The Perils of Violating Gender Roles: "Mr. Mom" factor considered by Austin Court of Appeals in reviewing equity of divorce property division

Austin Court of Appeals, in a memorandum opinon authored by Chief Justice Kenneth Law affirms division of marital estate in second appeal involving the same couple; finds no abuse of discretion in light of factors relevant to disproportionate division of marital estate and the evidence before the trial court. Husband-father earned less and had asked for disproportionate division in his favor.

Ronald J. Hewelt v. Virgina M. Hewelt, No. (Tex.App.- Nov. 14, 2007)(Opinion by Chief Justice Law)(property division and allocation of costs of prior appeal)

Excerpts from Chief Justice Ken Law's opinion:

Ronald argues that there is no evidence to support the trial court's finding that the parties have relatively equal earning capacities. (10) The evidence presented shows that, at various times throughout these trials and appeals, both Ronald and Virginia have been unemployed. When they were employed, Virginia's salary ranged from $120,000 per year to $162,000 per year. Ronald's salary was $84,000. Virginia has earned both bachelor and master degrees while Ronald has earned a technical degree. While, taken together, the evidence shows that Ronald never earned as much as Virginia during the marriage, it is not conclusive as to their relative earning capacities.

The trial court could have determined that both parties had the ability to earn substantial incomes, whether that income was $84,000 or $120,000 or even $162,000.

In addition, Ronald was a self-proclaimed "Mr. Mom" and may, therefore, have opted for a lower-paying, less-time consuming job during the marriage.

In addition, the security of both parties' jobs was subject to market fluctuations, and both Ronald and Virginia had been laid off at least once due to market conditions. Finally, even if the parties' earning capacities are not comparable, earning capacity is only one of the factors on which the trial court based its division, and the court could have found that other factors weighed more heavily in arriving at a just and right division.The trial court's role is to weigh the evidence, determine credibility, and divide the estate based on the court's findings. See Murff, 615 S.W.2d at 700. Having reviewed the evidence, indulging every reasonable presumption in favor of the proper exercise of discretion by the trial court in dividing community assets, we cannot say that the trial court abused its discretion in dividing the community property equally between the parties. See id. at 699. Ronald has failed to demonstrate that the trial court's substantially equal division of the property was manifestly unfair. See Mann v. Mann, 607 S.W.2d 243, 245 (Tex. 1980). Accordingly, we conclude that the trial court's division of the marital estate was a proper exercise of its discretion.