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Click here for the full text of this decision FACTS:Ronald and Paula Ohendalski married in 1985. In 2002, Paula filed for a divorce. During their marriage, they had three children, who were 13, 8 and 7 years of age when the trial court entered the divorce decree. Among the grounds for the divorce, Paula asserted that Ronald’s cruel treatment of her made their living together insupportable and that Ronald had committed adultery. Paula also asserted a no fault ground for divorce. Paula requested that the trial court give her a disproportionate distribution of the marital estate and alleged 23 separate grounds to justify her claim. Paula also requested that the court issue orders for the safety and welfare of the children as deemed necessary and equitable. During the past four years of the marriage, Ronald worked for various employers as a pipefitter. In 2003, Ronald earned $31,094 as a pipefitter and $3,142 as a musician. With respect to Paula’s employment, the evidence showed that in January 1998, she became the president of Jobs, Etc. Inc., a new corporation whose shares were owned by her sister-in-law. Paula testified that during the past two years, she earned approximately $1,900 per month from Jobs, Etc. The evidence regarding fault in the divorce concerned primarily Ronald’s affair, his alcohol use, and his mistreatment of Paula during their marriage. When the adultery question arose at trial, Ronald stipulated to an extramarital affair. Ronald did not dispute that he drinks alcohol but denied that his consumption endangered the children. Paula presented direct evidence that Ronald drank eight to nine beers a day and that he often drove while drinking. The record also reflects testimony concerning several physical altercations between Ronald and Paula, including an incident when Ronald kicked her in the presence of one of the children. Based on these incidents, the trial court found that Ronald “is guilty of cruel treatment toward Paula Jean Ohendalski of a nature that renders further living together insupportable.” Ronald appealed the disproportionate division of property favoring Paula. Ronald also challenged the divorce decree’s terms concerning his rights to possession of his children that differ from the terms of a standard possession order. Specifically, Ronald complains that the possession order limits his “total access to the children to sixty-four hours per month without provisions for any holidays, summer visitation, birthdays or Father’s Day.” Ronald also complains that during the periods he has possession of the children, the order prohibits his operating a vehicle while the children are passengers. HOLDING:Affirmed. In affirming the lower court’s property award, the court cited case law and the Texas Family Code, which provides that a trial court “shall order a division of the estate of the parties in a manner that the court deems just and right.” The division of the marital estate need not be equal, the court stated, and fault is one of the many factors that a trial court may consider in making a division of the community estate. In a fault-based divorce, trial courts may consider the conduct of the errant spouse in making a disproportionate distribution of the marital estate, the court stated. The trial court gave 81 percent of the community estate to Paula and 19 percent of the estate to Ronald. The court agreed the trial court acted within its discretion in making such a disproportionate award. There was sufficient evidence of adultery and abusive treatment to support the court’s unequal division of the community estate, the court stated. The court also found the unequal division supportable based on the benefits that Paula would have derived from the continuation of the marriage, Ronald’s greater earning power due to his education and employment prospects and the enhancement of the community estate because of the expenditures of Paula’s separate assets. The court also approved of the trial court’s consideration of the “wasteful expenditures made by [Ronald] in furtherance of said extramarital affair” in dividing the community estate. In upholding the custody order, the court referenced evidence that Ronald committed acts of family violence in the presence of one or more of the children; demonstrated a history of chronic alcohol abuse; “terrorized” one or more of the children by operating a vehicle while under the influence when the children were passengers; consumed alcohol during periods of supervised visitation; and agreed prior to the divorce to arrange transportation from his home to the children’s home at the end of his periods of possession. The court found no abuse of discretion in the trial court’s limiting Ronald’s driving while his children are passengers, or in limiting Ronald’s access to his children to 64 hours a month without provision for any holidays, summer visitation, birthdays or Father’s Day. OPINION:Horton, J.; Gaultney, Kreger, and Horton, J.J.

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