Gary Willmore v. Zahira Alcover ( 2018 )

NUMBER 13-16-00180-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
GARY WILLMORE, Appellant,
v.
ZAHIRA ALCOVER, Appellee.
On appeal from the 309th District Court
of Harris County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Longoria
Memorandum Opinion by Chief Justice Valdez
Appellant Gary Willmore and appellee Zahira Alcover married in 2008. The parties
divorced seven years later. No children were born of the marriage. Following a bench
trial, the trial judge entered a final decree of divorce that divided the marital estate. 1 See
TEX. FAM. CODE ANN. § 7.001(1) (West, Westlaw through 2017 1st C.S.) (providing that
“the court shall order a division of the estate of the parties in a manner that the court
deems just and right”). Willmore contends in five issues the divorce decree should be
reversed and the case remanded for a new trial. 2 We affirm.
I. WILLMORE’S INVENTORY 3
By his first issue, Willmore contends that the trial “[j]udge committed harmful error
when [it] refused to allow [him] to put on evidence of the character or value of [marital]
property, or to rebut [Alcover’s] evidence.”
A. Pertinent Facts
On the first day of trial, Willmore filed an inventory and appraisement of the marital
estate, as required under local rule 4.2 of the Harris County Family Trial Division. See
HARRIS COUNTY FAM. TRIAL DIV. LOC. R. 4.2 (providing that divorcing spouses must
exchange an inventory listing each item of property and its value and all other relevant
financial information). Alcover sought to exclude Willmore’s inventory on the basis that
he failed to exchange the inventory at least ten days in advance of trial, as required by
rule 4.2. See id. (providing that the parties must exchange their respective inventories at
least ten days in advance of trial). Alcover further asserted that Willmore’s failure to
provide at least ten days’ notice called for not only the exclusion of the inventory itself,
1 This case is before the Court on transfer from the First Court of Appeals in Houston, Texas
pursuant to a docket equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN.
§ 73.001 (West, Westlaw through 2017 1st C.S.).
2 Alcover has not filed an appellate brief in response to Willmore’s appeal.
3 As this is a memorandum opinion and the parties are familiar with the facts of the case, we will
not recite them here except as necessary to advise the parties of this Court's decision and the basic reasons
for it. See TEX. R. APP. P. 47.4.
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but also any evidence offered by Willmore to contradict the information contained in the
inventory Alcover filed with the court, which had been timely served on Willmore in
advance of trial. Willmore responded that he had not been provided adequate notice of
Alcover’s intention to exclude his inventory under rule 4.2 and that he would have been
able to demonstrate compliance with the rule had he been so told prior to the day of trial.
However, Willmore did not request that the trial be continued to afford him an opportunity
to demonstrate compliance with rule 4.2. After hearing arguments from both sides on the
issue, the trial judge expressly declined to rule on Alcover’s motion to exclude under rule
4.2. Willmore did not obtain or otherwise urge a ruling from the trial court at that time.
The trial judge then began the evidence portion of the trial with Alcover’s testimony.
On the second day of trial, the rule 4.2 issue quickly resurfaced when Alcover
objected to a question that Willmore posed to her during cross examination concerning
improvements to a specific piece of property. After Alcover objected, the following
colloquy between the trial court and Willmore’s counsel occurred:
Trial judge: [Wife’s] objection is sustained. Next question.
Willmore: I don't even remember what the question was, Judge.
Trial judge: Well, I sustained it, so ask the next question.
Willmore: I don't know what the next one is.
Willmore: Oh, with regard to . . . [new question posed to wife]
Willmore made no attempt to obtain a ruling on Alcover’s motion to exclude, which had
been filed the previous day. Furthermore, Willmore did not attempt to make a record of
what he believed Alcover would have said had the trial judge not sustained Alcover’s
objection to his question concerning improvements to the piece of property.
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B. Preservation
Willmore argues that the trial court erred in excluding information contained in his
inventory under rule 4.2 because he was not afforded adequate notice of Alcover’s motion
to exclude in advance of trial. To support this argument, Willmore points to the portions
of the record recited above.
The burden is on the complaining party (Willmore) to present a sufficient record to
the appellate court to show error requiring reversal. See TEX. R. APP. P. 33.1(a). A party
must take the following steps in order to preserve error stemming from the exclusion of
evidence:
1. attempt during the evidentiary portion of the trial to introduce the
evidence;
2. if an objection is lodged, specify the purpose for which [the evidence] is
offered and give the trial court reasons why the evidence is admissible;
3. obtain a ruling from the court; and
4. if the court rules the evidence inadmissible, make a record, through a
bill of exceptions, of the precise evidence the party desires admitted.
Ulogo v. Villanueva, 177 S.W.3d 496, 502 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
Here, Willmore fails to present this Court with a sufficient trial record demonstrating
compliance with the steps set out above. See id. Willmore made no attempt to obtain a
definitive ruling on Alcover’s motion to exclude. Furthermore, we have no record of the
precise evidence Willmore sought to admit or what Alcover’s response to Willmore’s
question would have been. See Ulogo, 177 S.W.3d at 502; see also Greensteln, Logan
& Co. v. Burgess Mktg., Inc., 744 S.W.2d 170, 181 (Tex. App.—Waco 1987, writ denied)
(concluding that error was not preserved because reporter's record did not show what
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evidence was refused). We therefore conclude that Willmore failed to preserve his first
issue for appellate review. See TEX. R. APP. P. 33.1.
II. REIMBURSEMENT CLAIM
By his third issue, Willmore contends that “[i]t was harmful error for the [j]udge to
refuse to allow [him] to put on evidence of his reimbursement claim[.]” However, as with
his first issue, Willmore has failed to provide us with a sufficient trial record demonstrating
compliance with the steps listed above. See Ulogo, 177 S.W.3d at 502. Specifically, we
have no record of the precise evidence Willmore sought to admit or what evidence was
refused in regard to his reimbursement claim. See id. At trial, Willmore referenced a
“CD” in regard to his reimbursement claim, but he failed to make an offer of proof or
otherwise include this evidence in the appellate record. We conclude that Willmore failed
to preserve his third issue for appellate review. See TEX. R. APP. P. 33.1.
III. DIVISION OF MARITAL ESTATE
Paragraph 7.7 of the divorce decree ordered Willmore to pay Alcover $275,000 as
a means of equalizing the division of the marital estate. According to the decree, this
equalizing payment was ordered “for the purpose of a just and right division of property.”
By his fourth issue, Willmore contends there is insufficient evidence to justify this
payment.
A trial judge must divide the estate of divorcing spouses in a manner that is just
and right, having due regard for the rights of each party. See TEX. FAM. CODE ANN. §
7.001. Although the division must be equitable, the trial judge need not divide the marital
estate equally. Richardson v. Richardson, 424 S.W.3d 691, 696 (Tex. App.—El Paso
2014, no pet.). The trial judge is afforded broad discretion in its division of marital property
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upon divorce. See Murff v. Murff, 615 S.W.2d 696, 698 (Tex.1981). We address two
questions in determining whether the trial court abused its discretion: “(1) did the trial
court have sufficient information upon which to exercise discretion, and (2) did the trial
court abuse its discretion by making a property division that was manifestly unjust or
unfair?” Richardson, 424 S.W.3d at 696.
Willmore concedes that the trial judge divided the marital estate “about evenly,”
based on the inventory Alcover filed with the judge. Nevertheless, Willmore asserts that
the trial judge lacked sufficient information upon which to order the equalizing payment
when the judge allegedly excluded evidence to which his first and third issues relate.
However, as noted above, we have no record of the precise evidence Willmore sought to
admit. Furthermore, even if Willmore had furnished a record of the allegedly excluded
evidence, our review would be limited to the evidence admitted at trial. See id. Willmore
does not discuss the evidence that could have supported the equalizing payment.
Instead, without analysis or citation to the record, Willmore simply declares that the
evidence “just isn’t enough” to support a finding that the equalizing payment was
necessary to accomplish a just and right division of the marital estate. We conclude that
Willmore has not met his appellate burden to establish that the equalizing payment lacked
sufficient evidence. We overrule Willmore’s fourth issue.
IV. FRAUD ON THE MARITAL ESTATE
By his fifth issue, Willmore contends that Alcover committed fraud on the marital
estate by allegedly depositing all paychecks from her teaching job into a separate account
for the entire duration of their seven-year marriage without his knowledge. Willmore
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therefore asserts that the trial court erred in rejecting his claim for fraud on the marital
estate.
Because Willmore pleaded fraud, he had the burden to prove it at trial. See Brooks
v. Parr, 507 S.W.2d 818, 819 (Tex. Civ. App.—Amarillo 1974, no writ). To obtain relief
on appeal, Willmore must now show that the evidence conclusively established his fraud
claim as a matter of law. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001)
(observing that when a party challenges an adverse finding on an issue on which he had
the burden of proof at trial, he must demonstrate on appeal that the evidence establishes,
as a matter of law, all vital facts in support of the issue).
To establish fraud, Willmore had the burden to prove the following elements at trial:
“(1) [Alcover] failed to disclose [the separate account] to [him], (2) [Alcover] had a duty to
disclose [the separate account], (3) the [separate account was] material, (4) [Alcover]
knew [that Willmore] was ignorant of [the separate account] and [Willmore] did not have
an equal opportunity to discover [the existence of the separate account], (5) [Alcover] was
deliberately silent when [she] had a duty to speak, (6) by failing to disclose [the separate
account], [Alcover] intended to induce [Willmore] to take some action or refrain from
acting, (7) [Willmore] relied on [Alcover’s] nondisclosure, and (8) [Willmore] was injured
as a result of acting without that knowledge.” Blankinship v. Brown, 399 S.W.3d 303, 308
(Tex. App.—Dallas 2013, pet. denied).
The argument section of Willmore’s appellate brief consists of one paragraph on
this issue. Without addressing any particular fraud element listed above, Willmore
attempts to conclusively establish fraud by pointing not to what the evidence showed, but
instead to what the evidence allegedly did not show. Specifically, Willmore argues there
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is no evidence that he knew Alcover had been depositing paychecks into a separate
account for seven years. However, by framing the argument in this way, Willmore shifts
the burden onto Alcover to disprove fraud when it is his burden on appeal to show that
the evidence conclusively proved fraud. We reject Willmore’s attempt to invert and shift
to Alcover the burden he shouldered at trial and on appeal. Furthermore, Willmore
provides no citation to the record indicating that Alcover had been depositing paychecks
from her teaching job into a separate account for seven years without his knowledge. We
conclude that Willmore has not met his burden on appeal to show that the record
conclusively establishes each element of his fraud claim. We overrule Willmore’s fifth
issue.
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
By his second issue, Willmore contends that the trial court erred in failing to enter
written findings of fact and conclusions of law after Willmore made a timely request for
such findings following the bench trial.
A. Applicable Law
In a case tried to the bench, “any party may request the court to state in writing its
findings of fact and conclusions of law.” TEX. R. CIV. P. 296. Upon timely request, the
court is required to make findings on the controlling or ultimate issue in the case. Finch
v. Finch, 825 S.W.2d 218, 221 (Tex. App.—Houston [1st Dist.] 1992, no writ). The court
is not required to make findings on an evidentiary matter. Id. “An ultimate fact issue is
one that is essential to the right of action. . . . Such an issue seeks a fact that would have
a direct effect upon the judgment. . . . In contrast, an evidentiary issue is one that the
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[fact finder] may consider in deciding the controlling issue, but that is not a controlling
issue itself.” Id.
The failure to enter findings on an ultimate issue constitutes error subject to a harm
analysis. See In re Marriage of Edwards, 79 S.W.3d 88, 95 (Tex. App.—Texarkana 2002,
no pet.). If harm is shown, the appropriate remedy in most cases is to abate the case for
the trial judge to enter findings. See Larry F. Smith, Inc. v. The Weber Co., Inc., 110
S.W.3d 611, 616 (Tex. App.—Dallas 2003, pet. denied) (observing that abatement is the
preferred procedure to remedy the harm resulting from a lack of findings). In determining
harm, an appellate court asks whether the lack of findings prevents the appealing party
from properly presenting the issues presented for review on appeal. See In re Marriage
of Edwards, 79 S.W.3d at 95.
B. Analysis
Although Willmore timely requested written findings from the trial judge, 4 none
were entered. This was error. See id. Consequently, we now must determine whether
Willmore was harmed by assessing the extent, if any, to which the absence of findings
prevented him from properly presenting his issues on appeal. See id.
Willmore’s first and third issues complained about evidence the trial court allegedly
excluded. However, it was not the lack of findings that prevented Willmore from
presenting those issues on appeal; instead, as noted above, it was Willmore’s failure to
provide a record of the allegedly excluded evidence that prevented review. See Ulogo,
177 S.W.3d at 502; see also In re Marriage of Edwards, 79 S.W.3d at 95. Furthermore,
Willmore’s first and third issues complained of evidentiary matters relating to the exclusion
4 Willmore filed a notice of past due findings. See TEX. R. CIV. P. 297.
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of evidence, not ultimate issues. Lifshutz v. Lifshutz, 61 S.W.3d 511, 515 (Tex. App.—
San Antonio 2001, pet. denied). Therefore, findings responsive to those issues would not
have been required. See id.
Willmore’s fourth issue complained about the value of the equalizing payment that
the trial judge ordered in paragraph 7.7 of the divorce decree. However, as noted above,
Willmore’s main argument was that the trial judge lacked sufficient information to properly
value the marital estate because the judge excluded evidence made the subject of his
first and third issues. In this sense, Willmore’s fourth issue reformulates his first and third,
which relate not to ultimate issues but instead to evidentiary matters for which findings
would not have been required. See Finch, 825 S.W.2d at 221. Furthermore, “[t]he
ultimate issue in this case [was] whether the trial court made a just and right division of
the [marital] estate.” Id. The value the trial court placed on the equalizing payment was
not essential to Willmore’s right of action. See id. Instead, the value of the equalizing
payment was an evidentiary issue that the trial court considered in deciding what was a
just and right division of the community estate. See id. (concluding that the trial judge
was not required to make findings on the values of properties comprising the marital
estate because that valuation is an evidentiary issue the judge considers in deciding the
ultimate issue of what is a just and right division). Therefore, findings responsive to
Willmore’s fourth issue would be evidentiary in nature and not required.
Finally, Willmore’s fifth issue complained about the sufficiency of the evidence to
prove a claim (fraud) on which he had the burden of proof at trial. However, a lack of
written findings as to that issue is harmless when, as here, the record reflects that the
appealing party simply failed to prove a claim on which he had the burden of proof at trial.
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See Lee v. Thornton, 658 S.W.2d 234, 236 (Tex. App.—Houston [1st Dist.] 1983, writ
ref'd n.r.e.) (concluding that the absence of findings was harmless where the record
showed that the appealing party simply failed to meet her burden of proving the claim at
trial).
We conclude that any error in failing to enter written findings did not prevent
Willmore from properly presenting his issues on appeal. Accordingly, the error is
harmless, and we overrule his second issue. 5
VI. CONCLUSION
We affirm the trial court’s judgment.
s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice
Delivered and filed the
22nd day of March, 2018.
5
We note that, had we found the error to be harmful, Willmore requested a new trial, rather than
an abatement to remedy the error with findings. Willmore argued that we must order a new trial (rather
than abate) because the judge who presided over the case allegedly recused herself after the bench trial.
However, nothing in the appellate record provided to us indicates that the judge in fact recused herself.
Furthermore, even if the judge had in fact recused herself, Willmore provides no authority that a successor
judge on abatement would be disqualified from entering the requested findings based on the record. In
short, even if we were to conclude that the error was harmful, Willmore failed to demonstrate that the
remedy he specifically requested—i.e., a new trial—was the appropriate one under the circumstances.
Willmore did not request that the case be abated for findings.
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