FARISH v. FARISH (1998)

OPINION

George and Charlene Farish were married on July 21, 1989, separated on December 27, 1993, and divorced on May 20, 1996.¹  George filed a limited appeal contesting the trial court's division of property and award of attorney's fees.   We address whether the trial court properly characterized certain property as either appellant's separate property or property of the community estate and whether the community estate has a claim for reimbursement for child support payments and attorney's fees paid by appellant to the wife and daughter of a former marriage.   We reverse and remand.

Reimbursement for Child Support Payments and Related Attorney's Fees

In point of error seven, George contends the trial court erred in granting a right of reimbursement to the community estate for funds he expended to satisfy his court-ordered support obligations to the children of his previous marriage.   The trial court determined that the community estate had a claim for reimbursement from George's separate estate in the amount of $429,750 as a result of payments for child support, tuition, health insurance, and health care.   Although the trial court did not order reimbursement of this amount, it factored in the claim when it divided the community estate.

 We note that three of our sister courts have addressed whether the trial court abused its discretion in denying the community estate a claim for reimbursement for child support payments made for the benefit of a child of a former marriage.  Butler v. Butler, 975 S.W.2d 765 (Tex.App.-Corpus Christi 1998, no pet. h.);  Hunt v. Hunt, 952 S.W.2d 564 (Tex.App.-Eastland 1997, no writ);  Pelzig v. Berkebile, 931 S.W.2d 398 (Tex.App.-Corpus Christi 1996, no writ);  Zieba v. Martin, 928 S.W.2d 782 (Tex.App.-Houston [14th Dist.] 1996, no writ).

In Pelzig, the wife characterized monies spent on mortgage payments, alimony, child support, her husband's daughter's college expenses, and legal fees from her husband's first divorce as “relieving the duties of [his] separate estate.”  931 S.W.2d at 400.   The husband characterized the payments as “living expenses,” for which no reimbursement should be allowed.   Id.

The Corpus Christi court noted that the child support, college expenses, and alimony payments were legal obligations the husband brought with him into the marriage.  Id. The court held that the trial court did not abuse its discretion in denying reimbursement.  Id. The court focused on the lack of evidence that (1) the wife was deceived about these obligations;  (2) she ever sought to require her husband to meet these obligations out of his separate estate, either during their marriage or in the form of a prenuptial agreement;  or (3) these expenses benefitted the husband's separate estate.  Id. The court also emphasized the lack of deception by the husband or objection by the wife regarding her husband's payment of the attorney's fees, even though these fees were not court-ordered.  Id.

In Butler, the husband (Stan) challenged the trial court's award of $30,000 to his wife (Connie) for his expenditure of funds on his daughter born to another woman during his marriage to Connie.   Stan argued that, because his obligation to provide child support was a debt acquired during his marriage to Connie and it was a “living expense,” the child support was a community obligation with no right of reimbursement.

Relying on its decision in Pelzig, the Corpus Christi court rejected Stan's living expenses argument and held as follows:  “the exception for living expenses only applies to the living expenses of the marital estate, for which each spouse is obligated to provide, even from separate property if necessary.”  Butler, 975 S.W.2d at 769.   The court stated that it found no support for Stan's contention that the living expenses of a child born outside the marriage were exempt from reimbursement under the same living expenses obligation that a spouse has toward the marital family.  Id.

The appellate court next considered Stan's argument that his child support obligations were a community debt.   The court noted that, because Connie's net resources were excluded from consideration in setting Stan's child support obligation, the child's mother was restricted to looking only to Stan for satisfaction of his obligation.  Id. (citing tex. Fam.Code Ann. § 154.069(a) (Vernon 1996)).

Finally, the court addressed Stan's assertion that the court's decision in Pelzig prohibited reimbursement to the community for funds spent to meet the child support obligations of one spouse.   The court distinguished its prior holding by noting that, in Pelzig, the husband had a pre-existing child support obligation before he married his second wife, his second wife knew about the obligation, and she did not try to prevent her husband from satisfying the obligation with community funds.  Butler, 975 S.W.2d at 769.   By contrast, Stan's child support obligation came into existence only after the marriage, he hid the child's existence from Connie, and he paid the child support obligation with community funds without Connie's knowledge.  Id. The appeals court affirmed the trial court's award of reimbursement to the community.

In Zieba, the wife argued that the trial court abused its discretion in refusing to reimburse the community for funds spent by her husband for child support payments, college expenses, medical expenses, settlement payments to her husband's ex-wife, and attorney's fees.   The wife asserted that her husband did not properly account for any of these funds.  928 S.W.2d at 789.   The appeals court noted that a presumption of constructive fraud arises when one spouse disposes of the other spouse's one-half interest in community property without the other's knowledge or consent.  Id. The trial court had determined that, although the husband owed a fiduciary duty to his current wife and the community estate, he did not breach that duty by not properly accounting for the withdrawal of, wasting of, or spending of community funds without his wife's knowledge or consent.  Id. at 789-90.   Observing that the husband's obligations were court-imposed, the appeals court held that the trial court did not abuse its discretion in denying reimbursement.  Id. at 790.

In Hunt, the wife asserted the trial court erred in refusing to reimburse the community estate for child support payments made by her husband.  952 S.W.2d at 568.   The wife also complained that the trial court erred in not granting reimbursement for community funds expended to make contractual alimony payments to her husband's former wife.   The Eastland court noted that the payments were court-ordered and that the wife also had a child from a previous marriage who lived with her and on whom community funds were spent.  Id. Without further discussion, and relying on both Pelzig and Zieba, the Eastland court found no abuse of discretion.  Id.

Here, the issue is whether the trial court abused its discretion in granting, rather than denying, the community estate's right of reimbursement for funds expended to satisfy child support payments.   Nevertheless, we believe our result is consistent with those of our sister courts and, as explained below, we distinguish our holding from that in Butler.

 “The right of reimbursement is not an interest in property or an enforceable debt, per se, but an equitable right which arises upon dissolution of the marriage through death, divorce or annulment.”  Vallone v. Vallone, 644 S.W.2d 455, 458-59 (Tex.1982);  cf.  Heggen v. Pemelton, 836 S.W.2d 145, 148 (Tex.1992) (holding reimbursement is an economic interest possessed by a spouse who has contributed to the improvement of property awarded to the other spouse).   Reimbursement is a claim for money.  Burton v. Bell, 380 S.W.2d 561, 564 (Tex.1964);  Connell v. Connell, 889 S.W.2d 534, 540 (Tex.App.-San Antonio 1994, writ denied).

 The purpose of child support ² is to help a custodial parent maintain an adequate standard of living for the child.  Williams v. Patton, 821 S.W.2d 141, 145 (Tex.1991).   A claim for child support is closely analogous to a claim for debt, in that it seeks a personal judgment establishing a direct obligation to pay money.  In re S.A.V. and K.E.V., 837 S.W.2d 80, 83 (Tex.1992);  Flores v. Melo-Palacios, 921 S.W.2d 399, 404 (Tex.App.-Corpus Christi 1996, writ denied).   However, the Texas Supreme Court has distinguished between familial obligations and traditional, third-party debts:  “The obligation which the law imposes on spouses to support one another and on parents to support their children is not considered a ‘debt’ within Article I, section 18 [of the Texas Constitution], but a legal duty arising out of the status of the parties.”   Ex parte Hall, 854 S.W.2d 656, 658 (Tex.1993) (citations omitted).   Further, the duty to support the minor child is not limited to a parent's ability to pay from current earnings, but extends to his or her financial ability to pay from any and all sources that might be available.  Giangrosso v. Crosley, 840 S.W.2d 765, 769 (Tex.App.-Houston [1st Dist.] 1992, no writ).

In Williams, in his concurring opinion, Justice Cornyn reiterated the Court's position regarding child support obligations:  “The obligation to support one's child is not, legally or morally, just another creditor-debtor relationship.   Nor is it simply a matter to be negotiated between ex-spouses.   It is for the benefit of the child, whose right to adequate financial support from both parents is too often overlooked in the hostilities associated with divorce and its aftermath.”  821 S.W.2d at 148 (Cornyn, J., concurring).   In the Williams majority opinion, Justice Cook stated as follows:

Characterizing arrearages as nothing more than a “debt” owed to the custodial parent ignores the reality that the child is frequently the one who has been harmed by nonpayment and it is the child's interests which are ultimately sought to be protected․   Although the extent to which a child presently benefits from the payment of arrearages varies from case to case, past due child support is still more properly characterized as an unfulfilled duty to the child than a “debt” to the custodial parent.

Williams, 821 S.W.2d at 145;  see also R.W. v. Texas Dept. of Protective & Regulatory Serv., 944 S.W.2d 437, 440 (Tex.App.-Houston [14th Dist.] 1997, no writ) (holding duty to support one's minor children exists regardless of whether a parent has been ordered to pay child support);  Creavin v. Moloney, 773 S.W.2d 698, 703 (Tex.App.-Corpus Christi 1989, writ denied) (“This duty [to support one's minor child] is imposed at the birth of the child, and is not altered merely because the parents subsequently get divorced.”).

 Because Texas has traditionally characterized child support as a duty, rather than as a debt, the obligation to pay child support should not be treated the same as a premarital debt or capital improvements to separate property for the purpose of reimbursement.   Instead, we believe that child support should be characterized as providing for a child's living expenses.   See generally tex. Fam.Code Ann. § 151.003(a)(3) (Vernon 1996).

 We recognize that ordinarily it is the separate estate seeking reimbursement from the community estate for the payment of living expenses.   As a general rule, when separate funds are expended toward the living expenses of the community, there is no future right of reimbursement for the expended funds.   See Norris v. Vaughan, 152 Tex. 491, 260 S.W.2d 676, 683 (Tex.1953);  Butler, 975 S.W.2d at 769;  Trevino v. Trevino, 555 S.W.2d 792, 802 (Tex.Civ.App.-Corpus Christi 1977, no writ).   The rationale underlying this general rule is the obligation of each spouse to provide for the community's well-being.  Norris, 260 S.W.2d at 683;  Butler, 975 S.W.2d at 769;  Trevino, 555 S.W.2d at 802.

 However, we disagree with our sister court's holding in Butler that the exception of living expenses from the equitable right of reimbursement applies only to the living expenses of the marital family.   As we have already noted, parents have an obligation to provide for the well-being of their children.   We see no reason not to extend this general rule to a situation in which the community estate provides for the living expenses of a child of a former marriage.

 A child's right to be supported by his or her parents is a moral and legal right the nature of which does not change upon remarriage by one or both of the parents.  Williams, 821 S.W.2d at 149 (noting the “historically unique legal, societal, and moral nature of the parental support obligation”) (Cornyn, J., concurring).   In balancing this right against the equitable right to reimbursement, we hold that court-ordered child support payments are not subject to a claim for reimbursement by the community estate.   We find support for our decision in the “strong, long-standing policy of this state to protect the interests of its children.”  Id. at 145 (basing its holding that the Family Code prohibited parents from settling claims for child support arrearages before the unpaid amount was reduced to a final judgment on the strong public policy of protecting a child's best interest);  see also Munoz v. II Jaz Inc., 863 S.W.2d 207, 209-10 (Tex.App.-Houston [14th Dist.] 1993, no writ) (holding that the Family Code, which empowers parents to make legal decisions concerning their child, does not give parents the power to waive a child's cause of action for personal injuries based upon the public policy to protect minor children).   Therefore, the trial court should not have factored in a reimbursement claim for $429,750 when it divided the community estate.

We sustain point of error seven.

In point of error eight, George contends the trial court erred in determining that the community estate had a right of reimbursement from him for attorney's fees resulting from litigation of his child support obligations.   The trial court found that George incurred $31,000 in legal fees in connection with support modification and contempt proceedings stemming from the divorce decree dissolving his previous marriage.   A portion of the fees was paid to his former wife's attorney.   Although the trial court did not order reimbursement of the $31,000, it factored in this claim when it divided the community estate.

 Attorney's fees rendered in prosecution or defense of a suit affecting the parent-child relationship may be awarded as necessaries to the child.  tex. Fam.Code Ann. § 106.002(a) (Vernon Supp.1998);  Sullivan v. Deguerin, Dickson & Szekely, 786 S.W.2d 59, 61 (Tex.App.-Houston [1st Dist.] 1990, no writ).   The award of attorney's fees is within the trial court's discretion.  Bruni v. Bruni, 924 S.W.2d 366, 368 (Tex.1996).

 Other than reflecting that the fees were related to modification and contempt proceedings, there is no indication in the record of who initiated the proceedings, the basis of the proceedings, what evidence was heard, or who prevailed.   There is no indication that the attorney's fees were incurred for the benefit of George's children from his prior marriage.  Sullivan, 786 S.W.2d at 61.   Therefore, the trial court did not abuse its discretion by factoring in a reimbursement claim for $31,000 when it divided the community estate.³

We overrule point of error eight.

The discussion of the remaining points of error does not meet the criteria for publication, Tex.R.App. P. 47.4, and is, thus, ordered not published.

We reverse the judgment of the trial court and remand the cause for further proceedings.

Stock Swap

George worked for Houston Savings Association before and during his marriage to Charlene. Before the marriage, he owned 8,000 shares of Andover Group, Inc. stock. During the marriage, he exchanged the 8,000 shares of Andover stock for 12,606 shares of Houston Savings stock. Of the 12,606 shares of Houston Savings stock, 6,209 shares were either sold or given away as gifts. The trial court found that the remaining 6,397 shares of Houston Savings stock were community assets and awarded them to Charlene.

In point of error one, George asserts the trial court erred in awarding his separate property to Charlene. In point of error two, George asserts that the evidence is legally and factually insufficient to support the trial court's finding that 6,397 shares of Houston Savings stock were community property.

A presumption exists that property, other than separate property, acquired during the marriage and possessed by the parties at the time of their divorce is community property. Tex. Fam.Code Ann. §§ 3.002, 3.003 (Vernon Supp.1998). Property owned or claimed by a spouse before marriage or acquired after marriage by gift, devise, or descent shall be that spouse's separate property. Tex. Const. art. XVI, § 15; Tex. Fam.Code Ann. § 3.001(1), (2) (Vernon Supp.1998). A court may not decree that the separate property of one spouse becomes the separate property of the other spouse because the nature of separate property is determined by the Constitution, rather than by what is “just and right.” Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 140 (Tex.1977).

The party claiming separate property must establish by clear and convincing evidence that the property is separate property. Tex. Fam.Code Ann. § 3.003(b) (Vernon Supp.1998); Massey v. Massey, 807 S.W.2d 391, 405 (Tex.App.-Houston [1st Dist.] 1991), writ denied, 867 S.W.2d 766 (Tex.1993). Separate property will retain its character through a series of exchanges if the party asserting separate ownership overcomes the community property presumption by tracing the assets on hand during the marriage back to property that, because of its time and manner of acquisition, is separate in character. Cockerham v. Cockerham, 527 S.W.2d 162, 167 (Tex.1975).

Charlene contends that George did not trace the swap of the Andover stock for the Houston Savings stock by clear and convincing evidence because (1) the stock swap occurred while the parties were separated; (2) George's inventory from his first divorce showed the Andover stock had no value; (3) the Andover stock was not listed on George's 1989 financial statement (because he believed it was worthless); (4) as of December 31, 1990, 1991, and 1992, he valued the stock at $101,000; and (5) George did not list the Andover stock as an asset on his December 31, 1993 and 1994 financial statements. Charlene also asserts that the trial court could have found that George's testimony regarding the stock swap lacked credibility.

When both “no evidence” and “factual sufficiency” points of error are raised on appeal, we address the “no evidence” point first. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981); Neese v. Dietz, 845 S.W.2d 311, 313 (Tex.App.-Houston [1st Dist.] 1992, writ denied). We use a two-prong test to review the legal sufficiency of a finding on which the complaining party had the burden of proof. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989); see also Zieben v. Platt, 786 S.W.2d 797, 799 (Tex.App.-Houston [14th Dist.] 1990, no writ) (holding appellate court reviews legal sufficiency of trial court's fact findings in same manner it reviews evidence supporting jury's answer). First, we examine the record for evidence that supports the finding, ignoring all contrary evidence. Sterner, 767 S.W.2d at 690. Only if there is no evidence to support the finding do we then examine the entire record to determine whether the contrary proposition is established as a matter of law. Id. In reviewing “no evidence” or legal insufficiency points, we consider only the evidence and inferences, when viewed in their most favorable light, that tend to support the finding and disregard all evidence and inferences to the contrary. Sherman v. First Nat'l Bank, 760 S.W.2d 240, 242 (Tex.1988); Neese, 845 S.W.2d at 312. If there is any evidence of probative force to support the finding, the point must be overruled and the finding upheld. Sherman, 760 S.W.2d at 242; Hollander v. Capon, 853 S.W.2d 723, 726 (Tex.App.-Houston [1st Dist.] 1993, writ denied); Neese, 845 S.W.2d at 312. That is, if there is more than a scintilla of evidence, we will not overturn the jury's findings. Sherman, 760 S.W.2d at 242.

In reviewing a factual sufficiency point, we consider and weigh all of the evidence, and we will set aside the verdict only if the evidence is so weak or the finding so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); Hollander, 853 S.W.2d at 726. We will not substitute our opinion for that of the trier of fact. Hollander, 853 S.W.2d at 726.

Because George is attacking an adverse finding to an issue upon which he had the burden of proof, we treat his points of error as if he were asserting that he had established that the 6,397 shares of Houston Savings stock was his separate property as a matter of law. Sterner, 767 S.W.2d at 690.

George testified that David H. Knapp and Lynda Knapp Underwood, Co-Trustees of the Alfred John Knapp Trust under the will of Alfred John Knapp (“Knapp Trustees”), agreed to exchange 12,606 shares of Houston Savings stock for 8,000 shares of Andover stock. George produced three stock certificates: (1) a certificate dated October 1, 1981, representing 8,000 shares of Andover stock certifying George as owner, (2) a certificate dated May 4, 1995, representing 12,606 shares of Houston Savings stock, certifying the Knapp Trustees as owners, and (3) a certificate dated May 18, 1995, representing 12,606 shares of Houston Savings stock, certifying George as owner. The second certificate has the word “canceled” hand-written across it. The Andover stock was listed as George's on the inventory attached to the divorce decree of George's prior marriage.

This uncontroverted evidence is legally insufficient to support the trial court's characterization of the 6,397 shares of Houston Savings stock as community property. George rebutted the presumption in favor of the community, and Charlene offered no evidence disputing the separate nature of the stock. Charlene did not offer evidence of any other source or explanation for the purchase of the 12,606 shares of Houston Savings stock. As a matter of law, the 6,397 shares of Houston Savings stock were George's separate property.

We sustain points of error one and two.

Houston Savings Association Stock Option

In point of error three, George contends the evidence is legally and factually insufficient to support the trial court's characterization of options on 10,000 shares of Houston Savings stock as community property. The trial court found that, because George did not meet his burden of proving that the stock option was anything other than community property, the option was a community asset.

The evidence most favorable to the trial court's finding is as follows. In November 1995, George and Houston Savings executed an agreement containing the following recitation:

1. Formalization of Existing Option. This Agreement does not evidence or create a new option, but instead is an acknowledgment and confirmation of an option granted to Optionee [George] as of December 31, 1988, approved or ratified by a resolution of the Board of Directors of Company [Houston Savings] dated as of April 18, 1989. For all tax, accounting and other purposes, this Option shall be treated as though granted as of December 31, 1988, on the terms specified herein, and it should be treated as having vested at a rate of 2,000 shares per year with the first 2,000 shares having vested on December 31, 1989, and 2,000 shares having vested or to vest on the same date of each after year, with the final 2,000 shares to vest on December 31, 1993.

The execution of a document during the marriage formalizing the granting of the stock option is legally sufficient evidence to support the trial court's determination that the option was a community asset.

George asserts that the option is his separate property because it was granted in 1988, before his marriage to Charlene. Uncontroverted evidence was presented that the Houston Savings board of directors approved stock options for two employees (including George) in April 1989, four months before the marriage. Both the agreement and the minutes of the 1989 board meeting state that the option was granted in 1988. Although George testified that he asked his attorneys to complete the agreement so that he would have documentation to present to the trial court, he explained that the stock option could not be formally documented until 1995 because negotiations with another Houston Savings employee regarding that employee's stock option were not resolved until 1995.

A stock option represents the right to purchase a designated stock for a specified price at specified times. Black's Law Dictionary 1418 (6th ed. 1990). An optionee's right to exercise an employer-granted stock option is typically related in some manner to the optionee's employment status and may be considered compensation for past, present, or future services. See Davidson v. Davidson, 254 Neb. 656, 578 N.W.2d 848, 855 (Neb.1998) (holding portion of stock options that represents compensation earned for past or future services should not be included in marital estate); Garcia v. Mayer, 122 N.M. 57, 920 P.2d 522, 525 (N.M.Ct.App.1996) (holding court must determine whether option rights were, in whole or in part, compensation for effort prior to date of option, or whether option rights were granted solely as an incentive for future employment and effort); In re Marriage of Short, 125 Wash.2d 865, 890 P.2d 12, 16 (Wash.1995) (holding that trial court must first ascertain whether stock options were granted to compensate employee for past, present, or future employment services); cf. Hug v. Hug, 154 Cal.App.3d 780, 786, 201 Cal.Rptr. 676 (Cal.Ct.App.1984) (holding underlying purposes of stock options differ; therefore, reference to facts of particular case should be made to reveal features and implications of particular option).

George did not present any evidence regarding whether the stock option was compensation for past, present, or future services or for another purpose. The jury's finding was not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. The evidence is factually sufficient to support the jury's finding.

We overrule point of error three.

Banc One Loan

During his marriage to Charlene, but while they were separated, George borrowed $100,000 from Banc One and deposited the proceeds into an account at Banc One. In point of error four, George asserts that the evidence is legally and factually insufficient to support the trial court's characterization of the Banc One debt as his separate debt. In point of error five, George asserts that the evidence is legally and factually insufficient to support the trial court's characterization of the remaining proceeds of the Banc One loan as his separate property.

Debt acquired by either spouse during marriage is presumed to be community debt, unless there is proof that the creditor agreed to look solely to the contracting spouse's separate estate. Cockerham, 527 S.W.2d at 171; Wierzchula v. Wierzchula, 623 S.W.2d 730, 732 (Tex.Civ.App.-Houston [1st Dist.] 1981, no writ). At the hearing, no testimony was elicited from Charlene regarding the loan. The only documents purporting to evidence the loan (1) were not signed by either George or a Banc One representative, (2) indicated George was the borrower, (3) stated that the purpose of the loan was to “finance [a] divorce,” and (4) indicated that the loan was unsecured. There is no evidence Banc One agreed to look solely to George's separate estate for satisfaction.

It was Charlene's burden to establish by clear and convincing evidence that the Banc One loan and its proceeds were George's separate property. Tex. Fam.Code Ann. § 3.003(b) (Vernon Supp.1998); Massey, 807 S.W.2d at 405. Charlene contends that George should not be allowed to complain on appeal that the loan and its proceeds were his separate property because George agreed to be solely responsible for the debt. At the hearing, George testified as follows:

Q. What is that [the $100,000 debt] for?

A. Primarily to pay for the cost of getting divorced.

Q. Money to?

A. Lawyers, accountants, as well as some of the furnishings, some credit card debt, just to take care of some living expenses as well.

․

Q. And again to be right up-front, you're just showing this to the Court to show your debt structure; you're not expecting Ms. Farish to pay any of this debt or to even have it figured in the division of property?

A. Certainly not.4

George's willingness to be solely liable for repayment of the Banc One debt does not lead to the conclusion that the loan was not a community debt. Cf. Cockerham, 527 S.W.2d at 171 (“Characterization of the debts as community liabilities is only one aspect of the circumstances to be considered in determining whether the debts are joint.”). Charlene did not meet her burden of rebutting the presumption that the Banc One loan and its proceeds belonged to the community estate. Massey, 807 S.W.2d at 405.

The evidence is legally insufficient to support the trial court's finding that the Banc One loan was George's separate debt. Therefore, the trial court erred in characterizing the Banc One loan and the approximately $4,511.66 in loan proceeds as belonging to George's separate estate.

We sustain points of error four and five.

Conclusion

The trial court erred in characterizing the 6,397 shares of Houston Savings stock as community property and granting the community estate a claim for reimbursement for the funds expended in child support payments for the benefit of the children of George's prior marriage.

If a trial court mischaracterizes community property as separate property, the property does not get divided as part of the community estate. McElwee v. McElwee, 911 S.W.2d 182, 189 (Tex.App.-Houston [1st Dist.] 1995, writ denied). Because the trial court's mischaracterization of property and its finding of reimbursement affected the “just and right” division of the community estate, we must remand the entire community estate for a new division. Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex.1985).

The trial court awarded Charlene a judgment against George in the amount of $65,000 “for the purpose of a just and right division of property.” In point of error six, George asserts that, because the trial court's mischaracterization of certain property was substantial, the property division rendered by the trial court was not just and right. In point of error nine, George asserts the trial court erred in granting Charlene her attorney's fees because the division of the community estate was not just and right and attorney's fees are but one element of an equitable partition. We agree. In view of our determination that the cause be remanded for a just and right division of the community estate, we sustain points of error six and nine.

FOOTNOTES

1.   George and Charlene have two children, and George has three children from a previous marriage.   George's prior marriage ended in divorce in November 1987.

2.   To be properly characterized as “child support,” a payment should be related to the care and welfare of the child.  Ex parte Davila, 709 S.W.2d 15, 18 (Tex.App.-Corpus Christi 1986, no writ).   The duty to support a child includes, but is not limited to, providing the child with clothing, food, shelter, medical and dental care, and education.  tex. Fam.Code Ann. § 151.003(a)(3) (Vernon 1996).   Because providing for a child's education and medical care are within the statutory definition of child support, we include court-ordered payments for such needs within the definition of “child support” for the purpose of our holding.

3.   Our holding is not to be interpreted as stating that, had the record established that the attorney's fees were for the benefit of George's children, a claim for reimbursement would not lie.   Rather, we base our holding on the state of the record before us and leave for another day the issue of whether a claim for reimbursement may attach to such fees.

4.    This testimony was in the context of George's proposal that Charlene be given 60% of the community assets and that all reimbursement claims be denied.

TIM TAFT, Justice.