in the Interest of J.M.M., a Child
05-15-01198-CV
| Tex. App. | Apr 26, 2017Background
- Husband filed for divorce in April 2014 after ~30 years of marriage; Wife answered and proceeded pro se at trial and on appeal.
- Trial was set for a "final hearing" on August 17, 2015; Wife attended and the court stated it was a final trial before proceeding.
- Husband proposed a property division; after an off-the-record discussion the court assisted the parties in reaching an agreement, but Wife claimed duress and the court proceeded to a bench trial.
- Husband was the sole witness; Wife cross-examined but presented no affirmative evidence or witnesses.
- The trial court signed a final decree dividing property and granting the divorce; Wife filed a motion for new trial and a motion to vacate, which were overruled by operation of law, and she appealed.
Issues
| Issue | Plaintiff's Argument (Charboneau) | Defendant's Argument (McInnis) | Held |
|---|---|---|---|
| 1. Notice of trial / due process | Wife: Hearing was a "trial by ambush"; she lacked notice it was a final trial and had no chance to present evidence | Husband: Notice listed a "final hearing"; Wife participated and did not timely object | Court: Not preserved; notice adequate; issue overruled |
| 2. Right to jury trial | Wife: Did not know trial date so could not timely request jury | Husband: No written jury demand or fee; Wife participated in bench trial without objection | Court: Not preserved; rule 216 requires demand; issue overruled |
| 3. Post-judgment relief (new trial / vacate) | Wife: Trial court erred in denying post-judgment motions | Husband: Motions were overruled by operation of law; Wife failed to brief or cite authority | Court: Inadequately briefed; issue waived |
| 4. Property division fairness | Wife: Division unfavorable (Husband received more vehicles; she received one bad car); cited marriage length, health, Husband's record | Husband: Division awarded Wife significant assets (house, piano); Husband assumed more debts; trial court acted within discretion | Court: No clear abuse of discretion; Wife presented no evidence; issue overruled |
Key Cases Cited
- Crews v. DKasi Corp., 469 S.W.3d 194 (Tex. App.—Dallas 2015) (timely objection required to preserve complaints for appellate review)
- Millwee v. Capstar Commercial Real Estate Svcs., 337 S.W.3d 517 (Tex. App.—Dallas 2011) (pro se litigants are held to same procedural standards as attorneys)
- In re Baby Boy R., 191 S.W.3d 916 (Tex. App.—Dallas 2006) (constitutional claims must be raised below to be preserved)
- In re D.R., 177 S.W.3d 574 (Tex. App.—Houston [1st Dist.] 2005) (party may waive right to jury by failing to object when court proceeds with bench trial)
- Humitech Dev. Corp. v. Perlman, 424 S.W.3d 782 (Tex. App.—Dallas 2014) (appellate briefing standards require adequate argument and citation of authority)
- Young v. Young, 609 S.W.2d 758 (Tex. 1980) (trial court has wide discretion in dividing marital estate)
- Toles v. Toles, 45 S.W.3d 252 (Tex. App.—Dallas 2001) (presumption in favor of trial court’s property-division discretion)
- Walter v. Walter, 127 S.W.3d 396 (Tex. App.—Dallas 2004) (burden on appellant to show property division was not just and right)
- Mapco, Inc. v. Forrest, 795 S.W.2d 700 (Tex. 1990) (judgment is void only for lack of jurisdiction or capacity to act as court)