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In re Marriage of Hutcherson

Court of Appeals of Texas, Twelfth District, Tyler

September 27, 2019



          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.


          James T. Worthen, Chief Justice.

         Randall Lee Hutcherson appeals from a final decree of divorce in which the trial court granted Appellee Penni Rhnea Hutcherson's petition for divorce and divided the parties' marital estate. In two issues, Appellant asserts the final decree did not comport with the trial court's oral pronouncement or Appellee's pleading, and the trial court abused its discretion in denying Appellant's motion for new trial. We affirm in part and reverse in part.


         Appellee filed a petition for divorce and requested the court divide the parties' property. Appellant appeared pro se at the hearing, by telephone due to his incarceration. The parties were the only testifying witnesses. The trial court granted the divorce, divided the property based on their testimony, and signed the decree the same day. Appellant timely filed a motion for new trial contesting only the awards of two items. The trial court denied the motion, and this appeal ensued.


         In his second issue, Appellant asserts that the trial court erred in denying his motion for new trial regarding the question of ownership of the Pomeranian/Yorkie mix dog named Sassy. He contends that Appellee presented false testimony with respect to her ownership of the dog, and his evidence shows that the dog was neither personal property nor community property of the parties.

         Standard of Review

         New trials may be granted and judgment set aside for good cause. Tex.R.Civ.P. 320. Denial of a motion for new trial is reviewed for an abuse of discretion. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010). The test for abuse of discretion in ruling on a motion for new trial is whether the trial court acted without reference to any guiding rules or principles or whether the trial court's actions were arbitrary or unreasonable under the circumstances of the case. Ward v. Hawkins, 418 S.W.3d 815, 824 (Tex.App.-Dallas 2013, no pet.). A trial court abuses its discretion if it clearly fails to correctly analyze or apply the law. In re Ford Motor Co., 442 S.W.3d 265, 269 (Tex. 2014) (orig. proceeding). In determining whether the trial court abused its discretion, the reviewing court will consider the whole record on appeal. See In re Estate of Miller, 243 S.W.3d 831, 839 (Tex.App.-Dallas 2008, no pet.).

         Applicable Law

         In a divorce proceeding, the trial court is charged with dividing the community estate in a just and right manner considering the rights of both parties. Tex. Fam. Code Ann. § 7.001(West 2006); Neyland v. Raymond, 324 S.W.3d 646, 651 (Tex.App.-Fort Worth 2010, no pet.). Assets belonging to a third party are not part of the marital estate and therefore not subject to division by the trial court. Collins v. Collins, 345 S.W.3d 644, 650-51 (Tex.App.-Dallas 2011, no pet.). Mischaracterization of a third party's property as a part of the community estate is error affecting the trial court's "just and right" division. Sheshtawy v. Sheshtawy, 150 S.W.3d 772, 780 (Tex.App.-San Antonio 2004, pet. denied).

         "Fraud practiced on the court is always ground for vacating the judgment, as where the court is deceived or misled as to material circumstances." Pinkston v. Pinkston, 266 S.W.2d 515, 519 (Tex. Civ. App.-Waco 1954, writ ref'd n.r.e.). Specifically, the "willful giving of false testimony by a party, " affecting an issue to be tried, is fraud entitling the injured party to have the cause reexamined. McMurry v. McMurry, 4 S.W. 357, 359 (Tex. 1887). Thus, courts may grant equitable relief when a judgment has been obtained by fraud, mistake, or accident, and without any want of diligence on the part of the aggrieved party. Id. "The rule which denies to a party the right to relitigate a matter once in controversy" should not be applied where "one party has, by his own false evidence, knowingly given, . . . obtained a judgment or decree against his adversary which gives to him something which truth and justice would deny." Id. at 360. Intrinsic fraud, including perjured testimony, should be corrected by motion for new trial. Travenol Labs., Inc. v. Bandy Labs., Inc., 630 S.W.2d 484, 486 (Tex.App.-Waco 1982, writ ref'd n.r.e.). Thus, a new trial may be granted on the ground that a witness willfully testified falsely to a material fact. Traylor v. Pickering, 324 F.2d 655, 658 (5th Cir. 1963). Where a party is surprised by the other party's testimony, as in a case of perjury, the party may ask for a continuance to prepare rebuttal testimony. Id.


         In his motion for new trial, Appellant contested the final decree of divorce "because the division and award [of] personal and community property of the parties was premised upon the false testimony of the Petitioner." He claimed that the item of property described by Appellee as a cabin or portable building is actually a permanent structure. He asked that the divorce decree be amended to delete the award of the building to Appellee. He also attacked the award of a Pomeranian/Yorkie mix dog named Sassy to Appellee. Among the evidence attached to the motion is a handwritten document entitled "Title To Sassy" and signed by Appellee. In pertinent part it states:

I, Penni Hutcherson hereby give ownership of my dog, Sassy to Royse [sic] and Cherell Ann Hutcherson this day of November 23, 2017 – Thanksgiving Day 2017, by my own choosing. . . . I promise this day forward y'all are Sassy's new owner's. [sic] I can't claim ownership anymore.

         Appellant also included as an exhibit a copy of an email from Appellee to Appellant's mother, Cherell Hutcherson, in which Appellee indicated that she had given Royce Hutcherson the dog. The exhibits are supported by ...

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