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Ramirez v. Ramirez

Court of Appeals of Texas, Fourth District, San Antonio
May 14, 2008
No. 04-05-00759-CV (Tex. App. May. 14, 2008)

Opinion

No. 04-05-00759-CV

Delivered and Filed: May 14, 2008.

Appealed from the 218th Judicial District Court, Wilson County, Texas, Trial Court No. 04-08-0384-CVW, Honorable Donna S. Rayes, Judge Presiding.

Affirmed.

Sitting: CATHERINE STONE, Justice, SANDEE BRYAN MARION, Justice, REBECCA SIMMONS, Justice.


MEMORANDUM OPINION


In this appeal from a final divorce decree, Appellant Pedro Ramirez, Jr. ("Pedro") challenges the trial court's discretion in granting Irma Ramirez ("Irma") primary conservatorship and in dividing the property. We affirm the judgment of the trial court.

FACTUAL BACKGROUND

Pedro and Irma were divorced in 2005 after approximately twelve years of marriage. They are the parents of two children, aged ten and twelve at the time of the divorce. The divorce proceeded before the trial court with both parties presenting several witnesses. The testimony was mixed — one witness claiming that Irma provided alcohol to underage minors and another witness describing Pedro as violent and mean. However, even Pedro testified that Irma was a "good" or "loving" mother to the boys. In its decree, the trial court appointed the parties as joint managing conservators of the children and gave Irma the right to establish the primary residence of the children. The court ordered standard visitation.

Very little testimony was provided concerning the property of the parties. Uncontroverted testimony established that Pedro was a hard worker and earned approximately $26,000 per year at his regular job. Irma testified he received a bonus check every three months in the amount of one thousand dollars and also held numerous side jobs. Irma worked two jobs, one as a waitress at restaurants earning approximately $2.00 per hour plus tips and the other at a convenience store for $6.50 per hour. The parties owned approximately forty-five acres of land, as well as 123 hunting dogs, trained by Pedro, a few horses, and a number of goats. Prior to the divorce, the parties lived together in a mobile home on one of the tracts of land. At the time of trial, Irma was living with her mother, stepfather and niece and Pedro was living in the mobile home on approximately twenty-two acres owned by the parties.

STANDARD OF REVIEW

We review the trial court's determinations of conservatorship, possession and access under an abuse of discretion standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). While the trial court has wide latitude to determine these issues, the court's primary consideration is the child's best interest. Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex. 2002). A reviewing court reverses only if the trial court acted "without reference to any guiding rules or principles," or, in other words, arbitrarily or unreasonably. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). The standard of review for the division of property is likewise an abuse of discretion standard. McKnight v. McKnight , 543 S.W.2d 863, 866 (Tex. 1976). An abuse of discretion occurs where a division of community property is manifestly unfair. See Mann v. Mann , 607 S.W.2d 243, 245 (Tex. 1980).

ANALYSIS

A. Possession and Conservatorship

Both parties introduced testimony from friends and family concerning the relationship between the parents and children. Positive testimony about both parents was introduced. Pedro principally relies on the testimony of his niece, A.G., to support his contention that he should have been awarded primary custody of the children. A.G., a sixteen-year-old, testified that she worked with Irma as a waitress and that Irma appeared too friendly with another waiter and would purchase alcoholic beverages for A.G. and her friends. Yet, she also described Irma as a "loving mother." Irma denied the claims regarding alcohol and the waiter, and explained that A.G. had a reason to fabricate such stories. Irma and her family testified to Irma's care and concern for the children and the stability she provided for the children. Even Pedro testified that Irma is a "good mother." Irma testified that Pedro preferred his dogs over the children and rarely spent time with them. She also testified that he could be violent and struck her on occasion. Reviewing the record as a whole, there is ample evidence to support the trial court's order regarding possession and conservatorship.

We now turn to the division of the parties' possessions.

B. Property Division

The Texas Family Code provides that the trial court shall order a division of the community property 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 2006). A property division need not be equal and may take into consideration many factors, such as the spouses' respective abilities, benefits that the party not at fault "would have derived from a continuation of the marriage, business opportunities, education, relative physical conditions, relative financial condition and obligations, disparity of ages, size of separate estates, . . . the nature of the property . . . [and] disparity in earning capacities or of incomes." Murff v. Murff , 615 S.W.2d 696, 699 (Tex. 1981). A trial court is presumed to have properly exercised its discretion in applying these factors, and a property division will be reversed on appeal only upon a showing of an abuse of discretion. Id. at 698.

The trial court awarded Pedro 22.9452 acres with the accompanying debt. He received his truck, the livestock, the boat, guns, tractor and welding machine. He was awarded any life insurance insuring his life. Irma received the mobile home and the approximately 22.1233 acre tract of land upon which it sits. Pedro announced, in open court, that he wanted his wife to have the contents of the mobile home. Pedro was ordered to pay three years worth of payments on the property awarded to Irma, and thereafter, she was ordered to pay the balance due on the property.

Pedro does not challenge the trial court's division based on an equitable division of the community estate; rather he challenges the court's award of considerable debt to him, particularly considering the alleged fault Irma played in the divorce. The trial testimony however, did not clearly point to Irma as the cause of the divorce. There was testimony that Pedro was an inattentive spouse and father and more interested in hunting and working than in his family. There are no findings of fact in this case and neither the decree nor Pedro's brief reflects a total dollar value of the community estate. Given the record in this case, we cannot say the trial court abused its discretion in its division of property.

Pedro admits in his brief that the disparity in earnings weighs in favor of Pedro, that business opportunities may weigh in favor of Pedro and that education, health and age are relatively equal.

CONCLUSION

Because the trial court did not abuse its discretion regarding either possession and conservatorship of the minor children or the division of community property, we affirm the judgment of the trial court.


Summaries of

Ramirez v. Ramirez

Court of Appeals of Texas, Fourth District, San Antonio
May 14, 2008
No. 04-05-00759-CV (Tex. App. May. 14, 2008)
Case details for

Ramirez v. Ramirez

Case Details

Full title:Pedro RAMIREZ, Jr., Appellant v. Irma G. RAMIREZ, Appellee

Court:Court of Appeals of Texas, Fourth District, San Antonio

Date published: May 14, 2008

Citations

No. 04-05-00759-CV (Tex. App. May. 14, 2008)