in the Matter of the Marriage of Jo Ann Oney and Johnny Ray Oney

• Court: Court of Appeals of Texas
• Decided: August 14, 2012
• Docket: 06-12-00031-CV
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

_________________________

No. 06-12-00031-CV ______________________________

IN THE MATTER OF THE MARRIAGE OF JO ANN ONEY AND JOHNNY RAY ONEY

On Appeal from the 71st Judicial District Court Harrison County, Texas Trial Court No. 11-0828

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION

As part of the divorce of Johnny Ray Oney and Jo Ann Oney, ending a twenty-two-year

marriage, the trial court divided their property, in part by partitioning a 35.18-acre tract,

awarding Jo Ann the portion containing both what was the marital residence and also a mobile

home occupied by Jo Ann’s parents. Johnny asserts on appeal that such division was not just and

right but, instead, allocated to Jo Ann a disproportionate part of the property.

Much of the property valuation and disposition was agreed to before trial. The core issue

at the trial concerned the real property and the residence. There was testimony elicited from Jo

Ann about an “equity” interest of about $40,000.00 she would owe Johnny if all of the 35.18

acres was awarded to her. Johnny testified at one point that it might be appropriate to sell the

property and divide the proceeds. The principal evidence about the value of the residence and

land is based on the assessed value for tax purposes of $176,861.00.

The trial court used neither allocation method suggested by the parties. Instead, it

ordered the property partitioned as mentioned above.1 Because the record does not reveal that

there was an abuse of discretion in the property division, we affirm the trial court’s judgment.

The trial court has wide discretion in dividing the estate of the parties, and we disturb the

trial court’s division only when an abuse of discretion has been shown. Murff v. Murff, 615

S.W.2d 696, 698 (Tex. 1981). Under this abuse-of-discretion standard, the sufficiency of the

evidence does not provide the core of any point of error, but the legal and factual sufficiency of

the evidence is relevant in assessing whether the trial court abused its discretion. In re Marriage 1 The record contains nothing to indicate the shape of the property or the location of the two residences on the property.

2 of Jeffries, 144 S.W.3d 636, 641 (Tex. App.—Texarkana 2004, no pet.); Mai v. Mai, 853 S.W.2d

615, 618 (Tex. App.—Houston [1st Dist.] 1993, no writ). To constitute an abuse of discretion in

the property division, the allocation of the property must be manifestly unfair. See Mann v.

Mann, 607 S.W.2d 243, 245 (Tex. 1980).

Although a trial court’s discretion in dividing property is not without limit, an appellate

presumption arises that the trial court properly exercised its discretion, shifting the burden to the

appellant to show from the record that the division was so disproportionate, and thus so unjust

and unfair, as to constitute an abuse of discretion. In re Marriage of Morris, 123 S.W.3d 864,

868 (Tex. App.—Texarkana 2003, no pet.).

There is no complaint in this record that the property was improperly classified as

community or separate, only that the division of the property is disproportionate. Jo Ann agreed

in her testimony that she would owe Johnny $40,000.00 in equity if she were awarded all of the

land, and she testified without contradiction that the total value of the estate of the parties was

between $240,000.00 and $250,000.00 after debt. Johnny argues that, because the trial court did

not account for the $40,000.00 in its division, Jo Ann received a disproportionate share.2

A few points of evidence stand out. An appraisal, which appears to have been reviewed

by the trial court but not introduced into evidence, indicated that the value of the land alone was

$100,000.00 and that adding the residence brought the combined value to $176,861.00. 3 Based

on Jo Ann’s testimony of the value of the marital estate, net of debt, to provide an equal split of

2 There are no findings of fact or conclusions of law. 3 There were no liens on the land or house.

3 the net holdings, each would be awarded property worth approximately $120,000.00 to

$125,000.00.

In her testimony, Jo Ann asked for all the real estate, offering to give up any rights she

had to Johnny’s retirement, acknowledging the value of a number of items they had already

agreed on, and then offering to pay him an additional $40,000.00 to thus leave each of them with

roughly $120,000.00 to 125,000.00. In his testimony, Johnny also asked for all the real estate,

agreeing to pay all of the debt against them both and to make an additional cash payment to

Jo Ann to balance the shares.

The trial court’s division follows neither suggestion. The trial court awarded Johnny one-

half of the land, valued at $50,000.00; his retirement, valued between $50,000.00 and

$53,000.00; and various individually listed items, including $500.00 for reimbursement for one-

half the cost of a gun safe left in the house, four vehicles, a large trailer, a Harley-Davidson

motorcycle, a camper, four head of cattle, tools, and equipment.

While the testimony is not completely clear, it appears that the value of the property

awarded to Jo Ann and Johnny was relatively balanced, and the debts were essentially split.

Therefore, there is no showing that the division was “so disproportionate, and thus unjust and

unfair, as to constitute an abuse,” as is required to obtain a reversal. See Morris, 123 S.W.3d at

867. We cannot conclude from the record before us that the trial court abused its discretion in its

division of the estate.

4 We affirm the trial court’s judgment.

Josh R. Morriss, III Chief Justice

Date Submitted: August 13, 2012 Date Decided: August 14, 2012