IN THE MATTER OF THE MARRIAGE OF JAMES ROBERT MUGFORD AND LEANNA MARIA MUGFORD Property [Appellee's] Separate Property Percentage Community Property Percentage Total ======
Appeal from the 306th District Court Galveston County, Texas
Trial Court Cause No. 15-FD-0708
consists of Justices Boyce, Donovan and Jewell.
appeal arises from a divorce and is brought by Leanna Maria
Mugford ("appellant") challenging portions of the
judgment in favor of James Robert Mugford
("appellee"). At issue were custody of a minor
child and the division of marital property. We first address
the arguments on appeal regarding custody before considering
the claims relating to property.
parties are both Canadian citizens. Appellant moved into
appellee's home (referred to as "the Alberta
house"). After their child was born in 2010, they
married in January 2011. In October 2013, appellee accepted
employment in Texas. Along with appellant's two daughters
from a prior marriage, the family moved to Friendswood,
Texas. Their home (referred to as "the Friendswood
house") was purchased in December 2013. The parties
separated in March 2015. Trial was held in December of that
jury considered conservatorship and possession and access to
the minor child. The jury named appellee and appellant as
joint managing conservators. Appellant was given the
exclusive right to designate the primary residence of the
minor child with a geographic restriction.
jury also considered issues pertaining to the
characterization of the marital property. The jury found
grounds existed for divorce on the basis of cruel treatment
by both parties and adultery by appellee. The jury determined
the characterization of eight items of property, six of which
are challenged on appeal by appellant. The jury found a
reimbursement claim was proved in favor of the community
estate against appellee's separate estate. The jury
answered no as to both parties' claims for waste.
remaining issues, including the terms for possession of and
access to the minor child and division of the marital estate,
were decided by the trial court. The trial court entered a
final decree of divorce on March 16, 2016. Appellant timely
pursued this appeal.
first issue claims the trial court erred by entering
judgment containing a provision for a geographic area in
which appellant is permitted to establish the minor
child's primary residence which is at variance with, and
smaller than, the geographic area found by the jury in answer
to question number sixteen.Specifically, appellant contends
the jury allowed appellant a fifty-mile radius from the
city limits of Calgary, Alberta Province, Canada, but
the trial court's judgment only allows a thirty-mile
radius. See Tex. Fam. Code § 105.002(c)(1)(E).
question 16, the jury was asked to "State the geographic
area within which the joint managing conservator must
designate the child's primary residence." The jury
answered, "Calgary, Canada & 50 mi outward radius
-or- Galveston County & contiguous counties." The
final decree of divorce provides appellant "shall have
the exclusive right to designate the child's primary
residence within Galveston County and counties contiguous
thereto, and the city of Calgary, Canada and within 30 miles
of the city limits of Calgary, Canada." Thus appellant
incorrectly states the jury's verdict. The jury did not
allow a fifty-mile radius "from the city limits."
Giving the term radius its common, ordinary meaning, the
jury's geographic restriction would be a straight line,
50 miles long, from the center of Calgary to the
circumference of a circle. See Radius, Merriam-Webster
Online Dictionary, http://www.m-w.com/dictionary/radius,
(last visited May 16, 2018). The trial court's geographic
restriction allows the child's primary residence to be
within 30 miles "from the city limits." The record
before this court does not reflect how far the city limits of
Calgary are from its center and thus does not demonstrate
that the trial court's geographic area is, in fact,
smaller than that encompassed by the jury's verdict.
However, in her prayer for relief appellant specifically
requests modification of the final divorce decreed to
"reflect the jury's verdict on the geographic
105.002(c) of the Texas Family Code provides, in pertinent
part, the court may not contravene a jury verdict on the
(E) the determination of whether to impose a restriction on
the geographic area in which a joint managing conservator may
designate the child's primary residence; and
(F) if a restriction described by Paragraph (E) is imposed,
the determination of the geographic area within which the
joint managing conservator must designate the child's
parties do not cite, and we are unaware of, any authority
permitting the trial court to "clarify" an issue
upon which a party has a right to a jury verdict. Lenz v.
Lenz, 79 S.W.3d 10, 20 (Tex. 2002) (holding the plain
language of section 105.002(c) meant that party was entitled
to a jury verdict and the trial court was not authorized to
contravene that verdict by imposing an additional
geographical restriction). Appellee posits the trial court
was attempting to avoid future quarrels over the geographic
restriction. Be that as it may, the trial court did not enter
the jury's verdict in its final divorce decree and, even
if a trial court were permitted to "clarify" that
verdict, this case did not call for it as a "50 mi
outward radius" is readily ascertainable. Accordingly,
appellant's issue is sustained.
second issue, appellant argues the trial court erred by
entering judgment granting appellee a standard possession
order incorporating the "alternate beginning and ending
possession time" found in section 153.317 of the Texas
Family Code and into the "over 100 miles" periods
of possession found in section 153.313 of the Texas Family
Code. Section 153.312 pertains to "Parents Who Reside
100 Miles or Less Apart" while the provisions applicable
to "Parents Who Reside over 100 Miles Apart" are
found in section 153.313. Section 153.317 sets forth
"Alternative Beginning and Ending Possession Times"
that modifies the possession times from a specific hour to
when the time the child's school is either regularly
dismissed or resumes after the weekend. See Tex.
Fam. Code §§ 153.313(a); 153.317(a)(1), (2).
Section 153.317 expressly provides that a standard possession
order under sections 153.312, 153.314, and 153.315 may be so
altered. See Tex. Fam. Code § 153.317.
Appellant's complaint is that the trial court altered a
standard possession order under section 153.313, which is not
one of the sections specified in section 153.317.
11(a)(c) of the final decree of divorce allows for alternate
beginning and ending possession times when the parents reside
100 miles or less apart. See Tex. Fam. Code §
153.312. Appellant makes no complaint as to this part of the
11(1)(d) of the final decree of divorce also provides for
alternate beginning and ending possession times when the
parents reside more than 100 miles apart. However, the
allowance for alternate beginning and ending possession times
is conditioned upon appellee's presence in Canada. The
decree states, "[p]rovided, however, if James Robert
Mugford is not going to be in Canada in personal possession
of the child after 6:00 p.m. on Sunday of his weekend
possession, the period of possession shall end at 6:00 p.m.
on Sunday." Thursday possession is limited as follows:
Provided James Robert Mugford is in Alberta, Canada at the
time of the scheduled visitation, James Robert Mugford shall
have possession of the child on the Thursday immediately
preceding the first, third and fifth Fridays of the month
during the regular school term, beginning at the time the
child's school is regularly dismissed and ending at the
time the child's school resumes on Friday. All Thursday
periods of possession provided by this subsection (when
parents reside more than 100 miles apart) shall take place in
The trial court made the following finding of fact regarding
72. The child will benefit from having regular and frequent
contact with Petitioner. The Standard Possession Order with
all elections, including Thursday and Sunday overnight, with
the minor modifications added by the Court, provides for
reasonable possession of the child for the Petitioner.
as a matter of law the trial court concluded:
5. Petitioner is entitled to possession of and access to the
child as set out in the Final Decree of Divorce dated March
16, 2016. In light of the evidence at trial regarding work
schedules, school schedules of the child, and the
parties' circumstances, the periods of possession and
access are as similar as possible to a Standard Possession
Order; and the minor variations in the Order are in the best
interest of the child. Tex. Fam. Code § 153.253.
brief argued that alternate beginning and ending possession
times are not a permissible election if the parents reside
more than 100 miles apart because section 153.317 does not
include section 153.313. Appellant made no argument against
the trial court's modification under section 153.253.
152.253 allows for modification of a standard possession
order as follows:
The court shall render an order that grants periods of
possession of the child as similar as possible to those
provided by the standard possession order if the work
schedule or other special circumstances of the managing
conservator, the possessory conservator, or the child, or the
year-round school schedule of the child, make the standard
order unworkable or inappropriate.
Fam. Code § 153.253.
response to appellee's brief, appellant's reply brief
claimed, for the first time, the evidence was legally and
factually insufficient to support the variation. In
appellant's second supplemental brief is a table that
represents she challenged finding of fact 72 and conclusion
of law 5. We disagree. Appellant's second issue, as
argued in her brief, only presented the issue of whether the
variation was permitted by statute.
rules of appellate procedure do not allow appellant to raise
a new issue that was not discussed in her original brief,
even if the new issue is raised in response to a matter in
the appellee's brief. Yeske v. Piazza Del Arte,
Inc., 513 S.W.3d 652, 672 n.5 (Tex. App.-Houston [14th
Dist.] 2016, no pet.); Dallas Co. v. Gonzalez, 183
S.W.3d 94, 104 (Tex. App.-Dallas 2006, pet. denied) ("A
reply brief is not intended to allow an appellant to raise
new issues."); Lopez v. Montemayor, 131 S.W.3d
54, 61 (Tex. App.-San Antonio 2003, pet. denied) (holding
arguments raised for the first time in appellant's reply
brief were not properly before the court). To allow an
appellant to raise new issues in a subsequent brief would
vitiate the briefing requirements of Texas Rule of Appellate
Procedure 38.1. See Tex. R. App. P. 38.1(e) (An
appellant's brief "must state concisely all issues
or points presented for review."). Because
appellant's brief did not contest the sufficiency of the
evidence, we do not address it. See Yeske, 513
S.W.3d at 672 n.5; see also Tex. R. App. P. 38.1(e);
Dallas Co., 183 S.W.3d at 104; Lopez, 131
S.W.3d at 61.
plain language section 153.253 allows variation from the
standard possession order. Tex. Fam. Code § 153.253. The
trial court concluded that the evidence in the record of
appellee's work schedule, the child's school
schedule, and appellee's frequent travel to Canada
supported a variation from the standard order. The trial
court's order allowing alternate beginning and ending
possession times when, and only when, appellee is in Canada
(similar to when the parties "Reside 100 Miles or Less
Apart") is such a variation. For these reasons, we
overrule issue two.
issues three through fifteen, appellant raises issues
relating to that portion of the trial court's judgment
ordering a division of the martial estate. We address these
issues as appellant has grouped them.
Admission of Expert Testimony
presents a single argument for issues three through six. We
first note that appellant's combined argument fails to
address her fourth issue - that the trial court erred by
repeatedly overruling her objections that questions posed to
appellee and his expert witness, William Stewart, called for
testimony from a document not in evidence. An appellant's
brief must contain a clear and concise argument that includes
appropriate citations to legal authority and the appellate
record. See Tex. R. App. P. 38.1(i);
Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d
928, 931 (Tex. App.-Houston [14th Dist.] 2008, no pet.).
Failure to cite legal authority or to provide substantive
analysis of the legal issues presented results in waiver of
the complaint. Id. Because appellant has
inadequately briefed this issue, we do not consider it.
Bruce v. Cauthen, 515 S.W.3d 495, 507 (Tex.
App.-Houston [14th Dist.] 2017, pet. denied). Issue four is
third issue claims the trial court abused its discretion in
allowing Stewart to testify about the terms of the lines of
credit used to purchase the Friendswood house because Stewart
had never read those notes and/or contracts and they were not
produced prior to trial pursuant to requests for discovery.
See Tex. R. Civ. P. 196. Appellant then argues in
issue five that the trial court abused its discretion in
admitting Stewart's testimony and report, "save and
except for opinions regarding reimbursement claims, "
because he erroneously characterized the bank debt as
appellee's separate liability and the resulting loan
proceeds as appellee's separate property. Issues six
contends the trial court abused its discretion in admitting
Stewart's testimony because his misstatements of law
rendered "his opinions concerning the marital character
[of] the property in this estate incorrect, unreliable and
record reflects appellant filed a pretrial motion to exclude
Stewart's expert testimony. See Tex. R. Evid.
702; E.I. du Pont de Nemours & Co. v. Robinson,
923 S.W.2d 549, 558 (Tex. 1995); see Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579, 592-95, 113 S.Ct. 2786,
125 L.Ed.2d 469 (1993). That motion was presented to the
trial court and a hearing was held, after which the trial
court overruled the motion. None of appellant's issues
claim the trial court abused its discretion in overruling her
motion but the entirety of her argument leads us to construe
it to be one of admission of expert testimony rather than
erroneous evidentiary rulings. See Tex. R. Evid.
702. To preserve a complaint that expert opinion evidence is
inadmissible because it is unreliable, a party must object to
the evidence before trial or when the evidence is offered.
Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 251-52
(Tex. 2004) ...