Schaban-Maurer v. Maurer-Schaban

• Decision Date: 11 October 2007
• Docket Number: No. 2-06-368-CV.,2-06-368-CV.
• Citation: 238 S.W.3d 815
• Parties: Basil SCHABAN-MAURER, Appellant, v. Anna MAURER-SCHABAN, Appellee.
• Court: Texas Court of Appeals

238 S.W.3d 815

Basil SCHABAN-MAURER, Appellant, v. Anna MAURER-SCHABAN, Appellee.

No. 2-06-368-CV.

Court of Appeals of Texas, Fort Worth.

October 11, 2007.

Gerald Tadlock, Dallas, for Appellant.

Robert T. Stites, John T. Eck, Fort Worth, for Appellee.

PANEL B: LIVINGSTON, WALKER, and MCCOY, JJ.

OPINION

SUE WALKER, Justice.

I. INTRODUCTION

Appellant Basil Schaban-Maurer appeals the trial court's "Final Decree of Divorce." In three issues, Basil alleges that the trial court erred by making a disproportionate award of the community estate to Appellee Anna Maurer-Schaban, issuing a protective order against Basil, and ordering Basil to pay $700 per month in child support. We will affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

Anna moved to the United States in 1994 and married Basil soon after her arrival. At the time, Basil had a bachelor's and a master's degree in architecture. After the two were married, Anna attended college for approximately three years, during which time Basil supported her by working as an architect for various firms in the Dallas/Fort Worth area. The same year that Anna completed her education and entered the workforce, Basil stopped working full-time and instead worked sporadically, never holding down a job for more than one year and eventually giving up all efforts at obtaining employment. From 2000 up until the time of the divorce in 2006, Basil did not earn a salary. During that time, however, Basil entered a Ph.D. program, taking approximately one class per semester.

In 2002, the couple had their first child. Three years later, they had their second child. The trial court heard testimony that, despite the fact Basil stayed at home, the children went to daycare during the day and that Anna attended to the children and the household chores after getting home from work. Furthermore, the trial court heard and saw evidence of domestic abuse by Basil against Anna.

Driven by her frustration at Basil's distaste for employment, failure to contribute to the family unit, and domestic violence, Anna filed for divorce in late 2005. Fearing that leaving Basil and taking the children would spark more domestic violence, Anna also sought a protective order, which was granted in November 2005.¹

In September 2006, the trial court conducted proceedings to determine the terms of the final divorce decree. At the conclusion of these proceedings, the trial court awarded a disproportionate amount of community property to Anna and ordered Basil to pay $700 per month for child support. Basil now appeals.

III. DISPROPORTIONATE COMMUNITY PROPERTY AWARD TO WIFE

In his first issue, Basil contends that the trial court abused its discretion by making a disproportionate community property award to Anna.

A. Standard of Review

In a divorce proceeding, the trial court is charged with dividing the community estate in a "just and right" manner, considering the rights of both parties. TEX. FAM.CODE ANN. § 7.001 (Vernon Supp. 2006); Boyd v. Boyd, 131 S.W.3d 605, 610 (Tex.App.-Fort Worth 2004, no pet.). Trial courts are afforded wide discretion in dividing marital property upon divorce; therefore, a trial court's property division may not be disturbed on appeal unless the complaining party demonstrates from evidence in the record that the division was so unjust and unfair as to constitute an abuse of discretion. Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex.1985); Boyd, 131 S.W.3d at 610.

To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, we must decide whether the act was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). We must indulge every reasonable presumption in favor of the trial court's proper exercise of discretion in dividing marital property. Boyd, 131 S.W.3d at 610. Accordingly, we will reverse only if the record demonstrates that the trial court clearly abused its discretion, and the error materially affected the just and right division of the community estate.² Id.

B. Factors for Determining Community Property Division

In exercising its discretion, the trial court must order an equitable, but not necessarily equal, division of the community estate. Tenery v. Tenery, 932 S.W.2d 29, 29 (Tex.1996); Taylor v. Taylor, No. 02-05-00435-CV, 2007 WL 2460359, at *9 (Tex.App.-Fort Worth, Aug.31, 2007, no pet. h.) (mem.op.). In dividing the estate, the trial court can consider a variety of factors, and it is presumed that the trial court exercised its discretion properly. Bell v. Bell, 513 S.W.2d 20, 22 (Tex.1974); Campbell v. Campbell, 625 S.W.2d 41, 43 (Tex.App.-Fort Worth 1981, writ dism'd).

Some of the factors the trial court can consider include the spouses' capacities and abilities, benefits which the party not at fault would have derived from continuation of the marriage, business opportunities, education, relative physical conditions, relative financial condition and obligations, size of the separate estates, and the nature of the property. See Schlueter v. Schlueter, 975 S.W.2d 584, 588 (Tex.1998); Murff v. Murff, 615 S.W.2d 696, 699 (Tex.1981).

In addition to the factors set forth in Murff, the trial court may also consider fraud on the community, wasting of community assets, child custody, and fault in the breakup of the marriage. Baccus v. Baccus, 808 S.W.2d 694, 700 (Tex. App.-Beaumont 1991, no writ); see Massey v. Massey, 807 S.W.2d 391, 401-02 (Tex. App.-Houston [1st Dist.] 1991, writ denied); Eikenhorst v. Eikenhorst, 746 S.W.2d 882, 890 (Tex.App.-Houston [1st Dist.] 1988, no writ). Additionally, although retirement benefits earned during marriage are generally community property that is subject to division, the trial court, in its discretion, may award such benefits to the party who earned them. See Haynes v. McIntosh, 776 S.W.2d 784, 788 (Tex.App.-Corpus Christi 1989, writ denied); Hardin v. Hardin, 681 S.W.2d 241, 243 (Tex.App.-San Antonio 1984, no writ); Shields v. Shields, No. 09-06-00334-CV, 2007 WL 2683524, at *2 (Tex. App.-Beaumont Sept.13, 2007, no pet. h.) (mem. op.).

C. Disproportionate Community Property Award to Anna

In its findings of fact for this case, the trial court listed several factors it considered in dividing the property, including fault in the breakup of the marriage, fraud on the community, wasting of community assets by the spouses, and actual and constructive fraud committed by a spouse.³ The trial court based these findings on testimony from Anna, Basil, and additional witnesses. First, Basil testified that he had a master's degree in architecture and was pursuing a Ph.D. in urban administration. Despite his high level of education, Basil and Anna both testified that Basil had not been employed since 2000 and that Basil's employment prior to 2000 was sporadic. Basil did not controvert Anna's testimony that he was mentally and physically capable of working.

Furthermore, the trial court heard testimony about potential fraud on the community estate committed by Basil. Anna testified about a community account that she maintained in her name with her wages. She said that Basil had secretly accessed, withdrawn, and hidden $22,000 from the account, refusing to share it with Anna. In his testimony, Basil never disputed that he had the money and had refused to share it, he only disputed how he came into possession of the money, alleging that Anna had transferred it into his account on her own free will but then changed her mind and wanted it back.

Additionally, Anna alleged that Basil had approximately $19,000 in cash stored in a cabinet, along with several valuable items of jewelry and household items, which, according to Anna, had a total value of approximately $15,000. Basil denied the existence of the $19,000 and said that, for the most part, Anna was in possession of the jewelry and household items.

Finally, the trial court heard testimony about Anna's retirement account, which constituted a large part of the property division awarded to Anna. Anna's uncontroverted testimony was that she had built up the retirement account with her wages. Basil additionally had retirement accounts in his name, though there was no testimony as to how those accounts were funded.⁴

Indulging every reasonable presumption in favor of the trial court's ruling, we cannot say that, given this testimony, the trial court abused its discretion. The trial court, as the sole judge of the witnesses' credibility, could have believed Anna and not believed Basil regarding the $22,000 from the bank account, $19,000 in the cabinet, and $15,000 of jewelry and household items.⁵ Because the trier of fact is in a better position to determine the candor, demeanor, and credibility of the witnesses, we will not substitute our judgment for that of the trial court. See Garner v. Garner, 200 S.W.3d 303, 308 (Tex.App.-Dallas 2006, no pet.).

Furthermore, the trial court acted in its discretion by awarding retirement benefits earned during the marriage to the party who earned them, thus giving Anna's retirement account to her and Basil's retirement accounts to him. See Haynes, 776 S.W.2d at 788; Hardin, 681 S.W.2d at 243; Shields, 2007 WL 2683524, at *3. Because the trial court acted within its discretion, we overrule Basil's first issue.

IV. Protective Order

In his second issue, Basil argues that the trial court erred by granting the protective order because no evidence was presented that family violence would occur in the future.⁶

A. Mootness

Because the protective order of which Basil complains expired on October 24, 2006, our first determination must be whether this issue is moot. The general rule is that a case becomes moot, and thus unreviewable, when it appears that a party seeks to obtain relief on some alleged controversy when in reality none exists....