Mincer v. Summers
| Decision Date | 19 May 2022 |
| Docket Number | 02-21-00150-CV |
| Parties | Wendy Mincer, Appellant v. Brian Mark Summers, Appellee |
| Court | Texas Court of Appeals |
Wendy Mincer, Appellant
v.
Brian Mark Summers, Appellee
No. 02-21-00150-CV
Court of Appeals of Texas, Second District, Fort Worth
May 19, 2022
On Appeal from the 442nd District Court Denton County, Texas Trial Court No. 19-10500-442
Before Sudderth, C.J.; Kerr and Bassel, JJ.
MEMORANDUM OPINION
Dabney Bassel Justice
I. Introduction
Appellant Wendy Mincer, appearing pro se, appeals from a final decree of divorce that dissolved her marriage to Appellee Brian Mark Summers. In her initial issue, Wendy challenges the trial court's failure to admonish her of her right to appointed counsel at an enforcement hearing. In her remaining four issues, Wendy argues that the trial court abused its discretion as to various property awards that it made in the final decree and that the final decree thus does not contain a just-and-right division of the community property. Because we hold that the trial court's error in failing to admonish Wendy at the enforcement hearing was not harmful due to Brian's withdrawing his request for contempt and because we hold that sufficient evidence supports the challenged property awards and that the trial court did not abuse its discretion by making the challenged awards, we affirm the final decree of divorce.
II. Factual and Procedural Background
Wendy filed for divorce on November 5, 2019, and attached the "Denton County Standing Order Regarding Children, Property[, ] and Conduct of the Parties." The standing order included provisions related to how the parties could handle property during the suit:
3. PRESERVATION OF PROPERTY AND USE OF FUNDS DURING DIVORCE CASE. If this is a divorce case, both parties to the marriage are ORDERED to refrain from the following conduct
3.1 Destroying, removing, concealing, encumbering transferring, or otherwise harming or reducing the value of the property of one or both of the parties, regardless of whether it is intellectual, personal, or real property and regardless of whether it is claimed as separate or community property.
3.2Misrepresenting or refusing to disclose to the other party or to the [c]ourt, on proper request, the existence, amount, or location of any property, including electronically stored or recorded information, of one or both the parties, regardless of whether it is intellectual, personal, or real property and regardless of whether it is claimed as separate or community property.
3.3 Damaging, destroying[, ] or tampering with the tangible or intellectual property of one or both of the parties, including any document or electronically stored or recorded information that represents or embodies anything of value, regardless of whether it is intellectual, personal, or real property and regardless of whether it is claimed as separate or community property.
3.4Selling, transferring, assigning, mortgaging, encumbering, or in any other manner alienating any of the property of either party, regardless of whether it is intellectual, personal, or real property and regardless of whether it is claimed as separate or community property, except as specifically authorized by this order or a subsequent order of this [c]ourt.
3.5 Incurring any indebtedness, including cash advances from a credit card or line of credit, other than legal expense in connection with this suit, except as specifically authorized by this order or a subsequent order of this [c]ourt.
3.6 Making withdrawals from any account in any financial institution for any purpose, except as specifically authorized by this order or a subsequent order of this [c]ourt.
3.7 Spending any sum of cash in either party's possession or subject to either party's control for any purpose, except as specifically authorized by this order or a subsequent order of this [c]ourt.
. . . .
6. SPECIFIC AUTHORIZATIONS IN DIVORCE CASE. If this is a divorce case, both parties to the marriage are specifically authorized to do the following:
6.1To engage in acts reasonabl[e] and necessary to the conduct of that party's usual business and occupation.
6.2To make expenditures and incur indebtedness for reasonable attorney's fees and expenses in connection with this suit.
6.3To make expenditures and incur indebtedness for reasonable and necessary living expenses commensurate with such expenditures and indebtedness incurred for the past six months.
6.4 To make withdrawals from accounts in financial institutions only for the purposes authorized by this order.
Shortly after Wendy filed for divorce, the parties agreed to dismiss the case, and Wendy nonsuited the case. On November 22, 2019, Wendy withdrew $56, 631.50 from the parties' joint checking account.
Not many days after she made the withdrawal, Wendy filed a motion to reinstate, and on December 9, 2019, the trial court granted Wendy's motion to reinstate the case. Eleven days after the case was reinstated, Wendy withdrew $28, 548.43 from the parties' joint checking account.
Brian answered and later filed a counterpetition and first amended counterpetition in which he asserted a waste claim[1] against Wendy and sought to have
the trial court determine that Wendy had committed actual or constructive fraud and reconstitute the community estate in accordance with Family Code Section 7.009.
Brian also filed a "Motion for Enforcement of the Denton County Standing Order and for Contempt and Sanctions." Brian alleged that Wendy had violated Sections 3.1, 3.4, 3.6, and 3.7 of the Denton County Standing Order "by removing, withdrawing, transferring, alienating, and/or spending" $28, 548.43 from the parties' joint checking account. Brian requested that Wendy be held in contempt, jailed for up to 180 days, and fined up to $500; that she be ordered to deposit $28, 548.43 into the parties' joint account; and that she be ordered to pay Brian's attorney's fees. Wendy filed a response admitting that she had made the withdrawal[2] and arguing that the withdrawal was "for reasonable and necessary living expenses, business expenses and/or legal fees, as authorized by the Denton County, Texas[, ] Standing Order."
The trial court held a Zoom hearing on Brian's motion for enforcement at which Wendy represented herself pro se. During the hearing, Brian's attorney called
Brian to testify and then called Wendy. After Wendy was sworn in, the trial court had the following discourse with Brian's attorney and Wendy:
THE COURT: Okay. And the question I have for you, [Brian's attorney], is I believe in your pleadings you were requesting that she be placed in jail.
Are you still requesting that today, or are you waiving that and just wanting the requested relief as presented?
[BRIAN'S ATTORNEY]: We are . . . seeking contempt, Your Honor.
THE COURT: Okay. So you're seeking jail time today?
[BRIAN'S ATTORNEY]: Correct.
THE COURT: All right. Ma'am, you understand . . . that they are requesting that you be placed in jail?
[WENDY]: Um, do I . . . understand that?
THE COURT: Yeah. Do you understand in their pleadings that they filed in January of last year, of this year, that they are requesting, because they said that you violated the [c]ourt's [s]tanding [o]rder, that they are asking that I place you in jail today because you violated --they're alleging that you violated the [c]ourt's [o]rder? Do you understand that?
[WENDY]: Yes.
THE COURT: You understand that you should have an attorney represent you . . . because you're being held to the same standard as . . . any other attorney that would walk in this courtroom.
And I apologize, [Brian's attorney]. I didn't realize -- I thought when I read your requested relief, that you weren't asking [for] jail time.
[BRIAN'S ATTORNEY]: And . . . that's my oversight. As it pertains to the contempt request, it's not specifically in the summary. But we are seeking contempt and we do --
THE COURT: Okay. Because I would have given her these admonishments at the beginning of the trial.
[BRIAN'S ATTORNEY]: And that's my oversight[;] . . . I apologize to the [c]ourt.
THE COURT: All right. Ma'am, . . . we've had a continuance for you to hire an attorney on one occasion, at least one occasion, and you have yet to find somebody to represent you; is that correct?
[WENDY]: Yes.
THE COURT: Okay.
[WENDY]: I do not . . . have the funds, Your Honor. And I've had two attorneys accept and then, um, withdraw since former counsel. . . .
. . . .
THE COURT: The problem is if you're communicating to me that you don't have the funds, then I need for you to go through and fill out an affidavit of indigency and tell me if you're indigent.
And then I have to have an indigency hearing to determine if you're indigent, because if they're requesting you be placed in jail, you have a right to have an attorney appointed to you, okay?
The trial court then stated that it would pause the proceedings and email Wendy an indigency form to complete, and Brian's attorney asked permission to conference with his client. After the conference, Brian withdrew his request for contempt. The trial court stated, "[Wendy], they are not asking that you be placed in jail, so there's no contempt issue as far as that." The trial court further explained,
In a regular divorce case, you're not entitled to a court-appointed attorney. But if somebody is seeking to take away your liberty and place you in jail, then we make a determination to determine if you're indigent.
They have waived any request for you to be placed in jail, so you are not entitled to a court-appointed attorney, okay?
Wendy then asked, "Can I . . . ask that they not waive it?" The trial court told Wendy that "really this isn't your choice. . . . It is their choice . . . ."
The trial court then allowed Brian's attorney to...
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