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Gross v. Dannatt

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

June 22, 2017

ROBERT GROSS, Appellant,
v.
JEANINE DANNATT, Appellee.

         On appeal from the 391st District Court of Tom Green County, Texas.

          Before Chief Justice Valdez and Justices Longoria and Hinojosa Memorandum Opinion by Chief Justice Valdez

          MEMORANDUM OPINION

          ROGELIO VALDEZ Chief Justic

         Acting pro se, appellant Robert Gross appeals from a final divorce decree. By two issues, appellant contends that the trial court improperly awarded his separate property to his ex-wife, appellee Jeanine Dannatt, and that his trial counsel rendered ineffective assistance. We affirm.[1]

          I. Property Division

         By his first issue, appellant contends that the trial court erred by divesting him of his separate property. Appellant complains that the trial court improperly awarded some of his separate real property and separate bank accounts to appellee. Appellee responds that appellant consented to the trial court's judgment, and therefore, he may not appeal.

         A. Standard of Review and Applicable Law

         We review property division incident to divorce under an abuse of discretion standard. Garcia v. Garcia, 170 S.W.3d 644, 648 (Tex. App.-El Paso 2005, no pet.). A trial court abuses its discretion if it acts without reference to any guiding rules and principles. Id. at 649; See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241- 42 (Tex. 1985). Under the abuse of discretion standard applied in family law cases, legal and factual sufficiency of the evidence are not independent grounds of error, but are relevant factors for determining whether the trial court abused its discretion. Boyd v. Boyd, 131 S.W.3d 605, 611 (Tex. App.-Fort Worth 2004, no pet.).

         B. Discussion

         Here, when the trial court stated that it would follow the parties' proposed decree, appellant stated that he agreed with "everything in the decree" except those matters that he had contested.[2] At trial, appellant contested the appraised value of some of the real property, disagreed on the nature of a loan to his brother-in-law, and claimed an interest in appellee's bank account.[3] Appellant does not complain of the trial court's rulings on these matters. And, appellant did not contest, and explicitly agreed, to the division of the property as stated in the divorce decree.[4] Therefore, because appellant agreed to the divorce decree regarding the complained-of property, he has waived error, if any.[5] See Baw v. Baw, 949 S.W.2d 764, 766 (Tex. App.-Dallas 1997, no pet.) ("A party's consent to the trial court's entry of judgment waives any error, except for jurisdictional error, contained in the judgment, and that party has nothing to properly present for appellate review."); see also DeClaris Assocs. v. McCoy Workplace Sols., L.P., 331 S.W.3d 556, 560 (Tex. App.-Houston [14th Dist.] 2011, no pet.) (providing that consent to judgment may be indicated in the record or in the judgment). We overrule appellant's first issue.

         II. Ineffective Assistance of Counsel

         By his second issue, appellant complains that his trial counsel rendered ineffective assistance. However, the doctrine of ineffective assistance of counsel does not extend to civil cases. McCoy v. Tex. Instruments, Inc., 183 S.W.3d 548, 553 (Tex. App.-Dallas 2006, no pet.). Accordingly, we overrule appellant's second issue.

         III. Damages for Frivolous Appeal

         Contending that this appeal is frivolous, appellee requests that we impose sanctions on appellant. See Tex. R. App. P. 45 (allowing a court of appeals to impose sanctions in frivolous appeals). Pursuant to rule 45, if we determine that this appeal is frivolous, we may award just damages to the prevailing party. Id.; see Durham v. Zarcades, 270 S.W.3d 708, 720 (Tex. App.-Fort Worth 2008, no pet.). "Whether to award damages is within this [C]ourt's discretion, " and "[s]anctions should be imposed only in egregious circumstances." Durham, 270 ...


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