Court of Appeals of Texas, Twelfth District, Tyler
IN THE MATTER OF THE MARRIAGE OF RANDALL LEE HUTCHERSON AND PENNI RHNEA HUTCHERSON
FROM THE 294TH JUDICIAL DISTRICT COURT VAN ZANDT COUNTY,
TEXAS (Tr. Ct. No. FM18-00198)
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
T. Worthen, Chief Justice.
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.
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.
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
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.).
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).
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.
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.
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 ...