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In re Marriage of Mugford

Court of Appeals of Texas, Fourteenth District

May 22, 2018

IN THE MATTER OF THE MARRIAGE OF JAMES ROBERT MUGFORD AND LEANNA MARIA MUGFORD Property [Appellee's] Separate Property Percentage Community Property Percentage Total ======

          On Appeal from the 306th District Court Galveston County, Texas Trial Court Cause No. 15-FD-0708

          Panel consists of Justices Boyce, Donovan and Jewell.

          MEMORANDUM OPINION

          JOHN DONOVAN JUSTICE

         This 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.

         I. Background

         The 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 same year.

         The 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.

         The 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.

         The 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.

         II. Custody Issues

         A. Geographic Restriction

         Appellant's first issue[1] 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.[2]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).

         In 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 restriction."

         Section 105.002(c) of the Texas Family Code provides, in pertinent part, the court may not contravene a jury verdict on the issues of:

(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 primary residence.

         The 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.

         B. Possession Order

         In her 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.

         Section 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 decree.

         Section 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 Canada.
The trial court made the following finding of fact regarding possession:
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.

         Further, 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.

         Appellant's 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.

         Section 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.

         Tex. Fam. Code § 153.253.

         In 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.

         The 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.

         By its 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.

         III. Property Issues

         In 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.

         A. Admission of Expert Testimony

         Appellant 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 overruled.

         Appellant's 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 misleading."

         The 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) ...


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