We first question whether William has preserved this complaint, given that both parties at trial presented evidence and argument regarding Patricia's retirement solely with reference to her monthly annuity amount.  In any event, we cannot conclude that the trial court abused its discretion in this regard.  The evidence relevant to the value of Patricia's teacher retirement account was undisputed.  Counsel for both parties questioned Patricia about the amount of the monthly payments she received, and her testimony was consistent with a “Verification of Monthly Payments” that she entered into evidence without objection.  It showed that she would receive monthly payments 2 v. << (2011)

FROM COUNTY COURT AT LAW NO. 1 OF WILLIAMSON COUNTY

NO. 09–1932–FC1, HONORABLE SUZANNE BROOKS, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

William Henry Jackson appeals a final divorce decree that awarded his former spouse, Patricia Jackson, the entirety of the community interest in her teacher retirement account.   Contending that the trial court abused its discretion in making this award, William ¹ appeals.   We will affirm the judgment.

BACKGROUND

After thirty-three years of marriage, William filed a petition for divorce from Patricia in June 2009.   Patricia counter-petitioned.   There were no minor children of the marriage at the time, and the parties subsequently managed to agree to a division of most of the marital estate.   It was agreed that William would keep his business—he was a self-employed contractor who taught automotive classes at Raytheon but also earned income from maintaining the Williamson County show barn and running a lawn and landscaping business.   The parties further agreed that Patricia would keep the car that she used and that William would keep two vehicles he used for his business as well as two recreational vehicles (one of which he had been using as his residence since moving out of the marital home in August 2009).   Patricia was to receive the marital home.   The evidence reflected that this disposition of the home was consistent with a previous agreement whereby Patricia became the sole owner of the home in exchange for refinancing the mortgage in May of 2009 to obtain cash to pay tax debts that William had incurred by failing to withhold taxes from his business income.   As a result of the refinancing, William had received $90,094.89, $40,000 of which he used to pay the tax debt, $23,272 of which he paid to Patricia as her share of the net, and the remainder of which he had retained.

For about fifteen years leading up to the divorce proceeding, the parties had maintained largely separate finances—they had separate bank accounts and credit cards and they had each paid different bills to cover their family's living expenses, with Patricia covering the mortgage on their house, health insurance and life insurance premiums, groceries, and a car she used, while William paid for utilities and cable, performed repair work around the house, and also funded three or four family vacations and an unspecified number of other family outings.   As part of their agreed property division, William and Patricia agreed that each would keep the accounts and debts opened and incurred by that party.   This included credit-card debt totaling nearly $80,000 that William had incurred on his personal and business credit cards.   Patricia testified that she had been unaware of this credit-card debt until after William had filed for divorce.   She testified that she had “rarely” used credit cards after the parties split their finances and that she had paid off her credit-card balances as they came due.

William and Patricia did not reach agreement, however, with respect to community interests in time shares they had purchased—neither had a preference regarding how to dispose of such property, which William testified he had usually “traded out” in order “to get other properties” for family vacations and for business trips—and Patricia's retirement account.   Patricia had worked as a school teacher for roughly 29 years and contributed to the Texas Teacher Retirement System.   In 2006, she had taken retirement and begun drawing a monthly annuity in a net amount of approximately $2,500 that would continue through her life.   At that time, Patricia had begun working in a part-time job with the Round Rock Independent School District assisting special-needs students and earning around $33,000 annually.   However, she testified that this part-time job was to be terminated at the end of 2010 because the school district was going to replace it with a full-time position that she would be unable to pursue because of her retirement status.   Thereafter, she explained, her chief employment option was substitute teaching for approximately $1,000 per month.   Patricia further explained that, as a teacher, she had been required to contribute “the maximum amount” to her teacher retirement account, that she had no other retirement fund, and that she was ineligible to collect social security due to the nature of her past employment.   It was undisputed that the retirement account was community property, and William insisted that he should receive half of it.

Two evidentiary hearings were held.   Patricia presented evidence concerning her earning prospects compared to William's.   The evidence reflected that William's annual earnings in each of 2007 and 2008 were between roughly $92,000 and $95,000 from Raytheon and between $9,500 to $14,300 from Williamson County, and that he had received still more income from his lawn-mowing business.   Patricia also presented evidence concerning the monthly social security benefits to which William would be entitled if he retired at age 62 ($1,282), 67 ($1,791), or 70 ($2,430).   At time of trial, Patricia testified, William was 57 years of age.   William claimed that he did not currently have any plans to retire, would work as long as he could, and “could not afford a retirement program” other than social security.

The trial court rendered a final divorce decree dividing the property in accordance with the parties' agreement, awarding the time shares to William, awarding the entirety of Patricia's teacher retirement account to her, and purporting to award William “his social security benefits.”   On William's request, the trial court entered findings of fact and conclusions of law.   The findings reflected that the community estate included Patricia's teacher retirement pension of “2517.31/ net monthly” and “Petitioner's Social Security” in the amounts previously stated.   The findings further reflected that, in dividing the community estate, the court considered the parties' agreed property division, “[t]he disparity of income in favor of [William],” “[t]he tax implications of the mismanagement of the parties' community estate by [William],” “[w]asting and improperly depleting community assets by [William],” William's “significant credit card debt incurred ․ without the knowledge or consent of [Patricia],” the parties' respective earning capacities, and “[t]he similar amount of retirement available to each party.”

William filed a “motion for rehearing,” which was overruled by operation of law.   This appeal ensued.

ANALYSIS

In three issues, William asserts that the trial court abused its discretion in awarding the entire community interest in Patricia's retirement account to her because (1) it failed to determine the total value of the retirement account at the time of the dissolution of marriage, which, in his view, rendered the evidence supporting the property division factually insufficient;  (2) it considered William's future social security benefits in dividing the community estate;  and (3) it disproportionately divided the community estate in a manner that is manifestly unjust to William.

We review the district court's property division under an abuse-of-discretion standard.   See Murff v. Murff, 615 S.W.2d 696, 698 (Tex.1981).   A trial court abuses its discretion if it acts arbitrarily, unreasonably, without regard to guiding legal principles, or without supporting evidence.  Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998).   To determine whether there has been an abuse of discretion because the evidence is legally or factually insufficient to support the district court's decision, we engage in a two-pronged inquiry, determining whether (1) the district court had sufficient evidence upon which to exercise its discretion, and (2) the district court erred in its application of that discretion.  Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex.App.—Austin 2006, pet. denied).   To determine whether the evidence is factually sufficient, we weigh and consider all the evidence in the record.  Id. at 589–90.   When an appellant attacks the factual sufficiency of an adverse finding on an issue on which he did not have the burden of proof, the appellant must demonstrate that the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust.   See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam).   When an appellant attacks the factual sufficiency of an adverse finding on an issue for which he had the burden of proof, the appellant must demonstrate that the “adverse finding is against the great weight and preponderance of the evidence.”  Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001) (per curiam).   We must not merely substitute our judgment for that of the trier of fact.  Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.2003).

A trial court in a divorce proceeding “shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party.”  Tex. Fam.Code Ann. § 7.001 (West 2006).   Only community property is subject to division;  the district court cannot divest a spouse of separate property.  Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex.1985).   In dividing the community estate, the district court may properly consider many factors, including the spouses' capacities and abilities, business opportunities, education, relative financial condition and obligations, size of separate estates, and the nature of the property.   Murff, 615 S.W.2d at 699.   And, “the consideration of a disparity in earning capacities or of incomes is proper and need not be limited by ‘necessitous' circumstances.”  Id. “[I]t is presumed that the trial court exercised its discretion properly.”  Id. at 699 (citing Bell v. Bell, 513 S.W.2d 20, 22 (Tex.1974)).

Section 6.711 of the family code requires that when a party in a suit for dissolution of marriage requests findings of fact and conclusions of law, the trial court state in writing its findings concerning “(1) the characterization of each party's assets, liabilities, claims, and offsets on which disputed evidence has been presented;  and (2) the value or amount of the community estate's assets, liabilities, claims, and offsets on which disputed evidence has been presented.”  Tex. Fam.Code Ann. § 6.711 (West 2006).   William's contentions regarding his first issue—complaining of the trial court's asserted failure to find the value of Patricia's teacher retirement account—center on the fact that the trial court found,

CONCLUSION

Having overruled each of William's issues, we affirm the trial court's judgment.

FOOTNOTES

FN1. Because the parties shared a common surname during the proceedings below, we will identify them by their first names for clarity..  FN1. Because the parties shared a common surname during the proceedings below, we will identify them by their first names for clarity.