Anthony A. Perez v. Angelic Perez ( 2009 )

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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);
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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.
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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
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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.
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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.
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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.
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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
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