i          i        i                                                                   i      i      i




                                   MEMORANDUM OPINION

                                          No. 04-08-00338-CV

                                          Anthony A. PEREZ,
                                               Appellant

                                                     v.

                                              Angelic PEREZ,
                                                 Appellee

                        From the 73rd Judicial District Court, Bexar County, Texas
                                     Trial Court No. 2007-CI-04209
                                Honorable Karen Pozza, Judge Presiding

Opinion by:       Steven C. Hilbig, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: April 22, 2009

AFFIRMED

           This is an appeal from a final decree of divorce. In a single point of error, Anthony A. Perez

contends the trial court abused its discretion in awarding Angelic Perez a disproportionate share of

the marital estate and that there was insufficient evidence to support the award. We affirm the trial

court’s judgment.
                                                                                        04-08-00338-CV

                                           BACKGROUND

       Angelic filed a petition for divorce on the grounds of insupportability and cruelty. See TEX .

FAM . CODE ANN . §§ 6.001-.002 (Vernon 2006). Anthony answered and filed a counter-petition for

divorce, alleging insupportability. Id. § 6.001. Angelic later amended her petition and requested a

disproportionate share of the marital estate based on (1) fault, (2) conservatorship of the children,

(3) children’s needs, (4) indebtedness and liabilities, and (5) wasting of community assets. Anthony

countered by amending his petition to add cruelty and adultery as grounds for divorce. After a final

hearing, the trial court granted the divorce and rendered orders on conservatorship, child support and

possession, and the division of the martial estate. The trial court signed the final decree of divorce,

which awarded Angelic a disproportionate share of the martial estate. In its findings of fact and

conclusions of law, the trial court found Anthony was “guilty of cruel treatment toward” Angelic,

and concluded the divorce should be granted in favor of Angelic on the ground of cruelty.

                          STANDARD OF REVIEW AND APPLICABLE LAW

       The trial court has broad discretion to divide the martial estate in a manner the court deems

“just and right.” Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996); Gardner v. Gardner, 229 S.W.3d

747, 756 (Tex. App.–San Antonio 2007, no pet.); see TEX . FAM . CODE ANN . § 7.01 (Vernon 2006).

Absent a clear abuse of discretion, which occurs when the complaining party demonstrates from the

evidence that the division is so disproportionate that it is manifestly unjust and unfair, we will not

disturb the trial court’s apportionment. Gardner, 229 S.W.3d at 756; Prague v. Prague, 190 S.W.3d

31, 41 (Tex. App.–Dallas 2005, pet. denied). In exercising its discretion in dividing the estate, the

trial court is not required to divide the marital estate equally, but may order an unequal division when

a reasonable basis exists for doing so. Murff v. Murff, 615 S.W.2d 696, 698-99 (Tex. 1981);



                                                  -2-
                                                                                       04-08-00338-CV

Gardner, 229 S.W.3d at 756; Prague, 190 S.W.3d at 41. In making its decision, the court may

consider disparity of incomes or earning capacities, 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,

disparity of ages, size of separate estates, and the nature of the property. Murff, 615 S.W.2d at 699.

The court may also consider fault and the conduct of the errant spouse when fault grounds are pled,

as well as the wasting of community assets. Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex.

1998); Murff, 615 S.W.2d at 698 (citing Young v. Young, 609 S.W.2d 758, 761-62 (Tex. 1980)).

Grounds for a fault-based divorce include cruelty, as pled by Angelic in this case and found by the

trial court. See TEX . FAM . CODE ANN . § 6.002 (Vernon 2006). The circumstances of each marriage

dictate what factors should be considered in division of the marital estate. Young, 609 S.W.2d at

761.

       There is no abuse of discretion if the trial court’s decision is based on conflicting evidence.

In re Barber, 982 S.W.2d 364, 366 (Tex. 1998) (orig. proceeding). We will consider “every

reasonable presumption in favor of the proper exercise of discretion by the trial court in dividing the

community estate.” McSweeney v. McSweeney, No. 04-06-00461-CV, 2007 WL 247677, at *2 (Tex.

App.–San Antonio Jan. 31, 2007, no pet.)(citing Murff, 615 S.W.2d at 699; Prague, 190 S.W.3d at

41).

       In family law cases the abuse of discretion standard overlaps with the traditional sufficiency

standards of review. Garza v. Garza, 217 S.W.3d 538, 549 (Tex. App.–San Antonio 2006, no pet.).

Id. Legal and factual sufficiency are therefore not independent grounds of error; rather, they

constitute factors relevant to an assessment of whether the trial court abused its discretion. Id.



                                                  -3-
                                                                                         04-08-00338-CV

Accordingly, in considering whether the trial court clearly abused its discretion, we must review

whether (1) the trial court had sufficient evidence upon which to exercise its discretion, and (2) the

trial court erred in its application of its discretion. Id.

                                              DISCUSSION

        Anthony contends the trial court erred in disproportionately dividing the marital estate in

favor of Angelic because there was legally and factually insufficient evidence to support such a

division. In its division of the marital estate, the trial court awarded Anthony (1) fifty percent of the

net proceeds from the sale of real property in Spring Branch, Texas, valued at $4,860.00, (2) all cash,

furniture, furnishings, fixtures, goods, art objects, collectibles, appliances, and equipment in his

possession or subject to his sole control, value unknown, (3) all of his retirement monies, value

unknown, (4) $10,000.00 from Angelic’s retirement account, (5) a 2006 Chevrolet truck, value

unknown, and (6) a cell phone, value unknown. Angelic received (1) the other half of the net

proceeds from the sale of the Spring Branch property, (2) the cash, furniture, furnishings, fixtures,

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

control, value unknown, (3) her retirement account, valued at $27,140.33, less the $10,000.00

awarded to Anthony, (4) the marital home with equity valued at $20,186.89, and (5) a 2005 Pontiac

Grand Prix, value unknown. The parties were ordered to pay any debts they incurred after August

2006, and Angelic was required to assume the debt on the marital home, $105,813.11, as well as the

remaining debt of the 2005 Pontiac Grand Prix, the amount of which was not disclosed.

        To evaluate the trial court’s “just and fair” division, the analysis typically begins with the

values of the various marital assets. Redeaux v. Redeaux, No. 09-06-084-CV, 2007 WL 274728, at

*4 (Tex. App.–Beaumont Feb. 1, 2007, pet. denied) (mem. op.). Here, however, the record does not



                                                    -4-
                                                                                                       04-08-00338-CV

include the value of Anthony’s retirement benefits, the actual value of numerous items of personal

property from the home sold by Anthony1, the value of the parties’ vehicles, or the value of certain

equipment and tools used by Anthony in his former business operation. Nor is there any evidence

in the record about the parties’ indebtedness, though Angelic testified they both owed money on their

individual credit cards. Absent these valuations, Anthony cannot demonstrate from the record that

the trial court erred in its division of the marital estate. See McSweeney, 2007 WL 247677, at *2

(holding party who complains of trial court’s division must demonstrate from evidence in record that

division was so unjust as to be abuse of discretion); Prague, 190 S.W.3d 41 (same). Without such

evidence we cannot say the division of the marital estate was disproportionate, much less an abuse

of discretion. See Redeaux, 2007 WL 274728, at *4.

         However, assuming the division was disproportionate and favored Angelic, we still cannot

hold the trial court abused its discretion. Other than the police detective handling the protective

order obtained by Angelic, only the parties testified. Angelic testified to physical abuse during the

marriage, witnessed by her children, and stated she believed Anthony had an affair. She denied

having an affair.

         Angelic testified that after she left the marital home, Anthony failed to make the mortgage

payments or the utility payments. He eventually had the utilities turned off. Once Angelic returned

to the home under the court’s temporary orders, she learned the mortgagor was about to foreclose

on the home. She called the mortgagor and set up a payment plan, but was forced to take a second

job to make up payments of approximately $7,000.00. She also had to pay $300-$400 dollars in past


         1
          … Anthony testified that after Angelic left the home, he sold almost everything therein to three or four people
for $3,000.00. The items sold included: a dining room set, a sofa, love seats, a wing chair, a buffet, a big-screen
television, a compact disc player and stereo, a china cabinet, all the china and crystal, dishes, lamps, a large urn, a
refrigerator, and a washer and dryer set.

                                                           -5-
                                                                                     04-08-00338-CV

due utility bills and have the utility services resumed. When she arrived back home she found

Anthony had taken most of the furniture and personal effects from the home. Angelic and her

children were forced to sleep on air mattresses and use a portable dining table until friends and

family members came to their aid. Angelic testified Anthony took the refrigerator and washer and

dryer, but left her a message saying he would return them if she would talk to him on the telephone.

During her testimony Angelic intimated that the alleged $3,000.00 Anthony received from the sale

of the personal property in the home was far less than its actual value.

       Angelic also testified that when she first returned to the home she found family pictures on

a patio chair in a closet along with two burning candles, a Bible, and paperwork concerning the

divorce – the Bible and paperwork had “a bunch of blood” on them.

       Angelic obtained a protective order because of Anthony’s actions. According to Angelic,

Anthony harassed her while she was staying with an aunt. When she refused to speak with him on

the telephone, “he grabbed a quart of beer and threw it at [her] windshield and broke it.” Angelic

testified Anthony would drive by her aunt’s house up to ten times a day and eventually ran over the

mailbox post. After she obtained the protective order and returned to the marital home, Anthony did

not stop his behavior. According to Angelic, Anthony “tormented the kids at night, every night,

. . . he’d start banging on the burglar bars” and rang the doorbell in the middle of the night on

numerous occasions. She claimed Anthony damaged windows in the home. Angelic testified she

called the police approximately fifteen times to report violations of the protective order. Anthony

was ultimately arrested for violating the order, but after he was released on bond, he called and

threatened Angelic, which prompted a second arrest and the implementation of GPS monitoring.




                                                 -6-
                                                                                      04-08-00338-CV

       Angelic testified she earned $26,000.00 a year working as a crime victim liaison in the

homicide unit of the San Antonio Police Department. She testified to the value of her retirement

account with the city, the value of real property owned by the parties, and the value of and money

owed on the marital home. Angelic was unable to provide testimony on the value of Anthony’s

retirement account or provide specific testimony on his salary over the years because he took all

financial paperwork from the home. Angelic stated, however, Anthony operated a business

refurbishing mobile homes from which she knows he has earned from $70,000.00 up to $350,000.00

a year. She also testified that Anthony has life insurance policies valued at $500,000.00 or more.

       Anthony testified his business had been losing money and that after he was forced from the

marital home under the temporary orders, the business folded. He claimed he was unable to work

after he left the marital home until just a week before the final hearing. Anthony found work as a

paver, laying asphalt for $12.00 an hour, but admitted to working some overtime. He provided no

testimony about his previous earnings. He testified Angelic lied to him about her salary, telling him

she only made $22,000.00 a year – he surmised she was hiding the rest of her salary so she could

leave him.

       Anthony admitted selling all of the personal property in the house, but claimed Angelic

agreed he could sell whatever he needed to in order to pay the mortgage. He stated he gave half of

the money from the sale to Angelic for house payments, but could not remember when he sold it or

when he gave Angelic the money. He acknowledged cancelling the utilities to the home, but claimed

he did it approximately a week before he received the temporary orders that ordered him not to shut

them off.




                                                 -7-
                                                                                       04-08-00338-CV

       Anthony testified the marital home was worth more than the appraised value testified to by

Angelic. He stated he made upgrades to the home valued at between $15,000.00 and $20,000.00,

including new flooring, paint, and a large storage shed in the backyard.

       He admitted to having personal property, tools, and equipment in the storage shed, but

provided no testimony of their value. He testified that equipment, used in his business, including

a compressor and large generator, had an approximate value of $15,000.00. Anthony claimed,

however, he no longer possessed this equipment because the trailer in which it was stored was stolen.

       As the sole judge of witness credibility and having had the opportunity to observe the parties

on the witness stand, the trial court was free to believe Angelic and her testimony regarding the

property value, as well as her testimony about Anthony’s actions during the marriage and during the

divorce proceedings. See Murff, 615 S.W.2d at 700 (noting trial court in divorce case has

opportunity to observe parties on stand and determine credibility); see also City of Keller v. Wilson,

168 S.W.3d 802, 819 (Tex. 2005) (holding reviewing court cannot impose own opinions on

credibility of witnesses and weight to be given their testimony contrary to those of fact finder).

Considering the factors applicable in this case to an unequal division of property, including the

disparity in their earning capacities, their abilities, the wasting by Anthony of community assets, and

the cruelty of Anthony toward Angelic, we hold there is sufficient evidence to support an unequal

division of the community estate.

                                            CONCLUSION

       We hold Anthony has not established from the evidence in the record that the trial court

abused its discretion. Accordingly, we overrule Anthony’s issue and affirm the trial court’s

judgment.

                                                        Steven C. Hilbig, Justice

                                                  -8-
