Cervantes v. Cervantes

591 S.W.2d 332, 1979 Tex. App. LEXIS 4421
CourtCourt of Appeals of Texas
DecidedNovember 29, 1979
Docket1490
StatusPublished
Cited by3 cases

This text of 591 S.W.2d 332 (Cervantes v. Cervantes) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cervantes v. Cervantes, 591 S.W.2d 332, 1979 Tex. App. LEXIS 4421 (Tex. Ct. App. 1979).

Opinion

OPINION

BISSETT, Justice.

This case involves an appeal from a decree of divorce and division of property incident to the divorce. Maria Cervantes, the wife-appellee, brought suit against Efrain Cervantes, the husband-appellant, for divorce, conservatorship of the children born to the marriage and division of the property of the parties. The case was tried before a judge on October 11, 1978. Following the trial, the court, on November 6, 1978, rendered a decree which divorced the parties, awarded managing conservatorship of the children to the wife, and divided the property accumulated by the parties during the marriage.

On appeal, the husband-appellant challenges the granting of divorce and the division of the property. The petitioner-appel-lee will henceforth be referred to as “the wife.” The respondent-appellant will hereafter be called “the husband.”

In her petition for divorce, the wife alleged that the marriage had become “insupportable because of discord or conflict of personalities between petitioner and respondent that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation.” This allegation was made pursuant to Tex. Fam.Code Ann. § 3.01 (1973), which provides:

“On the petition of either party to a marriage, a divorce may be decreed without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation.”

In a divorce case, the sufficiency and weight of the evidence necessary to meet the requirements of insupportability must be left to the sound discretion of the court trying the case, and on appeal from a judgment granting a divorce every presumption must be indulged in favor of the judgment. Elrod v. Elrod, 517 S.W.2d 669 (Tex.Civ. *334 App.—Corpus Christi 1974, no writ);. Cusack v. Cusack, 491 S.W.2d 714 (Tex.Civ. App.—Corpus Christi 1973, writ dism’d.).

In his first point of error, the husband contends the evidence was insufficient to establish the marriage had become insupportable because the greater weight of the evidence showed that the parties had lived together since the wife filed her petition for divorce. At the trial the wife testified to discord and a conflict of personalities which rendered the marriage impossible and insupportable. She further testified that, in her opinion, there was no hope that she and her husband could live together as husband and wife. In a divorce case, the petitioner’s opinion that continuing the marriage relationship would not be feasible satisfies the. requirement of the Texas Family Code to make out a prima facie case of divorce. Baxla v. Baxla, 522 S.W.2d 736 (Tox-Civ. App.—Dallas 1975, no writ). Furthermore, although the husband brought forward some evidence that the parties were living together, the wife unequivocally testified that any such relationship did not involve marital interaction. She further testified that there had been many arguments between them and that she had suffered physical abuse as well as public embarrassment because of her husband’s acts in the past.

The cumulative effect of all the evidence presented by the record is sufficient to support a finding of insupportability within the purview of section 3.01 of the Family Code. The husband’s first point of error is overruled.

In its divorce decree the trial court divided the property of the parties as set out in the accompanying footnote. 1

*335 Wide latitude is granted to trial courts in exercising discretion in determining a division of the property between the parties to a divorce. Williams v. Williams, 160 Tex. 99, 325 S.W.2d 682 (1959); Hayes v. Hayes, 378 S.W.2d 375 (Tex.Civ.App.—Corpus Christi 1964, writ dism’d), Baxla v. Baxla, supra; Hensley v. Hensley, 496 S.W.2d 929 (Tex.Civ.App.—El Paso 1973, no writ). There is a presumption in favor of the trial court’s exercise of its discretion regarding division of the property. Bell v. Bell, 513 S.W.2d 20 (Tex.1974); Verbal v. Verbal, 567 S.W.2d 898 (Tex.Civ.App.—San Antonio 1978, no writ); Grost v. Grost, 561 S.W.2d 223 (Tex.Civ.App.—Tyler 1978, no writ); Hopkins v. Hopkins, 540 S.W.2d 783 (Tex.Civ.App.—Corpus Christi 1976, no writ).

There are no findings of fact or conclusions of law. Therefore, we must pre-' sume that the trial court considered all of the circumstances of the parties in connection with the division of their property. Musslewhite v. Musslewhite, 555 S.W.2d 894 (Tex.Civ.App.—Tyler 1977, writ dism’d); Whittenburg v. Whittenburg, 523 S.W.2d 797 (Tex.Civ.App.—Austin 1975, no writ); Morin v. Morin, 561 S.W.2d 263 (Tex.Civ.App.—Corpus Christi 1978, no writ).

By his second point of error, the husband contends that the divesting of all his right, title and interest in the homestead of the parties was against the greater weight and preponderance of the evidence. In support of this point, he directs attention to his wife’s testimony that a fair division of the property would be approximately fifty-fifty. He further contends that the trial court failed to consider the following:

(1) the fault of the wife in breaking up the marriage;
(2) the contribution by the community estate to the wife’s education as a teacher; and,
(3) the comparative future earning powers of the parties.

The wife is a school teacher. She makes approximately $640.00 per month. The husband is a postal worker who makes approximately $900.00 a month. The wife was awarded managing conservatorship of four children. There was no conclusive assignment of blame to either of the parties insofar as the insupportability of the marriage was concerned. Although the wife testified that a 50% division of all the property would be satisfactory to her, there was no unequivocal indication on her part that divestiture of the husband’s interest in their homestead would be unacceptable.

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Bluebook (online)
591 S.W.2d 332, 1979 Tex. App. LEXIS 4421, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cervantes-v-cervantes-texapp-1979.