Ohendalski v. Ohendalski

Decision Date28 September 2006
Docket NumberNo. 09,09
Citation203 S.W.3d 910
PartiesRonald Simon OHENDALSKI, Appellant, v. Paula Jean OHENDALSKI, Appellee.
CourtTexas Court of Appeals

John L. Webb, Houston, for appellant.

Dan Bayless, Cleveland, for appellee.

Before GAULTNEY, KREGER, and HORTON, JJ.

OPINION

HOLLIS HORTON, Justice.

Ronald Ohendalski appeals from the terms of the trial court's order regarding his rights to visitation with his children and from the court's property division in his divorce decree. He contends the trial court abused its discretion by awarding Paula Ohendalski 81 percent of the community estate and that the evidence was legally and factually insufficient to support the award. Ronald also complains that the record is insufficient to support the trial court's order regarding child visitation because the imposed terms differ from those contained in a standard possession order. After reviewing the record, we find no abuse of discretion in the trial court's determination of the issues challenged on appeal. We affirm the trial court's judgment.

BACKGROUND

Ronald and Paula married in 1985. In 2002, Paula filed for a divorce. During their marriage, they had three children, who were thirteen, eight, and seven years of age when the trial court entered the divorce decree. Among the grounds for the divorce, Paula asserted that Ronald's cruel treatment of her made their living together insupportable and that Ronald had committed adultery. Paula also asserted a "no fault" ground that the marriage was insupportable "because of discord or conflict of personalities . . . that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation." See Tex. Fam.Code Ann. § 6.001 (Vernon 2006). Paula requested that the trial court give her a disproportionate distribution of the marital estate and alleged twenty-three separate grounds to justify her claim. Paula also requested that the court issue orders for the safety and welfare of the children as deemed necessary and equitable.

During the past four years of the marriage, Ronald worked for various employers as a pipe-fitter. At the time of trial, Ronald's most recent paycheck indicated that he made $19.55 per hour. Ronald also testified that he occasionally worked as a professional musician, averaging one performance every weekend. Ronald testified that his earnings from playing with various groups ranged from $28 to $128 per night. In 2003, Ronald earned $31,094 as a pipe-fitter and $3,142 as a musician.

With respect to Paula's employment, the evidence showed that in January 1998, she became the president of Jobs, Etc., Inc., a new corporation whose shares were owned by her sister-in-law. In March 1998, Jobs, Etc. purchased the assets of an employment agency owned by another individual. Paula denied that she contributed any capital to purchase the business, but testified that she was responsible for Jobs, Etc.'s day-to-day operations. At the time of the trial, in late 2004, Paula testified that her sister-in-law still owned 100 percent of the stock in Jobs, Etc., that the financial condition of the company was poor, and that its only assets consisted of paper files, obsolete computers, and five-year-old desks. Additionally, Paula testified that Jobs, Etc. had approximately $80,000 to $90,000 in outstanding tax liens filed against it. Paula testified that during the past two years, she earned approximately $1,900 per month from Jobs, Etc.

Ronald contends that the court erred in not including the value of the Ohendalski Joint Venture in dividing the marital estate. Specifically, he alleged that the Ohendalski Joint Venture and Jobs, Etc. maintained some type of relationship that created an additional marital asset subject to division. Ronald asserted that "loss or profit from that joint venture is a community asset that needs to be divided." In his brief, Ronald noted that his and Paula's joint tax returns, for tax years 1998 through 2001, reflect income and losses attributable to the Ohendalski Joint Venture. The trial record does not contain tax records after 2001, and there is no testimony to reflect any profits or losses on the Ohendalski Joint Venture after 2001.

Except for the assertion in his brief regarding the potential assets of the Ohendalski Joint Venture, the trial record does not show that the agreement regarding profits or losses extended to any gains or losses derived or attributed in any manner to Jobs, Etc. after 2001. Furthermore, upon being shown the tax returns that listed profits and losses for the Ohendalski Joint Venture, Ronald testified that he had no knowledge of the business affairs of the Ohendalski Joint Venture. Additionally, Ronald testified that Paula did not receive a paycheck from Jobs, Etc. but rather received compensation in the form of a car allowance as well as payment for her gasoline and cell phone. At no time did Ronald testify that he had knowledge regarding Paula's arrangement with Jobs, Etc. Moreover, Ronald did not assert that he or Paula had acquired any right to purchase shares in Jobs, Etc. No evidence was presented to indicate that the Ohendalski Joint Venture had value or assets at the time of trial.

The evidence regarding fault in the divorce concerned primarily Ronald's affair, his alcohol use, and his mistreatment of Paula during their marriage. When the adultery question arose at trial, Ronald stipulated to an extramarital affair.

With respect to Ronald's alcohol use, Ronald does not dispute that he drinks alcohol but denies that his consumption endangers the children. Ronald testified that he occasionally drank when he played with his band and that he customarily drove home afterwards. The trial court also heard additional evidence that Ronald occasionally drank before or during times that he drove and that he commonly drank on weekends. Specifically, Paula's mother testified that she witnessed Ronald intoxicated at locations where he performed, and that on one such occasion, the children were present. Moreover, a close friend of Paula's testified that she observed Ronald "after driving, knowing that [he had] been drinking while driving." Paula's friend also recalled that on one occasion she saw Ronald drive up to a convenience store, and after smelling alcohol on him, observed him stagger when he walked. Ronald's mother testified that she saw Ronald drinking while playing with his band, and that occasionally, after such performances, she would find him asleep in his truck outside her house with the engine running. She additionally testified that she suspected that Ronald was drinking while driving with the children based on a conversation she had with Ronald two weeks prior to trial when he called her from his cell phone. Ronald disputed that he and his mother had this telephone conversation. Paula also presented direct evidence that Ronald drank eight to nine beers per day and that he often drove while drinking. The record also reflects testimony concerning several physical altercations between Ronald and Paula, including an incident when Ronald kicked her in the presence of one of the children, and several other incidents of Ronald's abusive treatment of Paula. Apparently, based on these incidents, the trial court found that Ronald "is guilty of cruel treatment toward Paula Jean Ohendalski of a nature that renders further living together insupportable."

Finally, the trial transcript reflects that the parties agreed to allow the court to interview the children. However, both parties waived their right to have a record of the interview and thus, no record of these interviews is contained in the appellate record.

PROPERTY DIVISION

The Texas Family Code provides that a trial 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. . . ." Tex. Fam.Code Ann. § 7.001 (Vernon 2006). Generally, a divorce court has wide latitude in the exercise of its discretion to divide the marital estate. Williams v. Williams, 160 Tex. 99, 325 S.W.2d 682, 684 (1959). Thus, absent an abuse of discretion, the divorce court's division of a marital estate will not be disturbed on appeal. See Schlueter v. Schlueter, 975 S.W.2d 584, 588-89 (Tex.1998); Murff v. Murff, 615 S.W.2d 696, 698 (Tex.1981); see also Loaiza v. Loaiza, 130 S.W.3d 894, 900 (Tex. App.-Fort Worth 2004, no pet.) (sufficiency review under abuse of discretion standard).

The division of the marital estate need not be equal, and fault is one of the many factors that a trial court may consider in making a division of the community estate. See Twyman v. Twyman, 855 S.W.2d 619, 625 (Tex.1993); Schlueter, 975 S.W.2d at 589; Murff, 615 S.W.2d at 698-99; Young v. Young, 609 S.W.2d 758, 761-62 (Tex.1980). A disproportionate division must have a reasonable basis. Smith v. Smith, 143 S.W.3d 206, 214 (Tex.App.-Waco 2004, no pet.). If there is some evidence of a substantive and probative character to support the decision, the trial court does not abuse its discretion if it orders an unequal division of the marital estate. In re Marriage of Jeffries, 144 S.W.3d 636, 640 (Tex.App.-Texarkana 2004, no pet.). Generally, in a fault-based divorce, the court may consider the conduct of the errant spouse in making a disproportionate distribution of the marital estate. Young, 609 S.W.2d at 761-62. The grounds for a fault-based divorce specifically include cruelty and adultery. Tex. Fam.Code Ann. §§ 6.002-.003 (Vernon 2006).

The trial court gave 81 percent of the community estate to Paula and 19 percent of the estate to Ronald. Although...

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