In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-15-00001-CV
________________________
BRENTLEY WAYNE HRNCIRIK, APPELLANT
V.
BOBBYE GAIL HRNCIRIK, APPELLEE
On Appeal from County Court at Law No. 2
Lubbock County, Texas
Trial Court No. 2013-509,724; Honorable Drue Farmer, Presiding
August 30, 2016
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
This is an appeal from a Final Decree of Divorce. By two issues, Appellant,
Brentley Wayne Hrncirik, contests (1) the trial court’s disproportionate award of property
to Appellee, Bobbye Gail Hrncirik,1 as being an abuse of discretion and (2) the legal and
factual sufficiency of the evidence supporting a finding that Brentley was at fault in the
breakup of the marriage. We affirm.
1
Although represented by counsel at trial, Bobbye is proceeding pro se in this appeal.
BACKGROUND
Bobbye and Brentley were married on February 28, 2004, and separated in
September 2013. She filed for divorce on December 31, 2013. The parties do not have
any children of their own but do have children from previous relationships. As grounds
for divorce, Bobbye alleged insupportability, cruel treatment, and adultery. Based on
those grounds, she also sought a disproportionate share of the community estate,
including Brentley’s retirement account.
At the time of the divorce, Bobbye worked as director of a residential healthcare
partnership for University Medical Center making $94,500 annually, as an accountant.
Brentley worked for Matco Tools and testified his base salary at the time of divorce was
$75,000 plus certain expenses and commissions. At the final hearing, he introduced a
copy of his earnings through May 29, 2014, including commissions, which showed he
had already earned $48,191.53. Although the hearing occurred in August 2014, he did
not provide a more recent earnings statement.
Bobbye testified that Brentley began an affair in April 2013. According to her
testimony, the parties attended marriage counseling to repair their marriage. During
that time, they purchased acreage with a mobile home in Seymour, Texas, intending
that it be used as a hunting ranch. They also purchased a camper for the ranch,
financed by a purchase-money note in Bobbye’s name.2 Additionally, prior to the
purchase of the ranch, they sold some lake property which they agreed to owner-
finance. During the pendency of the divorce, Brentley received those payments.
2
The testimony revealed that Brentley had sold the camper and was not applying the income
from the sale toward the debt secured by the camper. While the divorce was pending, Bobbye made the
payments on the camper to prevent damage to her credit.
2
Shortly after Bobbye filed for divorce, the trial court entered a temporary
restraining order that restrained Brentley from, among other acts, selling or transferring
property, incurring indebtedness, or spending money without court authorization. Two
months later, temporary orders were entered assigning specific financial responsibilities
to be borne by each party. Brentley was ordered to deposit proceeds from the sale of
the lake property into a trust account for the benefit of both parties. Brentley and
Bobbye were also ordered to deliver a sworn inventory and appraisement of their
property to opposing counsel. The temporary orders further memorialized the parties’
agreement to sell their residence and split the costs of any repairs and maintenance.
During the final hearing, Bobbye testified in support of her sworn inventory and
appraisement and proposed division of property and debt. Included in the document
were credit card and bank note liabilities. She explained the reasons for the bank notes
and offered to assume certain debts in her name. She also provided documentation
and photos of personal property to support her proposed division of property. Receipts
and documentation of repairs made to the residence in preparation for sale were also
admitted into evidence. She testified that contrary to the trial court’s temporary orders,
Brentley had purchased a tractor and storage building.
Brentley testified that he did not submit an inventory and appraisement or a
proposed division of property and debt to the trial court as ordered. Despite the fact that
Brentley claimed his attorney had one, no such document was introduced into evidence.
Brentley did, however, submit a document entitled “House Items” with estimated values
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for personal property totaling $90,643 (as compared to Bobbye’s valuation of $8,025).3
He testified he was using replacement cost figures whereas Bobbye testified that with
her accounting background, household items had depreciated and she attributed only
garage sale or “Craigslist” values to the personal property.
At the conclusion of the final hearing, the trial court found Brentley in contempt,
and using Bobbye’s values, ordered a disproportionate division of the community estate.
The trial court divided Brentley’s retirement benefits in his Matco Tools 401(k) plan, fifty-
two percent to Bobbye and forty-eight percent to Brentley. That portion of the property
division was memorialized in a Qualified Domestic Relations Order.
The trial court entered Findings of Fact and Conclusions of Law. Finding of Fact
2 provides that the divorce was granted on grounds of insupportability and adultery.
The trial court found that Bobbye complied with the scheduling order by presenting an
inventory and appraisement and proposed disposition of property and debt, while
Brentley failed to present either. Brentley was also found to have willfully violated the
temporary orders by failing to make payments on the camper and by failing to deposit
funds from the sale of the lake property into a trust account. The trial court made
additional findings regarding Brentley’s failure to pay his share of repairs and
maintenance on the residence. In Finding of Fact 15, specifically challenged by
Brentley, the trial court found “[t]aking into consideration the evidence presented, the
Court awarded a disproportionate share of the property and debts between the parties
based on fault in the breakup in [sic] the marriage by Brentley Wayne Hrncirik.” In its
3
Brentley testified that $52,000 in tools was misappropriated by Bobbye but she denied any
knowledge of the tools and he did not provide documentation in support of the missing tools. The trial
court ruled it would take that amount “off both sides.”
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Conclusions of Law, the trial court found “[t]here was insufficient or limited evidence
presented by Brentley Wayne Hrncirik as to property characterization and value.”
APPLICABLE LAW —ABUSE OF DISCRETION
In a decree of divorce, the trial court must order a division of the community
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 (West 2006). According to this standard,
the trial court does not have to divide the community estate equally so long as the
division is equitable. O’Carolan v. Hooper, 414 S.W.3d 288, 311 (Tex. App.—Austin
2013, no pet.). Due to this equitable standard, a trial court has wide discretion when it
comes to the division of a community estate and we review the exercise of that
discretion according to an abuse of discretion standard. Murff v. Murff, 615 S.W.2d 696,
698 (Tex. 1981). Furthermore, given the variances in property valuations and debt
allocation, there is no requirement that the court effectuate a division of the community
estate with mathematic certainty. Id. at 699.
On appeal, we will presume the trial court correctly exercised its discretion when
dividing the community estate. O’Carolan, 414 S.W.3d at 311. Accordingly, “the
appellant bears the burden to show from the record that the division was so
disproportionate, and thus unfair, that it constitutes an abuse of discretion.” Id. In that
regard, a trial court abuses its discretion when it acts arbitrarily or unreasonably, without
reference to any guiding rules or principles. See Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex.
2011) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.
1985)). Generally, there is no abuse of discretion where there is some evidence of a
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substantive and probative character to support the trial court’s decision. Swaab v.
Swaab, 282 S.W.3d 519, 515 (Tex. App.—Houston [14th Dist.] 2008, pet. dism’d w.o.j.).
When there is conflicting evidence of value, a trial court is permitted to blend all
the evidence and assign a value within the range of evidence. Moore v. Moore, 383
S.W.3d 190, 200 (Tex. App.—Dallas 2012, pet. denied); McGee v. McGee, 537 S.W.2d
94, 97 (Tex. Civ. App.—Amarillo 1976, no writ). To do so is not an abuse of discretion.
McIntyre v. McIntyre, 722 S.W.2d 533, 536 (Tex. App.—San Antonio 1986, no writ).
Factors the trial court may consider in dividing the marital estate include the parties’
earning capacity and business opportunities, their financial condition and obligations,
their education, the size of their separate estates, their age, health, and physical
condition, fault in the breakup of the marriage, the benefit the innocent spouse would
have received had the marriage continued, and the probable need for future support.
Murff, 615 S.W.2d at 699. In addition, the trial court may also consider and make
adjustments for the effect of temporary orders. In re Marriage of Ard, No. 14-14-00808-
CV, 2016 Tex. App. LEXIS 7531, at *21 (Tex. App.—Houston [14th Dist.] July 14, 2016,
no pet. h.) (mem. op.).
STANDARD OF REVIEW—LEGAL AND FACTUAL SUFFICIENCY
In conducting a legal sufficiency review, we must consider the evidence in the
light most favorable to the verdict and indulge every reasonable inference that supports
the verdict. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). Evidence will be
found to be legally sufficient if it would enable reasonable and fair-minded people to
reach the verdict under review. Id. at 827. In conducting a legal sufficiency analysis,
this court must credit favorable evidence if a reasonable fact finder could and disregard
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contrary evidence unless a reasonable fact finder could not. Id. The fact finder is the
sole judge of the credibility of the witnesses and of the weight to be given to their
testimony. Id. at 819. The reviewing court may not substitute its judgment for that of
the fact finder, so long as the evidence falls within the zone of reasonable
disagreement. Id. at 822. But if the evidence allows only one inference, neither the fact
finder nor the reviewing court may disregard it. Id. A legal sufficiency challenge may
only be sustained when the record discloses (a) a complete absence of evidence of a
vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the
only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is
no more than a mere scintilla of evidence, or (d) the evidence conclusively establishes
the opposite of the vital fact in question. Id. at 810.
A factual sufficiency challenge requires a reviewing court to consider, examine,
and weigh all the evidence in the record. Maritime Overseas Corp. v. Ellis, 971 S.W.2d
402, 406-07 (Tex. 1998), cert. denied, 525 U.S. 1017, 119 S. Ct. 541, 142 L. Ed. 2d 450
(1998). In doing so, the court no longer considers the evidence in the light most
favorable to the disputed finding; instead, the court considers and weighs all the
evidence and sets aside that finding only if it is so contrary to the great weight and
preponderance of the evidence as to be clearly wrong and unjust. Id. at 407.
ANALYSIS
By his first issue, Brentley maintains the trial court’s division of property was so
unjust and unfair as to constitute an abuse of discretion. By his second issue, he
asserts there was no evidence or insufficient evidence to support Finding of Fact 15 in
which the trial court explained that it was making a disproportionate division of property
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based on Brentley’s fault in the breakup of the marriage. Since fault is the only factor
challenged by Brentley in his argument that the trial court erred in dividing the
community estate, we will address his legal and factual sufficiency issue first.
A divorce may be granted on the basis of adultery. TEX. FAM. CODE ANN. § 6.003
(West 2006). Adultery can be established by circumstantial evidence, Morrison v.
Morrison, 713 S.W.2d 377, 380 (Tex. App.—Dallas 1986, writ dism’d), but mere
suggestion and innuendo are insufficient. In re Marriage of C.A.S., 405 S.W.3d 373,
383 (Tex. App.—Dallas 2013, no pet.). In that regard, Bobbye testified that in April
2013 Brentley met a woman at the races in Midland and they began a relationship. A
second encounter occurred in Colorado in June 2013. According to Bobbye, the
relationship was confirmed by texts from the woman and receipts for the Colorado trip.
In response to questioning during the final hearing, Brentley testified he was no longer
seeing the woman and that she was no longer texting him. The parties began marriage
counseling later that summer to repair their relationship. This evidence sufficiently
supports the trial court’s finding of adultery and the assignment of fault in the breakup of
the marriage. Issue two is overruled.
As to Brentley’s contention that the trial court’s division of community property
was so unjust and unfair as to constitute an abuse of discretion, we note that it is
impossible to determine with mathematical certainty the extent to which the trial court
favored Bobbye in the overall division of the estate. We can state that the trial court did
award Bobbye a favorable division of Brentley’s retirement—52% to 48%. Given the
trial court’s finding of fault in the breakup of the marriage, as well as various willful
violations of temporary orders, and applying the appropriate standard of review, we
8
conclude that a two percent deviation from an otherwise mathematically equal division
of the community estate does not constitute an abuse of discretion. Accordingly, issue
one is overruled.
CONCLUSION
The Final Decree of Divorce is affirmed.
Patrick A. Pirtle
Justice
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