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Sheen v. Sheen

Court of Appeals of Texas, Third District, Austin

June 21, 2019

Lynn Sheen, Appellant
v.
Nicholas Sheen, Appellee

          FROM THE 419TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-FM-16-002867 THE HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING.

          Before Justices Goodwin, Baker, and Smith.

          MEMORANDUM OPINION

          Edward Smith, Justice.

         Lynn Sheen appeals from a divorce decree dissolving her marriage to Nicholas Sheen and distributing their community property.[1] Lynn argues in six issues that the district court abused its discretion by denying her motion for a continuance, excluding the testimony of her expert, denying her claim for spousal maintenance, dividing the parties' community property without supporting evidence, and awarding Nicholas contingent appellate attorney's fees. We will affirm the divorce decree.

         BACKGROUND

         Lynn and Nicholas married in 1998 in New Zealand but lived in the United States during the marriage. Lynn stopped working in 2010 due to health problems. The parties sued each other for divorce in 2016, and Nicholas informed Lynn he intended to return to New Zealand and cease supporting her. At Lynn's request, the district court signed temporary orders directing Nicholas to pay temporary spousal support and Lynn's medical bills and to continue making mortgage payments on the marital residence.

         The district court convened a bench trial in December 2017. Lynn's counsel made an oral motion for a continuance to allow for more time to prepare. The district court denied the motion and proceeded to the merits. The parties each sought a disproportionate share of the community estate based on mutual claims of waste of community assets and of physical abuse. Lynn further alleged that Nicholas had failed to make all the payments required by the temporary orders. The district court heard testimony from the parties and from a certified appraiser who testified for Nicholas that the martial residence was worth $575, 000. Lynn disagreed and in her own testimony estimated its value at $430, 000. The district court admitted property inventories, bank records, police reports, and medical records offered by both parties.

         In addition to dividing the community estate in her favor, Lynn asked the district court to order Nicholas to pay spousal maintenance. See Tex. Fam. Code § 8.051 (authorizing courts to order maintenance payments in certain circumstances). Lynn argued she was eligible for maintenance because she is disabled and unable to work. See id. § 8.051(2)(A) (authorizing courts to order maintenance if a spouse is "unable to earn sufficient income to provide for [her] minimum reasonable needs because of an incapacitating physical or mental disability"). Lynn called Dr. Iris Wingrove, a neurologist who had been treating her, to testify on the nature and extent of her disability. Nicholas objected that Lynn had failed to disclose Dr. Wingrove's opinions in discovery. See Tex. R. Civ. P. 194.2(f)(3) (requiring disclosure of "general substance" of testifying expert's "mental impressions and opinions" and brief summary of their basis). The district court sustained Nicholas' objection. Dr. Wingrove testified during an offer of proof that she has diagnosed Lynn with paraneoplastic syndrome, an autoimmune disorder that causes epileptic seizures and fatigue, among other symptoms. In Dr. Wingrove's opinion, Lynn is completely disabled and unlikely ever to work again.

         The district court signed a decree awarding the residence to Lynn and directing her to reimburse Nicholas $97, 500 for his share of the residence and dividing the remaining community assets. The decree provides the parties will bear their own trial-level attorney's fees but awards each party $25, 000 in contingent appellate attorney's fees. The decree does not specifically address Lynn's request for spousal maintenance but denies all relief not expressly granted. The district court denied Lynn's motion for new trial, and this appeal followed.

         DISCUSSION

         Lynn argues in six issues that the district court abused its discretion by denying her motion for a continuance, excluding Dr. Wingrove's testimony, denying Lynn's spousal maintenance claim, denying her waste claim, and awarding Nicholas a disproportionate share of the community estate and conditional appellate fees.

         Standard of Review

         We review each of Lynn's issues for an abuse of discretion. See In re Marriage of Harrison, 557 S.W.3d 99, 112, 121 (Tex. App.-Houston [14th Dist.] 2018, pet. denied) (exclusion of evidence, denial of continuance, and division of property); Fuentes v. Zaragoza, 555 S.W.3d 141, 171 (Tex. App.-Houston [1st Dist.] 2018, no pet.) (spousal maintenance). A trial court ruling constitutes an abuse of discretion if it is arbitrary and unreasonable, made without regard for guiding legal principles or supporting evidence. Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). The insufficiency of the evidence is not an independent ground for reversal under this standard but is relevant to determining whether the trial court abused its discretion. Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex. App.-Austin 2006, pet. denied). This analysis entails a two-part inquiry where we determine first "whether the trial court had sufficient information upon which to exercise its discretion" and, if so, "whether the trial court erred in its application of that discretion." Cline v. Cline, 557 S.W.3d 810, 813 (Tex. App.-Houston [1st Dist.] 2018, no pet.). We apply traditional sufficiency standards of review to answer the first question. Id.

         C ...


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