NO. 07-05-0145-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL B SEPTEMBER 12, 2006

______________________________ In the Matter of the Marriage of L JILJANA MALENICA

and RAJKO RAY MALENICA

_________________________________ FROM THE 310 TH DISTRIC T COURT O F HARRIS COU NTY; NO. 2004-24053; HON. LISA A. MILLARD, PRESIDING

_______________________________ Memorandum Opinion

_______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. Rajko Ray Malenica (Ray) appeals f rom a divorce d ecree di ssolving his marriage to Ljiljana Malenica ( Lily). We aff irm the judg ment of the trial court. Issue One – Ineffective Assistance of Counsel In his f irst i ssue , Ray co nten ds th at he was de nied his rig ht to eff ecti ve assistance of counsel “g uaranteed by t he Sixteenth Amendment to the United States Constitutio n . .

. and by artic le 1[, ] Section 10 of the Tex as Constituti on.” We overrule the i ssue for the following reasons. First, the Sixteent h Amendment to the United States Constitution grants Congress th e power to l evy tax

es. It say

s nothing about

granting litigants a right to coun sel. And , assuming appel lant and his appellatecounsel meant to refer to the Si xth Amendment of2

that same document, a s imple reading of the amendment reveal s that the ri ghts gr anted therein are afforded those inv olved in “ criminal pr

osecutions.” U.S. C ONST
. amend. VI. A divorce i s not a crimi nal prosecuti on. Second, §10 of article o ne of the Texas Cons titution does s tate that o ne has the right of being heard by counsel. Yet, like the Sixth Amendm ent, that right extends to those involved in “criminal prosecutions.” T E X
. C ONST . art. I, §10. Agai n, a divor ce is not a criminal pr

osecution. Issue 2 - Waste of Community Assets Via his second i ssue, Ray ar gues that Lil y fraudulentl y induced th e trial cour t to divide the community assets in the manner it did. The fraud purportedly consisted of 1) using “old dates”on account balances listed on the inventory and the first amended inventorysubmit ted by Lily, 2 ) “indicat ing” that she did not have access to communi ty funds during the tr ial even t hough sever al joint accounts appeared on thefirst amended inven tory, and 3) testimony that Lily was unable to receive medical treatment in 2004 even though Ray

provided s ame until 2005. We overrul e the issue. As to t he matter of “old dates,” Ray fails to cite us to any evidence ofrecord illustrat i ng that the val ues assigned to the assets d iffered from their value at the time of trial. While the dates may be old, it matter

s lit tle if the ass ets in quest ion re tained the sa me value, and R ay has not s hown otherwis e. Moreover , the “old dates ” were d isclosed to the trial cour t; so, we cannot see how that constituted fraud. As to the alleg ation about Lily’s misrepr esentation concerning access tocommunity funds, Ray cites us to nothing of record ill ustrating that the statement w as made. Nor

have we found any s uch testimony

.3

As to the matter of hav ing no medical insurance during 2004, the record referen ce provided by Ray

contains no suc h testimony. Instead, Lily test ifie d tha t she did n ot ha ve insurance as of the date oftrial ( i.e. February 17, 2005) bec ause it had been cance lled. Thus, this content ion is simi larly u nsubstantiated. Issue 3 - Division of Marital Estate Last ly, Ray complains that the trial court abu sed i ts dis cret ion in award ing Li ly a disproporti onate share of the marital estate because ins uffic ient gr ound s ex ist ed tojus tify the divis ion. We overrule the is sue. No one disputes that Lily was awarded a disproportionate sh are of the estate. However, the division need not be equal, only eq uitable. Zeptner v. Ze ptner, 111 S.W.3d 727, 740 (Tex. App. –Fort Worth 2003, no p et.). Furt hermor e, an equ itable, though unequal, division may be justified by such thin g s as 1) a dis parity i n the education and ages of the spouses, 2) a disparity in their respective earning power, 3) a disparity in the business and employment oppo rtunities available to them, 4) their physical health, 5) the ir probable future need for support, 6 ) the size of their separate estates, 7) their relative fa ult for the dissolution of the marriag e, and 8) the benefits that the inno cent spou se wou ld ha ve derived had the marriag e continued. Murff v. M urff , 615 S.W .2d 696, 699 (Tex. 1981 ); Massey v. Massey, 807 S.W.2d 391, 398 (Tex. App.–Houston [1 stDist.] 1991, writ denied). So too may a par

ty’s dis honesty or fraud viz the handling of the community es tate serve to justify an unequal dist ribution. Schlueter v. Schlueter, 975 S.W .2d 584, 588 (Tex. 1998 ). The record before us contains evidence showing that the parti es had been married for 38 years. Ray

was a re tired professi onal engineer who continued to do consulting work1 The trial cou rt note d at the end of the trial that R ay had disr egarded “ every order thi s Court has issued.” 4 while Lily was a licensed court inte rpre ter a nd m edic al int erpr eter who rec eived one o r two assignmentsa week for a couple of hours each. Furthermore , Ray conceded that Lily had “basicallystayed home” during th e marriage. So too did the r ecord establi sh that Ray physically

abused and assaulted Lily during the marriage. This fact was i mplicit ly memorializ ed within the trial court’s deci sion to diss olve the mar riage “on t he grou nd of cruelty

. . . .” Additi onally, Ray also w ithdrew mone y from accounts after bei ng ordered not to do so by the trial cour t and removed Li ly’s name fr om at lea st o ne of the account s. 1 W hile Ray testi fied that Lily had listed non-existent accounts on the inventory and also argued that

she had failed to i nclude one bank account and a Volvo, the resoluti on of these conflicting matters lay within the province of the factf inder ( i.e. the trial court at bar). Naguib v. Nagu

ib, 137 S.W.3d 367, 377 (Tex. App.–Dal las 2004, pet. denied). And, since
no findings of

fact and conclusi ons of law w ere requested, its decis ion must be upheld on any legal theory findi ng support i n the record. Worford v. Stam per, 801 S.W.2d 108, 109 (Tex. 1990). So, abse nt an y fi ndings that Lily committed fraud upon the estate, the re is evidentiarysupport for an uneve n divisi on of the estate based upo n the dispari ty in the earning capacity of the parties, Ray’s violation of courtorders, the p hysical abuse suffered by Lily requ irin g me dical t reatment, and Lily’s lack of medica l insurance due to Ray’s cancellation of the policy. In other w ords, we find no abuse of discr etion here. The judgment of the tr ial court i s affirmed.

Brian Quinn Chi ef Justice