in the Interest of K.C.E. and L.T.E., Children ( 2021 )

Affirmed and Opinion Filed August 30, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01272-CV
IN THE INTEREST OF K.C.E. AND L.T.E., CHILDREN
On Appeal from the 429th Judicial District Court
Collin County, Texas
Trial Court Cause No. 429-55626-2018
MEMORANDUM OPINION
Before Justices Osborne, Pedersen, III, and Nowell
Opinion by Justice Osborne
Appellant Father and appellee Mother are the parents of K.C.E. and L.T.E.
The trial court signed a final decree of divorce between the parties on October 16,
2019.1 In two issues, Father argues (1) Mother failed to serve a copy of the proposed
decree in accordance with civil procedure rule 21a and (2) the decree’s terms differ
from the parties’ agreement made on the record on June 28, 2019. We affirm the trial
court’s judgment.
1
Father’s appeal was abated during bankruptcy proceedings but was reinstated on Father’s motion by
this Court’s order of August 12, 2020.
BACKGROUND
Father and Mother were married in 2015. K.C.E. and L.T.E. are the parties’
two children. Father filed for divorce in 2018. The parties entered into a verbal
agreement, then testified on the record to the agreement’s terms at a hearing on June
28, 2019. Father subsequently moved to enter a final divorce decree. At a hearing on
August 23, 2019, the trial court continued the proceedings on Father’s motion so that
the parties could obtain the record from the June 28, 2019 hearing. At the next
hearing on September 16, 2019, the trial court granted Father’s counsel’s motion to
withdraw and again postponed hearing the motion to enter.
At the rescheduled hearing on October 16, 2019, the trial court heard the
motion to enter the final decree. Father appeared pro se. He complained that he had
not seen the proposed decree Mother submitted for the court’s approval, but he did
not request a continuance or any additional time for review.
After the hearing, the trial court signed Mother’s proposed decree. This appeal
followed.
STANDARD OF REVIEW
We review the trial court’s division of a community estate and its child
support orders for an abuse of discretion. Moroch v. Collins, 174 S.W.3d 849, 857
(Tex. App.—Dallas 2005, pet. denied); Deltuva v. Deltuva, 113 S.W.3d 882, 886
(Tex. App.—Dallas 2003, no pet.). A trial court does not abuse its discretion if there
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is some evidence of a substantive and probative character to support the decision.
LaFrensen v. LaFrensen, 106 S.W.3d 876, 877 (Tex. App.—Dallas 2003, no pet.).
In family law cases, the abuse of discretion standard of review overlaps with
the traditional sufficiency standards of review; as a result, legal and factual
sufficiency are not independent grounds of reversible error, but instead constitute
factors relevant to our assessment of whether the trial court abused its discretion.
Moroch, 174 S.W.3d at 857. To determine whether the trial court abused its
discretion we consider whether the trial court (1) had sufficient evidence on which
to exercise its discretion and (2) erred in its exercise of that discretion. In re A.B.P.,
291 S.W.3d 91, 95 (Tex. App.—Dallas 2009, no pet.). We then proceed to determine
whether, based on the elicited evidence, the trial court made a reasonable decision.
Moroch, 174 S.W.3d at 857.
In an appeal from a bench trial, an appellate court reviews a trial court’s
conclusions of law de novo and will uphold them on appeal if the judgment of
divorce can be sustained on any legal theory supported by the evidence. Reisler v.
Reisler, 439 S.W.3d 615, 619 (Tex. App.—Dallas 2014, no pet.). An appellate court
may not challenge a trial court’s conclusions of law for factual sufficiency, but it
may review the legal conclusions drawn from the facts to determine their
correctness. Id. If an appellate court determines that a conclusion of law is erroneous,
but the trial court nevertheless rendered the proper judgment, the error does not
require reversal. Id. at 619–20.
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When the appellate record contains a complete reporter’s record, an appellate
court reviews the trial court’s findings of fact under the same standards for legal and
factual sufficiency that govern the review of jury findings. Id. at 620. A legal
sufficiency challenge to the findings of fact fails if there is more than a scintilla of
evidence to support the findings. Id. In conducting a factual sufficiency review,
appellate courts may set aside the trial court’s finding only if it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong or unjust. Id. In
evaluating the trial court’s findings of fact, an appellate court must give substantial
deference to the trial court’s determination of the weight and credibility of the
evidence. Id. In a bench trial, the trial court acts as the fact finder and is the sole
judge of the credibility of the witnesses. Id.DISCUSSION
1. Service of proposed decree
In his first issue, Father argues that Mother failed to serve “the new version”
of the final decree on Father three days before the October 16, 2019 hearing as
required by rule of civil procedure 21a.2 Father does not complain he was not notified
of the hearing date, and the record reflects that the motion heard was actually
Father’s. Father initially filed a motion to enter a final decree on July 22, 2019,
2
Father also cites civil procedure rule 124 in support of his argument that he was not “properly served”
with the decree. Rule 124, however, addresses service of citation on a defendant by a plaintiff. See TEX. R.
CIV. P. 124. Here, Father was the petitioner for divorce, and all parties previously had entered appearances
before the court.
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submitting a draft decree prepared by his counsel. The hearing on this motion was
reset several times, first to allow the parties to obtain a transcript of the hearing on
the prove-up of their agreement, and subsequently because the court granted Father’s
counsel’s request to withdraw at a hearing on September 16, 2019. Numerous
motions of Father’s, Mother’s, and an intervenor’s were set or reset for the same
hearing date of October 16, 2019, including Father’s motion to enter, and Father
appeared without objection to lack of notice of the hearing date.
Father represented himself at the October 16, 2019 hearing. He requested that
the trial court enter the draft decree prepared by his former counsel instead of
Mother’s proposed decree. He complained that Mother brought a new draft of the
decree to the hearing without giving him time to review it, but he did not request
postponement of the hearing, additional time for review, or any other relief except
entry of his proposed draft. The trial court heard further argument regarding whether
Mother’s proposed decree “reflect[s] the agreement that was read into aux court and
reflected in the transcript [of the June 28, 2019 hearing].” The trial court then signed
Mother’s proposed decree on October 16, 2019, the same date as the hearing.
The following day, Father filed a notice of appeal. On November 8, 2019,
Father filed an “Affidavit of Exhibits of Agreed Final Divorce Decree Drafts” in the
trial court. He attached a draft decree that his counsel had prepared before
withdrawing, and stated that the draft was given to Mother’s counsel and the court
at the September 16, 2019 hearing on his counsel’s motion to withdraw. He did not
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identify any terms in the drafts that differed from the October 16, 2019 decree the
trial court rendered. The affidavit was not made in support of any motion. Father did
not request a new trial or any other relief.
In Prade v. Helm, 725 S.W.2d 525, 526–27 (Tex. App.—Dallas 1987, no
writ), we considered a similar complaint about lack of notice. In that case, Capco
Contractors, Inc., one of the appellants, complained that it did not receive sufficient
notice under civil procedure rules 21 and 21a of a hearing at which the trial court
imposed sanctions. Id. In the trial court, Capco’s attorney of record appeared at the
hearing and informed the trial court that he had not seen a copy of the motion for
sanctions “until this morning.” Id. at 527. After the trial court’s ruling dismissing
Capco’s claims for abuse of discovery, counsel stated, “Note our exception.” Id.Quoting the rule of appellate procedure on preservation of error (then-
numbered 52, now 33), we concluded Capco had not preserved its complaint of
untimely notice for appellate review. Id. We explained, “The remarks constitute
neither a specific objection to untimely notice nor a request for additional time to
prepare for the hearing. Furthermore, even if Capco’s remarks could be construed as
either an objection to untimely notice or as a request for additional time to prepare,
Capco failed to obtain a ruling from the trial court. Therefore, no error is preserved.”
Id.; see also Odam v. Texans Credit Union, No. 05-16-00077-CV, 2017 WL
3634274, at *4 (Tex. App.—Dallas Aug. 24, 2017, no pet.) (mem. op.) (collecting
cases for proposition that to preserve a notice complaint, a party must bring the lack
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of adequate notice to the trial court’s attention at the hearing and object to the hearing
going forward or move for a continuance).
Although Father was no longer represented by an attorney at the October 16,
2019 hearing, “[p]ro se litigants are held to the same standards as attorneys and must
comply with all applicable and mandatory rules of pleading and procedure. To apply
a different set of rules to pro se litigants would be to give unfair advantage over
litigants represented by counsel.” In re J.P., 365 S.W.3d 833, 837 (Tex. App.—
Dallas 2012, no pet.). Because Father did not make his complaint to the trial court
and obtain a ruling or refusal to rule, he has not preserved it. TEX. R. APP. P. 33.1.
We decide Father’s first issue against him.
2. Terms of decree
In his second issue, Father complains the decree’s terms differ from the
parties’ agreement made on the record on June 28, 2019. He argues that the child
support provisions and the characterization and division of community property in
the final decree “differ substantially” from the agreement. He complains that the trial
court failed to verify “whether the decree adequately and accurately contained all
the terms of the ‘prove-up’ divorce settlement agreement.”
As with his first issue, Father did not make this complaint in the trial court.
We considered similar circumstances in Ricks v. Ricks, 169 S.W.3d 523, 527–28
(Tex. App.—Dallas 2005, no pet.). In that case, a spouse (“Janci”) complained on
appeal that the divorce decree did not comport with the parties’ mediated settlement
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agreement (“MSA”). But Janci did not make the trial court aware of her specific
complaints about the decree after it was entered. Id. at 528. Although she complained
in a motion for new trial that there were discrepancies between the decree and the
MSA, she did not identify them. Id. Because she did not “make the trial court aware
of her specific objections to the decree or in what respects it failed to comply with
the settlement agreement,” we concluded she had not preserved her complaint for
review. Id. (citing TEX. R. APP. P. 33.1 and In re B.L.D., 113 S.W.3d 340, 350 (Tex.
2003)).
Similarly here, Father complains on appeal that the decree (1) does not reflect
changes in his financial circumstances affecting the amount of child support he can
pay, (2) allocates certain medical and dental expenses 100 percent to him instead of
dividing them 50/50, (3) does not give credit for informal child support payments,
(4) reveals that Mother had additional sources of income of which he was not aware,
making the division of debt unfair, (5) changes the terms on which Father sells or
refinances his home, and (6) as a result of these contested issues, incorrectly recites
that the terms were reached by agreement. Because Father did not make any of these
complaints in the trial court, he has not preserved them for our review. See Ricks,
169 S.W.3d at 528. We decide Father’s second issue against him.
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CONCLUSION
The trial court’s judgment is affirmed.
/Leslie Osborne//
191272f.p05 LESLIE OSBORNE
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF K.C.E. AND On Appeal from the 429th Judicial
L.T.E., CHILDREN, District Court, Collin County, Texas
Trial Court Cause No. 429-55626-
No. 05-19-01272-CV 2018.
Opinion delivered by Justice
Osborne. Justices Pedersen, III and
Nowell participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee Roshanda Eady recover her costs of this appeal
from appellant Jason Darrell Eady.
Judgment entered this 30th day of August, 2021.
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