Maben v. Maben, 18020

• Decision Date: 09 November 1978
• Docket Number: No. 18020,18020
• Citation: 574 S.W.2d 229
• Parties: Thomas Minton MABEN, Appellant, v. Judy E. MABEN, Appellee.
• Court: Texas Court of Appeals

Page 229

574 S.W.2d 229

Thomas Minton MABEN, Appellant, v. Judy E. MABEN, Appellee.

No. 18020.

Court of Civil Appeals of Texas, Fort Worth.

Nov. 9, 1978.

Robert A. Sewell, Fort Worth, for appellant.

Herrick & Waltrip and Bill Waltrip, Fort Worth, for appellee.

OPINION

SPURLOCK, Justice.

This is a divorce action. The husband claims the trial court abused its discretion in awarding the wife their residence and in ordering him to pay an allegedly excessive amount of child support.

We find no abuse of discretion and affirm.

The case is before us on an agreed statement of facts. Thomas and Judy Maben were married in 1962 and have a daughter, Carolyn, who was 15 when the divorce was granted. She is now 16. Maben's salary is in excess of $30,000.00 per year. Mrs. Maben is a homemaker. She has a separate property interest, worth about $22,000.00, in a business entity. This interest has produced income in excess of $4,125.00 per year since 1969. Community funds in excess of $11,000.00 have been used to pay taxes on this income since 1969. Maben is employed by a family business owned by himself, his father and his brother. He has five shares of the family business as his separate property. His shares are worth about $500.00 and produce no income.

The community estate consists mainly of the parties' home and its furnishings. The value of the home is between $70,000.00 and $80,000.00. The value of the furnishings is in excess of $20,000.00. Mrs. Maben used $14,000.00 of her separate funds for a down payment on the home. About $34,000.00 of community funds have been used in making mortgage payments which include taxes, insurance, interest and principal. The record is silent as to the amount of the monthly payment which has been applied to the reduction of the amount of principal owed.

The trial court granted Mrs. Maben's petition for divorce and appointed her managing conservator of Carolyn. In dividing the property, the court awarded Mrs. Maben her separate property, the residence, most of its furnishings, an automobile, and her personal effects. Maben received his shares of his family's business, the remainder of the furnishings, and his personal effects. Maben was also awarded a promissory note in the sum of $10,000.00 secured by a deed of trust lien on the home. This lien was a second lien to a deed of trust in the sum of $28,000.00, representing a portion of the purchase price of the home. The $10,000.00 note is due in 1982. Maben was ordered to pay $600.00 per month child support until Carolyn is 18 years of age, or until further court order.

Maben appeals only from the property division and order for child support. The trial court made, in part, the following findings of fact and conclusions of law.

FINDINGS OF FACT

"5. That there is a great disparity of earning capacity between petitioner and respondent; that is, Petitioner has little, if any, earning capacity and Respondent has the capacity to earn in excess of $30,000 annually.

"6. That in excess of $14,000 worth of Petitioner's separate property went into the purchase price of the home, lot and furnishings of the home occupied by the parties at the time of this divorce.

"7. That Respondent is part owner of . . . a family business owned primarily by his father, along with Respondent and his brother and that such position is secure for the future and (sic) a going business.

"8. That the division of property and the adjustments of various community obligations as pronounced by this Court in its judgment is fair, just and equitable.

CONCLUSIONS OF LAW

"3. That the division of property and the adjustments of equities and obligations as contained in this Court's judgment is fair, just and equitable."

The parties agree the law governing this case is well settled. They recognize a trial court has wide discretion in dividing property and awarding support, and a clear abuse of discretion must be shown for a reviewing court to reverse the trial court's judgment. Further, the judgment of the trial court is presumed to be just and right.

By his first two points of error Maben claims the trial court abused its discretion in the manner in which it divided the property.

The basis for his complaint is that the property awarded to Mrs. Maben has a net worth between $53,000.00 and $68,000.00 after deducting the liabilities thereon, including the $10,000.00 promissory note to Maben and the $28,000.00 first mortgage lien. The property awarded to Maben after...