                   IN THE SUPREME COURT OF TEXAS
                                                 444444444444
                                                    NO. 16-0328
                                                 444444444444

                                  AMANDA BRADSHAW, PETITIONER,
                                                           v.


                           BARNEY SAMUEL BRADSHAW, RESPONDENT
              4444444444444444444444444444444444444444444444444444
                                 ON PETITION FOR REVIEW FROM THE
                          COURT OF APPEALS FOR THE SIXTH DISTRICT OF TEXAS
              4444444444444444444444444444444444444444444444444444


                                           Argued February 28, 2018


       CHIEF JUSTICE HECHT announced the judgment of the Court and delivered an opinion in
which JUSTICE BROWN and JUSTICE BLACKLOCK joined.

          JUSTICE DEVINE filed an opinion concurring in the judgment, in which JUSTICE GUZMAN
joined.

          JUSTICE LEHRMANN filed a dissenting opinion.

       JUSTICE BOYD filed a dissenting opinion, in which JUSTICE GREEN, JUSTICE JOHNSON, and
JUSTICE LEHRMANN joined.


          While married to Amanda Bradshaw, Barney Samuel Bradshaw was convicted and sentenced

to 60 years in prison for the continuous sexual abuse1 of Amanda’s daughter, who was younger than


          1
           See TEX. PENAL CODE § 21.02(b) (“A person commits an offense if: (1) during a period that is 30 or more days
in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are
committed against one or more victims; and (2) at the time of the commission of each of the acts of sexual abuse, the
actor is 17 years of age or older and the victim is a child younger than 14 years of age, regardless of whether the actor
knows the age of the victim at the time of the offense.”).
14 years old at the time of the offense.2 In the couple’s divorce, the trial court divided their

community home 80% to Amanda and 20% to Barney. The court of appeals affirmed.3 Amanda

contends that the division was not just and right and that she should have been awarded 100% of the

home because of his criminal abuse of the family.4 We reverse the judgment of the court of appeals

and remand the case to the trial court to reconsider the division of the community estate.

                                                           I

         Amanda and Barney married in November 2010 and lived together in a home Amanda

owned before the marriage, together with Amanda’s 2 young daughters, S.S. and A.G., and A.G.’s

sister, K.M. In February 2012, the home was destroyed by fire. Using insurance proceeds, Amanda

paid off the mortgage, sold the property, and bought a new home for the family in June 2012.

         That summer, Barney, then 34, began sexually abusing Amanda’s 13-year-old daughter, S.S.

Barney was accused of requiring S.S. to perform various sex acts with him for more than a year,

often daily, sometimes weekly, stopping for a while, then resuming. Barney had also sexually abused

A.G., then 15, who knew he was abusing S.S. When K.M., then 16 or 17, told A.G. that Barney had

abused her, A.G. said that she and S.S. had both had “sexual problems” with Barney.5 In August

2013, S.S., A.G., and K.M. were visiting their aunt for a few days when they began to talk with each



         2
             Bradshaw v. State, 466 S.W.3d 875, 877 (Tex. App.—Texarkana 2015, pet. ref’d).
         3
             487 S.W.3d 306, 312 (Tex. App.—Texarkana 2016).
         4
            See TEX. FAM. CODE § 7.001 (“In a decree of divorce or annulment, 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.”).
         5
             Bradshaw, 466 S.W.3d at 883.

                                                           2
other about their shared nightmare. “[I]n the midst of great angst and emotion”, with the girls

“crying hysterically,” A.G. told the aunt, “[Bradshaw has] been messing with us, and we can’t take

anymore, and [S.S.] has been getting the brunt of it.”6 “[We want] ‘this to stop.’”7 The aunt called

the police.8

        Barney was charged with continuous sexual abuse of a young child, S.S., who was at the time

of the offense younger than 14 years old.9 The 3 girls all testified at the trial, as well as a friend of

theirs, B.P., whom Barney had also sexually assaulted. All the abuse occurred in the Bradshaw

home, the yard, the bathroom, and Barney’s bedroom. Barney was convicted and sentenced to 60

years in prison without parole.

        Meanwhile, Amanda had filed for divorce. At the hearing, she testified only very briefly, and

Barney, in jail awaiting trial, was not allowed to testify. The court awarded Amanda all of the

community estate10 and the home as her separate property. The court of appeals reversed, holding

that the evidence did not support either the award of all the community property to Amanda or the

characterization of the home as her separate property.11




        6
            Id. (alterations in original).
        7
            Id.
        8
            Id.
        9
            See TEX. PENAL CODE § 21.02(b).
        10
          The court awarded Amanda the community property in her possession and awarded the same to Barney. But
because Barney was incarcerated, this essentially amounted to an award of the community estate to Amanda.
        11
          In re Marriage of Bradshaw, No. 12-14-00056-CV, 2014 WL 3940092, at *2–4 (Tex. App.—Tyler Aug. 13,
2014, no pet.) (mem. op.).

                                                      3
         On remand, Amanda presented additional evidence. She testified that Barney had physically

abused her on multiple occasions, and S.S. and A.G. testified that Barney had sexually abused them

repeatedly. Barney testified by telephone from prison. He claimed an interest in the fire insurance

proceeds and in the home, asserting that he had made extensive repairs to it. He denied all the

allegations of abuse, contending that they had been concocted to deprive him of an interest in the

home. While the case was pending in the trial court, Barney’s conviction was affirmed on appeal.12

         Between the divorce case and the criminal case, 5 different women testified under oath to

Barney’s physical and sexual abuse. For some, the abuse continued for more than a year. Nearly all

of the abuse occurred at the Bradshaw home during Barney and Amanda’s 3-year marriage. The trial

court found that the home was community property and awarded 80% of it to Amanda and 20% to

Barney, based on “fault in the breakup of the marriage”. The court awarded the rest of the

community property to the party in possession.

         Amanda appealed, arguing that she should have been awarded 100% of the home and that

anything less was not “just and right”. The court of appeals affirmed the property division, noting

that “although fault may be considered in making a disproportionate distribution of community

property, ‘[t]he division should not be a punishment for the spouse at fault.’”13

         We granted Amanda’s petition for review.14


         12
              Bradshaw, 466 S.W.3d at 884.
         13
           487 S.W.3d 306, 312 (Tex. App.—Texarkana 2016) (quoting Young v. Young, 609 S.W.2d 758, 762 (Tex.
1980) (alteration in original)).
         14
           61 Tex. Sup. Ct. J. 254 (Jan. 19, 2018). Because Barney was without counsel, the Court referred the case to
the Supreme Court of Texas Pro Bono Program available through the State Bar of Texas Appellate Section. Barney has
been very ably represented in this Court by counsel obtained through the Program.

                                                          4
                                                        II

       The division of a community estate in divorce must be “just and right, having due regard for

the rights of each party and any children of the marriage.”15 “Just” and “right” are broad terms.

Black’s Law Dictionary defines “just” as “[l]egally right; lawful; equitable”,16 and “right” as “[t]hat

which is proper under law, morality, or ethics”.17 And “due regard” simply means the “[a]ttention,

care, or consideration”18 that is “[j]ust, proper, regular, and reasonable”.19 A trial court should

consider many factors, including “the spouses’ capacities and abilities . . . and the nature of the

property.”20 The court may consider the “fault in breaking up the marriage”, though the community-

property division “should not be a punishment for the spouse at fault.”21 In the end, “the court is to

do complete equity as between the husband and wife and the children, having due regard to all

obligations of the spouses and to the probable future necessities of all concerned.”22

       Because the standards for dividing a community estate involve the exercise of sound

judgment, a trial court must be accorded much discretion in its decision.23 The division “should be


       15
            TEX. FAM. CODE § 7.001.
       16
            Just, BLACK’S LAW DICTIONARY (10th ed. 2014).
       17
            Right, id.
       18
            Regard, id.
       19
            Due, id.
       20
            Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981).
       21
            Young v. Young, 609 S.W.2d 758, 761–762 (Tex. 1980).
       22
            Hedtke v. Hedtke, 248 S.W. 21, 22 (Tex. 1923).
       23
            Murff, 615 S.W.2d at 698.

                                                         5
corrected on appeal only where an abuse of discretion is shown in that the disposition made of some

property is manifestly unjust and unfair.”24 The appellate court cannot merely reweigh the evidence.

Rather, “[a] determination of whether the property division decreed in a divorce constitutes an abuse

of discretion presents a legal rather than a factual question for appellate review.”25 And in deciding

that legal question, the trial court is entitled to no deference. “[A] trial court has no discretion in

determining what the law is or applying the law to the facts, even when the law is unsettled.”26

        Thus, the issue before us is this: In the circumstances presented, can it be just and right, as

a matter of law, in dividing a community estate in divorce, to award an interest in the family home

to a spouse convicted of using the home to sexually abuse his stepdaughter? The issue is not whether

Barney’s conviction for sexual abuse of his stepdaughter contributed to the breakup of his marriage

and for that reason could be considered in dividing the community estate. The trial court appears to

have done just that. Nor is the issue whether awarding Amanda 100% of the home “could operate

to punish Barney for his fault in the dissolution of the marriage,” as the court of appeals worried.27

It can certainly be argued that Barney’s punishment was his 60-year prison sentence, not the unequal

division of the home (though as JUSTICE BOYD observes, “[a] sixty-year prison sentence hardly

seems sufficient”).28 Wholly apart from whether Barney’s crime contributed to the breakup of the

        24
             Hedtke, 248 S.W. at 23.
        25
             Mann v. Mann, 607 S.W.2d 243, 244 (Tex. 1980).
        26
           In re State Farm Lloyds, 520 S.W.3d 595, 604 (Tex. 2017) (internal quotations omitted); accord In re
Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004); Huie v. DeShazo, 922 S.W.2d 920, 927–928 (Tex. 1996);
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
        27
             487 S.W.3d 306, 312 (Tex. App.—Texarkana 2016).
        28
             Post at ___.

                                                        6
marriage, the question is whether it can be just and right to award him an interest in the home he

repeatedly used to sexually abuse multiple victims, including his stepdaughters.

       We have little difficulty answering no. As broad as the terms “just” and “right” are, they are

not meaningless. They express values fundamental to our society, values we hold precious. Our

society is diverse, and perceptions of what is “just” and “right” can differ with perspective. But we

think it virtually beyond argument that awarding Barney an interest in the very home he used to

sexually abuse his stepdaughter, for which he was convicted, and others is unjust and wrong, not as

a matter of fact, but as a matter of law. Such an award was thus an abuse of discretion.

       Barney argues that the award is justified because Amanda took $5,000 from his disability

benefits account after filing for divorce, he worked on the home and helped furnish it, Amanda

offered no evidence that his criminal conviction affected her financially, and awarding her 100%

of the home could be considered punitive. These arguments might be relevant to whether this is an

appropriate uneven distribution for fault in the breakup of the marriage. But they miss the point:

Barney should not be awarded an interest in the home he was convicted of using to sexually assault

his stepdaughter. Barney insists that the allegations against him are untrue, and that the award of

20% of the home was “a hedge against any residual doubt” the trial court may have had that he is

guilty as charged. But the evidence against him in the criminal trial was overwhelming, the sentence

was severe, and his conviction has been affirmed on appeal. Barney argues that awarding Amanda

100% of the home would be unjust because she was given other community property in her

possession that was his. But the case is being remanded for reconsideration of the division of the

community estate, and those arguments are best addressed on remand.


                                                 7
        For JUSTICE BOYD, “Barney’s cruelty and the harm he inflicted on Amanda and her daughters

are indisputably abhorrent and intolerable in any civilized society”,29 but he argues that the Court

has “found an abuse of discretion only when the trial court ignores a governing legal standard.”30

JUSTICE BOYD contends that while he “might”—not would, but might—personally agree that Barney

should have no interest in the home, that cannot override the trial court’s exercise of discretion. If

awarding Barney an interest in the home could be just and right, we would agree. But it cannot be—

as a matter of law. JUSTICE BOYD opines that “this Court’s view of what is ‘just and right’ is

irrelevant to the issue before us.”31 In finally interpreting a statute, this Court’s view is all that is

relevant. “Maybe”, JUSTICE BOYD muses, “Texas law should require those who abuse their spouses

or children or step-children to forfeit all interests in any property they use to commit those crimes.

But the State’s right, in the exercise of its police power, to ‘declare a forfeiture of the property of

private individuals’ involves policy decisions best exercised by the Legislature, not by this Court.”32

In the circumstances of this case, we disagree. The Legislature has already made the policy decision:

a division of a community estate must be just and right.33 As JUSTICE BOYD notes, “we must ‘take




        29
             Post at ___.
        30
             Post at ___.
        31
             Post at ___.
        32
             Post at ___ (quoting State v. Richards, 301 S.W.2d 597, 600 (Tex. 1957)).
        33
             TEX. FAM. CODE § 7.001.

                                                          8
statutes as we find them.’”34 As a matter of law, the trial court’s division of the home in this case is

neither just nor right.

        JUSTICE BOYD states that “when a statute authorizes the trial court to make a discretionary

determination by applying equitable standards like ‘just and right,’ appellate courts cannot restrict

that discretion by declaring that a particular application is or is not just and right.”35 But that is

precisely what appellate courts do, as we have done, for example, in holding that using a community

division to punish a spouse for fault in the breakup of the marriage is not just and right.36 JUSTICE

BOYD argues that even if we spoke for the Court, our decision would not be retroactive.37 Rarely are

our decisions not retroactive, and JUSTICE BOYD does not argue why a legal interpretation of “just

and right” would be an exception.

        To be clear, we limit our opinion today to narrow circumstances where the behavior involves

the use of community property, is as egregious as Barney’s, and results in a criminal conviction.

Family violence is, deplorably, all too common. We do not hold that its occurrence alone deprives

the guilty spouse of an interest in all or even a specific part of the community estate. The elements

that compel our decision are that Barney sexually abused his stepdaughters and others repeatedly

over a protracted period, that he used the family home to commit the abuse, and that he was

convicted and severely sentenced for the continuous sexual abuse of a child under the age of 14. One



        34
             Post at ___ (quoting Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex. 2009)).
        35
             Post at ___.
        36
             Young v. Young, 609 S.W.2d 758, 762 (Tex. 1980).
        37
             Post at ___.

                                                          9
can hypothesize a harder case than this one—a single incident, weak evidence, an enormous home,

no criminal conviction. A division of community property can be just and right despite violence

directed against the family. The award of an interest in the home to Barney cannot be. JUSTICE BOYD

complains that this is “unworkable as a legal principle.”38 We fail to see why it is more unworkable

than reasonableness, a standard that pervades the law.

       “Amanda presents a forceful argument”, JUSTICE BOYD begrudges.39 We agree.

                                 *       *       *       *      *

       The judgment of the court of appeals is reversed and the case is remanded to the trial court

for further proceedings.




                                              Nathan L. Hecht
                                              Chief Justice

Opinion delivered: June 29, 2018




       38
            Post at ___.
       39
            Post at ___.

                                                10
