Bryan Dale Haun and Norman F. Haun v. Sharon M. Haun ( 1993 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-92-401-CV





BRYAN DALE HAUN AND NORMAN F. HAUN,

APPELLANTS

vs.





SHARON M. HAUN,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT

NO. 91-8990, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING

PER CURIAM

Appellants Bryan Dale Haun and Norman F. Haun appeal from a final decree of divorce rendered by the district court of Travis County on July 9, 1992. Appellee Sharon M. Haun, Bryan Haun's former wife, filed a third-party claim against Norman Haun asserting that Bryan Haun had fraudulently transferred community funds to Norman Haun. After a bench trial, the trial court ordered that Norman Haun return the amount of $6,243.00 to the community estate. The trial court then awarded the amount of $4,162.00 to appellee as her separate property and the remaining $2,081.00 to Bryan Haun as his separate property. We will affirm the trial-court judgment.

In one point of error, appellants complain of the judgment against Norman Haun asserting that, by her first amended answer, counterclaim, and third-party action ("first amended answer"), Sharon Haun admitted that the community owed a debt to Norman Haun. Appellants argue that, having admitted a debt, she cannot claim that the transfer to Norman Haun was fraudulent. Appellants quote Sharon Haun's pleading:

Respondent [Bryan Haun] fraudulently transferred to his father Norman F. Haun, $15,443.40 of Respondent's retirement benefits, which were community property. Respondent (Bryan Haun) then filed for divorce. Included in same were monies given to respondent (Bryan Haun) by said third party (Norman F. Haun) without consideration and/or for less than equivalent value.

Sharon Haun's first amended answer is not included in the transcript filed in this cause. ⁽¹⁾ In her brief, appellee responds that she does not admit that Norman Haun loaned money to the community during the marriage. See generally Tex. R. App. P. 74(f) (appellate court may accept as correct any statement of appellant not challenged by opposing party). As the parties seeking review, appellants had the burden to present a record to show error requiring reversal. Tex. R. App. P. 50(d); Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990); University of Tex. at Austin v. Hinton, 822 S.W.2d 197, 202 (Tex. App.--Austin 1991, no writ). Because the pleading on which appellants base their argument is not part of the record before this Court, we must overrule their point of error.

Nevertheless, even were this Court to assume that the community owed Norman Haun a debt, we must still overrule the point of error. The quoted language states that Bryan Haun transferred the amount of $15,443.40 to Norman Haun. After a hearing, the trial court ordered Norman Haun to return $6,243.00 to the community estate. Arguably, the court may have found the amount of the funds transferred exceeded the amount of any debt by $6,243.00.

The appeal, however, is before this Court without a statement of facts. See Haun v. Haun, No. 3-92-401-CV (Tex. App.--Austin Oct. 14, 1992, no writ) (opinion on motion to file extension of time to file statement of facts) (not designated for publication). In the absence of a statement of facts, this Court must presume that the evidence supports the trial-court judgment. Guthrie v. National Homes Corp., 394 S.W.2d 494, 495 (Tex. 1965); Fort Bend County v. Texas Parks & Wildlife Comm'n, 818 S.W.2d 898, 900 (Tex. App.--Austin 1991, no writ).

In the absence of a record sufficient to show error, we overrule appellants' point of error and affirm the final decree of divorce.

[Before Justices Powers, Kidd and B. A. Smith]

Affirmed

Filed: May 5, 1993

[Do Not Publish]

1.   Although Sharon Haun pointed out this omission in her brief, appellants have neither filed a supplemental transcript containing the first amended answer nor requested leave of Court to do so. See Tex. R. App. P. 55(b),(c).