                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-11-00227-CV


PETER A. OLDENBURG                                                 APPELLANT

                                         V.

LISA G. OLDENBURG                                                   APPELLEE


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          FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

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                         MEMORANDUM OPINION1

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                                   I. Introduction

      In two issues, Appellant Peter A. Oldenburg appeals the trial court’s

property division in this divorce proceeding. We affirm.

                    II. Factual and Procedural Background

      Peter and Appellee Lisa G. Oldenburg were married December 30, 2005.

They ceased to live together as husband and wife in April 2010. Peter petitioned

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       See Tex. R. App. P. 47.4.
for divorce, Lisa counter-petitioned, and both parties agreed that the marriage

was insupportable due to discord or conflict of personalities. Before trial, they

agreed on the division of nearly all of the personal property.    No realty was

involved in the divorce.

      At the hearing finalizing the divorce proceedings, Peter and Lisa both

explicitly agreed that the only issues were the disposition of the 2004 Ford

Ranger pick-up truck and a $3,800 debt on the truck and possession of the

Shih Tzu dog.2

      With regard to the debt secured by the truck, Peter testified that Lisa had

taken out a loan to purchase the truck using $5,000—which she had earned

during the marriage—as collateral from her account at EDS Credit Union. The

truck was in his name, and they had had it for around two and a half years. Peter

subsequently took out a $4,000 loan in his name, using the truck as collateral.

He said that he gave the $4,000 to Lisa so that she could pay off the truck loan

and close out her savings account.



      2
        Peter’s attorney stated, after the parties recited the agreed property
division into the record, and before any evidence was heard, ―Oh, there’s a 1986
Harley-Davidson motorcycle that [Peter] is going to have.‖ During Peter’s direct
examination, he gave the following testimony:

      Q. Okay. The first issue would be the 2004 Ford Ranger pickup.
      Okay? Now, you’ve agreed that your wife may have that, and you
      got the Harley; is that correct?

      A. Yes.


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      During cross-examination, however, Peter testified that he used around

$1,200 of the loan proceeds to make a house payment and then gave what

remained to Lisa. He agreed that the check Lisa used to pay for the truck was

for $5,000 from an EDS Credit Union account. Peter also testified that his father

had given him the money to purchase the motorcycle, that it was worth around

$6,500, and that he had never had a note on it.

      Lisa testified that she was unaware at the time that Peter had taken out the

$4,000 loan using the truck as collateral and that she did not receive any of the

loan proceeds. She said that Peter later told her that some of the loan proceeds

went to his father because he had given Peter some money to pay off an old debt

to raise his credit score so that Peter could get a loan at the bank.

      With respect to the dog, Peter testified that he had been the dog’s primary

caregiver and that he took the dog to work with him every day, but he also

testified that Lisa had found the dog on the SPCA website, purchased it, and

picked it up four years before the trial. On cross-examination, he admitted that

he may have written letters to Lisa saying that he would never take the dog away

from her.

      Lisa testified that she found the dog at the SPCA in 2006, that she adopted

it, and that it had been her constant companion ever since, riding in the car with

her and sleeping in her bed. She said that she walked and fed the dog and took

it to the vet and groomer, that the dog was like her child, and that she provided

everything that happened with the dog concerning its care, maintenance, and


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upkeep. She admitted during cross-examination that she did not know who had

taken care of the dog while she was confined in county jail for forty days for

assault.

      The trial court awarded the dog and truck to Lisa and made Peter

responsible for the note on the truck. This appeal followed.

                              III. Property Division

      In two issues, Peter complains that the trial court mischaracterized the

motorcycle as community property and abused its discretion when it failed to

divide the community assets and liabilities in a fair and equitable manner.

A. Standard of Review

      In a divorce proceeding, the 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); Neyland v. Raymond, 324

S.W.3d 646, 649 (Tex. App.—Fort Worth 2010, no pet.). Trial courts are afforded

wide discretion in dividing marital property upon divorce; therefore, a trial court’s

property division may not be disturbed on appeal unless the complaining party

demonstrates from evidence in the record that the division was so unjust and

unfair as to constitute an abuse of discretion. Neyland, 324 S.W.3d at 649 (citing

Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex. 1985)); see also Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985) (stating that,

to determine whether a trial court abused its discretion, we must decide whether

the trial court acted without reference to any guiding rules or principles; in other


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words, whether the act was arbitrary or unreasonable), cert. denied, 476 U.S.

1159 (1986).

B. Property Division

       In his first issue, Peter complains that ―[t]he award of the Harley Davidson

motorcycle as an item of community property is against the great weight and

preponderance of the evidence. Although the award is to Peter, all evidence is

that the purchase money for the motorcycle was from Peter’s father.‖ Peter’s

position is that only by wrongly characterizing the motorcycle as community

property could the trial court award the truck and dog to Lisa.

       In his second issue, Peter argues that ―[t]he Trial Court abused its

discretion when it failed to divide the community assets and liabilities in a fair and

equitable manner, based upon the facts and circumstances presented as

evidence in this case.‖ Specifically, he complains that he should not have been

awarded the $3,800 note. Because Peter’s second issue is dispositive, we will

address it first.

       The trial court decided only the ownership of the dog and the note on the

truck, stating in its ruling, ―there being an agreement that the truck goes to [Lisa].‖

There was conflicting testimony as to who took care of the dog, but it was

undisputed that Lisa selected the dog, adopted it, brought it home, and had at

least a part in its care. Based on this evidence, the trial court did not abuse its

discretion when it awarded the dog to Lisa.




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      With regard to the note secured by the truck, Peter testified that the truck

was purchased in his name with funds secured by Lisa’s savings account and

that he subsequently took out a loan against the truck in his name. He stated

both that he gave all of the proceeds to Lisa and that he applied part of the

proceeds to the mortgage and then gave the balance to Lisa. Lisa testified that

she never received any of the loan proceeds from Peter, that she did not know

about the loan when it occurred, and that she later learned of the loan and that

part of its proceeds were given to Peter’s father.

      The trial court could have reasonably concluded from the evidence that the

truck was purchased for $5,000 with community funds by Lisa, with each party

owning half of the truck. The truck’s depreciated value at the time of trial is not in

the record. The $4,000 loan proceeds were also owned equally by each party,

but if the trial court chose to believe Lisa, she did not receive any of the proceeds

from the $4,000 loan. At the time of the divorce, the note balance was $3,800.

The trial court awarded the $3,800 note to Peter—the individual who took the

note out in his name—while awarding the used truck of unknown value to Lisa.

      Under these circumstances, we cannot say that the trial court abused its

discretion by awarding to Lisa the truck of unknown value and the note to Peter

for the loan he took out in his name. And because the trial court did not abuse its

discretion with regard to the disposition of the dog, truck, and note, the trial

court’s characterization of the motorcycle as community or separate property is

of no moment. See Boyd v. Boyd, 131 S.W.3d 605, 610 (Tex. App.—Fort Worth


                                          6
2004, no pet.) (―[W]e will reverse the cause only if the record demonstrates that

the trial court clearly abused its discretion, and the error materially affected the

just and right division of the community estate.‖). We overrule both of Peter’s

issues.

                                 IV. Conclusion

      Having overruled both of Peter’s issues, we affirm the trial court’s

judgment.


                                                   BOB MCCOY
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; MCCOY and GABRIEL, JJ.

DELIVERED: March 15, 2012




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