                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo
                                   ________________________

                                       No. 07-15-00001-CV
                                   ________________________


                         BRENTLEY WAYNE HRNCIRIK, APPELLANT

                                                    V.

                             BOBBYE GAIL HRNCIRIK, APPELLEE



                           On Appeal from County Court at Law No. 2
                                     Lubbock County, Texas
                 Trial Court No. 2013-509,724; Honorable Drue Farmer, Presiding


                                            August 30, 2016

                                 MEMORANDUM OPINION
                      Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


      This is an appeal from a Final Decree of Divorce. By two issues, Appellant,

Brentley Wayne Hrncirik, contests (1) the trial court’s disproportionate award of property

to Appellee, Bobbye Gail Hrncirik,1 as being an abuse of discretion and (2) the legal and

factual sufficiency of the evidence supporting a finding that Brentley was at fault in the

breakup of the marriage. We affirm.
      1
          Although represented by counsel at trial, Bobbye is proceeding pro se in this appeal.
       BACKGROUND

       Bobbye and Brentley were married on February 28, 2004, and separated in

September 2013. She filed for divorce on December 31, 2013. The parties do not have

any children of their own but do have children from previous relationships. As grounds

for divorce, Bobbye alleged insupportability, cruel treatment, and adultery. Based on

those grounds, she also sought a disproportionate share of the community estate,

including Brentley’s retirement account.


       At the time of the divorce, Bobbye worked as director of a residential healthcare

partnership for University Medical Center making $94,500 annually, as an accountant.

Brentley worked for Matco Tools and testified his base salary at the time of divorce was

$75,000 plus certain expenses and commissions. At the final hearing, he introduced a

copy of his earnings through May 29, 2014, including commissions, which showed he

had already earned $48,191.53. Although the hearing occurred in August 2014, he did

not provide a more recent earnings statement.


       Bobbye testified that Brentley began an affair in April 2013. According to her

testimony, the parties attended marriage counseling to repair their marriage. During

that time, they purchased acreage with a mobile home in Seymour, Texas, intending

that it be used as a hunting ranch. They also purchased a camper for the ranch,

financed by a purchase-money note in Bobbye’s name.2                  Additionally, prior to the

purchase of the ranch, they sold some lake property which they agreed to owner-

finance. During the pendency of the divorce, Brentley received those payments.


       2
          The testimony revealed that Brentley had sold the camper and was not applying the income
from the sale toward the debt secured by the camper. While the divorce was pending, Bobbye made the
payments on the camper to prevent damage to her credit.
                                                  2
      Shortly after Bobbye filed for divorce, the trial court entered a temporary

restraining order that restrained Brentley from, among other acts, selling or transferring

property, incurring indebtedness, or spending money without court authorization. Two

months later, temporary orders were entered assigning specific financial responsibilities

to be borne by each party. Brentley was ordered to deposit proceeds from the sale of

the lake property into a trust account for the benefit of both parties.      Brentley and

Bobbye were also ordered to deliver a sworn inventory and appraisement of their

property to opposing counsel. The temporary orders further memorialized the parties’

agreement to sell their residence and split the costs of any repairs and maintenance.


      During the final hearing, Bobbye testified in support of her sworn inventory and

appraisement and proposed division of property and debt. Included in the document

were credit card and bank note liabilities. She explained the reasons for the bank notes

and offered to assume certain debts in her name. She also provided documentation

and photos of personal property to support her proposed division of property. Receipts

and documentation of repairs made to the residence in preparation for sale were also

admitted into evidence. She testified that contrary to the trial court’s temporary orders,

Brentley had purchased a tractor and storage building.


      Brentley testified that he did not submit an inventory and appraisement or a

proposed division of property and debt to the trial court as ordered. Despite the fact that

Brentley claimed his attorney had one, no such document was introduced into evidence.

Brentley did, however, submit a document entitled “House Items” with estimated values




                                            3
for personal property totaling $90,643 (as compared to Bobbye’s valuation of $8,025).3

He testified he was using replacement cost figures whereas Bobbye testified that with

her accounting background, household items had depreciated and she attributed only

garage sale or “Craigslist” values to the personal property.


       At the conclusion of the final hearing, the trial court found Brentley in contempt,

and using Bobbye’s values, ordered a disproportionate division of the community estate.

The trial court divided Brentley’s retirement benefits in his Matco Tools 401(k) plan, fifty-

two percent to Bobbye and forty-eight percent to Brentley. That portion of the property

division was memorialized in a Qualified Domestic Relations Order.


       The trial court entered Findings of Fact and Conclusions of Law. Finding of Fact

2 provides that the divorce was granted on grounds of insupportability and adultery.

The trial court found that Bobbye complied with the scheduling order by presenting an

inventory and appraisement and proposed disposition of property and debt, while

Brentley failed to present either. Brentley was also found to have willfully violated the

temporary orders by failing to make payments on the camper and by failing to deposit

funds from the sale of the lake property into a trust account. The trial court made

additional findings regarding Brentley’s failure to pay his share of repairs and

maintenance on the residence.            In Finding of Fact 15, specifically challenged by

Brentley, the trial court found “[t]aking into consideration the evidence presented, the

Court awarded a disproportionate share of the property and debts between the parties

based on fault in the breakup in [sic] the marriage by Brentley Wayne Hrncirik.” In its


       3
          Brentley testified that $52,000 in tools was misappropriated by Bobbye but she denied any
knowledge of the tools and he did not provide documentation in support of the missing tools. The trial
court ruled it would take that amount “off both sides.”
                                                       4
Conclusions of Law, the trial court found “[t]here was insufficient or limited evidence

presented by Brentley Wayne Hrncirik as to property characterization and value.”


       APPLICABLE LAW —ABUSE OF DISCRETION

       In a decree of divorce, the trial court must order a division of the community

estate “in a manner the court deems just and right, having due regard for the rights of

each party . . . .” TEX. FAM. CODE ANN. § 7.001 (West 2006). According to this standard,

the trial court does not have to divide the community estate equally so long as the

division is equitable. O’Carolan v. Hooper, 414 S.W.3d 288, 311 (Tex. App.—Austin

2013, no pet.). Due to this equitable standard, a trial court has wide discretion when it

comes to the division of a community estate and we review the exercise of that

discretion according to an abuse of discretion standard. Murff v. Murff, 615 S.W.2d 696,

698 (Tex. 1981). Furthermore, given the variances in property valuations and debt

allocation, there is no requirement that the court effectuate a division of the community

estate with mathematic certainty. Id. at 699.


       On appeal, we will presume the trial court correctly exercised its discretion when

dividing the community estate.      O’Carolan, 414 S.W.3d at 311.         Accordingly, “the

appellant bears the burden to show from the record that the division was so

disproportionate, and thus unfair, that it constitutes an abuse of discretion.” Id. In that

regard, a trial court abuses its discretion when it acts arbitrarily or unreasonably, without

reference to any guiding rules or principles. See Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex.

2011) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.

1985)). Generally, there is no abuse of discretion where there is some evidence of a



                                             5
substantive and probative character to support the trial court’s decision.     Swaab v.

Swaab, 282 S.W.3d 519, 515 (Tex. App.—Houston [14th Dist.] 2008, pet. dism’d w.o.j.).


      When there is conflicting evidence of value, a trial court is permitted to blend all

the evidence and assign a value within the range of evidence. Moore v. Moore, 383

S.W.3d 190, 200 (Tex. App.—Dallas 2012, pet. denied); McGee v. McGee, 537 S.W.2d

94, 97 (Tex. Civ. App.—Amarillo 1976, no writ). To do so is not an abuse of discretion.

McIntyre v. McIntyre, 722 S.W.2d 533, 536 (Tex. App.—San Antonio 1986, no writ).

Factors the trial court may consider in dividing the marital estate include the parties’

earning capacity and business opportunities, their financial condition and obligations,

their education, the size of their separate estates, their age, health, and physical

condition, fault in the breakup of the marriage, the benefit the innocent spouse would

have received had the marriage continued, and the probable need for future support.

Murff, 615 S.W.2d at 699. In addition, the trial court may also consider and make

adjustments for the effect of temporary orders. In re Marriage of Ard, No. 14-14-00808-

CV, 2016 Tex. App. LEXIS 7531, at *21 (Tex. App.—Houston [14th Dist.] July 14, 2016,

no pet. h.) (mem. op.).


      STANDARD OF REVIEW—LEGAL AND FACTUAL SUFFICIENCY

      In conducting a legal sufficiency review, we must consider the evidence in the

light most favorable to the verdict and indulge every reasonable inference that supports

the verdict. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). Evidence will be

found to be legally sufficient if it would enable reasonable and fair-minded people to

reach the verdict under review. Id. at 827. In conducting a legal sufficiency analysis,

this court must credit favorable evidence if a reasonable fact finder could and disregard
                                           6
contrary evidence unless a reasonable fact finder could not. Id. The fact finder is the

sole judge of the credibility of the witnesses and of the weight to be given to their

testimony. Id. at 819. The reviewing court may not substitute its judgment for that of

the fact finder, so long as the evidence falls within the zone of reasonable

disagreement. Id. at 822. But if the evidence allows only one inference, neither the fact

finder nor the reviewing court may disregard it. Id. A legal sufficiency challenge may

only be sustained when the record discloses (a) a complete absence of evidence of a

vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the

only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is

no more than a mere scintilla of evidence, or (d) the evidence conclusively establishes

the opposite of the vital fact in question. Id. at 810.


       A factual sufficiency challenge requires a reviewing court to consider, examine,

and weigh all the evidence in the record. Maritime Overseas Corp. v. Ellis, 971 S.W.2d

402, 406-07 (Tex. 1998), cert. denied, 525 U.S. 1017, 119 S. Ct. 541, 142 L. Ed. 2d 450

(1998).   In doing so, the court no longer considers the evidence in the light most

favorable to the disputed finding; instead, the court considers and weighs all the

evidence and sets aside that finding only if it is so contrary to the great weight and

preponderance of the evidence as to be clearly wrong and unjust. Id. at 407.


       ANALYSIS

       By his first issue, Brentley maintains the trial court’s division of property was so

unjust and unfair as to constitute an abuse of discretion. By his second issue, he

asserts there was no evidence or insufficient evidence to support Finding of Fact 15 in

which the trial court explained that it was making a disproportionate division of property
                                              7
based on Brentley’s fault in the breakup of the marriage.     Since fault is the only factor

challenged by Brentley in his argument that the trial court erred in dividing the

community estate, we will address his legal and factual sufficiency issue first.


       A divorce may be granted on the basis of adultery. TEX. FAM. CODE ANN. § 6.003

(West 2006).    Adultery can be established by circumstantial evidence, Morrison v.

Morrison, 713 S.W.2d 377, 380 (Tex. App.—Dallas 1986, writ dism’d), but mere

suggestion and innuendo are insufficient. In re Marriage of C.A.S., 405 S.W.3d 373,

383 (Tex. App.—Dallas 2013, no pet.). In that regard, Bobbye testified that in April

2013 Brentley met a woman at the races in Midland and they began a relationship. A

second encounter occurred in Colorado in June 2013.            According to Bobbye, the

relationship was confirmed by texts from the woman and receipts for the Colorado trip.

In response to questioning during the final hearing, Brentley testified he was no longer

seeing the woman and that she was no longer texting him. The parties began marriage

counseling later that summer to repair their relationship.      This evidence sufficiently

supports the trial court’s finding of adultery and the assignment of fault in the breakup of

the marriage. Issue two is overruled.


        As to Brentley’s contention that the trial court’s division of community property

was so unjust and unfair as to constitute an abuse of discretion, we note that it is

impossible to determine with mathematical certainty the extent to which the trial court

favored Bobbye in the overall division of the estate. We can state that the trial court did

award Bobbye a favorable division of Brentley’s retirement—52% to 48%. Given the

trial court’s finding of fault in the breakup of the marriage, as well as various willful

violations of temporary orders, and applying the appropriate standard of review, we
                                             8
conclude that a two percent deviation from an otherwise mathematically equal division

of the community estate does not constitute an abuse of discretion. Accordingly, issue

one is overruled.


      CONCLUSION

      The Final Decree of Divorce is affirmed.




                                                 Patrick A. Pirtle
                                                      Justice




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