YSIDRO CAVAZOS, JR. v. JANIE MARIE CAVAZOS--Appeal from 404th District Court of Cameron County

  NUMBER 13-01-00517-CV

  COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  BEDINBURG

YSIDRO CAVAZOS, JR., Appellant,

v.

JANIE MARIE CAVAZOS, Appellee.

  On appeal from the 404th District Court of Cameron County, Texas.

  O P I N I O N

  Before Justices Dorsey, Hinojosa, and Rodriguez

Opinion by Justice Hinojosa

This is a divorce case. In a single issue, appellant, Ysidro Cavazos, Jr., contends the trial court abused its discretion in dividing the marital estate. We affirm.

A. Background

Appellant and appellee, Janie Marie Cavazos, were married in Cameron County in 1981. Two children were born of the marriage. In 1995, the parties purchased a residence. The parties separated in 1999, and appellant filed for divorce. The case was tried to the court, and the court rendered its decision on February 6, 2001. The decision was reduced to writing, and the court signed the AFinal Decree of Divorce@ on March 1, 2001.

The record reflects appellant earns approximately three times as much money as appellee. Appellee attended college, but did not graduate. Appellee received vocational training as a nail technician, but did not complete her certification. Appellant is employed as a handyman.

At the time of trial, the parties= older child was eighteen years old, and the younger child was thirteen years old. Primary custody of the younger child was awarded to appellee. The parties= personal property and debts were divided between them. The court also ordered the following:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the parties are to sell the community real property located at 480 South Travis, San Benito, Cameron County, Texas after the minor child YSIDRO CAVAZOS III turns eighteen on September 26, 2005 or graduates from high school whichever occurs first: LEGAL DESCRIPTION: SAN BENITO B HEYWOOD LOT 5 BLK 6.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Petitioner YSIDRO CAVAZOS, JR. is awarded twenty percent (20%) of the community property and Respondent JANIE MARIE CAVAZOS is awarded eighty percent (80%) of the real estate equity after sale.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that once the minor child reaches the age of eighteen or is otherwise emancipated, the community residence shall immediately be listed with a Realtor, specifically ERE, and all parties are Ordered to execute the documents necessary to place the residence on the market at the market value or appraisal value at that time.

IT IS FURTHER ORDERED that at all times, all outstanding ad valorem taxes, insurance premiums, and/or related expenses be paid by Respondent JANIE MARIE CAVAZOS. Any ad valorem taxes owed at the time the real estate is sold is to be taken from the proceeds due to Respondent JANIE MARIE CAVAZOS, as it is her sole obligation to pay said taxes from February 2001 until paid.

At the time of trial, there was no mortgage on the parties= residence.

B. Analysis

In a single issue, appellant contends the trial court abused its discretion in awarding eighty percent of the net sale proceeds of the parties= residence to appellee and twenty percent of the net sale proceeds of the parties= residence to appellant, because the evidence does not support such a disparate property division.

Trial courts have wide discretion in the division of property upon divorce and are allowed to take many factors into consideration in making a just and right division. Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998); Murff v. Murff, 615 S.W.2d 696, 698-99 (Tex. 1981). Section 7.001 of the family code provides: AIn a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.@ Tex. Fam. Code Ann. ' 7.001 (Vernon 1998). The trial court=s discretion is not unlimited, and some reasonable basis must exist for an unequal division of the property. O=Carolan v. Hopper, 71 S.W.3d 529, 532 (Tex. App.BAustin 2002, no pet. h.); Zieba v. Martin, 928 S.W.2d 782, 790 (Tex. App.BHouston [14th Dist.] 1996, no writ).

When we review a trial court=s division of marital property, we presume the trial court exercised its discretion properly. Vallone v. Vallone, 644 S.W.2d 455, 460 (Tex. 1982); Murff, 615 S.W.2d at 696. We will not disturb a trial court=s ruling unless a complainant has shown a clear abuse. Vallone, 644 S.W.2d at 460; Cockerham v. Cockerham, 527 S.W.2d 162, 173 (Tex. 1975). A clear abuse of discretion is shown only if the division of property is manifestly unjust and unfair. Trevino v. Trevino, 555 S.W.2d 792, 802 (Tex. App.BCorpus Christi 1977, no writ). The test for abuse of discretion is not whether, in the opinion of the appellate court, the facts present an appropriate case for the trial court=s action; rather, it is a question of whether the trial court acted without reference to any guiding rules or principles, and the mere fact that a trial judge may decide a matter within his discretionary authority differently than an appellate judge does not demonstrate such an abuse. Jones v. Jones, 804 S.W.2d 623, 624 (Tex. App.BTexarkana 1991, no writ).

We conclude the trial court=s award of eighty percent of the net sale proceeds of the parties= residence to appellee and twenty percent of the net sale proceeds of the parties= residence to appellant, is not in and of itself a showing of a clear abuse of discretion. The trial court considered a number of factors in dividing this portion of the parties= estate, including: (1) the parties comparative expenditures; (2) the comparative indebtedness of the parties; (3) the benefits received from the expenditures and indebtedness of each party; (4) the parties= comparative education and employability; (5) the parties= comparative incomes; (6) the nature of the property involved; and (7) the tax consequences of the division of the property.

Appellee was awarded primary custody of the minor child. Because of the minor child, the court ordered that the parties= residence not be sold until the date the child reaches the age of eighteen or graduates from high school, whichever occurs first. In the interim, appellee was ordered to pay the taxes and expenses related to the property.

At the time of trial, appellant was earning approximately three times as much as appellee. While appellee had almost finished college, she had not done so; and though she had finished vocational training as a nail technician, she had not been certified by the state. Appellant had more readily marketable job skills, and was potentially able to earn significantly more income in the future than appellee would. Debts were allocated according to who acquired them, when, and for what purpose.

We conclude the criteria used by the trial court constitutes a reasonable basis for an unequal distribution of the property. Further, the evidence supports a disparate property division. Accordingly, we hold the trial court did not abuse its discretion in awarding eighty percent of the net sale proceeds of the parties= residence to appellee and twenty percent of the net sale proceeds of the parties= residence to appellant. Appellant=s sole issue is overruled.

The trial court=s final decree of divorce is affirmed.

FEDERICO G. HINOJOSA

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

11th day of July, 2002.