Jardon v. Pfister

Decision Date17 December 2019
Docket NumberNo. 08-17-00183-CV,08-17-00183-CV
Citation593 S.W.3d 810
Parties Claudia Susana MARTINEZ JARDON, Appellant, v. Gerd PFISTER, Appellee.
CourtTexas Court of Appeals

C. Jeff Minor, El Paso, John P. Mobbs, for Appellee.

Mario A. Gonzalez, Horizon City, El Paso County, James D. Lucas, El Paso, for Appellant.

Before Alley, C.J., Rodriguez, and Palafox, JJ.

OPINION

GINA M. PALAFOX, Justice

This is an appeal from a final decree of divorce between Appellant Claudia Susana Martinez Jardon ("Mother") and Appellee Gerd Pfister ("Father"). Mother raises twenty issues, challenging the trial court's determinations concerning the best interest of the couple's minor child, A.E.P., the division of community property, and the award of attorney's fees. Mother also challenges certain procedural aspects of the case in the court below. We affirm in part and reverse and remand in part.

BACKGROUND

Mother and Father were married in 2004 and had one child, A.E.P. In June 2013, Mother filed this suit for divorce in the 65th District Court of El Paso County. In her original petition, she requested that she be named sole managing conservator of the child, that Father be ordered to pay child support, that the court order Father to execute a bond because of the possibility that he would violate court orders relating to possession, and that the court take further measures to protect the child because of a risk of international abduction by Father. Mother also requested that Father be enjoined from removing A.E.P. from El Paso County, Texas.

Father filed a counterpetition, requesting that the parties be named joint managing conservators, that he be named the person with the exclusive right to designate the child's primary residence (restricted to El Paso County, Texas), and that Mother be ordered to pay child support. Father later amended his counterpetition to add claims for breach of fiduciary duty, fraud, waste of assets, fraudulent transfer, and civil conspiracy. Mother nonsuited her petition before the final hearing.

In early 2014, the parties entered into a mediated settlement agreement under which they agreed to share possession of the child. That agreement was reduced to temporary orders in February 2015. Father testified at trial that, despite the parties' agreement, Mother abducted the child to Mexico and has since refused to divulge his whereabouts or to permit Father to have any access to or contact with him. Mother has also refused to comply with court orders to reveal the child's whereabouts and to return him to the Texas court. Instead, she initiated legal proceedings in Mexico to obtain custody of the child.

Father also testified concerning the value of the couple's community property, including properties located in Mexico, and introduced exhibit P-2 as a summary of those values. He asked that the Mexico properties be awarded to Mother, but that he be granted judgment for half of the value of the community property, secured by liens on the properties awarded to Mother.

The only other testimony presented at trial was the unsworn testimony of Father's attorney relating to the issue of attorney's fees. Mother appeared at trial only through her attorney and did not offer any evidence.

At the close of trial, the court issued its ruling naming Father sole managing conservator of A.E.P., restricting the child's residence to El Paso County, Texas, requiring Mother to execute a $400,000 bond to offset the cost of obtaining the child's return following international abduction by her, requiring Mother to execute a $200,000 bond conditioned on compliance with the court's possession orders, and ordering Mother to pay child support of $1,710, beginning on May 1, 2017. As to the division of property, the court accepted the values stated in exhibit P-2, and awarded the Mexico properties to Mother. The court awarded Father a judgment in the amount of one-half of the value stated in exhibit P-2, secured by a lien on the Mexico properties. Finally, the court awarded Father attorney's fees in the amount of $206,492.09. Each of these rulings was incorporated into the court's Final Decree.

Mother filed a request for findings of fact and conclusions of law and a notice of past due findings of fact and conclusions of law. The trial court signed findings of fact and conclusions of law outside the time specified by the Texas Rules of Civil Procedure, but before Mother perfected her appeal.

ISSUES

Mother raises twenty issues on appeal, which can be roughly grouped into the following four categories:

A. Procedural Issues : This category includes: (a) the effect of the parties' mediated settlement agreement; (b) the effect of late-filed findings of fact and conclusions of law; (c) the effect of findings stated in the Final Decree; (d) judgment not conforming to the pleadings; and (e) the imposition of death penalty sanctions.

B. Child-Related Issues : This category includes: (a) the trial court's appointment of Father as sole managing conservator; (b) ordering Mother to pay child support; and (c) ordering Mother to execute two compliance bonds.

C. Property Division : This category includes issues pertaining to the division of community property, including (a) the admission of Father's testimony and exhibit P-2 concerning property values; (b) the sufficiency of the evidence to value the community property; (c) adjudication of title to property in Mexico; and (d) ordering Mother to execute documents necessary for Father to obtain liens on the property in Mexico.

D. Attorney's Fees : This category groups issues concerning the trial court's award of attorney's fees, including (a) the effect of unsworn testimony by Father's attorney; (b) awarding expenses incurred in hiring Mexico attorneys; and (c) the sufficiency of the attorney's fee evidence.

We will discuss each category in turn.

STANDARD OF REVIEW

Most appealable issues in a family law case, including property division, conservatorship, and child support, are reviewed under the abuse of discretion standard. Richardson v. Richardson , 424 S.W.3d 691, 695 (Tex. App.—El Paso 2014, no pet.) ; see Gillespie v. Gillespie , 644 S.W.2d 449, 451 (Tex. 1982) (determination of best interest of child "will be reversed only when it appears from the record as a whole that the court has abused its discretion"); In re J.M.M. , 549 S.W.3d 293, 298–99 (Tex. App.—El Paso 2018, no pet.) (order granting child support is reviewed for abuse of discretion). Moreover, a trial court's decision to admit evidence is reviewed under the abuse of discretion standard. Interstate Northborough P'ship v. State , 66 S.W.3d 213, 220 (Tex. 2001) ; Villanova v. Fed. Deposit Ins. Corp. , 511 S.W.3d 88, 94 (Tex. App.—El Paso 2014, no pet.). This standard of review also applies to an award of attorney's fees. Texas Mut. Ins. Co. v. Sara Care Child Care Ctr., Inc. , 324 S.W.3d 305, 319 (Tex. App.—El Paso 2010, pet. denied). Finally, imposition of discovery sanctions is likewise reviewed for abuse of discretion. McCollum v. The Bank of New York Mellon Tr. Co. , 481 S.W.3d 352, 357 (Tex. App.—El Paso 2015, no pet.). "A trial court abuses its discretion when it acts arbitrarily or unreasonably, or without reference to any guiding rules and principles." Villanova , 511 S.W.3d at 94 (citing Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 241–42 (Tex. 1985) ).

In each of these contexts, determining whether the trial court abused its discretion involves a two-pronged inquiry: (1) did the trial court have sufficient information upon which to exercise its discretion? and (2) did the trial court err in its application of discretion? In re M.V. , 583 S.W.3d 354, 361 (Tex. App.—El Paso 2019, no pet.) ; In re T.M.P. , 417 S.W.3d 557, 562 (Tex. App.—El Paso 2013, no pet.) ; Sara Care , 324 S.W.3d at 319. Sufficiency challenges are considered as factors relevant to whether the trial court abused its discretion rather than independent grounds of error. In re M.V. , 583 S.W.3d at 361 ; In re T.M.P. , 417 S.W.3d at 563. Whether there is legally sufficient evidence is determined by viewing the evidence in the light favorable to the trial court's decision, crediting favorable evidence if a reasonable fact finder could, and disregarding contrary evidence unless a reasonable fact finder could not. See City of Keller v. Wilson , 168 S.W.3d 802, 807 (Tex. 2005). If there is evidence of a substantive and probative character supporting a trial court's decision, we cannot conclude that the court abused its discretion in reaching that decision. In re M.V. , 583 S.W.3d at 361.

DISCUSSION
A. Procedural Issues
1. Briefing Deficiencies and Error Preservation

As a preliminary matter, Father contends that all but one of Mother's issues are waived because her arguments on those issues do not include appropriate citations to the record. See TEX. R. APP. P. 38.1(i). The supreme court has recognized that "[f]ailure to provide citations or argument and analysis as to an appellate issue may waive it." Ross v. St. Luke's Episcopal Hosp. , 462 S.W.3d 496, 500 (Tex. 2015). But that court has also instructed the courts of appeals "to construe the Rules of Appellate Procedure reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule." Republic Underwriters Ins. Co. v. Mex-Tex, Inc. , 150 S.W.3d 423, 427 n.15 (Tex. 2004) (quoting Verburgt v. Dorner , 959 S.W.2d 615, 616–17 (Tex. 1997) ).

Mother responds that Rule 38.1 requires citations to the record only in support of the statement of facts portion of her brief. Mother is mistaken. The rule clearly states: "Argument. The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. " TEX. R. APP. P. 38.1(i) (emphasis added). Mother's brief does not comply with this requirement.1

Despite the deficiencies in Mother's brief, we heed the instruction of the supreme court and conclude that it is...

To continue reading

Request your trial
39 cases
  • Cantu v. Comm'n for Lawyer Discipline
    • United States
    • Texas Court of Appeals
    • December 3, 2020
    ...with Cantu's objections at trial, and thus these issues are not preserved for our review. See TEX. R. APP. P. 33.1(a); Jardon v. Pfister, 593 S.W.3d 810, 831 (Tex. App.—El Paso 2019, no pet. h.); Stephens v. Three Finger Black Shale P'ship, 580 S.W.3d 687, 728 (Tex. App.—Eastland 2019, pet.......
  • Bishop v. Comm'n for Lawyer Discipline
    • United States
    • Texas Court of Appeals
    • August 25, 2020
    ...Casaretto or Fuchs as conclusory or "incorrect."21 See TEX. R. APP. P. 33.1(a); Bushell, 803 S.W.2d at 711-12; see also Martinez Jardon v. Pfister, 593 S.W.3d 810, 831-32 (Tex. App.—El Paso 2019, no pet.). Thus, we hold that Bishop has not preserved for appellate review his complaint that t......
  • Press Energy Servs., LLC v. Ruiz
    • United States
    • Texas Court of Appeals
    • July 16, 2021
    ..., 677 S.W.2d 497, 501 (Tex. 1984). Preservation of error in the admission of evidence also requires a timely objection. Martinez Jardon v. Pfister , 593 S.W.3d 810, 831 (Tex. App.—El Paso 2019, no pet.). The trial court's ruling on a motion in limine is not a ruling that excludes or admits ......
  • M.G. v. T.G.
    • United States
    • Texas Court of Appeals
    • February 23, 2023
    ... ... reasonableness of any $175 hourly rate for an associate ... attorney. See Mirtinez Jirdon v. Pfister , 593 S.W.3d ... 810, 840 (Tex. App.-El Paso 2019, no pet.). Additionally, ... although the trial court admitted resumes showing T.G.'s ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT