Affirmed and Opinion Filed April 22, 2016




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-14-00798-CV

                                DAVID FLORES, Appellant
                                         V.
                                BLANCA FLORES, Appellee

                      On Appeal from the 330th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. DF-13-17367

                            MEMORANDUM OPINION
                         Before Justices Francis, Fillmore, and Schenck
                                  Opinion by Justice Francis
       David Flores (Husband) appeals the property division in his divorce case. In his sole

issue, Husband argues the trial court erred in awarding a disproportionate share of the

community estate to Blanca Flores (Wife). We affirm.

       Wife sued Husband for divorce after more than thirty-two years of marriage. In her

petition, Wife sought a disproportionate share of the community estate based on fraud on the

community estate and the parties’ disparity of earning power, among other allegations. Husband

countersued and also sought a disproportionate share of the community estate.

       At trial, Wife presented evidence that Husband had transferred the title to three properties

in Mexico, acquired during the marriage, into Husband’s name only or into the names of their

adult children, all without her knowledge or consent. Two of the properties were land only,
while the third included a house. Wife offered, and the trial court admitted over objection,

Spanish-language documents reflecting appraisals on the three Mexican properties.1

           Husband admitted he and Wife purchased the three properties in Mexico during the

marriage and that he had “changed” the title to put the properties into their children’s names,

although he said it was a decision “made by both of us.” Husband said he gave someone the

power of attorney to make the transfer and acknowledged there was no document signed by Wife

agreeing to the action, which he said was “not required in Mexico.” Wife valued the three

properties at $175,000, and Husband valued them at about $50,000.

           Other evidence at trial showed the only real property owned by the couple in Texas was

their marital residence in Garland. Evidence showed the home was valued at about $99,000, but

was encumbered by about $81,500 in debt, leaving some $17,500 in equity. In addition to their

house, both owned vehicles, and Wife had a retirement account with a current value of about

$30,000. Finally, Wife testified Husband earned twice as much as she did monthly. Wife did

not finish high school, and Husband graduated from high school and also attended college.

           After hearing the evidence, the trial court awarded the marital home and corresponding

debt to Wife. Wife also received 60% of her retirement account benefits and Husband received

the remaining 40%. Further, Husband was awarded his two vehicles, and Wife was awarded her

vehicle. Each party was assessed the debt he or she had incurred since March 30, 2011.

           In making its division, the trial court noted it could not divide the Mexican properties

although they constituted part of the marital estate.                                 The trial court told the parties that

Husband’s testimony alone suggested the transfer of the properties was “underhanded, at best.”

The trial court stated it made its division of property based upon fraud on the community “as


     1
       A similar document was admitted regarding a fourth property, which Wife testified belongs to her mother but Husband changed the title to
his name.



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evidenced by the testimony from Mr. Flores” as well as the disparity of earning power. The final

decree of divorce contained the division of property. After Husband’s motion for new trial was

overruled by operation of law, he appealed.

       A trial court is afforded wide discretion in dividing marital property upon divorce and,

absent abuse of discretion, we will not disturb its decision. Chavez v. Chavez, 269 S.W.3d 763,

766 (Tex. App.—Dallas 2008, no pet.). We indulge every reasonable presumption in favor of

the trial court’s proper exercise of discretion in dividing the community estate. Id. We reverse

only if the record demonstrates the trial court clearly abused its discretion, and the error

materially affected the just and right division of the community estate. Id. In family law cases,

the traditional sufficiency standard of review overlaps with the abuse of discretion standard of

review; therefore, legal and factual insufficiency are not independent grounds of error but are

relevant factors in our assessment of whether the trial court abused its discretion. Id.

       A 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). The trial

court is not required to divide it equally, but may order an unequal division when a reasonable

basis exists for doing so. One such basis is fraud on the community. See Schlueter v. Schlueter,

975 S.W.2d 584, 588 (Tex. 1998) (“Texas recognizes the concept of fraud on community, which

is a wrong by one spouse that the court may consider in its division of the estate of the parties

and that may justify an unequal division of the property.”). Additionally, a trial court may

consider the disparity of incomes or of earning capacities of the parties in dividing their estate.

Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981).

       In his sole issue, Husband argues the trial court erred by awarding Wife a

disproportionate share of the community estate because its finding of fraud on the community is

unsupported by the evidence. In particular, he contends the court impermissibly relied on the

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Spanish-language documents that were not certified or translated, and no Mexican law was

“referenced, cited, or argued as to the disposition of community property during a divorce.”

        Although appellant asserts the Spanish-language documents were inadmissible, he has

failed to present any authority to support his contention. Nor does he explain why Mexican law

would be pertinent to the trial court’s determination of a “just and right” division of property.

But even assuming the documents were not admissible, any error was harmless because the trial

court had other evidence that Husband committed fraud on the community by transferring the

title to properties into his name only or into to the names of third parties. Specifically, Wife

testified Husband had transferred ownership in the properties, all acquired during the marriage,

without her consent or knowledge.        And, Husband admitted he transferred the title to the

properties into the names of their children. Although Husband testified Wife agreed to the

transfer, the trial court made any credibility determinations.

        Additionally, the evidence showed a disparity in earning power of Husband and Wife,

and Husband does not challenge this basis for the trial court’s division.       Specifically, the

evidence showed Husband earned twice as much as Wife and was more educated, which the trial

court could have concluded put him in a better earning position.

        Having reviewed the record, we conclude Husband has not shown the trial court abused

its discretion in making a “just and right” division of the community property. We overrule his

sole issue.

        We affirm the trial court’s final decree of divorce.




                                                      /Molly Francis/
                                                      MOLLY FRANCIS
                                                      JUSTICE
140798F.P05

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                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

DAVID FLORES, Appellant                              On Appeal from the 330th Judicial District
                                                     Court, Dallas County, Texas
No. 05-14-00798-CV         V.                        Trial Court Cause No. DF-13-17367.
                                                     Opinion delivered by Justice Francis;
BLANCA FLORES, Appellee                              Justices Fillmore and Schenck participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellee Blanca Flores recover her costs of this appeal from
appellant David Flores.


Judgment entered April 22, 2016.




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