In re In re Price

• Decision Date: 15 October 2015
• Docket Number: No. 10-14-00260-CV,10-14-00260-CV
• Parties: IN THE MATTER OF THE MARRIAGE OF CARRIE LANELL PRICE AND NATHAN DOYLE PRICE AND IN THE INTEREST OF A.D.P. AND J.L.P., CHILDREN
• Court: Texas Court of Appeals

IN THE MATTER OF THE MARRIAGE OF CARRIE LANELL PRICE AND NATHAN DOYLE PRICE AND IN THE INTEREST OF A.D.P. AND J.L.P., CHILDREN

No. 10-14-00260-CV

STATE OF TEXAS IN THE TENTH COURT OF APPEALS

October 15, 2015

From the 249th District Court Johnson County, Texas

Trial CourtNo. D201205445

MEMORANDUM OPINION

Nathan Price, appearing pro se as he did at trial, appeals the trial court's final decree of divorce for his marriage to Carrie Price.¹We will affirm.

Nathan's pro se brief fails to comply with most of the requirements of Rule of Appellate Procedure 38.1.SeeTEX. R. APP. P. 38.1.Because we, like Carrie, have been able to discern several issues raised by Nathan, we invoke Rule 2 to suspend Rule 38.1'sappellant's brief requirements to expedite this matter.²Seeid.R. 2;see alsoIn re Marriage of Jordan, 264 S.W.3d 850, 852 n.1(Tex. App.—Waco 2008, no pet.)(stating that we review and evaluate pro se briefs with patience and liberality).

Jurisdiction.Nathan generally argues that we and the trial court have no jurisdiction over his marriage and that he has the freedom to exercise religion; instead, God's law (the Bible) and the church should judge this matter.³At least one court has rejected similar arguments, holding that a Texas court does have subject-matter jurisdiction in a suit for divorce over constitutional objections (the Establishment and Free-Exercise Clauses of the U.S. Constitution and the "rights of conscience" guarantee under the Texas Constitution) and that Texas' no-fault divorce law is constitutional and does not violate those same constitutional rights.SeeWaite v. Waite, 150 S.W.3d 797, 800-801(Tex. App.—Houston [14th Dist.]2004, pet. denied);Waite v. Waite, 64 S.W.3d 217, 220-22(Tex. App.-Houston [14th Dist.]2001, pet. denied).We likewise reject and thus overrule Nathan's challenge to jurisdiction.

Evidentiary and extraneous matters.Nathan's complaints about matters that occurred in a criminal proceeding that was pending against him at the time of the divorce trial are not properly before us and are also outside the record of this case.Also not properly before us are Nathan's complaints about the agreed temporary orders and thecontempt order and his incarceration for failure to pay child support.⁴SeeBeard v. Beard, 49 S.W.3d 40, 69(Tex. App.—Waco2001, pet. denied)(final decree supplants temporary orders);Hernandez v. Hernandez, 318 S.W.3d 464, 466 n.1(Tex. App.—El Paso 2010, no pet.)(courts of appeals lack jurisdiction to review contempt order on direct appeal).Nathan's complaints about documents that allegedly were not produced by Carrie in discovery are not properly before us because he did not seek relief in the trial court.SeeTEX. R. CIV. P. 215.1.Finally, in his brief Nathan requests a venue change, but that request is plainly untimely.

Any complaint about the admission of a police report pertaining to a separate incident is not preserved for appellate review because no objection was made at trial.TEX. R. APP. P. 33.1(a).And Nathan's complaint (that there is a two-year limitations period on the use of letters) about the admission of letters that he wrote to Carrie is also not preserved for appellate review because no objection was made at trial.Id.Moreover, no such "limitations" exists in Texas law.

Conservatorship.Nathan and Carrie each sought to be appointed sole managing conservator, and a jury trial was held on conservatorship.The jury found that Carrie should be appointed sole managing conservator of the two children.The trial court then appointed Carrie as sole managing conservator and Nathan as possessory conservator.Nathan complains about the appointment of Carrie as sole managing conservator.He discusses some of the evidence, along with matters outside the record (which wedisregard) and events in the case, and requests that we grant him "sole custody" of the children.We construe this complaint and request as a challenge to the legal and factual sufficiency of the evidence and that we should appoint Nathan as sole managing conservator.

To raise a factual-sufficiency complaint on appeal, it must be preserved by including it in a motion for new trial.TEX. R. CIV. P. 324(b)(2), (3);Cecil v. Smith, 804 S.W.2d 509, 510-11(Tex.1991).Because Nathan did not file a motion for new trial, he has not preserved for appellate review a complaint that the evidence is factually insufficient to support the jury finding that Carrie should be appointed sole managing conservator or a complaint that the jury's failure to find that he should be appointed sole managing conservator is against the great weight of the evidence.

To raise a legal-sufficiency complaint on appeal, it must be preserved in a motion for directed verdict, an objection to the submission of the jury question in the charge, a motion for JNOV or to disregard the jury finding, or a motion for new trial.Because Nathan did not do any of these items, he has not preserved for appellate review a complaint that the evidence is legally insufficient to support the jury finding that Carrie should be appointed sole managing conservator or a complaint that he established as a matter of law he should have been appointed sole managing conservator.⁵

Property Division. A separate bench trial was held on property division.At trialCarrie presented the trial court with her proposed property division, and the trial court adopted it as the division of property between the parties.⁶Because Carrie was appointed sole managing conservator, Nathan requested a disproportionate share (90%) of the marital estate.Carrie's division and valuations resulted in $371,571.00 in assets to Nathan and $379,726.79 in assets to Carrie, but those figures do not include Nathan's retirement pension, which was divided equally between the parties.Nathan testified that he believed that Carrie's testimony about the assets was "accurate," but he makes several complaints on appeal about the trial court's property division.

Nathan filed an initial request for findings of fact and conclusions of law, but because he did not file a notice of past due findings of fact and conclusions of law, he has waived any complaint that the trial court did not file findings and conclusions.Sonnier v. Sonnier, 331 S.W.3d 211, 214(Tex. App.—Beaumont 2011, no pet.).He has further waived any complaints about the trial court's failure to make valuation findings.SeeTEX. FAM. CODE ANN. § 6.711(West 2006)(applying rules of civil procedure to request for findings on valuation).In a bench trial where no findings of fact or conclusions of law are requested or filed, the judgment of the trial court implies all necessary findings of fact in support of it.SeePharo v. Chambers County, 922 S.W.2d 945, 948(Tex.1996);Sonnier, 331 S.W.3d at 214.

We review a trial court's division of property under an abuse of discretion standard.Murff v. Murff, 615 S.W.2d 696, 698(Tex.1981).A trial court has wide latitude in the exercise of its discretion in dividing the marital property in a divorce proceeding, and that division will not beoverturned on appeal unless the trial court has abused its discretion.Id.;seeZieba v. Martin, 928 S.W.2d 782, 786(Tex. App.—Houston[14th Dist.]1996, no writ);Dankowski v. Dankowski, 922 S.W.2d 298, 304(Tex. App.—Fort Worth 1996, no writ).The mere fact that a trial judge may decide a matter within his discretionary authority differently than an appellate judge is not an abuse of discretion.Jones v. Jones, 804 S.W.2d 623, 624(Tex. App.—Texarkana 1991, no writ)(citingDowner v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42(Tex.1985)).To constitute an abuse of discretion, the trial court's division of the property must be manifestly unfair.Mann v. Mann, 607 S.W.2d 243, 245(Tex.1980);seeVandiver v. Vandiver, 4 S.W.3d 300, 303-04(Tex. App.—Corpus Christi1999, pet. denied).

Section 7.001 of the family code provides that the trial court shall, in its divorce decree, order a division of the marital estate in a manner that it deems just and right.TEX. FAM. CODE ANN. § 7.001(Vernon 2006).The trial court is not required to divide the marital estate equally; however, its division must be equitable.Zieba, 928 S.W.2d at 790."The trial court's discretion is not unlimited, and there must be some reasonable basis for an unequal division of the property."O'Carolan v. Hopper, 71 S.W.3d 529, 532(Tex. App.—Austin 2002, no pet.).In deciding whether a reasonable basis exists for an unequal division of the marital estate, the trial court may consider "such factors as the spouses' capacities and abilities, benefits which the party not at fault would have derived from continuation of the marriage, business opportunities, education, relative physical conditions, relative financial condition and obligations, disparity of ages, size of separate estates, and the nature of the property."Murff, 615 S.W.2d at 699.

Moreover, because the trial court is in a better position to determine the candor, demeanor, and credibility of the witnesses, we will not substitute our judgment for that of the trial court.SeeGarner v. Garner, 200 S.W.3d 303, 308(Tex. App.—Dallas 2006, no pet.), overruled on other grounds byIliff v. Iliff, 339 S.W.3d 74(Tex.2011);see alsoIn re A.L.E., 279 S.W.3d 424, 427(Tex. App.—Houston[14th Dist.]2009, no pet.)(noting that trial court is best able to observe and assess witnesses' demeanor and credibility and to sense "forces, powers, and influences" that may not be apparent merely from reading the record on appeal).Instead, we defer to the trial court's resolution of underlying facts and to the credibility determinations that may have affected its decision.In re A.L.E., 279 S.W.3d at 427.Thus, an abuse of discretion will generally not occur when a trial court bases its discretion on conflicting evidence.In re De La Pena, 999 S.W.2d 521, 526(Tex. App.—El Paso 1999, no pet.).

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