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Click here for the full text of this decision FACTS:Carmen and Ismael Chafino were married in El Paso on June 8, 1968. Carmen filed for divorce on Aug. 4, 2004, alleging insupportability, adultery and cruel treatment. Ismael filed a general denial and a counterpetition for divorce on Aug. 25, 2004, also alleging insupportability and cruel treatment. The couple were divorced on July 18, 2005, at the conclusion of a bench trial. The final divorce decree, with property division, was entered on June 5, 2006. Both spouses worked outside the home during the marriage. Ismael was a food inspector for the U.S. Department of Agriculture, but he planned on retiring within a year of the divorce. Carmen worked for 42 years as a certified bookkeeper. Carmen was retired at the time of trial. Carmen managed the family’s finances during the marriage. Ismael described himself as a stranger to the family’s financial situation. At the time of trial, the community estate contained a number of real and personal property assets. The couple’s marital home, known as 10716 Janway, had an appraised value of $115,000 and a $53,744.62 mortgage. Ismael testified that he thought the property was worth between $120,000 and $125,000. The couple owned a rental property, known as 1052 Francine, which had an appraised value of $43,000 and no outstanding mortgage. The couple also owned two unimproved lots, one known as the Timberon lot, and another in Clint, Texas, known as the Clint lot. The couple also had retirement and savings assets. Carmen’s retirement account with Vanguard was valued at $84,766.68 at the time of the divorce. Ismael’s retirement savings, including an account with the Federal Employees Retirement System (FERS) and an additional thrift savings plan, totaled over $80,000. There were also three certificates of deposit. The first CD, with Wells Fargo Bank, had a face value of $23,000, but it was encumbered by a $16,800 debt. The second CD, with State National Bank was in Ismael’s name and was worth $3,081.01, according to an account statement dated Feb. 11, 2003. At one point, Ismael testified that, at the time of the divorce, the State National CD had been cashed in and no longer existed, although he did not cash it in himself and did not know how the money had been spent. At another point, he testified that the State National CD had a balance at the time of trial, but that the money belonged to his 81-year-old mother. Ismael continued by stating that his name was only on the account so that he could make withdrawals on his mother’s behalf, to provide for her needs. Ismael also testified that the third CD, with Chase Bank, was for his mother’s benefit, specifically to pay for funeral expenses. The CD had a value of approximately $6,000 at the time of trial. Carmen testified that the State National and Chase CDs were funded by savings bonds for which she and Ismael had saved together. She also testified that Ismael had the bonds sent to his mother’s address and “just got upset” when she asked him why he was having the bonds sent to his mother’s address. The final community assets were household furnishings, electronics and other items of personal property, which are not valued in the record, as well as three cars, including a 1994 Lincoln Town Car, a 2002 Buick Century and a 1984 Honda Accord. The Lincoln had an estimated value of $1,500. The Buick had an estimated value of $8,000, but was subject to a loan almost equal to its value. The Honda Accord was not running and was worth approximately $500. In addition to the debts discussed in relation to the community assets, the couple also had outstanding balances on seven retailer-specific, and several other general, credit cards. The community estate had a variety of medical debts due to Carmen’s health problems, totaling $1,642.49. Carmen testified that the couple also owed money to an entity called HFC for a line of credit on which they had drawn for a variety of expenses over many years. At the time of the divorce, the outstanding debt to HFC was $7,548. Carmen testified that she filed for divorce, in part, because of Ismael’s extramarital behavior. Throughout discovery and at trial, Ismael denied having committed adultery. The trial court saw videotaped evidence and heard eyewitness testimony from two people on the issue of his infidelity. Private investigator Raul Acosta produced videotape evidence and testified that he witnessed Ismael having an affair with a woman named Rosa Rubalcaba. According to Acosta, Ismael met with Rubalcaba on several occasions. Sometimes they would remain in the vehicle for extended periods of time “showing their affection.” On June 2, 2005, Acosta witnessed and videotaped Ismael and Rubalcaba rent a room at a Motel 6 on the eastbound side of Interstate 10. Acosta explained that the pair arrived at the motel in Ismael’s government car at 3:50 p.m. and stayed there for approximately three hours and 20 minutes. Rubalcaba admitted that she and Ismael had had sexual relations at the motel on June 2, 2005, and on one other occasion. She also testified that she did not know that Ismael was married until she received the summons to testify at trial. Acosta also videotaped Ismael visiting the home of another woman, Rosanna Bringas Torres, on several occasions, late into the evening. Acosta attempted to serve a subpoena on Bringas Torres, but he was unsuccessful, and she did not testify at trial. The trial court entered its property division order on June 5, 2006. Each spouse was awarded the personal belongings and finances in his or her sole control or possession, as well as his or her own individual retirement accounts. Ismael was awarded the Buick and the Honda automobiles, as well as the State National and Chase Bank certificates of deposit. He was also awarded a State National Bank savings account, his tools, a steel cabinet, a few of his deceased son’s possessions and a few other personal possessions. The court ordered that the Clint and Timberon lots be sold and the proceeds applied to the couple’s outstanding tax debt, with any remaining proceeds split evenly. The remainder of the community assets, including both houses, were awarded to Carmen. The trial court ordered Ismael to pay the balances on the Sears and Capitol One credit cards, the HFC debt and the thrift savings account loan. The trial court ordered Carmen to pay the Janway mortgage, the remainder of the credit card debt and her own medical bills. Carmen appealed on two issues. In issue one, she asserted that the trial court abused its discretion in the property division, by failing to award her a greater portion of the community estate. In issue two, she contended that the trial court erred by failing to award her spousal maintenance. HOLDING:Affirmed. Carmen argued that Ismael’s adultery and his continual denials thereof during trial entitled her to a larger proportion, so that the trial court’s division was an abuse of discretion. Texas Family Code �7.001, the court stated, gives the trial court broad authority to divide the marital estate in a manner it deems just and right. Community property need not be divided equally, but the division must be equitable, the court stated. The trial court’s discretion in making the division, while broad, is not unlimited; the court must have a reasonable basis for an unequal division of the community estate. The trial court may consider a variety of factors, including: 1. the spouses’ capacities and abilities; 2. benefits which the party not at fault would have derived from the continuation of the marriage; 3. business opportunities; 4. relative physical conditions; 5. relative financial conditions; 6. disparity of ages; 7. size of separate estates; 8. the nature of the property; and 9. disparity of earning capacity. In a fault-based divorce, the trial court may also, in making a disproportionate division, consider the conduct of the errant spouse. Ismael’s apparent adulterous behavior and his consistent denials thereof provided the trial court with a reasonable basis for making an unequal property division in Carmen’s favor. Ismael, however, did not challenge the court’s division in Carmen’s favor; instead, Carmen argues, in essence, that the court abused its discretion by not making the division even more unequal. But the court stated that an unequal property division may not be used to punish the party at fault in the divorce. Moreover, the court stated, the trial court awarded Carmen more than 70 percent of the community estate. The record also showed that the trial court’s division followed Carmen’s proposed division item for item, with only three exceptions. Thus, Carmen did not carry her burden to show that the trial court abused its discretion. Next, Carmen contended that the trial court also abused its discretion by failing to order Ismael to continue to pay spousal maintenance. She argued that during their 37 years of marriage, Ismael was the more prominent provider and was able to develop his career. Section 8.051(2)(C) of the Texas Family Code requires that for a divorcing spouse to receive maintenance, the marriage must have lasted at least 10 years and the spouse seeking maintenance payments must show that she lacks sufficient property, including property distributed incident to the divorce, to provide for her minimum reasonable needs, and that she “clearly” lacks earning ability in the labor market adequate to provide support for such reasonable needs. Furthermore, the court noted that the Texas Family Code presumes that spousal maintenance under �8.051(2) is not warranted, unless the spouse seeking maintenance has exercised diligence in seeking suitable employment or developing the necessary skills to become self-supporting during the period of separation or the time the divorce is pending. Carmen testified that she suffered from several medical problems. She had high blood pressure, high cholesterol, asthmatic bronchitis, problems with her knee and stomach problems, which required ongoing medical care. She also testified that she had “emotional problems” that forced her to retire. There was no evidence in the record to indicate that Carmen attempted to return to work during the period of separation, and the record does not contain an explanation of why her ailments prevented her from returning to work as a bookkeeper. In light of the assets that Carmen received in the divorce, and the lack of evidence to overcome the statutory presumption of �8.051(2), the court held that the trial court did not abuse its discretion when it declined to award spousal maintenance. OPINION:Carr, J.; Chew, C.J., and McClure, and Carr, JJ.

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