Schneider v. Schneider, No. 2-02-075-CV (Tex. App. 2/12/2004)
| Decision Date | 12 February 2004 |
| Docket Number | No. 2-02-075-CV,2-02-075-CV |
| Parties | SCOTT SCHNEIDER, Appellant v. SUSAN SCHNEIDER, ARCH C. MCCOLL, III AND MCCOLL AND MCCOLLOCH, P.L.L.C., Appellees. |
| Court | Texas Court of Appeals |
Appeal from the 393rd District Court of Denton County.
Panel F: LIVINGSTON, DAUPHINOT, and McCOY, JJ.
Scott Schneider appeals from the trial court's decree granting a divorce, its designation of community and separate property, and its just and right division of the couple's property. He presents sixteen points and ten supplemental points for our review. In his first sixteen points appellant argues: (1) the trial court erred in finding that he abandoned his marriage; (2) no evidence supports a finding of abandonment; (3) the evidence is legally and factually insufficient to support the trial court's finding of fault as a basis for granting the divorce; (4) the trial court erred in awarding all three dogs to appellee as her separate property; (5) the trial court erred in awarding the dog Lucky, a twenty-seven-inch Mitsubishi television, and a Kiwi laptop computer with accessories to appellee as her separate property; (6) the trial court erred in awarding all property listed in appellee's inventory to appellee as her separate property; (7) the trial court erred in decreeing that any property was separate; (8) the trial court erred in awarding appellee all household goods and furnishings and all cash and savings in appellee's possession; (9) the trial court erred in awarding appellant only $1,175.00 of appellee's 401K pension/retirement fund worth $ 17,802.51; (10) the trial court erred in awarding appellee half of the shares in the Salomon Smith Barney funds as they existed on September 18, 2001; (11) the trial court erred in overruling appellant's objection to appellee's violation of a court injunction and by not investigating the violation; (12) the trial court erred in awarding appellant liability for community debt to lawyer Arch McColl, III and his law firm; (13) the trial court erred in awarding appellant liability for community debt to lawyer Joseph Beeler; (14) the trial court erred in awarding McColl and his law firm the amount of $24,651.69, plus attorneys' fees, court costs, and postjudgment interest of 10% to be paid by appellant; (15) the trial court abused its discretion with regard to points one through fourteen; and (16) the trial court committed reversible error by denying appellant's motion for a new trial.
With regard to points six through fourteen, appellant argues that the reporter's record of the property division portion of the trial was missing; thus, he was denied the opportunity to adequately present these points on appeal. In point sixteen, he argues that the trial court committed reversible error by denying his motion for new trial because the court lost the portion of the reporter's record covering the property division. After appellant filed his first brief, the record was found and filed with this court. Therefore, the portions of appellant's argument that complain of the missing record are moot and will not be discussed. See Tex. R. App. P. 47.1. Points six through fourteen and sixteen are overruled.
After the record was filed, appellant submitted a supplemental brief. In his ten supplemental points appellant argues: (17) the trial court erred in decreeing that any property was appellee's separate property, specifically: the dog Lucky, the Mitsubishi television, and the Kiwi laptop computer with accessories; (18) the trial court erred in awarding appellant's separate property to appellee; (19) the trial court erred in its division of the community property; (20) the trial court erred in its ruling concerning the division of appellee's 401K pension plan; (21) the trial court erred in its ruling regarding the Salomon Smith Barney funds; (22) the trial court erred in not conducting an inquiry into the appellee's violation of the trial court's injunction; (23) the trial court erred in awarding judgment against appellant and in favor of the intervenor, Arch McColl; (24) the trial court erred in awarding appellant all liability for attorneys' fees incurred by the community; (25) appellee committed perjury during the divorce proceedings by misrepresenting facts in her pleadings and testimony; and (26) appellee committed contempt of court by violating the injunction. We affirm the portion of the trial court's judgment granting the divorce and reverse and remand the remainder of the case for a new property division.
Appellant and appellee were married for about six years, but only lived together as husband and wife for thirty months. There are no children of the marriage and no real estate. The estate consists mainly of various personal property items, three dogs, a 401K, and two Salomon Smith Barney funds.
Appellant and appellee lived together prior to marriage. Appellee testified that prior to the marriage she cashed in bonds, given to her by her grandmother, to purchase the bedroom set, living room set, room divider, video camera, and the dog Lucky. Appellant testified that community funds were used to purchase the items. The parties moved to Texas, were married on September 23, 1995, and lived off the money from appellee's bonds and proceeds from the sale of appellant's business until they got jobs.
Appellant was arrested and convicted of felony assault in 1998. He was sentenced to thirty years' confinement, and he began serving his sentence on or about April 2, 1998. Appellant incurred debt of approximately $285,000 in attorneys' fees while defending himself against criminal charges. Appellee testified that she paid $200,000 of his attorneys' fees out of a loan given to her by her father. Appellee filed for divorce on May 18, 2000. In her original and amended petitions, appellee alleged insupportability, cruel treatment, and conviction of a felony as grounds for divorce. The trial court granted the divorce, finding fault on the part of appellant and that appellant abandoned the marriage.
In appellant's first two points he argues that the trial court erred in finding that he abandoned his marriage. In point one, he claims appellee failed to assert abandonment as a ground for divorce in either her original or amended petitions. However, appellant failed to object to the issue of abandonment being tried before the court by consent. Evidence of abandonment was raised at the trial court three different times, and appellant failed to object every time. Appellant may not raise the pleading deficiency for the first time on appeal when he failed to preserve error at the trial court level. See Tex. R. App. P. 33.1.
Moreover, the rules of civil procedure dictate that when an issue not raised in the pleadings is tried by implied consent, it shall be treated in all respects as though it had been raised in the pleadings. Tex. R. Civ. P. 67; see Dickerson v. DeBarbieris, 964 S.W.2d 680, 689 (Tex. App.-Houston [14th Dist.] 1998, no pet.). Therefore, when appellee testified that she was asserting abandonment as one of the grounds for the divorce and appellant did not object, the issue was tried by consent. See Dickerson, 964 S.W.2d at 689. Additionally, some evidence exists to support the finding in that appellant voluntarily engaged in criminal activity, causing him to be incarcerated. Thus, appellant's first point is overruled.
In his second point, appellant asserts that no evidence supports a finding of abandonment as grounds for the judgment granting the divorce. An appellant must attack all independent bases or grounds that fully support a complained-of ruling or judgment. See, e.g., Harris v. Gen. Motors Corp., 924 S.W.2d 187, 188 (Tex. App.-San Antonio 1996, writ denied). If an appellant does not, then we must affirm the trial court's judgment. See, e.g., id. This rule is based on the premise that an appellate court normally cannot alter an erroneous judgment in favor of an appellant in a civil case who does not challenge that error on appeal. See Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993). If an independent ground fully supports the complained-of ruling or judgment, but the appellant assigns no error to that independent ground, then we must accept the validity of that unchallenged independent ground. See id. Moreover, any error in the ground challenged on appeal is harmless because the unchallenged independent ground fully supports the complained-of ruling or judgment. Britton v. Tex. Dep't of Criminal Justice, 95 S.W.3d 676, 681 (Tex. App.-Houston [1st Dist.] 2002, no pet.). "When a separate and independent ground that supports a judgment is not challenged on appeal, the appellate court must affirm." San Antonio Press, Inc. v. Custom Bilt Mach., 852 S.W.2d 64, 65 (Tex. App.-San Antonio 1993, no writ).
In addition to abandonment as a ground for divorce, appellee also alleged insupportability, cruel treatment, and conviction of a felony. Appellant assigned no error to any of these independent grounds. Fault could have been based upon a finding of either cruelty or conviction of a felony. See Tex. Fam. Code Ann. §§ 6.002, 6.004 (Vernon 1998). Therefore, appellant's second point is overruled.
In his third point, appellant asserts that the evidence is legally and factually insufficient to support the trial court's finding of fault. In determining a "no-evidence" point, we are to consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001); Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). Anything more than a scintilla of evidence is legally sufficient to support the finding. Cazarez, 937 S.W.2d at 450;Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996). More than a scintilla...
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