IN THE
TENTH COURT OF APPEALS
No. 10-00-00409-CV
KAREN D. SMITH,
Appellant
v.
JERRY W. SMITH, SR.,
Appellee
From the 13th District Court
Navarro County, Texas
Trial Court # 99-00-09292-CV
DISSENTING AND CONCURRING OPINION
The majority has determined that the trial court erred in its division of the community estate. I believe that this determination is in error for two reasons. First, Karen elected to accept the benefits of the judgment. Second, the record does not support the determination that the trial court abused its discretion in making the division of the community estate, that is, that the trial court acted without reference to guiding rules or principles.
Election
As noted by the majority, the amended judgment resulted in $6,000 being deposited in the registry of the court for the benefit of Karen. It is undisputed that Karen withdrew these funds during the pendency of this appeal. Acceptance of benefits under the judgment should estop her from contesting the propriety of the judgment. Tex. State Bank v. Amaro, 87 S.W.3d 538, 544 (Tex. 2002); Carle v. Carle, 149 Tex. 469, 472, 234 S.W.2d 1002, 1004 (1950). She claims that the acceptance of benefits under the judgment was not voluntary but was the result of financial duress. I am not persuaded by her bold assertion of financial duress, especially given that during the pendency of this appeal the majority has relieved her of even her minimal obligation for child support. Smith v. Smith, 63 S.W.3d 599 (Tex. App.—Waco 2002, order) (per curiam).
No Abuse of Discretion
Upon examination of the merits of the division, I cannot find that the trial court abused its discretion in its division of the community estate. When the parties do not have much, the fact that one spouse does not get much is not an abuse of discretion.
Like almost any issue involving numbers, with the use of selected computations one could make the division look grossly disproportionate. Based on the amounts as known, the trial court awarded Jerry 91% of the assets. The trial court awarded Karen only 9% of the assets. But this division resulted in Jerry’s receiving only $9,863 in net benefit more than Karen, because Jerry was awarded 88% of the debt and Karen was awarded only 12% of the debt. Given the trial court’s other findings that can be considered in making a “just and right” division, including Karen’s fault in the breakup of the marriage and a downward departure from the standard guidelines in the child support that Karen was ordered to pay, I find no abuse of discretion in the division of the community estate.
The majority puts some emphasis on the fact that three debts in Karen’s name were awarded against Karen even though the amounts were unknown. The failure to present evidence of the amount of these debts was within Karen’s control. She should not benefit on appeal from her failure to produce evidence in her control. It should also be noted that the trial court awarded Karen two assets of unspecified value: one of the vehicles, a RAV4; and the balance of a 401(k) account in her name.
The trial court did not act without regard to guiding rules or principles. The Family Code requires the trial court to order a division of the estate in a manner the court deems just and right, having due regard for the rights of each party. Tex. Fam. Code Ann. § 7.001 (Vernon 1998). The trial court has wide discretion in dividing the property of spouses upon divorce. E.g., Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998); Beard v. Beard, 49 S.W.3d 40, 66 (Tex. App.—Waco 2001 pet. denied) (op. on orig. submission). And as the majority points out, the Supreme Court has instructed that we may not substitute our judgment for that of the trial court unless the result is arbitrary or unreasonable, or the factual determination is not supported by the evidence. Brainard v. State, 12 S.W.3d 6, 30 (Tex. 1999), disapproved of on other grounds, Martin v. Amerman, 133 S.W.3d 262, 268 (Tex. 2004); Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). Just because the majority would have divided the community estate differently does not establish an abuse of discretion by the trial court. The majority’s holding causes me to believe that it has not properly applied the standard of review.
For these reasons, I respectfully dissent.
As to the remainder of the opinion, which affirms the trial court’s judgment, I concur.
TOM GRAY
Chief Justice
Dissenting and concurring opinion delivered and filed June 23, 2004