




02-11-227-CV





















COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
NO. 02-11-00227-CV
 
 



Peter A. Oldenburg


 


APPELLANT




 
V.
 




Lisa G. Oldenburg


 


APPELLEE



 
 
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FROM THE 367th
District Court OF Denton COUNTY
----------
MEMORANDUM
OPINION[1]
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I.  Introduction
In
two issues, Appellant Peter A. Oldenburg appeals the trial court’s property division
in this divorce proceeding.  We affirm.
II. 
Factual and Procedural Background
Peter
and Appellee Lisa G. Oldenburg were married December 30, 2005.  They ceased to
live together as husband and wife in April 2010.  Peter petitioned for divorce,
Lisa counter-petitioned, and both parties agreed that the marriage was
insupportable due to discord or conflict of personalities.  Before trial, they agreed
on the division of nearly all of the personal property.  No realty was involved
in the divorce.
At
the hearing finalizing the divorce proceedings, Peter and Lisa both explicitly
agreed that the only issues were the disposition of the 2004 Ford Ranger
pick-up truck and a $3,800 debt on the truck and possession of the Shih Tzu
dog.[2]
With
regard to the debt secured by the truck, Peter testified that Lisa had taken
out a loan to purchase the truck using $5,000—which she had earned during the
marriage—as collateral from her account at EDS Credit Union.  The truck was in
his name, and they had had it for around two and a half years.  Peter
subsequently took out a $4,000 loan in his name, using the truck as collateral. 
He said that he gave the $4,000 to Lisa so that she could pay off the truck
loan and close out her savings account.
During
cross-examination, however, Peter testified that he used around $1,200 of the
loan proceeds to make a house payment and then gave what remained to Lisa.  He
agreed that the check Lisa used to pay for the truck was for $5,000 from an EDS
Credit Union account.  Peter also testified that his father had given him the
money to purchase the motorcycle, that it was worth around $6,500, and that he
had never had a note on it.
Lisa
testified that she was unaware at the time that Peter had taken out the $4,000
loan using the truck as collateral and that she did not receive any of the loan
proceeds.  She said that Peter later told her that some of the loan proceeds
went to his father because he had given Peter some money to pay off an old debt
to raise his credit score so that Peter could get a loan at the bank.
With
respect to the dog, Peter testified that he had been the dog’s primary
caregiver and that he took the dog to work with him every day, but he also
testified that Lisa had found the dog on the SPCA website, purchased it, and
picked it up four years before the trial.  On cross-examination, he admitted
that he may have written letters to Lisa saying that he would never take the
dog away from her.
Lisa
testified that she found the dog at the SPCA in 2006, that she adopted it, and
that it had been her constant companion ever since, riding in the car with her
and sleeping in her bed.  She said that she walked and fed the dog and took it
to the vet and groomer, that the dog was like her child, and that she provided
everything that happened with the dog concerning its care, maintenance, and
upkeep.  She admitted during cross-examination that she did not know who had
taken care of the dog while she was confined in county jail for forty days for
assault.
The trial
court awarded the dog and truck to Lisa and made Peter responsible for the note
on the truck.  This appeal followed.
III. 
Property Division
In
two issues, Peter complains that the trial court mischaracterized the
motorcycle as community property and abused its discretion when it failed to
divide the community assets and liabilities in a fair and equitable manner.
A. 
Standard of Review
In a
divorce proceeding, the trial court is charged with dividing the community
estate in a “just and right” manner, considering the rights of both parties.  Tex.
Fam. Code Ann. § 7.001 (West 2006); Neyland v. Raymond, 324 S.W.3d 646,
649 (Tex. App.—Fort Worth 2010, no pet.).  Trial courts are afforded wide
discretion in dividing marital property upon divorce; therefore, a trial court’s
property division may not be disturbed on appeal unless the complaining party
demonstrates from evidence in the record that the division was so unjust and
unfair as to constitute an abuse of discretion.  Neyland, 324 S.W.3d at
649 (citing Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex. 1985)); see
also Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)
(stating that, to determine whether a trial court abused its discretion, we
must decide whether the trial court acted without reference to any guiding
rules or principles; in other words, whether the act was arbitrary or
unreasonable), cert. denied, 476 U.S. 1159 (1986).
B. 
Property Division
In
his first issue, Peter complains that “[t]he award of the Harley Davidson
motorcycle as an item of community property is against the great weight and
preponderance of the evidence.  Although the award is to Peter, all evidence is
that the purchase money for the motorcycle was from Peter’s father.”  Peter’s
position is that only by wrongly characterizing the motorcycle as community
property could the trial court award the truck and dog to Lisa.
In
his second issue, Peter argues that “[t]he Trial Court abused its discretion
when it failed to divide the community assets and liabilities in a fair and
equitable manner, based upon the facts and circumstances presented as evidence
in this case.”  Specifically, he complains that he should not have been awarded
the $3,800 note.  Because Peter’s second issue is dispositive, we will address
it first.
The trial
court decided only the ownership of the dog and the note on the truck, stating
in its ruling, “there being an agreement that the truck goes to [Lisa].”  There
was conflicting testimony as to who took care of the dog, but it was undisputed
that Lisa selected the dog, adopted it, brought it home, and had at least a
part in its care.  Based on this evidence, the trial court did not abuse its
discretion when it awarded the dog to Lisa.
With
regard to the note secured by the truck, Peter testified that the truck was
purchased in his name with funds secured by Lisa’s savings account and that he subsequently
took out a loan against the truck in his name.  He stated both that he gave all
of the proceeds to Lisa and that he applied part of the proceeds to the
mortgage and then gave the balance to Lisa.  Lisa testified that she never
received any of the loan proceeds from Peter, that she did not know about the
loan when it occurred, and that she later learned of the loan and that part of
its proceeds were given to Peter’s father.
The trial
court could have reasonably concluded from the evidence that the truck was
purchased for $5,000 with community funds by Lisa, with each party owning half
of the truck.  The truck’s depreciated value at the time of trial is not in the
record.  The $4,000 loan proceeds were also owned equally by each party, but if
the trial court chose to believe Lisa, she did not receive any of the proceeds
from the $4,000 loan.  At the time of the divorce, the note balance was $3,800. 
The trial court awarded the $3,800 note to Peter—the individual who took the
note out in his name—while awarding the used truck of unknown value to Lisa.
Under
these circumstances, we cannot say that the trial court abused its discretion
by awarding to Lisa the truck of unknown value and the note to Peter for the
loan he took out in his name.  And because the trial court did not abuse its
discretion with regard to the disposition of the dog, truck, and note, the
trial court’s characterization of the motorcycle as community or separate
property is of no moment.  See Boyd v. Boyd, 131 S.W.3d 605, 610
(Tex. App.—Fort Worth 2004, no pet.) (“[W]e will reverse the cause only if the
record demonstrates that the trial court clearly abused its discretion, and the
error materially affected the just and right division of the community
estate.”).  We overrule both of Peter’s issues.
IV. 
Conclusion
Having
overruled both of Peter’s issues, we affirm the trial court’s judgment.
 
 
BOB MCCOY
JUSTICE
 
PANEL: 
LIVINGSTON,
C.J.; MCCOY and GABRIEL, JJ.
 
DELIVERED:  March 15, 2012




[1]See Tex. R. App. P. 47.4.


[2]Peter’s attorney stated,
after the parties recited the agreed property division into the record, and
before any evidence was heard, “Oh, there’s a 1986 Harley-Davidson motorcycle that
[Peter] is going to have.”  During Peter’s direct examination, he gave the
following testimony:
Q.  Okay.  The first issue would be the
2004 Ford Ranger pickup.  Okay?  Now, you’ve agreed that your wife may have
that, and you got the Harley; is that correct?
A.  Yes.


