Sheen v. Sheen
| Decision Date | 21 June 2019 |
| Docket Number | NO. 03-18-00358-CV,03-18-00358-CV |
| Parties | Lynn Sheen, Appellant v. Nicholas Sheen, Appellee |
| Court | Texas Court of Appeals |
FROM THE 419TH DISTRICT COURT OF TRAVIS COUNTY
THE HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING
Lynn Sheen appeals from a divorce decree dissolving her marriage to Nicholas Sheen and distributing their community property.1 Lynn argues in six issues that the district court abused its discretion by denying her motion for a continuance, excluding the testimony of her expert, denying her claim for spousal maintenance, dividing the parties' community property without supporting evidence, and awarding Nicholas contingent appellate attorney's fees. We will affirm the divorce decree.
BACKGROUND
Lynn and Nicholas married in 1998 in New Zealand but lived in the United States during the marriage. Lynn stopped working in 2010 due to health problems. The parties sued each other for divorce in 2016, and Nicholas informed Lynn he intended to return toNew Zealand and cease supporting her. At Lynn's request, the district court signed temporary orders directing Nicholas to pay temporary spousal support and Lynn's medical bills and to continue making mortgage payments on the marital residence.
The district court convened a bench trial in December 2017. Lynn's counsel made an oral motion for a continuance to allow for more time to prepare. The district court denied the motion and proceeded to the merits. The parties each sought a disproportionate share of the community estate based on mutual claims of waste of community assets and of physical abuse. Lynn further alleged that Nicholas had failed to make all the payments required by the temporary orders. The district court heard testimony from the parties and from a certified appraiser who testified for Nicholas that the martial residence was worth $575,000. Lynn disagreed and in her own testimony estimated its value at $430,000. The district court admitted property inventories, bank records, police reports, and medical records offered by both parties.
In addition to dividing the community estate in her favor, Lynn asked the district court to order Nicholas to pay spousal maintenance. See Tex. Fam. Code § 8.051 (). Lynn argued she was eligible for maintenance because she is disabled and unable to work. See id. § 8.051(2)(A) (). Lynn called Dr. Iris Wingrove, a neurologist who had been treating her, to testify on the nature and extent of her disability. Nicholas objected that Lynn had failed to disclose Dr. Wingrove's opinions in discovery. See Tex. R. Civ. P. 194.2(f)(3) (). The district court sustained Nicholas' objection. Dr. Wingrove testified during an offerof proof that she has diagnosed Lynn with paraneoplastic syndrome, an autoimmune disorder that causes epileptic seizures and fatigue, among other symptoms. In Dr. Wingrove's opinion, Lynn is completely disabled and unlikely ever to work again.
The district court signed a decree awarding the residence to Lynn and directing her to reimburse Nicholas $97,500 for his share of the residence and dividing the remaining community assets. The decree provides the parties will bear their own trial-level attorney's fees but awards each party $25,000 in contingent appellate attorney's fees. The decree does not specifically address Lynn's request for spousal maintenance but denies all relief not expressly granted. The district court denied Lynn's motion for new trial, and this appeal followed.
DISCUSSION
Lynn argues in six issues that the district court abused its discretion by denying her motion for a continuance, excluding Dr. Wingrove's testimony, denying Lynn's spousal maintenance claim, denying her waste claim, and awarding Nicholas a disproportionate share of the community estate and conditional appellate fees.
Standard of Review
We review each of Lynn's issues for an abuse of discretion. See In re Marriage of Harrison, 557 S.W.3d 99, 112, 121 (Tex. App.—Houston [14th Dist.] 2018, pet. denied) (); Fuentes v. Zaragoza, 555 S.W.3d 141, 171 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (spousal maintenance). A trial court ruling constitutes an abuse of discretion if it is arbitrary and unreasonable, made without regard for guiding legal principles or supporting evidence. Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). The insufficiency of the evidence is not an independentground for reversal under this standard but is relevant to determining whether the trial court abused its discretion. Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex. App.—Austin 2006, pet. denied). This analysis entails a two-part inquiry where we determine first "whether the trial court had sufficient information upon which to exercise its discretion" and, if so, "whether the trial court erred in its application of that discretion." Cline v. Cline, 557 S.W.3d 810, 813 (Tex. App.—Houston [1st Dist.] 2018, no pet.). We apply traditional sufficiency standards of review to answer the first question. Id.
Continuance
Lynn argues in her sixth issue that the district court abused its discretion by denying her motion for a continuance but cites no legal authorities to support her argument.2 A 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). Failure to cite to any legal authority or to provide substantive analysis in support of an issue results in waiver. RSL Funding, LLC v. Newsome, 569 S.W.3d 116, 126 (Tex. 2018). We conclude Lynn has waived this issue by failing to cite any legal authorities. See Eagle Oil & Gas Co. v. Shale Expl., LLC, 549 S.W.3d 256, 286 (Tex. App.—Houston [1st Dist.] 2018, pet. dism'd) ().
Even if Lynn had properly briefed this issue, she would be unable to show an abuse of discretion. Trial courts may not grant continuances "except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law." Tex. R. Civ. P. 251. When a motion does not comply with these rules, reviewing courts generally presume the trialcourt did not abuse its discretion in denying the motion. See Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); In re S.M.H., 523 S.W.3d 783, 797 (Tex. App.—Houston [14th Dist.] 2017, no pet.). Lynn made an oral motion for continuance, unsupported by affidavit, and the record reflects no agreement to continue the case or argument that a continuance should be granted by operation of law. Absent one of these grounds, we presume the district court did not abuse its discretion. See In re S.M.H., 523 S.W.3d at 797 (). We overrule Lynn's sixth issue.
Dr. Wingrove's Testimony
Lynn next challenges the exclusion of Dr. Wingrove's testimony because of Lynn's failure to disclose Dr. Wingrove's opinions in discovery. A party must disclose on request "the general substance" of a testifying expert's "mental impression and opinions and a brief summary of the basis for them." Tex. R. Civ. P. 194.2(f)(3). Failure to fully disclose an expert's opinions triggers exclusion of their testimony unless the proponent can show lack of unfair surprise or unfair prejudice. See id. R. 193.6(a); In re First Transit Inc., 499 S.W.3d 584, 595 & n.2 (). Lynn argues that Dr. Wingrove's opinions would not have unfairly surprised Nicholas because Dr. Wingrove gave essentially the same testimony at the temporary orders hearing. But while the temporary orders reflect that Nicholas was present at that hearing, the record does not contain a transcript of the hearing or other evidence of the testimony there. Lynn, as the appellant, bore the ultimate burden to present a record demonstrating reversible error. See Garcia v. Sasson, 516 S.W.3d 585, 590 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (citing Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (per curiam)). Without such evidence, we areunable to determine whether Dr. Wingrove's testimony would unfairly surprise Nicholas. We conclude Lynn failed to carry her burden to establish lack of unfair surprise, and we overrule her fourth issue.
Sufficiency Challenges
Lynn next challenges the sufficiency of the district court's findings supporting its denial of her request for spousal maintenance, its division of the parties' community property, and its award of contingent appellate fees to Nicholas. When no findings of fact and conclusions of law were requested or filed, as here, we infer all necessary findings to support the judgment. Shields Ltd. P'ship v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017). These findings are subject to challenge for legal and factual sufficiency in the same manner as a trial court's express findings. Id.
Evidence is legally insufficient to support a finding if the record bears no evidence of a vital fact, the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, the evidence for a vital fact is no more than a mere scintilla, or the evidence conclusively establishes the opposite of a vital fact. Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018). In a legal sufficiency review, we credit evidence favorable to the finding if a reasonable factfinder could and disregard all contrary evidence unless a reasonable factfinder could...
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