Janik v. Janik
| Decision Date | 04 March 1982 |
| Docket Number | No. C2861,C2861 |
| Citation | 634 S.W.2d 323 |
| Parties | Thomas A. JANIK, Appellant, v. Amy Dee Wayne JANIK, Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
Bill Payne, Lawrence, Thornton, Payne & Watson, Sarah Ryan, Bryan, for appellant.
William R. Vance, Bryan, for appellee.
Before MILLER, MORSE and JAMES, JJ.
This is an appeal of a property division in a decree of divorce. Appellant, Thomas A. Janik, and Appellee, Amy Dee Wayne Janik, were granted a no-fault divorce due to the unsupportability of the marriage. He was appointed managing conservator of the minor child. Appellant appeals the division of the community estate on the grounds that the trial court abused its discretion. We affirm.
The parties were married on February 14, 1960, and lived together for approximately twenty years. One child was born to the marriage in 1964. During the early years of the marriage, appellant played football for the Denver Broncos, Buffalo Bills, and New England Patriots. After appellant retired from the National Football League (NFL), the parties bought the family residence. Prior to his retirement from the NFL, the parties purchased a Shipley Do-Nut business which appellant managed. The business was financially unsuccessful and had to be turned back to the original owner so as to cancel a substantial indebtedness. At the time of trial, appellant was working as a salesman for J. C. Penny Co., Inc., bringing home a little over $800.00 per month. The trial court made a finding that he intended to enter that company's executive training program. Although appellant's earnings at the time of trial were lower than appellee's, the trial court also made a finding that his earning capacity was greater because his long range projected earnings could be much greater. Appellee did not work outside the home during the marriage until two years prior to the divorce. She went to work as a real estate agent at that time and up to the time of trial. The trial court made a finding that appellee earns a commission only upon the sale of property by her as an agent.
Prior to trial the parties stipulated the matters of the divorce and child custody. The division of the community estate was the only issue before the trial court. The community property was divided as follows:
DIVISION OF COMMUNITY ESTATE
(Values as Found by Trial Court)
A
WIFE'S ESTATE
Gross Net
Item Value Debt Value
-------------- ---------- ---------- -----------
Home $65,000.00 $15,120.00 $49,880.00
Furnishings
& Clothing 1,000.00 .00 1,000.00
Cash 38.00 .00 38.00
Life Insurance 586.87 .00 586.87
Oldsmobile
Auto 1,500.00 .00 1,500.00
1979 Income
Tax Deposit 3,000.00 6,846.72 (3,846.72)
---------- ---------- -----------
$71,124.87 $21,966.72 $49,158.15
B
HUSBAND'S ESTATE
Gross Net
Item Value Debt Value
-------------- ---------- ---------- -----------
NFL Retirement
Plan $39,000.00 .00 $39,000.00
Boat & Trailer 5,000.00 6,349.52 (1,349.52)
1976 Chevrolet
Pick-up 3,000.00 3,300.00 (300.00)
Life Insurance 8,534.87 9,004.29 (469.42)
Furnishings &
Clothing 1,000.00 .00 1,000.00
First Nat'l
Bank
(unsecured) 6,426.36 (6,426.36)
State
Comptroller 900.00 (900.00)
1980 Income
Tax 7,832.65 7,832.65
---------- ---------- -----------
$56,534.87 $33,812.82 $22,722.05
We take as correct appellant's table in his brief showing the division of the community estate. Tex.R.Civ.P. 429. Appellee agrees that appellant has correctly set forth the division with the exception that a liability to appellee's mother which she was ordered to pay in the amount of $3,200 was omitted. This liability would increase wife's debt to $25,166.72 and decrease her net value to $45,958.15. Additionally, we would point out that appellant adds 14.4% to his 1979 income tax liability to compensate for an increase in the parties' 1980 income but he does not add this to the debt under the wife's estate. No reason exists why this increase should be shown in one estate and not the other.
The standard by which a trial court orders the division of the property in a divorce is well settled. The division must be made 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." Tex.Fam.Code Ann. § 3.63(a) (Vernon Supp. 1982). The trial court has broad discretion in making this determination and this discretion will not be disturbed unless a clear abuse is shown. McKnight v. McKnight, 543 S.W.2d 863 (Tex.1976); Cockerham v. Cockerham, 527 S.W.2d 162 (Tex.1975). This discretion will be deemed abused when the division is unreasonable and unjust or manifestly unfair. Erger v. Erger, 590 S.W.2d 186 (Tex.Civ.App.-Fort Worth 1979, writ dism'd); Musick v. Musick, 590 S.W.2d 582 (Tex.Civ.App.-Tyler 1979, no writ). In dividing the property of the parties, the trial court is not required to make an equal division. Cockerham, supra; Tarin v. Tarin, 605 S.W.2d 392 (Tex.Civ.App.-El Paso 1980, no writ). All that is required is that there be some reasonable basis for decreeing an unequal division. Tarin, supra. In this regard the trial court may consider such factors as the relative earning capacities and business experience of the parties, their educational background, the size of their separate estates, their...
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