Opinion
No. 01-10-00268-CV
Opinion issued July 7, 2011.
On Appeal from the County Court at Law Number Three, Galveston County, Texas, Trial Court Case No. 09FD2033.
Panel consists of Chief Justice RADACK and Justices SHARP and BROWN.
MEMORANDUM OPINION
Bruce and Mary Crider were divorced. Bruce challenges the final judgment in their divorce action on numerous grounds. We find no error in the trial court's judgment and affirm.
Background
On August 4, 2009, Bruce and Mary Crider filed a verified petition for divorce on grounds of irreconcilable differences. The petition stated that the Criders had provided for the division of their community property and obligations in a marital settlement agreement, which was attached to the petition and incorporated into the petition by reference. The petition stated that both parties were satisfied with the marital settlement agreement and signed the agreement without duress, force, or collusion. The petition for divorce and marital settlement agreement were on pre-printed forms, filled out by the Criders with handwritten additions and cross-outs. The petition and marital settlement agreement were each notarized and signed by Bruce and Mary.
The marital settlement agreement awarded the following property to Mary: household furnishings, computers, televisions, a Dodge Ram pickup truck, a .38 revolver, and "1/2 of business, Cutting Edge." It awarded the following property to Bruce: tools and equipment, a utility trailer, a Dodge Dakota pickup truck, a weight bench, a twelve gauge Winchester, a .380 Bersa, a .22 Browning and "1/2 of business (Cutting Edge)." The marital property agreement identified the couple's home in Hitchcock, Texas as community property and provided that it would be sold, with the proceeds from the sale divided evenly between Bruce and Mary. The agreement stated that the parties owned no separate property. The agreement also contained a waiver of any right to alimony, maintenance or spousal support. The Criders had no children.
The trial transcript indicates that the Criders ran a business together called Cutting Edge Carpentry. There is testimony that Cutting Edge Carpentry was a d/b/a and not a partnership, and the parties' testimony is unclear as to whether Cutting Edge Carpentry still existed as either a registered business entity or assumed name at the time of trial.
Approximately three months after the Criders filed the verified petition for divorce, Mary separately filed a counter-petition for divorce in which she asked the court to divide the couple's marital assets, asserted that she owned separate property, and requested spousal maintenance. Mary's counter-petition made no reference to the marital settlement agreement.
Bruce moved to dismiss Mary's counter-petition, arguing that the joint verified petition remained valid and pending and that Mary had no grounds for avoiding enforcement of the marital property agreement. Bruce also moved to compel performance of the marital settlement agreement, specifically seeking to compel Mary to move forward with the sale of their home in Hitchcock and the division of the proceeds, pursuant to the agreement. Finally, Bruce sought a temporary protective order to prohibit Mary from, among other things, interfering with his use and possession of the home in Hitchcock and the Dodge Dakota pickup truck. The record does not contain any response to these motions from Mary. The trial court denied Bruce's motions in December 2009.
In March 2010, the trial court held a hearing on the Criders' divorce action and entered a final judgment. The judgment differs from the parties' earlier agreement. The trial court determined the residence in Hitchcock, Texas to be Mary's separate property and awarded the Browning handgun to Mary rather than Bruce. The judgment ordered Bruce to pay Mary maintenance in the amount of $250 per month for a one-year period commencing on April 1, 2010. Because Bruce had possession of the Browning handgun at the time of trial, the judgment also ordered Bruce to deliver the Browning handgun to Mary's attorney's office within thirty days from the entry of judgment.
Bruce appealed from the trial court's final judgment, raising the following issues: (1) the damages awarded were manifestly too large, resulting in a violation of his constitutional rights; (2) the associate judge abused its discretion in recommending denial of his motions; (3) the trial judge should have recused himself under Rule 18b of the Texas Rules of Civil Procedure; (4) the maintenance award violated section 8.052 of the Texas Family Code and was unfairly disproportionate; (5) the trial court improperly excluded evidence, (6) the trial court applied an incorrect standard of proof; (7) the trial court erred in failing to designate this case as a "complex case" under the local rules; (8) the trial court had improper ex parte communications with Mary's counsel; (9) the trial court attempted to defraud him; (10) Mary filed an inaccurate financial statement, committed discovery abuses, perjured herself on the stand and committed other wrongs against him; (11) Mary's attorney committed wrongs against him; (12) the order for delivery of the Browning handgun to Mary's attorney violated federal gun laws and U.S. mail regulations; (13) the trial court erred in dividing the community property rather than enforcing the parties' marital settlement agreement; (14) the trial court erred in determining that the home in Hitchcock was Mary's separate property; (15) the trial court erred in determining that an unspecified pistol was Mary's separate property; (16) the trial court violated his constitutional rights; and (17) the amount of the maintenance award violated section 8.055 of the Texas Family Code. Mary waived her right to respond on appeal.
Standard of Review
The standard of review for property division issues in family law cases is abuse of discretion. Raymond v. Raymond, 190 S.W.3d 77, 82 (Tex. App.-Houston [1st Dist.] 2005, no pet.) (citing Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998)). A trial court has broad discretion in dividing the marital estate. Id. (citing Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 139 (Tex. 1977)). If the division of marital property lacks sufficient evidence in the record to support it, then the trial court's division is an abuse of discretion. Id. at 83.
A post-marital property agreement is a contract, and unless it is ambiguous, we determine its legal force and meaning as a question of law. See Evans v. Evans, No. 01-97-00381-CV, 1999 WL 164463, at *2 (Tex. App.-Houston [1st Dist.] Mar. 25, 1999, no pet.) (citing McGoodwin v. McGoodwin, 671 S.W.2d 880, 882 (Tex. 1984)). Likewise, statutory construction is a question of law that we review de novo. See HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 352 (Tex. 2009).
Issues Not Preserved
Preservation of error is a prerequisite for appellate review. TEX. R. APP. P. 33.1(a). To preserve error, a party must (1) raise the issue before the trial court in a manner that is timely, complies with the rules of civil procedure, and informs the trial court of what the party requests and the basis for the request, and (2) obtain a ruling from the trial court or object to the trial court's refusal to rule. Id.; In re Commitment of Hill, 334 S.W.3d 226, 229 (Tex. 2011) ("A party preserves error by a timely request that makes clear — by words or context — the grounds for the request and by obtaining a ruling on that request, whether express or implicit."). Courts of appeals may not review issues that are not preserved for appeal. TEX. R. APP. P. 33.1(a); Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh'g). We conclude that Bruce has waived issues three, five, ten, and seventeen, as enumerated above, by failing to preserve the issues for appeal.
With respect to issue three, the rules of civil procedure require a party seeking recusal to file a verified motion to recuse stating the grounds for recusal at least ten days before a trial or hearing. See TEX. R. CIV. P. 18a(a). Bruce never moved to recuse the trial judge. He therefore has not preserved issue three for appeal. See Zurita v. Lombana, 322 S.W.3d 463, 471 n. 2 (Tex. App.-Houston [14th Dist.] 2010, pet. denied) (determining that party waived complaint by failing to move for recusal); Harris v. Winston, No. 01-05-00962-CV, 2007 WL 1500279, at *3 n. 5 (Tex. App.-Houston [1st Dist.] 2007, pet. dism'd w.o.j.) (declining to reach issue where appellant failed to demonstrate that he filed motion to recuse in trial court prior to final judgment); see also In re Wilhite, 298 S.W.3d 754, 757 (Tex. App.-Houston [1st Dist.] 2009, no pet.) ("Recusal must be preserved for appeal or it is waived.").
With respect to issue five, "[t]o preserve error in the exclusion of evidence, a party must (1) attempt during the evidentiary portion of the trial to introduce the evidence; (2) if an objection is lodged, specify the purpose for which [the evidence] is offered and give the trial court reasons why the evidence is admissible; (3) obtain a ruling from the court; and (4) if the court rules the evidence inadmissible, make a record, through a bill of exceptions, of the precise evidence the party desires admitted." Ulogo v. Villanueva, 177 S.W.3d 496, 501-02 (Tex. App.-Houston [1st Dist.] 2005, no pet.). Bruce did not satisfy these prerequisites with respect to any piece of evidence he offered at trial that was not admitted by the trial court. He has therefore waived any complaint about the exclusion of evidence. See id.
With respect to issue ten, Bruce has not shown that he raised his complaints relating to Mary's evidence or alleged conduct before the trial court in a timely manner that complied with the rules of civil procedure or that the trial court ruled on his complaints. Bruce has therefore waived this issue. See TEX. R. APP. P. 33.1(a); In re Commitment of Hill, 334 S.W.3d at 229.
With respect to issue seventeen, Bruce complains for the first time on appeal that the trial court's spousal maintenance award violates section 8.055 by exceeding the limitation on the amount that may be awarded under subsection (a). See TEX. FAM. CODE ANN. § 8.055(a) (West 2006) (limiting amount of maintenance trial court may order to lesser of $2,500 or twenty percent of spouse's average monthly gross income). Bruce contends that he has no monthly income and that the maximum amount maintenance that could be awarded against him is therefore $0. See id. § 8.055(a)(2). Bruce did not raise this issue in his post-judgment filings or otherwise bring the issue before the trial court and obtain a ruling. He therefore cannot raise this issue on appeal. See TEX. R. APP. P. 33.1(a).
Issues Waived Due to Inadequate Briefing
The rules of appellate procedure require a party's brief to contain a "clear and concise argument" for the party's contentions and "appropriate citations to authorities and to the record." TEX. R. APP. P. 38.1(i). A party who fails to support his or her contentions with authority or citations to the record when appropriate waives the issue due to inadequate briefing. E.g., Izen v. Comm'n For Lawyer Discipline, 322 S.W.3d 308, 326 (Tex. App.-Houston [1st Dist.] 2010, pet. struck) (holding that party waived issue by failing to cite relevant legal authority to support argument); Morrill v. Cisek, 226 S.W.3d 545, 548-49 (Tex. App.-Houston [1st Dist.] 2006, no pet.) (holding party waived issues by failing to cite to record and authority). This rule applies to pro se litigants as well as litigants represented by legal counsel; otherwise, pro se litigants would have an unfair advantage over represented litigants. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978) ("There cannot be two sets of procedural rules, one for litigants with counsel and the other for litigants representing themselves. Litigants who represent themselves must comply with the applicable procedural rules, or else they would be given an unfair advantage over litigants represented by counsel."); Morris v. Am. Home Mortg. Serv., Inc., No. 01-09-00768-CV, 2011 WL 1631762, at *3 (Tex. App.-Houston [1st Dist.] Apr. 28, 2011, no pet.) (holding pro se litigant waived issue by failing to support arguments with appropriate citations to legal authority and record). We hold that Bruce has waived issues one, two, four, six through nine, eleven, fourteen, fifteen, and sixteen due to inadequate briefing.
Bruce has waived issues one, two, six, and sixteen by failing to cite even a single legal authority to support these contentions. In issues one and sixteen, Bruce even fails to cite to any constitution provision that he contends the trial court violated. Issues one, two, six and sixteen are thus waived. See TEX. R. APP. P. 38.1(i); Izen, 322 S.W.3d at 326; Morris, 2011 WL 1631762, at *3.
Bruce has also waived issues seven and nine by failing to cite legal authority when appropriate and necessary to support his contentions. In issue seven, Bruce contends that the trial court should have designated his and Mary's divorce action as a complex case under local rules because he was indigent and not represented by counsel. Although Bruce cites to the pertinent local rule, he provides no argument or authority to support his contention that indigency and lack of counsel are grounds for designating a case as complex under the rule. Nor does the plain language of the rule provide any indication that the rule was intended to apply to actions involving pro se or indigent litigants without regard to the nature of the case or the complexity of the legal issues involved. See GALVESTON CNTY. (TEX.) CNTY. CT. LOC. R. 3.19 (authorizing county courts at law to designate a case as complex such that the court may have discretion to exceed the time limits for disposition of cases established by rule 6(e) of the Rules of Judicial Administration). Similarly, in issue nine, although Bruce cites the chapter of the Texas Penal Code governing fraud and a case discussing fraud, these authorities are not relevant to his contention that the manner in which the trial court conducted this case constituted a fraud on him. See TEX. PENAL CODE ANN. §§ 32.01- 32.52; Fina Supply, Inc. v. Abilene Nat'l Bank, 726 S.W.2d 537, 540 (Tex. 1987) (holding that statements as to legal effect of amending expiration date of letter of credit could not support fraud claim). Bruce provides no argument as to how the trial court's alleged error in handling his divorce action can constitute fraud under criminal or civil law and provides no authority relevant to such a claim. Bruce has therefore waived issues seven and nine. See TEX. R. APP. P. 38.1(i); Izen, 322 S.W.3d at 326; Morris, 2011 WL 1631762, at *3.
Bruce has waived issues four, eight, eleven, fourteen, fifteen, and seventeen by failing to provide a clear and concise argument and to support it with appropriate citations to the record. See TEX. R. APP. P. 38.1(i). Although we interpret rule 38.1(i)'s briefing requirements liberally, parties "must put forth some specific argument and analysis showing that the record and the law supports their contentions." San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.-Houston [14th Dist.] 2005, no pet.). Additionally, appellate courts are not required to sift through the record without guidance from the party to find support for a party's bare assertion of error. See Reliant Energy Servs., Inc. v. Cotton Valley Compression, L.L.C., 336 S.W.3d 764, 794 n. 36 (Tex. App.-Houston [1st Dist.] 2011, no pet.); Curtis v. Comm'n for Lawyer Discipline, 20 S.W.3d 227, 237 n. 2 (Tex. App.-Houston [14th Dist.] 2000, no pet.); Wade v. Comm'n for Lawyer Discipline, 961 S.W.2d 366, 373 (Tex. App.-Houston [1st Dist.] 1997, no pet.); Nawas v. R S Vending, 920 S.W.2d 734, 737 (Tex. App.-Houston [1st Dist.] 1996, no writ).
In issue four, Bruce asserts that the trial court violated section 8.052 of the Family Code by failing to consider some factors and giving disproportionate weight to others. But Bruce does not support this contention with any citations to the record or explain his basis for concluding that the trial court did not consider certain factors or gave greater weight to certain factors. He does not identify any evidence that favors him under the factors identified in section 8.052; nor does he specifically challenge any of Mary's evidence under these factors. See TEX. FAM. CODE ANN. § 8.052 (West 2006).
In issue fourteen, Bruce states in a single sentence that Mary falsely claimed that the home in Hitchcock was her separate property. He does not support this assertion with a single citation to legal authority or the record, nor does he provide any argument to support it. Mary put forth evidence at trial that she inherited the house from her parents, and Bruce identifies no contrary evidence. Issues four and fourteen are thus waived. See TEX. R. APP. P. 38.1(i); San Saba Energy, 171 S.W.3d at 338.
With respect to issues eight and eleven, Bruce does not cite to any place in the record to support his allegation that the trial court engaged in ex parte communications or his accusations against Mary's attorney. With respect to issue fifteen, Bruce does not identify in basis in the record to support his assertion that the trial court determined some unspecified pistol to be Mary's separate property; to the contrary, the trial court's final judgment identifies only the real property in Hitchcock as separate property belonging to Mary. These issues are thus also waived. See TEX. R. APP. P. 38.1(i); Wade, 961 S.W.2d at 373 ("An appellate court is under no duty to make an independent search of the record for evidence supporting an appellant's position.").
Marital Settlement Agreement
In his thirteenth issue, Bruce contests the trial court's failure to enforce the martial settlement agreement filed with the parties' original petition for divorce. Agreements between spouses entered into incident to a divorce are governed by section 7.006 of the Family Code. See TEX. FAM. CODE ANN. § 7.006 (West 2006). section 7.006 provides that spouses seeking a divorce may enter into a written agreement concerning the division of the property and the liabilities of the spouses and maintenance of either spouse. Id. § 7.006(a). Such an agreement may be revised or repudiated by either spouse before the trial court renders its final divorce judgment, unless the agreement is binding under another rule of law. Id.; see Cayan v. Cayan, 38 S.W.3d 161, 164 (Tex. App.-Houston [14th Dist.] 2000, pet. denied). Additionally, if the trial court finds that the terms of an agreement incident to divorce are not just and right, the trial court may request that the parties revise the agreement or it may set the case for a contested hearing. TEX. FAM. CODE ANN. § 7.006(c); see Cayan, 38 S.W.3d at 164.
Bruce does not assert that the marital settlement agreement is binding under another rule of law.
We will not reverse the trial court's judgment to the extent it can be upheld on any legal theory that finds support in the record. Gainous v. Gainous, 219 S.W.3d 97, 103 (Tex. App.-Houston [1st Dist.] 2006, pet. denied). Here, the trial court set aside the parties' agreement and set the case for a contested hearing. This action can be upheld under Section 7.006(c) if there is support in the record for the trial court's determination that the agreement did not provide for a fair and just division of the Criders' community estate. See TEX. FAM. CODE ANN. § 7.006(c); see also Markowitz v. Markowitz, 118 S.W.3d 82, 89 (Tex. App.-Houston [14th Dist.] 2003, pet. denied) (holding that trial court has discretion to approve or reject agreement incident to divorce in order to ensure just and right division of marital estate). The record contains evidence that supports the trial court's determination that the marital settlement agreement was not just and fair, including evidence that the home in Hitchcock was Mary's separate property that she inherited from her parents. We therefore hold that the trial court did not err in setting the case for contested hearing. See TEX. FAM. CODE ANN. § 7.006(c); Markowitz, 118 S.W.3d at 89; cf. Hogan v. Hogan, No. 05-00-00048-CV, 2001 WL 221542, at *4-5 (Tex. App.-Dallas Mar. 7, 2001, no pet.) (holding that trial court properly conducted contested hearing on divorce action when record supported trial court's determination that parties' divorce agreement was too vague to enforce).
Federal Gun Laws
In issue twelve, Bruce challenges the order in the final judgment requiring him to deliver the Browning handgun to Mary's attorney, asserting that the order violates section 922(a)(3) and (b)(3) of the United States Code, as well as U.S. postal service regulations. The order states:
IT IS HEREBY ORDERED that within 30 days from the entry of this Decree, [the Browning] hand gun is to be delivered by shipment or U.S. Mail, to the Law Offices of Gerson D. Bloom, 1023 — 21st Street, Galveston, Texas 77550.
The testimony at trial establishes that Bruce took the Browning handgun and other property with him to his new residence in Colorado and that the handgun was still located in Colorado at the time of trial. Delivering the handgun to Mary's attorney's office in Texas therefore requires transportation of the gun across state lines. The testimony also establishes that the gun was owned by Mary's father, who gave it to Bruce and Mary as a gift.
Section 922(a)(3) prohibits a person who is not a licensed importer, manufacturer, dealer or collector of firearms from transporting into or receiving in the state where he or she resides any firearm purchased or otherwise obtained by that person outside the State, with certain exceptions. 18 U.S.C. § 922(a)(3) (2005). We hold that the trial court's order can be complied with without violation of this statute because, although the order requires Mary to receive the Browning handgun in Texas, Mary did not purchase or obtain the handgun outside of Texas. The handgun was given to Bruce and Mary by Mary's father in Texas, and possession of the handgun was awarded to Mary by the trial court in Texas. Cf. id.
Section 922(b)(3) prohibits a licensed importer, manufacturer, dealer or collector of firearms from selling or delivering a firearm to a person who the licensee knows or has reasonable cause to believe does not reside in the state in which the licensee's place of business is located, with certain exceptions. See 18 U.S.C. § 922(b)(3). We hold that the trial court's order can be complied with without violation of this statute because Bruce is not a licensed importer, manufacturer, dealer or collector of firearms with a place of business outside of Texas. Cf. id.
Bruce does not specify which U.S. postal service regulations prohibit him from mailing a firearm. Regardless, Bruce need not deliver the handgun to Mary via U.S. mail to comply with the trial court's order. The trial court's order is broad enough to allow Bruce to deliver the handgun to Mary via any method of shipment he deems lawful and appropriate. We read the order as broad enough to permit personal delivery. Bruce does not contend that he may not legally transport the handgun across state lines himself, as he did when he took the handgun from Texas to Colorado prior to trial.
We therefore conclude that Bruce has not demonstrated that he cannot comply with the trial court's order without violating subsection (a)(3) and (b)(3) of section 922 of the United States Code or U.S. postal service regulations. See 18 U.S.C. §§ 922(a)(3), (b)(3).
Conclusion
We hold that the trial court did not err in setting the Criders' divorce action for a contested hearing and that Bruce has not demonstrated that federal law or U.S. postal service regulations preclude him from complying with the trial court's order regarding delivery of the Browning handgun to Mary. We hold that Bruce has either waived or failed to preserve for appeal all other issues he raises here. We therefore affirm the trial court's judgment.
Appellant's "Amended Motion to Reform Judgment" and any other motions filed by appellant with this Court are dismissed as moot to the extent they seek relief beyond that granted in this opinion.