Llynda Spencer Lovejoy v. Charles Randall McWilliams ( 2020 )

Opinion filed September 17, 2020
In The
Eleventh Court of Appeals
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No. 11-18-00260-CV
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LLYNDA SPENCER LOVEJOY, Appellant
V.
CHARLES RANDALL MCWILLIAMS, Appellee
On Appeal from the County Court at Law
Brown County, Texas
Trial Court Cause No. DV1712218
MEMORANDUM OPINION
This appeal involves a divorce between Charles Randall McWilliams and
Llynda Spencer Lovejoy. The trial court issued a final decree of divorce in which
it, among other things, divided the parties’ property. Lovejoy now appeals pro se.
In this appeal, Lovejoy asserts that she was denied a jury trial and that the trial court
erred in its division of the marital estate. We affirm.
Appellant presents four issues on appeal. In her first issue, she contends that
she was denied a jury trial. Under the provisions of Rule 216(a) of the Texas Rules
of Civil Procedure, a civil litigant who wants to have her case heard by a jury must
file a written request for a jury trial with the clerk of the trial court within a
reasonable time before the date of trial. TEX. R. CIV. P. 216(a). The clerk’s record
contains nothing to show that Appellant requested a jury trial. Further, on appeal,
Appellant does not claim that she requested that a jury hear this case. Under this
record, Appellant waived her right to trial by jury. See In re S.D.H., No.11-05-
00079-CV, 2006 WL 1172302, at *2 (Tex. App.—Eastland May 4, 2006, no pet.)
(mem. op.) (in the absence of a timely jury request, trial court did not err when it
proceeded to hear the case). We overrule Appellant’s first issue on appeal.
We will discuss Appellant’s second, third, and fourth issues on appeal
together. In those issues, Appellant contends that the trial court’s findings are not
supported by sufficient evidence, that the trial court erred in its calculation of the
marital estate, and that the trial court erred in the division of the marital property.
Because these claims are evidence-related claims by nature, we cannot
properly address them in the absence of a reporter’s record. But Appellant has not
provided this court with a reporter’s record from the proceedings below. On
December 31, 2018, the court reporter filed a status report requesting an extension
to file the reporter’s record. The court reporter informed this court that Appellant
had not submitted a request for the preparation of the record. On January 15, 2019,
Appellant notified this court in writing that no reporter’s record was required in this
case. Instead, Appellant attached several documents to her correspondence with this
court.
“The appellate record consists of the clerk’s record and, if necessary to the
appeal, the reporter’s record.” TEX. R. APP. P. 34.1. Because the attachments that
Appellant provided us are not part of the appellate record, we cannot consider them.
See, e.g., Robb v. Horizon Cmtys. Improvement Ass’n, 417 S.W.3d 585, 589 (Tex.
App.—El Paso 2013, no pet.).
2
Appellant’s failure to provide a record prevents us from granting relief on
Issues Two, Three, and Four. No findings of fact or conclusions of law were filed
in this case. When no findings of fact and conclusions of law are filed, we must
presume that the trial court made all necessary findings to support its judgment; we
view the findings as implied. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.
1989); Smith v. Hennington, 249 S.W.3d 600, 602 (Tex. App.—Eastland 2008, pet.
denied). Further, in the absence of a reporter’s record, we must assume that the
evidence supports those findings. Bryant v. United Shortline Inc. Assurance Servs.,
N.A., 972 S.W.2d 26, 31 (Tex. 1998). Those presumptions compel this court to hold
that the trial court’s decision was correct. We overrule Appellant’s second, third,
and fourth issues on appeal.
In view of our holding, we need not discuss Appellant’s failure, even under
a generous construction, to comply with appellate briefing rules. See TEX. R.
APP. P. 38.1, 38.9.
We affirm the judgment of the trial court.
JIM R. WRIGHT
SENIOR CHIEF JUSTICE
September 17, 2020
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1
Willson, J., not participating.
1
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
3