Court of Appeals of Texas, Fourth District, San Antonio
the 225th Judicial District Court, Bexar County, Texas Trial
Court No. 2017CI06544 Honorable Laura Salinas, Judge
Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez,
Justice Luz Elena D. Chapa, Justice.
C. Martinez, Justice.
Lee Brown, Jr. appeals a final divorce decree asserting the
trial court abused its discretion in dividing the community
property assets and debts when the parties did not enter into
a settlement agreement and the trial court did not have
sufficient evidence upon which to exercise its discretion. We
affirm the trial court's judgment.
and Sandra were married in 1985, and Sandra filed a petition
for divorce in 2017. The divorce decree recites the case was
called for trial on December 6, 2018. The divorce decree also
recites both Tommy and Sandra appeared in person and through
their respective attorneys of record and announced ready for
trial. The divorce decree further recites, "A jury was
waived, and questions of fact and of law were submitted to
the Court." In the divorce decree, the trial court finds
Tommy and Sandra did not have any minor children and also
finds the division of property set forth in the divorce
decree is a just and right division of the parties'
marital estate. The trial court signed the divorce decree on
January 10, 2019, noting the divorce was judicially
pronounced and rendered on December 6, 2018.
filed a timely motion for new trial which the trial court
denied after a hearing. Tommy appeals.
second issue on appeal, Tommy asserts "the trial court
erred by acting as if the decree was based on a settlement
agreement entered into between the parties when no such
agreement was present." This assertion, however, is
contrary to the recital in the divorce decree which states
all "questions of fact and of law were submitted to the
Court" for a decision. Accordingly, nothing in the
record supports Tommy's assertion. In fact, at the
hearing on Tommy's motion for new trial, both attorneys
acknowledged the trial court reached a decision after a
hearing in chambers, and the trial court recalled valuing the
property based on the stipulated numbers provided by the
attorneys with the exception of one house which the trial
court valued based on an appraisal submitted by Tommy.
Accordingly, the record does not support Tommy's
assertion that the divorce decree was based upon a
non-existent settlement agreement. Tommy's second issue
first issue, Tommy asserts the record does not contain any
evidence to support the trial court's division of
property. Accordingly, Tommy contends the trial court abused
its discretion in dividing the property in the absence of a
contested hearing or trial which would provide the parties
with the opportunity to testify and present evidence.
Texas Family Code provides a trial court "shall order a
division of the estate of the parties in a manner that the
court deems just and right, having due regard for the rights
of each party and any children of the marriage." Tex.
Fam. Code Ann. § 7.001. We review a trial court's
division of the parties' estate under an abuse of
discretion standard of review by engaging in the following
two-pronged inquiry: "(1) did the trial court have
sufficient evidence upon which to exercise its discretion,
and (2) did the trial court err in its application of that
discretion?" Roberts v. Roberts, 531 S.W.3d
224, 231 (Tex. App.-San Antonio 2017, pet. denied) (internal
quotation marks omitted). "[A] trial court does not
abuse its discretion if there is some evidence of a
substantive and probative character that supports its
decision." Ngwu v. Toni, No. 04-18-00762-CV,
2019 WL 3307913, at *1 (Tex. App.-San Antonio July 24, 2019,
no pet.) (mem. op.). In addition, "[w]e consider every
reasonable presumption in favor of the trial court's
division of property." Roberts, 531 S.W.3d at
appellant asserts on appeal that the trial court abused its
discretion, "he bears the burden of providing a record
showing an abuse of discretion." Ngwu, 2019 WL
3307913, at *2. Although the divorce decree entered by the
trial court in the instant case recites a record was made,
the parties conceded in their briefs that no such record was
actually made. A party may waive the making of the record by
not objecting to the failure to record the
No. 02-12-00313-CV, 2014 WL 1999318, at *1 (Tex. App.-Fort
Worth May 15, 2014, no pet.) (mem. op.); Benjamin v.
Benjamin, No. 01-10-01003-CV, 2013 WL 4507848, at *2
& n.2 (Tex. App.-Houston [1st Dist.] Aug. 22, 2013, no
pet.) (mem. op.). Here, the divorce decree recites Tommy
appeared in person and through his attorney of record, but
"the clerk's record does not demonstrate that
[Tommy] requested a reporter's record to be made or
objected to the failure to record the proceeding."
Ngwu, 2019 WL 3307913, at *2. "It is the
appellant's burden to present an appellate record that
substantiates his arguments on appeal." Id.
"Without a record of the proceedings before the trial