Wendy Mincer v. Brian Mark Summers, 02-21-00150-CV

Background

Wendy Mincer filed for divorce (Nov. 2019), attached Denton County standing order restricting dissipative conduct and authorizing only certain routine/preexisting expenditures.
While the case was briefly nonsuited and later reinstated, Wendy withdrew $56,631.50 (Nov. 22, 2019) and later $28,548.43 (Dec. 20, 2019) from the parties’ joint account.
Brian Summers moved to enforce the standing order, alleging waste and seeking contempt (including jail), disgorgement, fines, and attorney’s fees; Wendy admitted the withdrawals but claimed they were authorized living/business/legal expenses.
At the Zoom enforcement hearing the court initially did not admonish Wendy about a right to appointed counsel under Tex. Fam. Code §157.163; midway through the hearing Brian withdrew his contempt request, the court declined to appoint counsel, and later entered an enforcement order requiring deposit of $28,548.43, payment of fees, and a $500 fine.
At final bench trial (after partial summary-judgment rulings), the court granted divorce (adultery), reconstituted community estate for alleged waste, awarded illusory assets to Wendy (including waste figures of $33,534.43 and $56,631.50), and awarded two North Carolina properties to Brian. Wendy appealed pro se.

Issues

Issue	Plaintiff's Argument (Wendy)	Defendant's Argument (Brian)	Held
1. Failure to admonish re: right to appointed counsel at enforcement hearing	Court erred under Fam. Code §157.163 by not first determining whether incarceration was possible and by failing to admonish Wendy of right to counsel — violated due process.	Any error was harmless because Brian withdrew contempt request during the hearing; no contempt/commitment order was entered; once incarceration was off the table no right to appointed counsel attached.	Affirmed. Error (if any) was not harmful because Brian abandoned the contempt request and no contempt/commitment order issued. Court’s enforcement findings survive.
2. Award of North Carolina properties (Rule 11 / alleged oral settlement)	Wendy says parties had an on-the-record agreement at trial to sell those properties and split proceeds (Rule 11 oral agreement).	There was no Rule 11-compliant settlement: no written signed agreement and no clear, entered-on-record oral agreement dictating enforceable terms.	Affirmed. Testimony showed only proposals; no Rule 11 agreement was entered of record, so court did not err in awarding the properties to Brian.
3. Waste award ($28,548.43 portion / $33,534.43 total) — sufficiency and proper characterization as waste/fraud on the community	Withdrawals were for living expenses authorized by the standing order; can’t be recouped as waste; evidence insufficient to show lack of consent or misuse.	Record shows large, atypical prepayments (year of rent, 6 months’ insurance) inconsistent with prior month-to-month practice; Brian did not consent — presumption of waste; more-than-scintilla evidence supports enforcement and inclusion in reconstituted estate.	Affirmed. Evidence legally and factually sufficient that the $28,548.43 withdrawal was not authorized by the standing order and constituted waste; inclusion in the waste/reconstitution award was proper.
4. Waste award ($56,631.50) and alleged overvaluation / missing findings	Court improperly awarded a separate $56,631.50 waste figure (a "phantom" amount) and failed to make findings explaining it; division is not just-and-right.	Wendy admitted the $56,631.50 withdrawal at trial; absence of additional findings not preserved because Wendy failed to request amended/additional findings under Rule 298; evidence supports the separate award.	Affirmed. Trial evidence supports the $56,631.50 finding and Wendy waived any complaint about omitted findings by not requesting additional findings.

Key Cases Cited

Murff v. Murff, 615 S.W.2d 696 (Tex. 1981) (trial court has wide discretion in dividing marital estate; reversal only for abuse of that discretion)
Mann v. Mann, 607 S.W.2d 243 (Tex. 1980) (abuse-of-discretion standard for property division)
Padilla v. LaFrance, 907 S.W.2d 454 (Tex. 1995) (Rule 11 requires settlement to be written and filed or made in open court and entered of record)
Ex parte Acker, 949 S.W.2d 314 (Tex. 1997) (failure to comply with admonishment/appointment requirements can render contempt/commitment orders void)
Catalina v. Blasdel, 881 S.W.2d 295 (Tex. 1994) (appellate review of sufficiency of evidence for trial court factual findings)