Isaac R. Gonzales v. Rosa G. Gonzales ( 2000 )

99-00624 Gonzales v Gonzales.wpd No. 04-99-00624-CV Isaac GONZALES, Appellant v. Rosa G. GONZALES, Appellee From the 225th Judicial District Court, Bexar County, Texas Trial Court No. 99-CI-04186 Honorable James F. Clawson, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Phil Hardberger, Chief Justice

Alma L. López, Justice

Paul W. Green, Justice

Delivered and Filed: October 25, 2000

AFFIRMED

This is a restricted appeal. Appellant, Isaac Gonzales, appeals from a default judgment taken against him in a divorce suit filed by his wife, Rosa Gonzales. Isaac was served with process but failed to answer the suit. In one issue, Isaac complains the trial court abused its discretion by ordering an unequal division of the parties' community property.

The Texas Family Code mandates "in a decree of divorce or annulment, the 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 and any children of the marriage." See Tex. Fam. Code Ann. § 7.001 (Vernon 1997 & Supp. 2000). The trial court has wide discretion in dividing the estate and may consider such factors as: the spouses' capacities and abilities; benefits which the party not at fault would have derived from a continuation of the marriage; business opportunities; education; relative physical conditions; relative financial condition and obligations; disparity of ages; size of separate estates; disparities in earning capacity and income; the nature of the property. See Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981). The trial court may consider the relative fault of the parties in causing the breakup of the marriage when it divides the community property. See id at 698; Morrison v. Morrison, 713 S.W.2d 377, 379 (Tex. App.-Dallas 1986, writ dismissed). We may only reverse the decree of the trial court if we find the division of property was an abuse of discretion. See Murff v. Murff, 615 S.W.2d at 700. Under this standard, the legal and factual sufficiency of the evidence are not independent grounds of error, but are merely relevant factors in assessing whether the trial court abused its discretion. See Zieba v. Martin, 928 S.W.2d 782, 786 (Tex. App.-Houston [14th Dist.] 1996, no writ). An unequal division of property should not be reversed for an abuse of discretion if the trial court could have considered some of the factors listed in Murff v. Murff. See Finch v. Finch, 825 S.W.2d 218, 222 (Tex. App.-Houston [1st Dist.] 1992, no writ)

Review by a restricted appeal affords an appellant virtually the same scope of review as an ordinary appeal. See Rajan v. Shepard-Knapp, 965 S.W.2d 47, 49 (Tex. App.-Houston [1st Dist.] 1998, pet. denied). However, in a restricted appeal, the error must appear on the face of the record. See Attorney General of Texas v. Orr, 989 S.W.2d 464, 468 (Tex. App.-Austin 1999, no pet.). Further, the usual presumption of validity of the judgment does not apply. See Tex. Fam. Code Ann. § 6.701 (Vernon 1998). In a divorce case, the petition is not taken as confessed for want of an answer. See Considine v. Considine, 726 S.W.2d 253, 254 (Tex. App.-Austin 1987, no writ) (citing Tex. Fam. Code Ann. § 3.53). The petitioner must put proof on the record to support the allegations in the petition. See id.

At the trial before the court on the default judgment, Rosa testified Isaac had committed adultery and had been cruel to her throughout their marriage. A protective order signed a few months before the divorce petition was filed was still in effect and presented to the trial court.

The trial court awarded Rosa the following as her sole and separate property: the homestead she and Isaac occupied together; all of the furnishings, furniture, and appliances in the house located on the homestead; her clothing, jewelry, and personal effects; all cash in her possession or subject to her sole control; any debts incurred by the community after February 2, 1996; one half of the community's undivided one-half interest in 20 acres of land in Uvalde County.

The trial court awarded Isaac all of the following as his sole and separate property: all of the clothing, jewelry, and personal effects in his possession or subject to his sole control; all of the community's approximately $9000 in credit card debt; any debts incurred solely by Isaac after February 2, 1996; and one half of the community's undivided one-half interest in 20 acres of land in Uvalde County. There is testimony in the record from Rosa that the community owned a boat, a trailer, three automobiles, and a backhoe. Further, Rosa testified she wanted Isaac to have these items, and the court agreed to that disposition on the record before it announced its judgment. These items are not specified in the final decree but may have been awarded as part of the personal items in Isaac's possession and control.

Rosa testified her income was $279 a month. The court had evidence before it that Isaac had committed adultery and had been cruel to his wife throughout their 48 years of marriage. Given the existence of the protective order clearly designed to prevent harassment and domestic violence, the court could easily infer that the cruelty contributed to the dissolution of the marriage.

In light of Rosa's paltry income, and the uncontroverted evidence of adultery and cruel treatment, we hold it was not an abuse of discretion to award her an unequal division of the community property. In addition, there was no abuse of discretion in failing to order the sale of the interest in the Uvalde property. Isaac Gonzales is not harmed in any way by being made a cotenant with his ex-wife. Should he desire a partition or sale of his interest, that right is absolute. See Tex. Prop. Code Ann. § 23.001 (Vernon 1984 & Supp. 2000); Ware v. Ware, 809 S.W.2d 569, 571-72 (Tex. App.-San Antonio 1991, no writ).

Conclusion

We overrule Isaac Gonzales's issue and affirm the judgment of the trial court.

PAUL W. GREEN,

JUSTICE

DO NOT PUBLISH