Rickey A. McWilliams v. Sherry J. McWilliams

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-91-530-CV RICKEY A. McWILLIAMS, APPELLANT vs. SHERRY J. McWILLIAMS, APPELLEE FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 340TH JUDICIAL DISTRICT NO. FA89-1182-C, HONORABLE JOHN SUTTON, JUDGE PRESIDING Rickey McWilliams and Sherry McWilliams were divorced after a trial to the court. Rickey McWilliams appeals the division of the marital estate. We will affirm the trial court's judgment. JUST AND RIGHT DIVISION OF PROPERTY In his first point of error, appellant complains that the trial court abused its discretion in valuing and in dividing the parties' marital property. The trial court has wide discretion in dividing the estate of the parties and that division should be corrected on appeal only when the court has abused its discretion. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). In exercising its discretion the trial court may consider many factors; we presume that the trial court exercised its discretion properly. Bell v. Bell, 513 S.W.2d 20, 22 (Tex. 1974). Rickey first complains generally of the valuations made by the trial court. Rickey and Sherry testified at trial to varying values of their respective properties. The trial court has the duty to resolve conflicts and inconsistencies in the evidence and to fix the value within the range of testimony. McGee v. McGee, 537 S.W.2d 94, 97 (Tex. Civ. App.--Amarillo 1976, no writ). Rickey has not demonstrated that the trial court went outside the parties' testimony in valuing any item of property. After reviewing the record we hold that the evidence is sufficient to support the court's valuations. The Family Code requires the trial court to order a just and right division of the marital estate, having due regard for the rights of each party and any children of the marriage. Tex. Fam. Code Ann. § 3.63 (West Supp. 1993). The Code does not require an equal division. Young v. Young, 609 S.W.2d 758, 760-62 (Tex. 1980). Murff and subsequent cases suggest factors that a trial court may consider to decide the percentage and type of property to be awarded to each party. The trial court has the opportunity to observe the parties, determine their credibility, and evaluate their needs and potentials, both social and economic. We afford wide latitude and discretion to the trial court in dividing property. Murff, 615 S.W.2d at 700. Rickey complains that by using its valuations and granting attorney's fees, the trial court awarded at least fifty-four percent of the community property to Sherry. Sherry argues that the evidence before the court concerning business opportunities, capacities of the parties, and abilities to earn income allowed the court to make this slightly uneven division of the property in her favor. See Berdoll v. Berdoll, 398 S.W.2d 397, 400 (Tex. Civ. App.--Austin 1966, no writ). The evidence was that for the past five years Sherry had been employed in clerical duties at two separate businesses, one full-time and one part-time. Rickey, on the other hand, had been continuously employed for twenty years with General Telephone and Equipment Company and had started a ranching business in Mason County. Rickey testified that the number of cattle in his operation had grown. Sherry notes that opportunities and capacities for growth and production in the cattle business provide Rickey with a significant advantage over her for business gain and future support. We hold that there is no evidence that the court abused its discretion in valuing or dividing the marital property. We overrule the first point of error. In point of error number two, Rickey claims that the trial court abused its discretion in severing the mineral estate from the surface estate of the Mason County property awarded to Rickey. The trial court divided the severed mineral estate equally between the parties. Rickey argues that there was no testimony concerning any value for the mineral interests and therefore the court was without authority to sever the mineral estate from the surface and to divide the minerals fifty-fifty without hearing evidence on the issue. Appellant cites no authority for this proposition. Sherry argues that the courts in this state have long recognized minerals interests; royalties and bonuses may constitute a part of the consideration adding value upon the sale of real property. See Clyde v. Hamilton, 414 S.W.2d 434, 439 (Tex. 1967). We note that mineral interests in property are specifically severable from the surface. Each party testified as to the value of the property's surface use for ranching and grazing. The court had the inherent power to sever and divide the mineral estate without proof of its future value, if any. Rickey has shown no harm that flows to him from the court's division; indeed the trial court awarded 100% of any actual surface damages in the future to Rickey as owner of the surface estate. Should there ever be mineral production from the land, the court's action will prevent a future windfall to one party. We hold that the trial court did not abuse its discretion by severing the mineral estate of unknown value and dividing it equally between the parties. We overrule the second point of error. The judgment of the trial court is affirmed. Bea Ann Smith, Justice Before Chief Justice Carroll, Justices Aboussie and B. A. Smith Affirmed Filed: November 24, 1993 Do Not Publish