Gary Trial v. Penny Trial--Appeal from 216th Judicial District Court of Bandera County

MEMORANDUM OPINION

No. 04-05-00448-CV

Gary P. TRIAL,

Appellant

v.

Penelope J. TRIAL,

Appellee

From the 216th Judicial District Court, Bandera County, Texas

Trial Court No. 9244-04

Honorable Stephen B. Ables , Judge Presiding

Opinion by: Phylis J. Speedlin , Justice

Sitting: Alma L. L pez , Chief Justice

Sandee Bryan Marion , Justice

Phylis J. Speedlin , Justice

Delivered and Filed: July 19, 2006

AFFIRMED

Gary Trial appeals the trial court's division of community property upon his divorce from Penny Trial. We affirm the judgment of the trial court.

Division of Property

In his fourth issue, Gary argues that the trial court abused its discretion in awarding Penny a substantially larger portion of the community estate, even though the parties were equally situated. In a divorce proceeding, the community property need not be equally apportioned between the parties. Murff v. Murff, 615 S.W.2d 696, 698-99 (Tex. 1981). Rather, the trial court is required to order a division of the parties' estate in a manner that the court deems just and right. See Tex. Fam. Code Ann. 7.001 (Vernon 1998); see also Grayson v. Grayson, 103 S.W.3d 559, 562 (Tex. App.--San Antonio 2003, no pet.). The trial court is afforded wide discretion in dividing the estate of the parties, and may consider many factors. Murff, 615 S.W.2d at 698-99. The appellant bears the burden of showing that the trial court's abuse of discretion caused a division of property so disproportionate that the division was manifestly unjust and unfair. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21, 23 (Tex. 1923). To establish an abuse of discretion, the appellant must demonstrate that the trial court acted arbitrarily or unreasonably. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). We indulge 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.

The parties owned two homes: a house in San Antonio and a house on Medina Lake. Penny was awarded the lake house, valued by the Bandera County Appraisal District at $124,000 with a lien against it in the amount of $69,000. Gary testified that the lake house was undervalued and was actually worth between $180,000 and $200,000, but he did not present any evidence to support that amount. Gary was awarded the San Antonio house, valued by the Bexar County Appraisal District at $71,000 with a $32,000 lien against it. The parties had eight credit cards, all carrying a balance. Penny was ordered to take responsibility for the debt of four credit cards, totaling $16,567.40. Gary was likewise ordered to take responsibility for the debt of four credit cards, totaling $22,978.59. The parties also owned several community possessions, most of which were divided equally between them. The trial court ordered each party to pay for their own court costs and attorney's fees.

Gary has not met his burden of showing that the trial court's division of property was so unfair as to constitute an abuse of discretion. Both Gary and Penny submitted evidence to the trial court regarding the value of items in the community estate. Each significant property item, such as the homes, boats, tools, and guns, was supported by competing and contradictory values. The trial court does not abuse its discretion in dividing the marital estate by basing its decision on conflicting evidence. See Zieba v. Martin, 928 S.W.2d 782, 787 (Tex. App.--Houston [14th Dist.] 1996, no writ). Based on the evidence before it, we cannot conclude that the trial court abused its discretion in dividing the parties' community property. Gary's fourth issue is overruled.

Criminal Attorney's Fees

Gary is a federally licensed firearms dealer and a black powder sportsman, which means he mixes his own powder for shooting purposes. After the parties had separated, Penny called the Bandera County Sheriff's Department to the lake house to help her dispose of ammunition items and explosives that Gary stored on the property. The sheriff's deputy then contacted the Texas Rangers, the F.B.I., the bomb squad, and the Bureau of Alcohol, Tobacco, Firearms and Explosives. Gary was subsequently investigated by federal authorities, and maintains that because he may face criminal prosecution, he was forced to hire legal counsel. It is Gary's contention that Penny maliciously called the authorities to cause trouble for him, and therefore he wants her to reimburse him for half of the attorney's fees incurred in defense of this criminal matter. Penny, however, testified that she was not aware that Gary stored these items on their property and when she found them, she was scared, and merely called the authorities for assistance.

At trial, when Penny's attorney told the trial court that he thought that Gary was going to make a claim for attorney's fees incurred in the criminal matter, the trial court responded: "There is not going to be any awarding of any attorney's fees for any criminal defense work that is done for anybody in any divorce suit that I do." In three issues, Gary argues that the trial court abused its discretion and denied him a fair trial when the court announced its "policy" of not awarding attorney's fees for criminal defense work. Generally, the trial court may consider legal expenses in ordering the division of the community estate. See In re Read, 634 S.W.2d 343, 345 (Tex. App.--Amarillo 1982, writ dism'd). The division of community property is reviewed for an abuse of discretion. See Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998).

We disagree with Gary's contention that the trial court precluded him from presenting his argument regarding attorney's fees. Although the trial court questioned whether attorney's fees for the criminal matter were appropriate since Gary had not yet been indicted and the amount of fees was therefore speculative, the record confirms the trial court gave Gary an opportunity to put on proof of his attorney's fees. At one point, the trial court stated to Gary's attorney: "[Y]ou have told me that your client has committed no criminal acts . . . and that the other side has deliberately misled law enforcement and accused your client when he had not done anything, and those are, you know, horrific allegations, and, you know, if that is true, well, then, I guess I need to let you try to prove that." After that statement, Penny took the stand, but Gary failed to extract any testimony indicating that Penny maliciously reported him to the authorities. Moreover, Gary was unable to prove that because of Penny's actions he was forced to incur legal fees, as evidenced by the following exchange:

Court: Do you have any authority for that, that when we get into a divorce case, that if one party is charged with a criminal offense and incurs a substantial debt for defense fees, that the innocent party is responsible for their fees?

Counsel: No, but malicious acts on the part of one of the parties to the marriage can merit a disproportionate split.

Court: So you have law enforcement people that are going to testify that [Penny] made this up and she called them in and gave them bogus information?

Counsel: No, I do not.

Furthermore, Gary did not establish the amount of his attorney's fees. Neither Gary nor his counsel testified as to the attorney's fees that were allegedly incurred in anticipation of Gary's criminal defense. (1) Because Gary was given the opportunity to present evidence of his legal expenses but failed to do so, we cannot say the trial court abused its discretion in refusing to award attorney's fees. Accordingly, Gary's issues are overruled.Conclusion

The judgment of the trial court is affirmed.

Phylis J. Speedlin , Justice

1. Gary's counsel merely stated to the court that, "[W]e have already been paid in anticipation of future trouble to be had."