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Wiedenfeld v. Markgraf

Court of Appeals of Texas, Fourth District, San Antonio

February 22, 2017

Susan Lori WIEDENFELD, Appellant
v.
Charles Alan MARKGRAF, Appellee

         From the 150th Judicial District Court, Bexar County, Texas Trial Court No. 2015-CI-12374 Honorable Cathleen M. Stryker, Judge Presiding.

         AFFIRMED.

          Sitting: Rebeca C. Martinez, Justice, Patricia O. Alvarez, Justice, Luz Elena D. Chapa, Justice.

          MEMORANDUM OPINION

          Luz Elena D. Chapa, Justice.

         Charles Alan Markgraf was ordered to pay Susan Lori Wiedenfeld spousal maintenance in their divorce decree. Wiedenfeld appeals the trial court's order denying her petition to continue receiving spousal maintenance. In three issues, Wiedenfeld contends: (1) the trial court did not have jurisdiction to find she was not disabled because she was receiving social security disability payments; (2) the trial court did not have the discretion to disregard her testimony regarding her disability; and (3) the trial court erred in requiring one of her attorneys to leave the courtroom after Texas Rule of Evidence 614 was invoked. Markgraf asserts a cross-point, contending the trial court erred in denying his motion to dismiss Wiedenfeld's petition because it was untimely filed. We affirm the trial court's order.

         Background

         Wiedenfeld and Markgraf were divorced in 2012. The divorce decree states the divorce was judicially pronounced and rendered on January 18, 2012, but signed on September 10, 2012. In the divorce decree, the trial court found Wiedenfeld was eligible for spousal maintenance and ordered Markgraf to pay her $400.00 per month until the earliest of one of the following events occurred:

1. a review of the Order in three (3) years to see if [the] Spousal Maintenance Obligation should be continued; or
2. the death of either Petitioner or Respondent; or
3. the remarriage of [Wiedenfeld]; or
4. further orders of the court affecting the spousal maintenance obligation.

         On July 30, 2015, Wiedenfeld filed a petition requesting the continuation of her spousal maintenance. Markgraf answered and filed a motion to dismiss, asserting Wiedenfeld's petition was untimely filed because she was required to seek a review by January 18, 2015, which was three years after the date the divorce decree was rendered on January 18, 2012. After a hearing, the trial court signed an order denying Wiedenfeld's petition and also denying Markgraf's motion to dismiss.

         Markgraf's Cross-Point

         In his brief, Markgraf raises a cross-point asserting the trial court erred in denying his motion to dismiss. "A party who seeks to alter the trial court's judgment or other appealable order must file a notice of appeal." Tex.R.App.P. 25.1(c). In this case, the trial court's order denied Markgraf's motion; therefore, Markgraf's cross-point seeks to alter the trial court's order. Because Markgraf did not file a notice of appeal, however, he waived this complaint. See Tex. R. App. P. 25.1(c); Lubbock Cty. v. Trammel's Lubbock Bail Bonds, 80 S.W.3d 580, 584 (Tex. 2002); Soefje v. Jones, 270 S.W.3d 617, 631 (Tex. App.-San Antonio 2008, no pet.).

         Exclusion of Davidson under Rule 614

         In her third issue, Wiedenfeld asserts the trial court erred in excluding Bill Davidson from the courtroom as a potential witness absent a showing that he was disqualified to represent her as one of her attorneys. With regard to Davidson's exclusion from the courtroom, the record reflects the following:

THE COURT: You're free to share anything you'd like with them, but is it correct that your client is cohabitating with another person?
MR. RICKERSON [Wiedenfeld's attorney]: No, Your Honor. No, Your Honor. That is absolutely not true. And, in fact, she's here to testify to it. I even have Mr. Davidson here to testify to it. They are not cohabitating, they are not. They don't know each other. They don't have - I'm sorry, not these two, but I don't think he - some of the things that he said calls for personal knowledge, and I don't think he ...

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