Schuster v. Schuster

• Decision Date: 03 April 1985
• Docket Number: No. 14270,14270
• Parties: Allan Dale SCHUSTER, Appellant, v. Carol Jean SCHUSTER, Appellee.
• Court: Texas Court of Appeals

Page 644

690 S.W.2d 644

Allan Dale SCHUSTER, Appellant, v. Carol Jean SCHUSTER, Appellee.

No. 14270.

Court of Appeals of Texas,

Austin.

April 3, 1985.

Jeffrey M. Friedman, Friedman, Weddington, Hansen & Fisher, Austin, for appellant.

Philip C. Friday, Jr., Austin, for appellee.

Before SHANNON, C.J., and BRADY and GAMMAGE, JJ.

GAMMAGE, Justice.

Allan Dale Schuster appeals from the trial court's final decree of divorce, terminating his fifteen year marriage to Carol Jean Schuster. We will affirm the judgment of the trial court.

Carol Schuster initiated this suit for divorce, alleging the ground of insupportability of the marriage, more commonly known as "no fault divorce." At the conclusion of a bench trial, the trial court decreed the divorce, divided the community estate, awarded managing conservatorship of the three minor children to Carol Schuster and ordered Allan Schuster to pay child support in the amount of $480 per month for each of the children. According to the trial court's valuation of the assets, Carol Schuster was awarded approximately 60% of the community estate.

In his first point of error, Allan Schuster complains of the trial court's division of the community estate. He asserts that the trial court abused its discretion in ordering an unequal division of the property, contending that an equal division of the property should have been ordered, absent proof of circumstances which justify an unequal division. We disagree. The trial court, in dividing the community property upon divorce, may consider a variety of factors, Young v. Young, 609 S.W.2d 758 (Tex.1980); it must order a "just and right" division of the property, not necessarily an equal division, Tex.Fam.Code Ann. § 3.63 (Supp.1985); and, the trial court's division will not be disturbed on appeal in the absence of a clear abuse of discretion. Bell v. Bell, 513 S.W.2d 20 (Tex.1974).

The record indicates that Allan Schuster has more formal education and greater earning capacity than that of Carol Schuster. Carol Schuster is the managing conservator of the couple's three minor children, with the responsibility of supporting, with the ordered assistance from Allan, and caring for those children. Allan Schuster, because of his V.A. disability benefits, has a much larger separate estate than does Carol Schuster. We therefore hold that the trial court did not abuse its discretion in dividing the community estate.

Allan Schuster was awarded all of his substantial military retirement benefits. By his second, third and fourth points of error, he contends that the trial court erred in characterizing a portion of those benefits as community property. He argues that because of this mischaracterization, Carol Schuster was awarded in excess of 80% of the community estate.

The parties stipulated that 17/20ths of the retirement benefits accrued prior to the marriage, and that a portion of these benefits are received from the Veterans' Administration, and are therefore Allan Schuster's separate property. Allan Schuster contends that the trial court erred in concluding that the portion of the remaining 3/20ths not received from the V.A. is community property, because a portion of these benefits is also for his disability sustained while on active duty in the military and therefore his separate property. He argues that all pay accrued for disability is separate property. He cites no authority for this proposition and we disagree. V.A. benefits are...