*1 lеgal papers difference whether the are VANNERSON, Sunday day Appellant,
served on a other Don except disagree. for Rule 6. We week Dunn, In Wilson v. VANNERSON, Appellee, Dorothy Jeane (Tex.1990), Supreme Court reiterat long-standing that a default ed the rule cannot withstand direct attack
judgment Media, Inc., complains he was not Bell a defendant who Southwestern applicable Appellee/Intervenor. compliance in strict with served Wilson, requirements. defendant No. 01-91-00040-CV. compliance in strict served 106(b), plaintiffs because the Tex.R.Civ.P. Texas, Appeals Court sup motion substitute service was not (1st Dist.). Houston affidavit, ported by required by the by delivery rule. Citation was served June 1993. apartment manager defendant’s July Rehearing Denied receiving defendant address. The admitted ar papers. plaintiff Id. at 834. actually
gued that because the defendant papers
received the suit and knew of suit, judgment
pendency of the the default against him
rendered should stand.
Supreme disagreed, stating, Court “Actual defendant, proper ser
notice to without
vice, upon convey is not sufficient to jurisdiction judg to render default Rather, against jurisdiction is
ment him.
dependent upon citation issued and served provided
in a manner Id. at law.” A improper default
against a defendant who has been compliance in strict with the law.
served
Id. at 837. prohib plain language rule process Sunday. Ms.
its service of compliance was not strict
Nichols served in invalid and
with the law. Service was improper.
trial court’s order was See
Bostwick, at 448. Ms. Nichols’ point
first error is sustained. Because error, we disposition point of this
of our remaining
need not address Ms. Nichols’ error.
points of trial court
We reverse the order of the fur- to that court for
and remand case proceedings.
ther *4 With knowl-
August edge, permitted appellant’s counsel thereaf- August on withdraw ter, pro On Au- proceeded se. 29, 1990, to trial gust the case was called Stansberry. Appel- Judge Thomas before pro- appear. The trial lant did not appellant, and took evi- ceeded without divorce, di- granted the judge dence. debt, apportioned property, vided orders. and entered other trial, coun- appellant obtained After trial. Be- filed motion for new sel and be called a witness cause would for new hearing the motion Stansberry himself from Judge recused hearing, a full hearing the motion. After *5 the motion for Judge Daniel Sklar denied new trial. Appellant’s Trial for New
I. Motion ten, one points of error court abused appellant complains the trial for new denying his motion its discretion of review appropriate standard trial. Guerinot, Houston, Jerry appellant. for requires disturb the trial that we not Fibich, Chandler, T. Rhonda R. Kenneth of an abuse court’s decision the absence Wells, Harry Henry, J. D. Brent L. Lawton Winkle, 660 v. of discretion. Jackson Van Tindall, Houston, appellee. (Tex.1983); v. 809 S.W.2d Litchfield 105,106 (Tex.App.— S.W.2d Litchfield, 794 OLIVER-PARROTT, C.J., Before 1990, writ). no Houston Dist.] [1st O’CONNOR, COHEN and JJ. agо, supreme court in years 50 Over OPINION Lines, Inc., Bus Craddock v. Sunshine (1939), OLIVER-PARROTT, 124 set 134 Tex. Chief Justice. present three criteria that must be forth appeal a post-answer This is may grant a motion the trial court before judgment. years default After mar- judgment: after a default for new trial Vannerson, riage, appellee, Dorothy Jean Vannerson, appellant, Don for di- sued 1) to answer The failure defendant Having previously judg- vorce. obtained of con- result was intentional against appellant, Bell ment Southwestern indifference, part, his but was scious on Media, Inc. intervened divorce action. mistake; to an due accident error, complains appellant In 84 2) alleges a meritorious The defendant grant his of the trial court’s failure to defense; and for new the characterization motion 3) filed at a The motion new trial is debt, and division of granting cause time its will not when receiver, granting appointment of a to the delay injury or otherwise work injunctive and the withdrawal his relief plaintiff. judgment as re- attorney. We affirm the formed. Craddock, Crad 133 S.W.2d at While judg spoke to no-answer default dock facts are that on The uncontroverted ments, equally applicable to the criteria are 23,1990, trial July court sent all post-answer judgments. LeBlanc case be heard on default notification the would LeBlanc, (Tex.1989); Fibich, v. speaking S.W.2d After appellant with Carrell, Ivey (Tex. called Ramirez back and informed her he 1966). spoken Fibich, had with had who assured him the case would be reset. hearing
At the motion for new say everything understood Ramirez to trial, Mrs. Yannerson stipulated appellant appeared be in order with Fibich’s letter had asserted a meritorious defense. Con- appellant’s agreement trary letter. appellant’s brief, statement in his Mrs. Yannerson’s did counsel not admit We note while appellant testified he meritorious, defense only possibility Fibich discussed the of a that it been had Because asserted. of this meeting week, appel- settlement the next stipulation, only we will discuss whether lant never testified Fibich him the set- told prongs met the first and third ting And, passed. indeed would while test. Craddock gave he said Ramirez his tele- phone D.C., Washington, number A. Conscious Indifference ap- asked him call him if he needed to The term “conscious indifference” pear, testify did he received confir- mеans the failure to take some action that passed. mation from the court the case would seem person indicated to a of reason Appellant also made much the fact able sensibilities in the same circum previous that he never had missed a Edmonds, stances. Johnson setting prepaid and that he had three re- (Tex.App. Worth —Fort anytime. turn tickets he could so return writ). not, however, He did introduce evi- hearing At the on his motion for new dence of these tickets. *6 trial, appellant though testified even testimony Judge Stansberry and he was aware the trial set for was Wednes- Ramirez version controverts day, 29, 1990, August Washing- he left for Judge Stansberry the facts. testified he ton Monday, August D.C. on business on had for request received Fibich’s a reset. 27, 28, Tuesday, August 1990. On appel- He said he instructed Fibich Washington lant called the court from D.C. scheduled, were appear to and at that to inquire proceed whether case would time, he decide whether to hear the would to day. next master, himself, case refer it to the Judge Stansberry speak to refused with postpone setting. the trial appellant Instead, directly. appellant Concеrning appellant’s call Wash- spoke Judge Stansberry’s to court coordi- ington, Judge Stansberry testified he in- nator, Esther Ramirez. Ramirez read him structed to appellant Ramirez tell the trial letter, counsel, a that Mrs. Vannerson’s go to scheduled forward unless it was Fibich, Kenneth T. had sent to the court. passed by parties, it was sched- letter, requested In the Mrs. Vannerson a.m., day, uled for and 8:30 the next Judge Stansberry, case be reset so that and everyone expected Judge there. to be master, not Appel- a could hear the case. Stansberry pres- he was could not recall if copy lant said he never received spoke ent when appellant; Ramirez to how- letter; however, Ramirez read it himto ever, eight him Ramirez had worked for telephone. Appellant over the testified Ra- years, her and his instructions to were al- mirez him he told needed to contact Fibich ways followed. and the matter him. discuss with Appellant appellant said he that when called Fi- Ramirez she testified told to bich, him immediately agreed Fibich told about talk to pass and Fibich to Fibich if Appellant agreed reset letter. to the reset. so case and Fibich advised the trial court, testified that Fibich never told appellant appear then did not need to reset, him appear request he appellant would and for trial. day next When say nor did it go back, spoken Fibich was his intention to called he said he had with try August Fibich, ahead and the case agreed pass 29. Fibich to had
665
expected
it
stating
to reset
specifically
case. Ramirez
denied
asked
court
appellant everything appeared
postponed.
she told
to
to be
order,
be in
and he
be notified of
would
[Appellant]
court
The trial
advised
appear.
when to
Ramirez said
never
Fibich
not
through its clerk that the case would
passed.
called to indicate the trial would be
and that Mr. Vannerson
be continued
concerning
testified
Fibich
his conversa-
present
be
at trial.
should
Judge Stansberry,
tion
his
testi-
[Appellant’s]
appear
to
at
failure
mony
was consistent with that
setting
con-
was the result of
judge’s.
appel-
Fibich also testified about
part
his
not
indifference on
scious
telephone
appel-
lant’s
call
him. He said
accident or mistake.
the result of
p.m.
day
lant
him about 4:40
called
findings
fact will
A trial court’s
trial,
before
and informed him he did not
where there is some evi
disturbed
lawyer
go
and did
trial.
have a
not want to
support
them. Na
dence
record
Fibich said he told
of the court’s
Atkinson,
Inv.
v.
254
tional Bond and
Co.
he
appear.
instruction to
Fibich said
did
885,
(Tex.Civ.App.
S.W.2d
887
passed,
not tell
the case would be
—Amarillo
1952,
dism’d).
proba
Where there is
writ
agree
pass
did
the trial.
support
findings, they
tive evidence to
Barnett,
Gotcher
S.W.2d
binding
reviewing
even if
are
on the
(Tex.App.
[14th Dist.]
—Houston
conflicting
suggesting dif
evidence
there
writ),
the court held that where a defen
Aerospatiale Helicop
ferent conclusions.
concerning
in
dant’s statement
conscious
Inc.,
Corp.
ter
Health
Universal
Serv.
uncontroverted,
difference is
then Strack
(Tex.App.
—Dallas
Prewitt,
(Tex.1984),
bein v.
phoned and Mrs. Vannerson’s counsel D.C., prong of the Craddock Washington, and he was third stated granting the a setting. requires test of motion appear not for the trial would delay or other that he had re- for new trial will not cause [Appellant] indicated setting, injury plaintiff. the notice of the had not wise work an to ceived but 666 brief, appellant merely Appellant satisfy
In his makes the has failed to two conclusionary requirements. such, statement he As because three Craddock pay to Mrs. ex has offered Vannerson’s the trial court did abuse its discretion penses, granting overruling of a will new trial motion for new delay, injury upon cause or her. In trial. work exercising finding power, its fact one ten are through Points error over-
court is not to accept bound conclusive ruled. statements Zenith Royal witness. Martinez, 327, Corp. v. 695 S.W.2d 330 Property II. Characterization 1985, writ); (Tex.App. Folsom —Waco 30, appel- In 11 of error Inv., Troutz, Inc. v. complains trial erred in lant its (Tex.App. ref’d Worth —Fort parties’ property characterization n.r.e.). Moreover, replete record Appellant there and debt. claims is no showing pre instances how support evidence insufficient evidence
viously attempted delay the trial. findings. court’s At the time trial court entered A. Review Standard of judgment, pend- default the case had been ing admitted he months. reviewing points, In “no evidence” hired state Senator Parker his at- Carl reviewing only court considers the evi trial, torney was set when case support dence and inferences tend legislative then to post- used continuances finding, disregards all evidence pone the trial. occurred This on at least contrary. Responsive to the inferences four occasions. testified had re- Fibich Am., Sys., Boy Terminal Inc. v. Scouts of peatedly get tried to the case to but (Tex.1989); 666, 668 Davis v. legislative was unable to do so because Antonio, 752 City San S.W.2d continuances filed Senator Fi- Parker. (Tex.1988). If there is evidence of bich also testified he had tried six times to i.e., force, scintilla, probative more than a appellant’s deposition, notice he could support findings, point must be appear get never without finding upheld. overruled and the South State, court order. Transp., ern States Inc. v. (Tex.1989); King’s In re S.W.2d decree, In the final Mrs. Vannerson was Estate, 150 Tex. parties’ residence a sub- awarded (1951). personal property amount of con- stantial However, during reviewing insufficiency tained residence. a factual appel- pending, challenge, ap the 30 months the case was court of of the evidence *8 agreed orders, occupied by temporary weigh, lant examine peals must consider and By temporary pending the orders supports house. of evidence and is con that appeal, appellant occupy trary finding. continues to to the v. Texas Lofton allegations ap- (1986), 804, residence. There 805 Corp., were Brine 720 S.W.2d rev’d, pellant violating (Tex.1989). was tem- court’s 111 384 S.W.2d porary disposing community of finding only orders and should aside the set property, standing and the trial court found the evidence alone is too weak to divorce, ap- finding filed support finding, after Mrs. Vannerson for is so pellant disposed weight of against overwhelming of a substantial amount of the property. manifestly unjust evidence that it is clearly Bain, wrong. 709 S.W.2d v. Cain Considering past conduct of 175, (Tex.1986); 176 Elevаtor Co. v. Otis Fibich, testimony of Mr. there 920, Joseph, (Tex.App.— 749 923 S.W.2d judge certainly upon evidence which the writ). 1988, Houston [1st Dist.] reasonably grant- could conclude that the ing delay Findings of a new trial would have caused of fact in a case tried injury digni- appellee. and would have worked on to the court have the same force
667 as these statements ty jury’s upon jury questions. Appellant as a verdict construes cites us Jackson, admissions City City judicial Lake 559 Clute of 372, Roosevelt, 391, (Tex.Civ.App. 699 S.W.2d S.W.2d Roosevelt —Houston dism’d), for writ n.r.e.). (Tex.App. Paso ref’d writ [14th Dist.] —El admission conclusive, judicial that a findings proposition trial are not court’s in however, dispute as matter complete establishes the issue when statement adversary of the one in appears facts record. v. of law behalf Middleton making such admission. Corp., 687 S.W.2d Kawasaki Steel 1985), (Tex.App. Dist.] [14th —Houston statements We do not construe counsel’s curiam, per n.r.e. 699 S.W.2d complete reading ref'd A judicial admissions. (Tex.1985). The fact judge's findings of it that counsel the record makes clear legal are for and factual suffi reviewable had admitting a meritorious defense them, support “by ciency of the evidence to By no means did counsel asserted. been in are applied the same standards which appellant’s assert- stipulated state he ever legal sufficiency reviewing the or factual true, or that ed meritorious defenses were findings. support jury of the evidence” that Appellant’s proved. the defenses were Inc., King, Ass’n v. Gill Sav. Chair overruled. contention is (Tex.App. 676-77 —Houston 1989), part, [14th Dist.] modified aff'd Proper- Characterization C. General (Tex.1990). Al part, ty though of law a trial court's conclusions provides Family The Texas Code may challenged for factual sufficien be that: cy, legal court’s conclusions drawn trial (a) spouse’s separate property consists A may deter the facts be reviewed to of: mine their correctness. Mercer v. Blud (1) owned or claimed worth, (Tex.App.— marriage; spouse before n.r.e.). Houston writ ref’d Dist.] [1st
(2)
acquired by the
devise,
gift,
during marriage by
spouse
Stipulation
B.
Defense
Meritorious
descent;
state
Appellant asserts Fibich’s
(3)
recovery
personal injuries
regarding
ments
defense
his meritorious
spouse during marriage,
by the
sustained
are
admission the trial court erred
earning
except
recovery
loss of
any
hearing
dividing
property. During
during marriage.
capacity
for new
Fibich
motion
(b)
Community property consists of
following
concerning
made the
statements
separate property,
than
property, other
fulfilled
whether
had
the Crad-
acquired by
spouse during mar-
either
requirements:
dock
riage.
they
stipulate
I will
for the record that
(Vernon Supp.
5.01
§
Ann.
Tex.Fam.Code
alleged the
be-
have
meritorious defense
1993).
provides
“prop-
code also
you probably
cause I think
have that
spouse during or
erty possessed
either
So,
get
allegation
case.
divorce
presumed
marriage
on dissolution
not the
into the merits of whether or
degree
community property. The
proper
or not
irrelevant
*9
division was
property
proof necessary to establish that
inquiry.
convincing
separate
is
property
is
clear and
(Ver-
5.02
evidence.”
§
Tex.Fam.Code Ann.
alleged a
agreed
they
I
that
have
have
Supp.1993).
non
so,
defense;
they
have
don’t
meritorious
trial,
ex-
At
Mrs. Vannerson introduced
prove
ground.
to
that
exhibit one is a
hibits one and two. Trial
as
property
of
Mrs. Vannerson claims
list
is
allegations
separate
Trial exhibit two
property.
her
I think there
sufficient
property
Mrs. Vannerson asserts
defense exists.
a list
meritorious
separate
Separate
property. The
Appellant’s
Property
trial
D.
court found that:
15, 16,
17,
appel-
of error
properties
listed on
Van-
[Mrs.
lant also
property
criticizes the award of
to
given
“1” were
Exhibit
to Mrs.
nerson’s]
him that
the evidence showed was not
gifts during
Vannerson as
the marriage
by
owned
party.
specific
either
item
or
by
prior
were
her
marriage
owned
to
$52,000
appellant complains about is a
Ara-
or
acquired during
were
the marriage by
above,
bian horse and
As
colt.
stated
purchased
inheritance or were
with prop-
evidence to
is the
be evaluated
trial evi-
erty
prior
her
by
marriage.
owned
to
supports
dence. Evidence adduced at trial
property
22. The
items
listed on appellant’s
of mischaracteriza-
assertion
“2”
giv-
Exhibit
were
[Mrs. Vannerson’s]
tion.
en
[appellant]
gifts during
to
as
the mar-
Listed on
trial
Mrs. Vannerson’s
exhibit
riage
prior
or were owned
him
to
two,
item,
horse/colt,
was the
“Arabian
marriage
acquired
or
during
were
SOLD,”
$52,000.
with a value
Mrs.
marriage by
pur-
inheritance or were
Vannerson
after
stated that
she filed for
property
by [appel-
chased with
owned
divorce, appellant
colt,
sold the mare and
prior marriage.
to
lant]
any
proceeds
and she did not
receive
Appellant complains there was no evidence
testimony
of the sale. The
and the trial
support
insufficient evidence to
provide
exhibit
evidence
direct
findings.
disagree.
court’s
We
horse
not
and colt were
owned
either of
trial,
At
asked
Fibich
Mrs. Vannerson
they
at the time
were awarded
following questions concerning
trial ex-
appellant.
to
hibits one and two:
Q: I
going
you
am
show
recognize
what’s been
We
trial court
marked Petitioner’s Exhibit 1.
dividing
has wide
discretion
marital
estate.
Murff,
titled,
A: Yes.
separate
It’s
“Wife’s
Murff
(Tex. 1981),
presume
we
Property.”
properly.
exercised its discretion
Id.
Q: Are the items that are contained on
at 699. The test for abuse of discretion is
property
given
this sheet
you
whether,
opinion
the review
gifts
as
during your marriage or proper-
ing court,
present
appropriate
facts
ty you
prior
your
marriage
owned
action,
rather,
case for the trial court’s
but
property you acquirеd during your mar-
arbitrarily
whether the court
or un
acted
riage by
property
inheritance
that was
reasonably.
Aquamarine Op
Downer v.
purchased
property
prior
owned
erators, Inc.,
(Tex.1985)
241-42
marriage?
denied,
476 U.S.
rt.
106 S.Ct.
ce
Yes,
A:
sir.
(1986).
In dividing
L.Ed.2d 721
Q: Petitioner’s Exhibit 2 which we have
parties,
estate of the
the trial court
identified
Separate Prop-
as “Husband’s
shall
property
order a division
“that
erty,”
property
you
is that
which
ac-
just
right, having
the court
deems
due
knowledge
separate
regard
party
of each
rights
for the
your husband?
marriage.”
children of the
Tex.Fam.Code
Yes,
A:
sir.
3.63(a) (Vernon 1993).
The trial
§
Ann.
testimony
language
This
tracks the
con-
judge may
unequal
order an
division of
5.01(a)
characterizing
tained
section
marital
where
reasonable basis
separate property.
Tex.Fam.
doing
exists for
Massey Massey,
so.
(Vernon
5.01(a)
Supp.1993).
Code Ann. §
(Tex.App.
[1st
—Houston
appear
Because
did
(citing
requested)
Murff,
Dist.]
presented
concerning
no evidence
698-99).
615 S.W.2d at
This Court will
property.
characterization of
*10
correct the trial
division of marital
court’s
11, 12, 13,
property
Points of
only
error
and 14 are
of
when an abuse
discretion
overruled.
has
Murff,
been
615 S.W.2d at
shown.
inventory
698;
be-
considering
It
Mrs. Vannerson’s
Massey,
Massey, at 807 S.W.2d 401-403 $316,300 community property should jury husband committed con verdict that three, but have included on exhibit been fraud, structive trial court was entitled to sepa as Mrs. claimed it all her Vannerson equalization property award wife’s for the personal property on her trial exhibit rate estate); depleted unfairly community one. Reaney v. Reaney, in this Concerning property the listed (court 1974, writ) (Tex.Civ.App.—Dallas no exhibit, the follow- the trial court entered dissipation into took account the husband’s ing finding fact: $53,000 approximately community as “3” contains 23. Petitioner’s Exhibit estate); dividing the sets when Pride acquired by parties property list of Pride, (Tex.Civ.App.— marriage parties[’] during located writ) (trial Dallas rendered a forth on Exhibit home. values set money against the husband for property. “3” the values of are $3,000 concealed). the wife’s share of following conclusion He also entered Considering the evidence concern law: ing alleged receipt sale of horse and listed Mrs. Vanner- proceeds by appellant, of the we find that Inventory property listed and the son’s the existence or nonexistence of horse “3” is commu- on Petitioner’s Exhibit materially time of division did nity property parties. of the right of the just affect division Code, Family to the Texas Pursuant Jacobs, property. See Jacobs presumed to of the (Tex.1985). community property. be Tex.Fam.Code 15, 16, 17 are Points of error over- two, On one and 5.02. exhibits § Ann. ruled. Mrs. Vannerson delineated appel- separate property her Community Property already E. property. We separate lant’s have properly held the trial court found and 28 of error items listed those exhibits to be through 30, appellant the evidence asserts spouse. separate property the listed factually sup- legally insufficient remaining property only can com- findings court’s of fact and port the trial property. munity construing prop- certain conclusions of law attacking the erty community property. Appel- party items As characteriza- property, appellant in tion also the trial court erred bears lant asserts *11 show, proof burden of by clear inventory was never served on him and convincing evidence, that proper the trial court lacks a certificate of service. See property. mischaracterized the Appellant Tex.R.Civ.P. 21a.
did not do so here. Concerning lack of service of the invento-
First, Mrs. Vannerson
ry,
testified the
appellant
items
raises
complaint
this
for the
contained on trial exhibit three
appeal,
were the
first time on
and it is waived. Tex.
n
R.App.P.
parties’ community property;
52(a).
trial exhibit
Concerning the introduc-
introduced;
three was
appellant
evidence,
inventory
did not
tion of the
into
Mrs.
appear
any
at trial and offer
inventory
August
evidence con Vannerson’s
filed on
was
cerning
29, 1990,
proper
characterization of
day
of trial. Attached to the
ty.
uphold
This is sufficient
inventory
A, B,
the trial
were exhibits
and C.
finding
Second,
court’s
ap
and conclusion.
correspond
These exhibits
to trial exhibits
pellant
one, two,
offered no evidence at trial concern
listing
and three.
addition
ing
value of the property complained proposed
property,
division of the marital
of,
any
however,
nor did he offer
testimony
(1)
concern
inventory
referred to
also
ing the
specific
property
characterization of
items.
allegedly disposed
that was
appellant
Where an
does
provide
filed,
values
appellant after the
suit
divorce
was
court,
on
of the property
(2)
to the trial
estate, (3)
community property real
mo-
appeal complain
cannot on
vehicles,
of the trial
boats,
(4)
tor
equipment,
and ski
complete
court’s lack of
information
di
institutions,
accounts with various financial
viding
property.
LeBlanc,
LeBlanc v.
(5)
parties,
debts and
of the
liabilities
(Tex.App. Corpus
joint
both
and several. A review of the
—
1988),
(Tex.
affd,
Christi
Points of ruled. through 30 are overruled. Remaining Property
G. complaining of a Issues division of must be able to demonstrate from evidence in Appellant’s points of error 34 through the record that the unjust division was so 55, raise complaints concerning the trial *13 and unfair as to constitute an abuse court’s division of property and alloca- Wallace, discretion. Wallace v. 623 tion of the debt. Point of error 56 claims 723, S.W.2d 725 (Tex.Civ.App. the trial court’s judgment conclusion in the —Houston 1981, n.r.e.). writ ref’d A trial [1st Dist.] that disposes of all issues court’s division will not be disturbed on between the is erroneous as a mat- appeal appears unless it the record ter of points law. In through of error 57 from that the 62, clearly division was appellant result of asserts the trial court in erred an abuse of Mogford Mog discretion. appointing a v. parties’ receiver to sell the 936, ford, 616 S.W.2d supervise (Tex.Civ.App.— homestead and 944 the division of the personal 1981, n.r.e.). property. San Antonio Points of writ ref’d In this error 63 and urge case, the trial enjoining court erred in record to be considered this him interfering with Mrs. in determining Vanner- Court whether the trial possession son’s property awarded. court abused its discretion is same rec- through Points of error 65 70 address the upon ord which the trial court’s decision error of the trial court in entering orders made; is, the record made at the pertaining and community property August 29, 1990, divorce and that parties. homestead of the supports record the trial court’s division. complaints points contained in of er- Appellant complains also of the trial through ror 34 55 and 56 can be discussed Sugar court’s order that Creek resi- together. sold, proceeds satisfy dence be used mortgage the first lien Internal It must be remembered that the trial liens, Revenue Service balance matters, court has wide in discretion these inuring to the benefit of Mrs. Vannerson. and this indulge every Court must reason- challenge presumption does not able in favor of the trial proper Sugar court’s court’s exercise of its determination Creek discretion. Castle, homestead, Castle v. (Tex. parties’ residence is the but App. writ). challenge does findings no that tax liens [1st Dist.] —Houston The trial court specifically found the have divi- been filed because failed property sion of in the divorce decree was file tax returns appellee’s without knowl- fair, just, equitable; appellee edge. and that
was entitled to a disproportionately higher proceedings, divorce if the parties’ share of the community estate. partitioned, homestead cannot be it is sub community parties, estate of the net ject to sale proceeds. division of the by property of debt secured save and ex- McIntyre McIntyre, cept debt, the Internal Revenue Service (Tex.App. writ); Antonio no see —San $1,379,429.00. Community debts to- Brock, also Brock $1,187,424.00. Appellee taled was awarded (Tex.Civ.App. writ). Ap- Paso —El community property totaling $140,493.00; pellee Sugar testified the Creek residence assigned and was responsibility for debts approximate $450,000.00 had an value of $91,708.00. totaling to ap- net award and, payment after of the first lien mort $48,785.00. pellee was Appellant was gage, equity $390,- of approximately community property awarded totaling However, appellee 000.00. also testified $848,975.00; assigned responsibili- and was there the’property were federal tax liens on $706,717.00. ty totaling for debts The net $701,000.00 in the аmount of as a result of $142,- award to was therefore file, giving failure to prop 258.00. erty negative equity. net She further
This property division of is the testified knowledge appel one she had no file, made the trial court based on the record lant’s failure to as he had told her the presented to it at the divorce trial. One returns appellee’s were filed. It was re- through 56 are of error 34 to lant. Points quest that the be ordered sold liens, overruled. satisfy the tax with the balance of proceeds, inuring to her benefit. any, error 57 Appellant’s testimony, Based on this uncontroverted His ar object to the receiver. believing justified in the trial court was receivership is a drastic gument homestead, equity there was no only in extraordi exercised remedy, to be liens. ordering pay it sold to the IRS situa only in those nary circumstances dan present tions where may levy on undisputed It is that the IRS lost, removed, materially being ger of pay- homestead Texas for the has been argument Appellant’s injured. *14 delinquent federal taxes. U.S. v. ment of courts of rejected by the considered and 2132, 677, 103 76
Rodgers, 461 U.S. S.Ct. this State: (1983). against lien L.Ed.2d 236 The IRS’s in a divorce She action] [the Sugar residence is therefore a Creek contends that under Rem. Tex.Civ.Prac. & one, may upon the IRS valid and one which 1986), 64.001(b)(Vernon Code Ann. § the IRS chooses foreclose. Whether or not only if the may appoint a receiver court rights material to exercise its lien is not a lost, being danger in of was for the trial court. The IRS consideration injured. It is established removed court, in creditor and the trial is a secured (Vernon 3.63 § Tex.Fam.Code Ann. discretion, it the exercise of its considered 1993) divisionof controls the security for the equitable fair and that the divorce, upon [ap- which not the statute pay proceeds lien sold and the used to be pow- The has broad pellant] relies. court creditor. the secured in order aid of a receiver ers to enlist the judgments. effectuate its orders to the tri Appellant also contends left to of a receiver is appointment The in assigning al court erred in to him all court. of the trial the discretion parties come tax liabilities of the from the (Tex. 440, 444 Young, 765 S.W.2d marriage through year Young the calendar v. date of 1988, writ) (citation omit 1986, App. no by party either and all debts incurred —Dallas ted); Bank Parr v. First Statе during marriage see also expressly and not as of 579, (Tex.Civ. 583 507 S.W.2d Diego, San by sumed Mrs. Vannerson. division 1974, writ) (when Antonio App. part by made the trial court as debts was —San request appointment of a considering a community property. of its division by a credi independent in an suit receiver parties’ liabilities are factors to be consid receivership is not tor, necessity right making just in a division. ered applicable to weighed under the rules to be 735, Finn, 658 S.W.2d 748 Finn v. action). ancillary a divorce receivership a 1983, n.r.e.). A (Tex.App.Dallas writ ref’d Also, not sub community property is when authority court has and discretion divorce kind, in divorce court partition ject to liability impose the entire tax prop appoint a receiver and order can spouse. Bene parties on one Benedict v. proceeds divided between erty sold and dict, 692, (Tex.Civ.App.— 698 542 S.W.2d by deemed the trial in a manner (husband 1976, dism’d) Fort Worth fair, equitable. Hai just, court to be court file tax returns and trial failed to 299, Tex. ley Hailey, v. him). liability assigned all tax Consider (1960). The trial court did not abuse did not testimony that she ing appellee’s receiver to appointing its discretion re appellant did not file tаx know that judgments. effectuate its orders turns, cannot said the trial it through over error 57 62 are Points of assigning responsi abused its discretion ruled. Addition appellant. the taxes to bility for above, error 63 points of testimony of the nu As stated ally, given appellee’s Vannerson, complaints about against 66 each raise judgments Mr. merous injunctions en- assign one of the four for the trial court to different it not error was decree court in the final appel- by tered judgments for those responsibility Respectively, injunctions divorce. those Wright, Dallas Tex. (1) prohibit appellant “taking (1931); from any ac- S.W.2d County Hale Davis, tion ... pre- (Tex.Civ.App.— would interfere with or n.r.e.). vent obtaining pos- from Amarillo writ ref’d [Mrs. Vannerson] personal session of the property [awarded injunctions question, first three her]”; (2) prohibit from in although reciting not expressly a time limi- distributing manner showing to others tation, clearly permanent injunc- were videos, cards, letters, “photographs, certain They purpose tions. were entered for the journals, diaries or other hand written enforcing the trial court’s con- memoranda directed to or written [Mrs. cerning property.2 By their division Vannerson]”; (3) require аppellant to va- nature, very injunctions these were no parties’ Sugar cate the Creek residence longer necessary prop- once the division of p.m. 1990; (4) 5:00 on October erty accomplished, and Mrs. Vanner- prohibit appellant going about or en- possession son tering parties’ Sugar Creek residence They temporary awarded to her. were in- after that time and date. The essence of junctions. Although question is some- appellant’s complaint about each of these injunc- what closer in the case of the fourth *15 injunctions is that pleadings there are no to tion, analysis applies we believe the same support the permanent injunc- issuance of a injunction to that as well. tion; he asserts that consequently the trial duties, clarify appellant’s To we will re- power injunctions court had no to enter the form the final decree of divorce so that the it entered. injunctions expressly first three shall state finding that injunctions ap without further order or of the about which court, they operate trial pellant complains shall cease to prop all concern items of possession respective when of the items of erty ownership the in which was at issue property they concern has been turned over the divorce action and which were awarded to Mrs. in Vannerson accordance with the to Mrs. Vannerson. In Morgan Morgan, property in division embodied the final de- (Tex.App. 493-94 —Hous divorce; appellant enjoined cree of is from dism’d), ton writ said we [1st Dist.] going entering Sugar about or the Creek question is no that a trial court “[t]here only during period residence the between order, may issue injunctive an under its 15, 1990, p.m. Monday, 5:00 October action, broad discretion in a divorce to tem pursuant property sale of that to the porarily safeguard community property divorce decree. Points of error 63 from encumbrance or transfer one of 66 are overruled. spouses pending a division.” final respect The same is true with to real 67, 68, Points of error and 69 each raise personal property subject to distribu complaints different about sale of the divorce, tion in the course of a whether parties’ Sugar Creek residence ordered property ultimately found to be com Resрectively, they the trial court. assert munity property separate property. (1) that there was no evidence that the sale Moreover, general, in trial court has parties”; was “in the best interest of the power any proceeding (2) alternative, herent before it to in the that there was insuf- preserve ability evidence; (3) its own to render effective ficient trial give judgment. relief and City proceeds effect to its court’s conclusion that the of the (Ver Appellant always adequate. statutory recog cites 3.70 § scheme Tex.Fam.Code Ann. fact; 3.76(c) Supp.1993) proposition expressly non for the that Mrs. nizes this section states law, "[tjhis remedy adequate subchapter Vannerson had does not. detract from or limit injunctions improper. general power that the were therefore of a court 'to enforce its Appellant’s proposi by appropriate Sprad reliance on 3.70 for this § orders means.” See also Hutchison, misplaced. (Tex. ley tion is Mrs. Vannerson has once litigated right denied) (trial speci App. and established her to the Worth court —Fort property, power” clarify fied items of course retains "inherent to or enforce its relegate litigant expiration plenary power divorce action. To a successful decree after itsof over remedy judgment). to a tantamount to a second suit is not 633k) belonging to sale, payment mortgage empt under section after of the first lien, lien satisfy should be used to there is a person or on which such income liens filed record on federal tax payment for chapter provided this 29, 1990, August as of tax. of such sup “erroneous as a matter of law.” 6331(a) Pamp. (Law.Co-op 26 U.S.C.S. § port points, appellant presents two of these 1993). First, Sug arguments. he asserts that added). in section (emphasis As noted principal ar residence was his resi Creek sets forth 6334 of the Code section exempt under federal dence and therefore otherwise-per- exemptions to the specific levy satisfaction of federal law from for levy. power to scope of the broad missible nonpayment his tax income liens pertinent provisions of section 6334 follows, ap argues income It federal tax. are: here pellant, that it error exempt levy. Property satisfy to a sale of the to order § mini lien. asserts that at a ex- (a) Enumeration. —There shall exam mum the trial court should first have levy— empt from Code ined the federal Internal Revenue provisions exemption creating the to deter (13) Principal exempt in ab- residence necessary mine whether forced sale was approval jeopar- of certain sence Second, satisfy tax liens. dy. Except provided the extent — necessary argues that it indeed (e), principal residence subsection liens, satisfy sell the the tax (within meaning of sec- taxpayer adequately then the court failed 1034). tion property’s account of the status as take parties’ Spe homestead under Texas law. *16 cifically, he the court asserts trial (e) Levy principal residence allowed failed to follow the dictates of Mallou approv- jeopardy of or certain in case 251, (Tex.
Payne Vendig, & 750 S.W.2d 255 Property in subsection described al.— (a)(13) 1988, denied).3 App. We ad writ —Dallas exempt levy if— shall from not be arguments each of in turn. dress these (1) or dis- a district director assistant Section 6331 of the Reve Internal the Revenue trict director of Internal provides pertinent part: nue Code4 (in personally approves writ- Service Levy 6331. and distraint. § ing) levy property, the of such or (a) Authority Secretary. any per- —If (2) Secretary finds the collec- the to pay any neglects son liable tax jeopardy. of tax is in tion days pay refuses to the same 10 within 6334(a)(13),(e)(l, 2) (Law.Co- 26 U.S.C.S. § demand, notice it law- after shall be op Pamp.1993). Secretary to ful for the collect such tax asserts that neither of the events Appellant (and such further sum as shall be suffi- 6334(e)(1) (2) had section described expenses levy) cient to cover the of the the time of trial court’s occurred by levy upon property rights residence,6 the principal as his property (except property judgment;5 such as is ex- findings Although proposition court made no fact this case for the cites subjected matter, that before Texas homestead can be is the record on this there evidence in order, by exempt to a forced sale portion sible, court it of these which can be inferred that both from any pos- be ascertained and analyze —must We do this —if events have occurred. nonexempt portiоn segregated from because, appear momen- further as shall matter exempt portion; segregation and that if is significance light tarily, legal of the it has no possible, then the trial court must determine concerning levy in the text case law discussed any percentage what in advance such sale section and tax under 6331 liens. nonexempt property whole the value order the total and must that the remainder of question Sugar whether the Creek 6. The following debtor be remitted to the value forced sale. principal property residence for 6334(a)(13) exemption is purposes of the section noted, all citations are to 4. Unless otherwise 26, ("Inter- of Title United sections States Code Code”). Code” or "the nal Revenue
Sugar Creek Hammond, residence therefore was not See Hammond v. subject levy to a under section (Tex.Civ.App. 6331 to no Worth —Fort satisfy the upon writ). federal income tax liens by appellant Mallou case cited property; and accordingly it was error distinguishable from the instant case7 for the trial court to order and, event, any inapposite by is rendered satisfy sold to Appеllant’s those tax liens. Rodgers. argument assigns significance undue to an complains Point of error 70 of the trial
exemption levy. from “pay court’s order that Mrs. Vannerson interest, principal, tax and insurance es
Levy under section 6331 is one of but Sugar crow on the Creek Residence award several by distinct methods the fed- which already ed to her.” We have concluded government may eral undertake collection proper, including division was of income taxes. The Code also authorizes awarding Sugar residence Creek personam collection an in civil action Accordingly, to her. Mr. has no against Vannerson delinquent taxpayer under sec- standing any complaint to raise about tion 7401 or a civil action under section only further orders directed at Mrs. Van 7403 to existing enforce an tax lien. See concerning only nerson and generally 4 B. Bittker Lokker, and L. Nixon, awarded to her. Nixon v. Income, Estates, Federal Taxation (Tex.Civ.App. (1992). Property Gifts 111.6 exempt from —Houston dism’d); see levy also Phelan v. Phe under section 6331 can nevertheless lan, (Tex.Civ.App.— impressed have a federal tax upon lien it 1971, writ). Beaumont Point of еrror 70 subject and be to a suit under section 7403 is overruled. Barbier, to enforce that lien. U.S. (9th Cir.1990).
F.2d Exemption levy particular addresses whether one Tax IV. Liens and Income Tax Returns remedy alternative is available to the fed- though of error 79 government, eral undermining rather than appellant claims there is no evidence or validity enforceability under- support insufficient evidence to lying as the debt seems to be findings that tax liens filed have been urging upon Appellant’s argu- us. first against and that Mrs. Vanner- *17 unavailing. ment is knowledge appellant son had no had not filed tax returns.
Appellant’s argument, second that Appellant complains following of the adequately court failed to take findings: property’s account of the status as the parties’ homestead under Texas law when 19. Tax against liens have been filed it Sugar ordered the sale of the Creek the [ap- Vannerson’s’ because residence, is unpersuasive. also It is clear pellant] failed to file income tax returns Sugar that the entire in property, Creek from 1980 to 1986. cluding nonexempt portion both the and the knowledge 20. Mrs. Vannerson had no exempt portion, any, subject to that her husband had not filed income satisfy forced sale under section 7403 to tax returns. Rodgers, the federal tax liens. U.S. v. Mrs. Vannerson testified as follows: 677, 691-94, 2132, 2141-43, U.S. 103 S.Ct. Q: Now, you Mrs. Vannerson are aware (1983). 76 L.Ed.2d equally It is clear of some tax liens that have been filed? authority the trial court had the to purpose. Yes,
order the sold for that A: sir. governed by section 1034 and the cases inter- 7. Mallou involved the forced sale of a Texas preting unnecessary it. It is for us to decide pay homestead to unsecured creditors of one of question, purposes evaluating this appellant’s argument, and for Mallou, parties the to a divorce. 750 S.W.2d at assume, merely we with- deciding, out principal that the was his residence under section 1034. exceed, The motion to withdraw was Q: those liens at to withdraw. And did tax August 6, time, $700,000? by signed order dated granted one in excess of nothing record to There is Yes, A: sir. appellant opposed the motion to indicate Q: you And would tell the court what withdraw; request no for a hear there is you tax information have about those withdraw; appellant ing on the motion to they liens? did come to filed How complaint not this as a in his does raise against you? motion for new trial.8 [appellant] A: From 1980 to failed taxes; my to file income and it’s under- of error 83 and 84 are overruled. Points the care standing that taxes are taken dividing court trial except year and that's where property of the is community is. discrepancy (see points as outlined herein reformed Q: There is still tax lien? substantial 66). though error 63 $701,000.00 showing A: It’s knowledge your Q: you reformed, Did have hus- judgment of trial court As file income band did not taxes? affirmed. Absolutely
A: not. me Because he told did.
we Justice, O’CONNOR, dissenting. this was We find sufficient evidence I dissent.
support findings. appellant Because appear not trial heard
did court Conscious indifference controverting evidence. Points of error are over- mind, my To Mr. Vannerson established ruled. appear his was the result of failure mistake, was not the an accident or Appellant’s Attorney V. Withdrawal Trial set- result of conscious indifference. tings daily in Texas are rescheduled error, In his two last A lawyer calls the this same scenario: complains finding court’s num- court, lawyer informs the if the the court “[Appellant’s] pre- six that counsel ber had reset, agree to party other the case will viously [Appellant] moved withdrаw. passed, lawyer calls other will be oppose did withdrawal and court again calls lawyer, and then approval given to [appellant’s] counsel lawyer agreed. The tell the court the other signed August withdraw Order in this only difference case 1990.” lawyer, called the court and party, his appellate place rules lawyer. other burden on an to see that a suffi *18 considering in presented majority, cient is this to The whether record to Court indifference, requiring Englander show error there was conscious consid- reversal. town, (Tex. Vannerson left not that Kennedy, ered Mr. Co. 1968). hearing he return for the if In context of these of he swore would error, necessary. he an As Mr. Vannerson said in his appellant must show raised brief, pending his his case had opposition to counsel’s withdrawal. divorce been months, and he record reveals counsel over 30 had to leave town The occasionally sought permission the trial court to for business. Mr. Vannerson filing hearing. a to never missed motion withdraw had another Mr. withdraw attorney not as swore that he had return airline of record. does Vannerson of motion tickets with him and have he did not reсeive notice would flown sert merely noting recognize appellant which We that a for new trial an instrument in 8. motion required preserve legal a or factual suffi- not ciency point R.Civ.P. 324(b); complaint, have but could raised this chose not error bench in a trial. to. Tex. 52(d). Tex.R.App.P. We are willing plain- hearing in state it to reimburse the back to Houston time for the was getting thought presence required. expenses his for the incurred in he had was tiff Fibich, talking they After he believed default. The Court said that the fact the agreed to a reset. for a default plaintiff could have moved three-quarters three and initially When Mr. called the Vannerson not, along allega- years, and did court, him a the clerk of the court read to injury delay tion that no would be pass Appel- request by Fibich to the case. caused, enough to meet this element of Ramirez him he needed to lant testified told test. the Craddock contact Fibich and discuss the matter with gave him. Mr. Ramirez his Vannerson majority continuances to uses earlier D.C., telephone Washington, number right that Mr. Vannerson’s to be show ap- asked her to call him if he needed to present at his own trial was waived be- pear. Judge Stansberry he Even testified prove of his failure to this element. cause appellant the instructed Ramirez to tell tri- majority past conduct of considers go al unless it was scheduled forward some Mr. Vannerson and holds there was passed by parties. all the upon judge evidence which the could rea- granting sonably conclude that calling Mr. Vannerson’s actions in delay and new trial would have caused court, attorney, calling the the other appellee. injury would have worked on the again, leaving telephone his number with majority I think the error. Fibich, the clerk and are inconsistent with In the notion of conscious indifference. point error one. I would sustain McKinney, Beard v. (Tex.Civ.App. [1st Dist.] —Houston writ), lawyer’s this Court held that a ac- setting in taking discovery
tions
case for trial were inconsistent with the
notion of conscious indifference. here So
too, should consider that the relevant we
inquiry hearing. day is the before the To- day’s holding looking at whether Mr. JACKSON, Appellant, D. Yvonne week, Vannerson left town at all that will jeopardize plans travel and business litiga- Texas, Appellee. lawyers involved The STATE of tion. No. B14-92-00275-CR. Texas, Appeals Court Delay injury plaintiff (14th Dist.). Houston analyzing prong third the Crad- test, requires the
dock which June granting of motion for show new Rehearing July Denied delay or trial will not cause otherwise work injury plaintiff, majority to the holds did not meet his burden. majority criticizes Mr. Vannerson be- merely pay offered to Mrs. cause Van- *19 expenses granting and said the
nerson’s delay not cause or work
a new would injury upon I know her. do not what
else Mr. Vannerson could have said to meet Angelo Champion
this element. In Res- Co., Equipment
taurant
(Tex.1986), Supreme it Court said that necessary
was not for the defendant