Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Martinez Jardon v. Pfister

Court of Appeals of Texas, Eighth District, El Paso

December 17, 2019

CLAUDIA SUSANA MARTINEZ JARDON, Appellant,
v.
GERD PFISTER, Appellee.

          Appeal from the 65th District Court of El Paso County, Texas (TC# 2013DCM4404).

          Before Alley, C.J., Rodriguez, and Palafox, JJ.

          OPINION

          Gina M. Palafox, Justice.

         This is 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 part.

         BACKGROUND

         Mother 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.

         Father 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 hearing.

         In 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.

         Father 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.

         The 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.

         At the 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.

         Mother 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.

         ISSUES

         Mother raises twenty issues on appeal, which can be roughly grouped into the following four categories:

         A. Procedural Issues:

         This 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 penalty sanctions.

         B. Child-Related Issues:

         This 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 compliance bonds.

         C. Property Division:

         This 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 Mexico.

         D. Attorney's Fees:

         This 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.

         We will discuss each category in turn.

         STANDARD OF REVIEW

         Most 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. 1985)).

         In each 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.

         DISCUSSION

         A. Procedural Issues

         1. Briefing Deficiencies and Error Preservation

         As a 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)).

         Mother 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 requirement.[1]

         Despite 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.

         Father 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.

         2. Effect of the Parties' Mediated Settlement Agreement

         In 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 it:

(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).[2] 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).

         On 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 (Tex. 2013).

         In 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.

         The 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. Id.

         The 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 waived.

         In the 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.

         The 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.

         As in 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." Id.

         We 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.

         Issue One is overruled.

         3. Findings of Fact and Conclusions of Law

         a. Late-Filed Findings and Conclusions

         In 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.

         The 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).

         Mother 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).

         Mother 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.

         There 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 late.

         Mother 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 of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.