LUTHER FRED PEEK, III

AGNES SUE MEYERS, Appellee.

By his original petition for divorce, appellant Fred Luther Peek sought a disproportionate award of the community estate on grounds of fault and wasting of community assets, among others. By her counter-petition, appellee Agnes S. Meyers similarly sought a disproportionate distribution on the same grounds Peek advanced, and attached a copy of an agreed protective order granted in her favor. See Tex. Fam. Code Ann. § 85.005 (Vernon Supp. 2005). The protective order contains the trial court's finding of fact that Peek committed acts constituting family violence. ⁽¹⁾

Evidence in the record indicating that one spouse verbally and physically abuses the other spouse is a factor favoring a disproportionate award of the marital estate. Alsenz v. Alsenz, 101 S.W.3d 648, 655 (Tex. App.-Houston [1st. Dist.] 2003, pet. denied) (citing Twyman v. Twyman, 855 S.W.2d 619, 625 (Tex. 1993)). During the bench trial of this case, aside from marital discord and the conflict of personalities between the couple during the marriage, Meyers testified with respect to specific instances of family violence by Peek that resulted in her bodily harm. One incident involved injury to Meyers' daughter. During cross-examination, Peeks admitted specific acts of family violence. Because evidence of family violence is also a factor favoring the disproportionate award and the standard for reversal of the trial court's judgment is high, I concur with the judgment. See Alsenz, 101 S.W.3d at 655; see also Vallone v. Vallone, 644 S.W.2d 455, 460 (Tex. 1982) ("The trial court's discretion will not be disturbed on appeal unless a clear abuse has been shown.").

ERRLINDA CASTILLO

Justice

Concurring Memorandum Opinion delivered

and filed this 3rd day of August, 2006.

1."Family violence" is defined as an act by a family member against another household member that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent injury or harm but does not include defensive measures to protect oneself. See Tex. Fam. Code Ann. § 71.004(1) (Vernon 2002).