Robert Trotter Gift Fund for Thomas U/A/D 5-3-81, a/k/a Robert Trotter Gift Trust for Thomas U/A/D 5-3-82, and Thomas S. Trotter v. Trinity Universal Insurance Company, No. 03-05-00330-CV (Tex.App.- Sep. 12, 2007)(insurance law, duty to defend, indemnify)(Opinion by Justice Pemberton)(Before Chief Justice Law, Justices Pemberton and Waldrop)
Appeal from 353rd District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
NO. GN304871, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
This appeal arises from an insurance coverage dispute under a Commercial General Liability (CGL) policy. After he was sued by several lot owners in a subdivision he had developed, appellant Thomas S. Trotter, who had acted through the Robert Trotter Gift Fund for Thomas U/A/D 5-3-81 (collectively, "Trotter"), requested a defense and indemnity under his CGL policy with Trinity Universal Insurance Company. Trinity declined, in the view that "the plaintiff does not seek to recover damages for Bodily Injury or Property Damage caused by an occurrence or Personal Injury or Advertising Injury caused by an offense as defined." Trotter ultimately incurred liability and litigation expenses in this underlying lawsuit. (1)
Trotter sued Trinity, asserting that the carrier breached the insurance contract by refusing to defend and indemnify him and that Trinity's failure to defend him violated the insurance code. Trotter sought actual damages, additional damages, and attorney's fees. Trinity counterclaimed for declaratory judgment that it had no duty to defend Trotter under the CGL policy and for attorney's fees. On cross-motions for summary judgment, the district court granted Trinity's motion, denied Trotter's, and rendered judgment that Trotter take nothing.
Trotter appeals, bringing five issues challenging (1) the district court's summary judgment on Trinity's declaratory claim that the carrier had no duty to defend Trotter; and (2) the court's denial of summary judgment on Trotter's claims that Trinity (3) breached the CGL policy contract by failing to defend him, (4) violated the insurance code, and (5) breached the policy contract by failing to indemnify him. For the reasons explained below, we affirm the district court's judgment.
We review the district court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). Summary judgment is proper when there are no disputed issues of material fact and the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Shell Oil Co. v. Khan, 138 S.W.3d 288, 291 (Tex. 2004) (citing Knott, 128 S.W.3d at 215-16). Where, as here, both parties move for summary judgment and the district court grants one motion and denies the other, we should review the summary-judgment evidence presented by both sides, determine all questions presented, and render the judgment the district court should have rendered. Texas Workers' Comp. Comm'n v. Patient Advocates of Tex., 136 S.W.3d 643, 648 (Tex. 2004); FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000). We must affirm the summary judgment if any of the summary-judgment grounds are meritorious.
Patient Advocates, 136 S.W.3d at 648; FM Props., 22 S.W.3d at 872.
The central question in this appeal is whether, as a matter of law, Trinity had a duty under the CGL policy to defend Trotter against the underlying suit. To determine whether Trinity had a duty to defend Trotter, we look to the "eight corners" of the petition in the underlying suit and the insurance policy (the "four corners" of each instrument), comparing the facts alleged in the petition with the policy language to determine whether the petition alleges acts within the policy's scope of coverage. See Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 643 (Tex. 2005); National Union Fire Ins. Co. v. Merchants Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex. 1997). When applying this rule, we are to focus on the factual allegations that show the origins of the alleged damages rather than on the legal theories pleaded, give a liberal interpretation to the factual allegations, and resolve doubts in favor of coverage. Hallman, 159 S.W.3d at 643; Merchants Fast Motor Lines, Inc., 939 S.W.2d at 141. Where the petition does not state facts sufficient to clearly bring the case within or without the policy's coverage, the insurer is obligated to defend if there is, potentially, a case under the complaint within the coverage of the policy. Merchants Fast Motor Lines, Inc., 939 S.W.2d at 141 (quoting Heyden Newport Chem. Corp. v. Southern Gen. Ins. Co., 387 S.W.2d 22, 26 (Tex. 1965)). Further, we are not concerned with the truth or falsity of the pleadings. See Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 821 (Tex. 1997) (duty to defend is triggered solely by factual pleadings and language of policies, without regard to truth or falsity of pleadings). If an insurer owes a duty to defend any of the claims against its insured, that duty extends to the entire suit. See Utica Nat'l Ins. Co. v. American Indem. Co., 141 S.W.3d 198, 203 (Tex. 2004); CU Lloyd's v. Main St. Homes, Inc., 79 S.W.3d 687, 692 (Tex. App.--Austin 2002, no pet.).
We begin our analysis by reviewing the factual allegations in the underlying lawsuit. See Cowan, 945 S.W.2d at 821. The plaintiffs were a group of individuals who had purchased lots in the Thurman Bend Estates subdivision on Lake Travis (the "underlying plaintiffs"). The defendants included Trotter, the developer of Thurman Bend Estates. The underlying plaintiffs alleged that:
At various times beginning in 1994 through 1996, Plaintiffs solicited information about Thurman Bend Estates . . . . Defendants . . . represented to Plaintiffs that a one-acre homeowners' lakeside park would be conveyed by [Trotter] to the Thurman Bend Owners' Association for the benefit of all of the owners of lots in Thurman Bend Estates. It was represented that the park could have facilities consistent with those found in other lakeside parks, including, but not limited to, boat trailer and automobile parking, recreational areas, barbeque pit(s), picnic facilities, a boat launch and space to build a boat dock and/or swim platform. Plaintiffs were led to believe that a true park for the benefit of Thurman Bend lot owners would be conveyed by Defendant Trust.
"Substantiating this representation," the underlying plaintiffs added, "a Declaration of Covenants, Conditions, and Restrictions for Thurman Bend Estates Subdivision ("Declaration") was signed and filed by Defendant Trotter . . . in July, 1995, which represented that [Trotter] would convey to the Thurman Bend Owners' Assn. a 'lake side park area easement and an access easement for the usage by all Owners.'"
The underlying plaintiffs further alleged that "[b]ased upon and in reliance upon these representations, in 1994 through 1996, Plaintiffs paid substantial amounts of money to purchase lots in Thurman Bend Estates . . . ." However, the underlying plaintiffs pled, Trotter and the other defendants ultimately failed to provide the represented easement. They alleged that defendants "failed to disclose the true nature of the 'park'" and that "[t]his failure to disclose and false representations were very material facts which induced Plaintiffs to agree to purchase their Thurman Bend lots."
Specifically, the underlying plaintiffs elaborated, Trotter "sold Lot Number 18 to Defendant [Robert L.] Haug in February 1996" and "signed a Grant of Easements dated February 26, 1996 . . . to Thurman Bend Estates Owners' Association for the benefit of all of the [lot] owners" on Lot 18. The easement, whose terms were negotiated "without any input or knowledge of the current Thurman Bend Estates property owners," "created a 'Boat Launch Easement' which could be used 'only for ingress and egress from Lake Travis.'" Further, the grant of easement prohibited "'[a]ctivities of extended duration'" within the areas of the easement outside of a 20-foot strip. "The twenty (20) foot easement strip is land reserved by the Lower Colorado River Authority for the rise and fall of Lake Travis" that "is on a relatively severe incline with a very rocky surface making it unsuitable for most recreational activities."
The underlying plaintiffs added that, "Prior to July, 1998, the Plaintiffs not knowing about the 'Boat Launch Easement' used the property as a park, [with] such activities as, parking vehicles and boat trailers, recreating and picnicking." In July 1998, at the first meeting of the Thurman Bend Owners' Association, Haug "stated that the easement was solely for ingress and egress," but "those Plaintiffs that heard him thought that he was referring to the access easement only, not the park easement." However, "on April 5, 2000, it was made clear when Defendant Haug sent a letter to all Thurman Bend lot owners" explicitly prohibiting "'parking, fishing, picnicking, loitering, camping, including fires, [or] swimming'" on his lot, and that, "because the easement did not allow doing anything of extended duration, unattended vehicles would be towed." At this juncture, "Plaintiffs learned for the first time that the park which had been previously represented was in fact merely an easement to launch a boat. There was no park." They added that, "Needless to say, the Plaintiffs wondered what happened to the one-acre homeowners' park that was represented by Defendants . . . ."
The underlying plaintiffs alleged, under the heading of "Actionable Conduct,"
Defendants' representations concerning the nature of the "park" and their failure to disclose and false explanations were very material facts which induced Plaintiffs to purchase their Thurman Bend lots. Had the true nature of the Boat Launch Easement "park" been fully disclosed, Plaintiffs would not have purchased the lots.
The plaintiffs pled causes of action for DTPA violations (based on misrepresentations, failure to disclose, and unconscionability), breach of the sales contract, breach of the Declarations, statutory and common-law fraud, negligent misrepresentation, tortious interference, and civil conspiracy. The plaintiffs also pled that the defendants were equitably estopped from prohibiting the use of Lot 18 as a park and also sought a declaration construing the Declarations to permit certain recreational activities on Lot 18. Finally, the plaintiffs sought reformation of the grant of easement based on mutual or unilateral mistake. The plaintiffs sought unspecified actual damages, additional damages, and the declaratory and equitable relief already noted.
The Thurman Bend Owners' Association intervened as plaintiffs, citing "the same basis as the Plaintiffs' suit." It sought relief including reformation of the Declarations and grant of easement or, in the alternative, monetary damages.
We now compare the underlying plaintiffs' factual allegations to the CGL policy provisions. Trotter contends that the pleadings invoked a duty to defend under both Coverage A and Coverage B of the policy.
Coverage A, Bodily Injury and Property Damage Liability, provides that Trinity "will pay those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' or 'property damage' to which this insurance applies. [Trinity] will have the right and duty to defend any 'suit' seeking those damages. . . ." However, Coverage A also provides: "This insurance applies to 'bodily injury' or 'property damage' only if the 'bodily injury' or 'property damage' is caused by an 'occurrence' that takes place in the 'coverage territory.'" "Property damage" is defined in the policy as either "[p]hysical injury to tangible property, including all resulting loss of use of that property," or "[l]oss of use of tangible property that is not physically injured." "Occurrence" is defined as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions."
Trotter argues that the underlying plaintiffs alleged a "loss of use of tangible property that is not physically injured"--specifically, the plaintiffs' inability to use Lot 18 (indisputably a piece of "tangible property") as a lakeside park. (2) Trotter first relies on the underlying plaintiffs' allegations that the defendants "represented to Plaintiffs that a one-acre homeowners' lakeside park would be conveyed" consistent with prior representations or understandings, yet the grant of easement ultimately conveyed only a twenty-foot rocky strip, and "the Plaintiffs wondered what happened to the one-acre homeowners' park that was represented by Defendants." Trinity responds that while Lot 18 is "tangible property"--property "capable of being handled or touched" or that "may be seen, weighed, measured, and estimated by the physical senses," see Lay v. Aetna Ins. Co., 599 S.W.2d 684, 686 (Tex. Civ. App.--Austin 1980, writ ref'd n.r.e.)--the underlying plaintiffs alleged only that Trotter failed to grant them the promised right to use Lot 18, not a loss of use of that property.
We agree with Trinity. "Loss of use of tangible property" in the policy plainly contemplates some preexisting interest in using the "tangible property" (here, Lot 18) whose deprivation would constitute "loss of use." The underlying plaintiffs alleged instead that the defendants' actions caused the absence of such an interest. Without an interest in Lot 18 that would allow the underlying plaintiffs to use it, the underlying plaintiffs necessarily could not state a claim for the loss of that use.
Trotter also argues that the underlying plaintiffs stated a "loss of use" of Lot 18 through their allegations that, "Prior to July 1998, the Plaintiffs not knowing about the 'Boat Launch Easement' used the property as a park, [with] such activities as parking vehicles, and boat trailers, recreating and picnicking," but that "on April 5, 2000, it was made clear when Defendant Haug sent a letter to all Thurman Bend lot owners" explicitly prohibiting "parking, fishing, picnicking, loitering, camping, including fires, swimming," and that unattended vehicles would be towed. In other words, as Trotter puts it, "[t]he plaintiffs alleged they were using the property as a park and for parking, among other things, and then they could no longer use the property for picnicking, parking vehicles, and other activities--i.e., they lost the use of that property."
Trinity counters that even if such prior use is assumed to have been by permission, license, or "that the Underlying Plaintiffs somehow possessed an easement to use Lot 18 as a lakeside park," the deprivation of these sorts of non-possessory interests would not constitute a "loss of use of tangible property." Pointing to decisions from other jurisdictions, Trinity urges that "loss of use of tangible property" contemplates a possessory rather than intangible interest in that property. See Kazi v. State Farm Fire & Cas. Co., 15 P.3d 223, 229 (Cal. 2001); cf. Mid-Continent Cas. Co. v. Camaley Energy Co., 364 F. Supp.2d 600, 606 (N.D. Tex. 2005) (allegations of constructive evictions from leaseholds stated claim for "loss of use of tangible property"). In sum, Trinity argues that the "alleged impairment of a license [or easement] to use non-owned property for recreational purposes evidences a connection to the property that is simply too tenuous to constitute loss of use of tangible property."
Trotter replies that under the plain language of the CGL policy, the "loss of use of tangible property" is not limited to possessory interests. He emphasizes that the "eight corners rule" does not permit courts to read language into policies that is simply not there. See Gehan Homes, Ltd. v. Employers Mut. Cas. Co., 146 S.W.3d 833, 843 (Tex. App.--Dallas 2004, pet. filed).
We agree with Trinity that these allegations did not state a covered claim for loss of use of tangible property. Whatever rights the underlying plaintiffs conceivably alleged they obtained in Lot 18 through prior usage, their alleged subsequent "loss of use" was caused by conduct that is not an "occurrence" under the policy. The "loss of use" on which Trotter relies here was caused, according to the pleadings, by Haug's actions in April 2000, "sen[ding] a letter to all Thurman Bend lot owners" explicitly prohibiting "parking, fishing, picnicking, loitering, camping, including fires, [or] swimming" on his lot, and stating that, "because the easement did not allow doing anything of extended duration, unattended vehicles would be towed." An "occurrence" under the policy, by contrast, is "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." "Accident" is not defined in the policy, but the supreme court has held that an injury is accidental "if from the viewpoint of the insured, [it is] not the natural and probable consequence of the action or occurrence which produced the injury; or in other words, if the injury could not reasonably be anticipated by the insured, or would not ordinarily follow from the action or occurrence which caused the injury."
Mid-Century Ins. Co. v. Lindsey, 997 S.W.2d 153, 155 (Tex. 1999) (quoting Republic Nat'l Life Ins. Co. v. Heyward, 536 S.W.2d 549, 557 (Tex. 1976)). "[B]oth the actor's intent and the reasonably foreseeable effect of his conduct bear on the determinations of whether an occurrence is accidental." Id. The allegation that Haug deliberately sent this letter to enforce his rights relative to the actual easement is not susceptible to being construed as an "accident."
We hold that the underlying plaintiffs did not allege a "loss of use of tangible property" caused by an "occurrence" within Coverage A. We express no opinion regarding other issues briefed by the parties concerning the scope and meaning of "loss of use of tangible property" or "occurrence" and the application of these terms to the underlying pleadings. (3)
Trotter also argues that the underlying pleadings allege claims within Coverage B of the CGL policy. Coverage B, "Personal and Advertising Injury Liability," provides:
[Trinity] will pay those sums that the insured becomes legally obligated to pay as damages because of "personal injury" or "advertising injury" to which this insurance applies. [Trinity] will have the right and duty to defend any "suit" seeking those damages.
The policy defines "personal injury," in relevant part, as "[t]he wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies by or on behalf of its owner, landlord, or lessor." Trotter argues that the claims asserted against him were potentially covered as an "invasion of the right of private occupancy of . . . premises." He relies again on the allegations that the plaintiffs had begun to use Lot 18 as a park and that their access to the property was later restricted.
Trinity responds that the underlying plaintiffs did not allege any "right of private occupancy" in Lot 18 that could have been "invaded." It adds that the term "right of private occupancy" in the "personal injury" definition has been held by Texas courts to refer to the rights "associated with an individual's acts of inhabiting the premises, and not to the rights associated with the individual's rights to use and enjoy the inhabited premises." See Decorative Ctr. of Houston v. Employers Cas. Co., 833 S.W.2d 257, 261 (Tex. App.--Corpus Christi 1992, writ denied). The Corpus Christi court also held that coverage for any "'other invasion of the right of private occupancy' does not apply outside the landlord-tenant scenario, or when the occupier has a vested interest in the occupancy of the premises." Id. at 263. It reasoned that, under ejusdem generis principles, the policy's reference to "other right of private occupancy" was immediately preceded by "wrongful eviction" and "wrongful entry," and must have been intended to encompass actions of the same general type or refer to an similar invasion of interests. Id. at 261-62. See also id. at 261 n.4 (collecting cases).
Trotter attempts to distinguish Decorative Center of Houston and similar cases on the basis that the policies at issue defined "personal injury" as "wrongful eviction from, wrongful entry into, or other invasion of the right of private occupancy of a room, dwelling or premises," while his CGL policy with Trinity omitted the word "other." Some courts have deemed that distinction significant. See New Castle County v. National Union Fire Ins. Co., 243 F.3d 744, 751-53 (3d Cir. 2001) (holding, in a case involving claims arising from zoning and permitting decisions, that "invasion of the right of private occupancy" under policy with similar language was ambiguous). On the other hand, a Texas federal court rejected a similar argument in a suit involving claims by a hotel tenant against the hotel owner, "finding the slight difference in the wording of the two policies has no practical effect." Patel v. Northfield Ins. Co., 940 F. Supp. 995, 1000 (N.D. Tex. 1996). Relying on Decorative Center of Houston, the Patel court held that "[w]ithout a landlord-tenant relationship or vested property right, there is no duty to defend for an 'invasion of the right of private occupancy.'" Id. at 1002 ("in this case there was no interference with the rights of private occupancy" by a third party's sexual assault of a hotel guest, but instead "interference with the right to use and enjoy the property").
We conclude that any property interest alleged by the underlying plaintiffs is not one whose alleged infringement would constitute an "invasion of the right of private occupancy." Trotter does not direct us to any case holding that an easement constitutes a "right of private occupancy" whose "invasion" gives rise to a covered claim under a CGL policy, and the sole cases nationwide of which we are aware have held to the contrary. Liberty Mut. Ins. Co. v. East Cent. Okla. Elec. Coop., 97 F.3d 383, 390-91 (10th Cir. 1996); see also Evergrow Indus. Co., Inc. v. The Travelers Ins. Co., 37 Fed. Appx. 300, 301-02 (9th Cir. 2002). We are persuaded that this is the correct conclusion under Texas law as well. The CGL policy's reference to "invasion of right of private occupancy" is immediately preceded by references to wrongful eviction and wrongful entry. Under the contract construction principles of ejusdem generis, this would ordinarily imply intent to limit the scope of the following term--"invasion of right of private occupancy"--to the same general type or nature as wrongful eviction and wrongful entry. Decorative Ctr. of Houston, 833 S.W.2d at 261-62. Without exhaustively addressing the precise parameters of a CGL policy's "right of private occupancy" under Texas law, we conclude that the claimed nonpossessory interests made the basis of the underlying suit are so clearly distinguishable from the general type or nature of property interests implicated by wrongful eviction or wrongful entry that their alleged infringement could not potentially be a covered "invasion of right of private occupancy." Patel, 940 F. Supp. at 1002; see also East Cent. Okla. Elec. Coop., 97 F.3d at 390-91.
We conclude that Trinity did not have a duty to defend Trotter. As this holding is decisive of all of Trotter's issues, we overrule them. (4)
CONCLUSION
Having overruled Trotter's issues on appeal, we affirm the judgment of the district court.
Bob Pemberton, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Affirmed
Filed: September 13, 2007
1. See Haug v. Carter, No. 03-03-00476-CV, 2004 Tex. App. LEXIS 6817, at *31 (Tex. App.--Austin July 29, 2004, pet. denied) (mem. op.) (affirming the district court's judgment for the plaintiffs).
2. Trotter does not assert that the underlying plaintiffs alleged either "bodily injury" or "physical injury to tangible property, including all resulting loss of use of that property" under Coverage A.
3. Among other contested issues, the parties dispute the extent to which this Court should consider our judgment and opinion in the underlying suit when resolving the coverage issue. See Haug, 2004 Tex. App. LEXIS 6817. This Court affirmed the district court's judgment reforming the grant of easement to provide a "Lake Side Park Area Easement" in which activities such as "picnicking, swimming, sunbathing, [and] fishing" were expressly permitted. Id. The district court based its judgment on findings of unilateral mistake by Trotter's attorney coupled with Haug's fraud and mutual mistake. Id. at *8-9. When rejecting Haug's sufficiency challenge to these findings, this Court reached only the unilateral mistake issue. Id. at *18-19.
Trinity objects to any consideration of Haug in our determination of whether it had a duty to defend Trotter, emphasizing that our scope of review is limited to the pleadings. Trotter responds that "[t]he underlying outcome is not cited as extrinsic evidence to show the claim was covered [but] . . . to show that the pleading in the case below--i.e., four of the eight corners--was broad enough to allow evidence of a covered claim"--specifically, mistake. Ultimately, for the reasons we explain above, Haug and the question of whether the underlying plaintiffs pled a mistake that constituted a covered "occurrence" have no bearing on the decisive issues in our coverage analysis.
4. In his fifth issue, Trotter suggests that the fact findings in the underlying suit may implicate Trinity's duty to indemnify him even if it had no duty to defend. See Utica Nat'l Ins. Co. v. American Indem. Co., 141 S.W.3d 198, 203 (Tex. 2004) (duty to indemnify for losses covered under a policy is separate and distinct from the duty to defend); Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 821-22 (Tex. 1997) (in contrast to the duty to defend, whose existence is controlled by whether the pleaded factual allegations, liberally construed, potentially assert a covered claim, the existence of a duty to indemnify depends upon the true facts underlying a claim); but see GuideOne Elite Ins. Co. v. Fielder Rd. Baptist Church, 197 S.W.3d 305, 310 (Tex. 2006) (noting that the duty to defend under a CGL policy is often defined more broadly than the duty to indemnify); State Farm Lloyds v. C.M.W., 53 S.W.3d 877, 889 (Tex. App.--Dallas 2001, pet. denied) ("The duty to defend is broader than the duty to indemnify, and where there is no duty to defend under the terms of the policy, there can be no duty to indemnify."). Trotter cites the following findings:
Trotter represented orally and in writing that the Thurman Bend Estates lot owners would have the use of a park on Lake Travis.
Trotter intended the Grant of Easement for Lot 18 would include a lakeside park.
The Grant of Easement for Lot 18 failed to set forth the intentions of Trotter.
The failure of the Grant of Easement to set forth the full agreement was a mutual mistake by all the parties. Alternatively, the failure to set forth the full agreement regarding the park was a unilateral mistake by Trotter.
Trotter was liable for 25% of the plaintiffs' attorneys' fees, based on his contributory fault.
None of these findings could give rise to a duty to indemnify where, as we have determined, the underlying plaintiffs did not allege a "loss of use of tangible property." We overrule Trotter's fifth issue.
Friday, September 14, 2007
Default divorce decree provisions must be supported by evidence
In order to grant divorce by default, trial court must still receive sufficient evidence to substantiate the allegations in the petition; i.e. prove-up is required. A default judgment in a divorce suit is subject to attack for insufficient evidence on appeal. In this restricted appeal, the Austin Court of Appeals finds error on the face of the record and concludes that the judgment should be reversed for lack of evidence on the value of the community property. Award of child support for disabled child is also reversed because no evidence on the relevant factors was presented at the final hearing, and because the amount ordered might have been affected by the property division. Finally, the court reversed the award of attorneys fees, for the same reason.
Magdalena Rodriguez Wolk v. Robert E. Wolk, No. 03-06-00595-CV (Tex.App.- Austin, Sep. Mar. 12, 2007)(Opinion by Justice Patterson)(default divorce)(Before Justices Patterson, Pemberton and Waldrop)
03-06-00595-CV
Magdalena Rodriguez Wolk v. Robert E. Wolk--Appeal from 261st District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
NO. D-1-FM-05-006965, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
This is an appeal from a default judgment granting a final divorce decree. In four issues, appellant Magdalena Rodriguez Wolk contends that (i) she meets the requirements of a restricted appeal; (ii) there is no evidence in the record to support the trial court's setting of the amount of child support; (iii) there is no evidence in the record to support the trial court's division of the marital estate; and (iv) there is no evidence to support the trial court's assessment of attorney's fees and court costs. For the reasons that follow, we affirm the decree in part, and reverse and remand as to the issues raised by appellant.
PROCEDURAL AND FACTUAL BACKGROUND
On October 20, 2005, appellee Robert Wolk filed for divorce from appellant. Appellant did not answer or otherwise appear. A brief hearing was held on April 5, 2006. The record shows that Mr. Wolk was the only witness to testify. He testified that he and appellant have a nineteen-year-old child with Down syndrome, that appellant has always been the primary caretaker for the child, and that appellant had taken care of the child for many years. He presented evidence of his income and asked the court to award appellant child support in the amount of $632 per month. Mr. Wolk testified that he had paid at least $700 to $1,500 per month for the last fifteen years in mortgage payments for the home where appellant and their child reside and asked the court not to grant retroactive child support. Mr. Wolk also testified that he paid $408 per month to provide health insurance for the child.
With regard to the division of property, Mr. Wolk testified that he was asking the trial court to award each of the parties "any and all personal effects in their possession" and "any cash, bank accounts, retirement accounts in their possession . . . in their name"; to require each party "to keep and pay any and all debts in their name"; and to divest Mr. Wolk of his interest in the community homestead and award it to appellant with appellant being responsible for "the mortgage and all other matters relating to the property." He testified to the location and legal description of the community homestead and stated that it was the only real estate that he and appellant both owned, but he did not provide testimony on the property's value or the outstanding debt on the property. The trial court signed a default divorce decree granting the relief sought on the same day as the hearing. The decree specified that each party was responsible for his or her own attorney's fees, expenses and costs, and that court costs were to be borne by the party that incurred them. On October 4, 2006, appellant filed a notice of appeal.
ANALYSIS
In her first issue, appellant argues that she is entitled to a restricted appeal. A party filing a restricted appeal must demonstrate he filed the appeal within six months of the date the judgment was rendered; he was a party to the suit; he did not participate at the hearing that resulted in the judgment complained of or file any post-judgment motions or appeals; and error is apparent on the face of the record. Tex. R. App. P. 26.1(c), 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). The "face of the record" consists of all the papers on file in the appeal, including the reporter's record. Vazquez v. Vazquez, ___ S.W.3d ___, No. 14-05-01257-CV, 2007 Tex. App. LEXIS 4713, at *4 (Tex. App.--Houston [14th Dist.] June 19, 2007, no pet.); see also Norman Commc'ns v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997).
Mr. Wolk concedes that appellant has established the first three requirements of a restricted appeal and that only the fourth requirement, error on the face of the record, is at issue. In her second, third and fourth issues, appellant argues that error is apparent on the face of the record as to the trial court's determinations regarding the division of the marital estate, the amount of child support, and the allocation of attorney's fees and court costs. As to the trial court's determinations on these issues, we agree that error is apparent on the face of the record.
Standard of Review
"In a suit for divorce, the petition may not be taken as confessed if the respondent does not file an answer." Tex. Fam. Code Ann. § 6.701 (West 2006). When a respondent in a divorce case fails to answer, the petitioner must still present proof to support the material allegations in the petition. Vazquez, 2007 Tex. App. LEXIS 4713, at *5-6; see also Barry v. Barry, 193 S.W.3d 72, 75 (Tex. App.--Houston [1st Dist.] 2006, no pet.). Because appellant failed to answer or appear, Mr. Wolk was required to present proof at trial to support the material allegations in his petition.
Most appealable issues in family law cases are subject to evaluation under the abuse of discretion standard, including the division of property and the assessment of child support. Sandone v. Miller-Sandone, 116 S.W.3d 204, 205 (Tex. App.--El Paso 2003, no pet.). The test for abuse of discretion is whether the court acted without reference to any guiding principles and rules. Id. at 206. A default judgment of divorce also is subject to an evidentiary attack on appeal. Vazquez, 2007 Tex. App. LEXIS 4713, at *6. When sufficiency review overlaps the abuse of discretion standard, the inquiry on appeal is two-fold: did the trial court have sufficient information upon which to exercise its discretion and did the trial court err in its application of its discretion. Sandone, 116 S.W.3d at 206. Evidentiary sufficiency review comes into play as to the first question. Id. (1)
Division of Marital Estate
In her third issue, appellant contends that the trial court erred in its division of the marital estate. The trial court awarded the community homestead to appellant, but ordered her to pay the "balance due, including principal, interest, tax, and insurance escrow, on the promissory note executed by [Mr. Wolk and appellant] on the [homestead]." The trial court also awarded all personal effects, cash, bank accounts and retirement accounts to the party in possession and ordered both parties to pay "any and all debt" in his or her name.
The Texas Family Code provides that "[i]n a decree of divorce or annulment, the court 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 and any children of the marriage." Tex. Fam. Code Ann. § 7.001 (West 2006). Courts have broad discretion in suits for divorce when dividing the property; but the division must be "just and right." Sandone, 116 S.W.3d at 207.
This case is similar to O'Neal v. O'Neal, 69 S.W.3d 347 (Tex. App.--Eastland 2002, no pet.), also a restricted appeal of a default divorce judgment. In O'Neal, the petitioner was the only witness at the hearing and provided scant testimony. Id. at 348-50. The trial court divided the community property, including real property, cash, bank accounts, retirement accounts, IRA accounts, stocks, bonds and securities between the parties, without evidence of the value of the property. Id. at 348-50. The court of appeals concluded that the trial court had abused its discretion in the division of the estate based on lack of evidence. Id. at 350.
The El Paso court of appeals reached the same conclusion in another case involving a restricted appeal of a default divorce decree. Sandone, 116 S.W.3d at 205. The court reversed the trial court's division of property because there was no evidence of the value of the assets or the amount of the liabilities. Id. at 207-08. Stating that "[w]ithout the ability to determine the size of the community pie, we can make no determination that the slices awarded to each spouse were just and right," the court held "a division of community property cannot be upheld where the record is absolutely devoid of any testimony concerning the value of the property divided by the court." Id. at 205, 207-08; see also Wilson v. Wilson, 132 S.W.3d 533, 538 (Tex. App.--Houston [1st Dist.] 2004, no pet.) (reversing property division due to the "dearth of evidence identifying, describing, and valuing the community estate").
Similarly, this record lacks evidence identifying, describing, and valuing the community estate. Although Mr. Wolk testified as to the location and legal description of the community homestead, and stated that he had made mortgage payments on the home of at least $700 to $1,500 per month for fifteen years, no other evidence was presented as to the value of the property or the outstanding debt on the property. Likewise, no evidence was presented to identify, describe, or value the other assets and liabilities divided in the decree. Instead, Mr. Wolk merely asked that the court allow each party to "keep any cash, bank accounts, retirement accounts in their possession . . . in their name" and that "each party be able to keep and pay any and all debts in their name." Accordingly, we conclude error is apparent on the face of the record and that the trial court abused its discretion in the division of the marital estate based on the lack of evidence. See Sandone, 116 S.W.3d at 208. We sustain appellant's third issue.
Amount of Child Support
In her second issue, appellant contends the trial court erred in its determination of the amount of child support. The trial court applied the child support guidelines, based upon evidence of Mr. Wolk's income, and awarded appellant $632 per month in child support. See Tex. Fam. Code Ann. § 154.130 (West 2002). Because we have remanded the division of the community estate to the trial court, we also remand the determination of child support as such an award may be "materially influenced" by the property division, and we should not substitute our discretion for that of the trial court. See Vazquez, 2007 Tex. App. LEXIS 4713, at *12; see also Wilson, 132 S.W.3d at 539.
The Texas Family Code also specifies four factors that a court "shall determine and give special consideration to" when setting the amount of child support for a disabled child after his eighteenth birthday. Tex. Fam. Code Ann. § 154.306 (West 2002). The factors are:
(1) any existing or future needs of the adult child directly related to the adult child's mental or physical disability and the substantial care and personal supervision directly required by or related to that disability;
(2) whether the parent pays for or will pay for the care or supervision of the adult child or provides or will provide substantial care or personal supervision of the adult child;
(3) the financial resources available to both parents for the support, care, and supervision of the adult child; and
(4) any other financial resources or other resources or programs available for the support, care, and supervision of the adult child. Id.
Though evidence was presented that the child has Down syndrome, that appellant has always been the primary caretaker, and that she has been taking care of the child for years, there was no evidence showing the child's current or future medical needs relating to his disability, the substantial care and supervision required relating to the child's disability, whether appellant pays or will pay for the care or supervision of the child or will provide substantial care, or financial or other resources or programs available for the support and care of the child. We conclude that on the face of the record, the trial court did not have sufficient information "to determine and give special consideration" to the statutorily required factors. See id.; see also Sandone, 116 S.W.3d at 208. We sustain appellant's second issue.
Attorney's fees and court costs
In her fourth issue, appellant contends the trial court erred in its assessment of attorney's fees and court costs. The trial court ordered in the divorce decree that each party was responsible for his or her own attorney's fees, expenses and costs, and that court costs were to be borne by the party that incurred the costs. A court may apportion attorney's fees in a divorce action as part of a just and right division of the property. Sandone, 116 S.W.3d at 208. Mr. Wolk, however, did not present any evidence of incurred attorney's fees. Because we have reversed and remanded the division of the marital estate, and because no evidence was presented on the amount of incurred attorney's fees, we sustain appellant's fourth issue and remand the assessment of fees and costs for further consideration by the trial court in connection with the other remanded issues. See Barry, 193 S.W.3d at 76.
CONCLUSION
We affirm the trial court decree in part, and having sustained appellant's issues, reverse and remand for a new trial on the issues raised by appellant.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed in part; Reversed and Remanded in part
Filed: September 12, 2007
1. Because we conclude that the trial court did not have sufficient information to exercise its discretion in the division of the marital estate, the assessment of child support, or the award of attorney's fees, we only address the first inquiry as to each issue appellant raises.
Magdalena Rodriguez Wolk v. Robert E. Wolk, No. 03-06-00595-CV (Tex.App.- Austin, Sep. Mar. 12, 2007)(Opinion by Justice Patterson)(default divorce)(Before Justices Patterson, Pemberton and Waldrop)
03-06-00595-CV
Magdalena Rodriguez Wolk v. Robert E. Wolk--Appeal from 261st District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
NO. D-1-FM-05-006965, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
This is an appeal from a default judgment granting a final divorce decree. In four issues, appellant Magdalena Rodriguez Wolk contends that (i) she meets the requirements of a restricted appeal; (ii) there is no evidence in the record to support the trial court's setting of the amount of child support; (iii) there is no evidence in the record to support the trial court's division of the marital estate; and (iv) there is no evidence to support the trial court's assessment of attorney's fees and court costs. For the reasons that follow, we affirm the decree in part, and reverse and remand as to the issues raised by appellant.
PROCEDURAL AND FACTUAL BACKGROUND
On October 20, 2005, appellee Robert Wolk filed for divorce from appellant. Appellant did not answer or otherwise appear. A brief hearing was held on April 5, 2006. The record shows that Mr. Wolk was the only witness to testify. He testified that he and appellant have a nineteen-year-old child with Down syndrome, that appellant has always been the primary caretaker for the child, and that appellant had taken care of the child for many years. He presented evidence of his income and asked the court to award appellant child support in the amount of $632 per month. Mr. Wolk testified that he had paid at least $700 to $1,500 per month for the last fifteen years in mortgage payments for the home where appellant and their child reside and asked the court not to grant retroactive child support. Mr. Wolk also testified that he paid $408 per month to provide health insurance for the child.
With regard to the division of property, Mr. Wolk testified that he was asking the trial court to award each of the parties "any and all personal effects in their possession" and "any cash, bank accounts, retirement accounts in their possession . . . in their name"; to require each party "to keep and pay any and all debts in their name"; and to divest Mr. Wolk of his interest in the community homestead and award it to appellant with appellant being responsible for "the mortgage and all other matters relating to the property." He testified to the location and legal description of the community homestead and stated that it was the only real estate that he and appellant both owned, but he did not provide testimony on the property's value or the outstanding debt on the property. The trial court signed a default divorce decree granting the relief sought on the same day as the hearing. The decree specified that each party was responsible for his or her own attorney's fees, expenses and costs, and that court costs were to be borne by the party that incurred them. On October 4, 2006, appellant filed a notice of appeal.
ANALYSIS
In her first issue, appellant argues that she is entitled to a restricted appeal. A party filing a restricted appeal must demonstrate he filed the appeal within six months of the date the judgment was rendered; he was a party to the suit; he did not participate at the hearing that resulted in the judgment complained of or file any post-judgment motions or appeals; and error is apparent on the face of the record. Tex. R. App. P. 26.1(c), 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). The "face of the record" consists of all the papers on file in the appeal, including the reporter's record. Vazquez v. Vazquez, ___ S.W.3d ___, No. 14-05-01257-CV, 2007 Tex. App. LEXIS 4713, at *4 (Tex. App.--Houston [14th Dist.] June 19, 2007, no pet.); see also Norman Commc'ns v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997).
Mr. Wolk concedes that appellant has established the first three requirements of a restricted appeal and that only the fourth requirement, error on the face of the record, is at issue. In her second, third and fourth issues, appellant argues that error is apparent on the face of the record as to the trial court's determinations regarding the division of the marital estate, the amount of child support, and the allocation of attorney's fees and court costs. As to the trial court's determinations on these issues, we agree that error is apparent on the face of the record.
Standard of Review
"In a suit for divorce, the petition may not be taken as confessed if the respondent does not file an answer." Tex. Fam. Code Ann. § 6.701 (West 2006). When a respondent in a divorce case fails to answer, the petitioner must still present proof to support the material allegations in the petition. Vazquez, 2007 Tex. App. LEXIS 4713, at *5-6; see also Barry v. Barry, 193 S.W.3d 72, 75 (Tex. App.--Houston [1st Dist.] 2006, no pet.). Because appellant failed to answer or appear, Mr. Wolk was required to present proof at trial to support the material allegations in his petition.
Most appealable issues in family law cases are subject to evaluation under the abuse of discretion standard, including the division of property and the assessment of child support. Sandone v. Miller-Sandone, 116 S.W.3d 204, 205 (Tex. App.--El Paso 2003, no pet.). The test for abuse of discretion is whether the court acted without reference to any guiding principles and rules. Id. at 206. A default judgment of divorce also is subject to an evidentiary attack on appeal. Vazquez, 2007 Tex. App. LEXIS 4713, at *6. When sufficiency review overlaps the abuse of discretion standard, the inquiry on appeal is two-fold: did the trial court have sufficient information upon which to exercise its discretion and did the trial court err in its application of its discretion. Sandone, 116 S.W.3d at 206. Evidentiary sufficiency review comes into play as to the first question. Id. (1)
Division of Marital Estate
In her third issue, appellant contends that the trial court erred in its division of the marital estate. The trial court awarded the community homestead to appellant, but ordered her to pay the "balance due, including principal, interest, tax, and insurance escrow, on the promissory note executed by [Mr. Wolk and appellant] on the [homestead]." The trial court also awarded all personal effects, cash, bank accounts and retirement accounts to the party in possession and ordered both parties to pay "any and all debt" in his or her name.
The Texas Family Code provides that "[i]n a decree of divorce or annulment, the court 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 and any children of the marriage." Tex. Fam. Code Ann. § 7.001 (West 2006). Courts have broad discretion in suits for divorce when dividing the property; but the division must be "just and right." Sandone, 116 S.W.3d at 207.
This case is similar to O'Neal v. O'Neal, 69 S.W.3d 347 (Tex. App.--Eastland 2002, no pet.), also a restricted appeal of a default divorce judgment. In O'Neal, the petitioner was the only witness at the hearing and provided scant testimony. Id. at 348-50. The trial court divided the community property, including real property, cash, bank accounts, retirement accounts, IRA accounts, stocks, bonds and securities between the parties, without evidence of the value of the property. Id. at 348-50. The court of appeals concluded that the trial court had abused its discretion in the division of the estate based on lack of evidence. Id. at 350.
The El Paso court of appeals reached the same conclusion in another case involving a restricted appeal of a default divorce decree. Sandone, 116 S.W.3d at 205. The court reversed the trial court's division of property because there was no evidence of the value of the assets or the amount of the liabilities. Id. at 207-08. Stating that "[w]ithout the ability to determine the size of the community pie, we can make no determination that the slices awarded to each spouse were just and right," the court held "a division of community property cannot be upheld where the record is absolutely devoid of any testimony concerning the value of the property divided by the court." Id. at 205, 207-08; see also Wilson v. Wilson, 132 S.W.3d 533, 538 (Tex. App.--Houston [1st Dist.] 2004, no pet.) (reversing property division due to the "dearth of evidence identifying, describing, and valuing the community estate").
Similarly, this record lacks evidence identifying, describing, and valuing the community estate. Although Mr. Wolk testified as to the location and legal description of the community homestead, and stated that he had made mortgage payments on the home of at least $700 to $1,500 per month for fifteen years, no other evidence was presented as to the value of the property or the outstanding debt on the property. Likewise, no evidence was presented to identify, describe, or value the other assets and liabilities divided in the decree. Instead, Mr. Wolk merely asked that the court allow each party to "keep any cash, bank accounts, retirement accounts in their possession . . . in their name" and that "each party be able to keep and pay any and all debts in their name." Accordingly, we conclude error is apparent on the face of the record and that the trial court abused its discretion in the division of the marital estate based on the lack of evidence. See Sandone, 116 S.W.3d at 208. We sustain appellant's third issue.
Amount of Child Support
In her second issue, appellant contends the trial court erred in its determination of the amount of child support. The trial court applied the child support guidelines, based upon evidence of Mr. Wolk's income, and awarded appellant $632 per month in child support. See Tex. Fam. Code Ann. § 154.130 (West 2002). Because we have remanded the division of the community estate to the trial court, we also remand the determination of child support as such an award may be "materially influenced" by the property division, and we should not substitute our discretion for that of the trial court. See Vazquez, 2007 Tex. App. LEXIS 4713, at *12; see also Wilson, 132 S.W.3d at 539.
The Texas Family Code also specifies four factors that a court "shall determine and give special consideration to" when setting the amount of child support for a disabled child after his eighteenth birthday. Tex. Fam. Code Ann. § 154.306 (West 2002). The factors are:
(1) any existing or future needs of the adult child directly related to the adult child's mental or physical disability and the substantial care and personal supervision directly required by or related to that disability;
(2) whether the parent pays for or will pay for the care or supervision of the adult child or provides or will provide substantial care or personal supervision of the adult child;
(3) the financial resources available to both parents for the support, care, and supervision of the adult child; and
(4) any other financial resources or other resources or programs available for the support, care, and supervision of the adult child. Id.
Though evidence was presented that the child has Down syndrome, that appellant has always been the primary caretaker, and that she has been taking care of the child for years, there was no evidence showing the child's current or future medical needs relating to his disability, the substantial care and supervision required relating to the child's disability, whether appellant pays or will pay for the care or supervision of the child or will provide substantial care, or financial or other resources or programs available for the support and care of the child. We conclude that on the face of the record, the trial court did not have sufficient information "to determine and give special consideration" to the statutorily required factors. See id.; see also Sandone, 116 S.W.3d at 208. We sustain appellant's second issue.
Attorney's fees and court costs
In her fourth issue, appellant contends the trial court erred in its assessment of attorney's fees and court costs. The trial court ordered in the divorce decree that each party was responsible for his or her own attorney's fees, expenses and costs, and that court costs were to be borne by the party that incurred the costs. A court may apportion attorney's fees in a divorce action as part of a just and right division of the property. Sandone, 116 S.W.3d at 208. Mr. Wolk, however, did not present any evidence of incurred attorney's fees. Because we have reversed and remanded the division of the marital estate, and because no evidence was presented on the amount of incurred attorney's fees, we sustain appellant's fourth issue and remand the assessment of fees and costs for further consideration by the trial court in connection with the other remanded issues. See Barry, 193 S.W.3d at 76.
CONCLUSION
We affirm the trial court decree in part, and having sustained appellant's issues, reverse and remand for a new trial on the issues raised by appellant.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed in part; Reversed and Remanded in part
Filed: September 12, 2007
1. Because we conclude that the trial court did not have sufficient information to exercise its discretion in the division of the marital estate, the assessment of child support, or the award of attorney's fees, we only address the first inquiry as to each issue appellant raises.
Divorce: Property division affirmed on appeal
Ronnie Jean Davis, Sr. v. Lisa T. Davis, No. 03-06-00461-CV (Tex.App-Austin, Sep. 12, 2007)(Opinion by Justice Patterson)(Before Justices Patterson, Pemberton and Waldrop)
Appeal from 169th District Court of Bell County
FROM THE DISTRICT COURT OF BELL COUNTY, 169TH JUDICIAL DISTRICT
NO. 212,289-C, HONORABLE GORDON G. ADAMS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
In three issues, appellant Ronnie Gene Davis, who is incarcerated and acting pro se, challenges a divorce decree dissolving the marriage between himself and appellee Lisa T. Davis. He contests the trial court's exclusion of evidence and its property division between the parties. Finding no error in the trial court's ruling, we affirm the judgment.
Ms. Davis's original petition for divorce was filed on August 16, 2005. Mr. Davis failed to appear at trial and the divorce decree was signed. After the trial court granted a motion for new trial in January 2006, the court set a hearing for June 5, 2006. Mr. Davis appeared at the hearing by telephone.
As a result of the hearing, the trial court granted the divorce and judgment was rendered on July 13, 2006. The parties were awarded the household furniture, furnishings, fixtures, goods, art objects, collectibles, appliances, equipment, clothing, jewelry, and other personal effects in their possession or subject to their sole control; cash or funds in their sole names or from which they have the sole right to withdraw funds; retirement and pension plans, and other benefits existing from their individual employments; and life insurance policies insuring their individual lives. Mr. Davis was also awarded his tools, an eighteen-foot boat and trailer, and a van motor vehicle. Ms. Davis was awarded an Oldsmobile Cutlass motor vehicle. The trial court confirmed as Ms. Davis's separate property land consisting of 0.126 acre of land located at 204 Martin Luther King Drive, Temple, Texas.
In his statement of facts on appeal, Mr. Davis described his marriage to Ms. Davis, who was twenty years younger and whom he married seven days after meeting her on March 6, 2003. Mr. Davis alleges that she abandoned him eight months after they married and that she obtained a quitclaim deed for the Temple property from him through fraud. In three points of error, Mr. Davis primarily complains that the trial court abused its discretion in the division of community property. Specifically, Mr. Davis complains that it is unreasonable for Ms. Davis to receive community property, and particularly the Temple property, after only eight months of marriage. He also urges that she obtained the property through fraud by having him sign the deed over to her and therefore the court erred in excluding his mental health history, i.e., that he was receiving veterans' benefits because he was 100% disabled, to support his claim. He also urges that the trial court erred in not allowing discovery he requested. (1)
The family code requires the trial court to divide the estate of the parties in a manner that is just and right, having due regard for the rights of each party. Tex. Fam. Code Ann. § 7.001 (West 2006); see Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 139 (Tex. 1977). We review property division issues for abuse of discretion. Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998). The trial court has broad discretion in dividing the marital estate at divorce. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). We must presume that the trial court exercised it properly and may not alter the division unless the complaining party establishes a clear abuse of the trial court's discretion. Id. at 699-700.
All property on hand at the dissolution of marriage is presumed to be community property. Tex. Fam. Code Ann. § 3.003(a) (West 2006). This is a rebuttable presumption, requiring a spouse claiming assets as separate property to establish their separate character by clear and convincing evidence. Id. § 3.003(a)-(b). The trial court specifically found that the Temple property was the separate property of Ms. Davis and the record shows the admission of a quitclaim deed supporting the court's confirmation.
Except for a reference to the quitclaim deed offered into evidence by Ms. Davis, there is no other evidence in the record. There is no transcript of the hearing. Without any controverting evidence as to the characterization of the Temple property, Mr. Davis failed to carry his burden to successfully challenge the property characterization. There is no evidence in the record to support Mr. Davis's arguments or that any of the issues are preserved for review. We therefore cannot say that the trial court abused its discretion in its division of property or in its exclusion of evidence. We overrule appellant's points of error.
Having found no reversible error, we affirm the judgment of the trial court.
_________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed: September 12, 2007
1. The record shows that Mr. Davis filed a request for discovery of the "original lease agreement and the date of deposit for her separate resident's [sic] in the Glenn Apartments, Temple, Texas." There is no showing that Mr. Davis set the motion for a hearing or otherwise followed up on this request. He therefore has not preserved error on this point.
Appeal from 169th District Court of Bell County
FROM THE DISTRICT COURT OF BELL COUNTY, 169TH JUDICIAL DISTRICT
NO. 212,289-C, HONORABLE GORDON G. ADAMS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
In three issues, appellant Ronnie Gene Davis, who is incarcerated and acting pro se, challenges a divorce decree dissolving the marriage between himself and appellee Lisa T. Davis. He contests the trial court's exclusion of evidence and its property division between the parties. Finding no error in the trial court's ruling, we affirm the judgment.
Ms. Davis's original petition for divorce was filed on August 16, 2005. Mr. Davis failed to appear at trial and the divorce decree was signed. After the trial court granted a motion for new trial in January 2006, the court set a hearing for June 5, 2006. Mr. Davis appeared at the hearing by telephone.
As a result of the hearing, the trial court granted the divorce and judgment was rendered on July 13, 2006. The parties were awarded the household furniture, furnishings, fixtures, goods, art objects, collectibles, appliances, equipment, clothing, jewelry, and other personal effects in their possession or subject to their sole control; cash or funds in their sole names or from which they have the sole right to withdraw funds; retirement and pension plans, and other benefits existing from their individual employments; and life insurance policies insuring their individual lives. Mr. Davis was also awarded his tools, an eighteen-foot boat and trailer, and a van motor vehicle. Ms. Davis was awarded an Oldsmobile Cutlass motor vehicle. The trial court confirmed as Ms. Davis's separate property land consisting of 0.126 acre of land located at 204 Martin Luther King Drive, Temple, Texas.
In his statement of facts on appeal, Mr. Davis described his marriage to Ms. Davis, who was twenty years younger and whom he married seven days after meeting her on March 6, 2003. Mr. Davis alleges that she abandoned him eight months after they married and that she obtained a quitclaim deed for the Temple property from him through fraud. In three points of error, Mr. Davis primarily complains that the trial court abused its discretion in the division of community property. Specifically, Mr. Davis complains that it is unreasonable for Ms. Davis to receive community property, and particularly the Temple property, after only eight months of marriage. He also urges that she obtained the property through fraud by having him sign the deed over to her and therefore the court erred in excluding his mental health history, i.e., that he was receiving veterans' benefits because he was 100% disabled, to support his claim. He also urges that the trial court erred in not allowing discovery he requested. (1)
The family code requires the trial court to divide the estate of the parties in a manner that is just and right, having due regard for the rights of each party. Tex. Fam. Code Ann. § 7.001 (West 2006); see Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 139 (Tex. 1977). We review property division issues for abuse of discretion. Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998). The trial court has broad discretion in dividing the marital estate at divorce. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). We must presume that the trial court exercised it properly and may not alter the division unless the complaining party establishes a clear abuse of the trial court's discretion. Id. at 699-700.
All property on hand at the dissolution of marriage is presumed to be community property. Tex. Fam. Code Ann. § 3.003(a) (West 2006). This is a rebuttable presumption, requiring a spouse claiming assets as separate property to establish their separate character by clear and convincing evidence. Id. § 3.003(a)-(b). The trial court specifically found that the Temple property was the separate property of Ms. Davis and the record shows the admission of a quitclaim deed supporting the court's confirmation.
Except for a reference to the quitclaim deed offered into evidence by Ms. Davis, there is no other evidence in the record. There is no transcript of the hearing. Without any controverting evidence as to the characterization of the Temple property, Mr. Davis failed to carry his burden to successfully challenge the property characterization. There is no evidence in the record to support Mr. Davis's arguments or that any of the issues are preserved for review. We therefore cannot say that the trial court abused its discretion in its division of property or in its exclusion of evidence. We overrule appellant's points of error.
Having found no reversible error, we affirm the judgment of the trial court.
_________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed: September 12, 2007
1. The record shows that Mr. Davis filed a request for discovery of the "original lease agreement and the date of deposit for her separate resident's [sic] in the Glenn Apartments, Temple, Texas." There is no showing that Mr. Davis set the motion for a hearing or otherwise followed up on this request. He therefore has not preserved error on this point.
No Brief - No Appellate Review: King v. King (Tex.App.- Austin, Sep. 11, 2007)
Christopher Jay King v. Nicole Carter King, No. 03-07-00035-CV (Tex.App.- Austin, Sep. 11, 2007)(Opinion by Justice Patterson)(DWOP)(Before Justices Patterson, Puryear and Pemberton)
Disposition: Dismissed for Want of Prosecution
Appeal from County Court at Law of Burnet County
FROM THE COUNTY COURT AT LAW OF BURNET COUNTY,
NO. 23017, HONORABLE W. R. SAVAGE, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Christopher Jay King filed his notice of appeal on January 23, 2007, and the appellate record was filed the same day. On July 31, 2007, the clerk of this Court sent appellant notice that his brief was overdue and that his appeal would be dismissed for want of prosecution if he did not respond to this Court by August 10, 2007. To date, appellant has not responded to this Court's notice. Accordingly, we dismiss the appeal for want of prosecution. Tex. R. App. P. 42.3(b), (c).
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Pemberton
Dismissed for Want of Prosecution
Filed: September 11, 2007
Disposition: Dismissed for Want of Prosecution
Appeal from County Court at Law of Burnet County
FROM THE COUNTY COURT AT LAW OF BURNET COUNTY,
NO. 23017, HONORABLE W. R. SAVAGE, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Christopher Jay King filed his notice of appeal on January 23, 2007, and the appellate record was filed the same day. On July 31, 2007, the clerk of this Court sent appellant notice that his brief was overdue and that his appeal would be dismissed for want of prosecution if he did not respond to this Court by August 10, 2007. To date, appellant has not responded to this Court's notice. Accordingly, we dismiss the appeal for want of prosecution. Tex. R. App. P. 42.3(b), (c).
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Pemberton
Dismissed for Want of Prosecution
Filed: September 11, 2007
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