne's annual leave, the total community estate would be valued at $1,738,040.98, of which a total of $1,176,898.52 would go to Dianne and $561,142.46 would go to Wesley.

Kind of strange Justice we have in Texas.......

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Famous Texans Kay Bailey Hutchison

"Would these documents reside anywhere else on any kind of backup? Well, I never authorized the personal or political work to be out there, and I don't want to be criticized for it being out there. And so I want you to go to those backup tapes and remove it all from the backup tapes." --the quote attributed to Hutchison by grand jury testimony of Deputy Treasurer Michael Barron that ultimately led to Hutchison's September 28, 1993 indictments, including felony counts of tampering with government documents and evidence.

Best known for: First woman to represent Texas in the U.S. Senate, first Republican since1875 to hold the senate seat previously occupied by Lloyd Bentsen, and first U.S. senator from Texas to come under criminal indictment.

Born: Senator Hutchison was born in 1944 and grew up in La Marque, Texas.

Family: Ms. Hutchison lives in Dallas with her husband, Ray, a former state representative. He is a partner in the powerful, influential law firm of Vinson and Elkins. Her great-great grandfather, Charles S. Taylor, was an earliest settler of Texas who signed the Texas Declaration of Independence.

Education: Graduated from the University of Texas and UT Law School (1967). In college, she was a member of the cheerleading squad.

Profession: Local Houston television political reporter (1967-1971).

Career: Ms. Hutchison switched from television journalism to politics in 1971 when Republican National Committee co-chair Anne Armstrong offered her a job as her press secretary. The two met when Hutchison interviewed her for a story. Armstrong also served on Nixon's President's Foreign Intelligence Advisory Board (PFIAB). The PFIAB is a little known, very powerful group of presidential appointees whose approval is required for all U.S. covert operations worldwide.

While in the Texas House of Representatives (1972 to 1976), Hutchison worked with Sarah Weddington, the attorney who won the Roe v. Wade case, to protect rape victims from having their names published. She has since supported some abortion rights, but not federal funding for them.

Hutchison was appointed vice chair of the National Transportation Safety Board in 1976, during Gerald Ford's last year as president. She lost a bid for Congress to future Dallas Mayor Steve Bartlett in 1982. In 1990, she was elected Texas State Treasurer, defeating Democrat Nikki Van Hightower. In politically expedient actions, Hutchison trimmed the treasury's budget and increased returns on state investments. She spearheaded a successful fight against an income tax in a state where even the suggestion of one is ridiculed and despised.

In 1993, Hutchison and her team of attorney's - led by Dick DeGuerin, the $700-an-hour hotshot criminal lawyer and defender of Branch Dividian David Koresh - were fighting charges that she had abused her office as state treasurer. The evidence portrayed Hutchison as a termagant who verbally and physically abused her staff, including testimony that while in a tirade, she hit executive assistant Sharon Connally Ammann, the daughter of former governor John Connally, on the shoulder with a notebook binder. Another deputy had been Warren Idsal, the son-in-law of Hutchison's best friend and mentor, legendary ultra-right-wing Texan and Nixon adviser Anne Armstrong. She fired Idsal and later cited his removal as a threat to a frustrated staffer of her tough approach to personnel management. The evidence also showed she ordered a purge of backup computer tapes containing personal and political documents her executive staff produced for her. Conviction for the Nixon-like charges would have ruined her politically. Hutchison claimed the chief prosecutor, Travis County District Attorney Ronnie Earle, was part of a sinister conspiracy against her.

She was acquitted in February 1994, when Earle declined to proceed with the case. The jury selection had gone badly for Earle. Jurors were exposed to news media which was pressured, according to former Fort Worth Star-Telegram capitol reporter Joe Cutberth, to slant coverage in Hutchison's favor. Her own press secretary Dave Beckwith (former Dan Quayle spokesman), and Republican consultant Karl Rove (former Hutchison campaign manager and later top handler to George W. Bush) were heavily quoted spinning the tale of a politically motivated prosecutor. Finally, presiding judge John Onion refused to make a pretrial ruling on whether he would allow the incriminating tapes into evidence. Stripped of the certainty of using key evidence, the prosecution dropped the charges in the hope of starting over later before a less restrictive judge. Judge Onion outmaneuvered Earle, however. He swore in a jury and immediately ordered them to acquit Hutchison. She then proclaimed the forced verdict proof of her innocence.

In an appearance with her friend and senate college, Senator Phil Gramm, at the 1999 re-dedication of the Daughters of the Republic of Texas Museum in Austin, Gramm joked, "When people introduce us, they introduce us as the beauty and the beast. Which is always confusing to me because I never know which is which."

Twice elected to the Texas House of Representatives, Hutchison won her first full, six-year term to the Senate in 1994, following her victory in a 1993 special election to replace Lloyd Bentsen. Bentsen had been appointed President Clinton's first treasury secretary. In the 1994 election, Hutchison defeated Dallas businessman Richard Fisher with sixty-one percent of the vote, and vowed that she would serve only two full terms.

In 1996, Hutchison devised the federal welfare funding formulas used for welfare reform legislation. She shaped defense policy on the defense and military construction subcommittees of the Senate Appropriations Committee. She also served the Senate Commerce Committee, chairing the Subcommittee on Surface Transportation and Merchant Marine. In that position, she drafted and passed the Ocean Shipping Reform Act of 1998.

Hutchison led senate fights for legislation preventing states' tobacco settlement funds from federal seizure, and a bill strengthening health-care benefits for veterans and military retirees. She sponsored and passed the federal anti-stalking bill, and legislation that expanded retirement funds for stay-at-home spouses.

During 1999-2000, Ms. Hutchison was a deputy majority whip. She also served as chairman of the Board of Visitors of the U.S. Military Academy at West Point, co-chair of the Congressional Oil and Gas Caucus, and is a U.S. delegate to the Helsinki Commission (Commission on Security and Cooperation in Europe).

In the final week of September, 1999, Hutchison got enough votes to end a Senate filibuster and pass a rider that would stop the Department of the Interior from collecting full royalties from big oil companies drilling on public land. Small companies pay royalties on the market price of crude. Big Oil "sells" crude to their own refineries $4 to $5 per barrel lower than market price. That lowers their royalty payment, saving them millions.

Ms. Hutchison has received $1.2 million in political contributions from the oil industry since becoming a senator. An attempt by Wisconsin Senator Russell Feingold to put that fact into the Congressional Record was ruled out of order by the Chair, who declared campaign finance was "not germane" in a debate about oil royalties. John McCain, Republican presidential candidate in the 2000 campaign, co-sponsored Feingold’s campaign finance legislation, but that did not stop him from casting the sixtieth vote required to end the filibuster and protect the oil subsidy. Hutchison declared, "It was a victory for America."

Considered to have a successful future in national politics, Hutchison, during the 2000 election year, was frequently mentioned as a possible candidate for governor in 2002. She entered her Senate re-election campaign with funding over $6 million - the most any senator had raised for a 2000 race. She also expressed no interest in a Cabinet position or presidential appointment in any Republican White House in 2001.

Her editorials on tax and defense issues have been published in the New York Times, the Wall Street Journal, the Washington Post, the Los Angeles Times, and every Texas daily newspaper.

Awards:

* Ten Outstanding Young Women of America (1977)
* Twenty Rising American Political Stars by USA Today Weekend (1990)
* Eagle Award for valued commitment to our nation's Hispanic Community (1993)
* Outstanding University of Texas Law School Alumnus (1995)
* Outstanding University of Texas Alumnus (1995)
* Republican Woman of the Year by the National Federation of Republican Women (1995)
* Coastal Conservation Association's Silver Ingot Award (1997)
* Texas Women's Hall of Fame (1997)
* Texan of the Year award from the Texas Legislative Conference (1997)
* Advocate for Education award from The College Board (1999)
* Clare Booth Luce Policy Institute Conservative Leadership Award (1999)

Sources: United States Senate Biography, http://www.senate.gov/~hutchison/bio.htm; ABC News Biography, http://www.abcnews.go.com/reference/congress/TXS1.html; Miriam Rozen, "The Case Against Kay," Dallas Observer, June 23, 1994 (reprinted in The Austin Chronicle, July 15, 1994, pp. 15-16, 18-25); Catalina Camia, "Hutchison won't rule out future run for governor," The Dallas Morning News, 01/05/2000, http://dallasnews.com/texas_southwest/14346_KAY05.html; The Texas Observer, October 15, 1999, http://www.texasobserver.org/10_15_99/dinosaurio_1015.html; Sam Attlesey, "'Beauty and the Beast' tout their road show," The Dallas Morning News, December 12, 1999, http://dallasnews.com/texas_southwest/columnists/5840_TEXPOL12.html.

A review of court records shows that of the $700,000 from a malpractice settlement Michael won that was to go for her care, over half has been........

Issues Surrounding Terri Schindler-Schiavo Are Disability Rights Issues, Say National Disability Organizations

Oct. 27, 2003 -- We, the undersigned, come together in support of Terri Schindler-Schiavo, and her human and civil rights. We are the national spokespersons for the rights of millions of Americans with disabilities whose voices are often not heard over the din of political and religious rhetoric. We come together for those who will be touched by disability in their lifetime and who will need our help to make their voices heard.

We call on the media to join with us in ensuring that the real story about Terri Schindler-Schiavo, and thousands like her, is told.

We ask the general public, who are clearly confused about what is best for Ms. Schindler-Schiavo and others like her, to read this joint statement, signed by national organizations and our allies, and then to act accordingly to signal their support for Terri Schindler-Schiavo. Terri Schindler-Schiavo is alive. She deserves nothing less than the full advantage of human and civil rights the rest of us are fortunate to enjoy as Americans. We will not rest until her most basic humanity is secure.

The "right to life" movement has embraced her as a cause to prove "sanctity of life." The "right to die" movement believes she is too disabled to live and therefore better off dead. Yet the life-and-death issues surrounding Terri Schindler-Schiavo are first and foremost disability rights issues -- issues which affect millions of Americans with disabilities, old and young.

Can she think? Hear? Communicate? These questions apply to thousands of people with disabilities who, like Ms. Schindler-Schiavo, cannot currently articulate their views and so must rely on others as substitute decision-makers. The law requires that a guardian's decision be based on written documentation or other clear and convincing evidence of her wishes. Her husband and guardian, Michael Schiavo, says she would not have wanted to live in her current condition, but there is no written documentation or compelling evidence of this. There is just his word.

Early on in Michael Schiavo's quest to remove his wife's source of nourishment, an independent guardian was appointed upon request by Schiavo's own attorney, George Felos. That guardian, attorney Richard Pearse, issued a report to the judge stating that Michael Schiavo was not a credible witness to his wife's end-of-life wishes because he waited several years before coming forward with the claim that she wanted to die. Pearse also noted that Michael Schiavo would benefit financially from her death. Pearse was quickly removed at the request of Felos. Experts on the issue of guardianship point out that it is always desirable that a person in Terri Schindler-Schiavo's position have an independent representative who has no particular interest in the case other than her. Since the dismissal of Pearse in 1999, Terri Schindler-Schiavo has never been appointed another independent guardian. The law Gov. Jeb Bush has just signed calls for one now.

The peculiar series of events which have led up to the current debate seem to have avoided both the judge's scrutiny and media coverage. Michael Schiavo says his wife would not have wanted to live in her current condition. And under Florida law a spouse has the right to decide, though his powers are limited by the U. S. Constitution.

Michael Schiavo conveniently remembered Terri's alleged wishes only after the malpractice judgment was awarded. A review of court records shows that of the $700,000 from a malpractice settlement Michael won that was to go for her care, over half has been spent on his legal fight to disconnect her feeding tube. Over $200,000 of it has been paid to his attorney George Felos. Michael Schiavo has refused to let his wife receive therapy from a speech pathologist, a common type of rehabilitation available to people with brain injury. A prominent expert filed an affidavit that Terri Schindler-Schiavo can swallow her own saliva, and could potentially be weaned from the feeding tube and recover some speech, so that she could indicate her own wishes.

A recent report in the New York Times Sunday Magazine stated that after months or years with little sign of consciousness, people may still be capable of complex mental activity. The reporter, Carl Zimmer, wrote, "To the medical world, ...hundreds of thousands of ...Americans who suffer from impaired consciousness present a mystery." Whether Terri Schindler-Schiavo is -- or isn't -- capable of "high level thought" is not the real issue here. It is clear that she is conscious and responsive beyond mere reflexes, as has been demonstrated by her ability to track with her eyes, respond to verbal commands by physicians who examined her on video, and react to those she loves.

She has a severe brain injury, yet has not undergone the rehabilitation that is typically given to people with this type of disability. People with severe cognitive disabilities are devalued as lives not worth living. In truth, the lives of all of us with severe disabilities are often considered expendable. This is why we are speaking out.

Americans who have disabilities -- cognitive disabilities like Ms. Schindler-Schiavo -- have rights. Congress decided that in 1990 when it passed the Americans with Disabilities Act. Yet most of society does not consider that Terri Schindler-Schiavo has any rights other than the right to die. We believe she has a right to therapy and support; we believe the Americans with Disabilities Act requires that.

Consider David Jayne, a 42 year old man with ALS. Every five seconds, a ventilator on a cart next to his bed pumps air into his lungs. He is not able to move. Twelve years ago, Jayne would have dismissed this existence as a living hell. "Yes, I am very passionate about the Terri Schindler-Schiavo issue, because I live it," says Jayne, who was profiled in TIME Magazine in 2001. Jayne, like many of us, would have once said he could not imagine living in his current state. "If someone had told me I would be paralyzed and tethered to a ventilator, yet still find meaning in life, I would not have believed them." Today he says, "It is incredibly wrong for society to decide who lives or dies based on their opinions of what level of quality of life is worth living."

In this matter of living as a disabled person, those of us who live with disability, are the experts -- not husbands, not parents, not doctors. We know that life with a disability is worth living, and we know that what makes life awful for us is the attitude of "better off dead" that drives much of the thinking surrounding people like Terri Schindler-Schiavo.

The fear of disability and the resulting bigotry adhered to by most non-disabled Americans is often cited by people with disabilities as one of the most difficult barriers to overcome. In a recent column, Bill Press stated, "I wouldn't want to live like that, would you?" We respond: "like what?" Terri Schindler-Schiavo is characterized as "...a brain-damaged woman who has been kept alive artificially." Meant to signal horror, the concept has no real meaning to us who live by "artificial" means. Is a person on dialysis being kept alive artificially? Is a person taking insulin being kept alive artificially? Is a person who undergoes open-heart surgery, or cancer treatment, or intensive care in a hospital being kept alive artificially?

It is a well-known fact among those of us who live with disabilities that a feeding tube is a low-tech support, and people who use them can and do live full and meaningful lives. It was invented in the nineteenth century and relies on nothing more than gravity to make it work.

Terri Schindler-Schiavo is said to be in a "persistent vegetative state." But is she? In court, the medical experts were divided. Fl. Circuit Judge George Greer say she has not demonstrated sufficient actions to prove "cognitive function" because her actions were not "consistent" or "reproducible." But Florida law defines "PVS" as a condition in which there is no evidence of responsiveness. By ignoring Florida law, Judge Greer has violated her due process rights, as many of us asserted in our friend-of-the court briefs.

Historically, many people with disabilities such as autism, Down syndrome and cerebral palsy have been thought to be incapable of communication. Increasingly, yesterday's assumptions about inability are being thrown out when confronted with the reality of people exceeding the low expectations put on them by others.

In 1990, the Supreme Court held, in the Cruzan case, that the experts' subjective determinations of things like "persistent vegetative state" invite the very "quality of life" judgments that the Court found were inappropriate.

Terri Schindler-Schiavo's fate is entwined with all disabled people who rely on surrogates. If the legal standard in cases involving termination of life support is reduced to the point where Ms. Schindler-Schiavo's "quality of life" - as determined by others - justifies her death by starvation, then what protections exist for the thousands of us who cannot speak due to disabilities?

Discrimination against people with severe disabilities is part of our nation's history. Eugenicists advocated for the involuntary euthanasia of 60,000 "hopeless cases" of persons with disabilities in institutions in the last century, and urged the killing of "defective" children. Thousands in our nation were sterilized against their will because they were "defective". Infants born with disabilities have been denied lifesaving medical treatment. And people who become severely disabled, like Terri Schindler-Schiavo, are said to be better off dead.

The need for constitutional limits on the powers of surrogate decision makers is nowhere more clear than on a question as fundamental as life or death, because the consequences of abuse or misjudgment are both ultimate and irreversible. Treating people differently based on health or disability status violates the rights of people with disabilities under the ADA. Absent proof that it is truly the person's decision, withholding medical care based on the belief that he or she would rationally want to die because of a disability is discriminatory.

Due to bias against disability and ignorance about the support systems and successful coping strategies that preserve autonomy, meaning and pleasure in life, some physicians have decided that some deaths are more rational than others and that incompetent ill and disabled people do not deserve the same type of health care that "competent" people would receive. When health care providers deny people with severe cognitive disabilities the health care they need to live, we believe they are violating the Americans with Disabilities Act.

The belief that people with disabilities like Schindler-Schiavo's are "better off dead" is longstanding but wrong. It imperils us all. As spokespeople for millions of Americans with disabilities and their families, we stand with Terri Schindler-Schiavo to protect her civil and human rights as a living American. She requires the equal protection of the law.

SIGNED:

ADA Watch
ADAPT
AIMMM - Advancing Independence
Center for Self Determination
Center on Human Policy
Citizens United Resisting Euthanasia (CURE)
Disability Rights Center
Disability Rights Education & Defense Fund
Disability Rights Project of the Public Interest Law Center of Philadelphia.
Hospice Patients Alliance
National Catholic Partnership on Disability
National Coalition for Disability Rights
National Coalition on Self-Determination
National Council on Independent Living
National Disabled Students Union
National Down Syndrome Congress
National Organization on Disability
National Spinal Cord Injury Association
Not Dead Yet
Self Advocates Becoming Empowered (SABE)
TASH
World Association of Persons with disAbilities
World Institute on Disability

News coverage of Terri Schindler-Schiavo from Inclusion Daily

Ironclad Prenup/K or wattever .......Legally/Financially/Economically/Tax Liability Partners..it is a divisive/divisable/dissolvable/divorce contract

dannoynted1 (14 posts) Click to send private message to this author Click to view this author's profile Click to add this author to your buddy list Click to add this author to your Ignore list Sat Jul-07-07 01:07 AM
Response to Original message
6. Divorce like marriage is a legal contract

Edited on Sat Jul-07-07 01:44 AM by dannoynted1
If partnerships are dissolved is there a divorce?


Look at Donald Trump & Ivana, Jerri & Mick, Tom & Nicole were these divorces amicable?

Is there such thing as a civil divorce?

Every time I hear about "Gay Marriage", I think of 2 things: 1)The partner with the money claiming it was not a "real marriage" and 2)the one with out the money getting screwed.

If 2 men/women really want to be "committed" then they will enter into a "Business partnership" a legally binding contract that will be enforceable by both sides......that way there is no question of treachery.

And no doubt, will be a hell of a lot stronger than any legal marriage dissolved by a contract of divorce.


MIck tried to say they really were not married because it was in Fiji or somewhere?

Could he clean house? "When you inherit a nightmare means information required to protect the United States and the Free World .

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Chapter 20

Krushchev's Challenge: The U-2 Dilemma



AS THE GLOW OF SUNRISE ILLUMINED the snowcapped peaks of the Western Himalayas, the pilot moved the throttle lever to full power and the heavily laden plane began a lazy roll down the long runway at Peshawar. The engine whined, the rate of acceleration was slow, and with each unevenness of the runway the long downward sloping wings dropped up and down, unable to come to life at that slow speed. And then, with more speed, the wings began to fly. They rose and steadied, the flopping and oscillation dampened out, and they strained to lift the heavy plane into the air. Just before the runway ran out, one last light bump, gentle as the tiptoe leap of a ballet dancer, lifted the plane into the air, and it was instantly transformed into a thing of beauty -- a graceful long winged jet.

As speed built up and wheels were retracted the plane sped through the pre dawn haze. The pilot eased the flaps up into the wings and began to climb toward the mountains. High above and to the left was the historic Khyber Pass. On course, there was a pink tinged twenty-five thousand foot peak, and further to the right was Godwen Austen, over twenty-eight thousand feet, wearing its perennial white plume. The jet was so heavy that the pilot swung it into a lazy turn inside the valley to spiral up and out, gaining altitude as he went, until he was above that famous path of the conquerors through the Khyber and nearly level with the twenty-five thousand foot mountain top. Kabul the capitol of Afghanistan, lay below; to the right, Tadzhik, the first major city inside the Soviet Union, lay ahead with Tashkent beyond. Border crossing was made at Kirovabad in a climb to sixty thousand feet. The sky was clear and dark blue -- the sky that only the small band of jet pilots know the world around. At this altitude the weather, whatever weather there was, was a remote thing, noticed only as patches of white cloud below, obscuring the ground. At cruising altitude the cockpit air system had cleared out all moisture, and the canopy was clear and brittle. Visibility was almost limitless. The pilot was a lone soul above the world, above all normal environment, under a simple, burning sun, and tuned to the even silence of the engine and the slow, mushy responsiveness of the controls in the near vacuum of the atmosphere at that height.

In the still early morning at Peshawar, the operational team had just finished flashing their message to Washington: "Puppy 68" was off and on his way to Norway via Sverdlovsk. The watch officer in the special U-2 control office in downtown Washington got that word shortly after 8:30pm on the evening of April 30. Dick Bissell, the Agency man in charge of the U-2 project, was notified immediately. Then, in short succession four other men were called. One by one they heard the same information, "Puppy 68 is away." President Eisenhower was at his favorite retreat, Camp David, with Prime Minister Macmillan of Great Britain, putting the finishing touches on plans for the summit conference. De Gaulle had just left Washington, and Macmillan and De Gaulle were scheduled to meet again in Paris on May 5. All was well with the world. The aging men who had led the world through World War II and then through the bitterness of the Cold War were preparing to culminate their long efforts in a great summit conference and then, one by one, lay down Krushchev's Challenge: the mantle of government to a new generation who would reap the benefits of peace -- hopefully true and lasting peace.

The fate of the world hung in the balance somewhere between these earnest plans for peace and the miles remaining ahead of that U-2 as it neared Sverdlovsk. This was not the normal U-2 flight. Much was made of the fact that the pilot had with him a vial (needle) of poison; so that rather than expose his native land to charges of willful violation of the air space and sovereignty of the Soviet Union, he could silence himself in death. The code of the spy. Yet little was made of the antithetical fact that the pilot also had a parachute which would save his life. Much was made of the fact, afterwards, that this was a "civilian" aircraft and that it was flown by a "civilian" pilot. Yet this pilot had been permitted to carry with him on this flight his military identification card, complete with name and picture, along with a pocketful of other identifying cards, all of which easily placed him at military installations, in military instrument flight schools, and on military facilities just days before the flight. He was hardly a deniable spy.

Much was made later of the fact that Air Force Captain Powers had resigned from the Air Force and that he was a civilian employee of the Lockheed Aircraft Corporation. He was technically a civilian: But his records were still held by the Air Force, and had he chosen, he could have returned to the Air Force without loss of pay, seniority, and promotion status.

Furthermore, the number of identification items that he had with him made it clear that he was less a true civilian and more a civilian cover spy pilot. He was in the same mold as Allen Pope in 1958, who was captured by the Indonesians, and of the Air Force crew that was shot down in Armenia also in 1958. By that time the Russians had plenty of evidence to know that "civilian" pilots belonged to the CIA by way of the U.S. Air Force.

This course of events had more impact upon the United States than upon the Soviet Union. The U.S. Government made much of the fact that the U-2 was an "unarmed civilian aircraft" and that it was flown by a civilian. However, in his book, The Craft of Intelligence, Allen Dulles makes much of the fact that operation of such sophisticated aircraft could scarcely have been kept a secret. It wasn't! As he wrote, "Sooner or later, certainly this would have leaked out." Since this was so certain, then why did the U.S. Government have to give out untrue cover stories? And why did they have to permit Powers to carry so much identification when it would have been better to limit the leak as much as possible? Even if he had died, they would have had all the information they needed. How did it happen that they broke with policy procedures for that special flight by letting him take off loaded with incriminating evidence that proved he was a U.S. spy pilot? Who was it who wanted this special U-2 flight on May 1, 1960, two weeks before the summit conference, to fail and then to become so glaring an admission of guilt when it did fail that it would inevitably doom the summit conference along with it? The incidence of these things, too many things, give weight to the thought that this flight was intended to be something rather special.

Nothing was said that all clandestine operations personnel, and especially the select coterie of U-2 pilots, were required to submit to a complete inspection before takeoff, which included the removal of all clothes and other personal effects and the issue of sanitized, non-identifiable clothing and equipment sufficient only for the flight. Neither pilot nor plane were sanitized on this flight as was required on other flights.

But these are only details that came up after the flight. The special question about this flight and this plane and this pilot was, "Who sent him out in the first place? What was this flight supposed to gain that could have been worth one particle of what it lost?" The Secretary of State, in attempting to justify the flight and as the official spokesman for his Government, said, "Conditions at a latter season would have prevented obtaining very important information. There is never a good time for a failure of an intelligence mission. We believe it unwise to lower our vigilance because of these political negotiations." Then the following three reasons for operating this flight were given:

"1) Clear skies had been forecast, which meant clear pictures.

"2) May 1 for the Russians is something like the Fourth of July for Americans. It is a national holiday that honors the solidarity of the working class. In Moscow it is the occasion for a display of armed might in a mammoth parade that winds past the Kremlin where high Soviet officials, including Krushchev, watch the troops and material go by from a reviewing stand. It was felt in Washington that the Soviet vigilance might have relaxed on May 1 because of the holiday, that perhaps radar and antiaircraft crews would be celebrating to the detriment of their defenses.

"3) The CIA had intelligence that a new Soviet rocket twice as large as anything produced by the USA would be on its launching pad for a May Day test. The launching pad, it was known, was at a new missile base near Sverdlovsk industrial complex and noted that the launch points were domed rather than following the herringbone pattern of the older Russian ground-to-air missile sites."

For some reason almost everything about this flight was different, and for some reason it had to go at precisely the time when it would cause the most alarm if it failed. A careful rereading of the objectives of this flight fails to confirm them to be of sufficient significance to override the natural precautions that should have been taken, especially since every top official in the Government knew how important the summit conference was to the President. And only high level officials - or knowledgeable ST members -- could have launched that flight. All of the regular launch authorities certainly knew that they were under strictest orders to do nothing that would jeopardize the success of the conferences.

Flights such as this one from Pakistan, Turkey, and Norway were tracked by U.S. radars and other sensitive tracking equipment. The plane did not have to maintain total silence. After all, anything the long range radars from peripheral areas could track from hundreds of miles away the Russians air defense system could track from twelve (the flight altitude) to a few hundred miles. The Soviets would know the plane was there; as we learned later, they knew of almost every flight during the previous four years. They had tracked and forced down countless U.S. aircraft in preceding years. It has been known for decades that Soviet radar is as good as or better than ours. They tracked the U-2 planes, but could not reach them at their extreme altitude. So the U-2 could communicate, not in the usual manner, but with flash, or "squirt", coded transmissions at predetermined times. In spite of the rather strange way in which the news of the loss was announced, there is no reason why we should believe that some authorities in this country did not know that it had occurred, and perhaps they knew exactly why it went down. Yet they ordered the administrator of NASA to give out an unreasonable cover story, which even said the plane had come from Turkey.

When the plane went down, its signals faded and it was lost from tracking radar. The engine had stopped, and Powers was gliding the plane down from its extreme altitude, which was so high that the air's oxygen content was insufficient to support combustion. The normal combustion of the jet engine at that altitude had to be assisted by the infusion of a trace of raw hydrogen from a small liquid hydrogen cryogenic storage bottle. If by some chance the engine either coughed itself out, or if something happened to this slight hydrogen supply and the engine flamed out, it could not be restarted at that altitude. The pilot would have had no recourse other than to let down and see if he could restart the engine at some lower altitude. The evidence that the engine would not restart even at thirty thousand feet indicates that the trouble was most likely hydrogen deficiency and not a normal fuel flameout. Had it been a simple flameout and had there been plenty of hydrogen, the engine should have restarted, as others had in similar circumstances.

When the plane did not restart, Powers was forced to let it continue to spiral toward the earth, and then at a safer altitude either bail out (a high altitude bailout is dangerous and violent) or continue on down to the ground. Actually, some of the early pictures of the U-2 showed an aircraft that was relatively undamaged, when one considers that the Russian story was that it was hit by a rocket in the air and then crashed into the ground. We may never really know whether Powers parachuted because he was hit by Russian rockets or gunfire or whether he parachuted simply to leave a plane that was doomed to crash anyhow. The elaborate pictures of the plane, which the Soviets released at the trial, show neither bullet damage nor rocket fragment damage, although at that point neither would be important; the plane was going to come down. If it had not been on the way down, neither rockets nor bullets would have been able to bring it down in those days.

Those who had been watching the progress of the flight from Washington control soon learned that the U-2 had dropped from surveillance, and they may have received coded information that gave them solid clues as to why the plane did come down. After all, space technology had reached the point by that time that ground tracking stations could tell every minute change and environmental perturbation on a remote nose cone. There was no reason why anyone should expect that the U-2 tracking system was not at least as good as that. Nose cones transit the Soviet Union all the time and are monitored all of that time. The U-2 was most likely monitored in the same manner. Therefore, it was not long before the alerted officials in Washington knew that Gary Powers was down somewhere in Russia.

In spite of this firm knowledge they instructed the CIA to say nothing. By this time the President had returned to his Gettysburg farm, and Secretary of State Herter was in Turkey, continuing his rounds of talks prior to the summit conference. As far as Eisenhower and Herter were concerned, all was well, and the conference was a short two weeks away.

In the belief and the hope that the crash had been unobserved and undiscovered by the Russians, Allen Dulles suggested that the administrator of the National Aeronautics and Space Administration, T. Keith Glennan, release a preprepared cover story. Glennan reported that a high altitude weather research aircraft on a flight from Adana, Turkey, was missing and that "it might have accidentally violated Soviet air space." At that time he added that these aircraft were special U-2 high altitude planes and that they were essential to the space program. It was believed that this frankness would take some of the heat off the flight, especially if the Russians should ever find the wreckage and report it.

This was the initiative Krushchev had been waiting for. On the fifth of May, five long days after the plane had landed, he reported that an American plane had been shot down over Russian territory. He gave no more detail than that, although he did harangue about American war-mongers, and those Americans who remembered, recalled that the Russians had shot down that innocent U.S. Air Force transport aircraft in June 1958. It began to look as though the barbaric Russians were being trigger-happy again and that they had shot down another innocent weather plane.

Those who knew the real fate of the U-2 remained silent, and those who did not went through the paces like automatons. The official spokesman of the State Department, Lincoln White, came out immediately after Krushchev's remarks and repeated Glennan's story, and again claimed innocent action on the part of the "disabled" pilot. On the same date, the U.S. Ambassador in Moscow reported that he had picked up some cocktail party gossip in Moscow that implied that the American pilot had been captured and that he was in good health. The 1958 incident was being repeated almost to the line, and hopes began to rise that this "mistake" would be no worse than the last one.

Then, on May 7 Krushchev moved in for the kill: "Comrades, I must let you in on a secret". "When I made my report I deliberately refrained from mentioning that the pilot was alive and safe and that we had the remnants of the plane. We did this deliberately, because had we given out the whole story, the Americans would have thought up another version." He then went on to give the whole story in detail. However, he stopped short of accusing Eisenhower of knowing that the flight had been ordered over the Soviet Union. It is entirely possible, in fact it is most probably the whole truth, that Eisenhower did not know that the U-2 had been dispatched on that fateful flight. Krushchev offered him an out when he said, "I am prepared to grant that the President had no knowledge of a plane being dispatched to the Soviet Union and failing to return; but that should alert us still more."

The Russian Premier was ready to say, "We are so close to the summit and to peace. I am ready to accept that this was a cruel and terrible provocation made by others without the knowledge of the American President." Let the President stand up and say that he had no knowledge of this flight, and then back up his statement by firing Allen Dulles, Dick Bissell, and those other four men who had pressed so hard for this flight. This was the challenge and that was the price. There was still a chance that Ike could have his long dreamed of summit conference; but now he would have to pay the price. Thus Eisenhower was put to the biggest test of his entire career. Could he clean house? Could he rid the country of those who, as Harry Truman said, "had diverted the CIA to become the center of foreign intrigue" or would he have to bend to their might and their cunning and see his dreams shattered in a cold and cruel awakening? Many years later it was President Richard M. Nixon who said, "When you inherit a nightmare . . . " -- and that was as far as he went with his thought. President Kennedy after the Bay of Pigs had the same nightmare. President Eisenhower had come within two weeks of achieving not only the goal of an aging President who had given his entire adult life to his country; but of realizing the hope of the entire country for a lasting and hopeful peace.

No one will ever know just why he turned down Krushchev's gambit. No one will ever know why he decided to back the ST at a time when it had permitted his plans to be shattered. Did he simply believe that his course was the only honest way out and that someone in his Administration had made an innocent mistake; or did he succumb to a greater pressure?

It was not only the U-2 that had trapped him. The ST had armed and equipped a major force of tens of thousands of Tibetans high beyond the Himalayas; it had thousands of Cubans under arms and in training all over the North American continent, from the Canal Zone to many sites in the United States it was deeply entwined in the politics and economy and rebellions of Africa; and already the United States, which had seldom seen armies in its own streets, was becoming accustomed to the roar of heavy trucks and the march of feet in embattled inner cities. Did Eisenhower really have a choice? Could he just fire Allen Dulles and a few of his top lieutenants and clean house that simply? He knew that he could not. Those other men who had seen to it that all the little things fell into place and that the U-2 had gone aloft on that precise day were men of the ST, and wiping out Dulles and his staff would not touch them. Furthermore, it was one thing to have the power to see that the U-2 was not stopped from going on a rather routine flight; but it was an entirely different matter to be able to assure that it would come down in the very center and heart of the Soviet Union.

The men responsible for this flight were highly competent and they knew, for instance, that if the all important hydrogen bottle was only partly filled they could count upon the plane's corning down as certainly as if they had only partly filled its tanks with fuel. But fueling was a routine chore done by men who always know the plane must be full; and a pilot knows that he must check the tanks and the caps. Also, on the U-2 you can just about tell how full it is by seeing how much the heavily loaded wings droop when the plane is on the ground. Hydrogen starvation was much more subtle.

As Ike pondered his dilemma it no doubt flashed through his mind how all of these pieces began to fit together. He had heard a little about the training of Cuban exiles. He had heard something of the Tibetan flights and of the training of Tibetans in the United States for deep paradrop missions into far northwest China. He knew of the troubles in Africa, and he knew how inner city problems were welling up in the United States. But he had put all this aside as small matters in comparison to the importance of his great crusade for peace. It is quite evident that these thoughts preyed upon his mind. On May 9 he authorized Secretary Herter to say, "In accordance with the National Security Act of 1947 the President has put into effect since the beginning of his Administration directives to gather by every possible means information required to protect the United States and the Free World against surprise attack and to enable them to make effective preparations for their defense. Under these directives, programs have been developed and put into operation which have included extensive aerial surveillance by unarmed civilian aircraft, normally of a peripheral character, but occasionally by penetration."

To underscore what the Secretary had said and to confirm what had been on his mind, the President himself said: "As the Secretary of State pointed out in his recent statement, ever since the beginning of my Administration I have issued directives to gather, in every feasible way, the information required to protect the United States and the Free World against surprise attack and to enable them to make effective preparations for defense." He was putting together in his own mind all of the bits and pieces of the big puzzle. He had been trapped by his own ST, and all of the things they had been doing now made a pattern.

The United States and the world were not going to have peace; they were going to enter a generation or perhaps even more of numbing cold war in which the inputs of random secret intelligence would provide evidence of subversion throughout all the countries of the free world and the United States would react by attacking subversive insurgency wherever it was discovered.

Now Eisenhower could see what his old comrade in arms, Maxwell Taylor, had meant by his new "National Military Plan Of Flexible Response." There is much more meaning in those words than anyone would suspect at first reading. It would have been enough for Maxwell Taylor to suggest a new national military plan; but this was not the idea. He meant that from now on the country would be mobilized in an increasing frenzy to the tune of another trumpet, which called for a military plan of flexible response to Secret Intelligence alarms and cries of subversive (Communist) insurgency.

All of these things took on a new meaning and a totally new warning. The President may have realized that he was not really in charge of events, and he could not honestly say that he didn't know what was going on; yet he had never seen the picture in its totality before. There was no other way out. President Eisenhower did the only thing he could. He announced to the world that he had known about the flight and that it had been his sole responsibility as Commander in Chief of the United States.

With that, Krushchev had no choice but to face the same facts, his way. How could he hope to reach a peaceful settlement and meaningful agreements with a President who was admitting to the world that at the very time he had been speaking peace he had been plotting overflights and the invasion of the territorial integrity of not only the Soviet Union, but of China and Tibet and Cuba. Krushchev had no alternative either. All hope for a successful summit conference had gone. The leaders of the world attended the conference individually but all was lost. With this great disaster the fifteen year search for a peaceful settlement in a world menaced by the atomic bomb came to an end. Vietnam lay ahead.


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