Anthony Salvagno v. Barbara Salvagno--Appeal from 73rd Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-04-00146-CV

Anthony SALVAGNO,

Appellant

v.

Barbara Lee SALVAGNO,

Appellee

From the 73rd Judicial District Court, Bexar County, Texas

Trial Court No. 99-CI-15928

Honorable Rebecca Simmons, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: August 31, 2005

AFFIRMED

Anthony Salvagno appeals the trial court s divorce decree. We affirm.

1. In his second issue Anthony argues [t]he trial court erred in entering a [December 16, 2003] Final Decree of Divorce Nunc Pro Tunc which makes more than corrections of clerical errors in the [October 21, 2003] Final Decree of Divorce. We disagree. Even if the October 21 judgment was final and appealable, the trial court retains plenary power to grant a new trial or vacate, modify, correct, or reform the judgment for thirty days after the judgment is signed or thirty days after all timely-filed motions for new trial and motions to modify, correct, or reform the judgment are denied by signed order or operation of law. Pursley v. Ussery, 982 S.W.2d 596, 598 (Tex. App. San Antonio 1998, pet. denied) (citing Tex. R. Civ. P. 329b(d), (e), (g)). Here, three days after the court signed the October 21, 2003 judgment, Barbara Lee sought to modify it to include matters that were not decided in, and thus remained in controversy after, the October 21, 2003 judgment. We construe this motion, although entitled a Motion for Judgment Nunc Pro Tunc, as a motion to modify that extended the trial court s plenary power. See Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex. 1999) (holding that court looks at substance of a motion to determine relief sought and not merely its title).

2. Anthony also argues the trial court abused its discretion in dividing the marital estate by failing to credit him with various amounts of money owed to him by Barbara. We again disagree. The trial court need not divide the community property equally. Murff v. Murff, 615 S.W.2d 696, 698-99 (Tex. 1981). Rather, the trial court must divide the parties estate in a manner the court deems just and right. See Tex. Fam. Code Ann. 7.001 (Vernon 1998). The trial court exercises its broad discretion by considering many factors, including but not limited to: (1) fault in breaking up the marriage, (2) the spouses capacities and abilities, (3) business opportunities, (4) education, (5) relative physical conditions, (6) relative financial conditions and obligations, (7) disparity of ages, (8) sizes of separate estates, (9) the nature of the property, and (10) disparity in earning capacities or incomes. Murff, 615 S.W.2d at 699. To establish an abuse of discretion, Anthony must demonstrate that the trial court s division is manifestly unjust and unfair. Pletcher v. Goetz, 9 S.W.3d 442, 446 (Tex. App. Fort Worth 1999, pet. denied) (op. on reh g).

Here, the trial court credited each party with his or her separate property, disregarded the amounts Anthony argued Barbara owed him, and then awarded each party half of the marital estate. We cannot conclude the trial court abused its discretion by not crediting Anthony with the amounts he contends Barbara owes him in light of the following circumstances: Barbara is disabled and was so during the majority of the marriage, while Anthony was and is not; Barbara cannot work because of her disability and did not do so during the marriage, while Anthony was able to work and did work during the marriage and is now employed by the federal government; and Barbara s only source of income is approximately $1200.00 per month in Social Security disability benefits, while Anthony earns approximately $31,000.00 per year.

The trial court s judgment is affirmed.

Sarah B. Duncan, Justice