In re Marriage of Rice
| Decision Date | 09 January 2003 |
| Docket Number | No. 06-02-00028-CV.,06-02-00028-CV. |
| Citation | 96 S.W.3d 642 |
| Parties | In the Matter of the MARRIAGE OF Freda RICE and H.E. Rice and In the Interest of Evereda Janene Rice, a Child. |
| Court | Texas Court of Appeals |
Michael P. Kopech, Law Offices of Michael P. Kopech, Daingerfield, for appellant.
Robert Rolston, Rolston Law Office, Mount Pleasant, for appellee.
Before Morriss, C.J., Ross and Grant*, JJ.
H.E. Rice (husband) appeals the trial court's division of the marital estate between H.E. and Freda Rice. H.E. does not dispute the award of joint custody of their minor daughter, nor does he contest the grant of $400.00 per month in child support. H.E. instead challenges the lower court's admission of expert testimony regarding property valuation, the judgment attributing fault to him, and the legal and factual sufficiency of the evidence supporting the division of the marital estate.
Freda and H.E. were married on December 5, 1975. They last resided in Morris County, Texas, where H.E. owned a furniture store and Freda was a stay-athome mother to their third child, Evreda. The couple's other two children no longer lived in the household. The couple separated when Freda filed for divorce.
H.E. requested a partial reporter's record to prosecute this appeal. The request for this partial record is set forth as follows:
H.E. Rice has filed a Notice of Appeal in the above-referenced matter. Accordingly, I request that you prepare an original reporter's record of the trial which started on or about: August 3, 2001, limiting it to the testimony of Freda Rice and Michael Davis, the expert who testified regarding the value of marital property. In addition, please include all objections made by me during the testimony of either of these individuals, with discussion; and the Court's ruling thereon, together with the Court's ruling after the close of testimony.
Thank you in advance for your services.
At oral argument, H.E. conceded the fact that the four corners of his request did not set forth the specific points of error he intended to raise on appeal. In her brief and at oral argument, Freda contends H. E.'s failure to list his points of appeal in the request for a partial reporter's record entitles her to the presumption that the absent portions support the judgment.
"If the appellant requests a partial reporter's record, the appellant must include in the request a statement of all points or issues to be presented on appeal and will then be limited to those issues." TEX.R.APP. P. 34.6(c)(1). Absent compliance with the rule, "we must presume that the omitted portions of the record are relevant to this appeal and that the missing evidence supports the trial court's judgment." Hilton v. Hillman Distrib. Co., 12 S.W.3d 846, 848 (Tex.App.-Texarkana 2000, no pet.) (citing CMM Grain Co. v. Ozgunduz, 991 S.W.2d 437, 439-40 (Tex. App.-Fort Worth 1999, no pet.)); see also In re R.C., 45 S.W.3d 146, 148 (Tex.App.-Fort Worth 2000, no pet.) (appellant's failure to designate issues for partial reporter's record requires appellate court to presume omitted portions support judgment rendered below).
H.E. asks this Court to look to his motion for new trial to determine compliance with the requirements of Rule 34.6(c)(1). He cites Greenwood v. State, 802 S.W.2d 10 (Tex.App.-Houston [14th Dist.] 1990), aff'd, 823 S.W.2d 660 (Tex.Crim.App.1992), and McDaniel v. Yarbrough, 866 S.W.2d 665 (Tex.App.-Houston [1st Dist.] 1993), rev'd on other grounds, 898 S.W.2d 251 (Tex.1995), in support of his theory that the reviewing court may look beyond the four corners of the record request to determine compliance.
In Greenwood, the Houston Fourteenth Court of Appeals upheld a criminal defendant's decision to appeal based on a partial record. Greenwood listed his specific point of error in his request for a partial record and complied with all the other requirements of former Rule 53(d).1 Greenwood, 802 S.W.2d at 11. Greenwood then asked the reporter to transcribe only portions of the record from the hearing on the motion for new trial. Read carefully, Greenwood does not stand for the proposition that one may look to a motion for new trial to determine compliance with Rule 34.6(c)(1). Instead, Greenwood acknowledges that a criminal defendant may prosecute an appeal based on a limited record if the defendant first complies with all the other requirements of the Texas Rules of Appellate Procedure.
In McDaniel, the First Court of Appeals found McDaniel had substantially complied with former Rule 53(d) by stating in open court, during the hearing on the motion for new trial, his specific points of error to be raised on appeal, and opposing counsel stipulated to those points. McDaniel, 866 S.W.2d at 668.
In the case at bar, there is no evidence before this Court that H. E.'s counsel listed his specific points of appeal in open court during any hearing before the trial court. Freda's counsel informed this Court he did not know what points of error would be raised until H.E. filed his brief with this Court. And there is no evidence before this Court that Freda's counsel stipulated, during the hearing on the motion for new trial, to the points of error now raised on appeal. McDaniel is thus factually distinguishable.
In the case at bar, H. E.'s request for a partial reporter's record fails to list the issues he will present on appeal. Freda correctly notes that H.E. has not complied with the requirements of Rule 34.6(c).
Therefore, we must presume those portions of the record not requested support the trial court's judgment. Brown v. McGuyer Homebuilders, Inc., 58 S.W.3d 172 (Tex.App.-Houston [14th Dist.] 2001, pet. denied); R.C., 45 S.W.3d at 148; Hilton, 12 S.W.3d at 848.
We next consider whether the lower court erred by permitting Michael Davis to testify as an expert witness on the valuation of the couple's real property. A two-part test governs the admissibility of expert testimony: (1) the expert must be qualified, and (2) the testimony must be relevant and based on a reliable foundation. TEX.R. EIVD. 702; Keo v. Vu, 76 S.W.3d 725, 730 (). The trial court has broad discretion regarding admissibility of expert testimony and should be reversed only if it abused its discretion. Keo, 76 S.W.3d at 730.
In this case, Davis testified he is a licensed realtor and has been engaged in that profession for eighteen years. He has participated in many sales and purchases of real estate, both for others and for himself. He has appraised real property for American National Bank since 1991 and serves on the Titus County Appraisal Board. He has also evaluated property in other divorce cases and had those valuations relied on by the litigants. Davis testified that during his career he has completed several continuing education courses on determining fair market value. Finally, the trial court took judicial notice of the fact that it routinely appoints Davis on condemnation cases in Titus County. Given these facts, we cannot say the trial court abused its discretion by qualifying Davis as an expert witness based on his education, training, experience, and expertise.
According to the Appraisal Institute, an 18,000 member organization of professional real estate appraisers, there are three methods professional appraisers use to determine property value: the sales comparison approach, the cost approach, and the income capitalization approach. The Institute recommends that, where appropriate, all three methods be used.
The sales comparison approach is used to compare sales of similar properties, taking into account differences among properties that may affect value. The sales comparison approach is typically the most applicable method of valuing single-family houses, townhouses and condominiums.
. . . .
The cost approach is based on the current cost of replacing or reproducing a property. After estimating the cost of building the structures on a property, and deducting an amount for depreciation, the appraiser adds the estimated value of the land and arrives at an indication of value. This method is particularly useful for estimating insurable value.
. . . .
The income capitalization approach is based on a propertyns potential rent. This method is obviously most useful for valuing income-producing properties, but it can be applied whenever rental figures from similar properties indicate what potential rental income would be if [the] property was leased.
Appraisal Institute, Estimating Home Value 5-6 (2002).
Davis testified regarding his valuation of several pieces of real property in the Rices' marital estate. He believed the couple's duplexes were worth a combined total of $55,000.00, the furniture store was worth $275,000.00, the apartments were worth $180,000.00, the home was worth 832,500.00, and the quadraplex was worth $29,000.00. He based his opinions on attached land values, condition of the buildings, income potential, as well as current market prices for similar properties in the surrounding areas. Davis based his appraisal of other pieces of property using similar criteria. From this evidence, it appears Davis used the sales comparison approach to evaluating property value. We cannot say the trial court abused its discretion in finding Davis' testimony to be based on a reliable foundation. Furthermore, where the trial court must divide property in an equitable fashion, value will indubitably be relevant. Thus, the trial court did not abuse its discretion in qualifying Davis as an expert trial witness. H. E.'s point of error is overruled.
In four separate points of error, H.E. challenges the legal and factual...
To continue reading
Request your trial
-
Enbridge Pipeline (east Tex.) L.P. v. Timber
...subjected to peer review, generally accepted by appraisers, and utilized in appraisals outside of the courtroom. In re Marriage of Rice, 96 S.W.3d 642, 647 (Tex.App.-Texarkana 2003, no pet.). These methods are discussed in detail below. If an appraiser utilizes improper methodology or misap......
-
In re Marriage of Stallworth
...discretion on grounds of insufficiency if some probative evidence supports the trial court's findings." Id. at 869-70; see In re Marriage of Rice, 96 S.W.3d 642, 649 App.-Texarkana 2003, no pet.) ("If more than a scintilla of evidence exists to support the lower court's finding, the legal s......
-
Newberry v. Newberry
...cruelty under the trial court's standard of proof must, of necessity, be left to the sound discretion of the trier of fact. In re Marriage of Rice, 96 S.W.3d 642, 648 (Tex.App.-Texarkana 2003, no pet.). We shall not disturb the trial court's finding of cruelty absent abuse of discretion. Id......
-
First Bank v. DTSG, Ltd.
...(Tex.App.–Tyler 2008, no pet.) (rejecting argument that valuation expert's testimony was irrelevant and unreliable); In re Marriage of Rice, 96 S.W.3d 642, 647–48 (Tex.App.–Texarkana 2003, no pet.) (rejecting argument that valuation expert's testimony was unreliable). We overrule First Bank......