Watson v. Watson

• Decision Date: 30 April 2009
• Docket Number: No. 2-08-365-CV.,2-08-365-CV.
• Parties: Donald Ray WATSON, Appellant, v. Deborah R. WATSON, Appellee.
• Court: Texas Court of Appeals

286 S.W.3d 519

Donald Ray WATSON, Appellant, v. Deborah R. WATSON, Appellee.

No. 2-08-365-CV.

Court of Appeals of Texas, Fort Worth.

April 30, 2009.

Loe Warren PC and Mike Windsor, Fort Worth, for Appellant.

Law Office of Harris & Harris and Tina Campbell Harris, Fort Worth, for Appellee.

PANEL: CAYCE, C.J.; GARDNER and McCOY, JJ.

OPINION

ANNE GARDNER, Justice.

In this restricted appeal,¹ Donald Ray Watson appeals from a post-answer default final decree divorcing him from Deborah R. Watson. In seven issues, Donald argues that the evidence is legally and factually insufficient to support those parts of the decree dividing the property and awarding spousal maintenance to Deborah, and he contends that the decree recites an incorrect postjudgment interest rate. We affirm in part, reverse and render in part, and reverse and remand in part.

Background

Donald and Deborah married in 1992. Donald filed for divorce in December 2007; Deborah filed a separate petition, and the two cases were consolidated. On January 31, 2008, an associate judge signed a report noting that Donald had failed to appear for a hearing and making several interim awards in Deborah's favor, including awards of $1,800 per month spousal maintenance and $5,000 in interim attorney's fees. The presiding judge approved the report on the same day.

The trial court held a final trial on the merits on March 25, 2008. The trial court noted on the record that Donald had again failed to appear despite having received notice of trial. Deborah offered brief testimony; it comprises fewer than six pages of the reporter's record. Concerning the parties' property and her own attorney's fees, Deborah testified as follows:

Q. And you're asking for specific divisions of property; is that correct?

A. Yes.

Q. And those are included in the decree that has been handed to the judge; is that correct?

A. Yes.

Q. Basically you're asking for everything that's in your possession and he keep everything that's in his possession?

A. Yes.

Q. And there are some bank accounts which you have no knowledge of; is that correct?

A. Yes.

Q. Are you asking the Court to order him to keep those bank accounts and any ensuing fees that regard that bank account—those bank accounts?

A. Yes.

Q. There are also some doctor's bills that he has incurred that you have no knowledge of; is that correct?

A. Yes.

Q. And you're asking the Court to make him responsible for payment of all of those debts regarding any doctor's fees, any overcharges of the bank and anything dealing with those debts; is that correct?

A. Yes.

Q. There're also some other properties that you don't know anything about, and you don't want to be responsible for that, correct?

A. Yes.

Q. Are you asking the Court to approve the decree that's been shown to the judge and to order all of the division of property and division of debt as requested—

A. Yes.

Q. —and as—and as delineated in the decree?

A. Yes.

....

Q. There are also some orders regarding attorney's fees and court costs, and you're asking the court to approve and order those; is that correct?

A. Yes.

The only exhibit Deborah offered was a letter notifying Donald of the trial and a certified mail receipt showing he received the letter.

Immediately after Deborah's last answer recited above, the trial court stated the following ruling on the record:

All right. Based upon a review of the file and based upon Respondent's Exhibit 1 that is admitted in this cause, which is the notice letter to Mr. Watson, the Court approves the final decree presented to me this morning finding that the decree results [in]: One, a dissolution of the parties' marriage and a just and right division of the estate.

Again, the divorce is granted, and it's rendered effective today.

The trial court then signed a final decree of divorce—presumably the one submitted by Deborah—that confirmed certain property as Deborah's separate property; divided the marital estate and debts; awarded Deborah a $15,000 judgment against Donald; ordered Donald to pay Deborah $1,800 per month in spousal maintenance until April 1, 2011, or Deborah's death or remarriage and awarded Deborah a judgment for $3,600 for unpaid interim maintenance; awarded Deborah's attorney a judgment against Donald for $5,000 through trial and awarded Deborah a judgment for additional attorney's fees on appeal if Donald pursued an unsuccessful appeal; and recited that all sums awarded by the decree would accrue postjudgment interest at the rate of ten percent per annum compounded annually. The decree's marital property division disproportionately favored Deborah, awarding her all of the property in her name and possession and half of some property in Donald's name and possession, including various retirement accounts.

Donald filed untimely motions for new trial and to extend appellate deadlines; the trial court denied both motions. Donald then filed notice of this restricted appeal.

Restricted Appeal

To prevail in a restricted appeal, an appellant must show that (1) a notice of appeal was filed within six months of the date the complained-of judgment or order was signed; (2) appellant was a party to the suit who did not participate in the hearing that resulted in the judgment or order; (3) appellant did not timely file a post-judgment motion, request findings of fact and conclusions of law, or file a notice of appeal within the time permitted under rule 26.1(a); and (4) the complained-of error is apparent from the face of the record. Tex. R. App. P. 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex.2004); see Tex. R. App. P. 26.1(c). Only the fourth element—error apparent on the face of the record—is at issue here. The face of the record, for the purpose of a restricted appeal, consists of all papers on file in the appeal, including the reporter's record. Norman Comms. v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex.1997) (holding review on restricted appeal may include legal and factual sufficiency of evidence issues).

Legal and Factual Sufficiency

In his first through fourth and sixth issues, Donald argues that the evidence is legally and factually insufficient to support the trial court's division of community property and debt, the judgments against Donald, the award of Deborah's attorney's fees, the confirmation of Deborah's separate property, and the award to Deborah of postdecree spousal maintenance. In his fifth issue, he argues that Deborah failed to overcome the presumption against the award of postdecree spousal maintenance.

1. Standard of Review

A trial judge is charged with dividing the community estate in a "just and right" manner, considering the rights of both parties. Tex. Fam.Code Ann. § 7.001 (Vernon 2006); Moroch v. Collins, 174 S.W.3d 849, 855 (Tex.App.-Dallas 2005, pet. denied). The court has broad discretion in making its just and right division, and absent a clear abuse of discretion, we will not disturb that division. Murff v. Murff, 615 S.W.2d 696, 698-99 (Tex.1981); Boyd v. Boyd, 131 S.W.3d 605, 610 (Tex. App.-Fort Worth 2004, no pet.).

In family law cases, the traditional sufficiency standard of review overlaps with the abuse of discretion standard of review; therefore, legal and factual insufficiency are not independent grounds of error but are relevant factors in our assessment of whether the trial court abused its discretion. Boyd, 131 S.W.3d at 611. Accordingly, to determine whether there has been an abuse of discretion because the evidence is legally or factually insufficient to support the trial court's decision, we engage in a two-pronged inquiry: (1) did the trial court have sufficient evidence upon which to exercise its discretion, and (2) did the trial court err in its application of that discretion? Id.; see also Moroch, 174 S.W.3d at 857. The applicable sufficiency review comes into play with regard to the first question. Boyd, 131 S.W.3d at 611.

Evidence is legally insufficient only when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered, (c) the evidence offered to prove a vital fact is no more than a scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998), cert. denied, 526 U.S. 1040, 119 S.Ct. 1336, 143 L.Ed.2d 500 (1999); see City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.2005). In determining the legal sufficiency of evidence, we must consider evidence favorable to the finding if a reasonable factfinder could and disregard evidence contrary to the finding unless a reasonable factfinder could not. City of Keller, 168 S.W.3d at 827. We must review all the evidence in the light most favorable to the finding. Id.; Diamond Shamrock Ref. Co., L.P. v. Hall, 168 S.W.3d 164, 170 (Tex.2005).

When there is no evidence or insufficient evidence to support the property division or an award of attorney's fees, we must reverse and remand for a new trial. Sandone v. Miller-Sandone, 116 S.W.3d 204, 208 (Tex.App.-El Paso 2003, no pet.). When there is no evidence or insufficient evidence to support a spousal maintenance claim, a trial court abuses its discretion by granting spousal maintenance. Dunn v. Dunn, 177 S.W.3d 393, 397 (Tex.App.-Houston [1st Dist.] 2005, pet. denied).

The standard of review of a sufficiency issue is heightened when the burden of proof at trial is clear and convincing evidence. In re J.F.C., 96 S.W.3d 256, 266-67 (Tex.2002); In re C.H., 89 S.W.3d 17, 26 (Tex.2002). A party who seeks to assert the separate character of property must prove that character by clear and convincing evidence. Tex. Fam. Code Ann. § 3.003(b) (Vernon 2006). Clear and convincing evidence is that measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be...