Opinion
No. 14-06-00938-CV
April 17, 2008.
On Appeal from the 308th District Court Harris County, Texas Trial Court Cause No. 2005-43190.
Panel consists of Justices YATES, ANDERSON AND BROWN.
MEMORANDUM OPINION
Carl Ervin Dewalt appeals a property division arising from his divorce from Stalanda Gatreesh Dewalt. Following a bench trial, the court issued findings of fact and conclusions of law. Carl contends that the trial court abused its discretion in making a disproportionate division of property. He also challenges certain findings and conclusions underlying the appointment of Stalanda as sole managing conservator of their three minor children. We affirm.
Carl and Stalanda wed on January 20, 1990, and remained married for 15 years. They had three children, who were 14, 11, and 11 at the time of trial in July, 2006. Stalanda testified that she left Carl because of mental and physical abuse. When asked to elaborate, she testified that Carl once ripped her pants off when they were in the bedroom because, she said, "he wanted to prove that this is something that could happen to me." She admitted, however, that Carl was a good father and that she did not object to him having extended visits with the children. Carl represented himself at trial. He expressed a desire to reconcile and requested the court appoint them joint managing conservators of the minor children.
Stalanda worked for HealthSouth Hospital at the time of trial and the court determined that the amount of net resources available to her per month was $2,010. Carl was employed by Delta Airlines, but at the time of trial he was suspended without pay and looking for another job. Nevertheless, the court determined that the amount of net resources available to him per month was $3,457.04. Around the time of the separation, Carl opened a bakery, but had since shut it down and had not received any income for the two months before trial. He admitted that he had not paid child support during those two months.
The court appointed Stalanda as sole managing conservator of the three children, stating that "[w]hen there has been violence in the marriage, and I certainly think ripping clothes off would be considered violence, the Court cannot do a joint managing conservator." The court further stated in its findings of fact and conclusions of law that "[t]here is credible evidence of a history or pattern of past or present family violence by Carl Ervin Dewalt directed against Stalanda Gatreesh Dewalt, and it is not in the best interest of the children that Carl Ervin Dewalt be appointed as the joint managing conservator. . ." The court divided the estate, awarding the house to Stalanda, and ordered Carl to pay Stalanda's attorney's fees and sixty-five percent of the amicus attorney's fees. In making a disproportionate division of assets in favor of Stalanda, the court included the following in its findings of fact and conclusions of law:
[Stalanda] was awarded a disproportionate share of the parties' estate for the following reasons, including but not limited to:
a. fault in the breakup of the marriage;.
b. disparity of earning power of the spouses and their ability to support themselves;
c. the spouse to whom conservatorship of the children is granted;
d. needs of the children of the marriage;
e. community indebtedness and liabilities;
f. need for future support;
g. nature of the property involved in the division;
h. attorney's fees to be paid;
i. duration of marriage;
j. emotional cruelty; and
k. family violence.
Carl timely appealed, asserting that the court abused its discretion by unreasonably dividing the estate disproportionately, and in finding a history or pattern of past or present violence.
The Texas Family Code requires that the trial court "shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage." Tex. Fam. Code Ann. § 7.001 (Vernon 2006). The trial court has broad discretion when dividing the marital estate. Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex. 1985). We presume that the trial court did not abuse its discretion in dividing the estate, and we will not disturb the division on appeal unless appellant demonstrates a clear abuse of discretion. Murff v. Murff, 615 S.W.2d 696, 698-99 (Tex. 1981). The trial court's ultimate division need not be equal, so long as it is equitable and so long as the court has some reasonable basis for an unequal division. Zieba v. Martin, 928 S.W.2d 782, 790 (Tex.App.-Houston[14th Dist.] 1996, no writ) (op. on reh'g).
In exercising its discretion, the trial court may consider numerous factors, such as a disparity of incomes or of earning capacities, the spouses' capacities and abilities, benefits which the party not at fault would have derived from continuation of the marriage, relative financial condition and obligations, and the nature of the property to be divided. Murff, 615 S.W.2d at 699. The trial court in a divorce case has the opportunity to observe the parties on the witness stand and to evaluate their credibility, and the reviewing court may not impose its own opinions of credibility contrary to those of the fact finder. See id. at 700; see also City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). If probative evidence exists to support the trial court's resolution, or if reasonable minds could differ as to the result, then we must defer to the trial court's factual determinations. See Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992).
A trial court abuses its discretion when it acts arbitrarily or unreasonably, and without reference to any guiding rules or principles. Id. at 839. A trial court does not abuse its discretion when it bases its decision on conflicting evidence, nor does a trial court abuse its discretion when it bases its decision on some evidence of a substantial and probative character. Zieba, 928 S.W.2d at 787. The lack of sufficient evidence, factual or legal, does not constitute an independent ground on which to claim error; however, sufficiency of the evidence is a relevant factor in determining whether the trial court abused its discretion. See Beaumont Bank v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). The trial court's judgment should be reversed on appeal when the trial court's abuse of discretion resulted in a division of property so disproportionate that it is manifestly unjust and unfair. See Hedtke v. Hedtke, 112 Tex. 404, 411, 248 S.W. 21, 23 (1923).
In the present case, Stalanda, who was named sole managing conservator of the couple's three children, was awarded the family home, which had a net fair market value of $89,486.93. Each spouse received fifty percent of the Delta retirement fund, and Stalanda received her entire HealthSouth retirement fund in the amount of $8,972.00. The financial accounts were divided between the two spouses, with Stalanda receiving a total of $24,073.18 (with $16,433 of that amount being held in trust by Stalanda for the benefit of the three children) and Carl receiving $23,636.88. Each spouse received one vehicle, and Stalanda retained possession of a second vehicle that she had rented after the separation.
Stalanda testified that she endured mental and emotional abuse from her husband throughout their marriage and experienced at least one incident of physical abuse. Carl denied abusing his wife in any way, and expressed a desire to reconcile. As the sole judge of the credibility of the witnesses, the trial court could have reasonably believed Stalanda and disbelieved Carl. See Murff, 615 S.W.2d at 700; see also City of Keller, 168 S.W.3d at 819. Additionally, the court found that there was a disparity of income available to each spouse in favor of Carl. Although Carl was suspended from Delta at the time of trial, he testified that he would be going back to work and that he already had interviews scheduled. When deciding how to divide the estate, the trial court may have also considered the nature of the property divided, the benefits that Stalanda would have derived from the continuation of the marriage, and the needs of the children. The facts of this case do not rise to the level necessary to show that the trial court abused its discretion in dividing the estate. See Murff, 615 S.W.2d at 698-99. This court has held that the division does not need to be equal, so long as there is a reasonable basis for the unequal division. Zieba, 928 S.W.2d at 790. The trial court did not act unreasonably or arbitrarily, and had a reasonable basis for making an unequal division of the estate. Therefore, the trial court did not abuse its discretion in making a disproportionate division.
Carl's second issue concerns the trial court's family-violence finding and its designation of Stalanda as sole managing conservator. Stalanda testified that she left Carl because of mental and physical abuse. When asked to elaborate on the physical abuse, she spoke of the one incident when Carl ripped her pants off. When asked to elaborate on the mental abuse, she said: "He made one statement that he had thought about doing something to me. And I asked him what was that, and he said it was so bad he didn't want to mention it." Although Carl denied physically or mentally abusing his wife, the trial court had the opportunity to observe the both spouses on the witness stand and to evaluate their credibility. We may not impose our own opinions of credibility contrary to those of the fact finder. See Murff, 615 S.W.2d at 700; see also City of Keller, 168 S.W.3d at 819. Again, the court could have chosen to believe Stalanda and disbelieve Carl.
At trial, Carl sought his and Stalanda's appointment as joint managing conservators of their three children. For support, he relies on the rebuttable presumption that the appointment of joint managing conservators is in the children's best interest. Tex. Fam. Code Ann. § 153.131(b) (Vernon 2003). But a finding of a history of family violence between the children's parents removes that presumption. Id. Indeed, the Family Code requires a trial court to "consider evidence of the intentional use of abusive physical force by a party against a party's spouse" when determining whether to appoint a party as sole or joint managing conservator. Id. at § 153.004(a). It likewise provides that the court "may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present . . . physical or sexual abuse by one parent directed against the other parent." Id. at § 153.004(b).
The trial court found credible evidence of a history of family violence directed by Carl against Stalanda. Carl complains on appeal that the evidence of physical abuse Stalanda offered was insufficient to rebut the presumption. But even a single act of violence can amount to a history of physical abuse. In re Marriage of Stein, 153 S.W.3d 485, 489 (Tex.App.-Amarillo 2004, no pet.). The trial court did not abuse its discretion in finding a history of family violence and appointing Stalanda sole managing conservator.
We overrule Carl's issues and affirm the judgment.