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Click here for the full text of this decision FACTS:Karen and Jerry Smith married in November 1989. They had two children, and Jerry adopted a child of Karen’s. They were married for 10 years, but they occupied different floors of the house for the last several years. Jerry filed for divorce on Nov. 1, 1999. The trial court entered a temporary restraining order against Karen and appointed Jerry temporary sole managing conservator of the children on Nov. 3. Karen was served the same day, and she and Jerry fought. She pushed Jerry down a flight of stairs, kicked him and hit one of the children. The next day the trial court issued a protective order against Karen. On Nov. 24, the trial court again entered temporary orders, this time naming Karen temporary possessory conservator with the right of supervised visits. The order did not discuss medical support for the children, child support or spousal support. Karen filed an answer to the divorce petition on Feb. 11, 2000. She raised the issue of separate property. In another pleading, presumably filed in response to Jerry’s May 5 amended petition for divorce, Karen did not raise the separate property issue. Ten days before trial, on July 21, Karen filed a pro se cross-petition for divorce. It did not include a claim for separate property, either. After a bench trial, the trial court entered a divorce decree on Sept. 14. It named Jerry sole managing conservator, Karen possessory conservator and included a standard possession order. The trial court ordered Karen to reimburse Jerry for health insurance premiums and ordered her to pay $225 per month in child support. The order awarded the majority of the marital estate, including the home, to Jerry and awarded $6,000 to Karen. In its findings of facts and conclusions of law, the court found that 1. Karen was capable of making $400 per week; 2. the three children, including the 6-year-old, each signed and filed with the court a “Choice of Managing Conservator by Child Ten Years of Age or Older” choosing Jerry as managing conservator; 3. Karen committed family violence against Jerry and one child on Nov. 3, 1999; 4. Karen threatened the welfare of the children; 5. Karen used and stored marijuana in the home in the presence of the children; 6. Karen had provided no significant financial support for her children since about Nov. 4, 1999; 7. certain assets and debts were community property; and 8. during the divorce proceedings, Jerry incurred reasonable and necessary attorneys’ fees of $7,935 and costs and expenses of $465. The court concluded: 1. Jerry had separate property consisting of a rocking chair, a twin bed, a dresser and two quilts; 2. the community property division was just and right, considering the rights of each party and the children of the marriage and Karen’s fault in the breakup of the marriage; 3. Karen is likely to commit family violence against Jerry or a household member in the future; and 4. it is in the best interest of the children that Karen have possession of the children pursuant to the terms and conditions of a standard possession order. On appeal, Karen says the trial court erred by not allowing her to prove that she had separate property and by finding that she had none. She claims that her separate money was used as the down payment for the family home. She further complains that the trial court unfairly divided the community estate, that the court erred in its conservatorship determination, that the trial court should have appointed a guardian ad litem and that the child support order was in error. HOLDING:Affirmed in part; reversed and remanded in part. Because Karen did not make an offer of proof or file a formal bill of exception regarding the existence of her separate property, she has not preserved her complaint for review. In response to Karen’s challenge to the division of the community estate, Jerry argues that, because Karen withdrew the $6,000 he was ordered to pay into the court’s registry in satisfaction of the divorce decree, she accepted the benefits of the trial court’s order. The court points out that the acceptance-of-benefits doctrine does not apply when acceptance his necessitated by financial duress or other economic circumstances. Here, the because of the trial court’s lopsided division of the community property, Karen’s acceptance of the $6,000 was not voluntary and the doctrine does not apply. The court notes that the most common factors used to justify a disproportionate community property division are fault and disparity in income, earning capacity, business opportunities and education. The record showed that Jerry had more income, a higher earning capacity and better business opportunities than Karen. Jerry is older and has health problems, but nothing indicated that these conditions interfered with his earning capacity. On the other hand, Karen has a disabling back injury and she takes anti-depressant and anti-anxiety medications. The court adds that the trial court ordered Karen to assume three community debts, but that it did not specify how much, so that court could not have considered the amount of these debts in dividing the community estate. Taking all of this into account, the court concludes that the uneven property division was not supported by the record. The court then reviews the trial court’s order on conservatorship. There was evidence that the children had picked Jerry as their preferred conservator, and there was evidence of Karen’s attack on Jerry and one of the children on Nov. 3. He had been the primary caretaker, despite working until late at night during a previous job. Meanwhile, Karen’s introduced testimony 23 witnesses, but only six of those witnesses had any contact with the family, unrelated to the divorce, in the past year. The court concludes that the record as a whole supports the trial court’s decision. With little discussion of the facts, the court rules there was no abuse of discretion in not appointing a guardian ad litem. Noting the court’s findings that Karen could earn $400 per week before her injury, but had only $150 in expenses (rent), the court finds that the trial court actually made a downward deviation in Karen’s favor, which was within the court’s discretion to do. OPINION:Vance, J.; Gray, C.J., Vance and Reyna, JJ. CONCURRENCE AND DISSENT:Gray, C.J. “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.”

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