Affirmed and Memorandum Opinion filed May 14, 2019.




                                          In The

                       Fourteenth Court of Appeals

                                  NO. 14-17-00768-CV

                            KEVIN P. KALEY, Appellant
                                             V.
                             TERRI E. KALEY, Appellee

                      On Appeal from the 411th District Court
                            San Jacinto County, Texas
                         Trial Court Cause No. DV13,678


                             MEMORANDUM OPINION

       Kevin P. Kaley appeals from a final decree of divorce dissolving his
marriage to Terri E. Kaley. Kevin contends that the trial court abused its discretion
in finding Kevin, and not Terri, guilty of cruelty and in ordering a disproportionate
division of the community estate. We affirm.1


       1
         The Texas Supreme Court transferred this case from the Ninth Court of Appeals.
Because of the transfer, we must decide the case in accordance with the precedent of the Ninth
Court of Appeals if our decisions otherwise would have been inconsistent with that court’s
                                        Background

       Kevin and Terri married in 1986. They purchased their homestead during the
marriage. The homestead included a home built on 70 acres. Kevin and Terri
separated in March 2015. Terri filed for divorce in May.2 In October, the trial court
signed agreed temporary orders, which prohibited either party from incurring any
debts other than for legal expenses or otherwise authorized by the order.

       Approximately one year later, Terri obtained a protective order against
Kevin based on evidence that he was stalking Terri: for example, Kevin
purportedly placed tracking devices on Terri’s car twice, trespassed into Terri’s
residence and left his hat there to intimidate her, sent Terri hundreds of “hateful
and threatening emails,” and texted Terri “between 50-100 times daily.” Further,
Kevin tried to access Terri’s membership account at her gym and tried to get
himself put on as account manager of Terri’s cellular phone account. After Terri
obtained the protective order, Kevin and Terri both amended their pleadings to
allege cruel treatment and seek a disproportionate distribution of assets.

       A copy of the protective order against Kevin was admitted at trial, along
with Terri’s application for a protective order and supporting affidavits. In Terri’s
affidavit, she recounted the above facts about Kevin stalking her. Terri also
testified that before she got the protective order, she had gone on a business trip,
and Kevin followed her to the airport. Also according to Terri, during the course of
the marriage, Kevin once had “knocked [Terri] out of her shoes” and often called

precedent. See Tex. R. App. P. 41.3.
       2
          In January 2015, the Kaleys sold 30 acres of the homestead to Kevin’s mother Adrienne
for $168,000, which Kevin testified he split evenly with Terri. In September, Kevin and
Adrienne signed a “Lease to Purchase Option Agreement” pursuant to which Adrienne agreed to
lease the 30 acres back to Kevin and Terri with a ten-year option to purchase the land. Kevin
took out a $50,000 bank loan to make payments to his mother under the agreement. Terri did not
sign the agreement and did not seek an interest in the agreement in the divorce.

                                              2
her derogatory names and falsely accused her of infidelity. Terri’s sister Tina also
testified that Kevin often called Terri derogatory names and was aggressive to
Terri and others. Tina said, “I’ve seen him yell at her, scream and holler at her,
lunge at her.”

      Kevin denied the physical abuse. He had alleged infidelity but admitted at
trial that he did not know whether Terri had had affairs but stated he “had a bad
feeling because [Terri] drank so much.” He testified that on the weekends, Terri
would stay out drinking and would not come home until early in the morning.

      As far as the parties’ assets, Terri testified that the homestead was worth
$465,000, consistent with an appraisal obtained by the parties. Kevin testified that
he had spent “[o]ver $200,000” in upkeep on the property since Terri had filed the
divorce petition. Terri testified that she and Kevin owned two Lexus vehicles and a
Chevrolet Suburban. She sought spousal support.

      During the marriage, Kevin had a floor installation business. He testified at
trial that at most, the business had generated about $80,000 in revenue per year but
in the last couple years, it had generated only between $25,000 and $30,000 in
revenue. Terri testified to the contrary that Kevin’s business generated “probably
[$]200,000 [in revenue] a year.” Kevin evaluated the business inventory at
approximately $2,000.

      Terri managed the floor installation business. She testified that she “did
everything other than do the” physical labor and make the deposits. Terri also
worked for a business owned by her family and testified that her annual salary,
which consisted of salary plus commissions, totaled approximately $32,000 the
year before trial.

      Kevin accrued $18,500 in debt on a Chase credit card after the parties


                                         3
separated. Terri testified that she had paid approximately $11,000 in interest and
fees on that credit card for charges that were made solely by Kevin. At the time of
trial, the balance on the card was nearly $16,000. Also at that time, Kevin had an
American Express account with a balance of approximately $46,000 that he
described as “my credit card debt.” He also testified that he used what he referred
to as “my American Express” to purchase flooring products for the business.

       The trial court (1) granted Terri a divorce from Kevin and dissolved the
marriage on the ground of Kevin’s cruelty; (2) ordered the sale of the marital
residence and ordered a division of the proceeds of the sale 70 percent to Terri and
30 percent to Kevin; (3) awarded Terri the Lexus vehicles, which were both 2007
models; and (4) awarded Kevin the 2001 Suburban, a 2000 Toyota Tundra, and a
1991 Ford F-350, along with a tractor, an all-terrain vehicle, two trailers, a rotary
cutter, and a bale carrier. The trial court also assigned the debt as follows: (1) the
note on one of the Lexus vehicles was assigned to Terri, along with debts incurred
solely by Terri after the parties separated; and (2) the Chase and American Express
credit card debt referenced above was assigned to Kevin, along with debts incurred
solely by Kevin after the separation. Attorney’s fees were awarded to Terri. No
spousal support was ordered. At the conclusion of trial, the trial court also orally
awarded Terri her interest in her family business and awarded Kevin the flooring
business.3

                                            Discussion

       In one issue, Kevin asserts that the trial court abused its discretion in finding
him guilty of cruelty and in ordering a disproportionate division of the community

       3
         Terri testified that she did not own an interest in her family business at the time of trial.
She testified that she would eventually inherit half the business. Under Texas law, property
acquired by inheritance is separate property. Tex. Const. art. XVI, § 15; Tex. Fam. Code
§ 3.001(2).

                                                  4
estate. Kevin concedes that he was guilty of cruelty but argues the trial court also
should have found Terri guilty of cruelty.

      The Texas Family Code requires the trial court in a divorce proceeding to
“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 § 7.001. Generally, a divorce court has wide latitude in
the exercise of its discretion to divide the marital estate. Ohendalski v. Ohendalski,
203 S.W.3d 910, 914 (Tex. App.—Beaumont 2006, no pet.). Thus, we review a
trial court’s division of property under an abuse of discretion standard. Id. Legal
and factual sufficiency are relevant factors, rather than independent bases for
reversal, in determining whether the trial court abused its discretion. Stewart v.
Stewart, No. 09-18-00142-CV, 2018 WL 2343215, at *3 (Tex. App.—Beaumont
May 24, 2018, no pet.) (mem. op.); In re A.D.H., 979 S.W.2d 445, 446 (Tex.
App.—Beaumont 1998, no pet.). A trial court does not abuse its discretion if there
is some evidence of a substantive and probative nature to support the decision.
Ohendalski, 203 S.W.3d at 914.

      The division of the marital estate need not be equal, and fault is one of the
many factors that a trial court may consider in making a division of the community
estate. Id. Generally, in a fault-based divorce, the court may consider the conduct
of the errant spouse in making a disproportionate distribution of the marital estate.
Id. The grounds available for a fault-based divorce specifically include cruelty. Id.;
see also Tex. Fam. Code § 6.002. The party challenging the division bears the
burden of demonstrating from the evidence in the record that the trial court’s
division was “so unjust and unfair as to constitute an abuse of discretion.” Tran v.
Nguyen, 480 S.W.3d 119, 132 (Tex. App.—Houston [14th Dist.] 2015, no pet.);
Johnson v. Johnson, No. 09-13-00537-CV, 2014 WL 5855916, at *2 (Tex. App.—

                                          5
Beaumont Nov. 13, 2014, no pet.) (mem. op.).

      The evidence in the record supports Terri’s claim of cruelty. Not only did
Terri present evidence that Kevin physically abused her, frequently called her
derogatory names, and regularly falsely accused her of adultery, Terri was also
forced to obtain a protective order against Kevin for stalking her and trespassing on
her property. See Ohendalski, 203 S.W.3d at 914 (holding evidence of adultery and
cruelty supported trial court’s unequal division of estate); Barnard v. Barnard, 133
S.W.3d 782, 786-87 (Tex. App.—Fort Worth 2004, pet. denied) (holding trial
court’s finding in protective order that husband committed family violence was
evidence supporting finding of cruelty). Our sister court has upheld
disproportionate awards when the grounds for divorce include cruelty. See
Ohendalski, 203 S.W.3d at 914 (affirming award of 81 percent of marital estate to
wife); Golias v. Golias, 861 S.W.2d 401, 403 (Tex. App.—Beaumont 1993, no
writ) (upholding award of 79 percent of marital estate to wife).

      Although Kevin alleged that Terri was also cruel, the trial court, as the sole
judge of the credibility of the witnesses and the weight to be given their testimony,
was entitled to accept Terri’s testimony and disbelieve Kevin’s. See Woody v.
Woody, 429 S.W.3d 792, 797 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
Kevin contends that Terri was guilty of cruelty because his Aggie ring purportedly
mysteriously disappeared and Terri allegedly committed adultery. There is no
evidence in the record that Terri intentionally took Kevin’s ring, and she agreed
during trial to return it if she ever found it. Also, Kevin admitted at trial that he did
not know whether Terri had had affairs: he just had a “bad feeling because she
drank so much.” Thus, the trial court’s refusal to find Terri guilty of cruelty is
supported by some evidence.

      Kevin’s complaint is based on a computation that the trial court awarded

                                            6
Terri 70 percent of the sale of the marital homestead and assessed only
approximately 7.5 percent of the “community debt” against her.4 This is not
everything the trial court ordered. The trial court awarded Kevin his flooring
business, which he testified generated between $25,000 to $80,000 in revenue per
year. Terri testified the business generated up to $200,000 in revenue per year.
Although Terri managed the business, the trial court did not award any portion of it
to her. The trial court awarded Terri only two of the family’s eleven motor
vehicles, and one of the vehicles she was awarded carried a $5,700 note. Moreover,
the trial court awarded each party several items of personal property and the sums
of cash subject to their sole control.

       As to the division of debt, the trial court assessed the debt on the Lexus to
Terri, along with any debts she incurred after the date of the divorce filing. The
trial court assessed the $18,000 Chase credit card debt against Kevin that he
conceded at trial was his sole debt and the $46,000 credit card debt charged on his
American Express account that he testified was used to purchase flooring products
for the business that was awarded to him. See Tedder v. Gardner Aldrich, LLP, 421
S.W.3d 651, 655 (Tex. 2013) (“[O]ne spouse is not liable for the other’s debt
unless the other incurred it as the one’s agent or the one failed to support the other
and the debt is for necessaries.”). The trial court also assessed any debts against
Kevin that he incurred after the date of the divorce filing.

       Kevin further complains that the trial court awarded Terri approximately
$13,000 in attorney’s fees. But the trial court is entitled to assess attorney’s fees in
effecting a just and right division of the estate. Murff v. Murff, 615 S.W.2d 696,

       4
          The supreme court has noted that the term “community debt” is a concept often misused
to impose liability on a spouse who did not incur the debt. Tedder v. Gardner Aldrich, LLP, 421
S.W.3d 651, 654 (Tex. 2013). As discussed below, the trial court assessed debt against Kevin
that he incurred solely.

                                              7
699 (Tex. 1981).

      In dividing the community property, the trial court was permitted to consider
many factors, including fault in breaking up the marriage, the spouses’ capacities
and abilities, business opportunities, education, relative physical conditions,
relative financial conditions and obligations, disparity of ages, sizes of separate
estates, the nature of the property, and disparity in earning capacities or incomes.
Id. For example, the trial court could consider the fact that Terri did not have a
college degree and Kevin had a degree from Texas A&M University and take into
account any potential disparity in their earning capacities due to that fact. Terri,
moreover, was not awarded any part of the flooring business and would not stand
to inherit a portion of her family business until some indefinite time in the future.
Kevin had the burden of demonstrating based on evidence in the record that the
trial court’s division was so unjust and unfair as to constitute an abuse of
discretion. See Johnson, 2014 WL 5855916, at *2. Based on the evidence in this
record, Kevin has failed to do so.

      Indeed, based on this record, Kevin has not demonstrated that the trial court
made an unequal division of the estate. Kevin argues that there is no evidence in
the record of the value of the flooring business. But Kevin and Terri both gave
their assessment of the annual revenue of the business. The trial court was entitled
to weigh the credibility of their conflicting testimony. See, e.g., Banker v. Banker,
517 S.W.3d 863, 872 (Tex. App.—Corpus Christi 2017, pet. denied) (holding
business owner could opine on value of business when based on personal
knowledge); Coker v. Burghardt, 833 S.W.2d 306, 309–10 (Tex. App.—Dallas
1992, writ denied) (acknowledging trial court may consider “lay opinion about
[business] value if the witness has personal knowledge of facts forming the opinion
and a rational connection exists between the opinion and the facts—and if the

                                         8
opinion is helpful”).5 Kevin also contends there is no evidence of the value of the
vehicles “and other assets.” As noted, the trial court awarded Kevin nine of eleven
vehicles and reasonably could have concluded such a division was just and right.
Moreover, the sufficiency of the evidence is merely one factor in light of the many
factors that the trial court was entitled to consider. See Stewart, 2018 WL 2343215,
at *3.

         For these reasons, we overrule Kevin’s sole issue presented on appeal.

                                             Conclusion

         We affirm the judgment of the trial court.




                                                /s/       Frances Bourliot
                                                          Justice



Panel consists of Justices Wise, Jewell, and Bourliot.




         5
             Neither party objected to Kevin’s or Terri’s testimony regarding business revenue.

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