O'Carolan v. Hopper

• Court: Texas Court of Appeals
• Writing for the Court: Bea Ann Smith
• Citation: O'Carolan v. Hopper, 71 S.W.3d 529 (Tex. App. 2002)
• Decision Date: 14 March 2002
• Docket Number: No. 03-00-00755-CV.,03-00-00755-CV.
• Parties: Renee Sheree (Hopper) O'CAROLAN, Appellant, v. Gary D. HOPPER, Appellee.

71 S.W.3d 529

Renee Sheree (Hopper) O'CAROLAN, Appellant, v. Gary D. HOPPER, Appellee.

No. 03-00-00755-CV.

Court of Appeals of Texas, Austin.

March 14, 2002.

Wanda J. Harkness, Law Offices of Wanda J. Harkness, Austin, for appellant.

Walter C. Prentice, Austin, for appellee.

Before Chief Justice ABOUSSIE, Justices B.A. SMITH and PURYEAR.

BEA ANN SMITH, Justice.

Appellant Renee O'Carolan ("O'Carolan") seeks to reverse the trial court's property division as rendered in the final divorce decree. In two points of error, she contends the trial court abused its discretion in its disproportionate award of the community property to appellee Gary Hopper ("Hopper") and in awarding spousal maintenance as a substitute for a just and fair division of the community property. We will reverse the trial court's property division and remand for a new property division.

Factual and Procedural Background

The parties were married for twenty-six years before the date of the divorce. There were two children of the marriage; only one was under age eighteen at the time of the decree.

Hopper earned at least $130,000 in 1999 and was earning between $8,000 and $9,000 a month at the time of the divorce.¹ O'Carolan had been unemployed for five months before the hearing on the divorce. During the previous two years, she worked only part-time for a concessionaire. Her highest earnings, $10.00 per hour, occurred in 1997 and 1998. O'Carolan had an associate (two-year) degree in fashion merchandising.

O'Carolan testified that she had neurosurgery in February 2000 related to Chiari Type I malformation.² O'Carolan testified that she experienced short-term memory loss, difficulty concentrating, and muscle weakness.³ Hopper acknowledged that O'Carolan had had problems in the past requiring kidney surgery, bladder surgery, a hysterectomy, and disc surgery.

The community property consisted of: a house on two acres of land in Dripping Springs, valued at $130,000-150,000, carrying a debt of $86,000-87,000; an annuity life insurance policy with cash value of $10,000-11,000; a 1985 Honda motorcycle valued at $500; a 1995 Chevrolet Camaro, with a net value of $1500; a 1998 Chevrolet pickup with a net value of $1000; and various items of personal property either with a minimal value or not valued.

While married, the parties had filed for bankruptcy, discharging their pre-separation debts. O'Carolan owed approximately $60,000 for medical expenses incurred after she and Hopper separated. She does not have a vehicle or telephone and receives assistance in the form of food stamps.

The divorce was awarded on no-fault grounds. The decree awarded the house, all three vehicles, the life insurance policy and numerous items of personal property to Hopper. The decree also awarded all retirement funds, IRAs and pensions from Hopper's employment to him, although he had testified that they had no remaining value. O'Carolan was awarded various items of personal property. Hopper was ordered to pay the debt against the house and vehicles as well as any debt he incurred after the parties' separation. Any debt O'Carolan incurred after separation was assigned to her, including the $60,000 in medical expenses.

The parties were appointed joint managing conservators of their seventeen-year-old son and Hopper was awarded the right to determine the principal residence of the child. No child support was ordered. The trial court ordered Hopper to pay O'Carolan spousal support for two years according to the following schedule: $1,000 per month for three months; $1,500 per month for the next eighteen months; and $2,000 per month for the last three months.

Discussion

In a divorce decree, the trial court shall order a division of the parties' estate in a manner that the court "deems just and right." Tex. Fam.Code Ann. § 7.001 (West 1998). Although the trial court does not have to divide the community property equally, its division must be equitable. Zieba v. Martin, 928 S.W.2d 782, 790 (Tex.App.-Houston [14th Dist.] 1996, no writ); Schuster v. Schuster, 690 S.W.2d 644, 645 (Tex.App.-Austin 1985, no writ). The trial court's discretion is not unlimited, and there must be some reasonable basis for an unequal division of the property. Zieba, 928 S.W.2d at 790. The trial court, in exercising its discretion, may consider many factors, including the parties' earning capacities, education, business opportunities, physical condition, financial condition, age, size of separate estates, nature of the property, and the benefits that the spouse who did not cause the breakup of the marriage would have enjoyed had the marriage continued. Murff v. Murff, 615 S.W.2d 696, 699 (Tex.1981); Walston v. Walston, 971 S.W.2d 687, 691 (Tex.App.-Waco 1998, pet. denied).

We review the trial court's division of property using an abuse of discretion standard. Murff, 615 S.W.2d at 700; Walston, 971 S.W.2d at 691. Legal and factual sufficiency are not independent grounds of error but relevant factors in assessing whether the trial court abused its discretion. Doyle v. Doyle, 955 S.W.2d 478, 479 (Tex.App.-Austin 1997, no pet.). To constitute an abuse of discretion, the property division must be manifestly unfair. See Mann v. Mann, 607 S.W.2d 243, 245 (Tex.1980).

Not only does a review of the record show a total absence of evidence to support an unequal division of property in Hopper's favor, the majority of factors would support a disproportionate division in O'Carolan's favor. Hopper did not allege any fault on O'Carolan's part.⁴ The parties' ages were roughly the same. There is no evidence that O'Carolan had any separate estate. The record shows that Hopper had a significantly greater income, earning capacity, and business opportunities, important factors for consideration in the division of community property. See Finch v. Finch, 825 S.W.2d 218, 222 (Tex.App.-Houston [1st Dist.] 1992, no writ). Disparity in earning capacity is generally a factor weighing in favor of awarding a disproportionate share of the community to the lower income earner, here O'Carolan. See, e.g., Thomas v. Thomas, 525 S.W.2d 200, 202 (Tex.Civ. App.-Houston [1st Dist.] 1975, no writ); Zieba, 928 S.W.2d at 790-91; Schuster, 690 S.W.2d at 645. There was no evidence of health problems on Hopper's part. The evidence showed that O'Carolan suffered from a severe brain malformation. The problems caused by this brain malformation and its attendant surgery would impair O'Carolan's future earning ability.

The parties have one minor child who was to live with Hopper, however, there was no evidence that the needs of the minor child provided a basis for the disproportionate award of the community estate. The minor child turned eighteen within ten weeks of the entry of the decree. Although the child was expected to attend one more year of high school, there was no evidence that divesting O'Carolan of her share of the community property was necessary to provide for the support of the child in view of Hopper's earning ability. O'Carolan's demonstrated inability to earn a sufficient living wage could support the trial court's failure to award child support to Hopper.⁵

There is no evidence that the nature of the property compelled an unequal distribution in Hopper's favor. O'Carolan occupied the house, the principal asset, at the time of trial. The testimony concerning the value and marketability of the house is rather confusing. Apparently, the house needed repairs, some of them storm-related and covered by insurance proceeds. However, Hopper had refused to authorize the expenditure of that money. He said he had been unable to inspect the house closely enough to satisfy himself that the repairs were necessary, yet he also testified about the details of the necessary repairs, suggesting familiarity with the property. Although the trial court seemed to think that Hopper was better able to deal with supervising the repairs, and perhaps should occupy the house until his son finished high school, this could be accomplished in various ways, such as awarding occupancy to Hopper for a period of time during which he could supervise the repairs, and then ordering the property sold with the proceeds to be divided between the parties. We note that Hopper had requested that the property be sold and the proceeds divided.

It appears that the trial court treated spousal maintenance as if it were property and attempted to use that maintenance in lieu of awarding any property to O'Carolan.⁶ Spousal maintenance, however, is not property. The legislative purpose in enacting provisions for spousal maintenance was to provide temporary and rehabilitative support for a spouse whose ability for self-support is lacking or has deteriorated over time while engaged in homemaking activities and whose capital assets are insufficient to provide support. See Act of May 26, 1995, 74th Leg., R.S., ch. 655, § 10.01(a), 1995 Tex. Gen. Laws 3543, 3577; see also Barbara Ann Kazen, Division of Property at the Time of Divorce, 49 Baylor L.Rev. 417, 438 (1997). It is an award from...