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In re D.V. D.

Court of Appeals of Texas, Fifth District, Dallas

May 22, 2018

IN THE INTEREST OF D. V. D. AND B.L.D., CHILDREN

          On Appeal from the 330th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-13-18833

          Before Justices Lang-Miers, Myers, and Boatright

          MEMORANDUM OPINION

          ELIZABETH LANG-MIERS JUSTICE

         The trial court rendered a final decree of divorce between the parties. In three issues, appellant Wife challenges the trial court's property division. We affirm the trial court's judgment.

         Background

         The parties were married on February 18, 2006. Husband filed an original petition for divorce on October 8, 2013. Wife filed a counterpetition. After a bench trial, the trial court rendered a final decree of divorce on December 16, 2016. Wife now challenges the property division. The parties do not challenge the decree's provisions regarding D.V.D. and B.L.D., their children.

         In three issues, Wife complains that the trial court erred by (1) characterizing the down payment on a residence, a motor vehicle, and airline miles as Husband's separate property; (2) failing to reconstitute the community estate prior to division based on an unrebutted presumption of wasting of community assets or constructive fraud on the community by Husband; and (3) dividing the community estate in an arbitrary and unreasonable manner. By cross-point, Husband alleges Wife has waived her right to complain of these matters or is estopped from attacking the judgment on appeal.

         Standard of Review

         We review the trial court's rulings dividing the parties' property under an abuse-of-discretion standard. In re Marriage of C.A.S., 405 S.W.3d 373, 382 (Tex. App.-Dallas 2013, no pet.). A trial court abuses its discretion when it acts "without reference to any guiding rules and principles; in other words, whether the act was arbitrary or unreasonable." Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam). In a non-jury trial, where no findings of fact or conclusions of law are filed or requested, we must presume that the trial court made all the necessary findings to support its judgment. Sink v. Sink, 364 S.W.3d 340, 343 (Tex. App.-Dallas 2012, no pet.). Consequently, if the trial court's implied findings are supported by the evidence, we must uphold its judgment on any theory of law applicable to the case. Id. at 343-44.

         In family law cases, legal and factual sufficiency challenges do not constitute independent grounds for asserting error, but they are relevant factors in determining whether the trial court abused its discretion. C.A.S., 405 S.W.3d at 383. To determine whether the trial court abused its discretion because the evidence is legally or factually insufficient to support the trial court's decision, we consider whether the trial court (1) had sufficient evidence upon which to exercise its discretion, and (2) erred in its application of that discretion. Moroch v. Collins, 174 S.W.3d 849, 857 (Tex. App.-Dallas 2005, pet. denied). We conduct the applicable sufficiency review when considering the first prong of the test. Id. We then determine whether, based on the elicited evidence, the trial court made a reasonable decision. Id. A trial court does not abuse its discretion if it bases its decision on conflicting evidence as long as there is some evidence of a substantive and probative character to support the decision. In re S.N.Z., 421 S.W.3d 899, 911 (Tex. App.- Dallas 2014, pet. denied); Moroch, 174 S.W.3d at 857. The trial court is the sole judge of the credibility of witnesses and the weight to be given their testimony. In re M.A.M., 346 S.W.3d 10, 14 (Tex. App.-Dallas 2011, pet. denied).

         When reviewing an alleged property characterization error, we must determine whether the trial court's finding is supported by clear and convincing evidence and whether the characterization error, if established, was an abuse of discretion. Magness v. Magness, 241 S.W.3d 910, 912 (Tex. App.-Dallas 2007, pet. denied). We must indulge every reasonable presumption in favor of the trial court's proper exercise of its discretion in dividing marital property. Sink, 364 S.W.3d at 343. We will reverse the ruling of the trial court only if the record demonstrates that the trial court clearly abused its discretion, and the error materially affected the just and right division of the community estate. Id.

         When the burden of proof at trial is by clear and convincing evidence, we apply a higher standard of legal and factual sufficiency review. Id. at 344. Clear and convincing evidence is defined as 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 established." Tex. Fam. Code Ann. § 101.007 (West 2014); Sink, 364 S.W.3d at 344. In reviewing the evidence for legal sufficiency, we look at all the evidence in the light most favorable to the judgment to determine if the trier of fact could reasonably have formed a firm belief or conviction that its finding was true. See Moroch, 174 S.W.3d at 858. We must assume that the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could do so. Id. In reviewing the evidence for factual sufficiency, we must give due consideration to evidence that the fact finder could reasonably have found to be clear and convincing and then determine whether, based on the record, a fact finder could reasonably form a firm conviction or belief that the allegations in the petition were proven. Sink, 364 S.W.3d at 344.

         Appellate Jurisdiction

         On March 13, 2017, Husband filed a motion to dismiss this appeal for lack of jurisdiction, arguing that Wife's notice of appeal was untimely. We denied Husband's motion in our Order of March 29, 2017. We denied Husband's motion to reconsider on April 7, 2017. In his appellate brief, Husband again contends this Court lacks jurisdiction over Wife's appeal. We disagree.

         The trial court issued a memorandum ruling on August 15, 2016 with instructions to Husband's counsel to "reduce the memorandum to Order." On October 27, 2016, Wife filed an amended motion to reconsider the memorandum ruling. The trial court held a hearing on the motion to reconsider, and signed the divorce decree on December 16, 2016. Wife filed her notice of appeal on March 8, 2017. Husband argues that because Wife did not file a post-judgment motion following the divorce decree, Wife's appeal is untimely.

         A premature post-judgment motion is effective to extend the appellate deadlines. See Tex. R. Civ. P. 329b(a); Ryland Enter., Inc. v. Weatherspoon, 355 S.W.3d 664, 665-66 (Tex. 2011) (per curiam). If a subsequent judgment does not grant all the relief requested in the premature motion, then the motion remains as a viable complaint about the subsequent judgment and extends the appellate deadlines after that judgment. See Brighton v. Koss, 415 S.W.3d 864, 865 (Tex. 2013) (per curiam).

         In her amended motion to reconsider, Wife complained about five matters. Two of Wife's complaints addressed issues relating to the parties' children, and three addressed issues relating to the trial court's property division. The trial court did not grant Wife's requested relief on either issue relating to the parties' children, nor on at least one of her complaints about the property division. Wife's premature motion remained as a viable complaint about the subsequent divorce decree, and consequently, extended the appellate deadlines. See id.

         Husband also suggests that Wife must complain of the same errors in her appeal as she did in her premature motion. We disagree. Although Husband correctly notes that to preserve an error for appeal, a party must make the complaint in the trial court and obtain a ruling, see Tex. R. App. P. 33.1, only certain complaints must be contained in a post-judgment motion to preserve them for appeal. See Tex. R. Civ. P. 324; Tex.R.App.P. 33.1.

         We have concluded that Wife's notice of appeal was timely. We overrule the portion of Husband's cross-issue contending that this Court ...


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