A trial court must effect a “just and right” division of property in a Texas divorce. When a party pleads a fault-based divorce, the court may consider the other’s parties conduct and divide the property disproportionately. A husband recently challenged a disproportionate division.
According to the appeals court’s opinion, the husband petitioned for divorce, and the wife alleged cruel treatment. The trial court found cruel treatment led to the breakup and awarded the wife a disproportionate property division and the exclusive right to determine the child’s primary residence.
The husband appealed the disproportionate property division and the custody determination.
Fault-Based Grounds for Divorce
The Texas Supreme Court has held that courts can consider a number of factors in dividing the estate, including fault in the breakup and the benefit the other spouse would have received if the marriage did not end. Cruelty is a ground for a fault-based divorce and occurs when the spouse’s conduct renders the marriage insupportable. A marriage is insupportable when “discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.” Tex. Fam. Code § 6.001.
The parties married in 2012 and had their child in 2013. The husband was a police officer with the sheriff’s office. The wife stayed at home to take care of the child, but began English classes when the child started daycare. She had originally come to the U.S. from Mexico on a student visa.
Testimony Regarding Cruelty
The wife alleged the husband was violent with her since her pregnancy. She said when she tried to leave him, he pointed a gun at his head and threatened to kill himself. The wife testified the husband would take the car keys to keep her from leaving. She presented photos of bruises to her arm on one occasion and to her head on a separate occasion. She said she did not call the police because she did not want the husband to lose his job.
A friend testified she had not seen any conflict between the parties. She also said the parties came to her home following a “disturbance” and the wife was crying and said the husband hit her. She said someone from the sheriff’s office came, but did not make an arrest. She also said the wife stayed there for “a couple of days.” The wife said the sheriff’s office claimed they would file a report when they were called, but did not do so.
The wife testified the husband bullied her because he was a police officer. She said he called the police on her and the child was present when more than 20 deputies arrived. She claimed she reported that the husband assaulted her, but the sheriff’s office did not believe her.
The wife said the husband told her to leave the apartment in 2018 despite her having no job or money. She alleged he prevented her from seeing the child and only let her have visits once or twice a week. She said she was not allowed to take the child out of the husband’s apartment without him. She claimed he told her she had to wait for the court to resolve everything before she could take the child. She presented a text message thread showing he threatened to file a missing person report when she picked the child up from school, even though he knew the child was with her. She said she did not have time alone with the child without the husband interfering until the trial court issued temporary orders in February 2019.
The temporary orders required the husband to pay spousal maintenance, but he did not make timely payments until the wife filed a motion to enforce. The wife paid all of the court-ordered child support, but the husband was three months behind on spousal payments at trial.
The husband said he had not assaulted or tried to control the wife. He alleged the wife destroyed property and was “mentally abusive. . .” He claimed she yelled in front of the child. He said she refused to work, but also said she was learning English so she could get a degree and a job she wanted. He alleged the wife threatened to take the child to Mexico and not come back, but she denied it.
Appeals Court Finds in Favor of Mother
The appeals court found the trial court could have reasonably relied on the wife’s testimony to determine the husband’s conduct rendered the parties continuing to live together insupportable. The trial court was the sole judge of the witnesses’ credibility and the weight of the testimony. It could have believed the wife and not the husband. The appeals court found no abuse of discretion in the finding of cruelty.
That finding of cruelty supported the disproportionate property division. The court stated in its findings that the disproportionate division was due to fault based on the grounds of cruel treatment. The court also pointed to the husband’s greater earning capacity. The appeals court found no abuse of discretion in the disproportionate property division based on the finding of cruelty and the discrepancy in earning capacity.
The husband also argued the evidence was insufficient to support a finding the mother should have the exclusive right to determine the child’s primary residence.
Although there was evidence both parents loved and cared for the child, a trial court must consider a history of domestic violence in determining conservatorship. The wife acknowledged the husband had not been violent toward the child, but she was concerned the child could witness violence against someone else. The trial court could have found the father’s limitations on the mother’s access to the child were not in her best interest. The appeals court found no abuse of discretion in the trial court awarding the mother the exclusive right to determine the child’s primary residence.
The appeals court affirmed the trial court’s judgment.
Is Your Spouse at Fault in Your Divorce? Call McClure Law Group Today.
If your spouse was at fault for the break-up of your marriage, a skilled Texas divorce attorney can help you fight for a fair property division. Contact McClure Law Group at 214.692.8200 to schedule a consultation.