                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-012-CV


MARIA ROSA AVALOS                                                 APPELLANT

                                        V.

ABRAHAM AVALOS                                                      APPELLEE

                                    ------------

           FROM THE 231ST DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                         MEMORANDUM OPINION 1


                                    ------------

      Appellant Maria Rosa Avalos appeals from a default divorce decree and

order in suit affecting the parent-child relationship. Because we hold that the

trial court did not abuse its discretion, we affirm the trial court’s judgment.

      The trial court awarded Appellee Abraham Avalos the family residence,

which was the only community asset discussed in any detail at the hearing, and


      1
          … See Tex. R. App. P. 47.4.
sole managing conservatorship of the couple’s three children and ordered that

Maria’s visits with the children be supervised. The trial court denied Maria’s

motions for new trial.

      In her first issue,2 Maria contends that she is entitled to appeal because

she was not properly notified of trial. We note that Maria’s notice of appeal

was timely; we therefore have jurisdiction over her appeal. 3            Maria also

complains that she was not properly notified of the trial setting. Rule 245 of

the civil rules of procedure provides,

             The Court may set contested cases on written request of any
      party, or on the court’s own motion, with reasonable notice of not
      less than forty-five days to the parties of a first setting for trial, or
      by agreement of the parties; provided, however, that when a case
      previously has been set for trial, the Court may reset said contested
      case to a later date on any reasonable notice to the parties or by
      agreement of the parties. . . .

             A request for trial setting constitutes a representation that
      the requesting party reasonably and in good faith expects to be
      ready for trial by the date requested, but no additional
      representation concerning the completion of pretrial proceedings or
      of current readiness for trial shall be required in order to obtain a
      trial setting in a contested case.4



      2
       … Maria presents her issues in the table of contents of her brief in a
different sequence than in her argument. Our opinion adopts the same
numbering system as her argument.
      3
          … See Tex. R. App. P. 26.1(a)(1).
      4
          … Tex. R. Civ. P. 245.

                                         2
Tarrant County Local Rule 3.03(b) provides,

             As soon as practical before the trial date, parties will be
      notified by the Court to report for trial during the trial week and
      parties need not appear until called. However, all parties and their
      attorneys are expected to be available for trial upon short notice
      during the week that the case has been set for trial. Any case not
      reached during the week that it is set for trial will be reset by the
      Court after consultation with the parties.5

Local Rule 4.03(1) provides,

      Final Trial. Cases will be set for final trial upon written request
      using the procedure and form as may be required by the specific
      Court. Each Court’s procedure and setting request form shall be
      obtained from the Court’s coordinator. 6

      The record shows that Maria received a trial setting request dated July

13, 2007, for the week of September 24, 2007, more than forty-five days

before trial. The record also shows that the trial setting request had been on

file with the court since July 16, 2007. The record further shows that on

September 19, 2007, the court coordinator contacted both attorneys to notify

them of the specific date and time for trial to commence—September 25, 2007,

at 9:30 a.m. Maria’s lawyer’s paralegal acknowledged in a telephone call on

September 20, 2007, that the law office had received notice of the trial setting

and would be filing motions. The coordinator notified Maria’s counsel at the



      5
          … Tarrant County Loc. R. 3.03(b).
      6
          … Tarrant County Loc. R. 4.03(1).

                                        3
trial judge’s request that the filing of a motion for social study would not take

the case off the September 25 trial docket.

      A request for a trial setting provides sufficient notice of the trial setting.7

We hold that the notice of trial in this case was proper under rule of civil

procedure 245.8

      To the extent that Maria contends in her “issue of notice reargued” that

she did not receive notice of the hearing on the motion to sign the decree, we

note that she failed to bring this matter to the attention of the trial court in her

amended motion for new trial filed November 28, 2007.            This complaint is

therefore not preserved.9    We overrule Maria’s first issue and her “issue of

notice reargued.”

      In her second issue, Maria contends that there is no evidence to support

the appointment of Abraham as sole managing conservator or the restriction of

her access to the children. Section 153.002 of the family code provides, “The

best interest of the child shall always be the primary consideration of the court



      7
      … See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex.
1978).
      8
          … See Tex. R. Civ. P. 245.
      9
      … See Tex. R. App. P. 33.1; Monroe v. Schlicting, No. 05-98-01341-CV,
2001 WL 301482, at *2 (Tex. App.—Dallas Mar. 29, 2001, pet. denied) (not
designated for publication).

                                         4
in determining the issues of conservatorship and possession of and access to

the child.” 10 Section 153.131(b) provides that “[i]t is a rebuttable presumption

that the appointment of the parents of a child as joint managing conservators

is in the best interest of the child. A finding of a history of family violence

involving the parents of a child removes the presumption under this

subsection.” 11 Section 153.004(b) prohibits a trial court from appointing joint

managing conservators if credible evidence is presented of a history or pattern

of past or present physical abuse by one parent directed against a spouse.12

Section 153.004(c) provides that the trial court must consider the commission

of family violence in determining whether to deny, restrict, or limit the

possession of a child by a parent who is appointed as a possessory

conservator.13     Finally, subsection (e) of the statute provides that “[i]t is a

rebuttable presumption that it is not in the best interest of a child for a parent

to have unsupervised visitation with the child if credible evidence is presented

of a history or pattern of past or present . . . physical . . . abuse by that parent




      10
           … Tex. Fam. Code Ann. § 153.002 (Vernon 2002).
      11
           … Id. § 153.131(b).
      12
           … Id. § 153.004(b).
      13
           … Id. § 153.004(c).

                                         5
directed against . . . a spouse.” 14   One incident of physical violence can

constitute a history of physical abuse.15

      Abraham testified that Maria has a long history of emotional problems.

They started in 1992, when the middle child was two years old. Maria had

anxiety attacks and depression and was hospitalized in Chicago. Four years

later, after she was treated with antidepressants, the family moved to Texas,

and Maria’s health declined.      She fell into a worse depression, began

hallucinating, and committed domestic violence against Abraham. Apparently

in connection with this behavior, she was in Hughley Hospital for ten days and

while there was diagnosed with psychosis. She was also charged and jailed.

It is unclear whether Maria was convicted, but she was ordered to attend anger

management classes.

      In July 2007, while the divorce was pending, Maria was hospitalized

again after breaking into the family home when no one was there. The police

found her taking a shower. She started crying when they arrived. She asked

them to take her to JPS Hospital; they did, and she was released three days




      14
           … Id. § 153.004(e).
      15
       … Alexander v. Rogers, 247 S.W.3d 757, 762–63 (Tex. App.—Dallas
2008, no pet.); In re R.T.H., 175 S.W.3d 519, 521 (Tex. App.—Fort Worth
2005, no pet.).

                                       6
later.




         At trial, Abraham did not know Maria’s current diagnosis. He testified

that she was playing with her medication, not taking it, or taking it randomly;

she was basically self-medicating. He also testified that the last time he saw

Maria in better health was about a year and a half before trial when he believed

she was taking the proper medication. But after that, she started taking half

as much every other day and then completely stopped taking the antipsychotic

medication, and “that’s when things just started rolling down.”

         Additionally, Abraham testified that Maria told CPS that he had hurt their

daughter and that his daughter was not sleeping well. Abraham told the trial

court that CPS determined after a full investigation that his daughter should not

be with Maria without supervision.

         In November 2006, Maria took the couple’s then four-year-old daughter

from school and kept her at a women’s shelter for six weeks. Abraham had no

access to his daughter until he filed for divorce. He also testified that Maria

had recently taken his daughter from the family home, but he found her six

hours later.

         Ten days before trial, Maria tried to have lunch with her daughter at the

daughter’s school, in violation of the temporary orders in place at the time.

                                          7
         Applying the appropriate standard of review,16 we hold that the evidence

is legally sufficient to support the trial court’s naming Abraham as sole

managing conservator and restricting Maria’s access to the children.

         Maria also contends that restricting her access to the children violated

section 153.072 of the family code, which provides that “[t]he court may limit

the rights and duties of a parent appointed as a conservator if the court makes

a written finding that the limitation is in the best interest of the child.” 17 As

Abraham points out, Maria failed to request the finding within ten days after the

hearing.18 In fact, we see no evidence in the record that Maria ever requested

such a finding from the trial court. The trial court therefore did not abuse its

discretion by not making the finding. Accordingly, we overrule Maria’s second

issue.

         In her third issue, Maria contends that the property division was

manifestly unjust. She specifically complains that the trial court awarded the

marital residence and Abraham’s retirement benefits to him.




         16
        … See City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005);
Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),
cert. denied, 526 U.S. 1040 (1999).
         17
              … Tex. Fam. Code Ann. § 153.072 (Vernon 2002).
         18
              … See id. § 153.258.

                                         8
      A trial court is charged with dividing the community estate in a “just and

right” manner, considering the rights of both parties.19           If there is any

reasonable basis for doing so, we must presume that the trial court exercised

its discretion properly.20 We will not disturb the trial court’s division unless the

record demonstrates “that the division was clearly the result of an abuse of

discretion.” 21 That is, we will not reverse the case unless the record clearly

shows that the trial court acted arbitrarily or unreasonably.22 The complaining

party has the burden of proving from the record that the division was so unjust

that the trial court abused its discretion.23 The values of individual items “are

evidentiary to the ultimate issue of whether the trial court divided the properties

in a just and right manner.” 24

      As this court has previously explained,

            In exercising its discretion, the trial court must order an
      equitable, but not necessarily equal, division of the community



      19
       … Id. § 7.001 (Vernon 2006); Todd v. Todd, 173 S.W.3d 126, 128–29
(Tex. App.—Fort Worth 2005, pet. denied).
      20
           … Todd, 173 S.W.3d at 129.
      21
           … Id.
      22
           … Id.
      23
           … Id.
      24
           … Id.

                                         9
      estate. In dividing the estate, the trial court can consider a
      variety of factors . . . .

             Some of the factors the trial court can consider include the
      spouses’ capacities and abilities, benefits which the party not at
      fault would have derived from continuation of the marriage,
      business opportunities, education, relative physical conditions,
      relative financial condition and obligations, size of the separate
      estates, and the nature of the property.

             In addition to the factors set forth in Murff [v. Murff], the trial
      court may also consider fraud on the community, wasting of
      community assets, child custody, and fault in the breakup of the
      marriage. Additionally, although retirement benefits earned during
      marriage are generally community property that is subject to
      division, the trial court, in its discretion, may award such benefits
      to the party who earned them. 25

      Regarding the house, Abraham, a high school math teacher with Fort

Worth Independent School District, testified that there was approximately

$70,000 equity in the home, that based on Maria’s work history, she should be

paying $300 to $350 per month in child support over the next twelve years

(until their youngest child is emancipated), that he wanted to raise the children

in the house, and that because of the difficulty Maria would have paying and

the difficulty he would have collecting child support in the future, he wanted

the house in lieu of child support.




      25
      … Schaban-Maurer v. Maurer-Schaban, 238 S.W.3d 815, 820–21 (Tex.
App.—Fort Worth 2007, no pet.) (citations omitted).

                                         10
      Abraham also asked to be awarded any property he had and asked that

Maria be awarded any property she had. There is no evidence in the record of

the value of any property except the house.       Consequently, given all the

evidence in the record, we cannot say that Maria has met her burden of proving

that the division was so unjust that the trial court abused its discretion.26 We

overrule Maria's third issue.

      Having overruled Maria's three issues, we affirm the trial court's

judgment.

                                           PER CURIAM

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DELIVERED: December 4, 2008




      26
           … Todd, 173 S.W.3d at 128–29.

                                      11
