









IN THE
TENTH COURT OF APPEALS
 

No. 10-00-00409-CV

     KAREN D. SMITH, 
                                                                              Appellant
     v.


     JERRY W. SMITH, SR.,
                                                                              Appellee

AND IN THE INTEREST OF H.T.S., Z.C.S., AND E.C.S.
 

From the 13th District Court
Navarro County, Texas
Trial Court No. 99-00-09292-CV      
                                                                                                                

O P I N I O N
                                                                                                                
 
      Karen D. Smith (Karen) appeals from the trial court’s judgment of divorce awarding
managing conservatorship of her three children to Jerry W. Smith, Sr. (Jerry), dividing their
community estate, and ordering her to pay child support.  Karen raises five issues: (1) the
exclusion of evidence as to whether she had separate property and the finding that she had
none; (2) whether the division of the community estate was “just and right”; (3) the
designation of Jerry as sole managing conservator of the couple’s three children; (4) the failure
to appoint a guardian ad litem to represent the children; and (5) the amount of child support
she was ordered to pay.  Because we find no reasonable basis for the disproportionate division
of the community estate, we will reverse and remand the community property division, but we
affirm the judgment in all other respects.
FACTS
      Karen married Jerry on November 24, 1989.  During the marriage, Jerry adopted H.T.S.,
Karen’s child from a previous relationship.  The couple had two other children, Z.C.S. and
E.C.S.  Although Karen and Jerry were married for over ten years, they lived on separate
floors within their home for the last several years of their marriage.
      On November 1, 1999, Jerry filed for divorce and requested immediate temporary relief. 
On November 3, the court issued a temporary restraining order against Karen and appointed
Jerry temporary sole managing conservator of their three children.  The same day, Karen was
served with notice of a November 15 hearing on these orders.
      On November 3, the couple had a fight.  Jerry says that Karen pushed him down a flight
of stairs and kicked him repeatedly and that she hit H.T.S.  Based on these acts, the court
issued a protective order on November 4, prohibiting Karen from contacting Jerry or her
minor children, except through Jerry’s attorney, and excluding her from the family home.
      After a hearing on November 24, the court continued the protective order and issued
temporary orders naming Jerry temporary sole managing conservator and Karen temporary
possessory conservator, with supervised visitation on Saturday afternoons.  The order specified
the manner in which the parties would provide medical support to their children, but no other
child or spousal support was ordered.
      On February 11, 2000, Karen, through her attorney of record, filed an original answer
that included a general denial and asserted a claim of separate property.  On May 5, Jerry filed
a First Amended Petition for Divorce.  On May 18, Karen, again through her attorney, filed
another pleading that she called an “original answer.”  This pleading included a general denial,
but it did not assert a claim of separate property.  On July 21, ten days before trial, Karen, pro
se, filed an Original Cross-Petition for Divorce.  By that time she had ended her representation
by counsel.  The cross-petition did not include a claim of separate property.
      After a bench trial, the court issued a final decree of divorce on September 14.  The court
appointed Jerry sole managing conservator and Karen possessory conservator and issued a
standard possession order.  The court ordered Karen to reimburse Jerry $66 per month for
health insurance premiums for the children and to pay $225 per month in child support.  Jerry
replaced Karen as trustee of a trust account held for H.T.S., which had been established earlier
in the marriage.  The court awarded the majority of the marital estate, including the family
home, to Jerry and awarded $6,000 to Karen.
  Her motion for new trial was denied without
hearing on October 10.
      On October 31, the court issued findings of fact and conclusions of law.  The court found:
(1) Karen was capable of making $400 per week; (2) H.T.S., age thirteen, Z.C.S., age ten,
and E.C.S., age six, each signed and filed with the court a “Choice of Managing Conservator
by Child Ten Years of Age or Older” choosing Jerry as managing conservator; (3) Karen
committed family violence against Jerry and H.T.S. on or about November 3, 1999; (4) Karen
threatened the welfare of the children; (5) Karen used and stored marihuana in the home in the
presence of the children; (6) Karen had provided no significant financial support for her
children since about November 4, 1999; (7) certain assets and debts were community property;
and (8) during the divorce proceedings, Jerry incurred reasonable and necessary attorney’s fees
of $7,935 and costs and expenses of $465.70.
      The court concluded that: (1) Jerry had separate property consisting of a rocking chair, a
twin bed, a dresser, and two quilts; (2) the community property division was just and right,
considering the rights of each party and the children of the marriage and Karen’s fault in the
breakup of the marriage; (3) Karen is likely to commit family violence against Jerry or a
household member in the future; and (4) it is in the best interest of the children that Karen have
possession of the children pursuant to the terms and conditions of the Texas Standard
Possession Order.
EVIDENCE OF KAREN’S SEPARATE PROPERTY
      Karen’s first issue complains that the trial court erred by not allowing her to prove that she
had separate property and by finding that she had none.  At trial, the court sustained Jerry’s
objection to “[a]ny testimony that Mrs. Smith seeks to elicit either from this witness or any
other witness regarding separate property” because Karen had no live pleading claiming
separate property.  Then the court excluded David Foreman’s testimony, which Karen asserts
would prove that her separate property money was used as the down payment for the family
home.
      Preservation of a complaint is a prerequisite for appellate court review.  Tex. R. App. P.
33.1(a).  Error may be predicated on a ruling that excludes a party’s evidence only if the
substance of the evidence was made known to the court by offer.  Tex. R. Evid. 103; Ludlow
v. DeBerry, 959 S.W.2d 265, 269-70 (Tex. App.—Houston [14th Dist.] 1997, no writ).  The
primary purpose of the offer of proof is to enable an appellate court to determine whether the
exclusion was erroneous and harmful.  Goode, Wellborn & Sharlot, Guide to the Texas
Rules of Evidence, § 103.3 at 21 (2nd ed.1993).  A secondary purpose is to permit the trial
judge to reconsider his ruling in light of the actual evidence.  Id.  An offer of proof is sufficient
if it apprised the court of the substance of the testimony and may be presented in the form of a
concise statement.  Chance v. Chance, 911 S.W.2d 40, 51-52 (Tex. App.—Beaumont 1995,
writ denied).  Excluded evidence may also be preserved for appellate review by a post-trial bill
of exception.  Tex. R. App. P. 33.2.  However, when the substance of the evidence is apparent
from the record, a formal offer of proof may not be necessary.  Tex. R. Evid. 103(a); Akin v.
Santa Clara Land Co., Ltd., 34 S.W.3d 334, 339 (Tex. App.—San Antonio 2000, pet. denied). 
The record shows that Karen did not make an offer of proof or file a formal bill of exception. 
Moreover, the substance of the evidence she sought to present is not apparent from the record. 
Her complaint is not preserved for our review.

      Karen also contests the finding that she had no separate property.  All property possessed
by either spouse during or on dissolution of a marriage is presumed to be community property,
until proven otherwise by clear-and-convincing evidence.  Tex. Fam. Code Ann. § 3.003
(Vernon 1998).  Because Karen did not present evidence of her ownership of separate property,
we must presume the correctness of the trial court’s finding that she had none.  Id.
      We overrule Karen’s first issue.
COMMUNITY PROPERTY DIVISION
      Karen’s second issue contends that the trial court unfairly divided the community estate. 
Tex. Fam. Code Ann. § 7.001 (Vernon 1998).  The net value of the community property
(assets awarded minus debts apportioned) awarded to Karen was no more than zero and the net
value of the community property awarded to Jerry was approximately $15,863.  We note at the
outset that Jerry has argued that Karen is estopped to complain about the property division
because of the acceptance-of-benefits doctrine.  Jerry asserts that because Karen withdrew the
$6,000 that he tendered to the court’s registry in satisfaction of the divorce decree, she accepted
the benefits of the court’s order.  The acceptance-of-benefits doctrine, which is based on a
theory of estoppel, states that if a litigant has voluntarily accepted the benefits of a judgment, he
cannot afterward appeal therefrom.  Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002, 1004
(1950).  But acceptance of benefits due to financial duress or other economic circumstances
does not constitute voluntary acceptance.  Cooper v. Bushong, 10 S.W.3d 20, 23 (Tex.
App.—Austin 1999, pet. denied); McAlister v. McAlister, 75 S.W.3d 481, 484 (Tex. App.—San
Antonio 2002, pet. denied).  Because of the economic circumstances created by the  court’s
property division, Karen’s acceptance of the $6,000 was not voluntary.  Therefore, the
acceptance-of-benefits doctrine does not apply.
      The court found the following assets to be community property: (1) the family home,
valued at $47,800; (2) a 1999 GMC Sonoma pickup, valued at $17,000; (3) a leased 1998
Toyota RAV4 automobile, of unspecified value; (4) a $200 bank account in Jerry’s name; (5) a
life insurance policy on Jerry’s life, having no value; (6) another account in Jerry’s name,
valued at $362.94; (7) a 401K account in Jerry’s name, valued at $500; (8) a 401K account in
Karen’s name, of unspecified value; (9) a life insurance policy on Karen’s life, of unspecified
value; (10) furnishings, fixtures, and personal property in the parties’ possession, of unspecified
value; (11) post office box rental; and (12) rights to the couple’s telephone number and the
deposit for telephone service.  The court also found that the couple owed the following debts:
(1) mortgage on the family home, $27,000; (2) balance owed on the GMC Sonoma pickup,
$17,000; (3) lease obligation on the Toyota RAV4, amount unspecified; (4) Sears credit account
in Karen’s name, $6,000; (5) Montgomery Ward credit account in Karen’s name, amount
unspecified; and (6) Dixie Finance debt in Karen’s name, amount unspecified.  The court
awarded Karen $6,000, which Jerry paid into the court registry, whatever personal property
was in her possession at the time of trial, and the 1998 Toyota RAV4.  The court allocated to
Karen the lease obligation on the RAV4 and the Sears, Montgomery Ward, and Dixie Finance
debts, which were in her name.  The court awarded the remainder of the community estate and
debts to Jerry.
 

Standard of Review
      We review a trial court’s property division for abuse of discretion.  Vallone v. Vallone, 644
S.W.2d 455, 460 (Tex. 1982).  A trial court abuses its discretion when it acts arbitrarily and
unreasonably, without reference to any guiding rules or legal principles.  K-Mart Corp. v.
Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000).  With respect to the trial court’s resolution of
factual issues, we may not substitute our judgment for that of the trial court absent an arbitrary
or unreasonable result or unless the factual determination is not supported by the evidence. 
Brainard v. State, 12 S.W.3d 6, 30 (Tex. 1999) (not supported by the evidence); Walker v.
Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding) (arbitrary or unreasonable).
      In exercising its discretion, the 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.  A trial court has wide
discretion in dividing the community estate.  Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex.
1998); Murff v. Murff, 615 S.W.2d 696, 698-99 (Tex. 1981); Beard v. Beard, 49 S.W.3d 40,
66 (Tex. App.—Waco 2001, pet. ref’d.).  The court need not divide the community estate
equally.  Smallwood v. Smallwood, 548 S.W.2d 796, 797 (Tex. Civ. App.—Waco 1977, no
writ).  Texas courts have considered the following factors when equitably dividing a community
estate:
(1) fault in the breakup of the marriage;
(2) the benefits that the innocent spouse would have derived had the marriage continued;
(3) disparity in the spouses’ income or earning capacities;
(4) each spouse’s business opportunities;
(5) differences in the spouses’ education;
(6) physical health and need for future support;
(7) the relative ages of the parties;
(8) each spouse’s financial condition and obligations;
(9) the size of each spouse’s separate estate and any expected inheritance;
(10) the nature of the spouses’ property;
(11) the rights of the children of the marriage;
(12) waste of community assets or constructive fraud against the community;
(13) gifts by one spouse to the other; and
(14) tax liabilities.
Schlueter, 975 S.W.2d at 589; Barbara Anne Kazen, Division of Property at the Time of
Divorce, 49 Baylor L. Rev. 417, 424-28 (1997) (discussing factors a court may consider in
making an equitable division of the community estate); see also, Murff, 615 S.W.2d at 698-99;
Baccus v. Baccus, 808 S.W.2d 694, 700 (Tex. App.—Beaumont 1991, no writ); Jones v.
Jones, 699 S.W.2d 583, 585 (Tex. App.—Texarkana 1985, no writ).
      The factors most commonly used to support a disproportionate community property
division are fault and disparity in income, earning capacity, business opportunities, and
education.  Barbara Anne Kazen, Division of Property at the Time of Divorce, 49 Baylor L.
Rev. 417, 424-28 (1997).  Also, when the age or poor health of one spouse suggests an
inability to earn a living, a court may award that spouse a disproportionate share of the
community estate.  Id.
      The record shows that Jerry had more income, a higher earning capacity, and better
business opportunities than Karen.  During the marriage, Jerry earned about $730 per week and
up to $38,000 in at least one year.  Karen testified that she earned about $900 per month,
working part-time, and that she held a current insurance sales license.  The court found Karen
capable of earning $400 per week.  Although Jerry is nine years older than Karen and has high
blood pressure and diabetes, he offered no evidence to suggest that his age and physical
condition would prevent him from earning a living.  To the contrary, he testified that he worked
every day and at times worked two jobs.  He also said that he had never been hospitalized for
either medical condition.  On the other hand, Karen testified that she had a disabling back injury
that limited her activities.  She also said that she took anti-depressant and anti-anxiety
medications.
      In addition, the court ordered Karen to assume three community debts of an unspecified
amount.  Because the debt owed by a spouse is a legally relevant factor in dividing the
community estate, a court may abuse its discretion if it fails to consider such a factor.  See
Murff, 615 S.W.2d at 699 (spouse’s debt as a factor in property division).  The record does not
disclose the amount of these debts, so the court could not have considered the amount of these
debts in dividing the community estate.
      Although the court need not divide the community estate equally, a disproportionate
division must be supported by some reasonable basis.  Smallwood, 548 S.W.2d at 797,
Archambault v. Archambault, 763 S.W.2d 50, 51 (Tex. App.—Beaumont 1989, no writ). 
Having reviewed the record, we find no reasonable basis for the disproportionate division of
community assets and the liabilities of the parties.  Therefore, we sustain Karen’s second issue.
MANAGING CONSERVATORSHIP OF CHILDREN
      In her third issue, Karen challenges the trial court’s appointment of Jerry as sole managing
conservator of the couple’s three children.  The best interest of a child is always the court’s
primary consideration in determining the issues of conservatorship and possession of and access
to the child.  Tex. Fam. Code Ann. § 153.002 (Vernon 1998).  A trial court has wide
discretion when determining the best interest of a child, and its judgment will not be reversed
on appeal unless it has abused that discretion.  Gillespie v. Gillespie, 644 S.W.2d 449, 451
(Tex. 1982).  A court does not abuse its discretion when it bases its decision on conflicting
evidence, so long as there is some evidence to support its factual findings.  Davis v. Huey, 571
S.W.2d 859, 862 (Tex. 1978); J.R.W. v. State, 879 S.W.2d 254, 257 (Tex. App.—Dallas
1994, no writ); D.R. v. J.A.R., 894 S.W.2d 91, 95 (Tex. App.—Ft. Worth 1991, writ denied).
      A child 12 years of age or older may, by writing filed with the court, choose his managing
conservator, subject to the approval of the court.  Tex. Fam. Code Ann. § 153.008 (Vernon
Supp. 2004).  However, while this divorce was pending, section 153.008 permitted a child ten
years old or older to make such a designation.  Act of May 30, 1999, 76th Leg., R.S., ch.
1390, § 12, 1999 Tex. Gen. Laws 4696, 4699 (amended 2001) (current version at Tex. Fam.
Code Ann. § 153.008 (Vernon Supp. 2004)).  During this window, H.T.S. and Z.C.S., ages
thirteen and ten, designated Jerry as managing conservator.  E.C.S. was only six years old at
the time of divorce.
      Jerry testified that, on or about November 3, 1999, Karen pushed him down the stairs in
their home.  He said that Karen hit H.T.S. on numerous occasions and she was “constant[ly]
yelling, screaming and hollering” at him.  He testified that Karen told him if she couldn’t have
the kids, then neither of them would.  He also said he found marihuana and smoking
paraphernalia in Karen’s part of the house.
      According to Jerry, during the last several years of their marriage, he was the primary
caregiver to the children, taking them to and from school and sometimes taking them to the
doctor.  He said that the house had been calm since Karen left.  Both H.T.S. and Z.C.S. no
longer needed their medicine and all the children were doing well in school.
  H.T.S. scored in
the ninety-fourth percentile on the TAAS test, Z.C.S. made the honor roll, and E.C.S. was
invited to participate in the gifted and talented program.

      On cross-examination, Jerry admitted that between 1992 and 1994, he held an insurance
sales job that frequently required him to work until nine or ten o’clock at night.  However, his
current job allowed him to get home early.
      Karen denied threatening the welfare of the children.  She introduced the testimony of
twenty-three witnesses, only six of whom testified to any contact with a family member,
unrelated to the divorce action, in the year preceding trial.  Karen’s other witnesses had only
occasional contacts with the family from two to ten years earlier, but each gave testimony
supporting her.
      Janet Jorgenson, H.T.S.’s former teacher, had no knowledge of any abuse, nor was she
aware that H.T.S. had problems at home and took medication.  Francis Dodds, who supervised
a parks’ program in which H.T.S. had participated for the five summers preceding the divorce,
said that she never suspected abuse.  She said that Karen attended a play in the park and brought
cookies.
      Vivian Campbell, Karen’s former mother-in-law, had not been to Karen and Jerry’s home
in several years.  Campbell testified that Karen was a good mother to H.T.S. in 1988 or 1989. 
She visited Karen and Jerry in their home only four or five times during their ten-year
marriage.
      Jeremy Robertson, Karen’s adult son from a prior relationship, claimed that the marihuana
found in the house was his.  He said that he had smoked marihuana when he lived in the house
with Karen and Jerry, but admitted that he had not lived there for five or six years.  Robertson
also described two incidents when Jerry had been “violent” with him.  Robertson said that when
he was about thirteen years old, Jerry and his friend bit Robertson’s leg while on a fishing trip.
When Robertson was seventeen, Jerry “wrapped him up” in some type of hold.  On cross-examination, Robertson conceded that he had been fighting with his mother, Karen, when Jerry
intervened to protect her.  Robertson also accused Jerry of having shown him sexually explicit
photographs when he was a teenager.
      Christie Gold Robertson, Jeremy Robertson’s wife, said that when H.T.S. had visited
them, he lied, stole and misbehaved.  She admitted, however, that she and Robertson only saw
Karen and Jerry four-to-six times a year for a couple of hours each visit.
      Alice Lindsey, with whom Karen resides, testified that she accompanied Karen on a
visitation, where she watched Karen hold and comfort her children.  Also, Lindsey overheard 
E.C.S. tell Karen that she wanted to live with her but said, “I can’t tell you that momma,
because [Jerry] won’t let me come and see you-all on weekends.”  Finally, Sylvia Padilla, who
supervised Karen’s visitations, testified that the children were happy to see both Karen and
Jerry and that they are not afraid of Karen.
      Tracy Hildebrand, Jerry’s former daughter-in-law, testified that about nine or ten years
earlier, when she was pregnant, H.T.S. jumped on top of her.  At that time, Jerry “grabbed
him up and threw him halfway up the stairs and told him to go to his room.”  On cross-examination, she conceded that Jerry had been trying to protect her and her unborn child.
      The trial court found that (1) H.T.S., Z.C.S., and E.C.S. each signed and filed with the
court a “Choice of Managing Conservator by Child Ten Years of Age or Older” choosing Jerry
as managing conservator;
 (2) Karen committed family violence against Jerry and H.T.S. on or
about November 3, 1999; (3) Karen threatened the welfare of the children; (4) Karen used and
stored marihuana in the home in the presence of the children; and (5) Karen provided no
significant financial support for her children between approximately November 4, 1999, and the
date of trial.  The court concluded that it is likely that Karen will commit family violence
against Jerry or a member of the household in the future.
      Because the record as a whole discloses sufficient facts to support the court’s decision, we
cannot say that the trial court abused its discretion in appointing Jerry as sole managing
conservator and Karen as possessory conservator.  Gillespie, 644 S.W.2d at 451.  Accordingly,
we overrule Karen’s third issue.
APPOINTMENT OF GUARDIAN AD LITEM
      In her fourth issue, Karen notes the trial court’s failure to appoint a guardian ad litem to
represent the children.  At the beginning of trial, about nine months after Jerry filed for
divorce, Karen made an oral motion for continuance.  She said she needed more time to respond
to discovery and for the court to appoint a guardian ad litem for the children.  This was the first
time Karen had suggested appointment of a guardian ad litem.
      Karen’s request for a guardian ad litem for the children was not supported by argument or
evidence.  A trial court has discretion to appoint a guardian ad litem in a suit that does not
involve termination of the parent-child relationship.  Tex. Fam. Code Ann. § 107.001.  In
Hefley v. Hefley, the court of appeals found no abuse of discretion in the trial court’s failure to
appoint a guardian ad litem in a divorce case, even though the appellate court believed it “cried
out” for such representation.  Hefley v. Hefley, 859 S.W.2d 120, 122-24 (Tex. App.—Tyler
1993, no writ).  Both parties alleged abuse and family violence.  Id.  Mrs. Hefley alleged that
Mr. Hefley had physically and mentally abused her in the presence of their children and had
once shot at her with a rifle.  Id. at 122-23.  The record also showed that Mrs. Hefley had
endangered the well-being of her children due to her mental problems.  Id.  In addition, both
parties’ mental states were in issue.  Prior to the marriage, Mr. Hefley spent eleven years in a
state hospital after being found insane for raping and mutilating a woman and killing her two
small children.  Id. at 122.  Mrs. Hefley was hospitalized at least twice during the marriage for
hallucinations.  Id.  The Hefley trial court initially appointed an attorney ad litem, but allowed
him to withdraw without appointing a replacement.  Id. at 121-22.  The court of appeals
believed that the children may have benefitted from the appointment of another guardian ad
litem, but held that the trial court’s action was within the discretion given it by the statute in
suits affecting the parent-child relationship generally.  Id. at 124.
      The facts in this case show a contentious, contested divorce.  We find, however, that the
court acted within its discretion in refusing to make such an appointment.  Id.  We overrule
Karen’s fourth issue.
CHILD SUPPORT ORDER
      Karen’s fifth and final issue challenges the trial court’s order that she pay $225 per month
in child support.  The standard of review for a child support order is abuse of discretion.  See
Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Thomas v. Thomas, 895 S.W.2d 895,
896 (Tex. App.—Waco 1995, writ denied).  A court may order either or both parents to support
a child in a manner it specifies until the child attains age eighteen or until graduation from high
school, whichever occurs later.  Tex. Fam. Code Ann. § 154.001 (Vernon 2002).
      A child support order established in accordance with the child support guidelines of the
Family Code in effect at the time of the hearing is presumed to be reasonable, and an order
conforming to the guidelines is presumed to be in the best interest of the child.  Id. § 154.122
(Vernon 2002).  However, a court order may deviate from the child support guidelines if these
presumptions are rebutted by evidence.  Id. § 154.123 (Vernon 2002).
      In determining whether application of the guidelines would be unjust or inappropriate under
the circumstances, the court shall consider evidence of all relevant factors.  Id.  Among the
non-exclusive factors that the Family Code identifies as relevant are: (1) the ages and needs of
the children; (2) the parent’s ability to contribute to the support of the children; (3) financial
resources available for the children’s support; (4) the parent’s net resources, including earning
potential if the parent is intentionally unemployed or underemployed; (5) provision for health
care insurance and payment of uninsured, special, or extraordinary medical expenses of the
parties or the children; and (6) the debt each parent assumed.  Id.
      When a trial court establishes the amount of child support a parent must pay, the court must
consider that parent’s ability to contribute to the child’s support.  In the Interest of J.M.T., 39
S.W.3d 234, 239 (Tex. App.—Waco 1999, no pet.).  Each parent should support the child
commensurate with his ability to pay; however, the amount paid should not be so great as to
deny that party the necessary expenses of living.  E.g., Welch v. Welch, 694 S.W.2d 374, 377
(Tex. App.—Houston [14th Dist.] 1985, no writ); Strauss v. Strauss, 619 S.W.2d 18 (Tex.
Civ. App.—Corpus Christi 1981, no writ).  The child support order implies a finding that the
obligor has the ability to pay the amount ordered.  J.M.T., 39 S.W.3d at 239.
      The court found that Karen was capable of earning $400 per week, but Karen contended
that she was capable of earning that salary only before injuring her back, after which her injury
prevented her from earning that amount and from selling insurance.  The only evidence Karen
introduced regarding her living expenses was testimony that she paid $150 per month to Alice
Lindsey as rent.
      Under the guidelines for computing child support obligations in the Family Code, a salary
of $400 per week would result in a child support obligation for three children of about $409 per
month.  The court ordered $225 per month in child support.  The court also ordered that Karen
pay $66 per month for health insurance for the children.  The guidelines for support of a child
are based on the assumption that the court will order the obligor to provide medical support for
the child in addition to the amount of child support calculated in accordance with those
guidelines.  Tex. Fam. Code Ann. § 154.064 (Vernon 2002).  The record shows that the court
deviated downward from the child support guidelines, which is within its discretion to do.  Id. §
154.122.  Because we find sufficient factual support in the record for the amount of child
support ordered, we find no abuse of discretion.  J.M.T., 39 S.W.3d at 239.  We overrule
Karen’s fifth issue.
CONCLUSION
      With respect to the division of the community property, we reverse and remand this cause
for further proceedings.  We affirm the judgment in all other respects.  See Glud v. Glud, 641
S.W.2d 688, 691 (Tex. App.—Waco 1982, no writ).  To the extent that we affirm, we
withdraw our order of January 18, 2002, suspending the enforcement of the divorce decree.
 
 
 
 
                                                                   BILL VANCE
                                                                   Justice
 
Before Chief Justice Gray,
      Justice Vance, and 
      Justice Reyna
      (Chief Justice Gray dissenting and concurring)
Affirmed in part, reversed and remanded in part
Opinion delivered and filed June 23, 2004
 
[CV06 ]

rposes.  See Tex. R.
Crim. Evid. 404(b).  "Other purposes" include, as set out in the given instruction, identity and
rebuttal of a defensive theory.  See id.; Albrecht v. State, 486 S.W.2d 97, 100-01 (Tex. Crim.
App. 1972).  Should the court admit evidence under Rule 404(b), the judge should, upon a timely
request, instruct the jury that the evidence is limited to whatever purpose the proponent has
persuaded the court it serves.  Montgomery, 810 S.W.2d at 388; Tex. R. Crim. Evid. 105(a). 
We have held that evidence of extraneous acts was properly admitted.  Because the court used the
phrases "if any were committed" and "if any," the instruction does not constitute a comment on
the weight of the evidence.  Additionally, because the instruction was given to benefit the accused,
it cannot be the basis of a complaint by him.  See Bell v. State, 768 S.W.2d 790, 798 (Tex.
App.—Houston [14th Dist.] 1989, pet. ref'd).  We find no error.  We overrule points twelve and
thirteen.
      Easter complains in point fourteen that the use of the words "crimes and wrongs" instead of
the word "transactions" was prejudicial.  He cites Villanueva v. State, 768 S.W.2d 900, 902 (Tex.
App.—San Antonio 1989, pet. ref'd), as being dispositive on this issue.  We disagree.  Villanueva
concerned an instruction under section 31.03(c)(1) of the Penal Code—a section that allows the
prosecution to show intent with evidence that the actor has previously participated in "recent
transactions" that are "similar" to the one for which he is being tried.  There, the court's
instruction failed to track the statutory language and thus harmed the defendant.  Id.  Here, the
court used the terminology from Rule 404(b).  We overrule point fourteen.
      In points fifteen through eighteen, Easter complains that questions asked before the jury panel
during voir dire injected the hearsay opinion of jurors.  Easter cites no authority to support his
position and thus fails to preserve these complaints.  See McWherter v. State, 607 S.W.2d 531,
536 (Tex. Crim. App. 1980); Smith v. State, 811 S.W.2d 665, 670 (Tex. App.—Houston [14th
Dist.] 1991, pet. ref'd).  We overrule points fifteen through eighteen.  
      In his final point, Easter asserts that the cumulative effect of the errors set out in his previous
points rendered his trial fundamentally unfair and denied him due process of law.  Having found
no error, we overrule point nineteen.
      We affirm the judgment.
 
                                                                                 BILL VANCE
                                                                                 Justice

Before Chief Justice Thomas,
          Justice Cummings, and
          Justice Vance
Affirmed
Opinion delivered and filed December 29, 1993
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