Court of Appeals of Texas, Fifth District, Dallas
IN THE INTEREST OF D. V. D. AND B.L.D., CHILDREN
Appeal from the 330th Judicial District Court Dallas County,
Texas Trial Court Cause No. DF-13-18833
Justices Lang-Miers, Myers, and Boatright
ELIZABETH LANG-MIERS JUSTICE
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
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.
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
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.
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.
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.
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.
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.
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.
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).
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.
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.
concluded that Wife's notice of appeal was timely. We
overrule the portion of Husband's cross-issue contending
that this Court ...