Charles McSweeney v. Sherril Lynn McSweeney--Appeal from 224th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-06-00461-CV

Charles Lewis MCSWEENEY,

Appellant

v.

Sherril Lynn MCSWEENEY,

Appellee

From the 224th Judicial District Court, Bexar County, Texas

Trial Court No. 2004 CI 00206

Honorable David A. Berchelmann, Jr., Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Alma L. L pez, Chief Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

Delivered and Filed: January 31, 2007

AFFIRMED

Charles Lewis McSweeney appeals a final decree of divorce contending the trial court divested him of separate property and erred in awarding Sherril Lynn McSweeney a fifty percent interest in his disability benefits. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion.

1. In his first issue, Charles asserts that the trial court erred in awarding his separate property to Sherril. A court may not decree that separate property of one spouse shall become the separate property of the other spouse because the nature of separate property is determined by the Texas Constitution, rather than by what is just and right. Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 140 (Tex. 1977); Jackson v. Jackson, No. 01-05-00194-CV, 2006 WL 3438703, at *3 (Tex. App.--Houston [1st Dist.] Nov. 30, 2006, no pet. h.). Property possessed by either spouse during or on dissolution of marriage is presumed to be community property. Tex. Fam. Code Ann. 3.003(a) (Vernon 2006). A party who claims that property is separate property must establish the separate nature of the property by clear and convincing evidence. Jackson, 2006 WL 3438703, at *3; Peck v. Peck, 172 S.W.3d 26, 30 (Tex. App.--Dallas 2005, pet. denied).

In asserting that the trial court divested him of his separate property, Charles relies on his testimony that the items starred on an exhibit introduced into evidence were his separate property and that those items remained in Sherril's possession. Charles testified that he had not received any of his separate property from the time he left the home and traveled to Oregon. Sherril testified that she sent a suitcase full of Charles's personal belongings with their son each time he visited Charles. Sherril also testified that she had to sell many items of personal property before the divorce was finalized because Charles was not paying the ordered support.

First, we question whether Charles's marked exhibit and testimony is sufficient to rebut the community property presumption by clear and convincing evidence. Second, Charles's credibility was called into question when Sherril testified that she had sent personal belongings to him. Finally, Charles failed to question Sherril with regard to whether the items he had identified were among the items she had been required to sell. Accordingly, the record presented does not support Charles's assertion that he was divested of separate property.

2. Charles next contends that the trial court erred in awarding Sherril a percentage of the disability payments he received after being injured on the job while working for the U.S. Postal Service. Charles contends that the disability payment was similar to worker's compensation. We disagree. A federal employee who becomes disabled "shall be retired" and is entitled to receive civil service disability retirement which is subject to division upon divorce. See Rucker v. Rucker, 810 S.W.2d 793, 795 (Tex. App.--Houston [14th Dist.] 1991, writ denied); Anthony v. Anthony, 624 S.W.2d 388, 391 (Tex. App.--Austin 1981, writ dism'd); see also Newson v. Petrilli, 919 S.W.2d 481, 484-85 (Tex. App.--Austin 1996, no pet.) (distinguishing worker's compensation from disability retirement); Bonar v. Bonar, 614 S.W.2d 472, 473 (Tex. Civ. App.--El Paso 1981, writ ref'd n.r.e.) (distinguishing worker's compensation from civil service disability retirement). Sherril testified that Charles was receiving the disability payment pursuant to a retirement plan from the post office. When cross-examined regarding the nature of the payment, Sherril reiterated that the payment was for disability retirement. Furthermore, the check stub introduced into evidence showed that the payment is made by the United States Office of Personnel Management Retirement Operations Center. Because the evidence established that the payments Charles was receiving were for civil service disability retirement, they were subject to division.

3. Finally, Charles contends that the trial court erred in awarding Sherril a fifty percent interest in the disability payments. Charles asserts that because he and Sherril were married eleven of the sixteen years that Charles worked for the post office prior to becoming disabled, the community interest in the retirement payments was sixty-nine percent. Accordingly, Charles argues that awarding Sherril fifty percent of the community interest is a disproportionate award that is not justified by the facts presented.

The trial court is required to divide the estate of the parties in a manner that is just and right having due regard for the rights of each party. Tex. Fam. Code Ann. 7.001 (Vernon 2006). The trial court has broad discretion in dividing the marital estate, and we presume the trial court exercised its discretion properly. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981); Prague v. Prague, 190 S.W.3d 31, 40 (Tex. App.--Dallas 2005, pet. denied). The party who complains of the trial court's division of property must demonstrate from evidence in the record that the division was so unjust that the trial court abused its discretion. Prague, 190 S.W.3d at 40-41. The trial court may order an unequal division of marital property when a reasonable basis exists for doing so. Id. at 41. It is this court's duty to consider every reasonable presumption in favor of the proper exercise of discretion by the trial court in dividing the community estate. Murff, 615 S.W.2d at 699; Prague, 190 S.W.3d at 41.

Although often the community share of retirement benefits is equally divided in divorce actions, the trial court has the discretion to grant a disproportionate share to one of the parties. See,e.g., Boyd v. Boyd, 67 S.W.3d 398, 407 n.5 (Tex. App.--Fort Worth 2002, no pet.); Smith v. Smith, 22 S.W.3d 140, 149 (Tex. App.--Houston [14th Dist.] 2000, no pet.); Christian v. Christian, No. 14-99-00312-CV, 2001 WL 543685, at *3-4 (Tex. App.--Houston [14th Dist.] May 24, 2001, no pet.). The trial court may consider various factors in determining whether a disproportionate division is warranted, including disparity of income and earning capacity, 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, disparity of ages, size of separate estates, and the nature of the property. Murff, 615 S.W.2d at 699. In this case, Charles left Sherril, and Sherril was appointed sole managing conservator of the couple's adopted son who was fourteen years old. Since he had left, Charles had failed to regularly pay Sherril the child support he had been ordered to pay in the temporary orders. Sherril's father had been paying the mortgage on the house that Charles and Sherril had purchased with Sherril's parents. At the time of the hearing, Sherril was unemployed but had been working in the records department at Sea World earning approximately $150 per week. The Sea World employment was seasonal, and Sherril could apply to return to the position after the two month break. Before Charles left the home, he was engaged in computer work that generated approximately $1,400 per month with a net of about $1,000 per month. When Charles left the home, he went to Oregon and initially had a newspaper route. At the time of the hearing, Charles was working at a mountain retreat where most of his income was in the form of room and board with a monthly stipend of approximately $100.

In view of this evidence, the trial court could have considered that Charles left the home and moved to Oregon. Although Charles was disabled, he was able to engage in other employment. At the time of the hearing, Sherril was unemployed, while Charles was employed at a job that paid his room and board and provided a monthly stipend. If the marriage had continued, Sherril would have continued to benefit from the disability retirement payment Charles received as a result of an injury he sustained while the parties were married. Given the evidence presented, we cannot conclude that the trial court abused its discretion in awarding Sherril a disproportionate share of the retirement benefit.

The trial court's judgment is affirmed.

Phylis J. Speedlin, Justice