Opinion
No. 07-04-0597-CV
February 27, 2006.
Appeal from the 108th District Court of Potter County, No. 67,809-E, Hon. Abe Lopez, Presiding.
Panel B: Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
ON MOTION FOR REHEARING
Pending before the court is the motion of Johnny L. Higgins for rehearing. He raised two issues in it. We review only the second. It concerns the unequal division of the community estate, what constituted the community estate, and our purported error in concluding that the trial court found Benita Higgins' retirement account to be her separate property. We overrule the contention.
As noted in our original opinion, the trial court found that "the individual retirement account in the wife's name [was] her separate property." So too did it hold that "[a]ll the property belongs to the community estate except for the following properties, which belong [to] BENITA HIGGINS' separate estate . . . [t]he individual retirement account in the wife's name." Yet, Benita conceded, in response to the motion for rehearing, that she owned both an individual retirement account and a 401(k) retirement plan, that the individual retirement account had a value approximating $21,774 while the 401(k) plan was valued at $182,456, and that in alluding to the "individual retirement account," the trial court actually meant the account valued at $21,774. So, both litigants now represent that the trial court actually held the former and not the latter retirement interest to be Benita's separate property. Assuming this to be true, we find no need to change our prior judgment. This is so because we again cannot say that the trial court abused its discretion in the way it divided the community estate.
We assume this to be true given the representations of all the litigants but note that the evidence does not necessarily illustrate this. For instance, if the individual retirement account was that account worth $21,774, as the litigants suggest, then logically it should not have more than $21,774 worth of deposits in it. Yet, when testifying about her retirement interests, Benita stated that as a result of a stock purchase, she initially "received about 100,000, maybe a little bit over that, and that went right into my IRA. " (Emphasis added). Thereafter, the stock purchasers "made the final payment of about 29,000, and . . . I have continued to contribute to that, so the total includes my contributions." (Emphasis added). Given that the term "IRA" is but an acronym for the words "individual retirement account," that Benita testified that she deposited over $129,000 in what she described as her "IRA," that only one retirement account or plan was valued in excess of $129,000, and the trial court declared her "individual retirement account" to be separate property, the trial court may well have intended that the account valued at $183,000 was the one he actually intended to find as her separate property.
Johnny admitted in his appellant's brief that a trial court may order an unequal division of the community estate under certain circumstances. So too did he admit that one such circumstance involved fault in causing the dissolution of the marriage. See Massey v. Massey, 807 S.W.2d 391, 398 (Tex.App.-Houston [1st Dist.] 1991, writ denied) (holding that fault may be considered by the trial court in deciding how to divide the community estate). He also acknowledged that one of the factors, i.e. fault, "favored Benita." Indeed, the record contains a plethora of evidence illustrating that during his marriage to Benita, Johnny conducted an affair with another woman and both lied to and belittled Benita when she inquired into it. And, only through her investigative efforts and DNA analysis did she confirm her suspicion. Thus, basis appears of record justifying an unequal distribution of the community estate. And, while he asserts that the division selected was too unequal, he neither argues nor cites us to authority establishing that infidelity can only justify a particular percentage of inequality.
Given the evidence of fault, we cannot say that the trial court's decision fell outside the scope of its considered discretion. See In re Marriage of Scott, 117 S.W.3d 580, 584 (Tex.App.-Amarillo 2003, no pet.) (holding that the manner in which a trial court divides the marital estate lies within that court's discretion). Accordingly, the motion for rehearing is overruled.