                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                                ________________

                               NO. 09-12-00536-CV
                                ________________

                    ROBIN LUPOLE ANASTASI, Appellant

                                         VS.

                JEFFREY SCOTT ANASTASI, Appellee
 _________________________________________________________________

                On Appeal from the 418th District Court
                      Montgomery County, Texas
                    Trial Cause No. 11-07-07763 CV
__________________________________________________________________

                            MEMORANDUM OPINION

      Appellant Robin Lupole Anastasi (“Robin”) appeals from the trial court’s

judgment after a bench trial on the petition for divorce filed by appellee Jeffrey

Scott Anastasi (“Jeff”). In its judgment, the trial court granted a divorce to Jeff on

the ground of insupportability, appointed Robin and Jeff joint managing

conservators of the minor children D.E.A. and C.J.A., and gave Jeff the exclusive

right to designate the children’s primary residence. In three issues, Robin

challenges the trial court’s property division, decision to give Jeff the right to

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designate the children’s primary residence, and award of primary custody of the

younger child C.J.A. to Jeff. We affirm the trial court’s judgment.

                                      ISSUE ONE

      In issue one, Robin argues that the property division the trial court ordered

was so disproportionate in favor of Jeff as to constitute an abuse of discretion.

According to Robin, the trial court attempted to divide the property equally

between the parties but failed to do so because it awarded the marital residence to

Jeff. Robin contends the trial court attempted to balance that award by awarding

most of the retirement funds to Robin, but the vested retirement funds had been

drained and the largest remaining retirement fund is “not vested[.]” Robin argues

that based upon the factors enumerated in Finch v. Finch, 825 S.W.2d 218 (Tex.

App.—Houston [1st Dist.] 1992, no writ), the trial court erred by awarding Jeff

“the lion’s share of this marital estate.”

      In its final decree of divorce, the trial court awarded Jeff (1) the marital

residence in Conroe, Texas; (2) all household furniture, furnishings, fixtures,

goods, art objects, collectibles, appliances, and equipment in his possession or

subject to his sole control; (3) all clothing, jewelry, and other personal effects in

his possession or subject to his sole control; (4) fifty percent of all funds on deposit

in four Chase Bank accounts; (5) one hundred percent of another Chase Bank

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account; (6) all remaining sums in his retirement benefits in the TIAA-CREF

account arising from Jeff’s employment with Sam Houston State University that

were not awarded to Robin; (7) all policies insuring Jeff’s life; (8) the 2004 Mazda

3 motor vehicle; and (9) fifty percent of the frequent flyer miles. The trial court

awarded Robin (1) all household furniture, furnishings, fixtures, goods, art objects,

collectibles, appliances, and equipment in her possession or subject to her sole

control; (2) all clothing, jewelry, and other personal effects in her possession or

subject to her sole control; (3) fifty percent of all funds on deposit in four Chase

Bank accounts; (4) one hundred percent of the funds in a Woodforest account and

six Oppenheimer Fund accounts; (5) all policies insuring Robin’s life; (6) one

hundred percent of Jeff’s retirement benefits arising from his employment with

Arizona State University; (7) one hundred percent of Jeff’s retirement benefits

from his employment with Frances Marion University; (8) seventy-five percent of

the retirement benefits in the TIAA-CREF retirement accounts arising from Jeff’s

employment with Sam Houston State University; (9) the 2003 Buick Rendezvous

motor vehicle; and (10) fifty percent of the frequent flyer miles.

      With respect to the parties’ debts, the trial court ordered Jeff to pay the

balance due on the promissory note executed on the marital residence; the balance

on the Capital One and one of two Chase credit cards; fifty percent of the balance

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due on the JC Penney credit card; all debts and other obligations incurred solely by

Jeff after July 14, 2011, unless the decree expressly provides otherwise; all

encumbrances, ad valorem taxes, liens, assessments, or other charges on the real

and personal property awarded to Jeff unless the decree expressly provides

otherwise; and the balance owed to Jeff’s attorney for reasonable and necessary

attorney’s fees. The trial court ordered Robin to pay the balance due and owing on

the US Bank credit card, Kohl’s credit card, and the remaining Chase credit card;

fifty percent of the balance due on the JC Penney credit card; the balance due and

owing to Robin’s uncle; all debts and other obligations incurred solely by Robin

after July 14, 2011, unless the decree expressly provides otherwise; all

encumbrances, ad valorem taxes, liens, assessments, or other charges due or to

become due on the real and personal property awarded to Robin; and the balance

owed to Robin’s attorney for reasonable and necessary attorney’s fees.

      The Family Code provides that a trial court “shall 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 . . . .” Tex. Fam. Code Ann. § 7.001 (West

2006). A trial court has wide latitude in dividing the estate of the parties, and may

consider many factors in making a just and right division of the property. Murff v.

Murff, 615 S.W.2d 696, 698-99 (Tex. 1981). In exercising its discretion, the trial

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court may consider the spouses’ capacities and abilities; benefits the party not at

fault would have derived from continuation of the marriage; business

opportunities; education; the parties’ physical conditions; the parties’ financial

conditions and obligations; the size of the separate estates; the nature of the

property; disparities in earning capacities and incomes; and fault in the breakup of

the marriage. Finch, 825 S.W.2d at 222. Therefore, absent an abuse of discretion,

we will not disturb the trial court’s division of property on appeal. Murff, 615

S.W.2d at 698; Ohendalski v. Ohendalsi, 203 S.W.3d 910, 914 (Tex. App.—

Beaumont 2006, no pet.). If the trial court’s decision is supported by substantive

and probative evidence, the trial court does not abuse its discretion by ordering an

unequal division of the marital estate. Ohendalski, 203 S.W.3d at 914.

      In its findings of fact and conclusions of law, the trial court concluded that

“[t]he division of the estate of the parties as ordered in the Final Decree of Divorce

. . . is just and right having due regard for the rights of each party and the children

of the marriage.” The trial court also found that Robin “has the ability to earn

sufficient income to provide for her minimum reasonable needs.” The trial court

did not indicate in its findings and conclusions that it intended to divide the marital

estate disproportionately. In fact, when announcing his ruling after trial, the trial

judge stated that he intended to effect an equal division of the marital estate. Robin

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essentially argues that the TIAA-CREF retirement fund from Jeff’s employment at

Sam Houston State University is not vested and the plan administrator refuses to

divide or distribute it until it is vested. However, the record does not support

Robin’s contention, and she provides no record citation for this argument.

      In addition, the record reflects that when the trial court announced its ruling,

it initially decided to split the Sam Houston State University retirement equally

between the parties, but decided to instead award 75% of that account to Robin

after apparently taking into account Jeff’s withdrawals from it to pay his attorney’s

fees. The record does not support Robin’s argument that the trial court divided the

marital estate disproportionately in favor of Jeff. Robin also does not challenge the

trial court’s findings of fact. We conclude that the trial court’s property division

was supported by sufficient evidence, and the trial court therefore did not abuse its

discretion in dividing the marital estate between the parties. See Ohendalski, 203

S.W.3d at 914. Accordingly, we overrule issue one.

                           ISSUES TWO AND THREE

      In issue two, Robin argues that the trial court abused its discretion by giving

Jeff the right to designate the children’s primary residence “when the great weight

and preponderance of the evidence showed the best interests of the children would

be served by granting custody to the mother.” In issue three, Robin contends that

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the trial court abused its discretion by awarding “primary custody” of the younger

child C.J.A. to Jeff “when the great weight and preponderance of the evidence

showed the best interest of this child would be served by granting custody to the

mother.” We address issues two and three together.

      At Robin’s request, the trial court signed findings of fact and conclusions of

law. See Tex. Fam. Code Ann. § 6.711 (West 2006). In its findings of fact, the trial

court determined that Jeff would best provide for the children’s physical,

psychological, and emotional needs and development, now and in the future; Robin

poses an emotional danger to the children; Jeff can provide a more stable home for

the children, has better future plans for the children, and has “the better ability to

give the children first priority and to reach shared decisions in the children’s best

interests[;]” Jeff was the children’s primary caregiver prior to the suit and has

better parenting skills; no clear and compelling reasons exist to separate the

children; Robin’s sexual conduct “affected her fitness to act as a parent as one of

the children was exposed to such conduct on more than one occasion[;]” and

naming Jeff as the conservator having the exclusive right to designate the

children’s primary residence is in the children’s best interest. Robin does not

challenge any of the trial court’s findings of fact on appeal. In addition, Robin did



                                          7
not request that the trial court enter any additional findings of fact or conclusions

of law.

      Robin argues in her brief that the testimony at the temporary orders hearing

was based upon the “uncredentialed recommendations” of counselor Theresa

Burbank to the trial court in chambers during the temporary orders hearing, and

Robin had “a steep hill to climb to ever change the court’s mind on these issues at

final trial.” Robin also contends that the evidence supported the conclusion that she

is the parent most able to foster a positive relationship between the children and the

other parent. In addition, Robin asserts that the older child D.E.A. had an

advantage because D.E.A. had the right to express her wishes to the court, but

C.J.A. did not necessarily have that right and was “caught up” in the trial court’s

decision to award custody of D.E.A. to Jeff.

      The record reveals that near the beginning of the trial, when the trial judge

asked whether either of the parties objected to the trial court considering all of the

evidence from the temporary orders hearing, counsel for both parties stated that

they had no objection. Therefore, Robin may not now complain of the trial court’s

consideration at the final hearing of the evidence adduced at the temporary orders

hearing. See Tex. R. App. P. 33.1(a).



                                          8
      Findings of fact are binding on the appellate court unless they are challenged

by an issue on appeal. City of Beaumont v. Spivey, 1 S.W.3d 385, 392 (Tex.

App.—Beaumont 1999, pet. denied) (citing Brown v. State Bar of Tex., 960

S.W.2d 671, 674 (Tex. App.—El Paso 1997, no writ)). As previously discussed,

Robin has not challenged any of the trial court’s fact findings on appeal.

      The best interest of the child is always the primary consideration in

determining issues of conservatorship, possession of and access to the child, and

child support. Tex. Fam. Code Ann. § 153.002 (West 2008); In re J.A.H., 311

S.W.3d 536, 541 (Tex. App.—El Paso 2009, no pet.). In determining the best

interest of the child, we consider the public policies outlined in the Texas Family

Code. Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex. 2002). Section 153.001 of the Family

Code states that the public policy of Texas is to (1) assure that children will have

frequent and continuing contact with parents who have shown the ability to act in

the best interest of the child, (2) provide a safe, stable, and nonviolent environment

for the child, and (3) encourage parents to share in the rights and duties of raising

their child after the parents have separated or dissolved their marriage. Tex Fam.

Code Ann. § 153.001(a)(l)-(3) (West 2008). Furthermore, the Family Code

provides that it is preferable for all children of a marriage to be together during

periods of possession. Id. § 153.251(c) (West 2008). With respect to determining

                                          9
the best interests of the children, the Supreme Court has set forth a non-exhaustive

list of several factors that courts may consider: (1) the desires of the children; (2)

the emotional and physical needs of the children now and in the future; (3) the

emotional and physical danger to the children now and in the future; (4) the

parental abilities of the individuals seeking custody; (5) the programs available to

assist those individuals to promote the best interest of the children; (6) the plans for

the children by these individuals or by the agency seeking custody; (7) the stability

of the home or proposed placement; (8) the acts or omissions of the parent which

may indicate the existing parent-child relationship is not proper; and (9) any

excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367,

372 (Tex. 1976).

      The trial court heard evidence that (1) Jeff has a more consistent, structured

parenting strategy; (2) D.E.A. was exposed to Robin’s sexual conduct because

D.E.A. had seen on Robin’s cell phone a nude photograph of Robin and a

photograph of a man’s sexual organ; (3) Jeff has a close relationship with both

D.E.A. and C.J.A.; (4) Jeff altered his work schedule to enable him to transport the

children to and from school; (5) Jeff believes it is important for parents to share

important information; and (6) Jeff was the children’s primary caregiver before the

divorce was filed. The trial court also heard Robin testify that (1) Jeff’s behavior

                                          10
with D.E.A. was “inappropriate[;]” (2) C.J.A. had “unexplained marks” on his

body; (3) Robin was the children’s primary caregiver before the divorce, and

D.E.A. was incorrect when she told the counselor otherwise; (4) Jeff had called

Robin profane names in front of C.J.A.; (5) Robin planned to raise the children “in

a nurturing, loving home, to . . . allow them to have the best education that’s

possible . . ., by exposing them to many different cultural things, . . . raising them

in a household of religion, allowing them to make their own decisions on what they

want to believe in. Allowing them to continue to have a sense of giving back to the

community by volunteering . . .[;]” and (6) Robin “can provide them with structure

and routine which they thrive on.” The trial court also heard evidence from court-

appointed licensed counselor Theresa Burbank, who testified concerning her

observations of the family’s relationships and dynamics during treatment of the

children, Jeff, and Robin.

      As the finder of fact, the trial court was the exclusive judge of the credibility

of the witnesses and the weight to be given to their testimony. Shear Cuts, Inc. v.

Littlejohn, 141 S.W.3d 264, 270-71 (Tex. App.—Fort Worth 2004, no pet.). Robin

has not shown that the great weight and preponderance of the evidence indicated

that the children’s best interests would be served by Robin having the exclusive

right to determine their residence, or by separating the children and awarding

                                         11
custody of D.E.A. to Jeff and custody of C.J.A. to Robin. See generally Tex. Fam.

Code Ann. § 153.251(c). We overrule issues two and three and affirm the trial

court’s judgment.

      AFFIRMED.

                                            ______________________________
                                                   STEVE McKEITHEN
                                                      Chief Justice


Submitted on November 26, 2013
Opinion Delivered December 12, 2013

Before McKeithen, C.J., Kreger and Horton, JJ.




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