Sharyon Gathe v. Joseph C. Gathe, Jr. , 376 S.W.3d 308 ( 2012 )

Reversed and Remanded and Opinion filed August 9, 2012.
In The
Fourteenth Court of Appeals
NO. 14-11-00401-CV
SHARYON GATHE, Appellant
V.
JOSEPH C. GATHE, JR., Appellee
On Appeal from the 308th District Court
Harris County, Texas
Trial Court Cause No. 2006-69829
OPINION
Appellant, Sharyon Gathe, appeals the divorce decree entered by the trial court on
February 7, 2011, between her and appellee, Joseph C. Gathe, Jr. We reverse and
remand.
BACKGROUND
On November 3, 2006, both Sharyon and Joseph filed their respective petitions for
divorce, and the cases were subsequently consolidated into the action filed by Sharyon.
On May 16, 2007, Judge Georgia Dempster signed an order on temporary support,
providing for the payment of ―fixed expenses‖ and other sums to be disbursed to the
parties ―to be used at the respective client’s discretion for personal expenses.‖
On September 24, 2008, Judge Dempster struck Sharyon’s jury demand for her
counsel’s failure to attend a pretrial conference, and ordered the parties to attend
mediation. Judge Dempster conducted a bench trial from September 29, 2008, to October
1, 2008, and granted the divorce but did not issue a ruling on the property issues or
children’s issues. At an October 29, 2008 status conference, Judge Dempster announced
that she was refusing to accept the parties’ mediated settlement agreement on custody
issues, and stated that she ―want[ed] a trial on custody.‖ The bench trial addressing
custody occurred on November 13 and 14, 2008. On November 14, 2008, Judge
Dempster orally rendered judgment by granting the divorce, adopting Joseph’s proposed
property division, and ruling on the children’s issues. On March 27, 2009, Judge
Dempster signed the divorce decree.
On April 27, 2009, Sharyon filed a motion for new trial, raising a number of
complaints, including that the trial court erred by not including accounts receivable from
Joseph’s medical practice from August 31, 2008, through November 14, 2008—the date
of oral rendition of judgment—in the division of property, and that the terms regarding
the children’s extracurricular activities were vague and unenforceable. On June 9, 2009,
Judge Lisa Millard held a hearing on Sharyon’s motion for new trial. That same day,
Judge Millard signed an order granting the motion for new trial on the accounts
receivable issue and the children’s extracurricular activities issue. Judge Millard also
granted the motion to reform the judgment to be consistent with the parties’ mediated
settlement agreement on the children’s issues. Judge Millard’s order states, in relevant
part:
1. It is therefore ORDERED that the Final Decree of Divorce signed
March 27, 2009 in this cause is hereby set aside for all purposes and that a
new trial in this cause is granted on issues [sic] No. 13 and Issue No[.] 7 as
contained in Petitioner[’s] motion which necessitates a new trial on the
division of property.
2
* * *
3. It is further ORDERED that the Final Decree of Divorce signed on
March 27, 2009 in this cause is hereby set aside and that a modified and
reformed final judgment shall be entered to reflect modification and
reformation consistent with enforcement of the parties[’] mediated
settlement agreements as executed in this cause.1
At a hearing on September 28, 2009, Judge Dempster denied Joseph’s request to
set aside Judge Millard’s order granting the motion for new trial, and ordered that the
temporary orders were in effect.2 Due to Judge Dempster’s health issues, the case was
assigned to Judge Thomas Stansbury on June 29, 2010. On September 15, 2010, Judge
Stansbury orally granted Joseph’s request to limit the scope of the new trial to the amount
of accounts receivable related to Joseph’s medical practice.
1
The following exchange took place before Judge Millard:
THE COURT: . . . The Court is going to grant the motion to reform on the
ground that the Court failed to enforce the terms of the parties’ binding mediated
settlement agreement. And the Court grants the motion for new trial on Issue No. 7 and
13. . . .
MS. SMYTH [Sharyon’s counsel]: Your Honor, to the extent that No. 7 relates
to a property division, is that a new trial on that issue?
THE COURT: Yes, ma’am.
* * *
MR. NASS [Joseph’s counsel]: So, Judge, if I understand your ruling, the motion
for new trial is exclusively on Issue 7 and 13?
THE COURT: It is, but y’all understand the law, right?
MS. SMYTH: Right. That it’s as to the property division in its entirety because
we can’t piecemeal that issue, Judge.
THE COURT: Yes.
2
Initially, Judge Dempster granted Joseph’s motion to reconsider, but then denied it at the end of
the hearing. The primary issue at the hearing was the method for determining the amount of the accounts
receivable and distributing them as ordered in the decree. The court-appointed auditor testified by phone
at the hearing that the method provided in the decree was ―unworkable‖ and would require post-divorce
division of property ―four and five years out and [would be] very expensive.‖ The auditor testified that it
would be less expensive to retry that issue and have a new order than to continue with ―what [he] ha[d]
been charged to do.‖ Sharyon’s attorney stated that the trial court could modify the judgment, without a
new trial, to change the method for dividing the accounts receivable. Judge Dempster agreed but stated,
―I really do not want to open this up, but I don’t think I have any choice. I’m going to have to reconsider
the Motion to Reconsider and I’m going to deny it.‖ Judge Dempster ordered that the temporary orders
were in effect and that the inventories be updated.
3
On December 14, 2010, Judge Stansbury entered an ―Order Releasing Funds‖
stating, in relevant part: ―To eliminate any confusion, any and all temporary orders for
interim support that may be construed to be in effect in this case are superceded by this
order.‖ The trial court further ordered that a certain brokerage account ―referred to on
page 40 of the Decree of Divorce entered by the Court on March 27, 2009 . . . shall be
divided as directed in said Decree.‖ The March 27, 2009 decree had awarded Sharyon
52.34% of that account.
On January 14, 2011, Judge Stansbury signed the following Order for New Trial
and Scheduling Order, in relevant part:
The Court finds that the Final Decree of Divorce (―Decree‖) was
signed in this case on March 27, 2009, and that the Decree is fully
enforceable in all respects except for the two points on which this Court
grants the Motion for New Trial.
Specifically, the Court grants the Motion for New Trial on the
following specific points:
1. The Court erred in signing off on the terms contained on pages 19
and 20 of the Decree under the heading ―b. Extracurricular
Activities‖ because such terms are vague, ambiguous, confusing and
generally unenforceable and those terms need to be made
enforceable; and
2. The Court erred when it fixed each party’s fifty percent (50%)
interest in the accounts receivable in the Joseph C. Gathe, Jr. MD PA
as of August 31, 2008 because that was prior to the trial of the case,
and the Court should have fixed each party’s fifty percent (50%)
interest in the accounts receivable in the Joseph C. Gathe, Jr. MD PA
(the ―Practice‖) as of November 14, 2008, which was the last day of
this case.
On February 7, 2011, Judge Stansbury held a new trial hearing and signed a new
decree. As relevant here, the new decree awarded Joseph and Sharyon each 50% of the
accounts receivable of Joseph’s medical practice as of November 14, 2008. With respect
to the evidence heard, the February 7, 2011 decree stated:
On September 29 through October 1, 2008 and November 13
through November 14, 2008 the Court heard this case. The Court also
considered evidence presented on June 9, 2009; September 28, 2009;
4
September 15, 2010; December 13, 2010; and February 7, 2011.
With respect to the date of the decree, the new decree stated:
This divorce judicially PRONOUNCED AND RENDERED in court
at Houston, HARRIS County, Texas, on November 14 2008 and further
noted on the court’s docket sheet on the same date, but signed on February
7, 2011.
On April 29, 2011, Sharyon filed her notice of appeal. On May 23, 2011, Judge
James Lombardino held a hearing on Sharyon’s request for temporary orders pending
appeal, and denied her request.
Sharyon brings the following five issues in this appeal: (1) the trial court erred in
limiting the scope of the new trial; (2) the failure of the trial court to issue findings of fact
and conclusions of law prevents Sharyon from effectively presenting her appeal; (3) the
evidence is legally and factually insufficient to support the division of property in the
February 7, 2011 decree; (4) the evidence is legally and factually insufficient to support
the granting of the parties’ divorce; and (5) the trial court erred by reciting in the
February 7, 2011 decree that judgment was rendered on November 14, 2008. As an
initial matter, Joseph claims, in his first counter-point, that Sharyon’s appeal should be
dismissed because she has accepted the benefits of the judgment she is appealing.
ANALYSIS
Acceptance of Benefits Doctrine
A party who accepts the benefits of a judgment is estopped to challenge the
judgment on appeal. Tex. State Bank v. Amaro, 87 S.W.3d 538, 544 (Tex. 2002); Carle
v. Carle, 149 Tex. 469, 234 S.W.2d 1002, 1004 (1950). ―A litigant cannot treat a
judgment as both right and wrong, and if he has voluntarily accepted the benefits of a
judgment, he cannot afterward prosecute an appeal therefrom.‖ Carle, 234 S.W.2d at
1004. The doctrine arises frequently in divorce cases in which one spouse accepts certain
assets awarded by the judgment and then seeks to appeal the remainder of the judgment.
Williams v. LifeCare Hosps. of N. Tex., L.P., 207 S.W.3d 828, 830 (Tex. App.—Fort
Worth 2006, no pet.); Waite v. Waite, 150 S.W.3d 797, 803 (Tex. App.—Houston [14th
5
Dist.] 2004, pet. denied).
The burden is on the appellee to prove that the appellant is estopped by the
acceptance of benefits doctrine. Waite, 150 S.W.3d at 803. Once the appellee establishes
the appellant’s acceptance of benefits, the appellant must establish either that the doctrine
does not apply or that an exception to estoppel by acceptance of benefits applies.
Sprague v. Sprague, 363 S.W.3d 788, 793 (Tex. App.—Houston [14th Dist.] 2012, pet.
filed). The doctrine does not apply when (1) the appellant’s acceptance of the benefits is
due to financial duress or other economic circumstances, or (2) the appellant’s right to the
benefit accepted could not possibly be affected by reversal of the judgment on the
grounds appealed. Williams, 207 S.W.3d at 830; Waite, 150 S.W.3d at 803–04. The
acceptance of cash benefits is an exception to the doctrine. Demler v. Demler, 836
S.W.2d 696, 698 (Tex. App.—Dallas 1992, no writ), disapproved on other grounds,
Dallas Mkt. Ctr. Dev. Co. v. Liedeker, 958 S.W.2d 382, 386 (Tex. 1997) (per curiam)
(―Acceptance of cash benefits has been held as an exception to the general rule
announced in Carle.‖); see also Sprague v. Sprague, 363 S.W.3d 788, 793 (Tex. App.—
Houston [14th Dist.] 2012, pet. filed) (explaining that the acceptance of benefits doctrine
does not apply if the benefit accepted was cash, the use of which would not prejudice the
appellee).
Joseph contends that the March 27, 2009 decree was only partially set aside by
Judge Millard’s order granting Sharyon’s motion for new trial, such that it was still ―fully
enforceable‖ as determined by Judge Stansbury in his January 14, 2011 order for new
trial. Therefore, because the March 27, 2009 decree purportedly was still in effect,
Joseph posits that Sharyon accepted benefits awarded under that decree, in addition to
accepting benefits under the February 7, 2011 decree. Sharyon, on the other hand, asserts
that the March 27, 2009 decree was completely set aside by Judge Millard’s order
granting her motion for new trial and, therefore, she could not have accepted benefits
awarded under that decree. Sharyon further argues that she did not accept benefits under
the February 7, 2011 decree or, if she did, she satisfied one of the exceptions to the
6
doctrine.
Before we address whether Sharyon accepted any benefits, we first must
determine what effect Judge Millard’s order granting Sharyon’s motion for new trial had
on the March 27, 2009 decree, and whether Judge Stansbury could find that the March
27, 2009 decree was ―fully enforceable,‖ with the exception of two issues, when he
signed the January 14, 2011 order for new trial and scheduling order.
Granting a new trial has the legal effect of vacating the original judgment and
returning the case to the trial docket as though there had been no previous trial or hearing.
Markowitz v. Markowitz, 118 S.W.3d 82, 88 (Tex. App.—Houston [14th Dist.] 2003, pet.
denied). When a motion for new trial is granted, the original judgment is set aside and
the parties may proceed without prejudice from previous proceedings. Id. Thus, when
the trial court grants a motion for new trial, the court essentially wipes the slate clean and
starts over. Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex. 2005).
Joseph claims that Judge Millard only partially set aside the March 27, 2009
decree as provided by Rule 320 of the of the Texas Rules of Civil Procedure, which
provides, in relevant part:
New trials may be granted and judgment set aside for good cause, on
motion or on the court’s own motion on such terms as the court shall direct.
. . . When it appears to the court that a new trial should be granted on a
point or points that affect only a part of the matters in controversy and that
such part is clearly separable without unfairness to the parties, the court
may grant a new trial as to that part only . . . .
TEX. R. CIV. P. 320. We do not agree that Judge Millard ordered a new trial on only one
property issue or that the March 27, 2009 decree was not set aside in its entirety. Under
Judge Millard’s order, the March 27, 2009 decree was ―set aside for all purposes‖ and a
new trial was granted on the accounts receivable from August 31, 2008 to November 14,
2008, ―as contained in Petitioners [sic] motion which necessitates a new trial on the
division of property.‖ Judge Millard’s order clearly sets aside the entire March 27, 2009
decree and orders a new trial on the division of property, not just on the accounts
7
receivable issue.
Moreover, the issue of divorce and the issue of property division are not severable.
Herschberg v. Herschberg, 994 S.W.2d 273, 277 (Tex. App.—Corpus Christ 1999, no
pet.); Hollaway v. Hollaway, 792 S.W.2d 168, 170 (Tex. App.—Houston [1st Dist.]
1990, writ denied). Because Section 7.001 of the Texas Family Code makes the division
of property in a divorce action mandatory, it is error for the trial court to sever the issue
of divorce from the issue of property division.3 Phillips v. Phillips, 75 S.W.3d 564, 567
(Tex. App.—Beaumont 2002, no pet.); Herschberg, 994 S.W.2d at 277; Reed v.
Williams, 545 S.W.2d 33, 34 (Tex. Civ. App.—San Antonio 1976, no writ). Rule 320
applies to divorce cases, and a trial court may grant a partial new trial on property issues.
Vautrain v. Vautrain, 646 S.W.2d 309, 315 (Tex. App.—Fort Worth 1983, writ dism’d).
However, ―[i]n the event the court seeks to grant a partial new trial on certain property
issues, it must grant a new trial on all issues since they may not be severed, or treat the
order granting a divorce as interlocutory and proceed to consider the property issues, or
what remains of them, on new trial.‖ Id.
Therefore, Judge Millard’s order ordering a partial new trial on the property
division rendered the divorce interlocutory, and there was no final judgment. See
Holloway, 792 S.W.2d at 170; Underhill v. Underhill, 614 S.W.2d 178, 181 (Tex. Civ.
App.—Houston [14th Dist.] 1981, writ ref’d n.r.e.); In re Marriage of Johnson, 595
S.W.2d 900, 903 (Tex. Civ. App.—Amarillo 1980, writ dism’d w.o.j.). Thus, Sharyon
and Joseph were still married. See Vautrain, 646 S.W.2d at 316 (―The divorce was
interlocutory until the disposition of all issues . . . and the parties remained married up
through that date.‖). As such, from June 9, 2009, to January 14, 2011, there was no
divorce, no final decree, and no final judgment.
Joseph contends, in the alternative, that Judge Stansbury, by his January 14, 2011
3
Section 7.001 provides: ―In a decree of divorce or annulment, the court shall order a division of
the estate of the parties in a manner that the court deems just and right, having due regard for the rights of
each party and any children in the marriage.‖ TEX. FAM. CODE ANN. § 7.001 (West 2006).
8
order, ―ungranted‖ Judge Millard’s order granting the new trial, reinstated the March 27,
2009 decree, and granted a new trial with an express limitation on the scope of the new
trial. The trial court has plenary power to set aside an order granting a new trial any time
before a final judgment is entered. In re Baylor Med. Ctr. at Garland, 280 S.W.3d 227,
231 (Tex. 2008) (orig. proceeding). Judge Stansbury’s January 14, 2011 order does not
explicitly set aside Judge Millard’s new trial order. Instead, it finds that the March 27,
2009 decree is ―fully enforceable in all respects except for the two points on which this
Court grants the Motion for New Trial.‖
However, even if Judge Stansbury had ―ungranted‖ the motion for new trial made
the subject of Judge Millard’s order granting the new trial, such action did not
automatically reinstate the March 27, 2009 decree. The granting of a motion for new trial
causes the case to be reinstated on the docket as if no trial had occurred, and an oral
pronouncement of judgment and a written judgment based on the trial are wiped clean.
In re Dep’t of Family & Protective Servs., 273 S.W.3d 637, 644 (Tex. 2009) (orig.
proceeding). When the trial court ―ungrants‖ a new trial, the original judgment cannot be
reinstated; rather, the trial court must enter a new judgment. Id. Therefore, the March
27, 2009 decree was not reinstated, but was still set aside for all purposes and was
interlocutory.
Having determined that the March 27, 2009 decree was interlocutory rather than
final, we conclude that Sharyon could not have accepted benefits of the March 27, 2009
decree.
Joseph claims Sharyon accepted benefits from checks totaling $151,000 in March
2009, representing 50% of proceeds from accounts related to ―drug studies‖ for
pharmaceutical companies, by expending those funds. Sharyon was awarded 50% of
drug study accounts in the March 27, 2009 decree. However, as addressed above, Judge
Millard set aside the March 27, 2009 decree in its entirety and, therefore, Sharyon could
not have accepted benefits from it.
9
Joseph contends that Sharyon accepted benefits by spending over $300,000 of a
brokerage account awarded to her, which contained $573,000 in securities, leaving only
$200,000 in the account by the time of the May 23, 2011 hearing on Sharyon’s request
for temporary orders pending appeal. The March 27, 2009 decree, which was set aside,
awarded Sharyon 52.34% of that brokerage account. On June 10, 2010, Judge Don Ritter
signed an order permitting Sharyon to withdraw ―not more than $30,000.00‖ from that
account. Furthermore, on December 14, 2010, Judge Stansbury signed an ―Order
Releasing Funds,‖ specifically ―award[ing] 52.34% of the balance . . . less the sum of
$30,000 and any addition sums, if any, withdrawn‖ by Sharyon ―at any time since May
14, 2010.‖ Sharyon testified at the May 23, 2011 hearing that she had had access to that
account since December 2010. However, there was no final judgment in December 2010,
as the March 27, 2009 decree had been set aside in its entirety. The February 7, 2011
decree also awarded Sharyon 52.34% of that account, ―which was previously divided
pursuant to the court’s order dated December 14, 2010.‖ Joseph has not shown to what
extent Sharyon has spent any money from that account after February 7, 2011.
Joseph asserts that Sharyon accepted benefits because he gave her a check in the
amount of $169,092 as part of the property division. However, Sharyon testified at the
May 23, 2011 hearing that she had not negotiated the check.
Joseph claims that Sharyon accepted the benefits because she took out a mortgage
on her cars to pay for private school tuition for their daughter for the 2010–11 school
year. Sharyon testified at the May 23, 2011 hearing that she did not have the resources to
pay the tuition, and she already had paid off the mortgage on her cars. Joseph states that
Sharyon admitted at the May 23, 2011 hearing that Joseph had paid private school tuition
for every year prior to 2011. However, Joseph testified at that same hearing that he did
not pay their daughter’s tuition for the 2010–11 school year because Sharyon had
enrolled her in a different school without Joseph’s consent or knowledge. Moreover,
Joseph does not state when Sharyon mortgaged her cars. If Sharyon mortgaged her cars
prior to the February 7, 2011 decree, then there was no final judgment from which
10
Sharyon could accept benefits.
Joseph argues that Sharyon has accepted the benefit of the judgment by living in
the family home with no mortgage. Both the March 27, 2009 decree and the February 7,
2011 decree awarded Sharyon the family home. However, Joseph admitted at the May
23, 2011 hearing that he had not signed over the special warranty deed on the house.
Sharyon has not sold and is unable to sell the house.
Joseph avers that Sharyon accepted benefits because she was awarded $200,000 in
stock and bonds in the property division. However, Sharyon testified at the May 23,
2011 hearing that she had not used the funds from those stocks and bonds.
Joseph claims that Sharyon accepted benefits because she cashed out an IRA that
was awarded to her. Joseph testified at the May 23, 2011 hearing that two IRAs were
awarded to Sharyon in the divorce decree—one in her name and one in his name. Joseph
testified that he transferred the money from the IRA that was in his name to the IRA that
was in Sharyon’s name on February 25, 2011. No current statements of the accounts that
were in Sharyon’s name were produced at the May 23, 2011 hearing. Sharyon admitted
that she cashed out one of the IRAs to pay bills. Sharyon testified any funds she
expended were due to economic necessity, and she presented evidence on her monthly
expenses, which Joseph did not controvert. Moreover, the acceptance of cash benefits is
an exception to the acceptance of benefits doctrine. Sprague, 363 S.W.3d at 793;
Demler, 836 S.W.2d at 698.
In summary, we conclude that Sharyon could not have accepted benefits from a
non-existent March 27, 2009 decree. To the extent Joseph adduced any evidence that
Sharyon accepted benefits of the February 7, 2011 decree, we conclude that she
established economic necessity. We overrule Joseph’s first counter-point.
Assets Acquired between November 14, 2008, and February 7, 2011
In her first issue, Sharyon argues that the trial court erred by not considering the
accumulation of assets from November 14, 2008, to February 7, 2011. We agree and find
11
the Fort Worth Court of Appeals’ opinion in Vautrain relevant to this issue.
In Vautrain, the trial court granted a partial new trial with respect to the division of
certain property. 646 S.W.2d at 310–11. The trial court held that the oral judgment
pronounced on May 29, 1981, was final and refused to consider any community property
that was acquired, changed, or increased between the May 29, 1981 oral judgment and
the new judgment that was orally pronounced on November 19, 1981, after the new trial
hearing. Id. at 311. The court of appeals agreed with the appellant’s position that the
trial court’s granting of a partial new trial made the original written judgment
interlocutory and, therefore, the parties were not finally divorced as of the date of the
original oral rendition on May 29, 1981. Id. at 312.
The Vautrain court held that, by granting a partial new trial, the trial court
rendered the divorce decree interlocutory, reserving other property issues for later
determination, and the parties could not be finally divorced and thus remained married
until the disposition of all property issues at the new trial hearing. Id. at 316. ―Since the
parties were still married all the applicable community property law in force in the State
of Texas applied to any increases or acquisitions of community property from and after
May 29, 1981.‖ Id. Therefore, the trial court erred by not hearing evidence on, and
disposing of, all community property that came into the estate between original oral
rendition on May 29, 1981, and judgment rendered after the new trial hearing on
November 19, 1981. Id.
Joseph asserts that Vautrain does not apply to this case because there was no
second rendition of judgment or two years’ accumulation of assets. We disagree. Once
Judge Millard granted the motion for new trial and set aside the March 27, 2009 decree, it
was as if the case had never been tried. See In re Dep’t of Family & Protective Servs.,
273 S.W.3d at 644; Markowitz, 118 S.W.3d at 88. Even if Judge Stansbury had
―ungranted‖ the new trial granted in Judge Millard’s order, the March 27, 2009 decree
was not automatically reinstated. Judge Stansbury would have had to render a new
judgment. See In re Dep’t of Family & Protective Servs., 273 S.W.3d at 644. Moreover,
12
the granting of a partial new trial on the property division rendered the divorce decree
interlocutory, and there could be no final judgment until the trial court disposed of the
property issues. See Holloway, 792 S.W.2d at 170; Underhill, 614 S.W.2d at 181; In re
Marriage of Johnson, 595 S.W.2d at 903. Therefore, there was a second rendition of
judgment on February 7, 2011, despite Judge Stansbury’s (1) finding the March 27, 2009
decree ―fully enforceable‖ with the exception of the two issues, and (2) dating the decree
as having been in effect as of Judge Dempster’s November 14, 2008 oral rendition of
judgment. We conclude that the trial court erred by not considering assets which had
accumulated between November 14, 2008, and February 7, 2011. See Vautrain, 646
S.W.2d at 316.4 We sustain Sharyon’s first issue.
Sufficiency of the Evidence Supporting the February 7, 2011 Decree
In her third and fourth issues, Sharyon argues the evidence is legally and factually
insufficient to support (1) the property division in the February 7, 2011 decree, 5 and (2)
the granting of the parties’ divorce.6 Sharyon argues that because the March 27, 2009
decree was set aside and not reinstated, evidence presented at the original trial before
Judge Dempster cannot be used to support the February 7, 2011 decree. Joseph responds
that Sharyon’s position would render moot the trial court’s authority to either grant a
partial new trial or ungrant a motion for new trial. We disagree with Joseph’s contention.
4
In an offer of proof at the February 7, 2011 new trial hearing, Sharyon’s attorney cross-
examined Joseph about the profitability of his medical practice in 2009 and 2010. Joseph testified that he
―ma[de] more money than [he] spent,‖ but he did not know ―the amount of income earned‖ through his
medical practice in 2009 or 2010.
5
The February 7, 2011 decree states that the division of the parties’ marital estate is just and
right, having due regard for the rights of each party and the children of the marriage. See TEX. FAM.
CODE ANN. § 7.001 (providing that, in a decree of divorce or annulment, the court shall order a division
of the estate of the parties in a manner that the court deems just and right, having due regard for the rights
of each party and any children of the marriage).
6
The February 7, 2011 decree granted the parties’ divorce ―on the ground of insupportability‖
and found that Sharyon had been a domiciliary of Texas for the preceding six-month period and a resident
of the county in which the suit was filed for the preceding ninety-day period. See TEX. FAM. CODE ANN.
§ 6.001 (West 2006) (providing that the trial court may grant divorce on insupportability); id. § 6.301(1)
(West 2006) (providing that a suit for divorce may not be maintained unless the petitioner or respondent
has been a domiciliary of this state for the preceding six-month period and a resident of the county in
which the suit is filed for the preceding ninety-day period).
13
As explained above, Judge Millard’s order set aside the March 27, 2009 decree for
all purposes. Judge Stansbury’s purported ―ungranting‖ of the new trial ordered in Judge
Millard’s new trial order and finding the March 27, 2009 decree ―fully enforceable‖ did
not reinstate the March 27, 2009 decree or November 14, 2008 oral rendition of
judgment. See In re Dep’t of Family & Protective Servs., 273 S.W.3d at 644. Moreover,
the granting of a partial new trial on the division of property rendered the March 27, 2009
decree interlocutory, and there could be no final judgment until the trial court had
disposed of the property issues. See Holloway, 792 S.W.2d at 170; Underhill, 614
S.W.2d at 181; In re Marriage of Johnson, 595 S.W.2d at 903.
The February 7, 2011 decree states with respect to the evidence heard in this case:
On September 29 through October 2008 and November 13 through
November 14, 2008 the Court heard this case. The Court also considered
evidence presented on June 9, 2009; September 28, 2009; September 15,
2010; December 13, 2010; and February 7, 2011.
While Rule 18 of the Texas Rules of Civil Procedure allows successor judges to
dispose of unresolved matters and enter orders, it does not permit the successor judge to
render judgment without hearing evidence. Fid. & Guar. Life Ins. Co. v. Pina, 165
S.W.3d 416, 421 (Tex. App.—Corpus Christ 2005, no pet.); W.C. Banks, Inc. v. Team,
Inc., 783 S.W.2d 783, 786 (Tex. App.—Houston [1st Dist.] 1990, no writ); see also
Bexar Cnty. Ice Cream Co. v. Swensen’s Ice Cream Co., 859 S.W.2d 402, 404 (Tex.
App.—San Antonio 1993, writ denied), overruled on other grounds by Barraza v.
Koliba, 933 S.W.2d 164, 167 (Tex. App.—San Antonio 1996, writ denied) (―We agree
that a judge who has heard no evidence cannot rule on a case.‖). Joseph argues that
Judge Stansbury did not render judgment on evidence that he did not hear because the
new trial only dealt with accounts receivable from August 31, 2008, to November 14,
2008. The February 7, 2011 decree recites that evidence from the 2008 trial and other
hearings was considered. However, Judge Stansbury only heard evidence on a very
discrete asset, without having heard evidence on any of the other numerous assets or
other issues. We conclude that the evidence is legally insufficient to support the property
14
division and the granting of the divorce. We sustain Sharyon’s third and fourth issues.7
Recitation that Judgment was Rendered on November 14, 2008
In her fifth issue, Sharyon claims that the trial court erred by reciting in the
February 7, 2011 decree that judgment was rendered on November 14, 2008. Both Judge
Dempster’s oral rendition and written decree were vacated when Judge Millard granted
the motion for new trial. See In re Dep’t of Family & Protective Servs., 273 S.W.3d at
644. Judge Stansbury’s January 14, 2011 new trial order did not automatically reinstate
the March 27, 2009 decree or November 14, 2008 oral rendition, and to do so Judge
Stansbury would have to have entered a new judgment. See id. We conclude that the
trial court erred by reciting that judgment was rendered on November 14, 2008. We
sustain Sharyon’s fifth issue.8
Having sustained Sharyon’s first, third, fourth, and fifth issues, we reverse the trial
court’s February 7, 2011 decree and remand the case to the trial court for proceedings
consistent with this opinion.
/s/ Sharon McCally
Justice
Panel consists of Justices Frost, McCally, and Busby.
7
In his second counter-point, Joseph asserts that Sharyon has not shown that the property division
was not just and right. However, in light of our disposition on Sharyon’s third issue, we overrule
Joseph’s second counter-point.
8
We need not address Sharyon’s second issue in which she asserts that the trial court’s failure to
issue findings of fact and conclusions of law prevents her from presenting her appeal.
15