Court of Appeals of Texas, Eighth District, El Paso
from the 65th District Court of El Paso County, Texas (TC#
Alley, C.J., Rodriguez, and Palafox, JJ.
M. Palafox, Justice.
an appeal from a final decree of divorce between Appellant
Claudia Susana Martinez Jardon ("Mother") and
Appellee Gerd Pfister ("Father"). Mother raises
twenty issues, challenging the trial court's
determinations concerning the best interest of the
couple's minor child, A.E.P., the division of community
property, and the award of attorney's fees. Mother also
challenges certain procedural aspects of the case in the
court below. We affirm in part and reverse and remand in
and Father were married in 2004 and had one child, A.E.P. In
June 2013, Mother filed this suit for divorce in the 65th
District Court of El Paso County. In her original petition,
she requested that she be named sole managing conservator of
the child, that Father be ordered to pay child support, that
the court order Father to execute a bond because of the
possibility that he would violate court orders relating to
possession, and that the court take further measures to
protect the child because of a risk of international
abduction by Father. Mother also requested that Father be
enjoined from removing A.E.P. from El Paso County, Texas.
filed a counterpetition, requesting that the parties be named
joint managing conservators, that he be named the person with
the exclusive right to designate the child's primary
residence (restricted to El Paso County, Texas), and that
Mother be ordered to pay child support. Father later amended
his counterpetition to add claims for breach of fiduciary
duty, fraud, waste of assets, fraudulent transfer, and civil
conspiracy. Mother nonsuited her petition before the final
early 2014, the parties entered into a mediated settlement
agreement under which they agreed to share possession of the
child. That agreement was reduced to temporary orders in
February 2015. Father testified at trial that, despite the
parties' agreement, Mother abducted the child to Mexico
and has since refused to divulge his whereabouts or to permit
Father to have any access to or contact with him. Mother has
also refused to comply with court orders to reveal the
child's whereabouts and to return him to the Texas court.
Instead, she initiated legal proceedings in Mexico to obtain
custody of the child.
also testified concerning the value of the couple's
community property, including properties located in Mexico,
and introduced exhibit P-2 as a summary of those values. He
asked that the Mexico properties be awarded to Mother, but
that he be granted judgment for half of the value of the
community property, secured by liens on the properties
awarded to Mother.
only other testimony presented at trial was the unsworn
testimony of Father's attorney relating to the issue of
attorney's fees. Mother appeared at trial only through
her attorney and did not offer any evidence.
close of trial, the court issued its ruling naming Father
sole managing conservator of A.E.P., restricting the
child's residence to El Paso County, Texas, requiring
Mother to execute a $400, 000 bond to offset the cost of
obtaining the child's return following international
abduction by her, requiring Mother to execute a $200, 000
bond conditioned on compliance with the court's
possession orders, and ordering Mother to pay child support
of $1, 710, beginning on May 1, 2017. As to the division of
property, the court accepted the values stated in exhibit
P-2, and awarded the Mexico properties to Mother. The court
awarded Father a judgment in the amount of one-half of the
value stated in exhibit P-2, secured by a lien on the Mexico
properties. Finally, the court awarded Father attorney's
fees in the amount of $206, 492.09. Each of these rulings was
incorporated into the court's Final Decree.
filed a request for findings of fact and conclusions of law
and a notice of past due findings of fact and conclusions of
law. The trial court signed findings of fact and conclusions
of law outside the time specified by the Texas Rules of Civil
Procedure, but before Mother perfected her appeal.
raises twenty issues on appeal, which can be roughly grouped
into the following four categories:
category includes: (a) the effect of the parties'
mediated settlement agreement; (b) the effect of late-filed
findings of fact and conclusions of law; (c) the effect of
findings stated in the Final Decree; (d) judgment not
conforming to the pleadings; and (e) the imposition of death
category includes: (a) the trial court's appointment of
Father as sole managing conservator; (b) ordering Mother to
pay child support; and (c) ordering Mother to execute two
category includes issues pertaining to the division of
community property, including (a) the admission of
Father's testimony and exhibit P-2 concerning property
values; (b) the sufficiency of the evidence to value the
community property; (c) adjudication of title to property in
Mexico; and (d) ordering Mother to execute documents
necessary for Father to obtain liens on the property in
category groups issues concerning the trial court's award
of attorney's fees, including (a) the effect of unsworn
testimony by Father's attorney; (b) awarding expenses
incurred in hiring Mexico attorneys; and (c) the sufficiency
of the attorney's fee evidence.
discuss each category in turn.
appealable issues in a family law case, including property
division, conservatorship, and child support, are reviewed
under the abuse of discretion standard. Richardson v.
Richardson, 424 S.W.3d 691, 695 (Tex. App.-El Paso 2014,
no pet.); see Gillespie v. Gillespie, 644 S.W.2d
449, 451 (Tex. 1982) (determination of best interest of child
"will be reversed only when it appears from the record
as a whole that the court has abused its discretion");
In re J.M.M., 549 S.W.3d 293, 298-99 (Tex. App.-El
Paso 2018, no pet.) (order granting child support is reviewed
for abuse of discretion). Moreover, a trial court's
decision to admit evidence is reviewed under the abuse of
discretion standard. Interstate Northborough P'ship
v. State, 66 S.W.3d 213, 220 (Tex. 2001); Villanova
v. Fed. Deposit Ins. Corp., 511 S.W.3d 88, 94 (Tex.
App.-El Paso 2014, no pet.). This standard of review also
applies to an award of attorney's fees. Texas Mut.
Ins. Co. v. Sara Care Child Care Ctr., Inc., 324 S.W.3d
305, 319 (Tex. App.-El Paso 2010, pet. denied). Finally,
imposition of discovery sanctions is likewise reviewed for
abuse of discretion. McCollum v. The Bank of New York
Mellon Tr. Co., 481 S.W.3d 352, 357 (Tex. App.-El Paso
2015, no pet.). "A trial court abuses its discretion
when it acts arbitrarily or unreasonably, or without
reference to any guiding rules and principles."
Villanova, 511 S.W.3d at 94 (citing Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.
of these contexts, determining whether the trial court abused
its discretion involves a two-pronged inquiry: (1) did the
trial court have sufficient information upon which to
exercise its discretion? and (2) did the trial court err in
its application of discretion? In re M.V., 583
S.W.3d 354, 361 (Tex. App.-El Paso 2019, no pet.); In re
T.M.P., 417 S.W.3d 557, 562 (Tex. App.-El Paso 2013, no
pet.); Sara Care, 324 S.W.3d at 319. Sufficiency
challenges are considered as factors relevant to whether the
trial court abused its discretion rather than independent
grounds of error. In re M.V., 583 S.W.3d at 361;
In re T.M.P., 417 S.W.3d at 563. Whether there is
legally sufficient evidence is determined by viewing the
evidence in the light favorable to the trial court's
decision, crediting favorable evidence if a reasonable fact
finder could, and disregarding contrary evidence unless a
reasonable fact finder could not. See City of Keller v.
Wilson, 168 S.W.3d 802, 807 (Tex. 2005). If there is
evidence of a substantive and probative character supporting
a trial court's decision, we cannot conclude that the
court abused its discretion in reaching that decision. In
re M.V., 583 S.W.3d at 361.
Briefing Deficiencies and Error Preservation
preliminary matter, Father contends that all but one of
Mother's issues are waived because her arguments on those
issues do not include appropriate citations to the record.
See Tex. R. App. P. 38.1(i). The supreme court has
recognized that "[f]ailure to provide citations or
argument and analysis as to an appellate issue may waive
it." Ross v. St. Luke's Episcopal Hosp.,
462 S.W.3d 496, 500 (Tex. 2015). But that court has also
instructed the courts of appeals "to construe the Rules
of Appellate Procedure reasonably, yet liberally, so that the
right to appeal is not lost by imposing requirements not
absolutely necessary to effect the purpose of a rule."
Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150
S.W.3d 423, 427 n.15 (Tex. 2004) (quoting Verburgt v.
Dorner, 959 S.W.2d 615, 616-17 (Tex. 1997)).
responds that Rule 38.1 requires citations to the record only
in support of the statement of facts portion of her brief.
Mother is mistaken. The rule clearly states:
"Argument. The brief must contain a clear and
concise argument for the contentions made, with
appropriate citations to authorities and to the
record." Tex.R.App.P. 38.1(i) (emphasis added).
Mother's brief does not comply with this
the deficiencies in Mother's brief, we heed the
instruction of the supreme court and conclude that it is not
absolutely necessary in this case to strictly enforce the
rules relating to briefing requirements. See
Mex-Tex, 150 S.W.3d at 427; Verburgt, 959
S.W.2d at 616-17. We decline to hold that Mother's issues
on appeal are waived by her failure to comply with Rule 38.1.
also contends that many of Mother's issues are not
preserved for review because she did not make timely,
appropriate objections in the trial court. See Tex.
R. App. P. 33.1. We will address preservation of error below
in the context of the issues in which the matter is raised.
Effect of the Parties' Mediated Settlement
Issue One, Mother complains that the trial court abused its
discretion by refusing to enter final judgment on the
parties' mediated settlement agreement ("MSA").
The Texas Family Code provides that a MSA in a suit affecting
the parent-child relationship is binding on the parties if
(1) provides, in a prominently displayed statement that is in
boldfaced type or capital letters or underlined, that the
agreement is not subject to revocation;
(2) is signed by each party to the agreement; and
(3) is signed by the party's attorney, if any, who is
present at the time the agreement is signed.
Tex. Fam. Code Ann. § 153.0071(d). If the agreement
meets these requirements, "a party is entitled to
judgment on the mediated settlement agreement notwithstanding
Rule 11, Texas Rules of Civil Procedure, or another rule of
law." Id. at § 153.0071(e).
review, we conclude that the MSA in this instance meets all
requirements of Section 153.0071(d). Mother complains,
however, that the Final Decree does not comport with the
terms of the MSA, particularly in that it appoints Father
sole managing conservator of A.E.P. rather than naming both
parties as joint managing conservators as provided by the MSA
terms. By failing to comport the Final Decree with the
parties' MSA, Mother asserts that the trial court
committed reversible error under the Texas Supreme
Court's decision in In re Lee, 411 S.W.3d 445
In re Lee, the Court considered "whether a
trial court presented with a request for entry of judgment on
a validly executed MSA may deny a motion to enter judgment
based on a best interest inquiry." Id. at 450.
As to that inquiry, the supreme court held that it may not.
Id. at 454-55. However, the procedural context of
In re Lee is distinguishable.
father in In re Lee appeared before an associate
judge to prove up the parties' MSA, but the associate
judge refused to enter judgment because the mother's
husband was a registered sex offender and was alleged to have
acted inappropriately with the child. Id. at 447-48.
The mother then filed a motion with the district court
requesting that the court enter judgment on the MSA.
Id. at 448. The father objected on the ground that
the MSA was not in the best interest of the child. The trial
court agreed and refused to enter judgment on the MSA.
first, and most crucial, distinction between In re
Lee and the present case is that Mother did not make any
request to the trial court to enter judgment on the MSA, nor
did she object to the fact that the Final Decree does not
comport with the MSA. While Section 153.0071(e) provides that
a party is entitled to judgment on an MSA, it does not make
such a judgment automatic. See Tex. Fam. Code Ann.
§ 153.0071(d), (e). Mother has not presented any
authority establishing that a trial court has a duty to enter
judgment on an MSA in the absence of any request to do so. We
are precluded from addressing on appeal any asserted error
that was not properly preserved in the trial court by timely
bringing the complaint to the trial court's attention and
obtaining an adverse ruling. See Tex. R. App. P.
33.1. We thus conclude that Mother's first issue is
alternative, we further conclude that Mother's first
issue fails on the merits because of an additional
distinction between the record of this case and In re
Lee. Specifically, unlike in In re Lee, the
trial court here did not refuse to give effect to the MSA.
Rather, the procedural posture of this case is far different
and more akin to that presented in In re Harrison,
557 S.W.3d 99 (Tex. App.-Houston [14th Dist.] 2018, pet.
denied). The trial court in In re Harrison
incorporated the parties' MSA into interim orders, under
which the parties shared custody of their children.
Id. at 139. After the MSA was signed and the interim
orders were entered, events occurred that constituted a
material and substantial change of circumstances such that
the terms of the MSA were no longer consistent with the
children's welfare. Id. The trial court
thereafter modified the terms of the interim orders based on
those changed circumstances and its finding that the
modification was in the children's best interest.
Id. The In re Harrison court of appeals
determined that these facts rendered that case
"fundamentally different" than In re Lee.
Id. at 138. The same is true of the case before us.
parties here entered an MSA and shared custody of A.E.P. for
a period thereafter. The trial court later incorporated the
MSA into temporary orders. Mother then violated those orders
by abducting A.E.P. to Mexico and secreting him there. Father
moved to modify the temporary orders based on a material
change of circumstances affecting the child. In its order
granting that motion, the trial court found a material change
of circumstances, being that, after the MSA was signed and
the temporary orders were entered, Mother wrongfully removed
the child from El Paso County for the purpose of changing his
residence, wrongfully took the child to Mexico and has hidden
his whereabouts, and has continuously defied and violated
orders of the court. Based on those findings of changed
circumstances, which Mother does not contest, the court
awarded Father full custody of A.E.P. and appointed him sole
managing conservator. Those modified terms were thereafter
incorporated into the Final Decree.
In re Harrison, the trial court in this case gave
effect to the terms of the parties' MSA until such time
as one party substantially and repeatedly violated those
terms. See 557 S.W.3d at 139. The court then
modified those terms in light of the materially changed
circumstances. These facts render In re Lee
inapplicable. Most particularly, "[t]he challenged order
in Lee was not based on allegations or evidence that
a party violated MSA terms that the party simultaneously
sought to enforce." Id. at 139. And our record
"does not show that the trial court denied a motion to
enter judgment on the MSA based on a broad best interest
inquiry." Id. at 140. Further, Mother "has
not shown that, once the trial court issued orders
incorporating the MSA, it lacked authority to modify those
orders on [Father's] motion based on events occurring
after the MSA and further temporary orders were signed."
conclude that this case is not governed by In re
Lee. It is, however, indistinguishable from In re
Harrison. While we are not bound to follow the precedent
of our sister courts of appeals, we find the reasoning of the
In re Harrison court to be persuasive. See In re
Reardon, 514 S.W.3d 919, 923 (Tex. App.-Fort Worth 2017,
orig. proceeding) (courts of appeals are not bound by
precedent of sister courts but may be guided by their
reasoning and analysis). As in that case, we hold that the
trial court acted within its discretion when it incorporated
the terms of the MSA into temporary orders, which it then
modified on Father's motion after determining that
A.E.P.'s welfare required the modification. See In re
Harrison, 557 S.W.3d at 140.
One is overruled.
Findings of Fact and Conclusions of Law
Late-Filed Findings and Conclusions
Issue Two, Mother contends that the trial court abused its
discretion by appointing Father sole managing conservator of
A.E.P. without filing findings of fact and conclusions of law
pursuant to Rules 296 and 297 of the Texas Rules of Civil
Procedure. But the record reflects that the trial court did
file findings of fact and conclusions of law, albeit late.
Final Decree was signed on May 23, 2017. Mother filed a
request for findings of fact and conclusions of law on June
9, 2017, and a notice of past due findings of fact and
conclusions of law on July 6, 2017. The court's findings
and conclusions were therefore due on July 19, 2017; but
findings were not filed until August 9, 2017. See
Tex. R. Civ. P. 297 (past due notice extends time to file
findings and conclusions to 40 days after initial request).
Mother also filed a motion for new trial, which was overruled
by written order on June 21, 2017. The trial court's
plenary jurisdiction thus expired on July 21, 2017.
See Tex. R. Civ. P. 329b(e) (plenary power expires
30 days after motion for new trial is overruled).
argues that this Court cannot consider the trial court's
findings and conclusions because they were not timely filed.
But Robles v. Robles, 965 S.W.2d 605 (Tex.
App.-Houston [1st Dist.] 1998, pet. denied), on which she
relies, actually supports our ability to consider those
findings and conclusions, despite the late filing:
The procedural rules establishing the time limits for the
requesting and filing of findings of fact and conclusions of
law do not preclude the trial court from issuing belated
findings. Unless they can show injury, litigants have no
remedy if a trial court files untimely findings and
conclusions. Injury may be in one of two forms: (1) the
litigant was unable to request additional findings, or (2)
the litigant was prevented from properly presenting his
appeal. If injury is shown, the appellate court may abate the
appeal so as to give the appellant the opportunity to request
additional or amended findings in accordance with the rules.
Id. at 610 (citations omitted).
has not demonstrated any harm arising from the late filing of
the findings and conclusions. Rather, she asserts that harm
is presumed. Again, the case on which she relies does not
support her argument. See Tenery v. Tenery, 932
S.W.2d 29 (Tex. 1996). The trial court in Tenery did
not file late findings and conclusions; it did not file any
findings and conclusions at all. See id. at 29. The
supreme court presumed harm in that case in the context of
the trial court's child support order because the court
was required to make certain findings under the Texas Family
Code. Id. at 30. The fact that there is no blanket
presumption of harm, even when the trial court refuses to
file findings and conclusions, is evidenced by the supreme
court's holding in Tenery that the petitioner
was not harmed by the failure to make findings and
conclusions concerning its property division. Id.
is no presumption of harm in this case because the trial
court did not refuse to file findings of fact and conclusions
of law. See Tenery, 932 S.W.2d at 30. In addition,
Mother has not demonstrated that she was unable to request
additional or amended findings, or that she was prevented
from properly presenting her appeal. See Robles, 965
S.W.2d at 610. We are not precluded from considering the
trial court's findings of fact and conclusions of law
simply because those findings and conclusions were filed
next contends that the trial court lacked jurisdiction to
file findings and conclusions when it did because its plenary
power had expired. See Sonnier v. Sonnier, 331
S.W.3d 211, 215 (Tex. App.-Beaumont 2011, no pet.) (trial
court lacked jurisdiction to file findings and conclusions
once case was on appeal); but see Robles, 965 S.W.2d
at 610 (giving effect to findings and conclusions filed after
appellate brief filed). The supreme court has held, however,
that the expiration of a court's plenary power does not
affect its authority to file findings of fact and conclusions