Marriage of Trujillo, Matter of

• Decision Date: 20 March 1979
• Docket Number: No. 8610,8610
• Parties: In the Matter of the MARRIAGE OF Fortino Pineda TRUJILLO and Maria C. Vela Trujillo.
• Court: Texas Court of Appeals

Page 873

580 S.W.2d 873

In the Matter of the MARRIAGE OF Fortino Pineda TRUJILLO and

Maria C. Vela Trujillo.

No. 8610.

Court of Civil Appeals of Texas, Texarkana.

March 20, 1979.

William M. Boyd, Boyd, Veigel & Gay, Inc., McKinney, for appellant.

Jack L. Johannes, Jack Johannes & Associates, Dallas, for appellee.

RAY, Justice.

This is a domestic relations case. Appellant (petitioner), Fortino Pineda Trujillo, sought a divorce and division of the property of the parties from appellee (respondent), Maria C. Vela Trujillo. Appellant was granted a divorce and the trial court, sitting without a jury, entered its judgment awarding appellee, Maria, a one-third undivided interest in the property known as Tino's Mexican Restaurant. It is from this award of the interest in the restaurant that appellant, Fortino, has brought this appeal. Two points of error have been submitted for our consideration.

Appellant's first point of error is as follows:

"The trial Court abused its discretion in its division of the property awarding a one-third undivided interest in the property known as Tino's Mexican Restaurant to Appellee."

Point of Error No. 2 is as follows:

"The trial Court's division of the property amounts to an award of permanent alimony in violation of the public policy of the State of Texas."

The judgment of the trial court will be affirmed.

Fortino and Maria were formally married on October 7, 1976, and separated three days later. The parties had known each other for approximately three years and had been living together as husband and wife for eight months prior to their ceremonial marriage. Fortino came to Texas from California in June of 1975 to establish his own restaurant. Maria followed on January 31, 1976, and moved into an apartment with Fortino the next day. Fortino opened his restaurant on September 2, 1976, and invested in the business the sum of $9,418.84 from his separate estate along with $1,290.00 from the community estate. Maria contributed her time and services by working as a waitress, hostess and cashier at the restaurant for which she received no pay. The evidence reveals that Maria contributed to the household expenses and savings of the parties.

The divorce decree entered in 1977 awarded Maria an undivided one-third interest in Tino's Mexican Restaurant. The court found that no children were born of the marriage.

The trial court, after awarding a one-third interest in the restaurant to Maria, has also permanently enjoined Maria from interfering with the possession and operation of the business.

Section 3.63 of the Texas Family Code Annotated grants the trial judge authority to 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. The discretion lodged with the trial court is very broad and his division of the estate will not be set aside on appeal absent a clear showing that the court abused its discretion. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923); Dorfman v. Dorfman, 457 S.W.2d 417 (Tex.Civ.App.Texarkana 1970, no writ); Matter of Marriage of Long, 542 S.W.2d 712, 716 (Tex.Civ.App.Texarkana 1976, no writ).

We have reviewed the entire record in this case and find that the trial judge did not abuse his discretion. The trial court is not required to make an equal division of the community property. 1 Speer's, Texas Family Law, Sec. 5.62 (5th ed. 1975). Considering all of the circumstances in this case and the various contributions made by the parties, both in money and time, we cannot say the trial court arbitrarily and capriciously gave Maria more than she should have received. The equities of the case are sufficient to support the trial...