Martin v. Martin

• Decision Date: 25 September 1990
• Docket Number: No. 6-90-00013-CV,6-90-00013-CV
• Citation: 797 S.W.2d 347
• Parties: Billy Wayne MARTIN, Appellant, v. Vernia Marie MARTIN, Appellee.
• Court: Texas Court of Appeals

Page 347

797 S.W.2d 347

Billy Wayne MARTIN, Appellant, v. Vernia Marie MARTIN, Appellee.

No. 6-90-00013-CV.

Court of Appeals of Texas Texarkana.

Sept. 25, 1990.

Raymond D. Anderson, Keeney, Anderson, Miller, James & Tate, Texarkana, for appellant.

Lynn Cooksey, Cooksey & Harrell, Texarkana, for appellee.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

GRANT, Justice.

Billy Wayne Martin appeals from a divorce action brought by Vernia Marie Martin. He complains about the division of the community property, the amount of child support, and the court costs assessed against him.

Billy Martin contends that the trial court abused its discretion in failing to make a substantially equal division of the community property and that the trial court erred in establishing the child support at $300 per month after the master in chancery had recommended $250 per month and in assessing $1250 court costs against him.

Billy Martin and Vernia Martin were married on November 20, 1976. On September 16, 1988, Vernia filed a petition for divorce against Billy, and on September 21, 1988, Billy cross-filed for a divorce. The Martins are parents of three minor children. On July 20, 1989, the court appointed Cary Rochelle as master in chancery for the Martin case. After the hearing before the master, the master prepared and filed with the court his report dated October 31, 1989.

Billy filed objections to the report of the master, contending that the findings of fact made by the master were erroneous as to the value placed on numerous specified assets involved in the division of property, in its omission of the lien indebtedness upon various community properties, in its recommended division of the community properties, and in its recommended amount of child support.

On December 11, 1989, a hearing was held before the court on the objections to the master's report. The judge refused to hear new evidence, stating that the purpose of the hearing was "to hear objections to the court's master; ... not to take new evidence." The court went on to say that it was not going to allow testimony because "the reason why the court appoints the master to start with is so that this court does not have to sit back and divide these pots and pans."

At the conclusion of the hearing, the court stated that it was overruling the objections and adopting the master's report which was on file with the court. After adopting the report, the court granted the divorce, but set the child support at $300 per month instead of the $250 per month amount set by the master. The court announced that it was assessing the cost of the master at $500 to be paid by both parties for the master's time in conducting the hearings and preparing the report and the amended report. The court went on to state that it was assessing the court cost of $200 against Billy Martin for filing objections to the master's report and thus creating the need for the master to respond, and the court assessed another $750 against Billy Martin for the hearing being conducted on the objections to the master's report. In the decree, Vernia Martin is ordered to pay the master in chancery a fee of $500 and Billy Martin to pay the master in chancery a fee of $1,250 as court costs.

The appointment of a master in chancery in a divorce case is generally not done unless the case is exceptional and good cause exists. Bell v. Bell, 540 S.W.2d 432 (Tex.Civ.App.-Houston [1st Dist.] 1976, no writ); Creglar v. Hyde, 280 S.W.2d 783 (Tex.Civ.App.-Waco 1955, writ ref'd n.r.e.). There was no objection in the trial court or on appeal to the appointment of a master. A master may be appointed pursuant to Rule 171 of the Texas Rules of Civil Procedure (Masters in Chancery) and also pursuant to subchapter 54 of the Texas Government Code (Family Law Masters). Because the order in the case specifies the appointment of a master in chancery and because the empowering language of that order tracks the language of Rule 171, we assume that this appointment was made pursuant to Rule 171. However, even if the appointment had been made pursuant to the Government Code, we do not find any differences between the applicable law that would have altered the outcome of this case.

Rule 171 provides that "the court may confirm, modify, correct, reject, reverse or recommit the report, after it is filed, as the court may deem proper and necessary in the particular circumstances of the case." This provision does not authorize the court to make modifications or corrections without having some basis in evidence upon which to make these modifications and corrections. When issues are referred to and heard by a master, the master's report is conclusive on the issues considered by the master in the absence of a proper objection. Cameron v. Cameron, 601 S.W.2d 814 (Tex.Civ.App.-Dallas 1980, no writ). When excepted to, the master's report is without force. 3 R. McDonald, TEXAS CIVIL PRACTICE IN DISTRICT AND COUNTY COURTS § 10.17.3 (rev.1983). The issues of fact that are raised by the objections are tried de novo before the court if no jury has been requested. ¹ San Jacinto Oil Co. v. Culberson, 100 Tex. 462, 101 S.W. 197 (1907). This means that evidence must be heard anew on issues to which there are objections.

A party dissatisfied with the master's report has the burden to make specific objections before the report is adopted by the court. McCrory & Co. v. Avery Mays Construction Co., 690 S.W.2d 333 (Tex.App.-Dallas 1985, writ ref'd n.r.e.); Novotny v. Novotny, 665 S.W.2d 171 (Tex.App.-Houston [1st Dist.] 1983, writ dism'd). Billy Martin made written objections to the master's report as required by the court's order in appointing the master. When objections are made to the master's report, each party has the right to present evidence on the issues specified in the objections and have the court or jury decide those issues on the basis of the evidence presented in court. As previously noted, the evidence must be heard anew on issues concerning objections to the master's finding. Cameron v. Cameron, 601 S.W.2d 814.

Billy Martin made no objections to the court's refusal to hear evidence de novo nor did he seek to make a bill of exceptions to show what evidence he would have offered had he been allowed to present evidence.

In spite of the court's ruling that there would be no evidence presented, the master and Vernia Martin testified and one income tax return was admitted into evidence. Because there was no objection to the refusal of the trial court to admit other evidence and because that procedure is not challenged on appeal, we must determine the other points of error based upon the evidence that was presented to the court. The master's report was not offered into evidence, and it would not have been admissible into evidence if it had been introduced. San Jacinto Oil Co. v. Culberson, 101 S.W. 197. Billy Martin devotes most of his brief to challenging the master's report; however, this Court is not reviewing the master's findings to determine if they are supported by evidence. We are reviewing the trial court's findings.

The record shows that the judge based his decision in dividing the property on the report of the master even though the report was not in evidence. ² The master testified to the values and debts concerning some of the property belonging to the estate, and even though this testimony was hearsay, pursuant to Tex.R.Civ.Evid. 802, unobjected to hearsay has probative value. However, only a portion of the figures in the master's report were referred to in evidence. A division of property based on values that were not in evidence is an abuse of discretion. Mata v. Mata, 710 S.W.2d 756 (Tex.App.-Corpus Christi 1986, no writ). However, Billy Martin has not challenged the court's reliance upon matters not in evidence, but rather has submitted various figures from the master's report to show that there was an unequal division of the properties.

The trial court's division of the property should be corrected on appeal only when the trial court clearly abused its discretion by a division that is manifestly unjust and unfair. McKnight v. McKnight, 543 S.W.2d 863 (Tex.1976); Cockerham v. Cockerham, 527 S.W.2d 162 (Tex.1975); Law v. Law, 517 S.W.2d 379 (Tex.Civ.App.-Austin 1974, writ dism'd). A presumption arises on appeal that the trial court correctly exercised its discretion in dividing property in a divorce proceeding, and the burden rests on the appellant to show from the record that the division was so disproportionate as to be manifestly unfair. Law v. Law, 517 S.W.2d 379.

In his brief, Billy...