Warriner v. Warriner

• Decision Date: 05 September 2012
• Docket Number: No. 08–11–00210–CV.,08–11–00210–CV.
• Citation: 394 S.W.3d 240
• Parties: Fredrick Merida WARRINER, Appellant, v. Dana Dian WARRINER, Appellee.
• Court: Texas Court of Appeals

394 S.W.3d 240

Fredrick Merida WARRINER, Appellant,

v.Dana Dian WARRINER, Appellee.

No. 08–11–00210–CV.

Court of Appeals of Texas,

El Paso.

Sept. 5, 2012.

Michael D. Rubin, Dallas, TX, for Appellant.

Janice A. Schattman, Forth Worth, TX, for Appellee.

Before McCLURE, C.J., RIVERA, and ANTCLIFF, JJ.

OPINION

CHRISTOPHER ANTCLIFF, Justice.

Fredrick Merida Warriner (“Appellant”) appeals the decision of the trial court regarding the distribution of property relating to the divorce proceeding between Appellant and Dana Dian Warriner (“Appellee”).¹ Appellant brings seven issues asserting: (1) objections to the trial court's Findings of Fact and Conclusions of Law; (2) the trial court abused its discretion by denying Appellant's Motion to Compel and allowing unsworn supplemental interrogatories and untimely filed disclosures into evidence; (3) the trial court erred in overruling Appellant's objection regarding Appellant's responses to two requests for production; (4) the trial court abused its discretion by allowing Appellee to file an Amended Sworn Inventory outside of the discovery period; (5) the trial court abused its discretion by not determining that certain property was the separate property of Appellant; (6) the trial court erred by allowing tax rolls into evidence in determining the property division of the parties; and (7) the trial court improperly considered a written closing argument made by Appellee's counsel following the close of the trial. For the reasons set out below, we affirm.

BACKGROUND

The parties were married on April 8, 1995. Appellee filed a Petition for Divorce on August 26, 2009, and requested a disproportionate division of community property. Appellant filed a counter-petition.

Appellee filed a Certificate of Written Discovery on August 12, 2010. A Motion to Compel was filed by Appellee on August 30, seeking production of documents by Appellant and concerning Appellant's failure to provide discovery. A hearing was held on the Motion to Compel on September 14, 2010 before an associate judge, who granted Appellee's motion. Appellant and Appellee both requested a de novo hearing on the Motion to Compel, which the trial court heard prior to the start of the bench trial, along with other motions, including a motion to compel discovery and for sanctions filed by Appellant.

A bench trial was conducted on October 14, 2010. The only witnesses who testified at the trial were Appellee and her counsel. Appellant did not testify but called Appellee to testify. Under the theory of admission by a party opponent, Appellee presentedAppellant's handwritten property inventory for the limited purpose of establishing that Appellant's inventory was consistent with Appellee's inventory, rather than for the truth of the declarations contained in Appellant's inventory. The trial court took judicial notice of Appellant's handwritten inventory.² Appellant did not object to the introduction of the inventory for this limited purpose, nor did he ask the court to take judicial notice of the inventory. He did not offer it for any purpose or as a summary of his testimony. In Appellee's sworn First Amended Inventory & Appraisement, she asserted that all other property owned by the parties at the time of the divorce was community property and adopted that inventory as a summary of her testimony at trial.

Appellee further testified that Appellant's mother passed away in 2008 and that Appellant received a substantial estate from her, consisting primarily of 587.210 acres of real property in Jack County which had producing mineral interests. Appellee stipulated that Appellant owned two vehicles and a boat prior to the marriage and had inherited approximately $28,000.00 in jewelry, cemetery plots, and vehicles during the course of the marriage. Appellee testified that she was not aware of any other property Appellant may have inherited. She also testified that Appellant did not share information about their finances, that she had no idea “what he did with the money that we had” and that she did not know where their Frost Bank accounts came from. Appellee testified that she only discovered she was a joint owner of a Frost Bank account when Appellant instructed her to withdraw money from that account for Appellant's bail. Despite persistent questioning at trial, Appellee refused to agree or confirm that Appellant had inherited various funds under his control and testified that she had reason to doubt Appellant's claim of separate property.

Evidence was introduced showing that Appellant did business under the assumed name “Ellis Properties,” operating this business both under the assumed name and as the general partner, with Appellant owning 99% and his daughter owning 1%. Appellee testified that Appellant “inherited the name,” as opposed to inheriting a pre-existing business entity. Appellant received $183,044.00 in income from Ellis Properties from the sale of stock, shown on a 2009 I.R.S. Form K–1. The same 2009 tax returns indicate Appellant's occupation as “investments.”

Evidence of ownership and the value of financial assets held by the parties was presented and consisted of a 2010 statement for each such asset and each party's inventories, to the extent that Appellant's inventory was consistent with Appellee's. Evidence from trial also shows that Appellant's mother remained a joint account holder on three financial accounts: (1) Frost Bank checking account ending in # xxx8024, jointly held by Appellant and Appellee; (2) Frost Bank money market account ending in # xxx5750, held jointly by Appellant and Appellee; and (3) Chase Bank savings account ending in # xxx4134, held in the name of Ellis Properties, Appellant, and Appellant's mother.³ Three additional accounts were held in the name of Ellis Properties: accounts ending in # xxx8105 (Bank of America); # xxx1543 (Chase checking); and # xxx1307 (UBS brokerage). Two accounts were held in the name of Appellant d/b/a Ellis Properties: Frost Bank checking account # xxx7734 and money market account # xxx7742. All other financial accounts characterized by the trial court as community property are held in the name of either Appellant or Appellee, including a John Hancock annuity. No evidence was presented tracing the funds in any of these accounts to a separate source.

On November 9, 2010, the trial court rendered judgment granting the divorce and determining the property division between the parties.⁴ The Final Decree of Divorce was entered on March 17, 2011. Appellant filed a Motion for New Trial on April 15, 2011; a Request for Findings of Fact and Conclusions of Law, on March 25, 2011; and a Notice of Past Due Findings of Fact and Conclusions of Law on April 26, 2011. Appellant timely filed his appeal.

On August 31, 2011, this Court ordered the trial court to prepare and file Findings of Fact and Conclusions of Law. Appellee filed Proposed Findings of Fact and Conclusions of Law. The record does not indicate whether Appellant filed his own Proposed Findings of Fact and Conclusions of Law, or whether Appellant objected to Appellee's proposed findings. The trial court adopted Appellee's proposed findings in the Findings of Fact and Conclusions of Law issued by the trial court on September 30, 2011.

DISCUSSION

Objections to Findings of Fact and Conclusions of Law

Appellant's first issue relates to the Findings of Fact and Conclusions of Law issued by the trial court.⁵ Appellant's second issue is that the trial court abused its discretion by denying Appellant's motion to compel and allowing into evidence Appellee's unsworn supplemental interrogatories. This issue is directly related to Appellant's objection to Finding of Fact # 19 and Conclusion of Law # 4. Appellant's objection to Conclusion of Law # 6 directly relates to his third issue. Appellant's fifth issue is that the trial court abused its discretion in not determining that clear and convincing evidence was presented to support Appellant's assertion of community property and involves the same property listed in Appellant's objection to Finding of Fact # 11. We address these issues together, as the arguments are overlapping and interrelated.

Appellant makes a two-prong argument. First, that the trial court “still has not provided Appellant with the court's Findings of Facts [sic] and Conclusions of Law,” and such failure resulted in harm to Appellant. [Emphasis in orig.]. Second, that certain Findings of Fact and Conclusions of Law are not supported by the record.

Appellant does direct this Court to any authority to support his first argument. That argument appears to be that the trial court was required to produce its own separate, independent, findings of fact and conclusions of law and should not have adopted those submitted by Appellee. There is no question that the trial court, upon request, was required to issue findings of fact and conclusions of law. Tex.R.Civ.P. 296. See Murray v. Murray, 276 S.W.3d 138, 143 (Tex.App.-Fort Worth 2008, pet. dism'd). However, the trial court has the discretion to prepare and file findings in support of its judgment as it sees fit. See Donalson v. Horton, 256 S.W.2d 693, 696–97 (Tex.Civ.App.-Amarillo 1952, writ ref'd. n.r.e.). Certainly, the Texas Rules of Civil Procedure do not prohibit the trial court from adopting a party's proposed findings. Tex.R.Civ.P. 296. Further, as the Donalson court noted, the trial court is not limited to “such specific findings as may be requested by the losing party.” Donalson, 256 S.W.2d at 697;see also Lifshutz v. Lifshutz, 61 S.W.3d 511, 515–16 (Tex.App.-San Antonio 2001, pet. denied) (overruling Appellant's objection to the trial courts failure to adopt Appellant's proposed findings of fact). We find no support for Appellant's argument.

Appellant next asserts that certain findings and conclusions are not supported by the record, specifically Findings of Fact # 11 and # 19, and Conclusions of Law # 4 and # 6.

Standards of review

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