in the Interest of F.M.B. and P.W.B., Children ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00153-CV
IN THE INTEREST OF F.M.B. AND
P.W.B., CHILDREN
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FROM THE 322ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant D.J.B. (Father), 2 pro se, appeals the trial court’s order in this
post-divorce modification and enforcement suit. Father raises four issues. First,
Father contends the trial court abused its discretion by denying Father’s motion
1
See Tex. R. App. P. 47.4.
2
We use aliases to protect the identities of the individuals involved in this
case. See Tex. R. App. P. 9.8 cmt.; see also Tex. Fam. Code Ann. § 109.002(d)
(West Supp. 2013).
for continuance of the hearing on a motion to sign final orders filed by Appellee
J.M.B. (Mother) and by denying his motions seeking additional discovery.
Second, Father claims the trial court erred by issuing a final protective order
based upon a finding of a history of family violence. Third, Father complains the
trial court abused its discretion in its calculation and division of the parties’ assets
and liabilities and in its calculation of child support, medical expenses, health
insurance reimbursements, and attorney’s fees. Fourth, Father asserts the trial
court erred in its valuation and division of two Charles Schwab IRAs owned by
Mother and Father during their marriage. We affirm.
I. Factual and Procedural Background
Mother and Father were divorced on June 7, 2007. The final decree was
signed on June 5, 2008. The decree appointed Mother and Father as joint
managing conservators of F.M.B. (Franklin) and P.W.B. (Phillip), the two children
from the marriage. The decree also ordered Father to maintain health insurance
for Franklin and Phillip and to make monthly child support payments of
$1,500.00. The decree further provided that Mother and Father would equally
share the expenses incurred on behalf of Franklin and Phillip for their
extracurricular activities.
The decree also divided the marital estate, including two Charles Schwab
IRAs. The decree awarded fifty percent of one IRA to each party and 33.33
percent of the other IRA to Mother and 66.66 percent to Father. The decree also
2
specified that the parties were to divide the IRAs by stock cost basis, if
applicable. Neither Mother nor Father appealed the final decree.
In October 2008, Father filed a motion to modify the decree, asking the
court to decrease his child support obligation and to modify the decree with
respect to certain uninsured medical expenses related to counseling between
Father and Phillip. In September 2009, Father filed a petition to enforce the
property division set out in the decree, complaining that Mother failed to
surrender to Father the boat, the items of personal property, and the family
photographs and videos awarded to him. Father also claimed Mother failed to
execute real estate documents necessary to effectuate the terms of the decree.
He further complained that the two Charles Schwab IRAs had not been divided in
accordance with the decree and requested that the court appoint an accountant
to determine each party’s interest therein.
In response, Mother filed a counter-petition, requesting the court enforce
Father’s obligations under the decree to pay half of Franklin’s and Phillip’s
unreimbursed medical expenses, to provide health insurance for Franklin and
Phillip or to reimburse Mother if she provided health insurance for them, and to
pay half of the expenses related to Franklin’s and Phillip’s extracurricular
activities.
On May 2, 2010, Father placed a box addressed to Mother containing a
bomb on the front porch of Mother’s residence. Father pled guilty to the offense
of possession of an unregistered destructive device. On November 1, 2010,
3
Father was sentenced to 120 months in federal prison and was ordered to pay a
fine in the amount of $10,000.00. As a result of Father’s behavior, Mother filed
an application for a protective order and restraining order. She also filed a
supplemental counter-petition, requesting that she be designated as the
children’s sole managing conservator. She also sought to confirm Father’s child
support arrearage and asked the court to render judgment for past-due child
support.
In July 2010, the trial court held a hearing to effectuate the award of the
Charles Schwab IRAs. The court found that the stock cost basis conditionally
required by the decree for the distribution of the IRAs did not apply. The court
entered orders assigning to Mother her interest in each account based upon the
value of the accounts at the time of the parties’ divorce in June 2007.
In May 2011, the trial court conducted a two-day bench trial. Father, who
was incarcerated, appeared by telephone and through his attorneys. Mother
appeared in person and through her attorney. After considering Mother’s
testimony, Father’s testimony, and the evidence, the court granted Mother’s
application for protective order. The trial court removed Father and Mother as
joint managing conservators of Phillip. 3 Mother was appointed sole managing
3
Franklin reached the age of eighteen and graduated from high school
during the pendency of the divorce. As a result, except for the provisions in the
final judgment related to enforcement of past obligations related to Franklin, the
orders in the final judgment for conservatorship, possession, child support, and
medical support apply only to Phillip.
4
conservator, and Father was appointed possessory conservator of Phillip. The
court did not enter orders for Father’s possession of Phillip because the trial court
found that Father had a history or pattern of committing family violence during the
two years preceding the filing of the suit or during the pendency of the suit.
The court found that Mother was maintaining Phillip’s health insurance at a
cost of $138.00 per month and that Father should be ordered to pay this amount
monthly to Mother as medical support beginning October 1, 2011, with the last
payment due and payable on June 1, 2012, for a principal obligation of
$1,242.00. The court also found that Father should be ordered to pay $802.00
per month in child support, beginning October 1, 2011, and ending on June 1,
2012, for a total amount of $7,218.00. The trial court ordered the health
insurance and child support to be paid in a lump-sum of $8,186.37, the present
value of the total amount of child and medical support due.
The court further found that as of May 11, 2011, Father was in arrears
$10,869.11 for unreimbursed health-care expenses and $7,802.36 for health
insurance reimbursements. The court reduced Father’s child support obligations
retroactively, and based upon that reduction, the court found that Father was in
arrears $2,051.11 for child support and medical support as of September 29,
2011. The trial court rendered a cumulative judgment against Father for
arrearages, including accrued interest, in the amount of $20,722.58. The trial
court also awarded $29,000.00 in attorney’s fees to Mother.
5
On October 13, 2011, Mother filed a motion to sign final orders based upon
the trial court’s rulings, along with a proposed final judgment and final protective
order. Mother’s motion was set for hearing on October 24, 2011. The hearing
was reset for November 21, 2011. Father filed a motion for continuance asking
the court to continue the hearing until March 20, 2012, to allow Father time to
obtain and review the May 2011 trial transcript, to compare the court’s rulings to
Mother’s proposed orders, and to prepare proposed final orders. Father ordered
and received a copy of the trial transcript. On February 22, 2012, Mother filed a
second motion to sign final orders, and the motion was set for hearing on March
30, 2012. Father filed a second motion for continuance, asking the court to
continue the hearing for ninety days so that he could conduct additional
discovery. Father also filed various motions seeking to reopen discovery and to
compel discovery from Mother. The trial court denied Father’s motions and
signed Mother’s proposed final judgment and final protective order on March 30,
2012. Father did not file a motion for new trial. Findings of fact and conclusions
of law were neither requested nor filed. This appeal followed.
II. Motion for Continuance and
Motions for Additional Discovery
In his first issue, Father complains the trial court abused its discretion by
denying his motion for continuance of the March 30 hearing on Mother’s motion
to sign final orders, thereby denying Father substantive and procedural due
process. Father also complains the trial court abused its discretion by denying
6
his Motion and Request to Modify Discovery Period, Motion to Compel
Discovery, Motion and Request for Production of Documents, and Motion for
Discovery and Request for Timely Answers to Superseding Interrogatories by
Respondent. We disagree.
A. Standard of Review
We review a trial court’s ruling on a motion for continuance for an abuse of
discretion. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800
(Tex. 2002). We also review the trial court’s actions allowing or denying
discovery for an abuse of discretion. See TransAmerican Natural Gas Corp. v.
Powell, 811 S.W.2d 913, 917 (Tex. 1991) (orig. proceeding). In reviewing a trial
court’s ruling for an abuse of discretion, we do not substitute our judgment for
that of the trial court. In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002)
(orig. proceeding). Instead, we must determine whether the trial court’s action
was so arbitrary and unreasonable as to amount to a clear and prejudicial error
of law. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004).
The test is whether the trial court acted without reference to guiding rules or
principles. Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004).
B. Analysis
The trial court did not abuse its discretion by denying Father’s motion for
continuance of the hearing on Mother’s motion to sign final orders or by denying
Father’s motions seeking additional discovery. The purpose of the March 30
hearing was to reduce the trial court’s rulings from the May 2011 trial to a final
7
judgment and final protective order. Father previously sought to continue the
hearing until March 20, 2012, so that Father could obtain and review the
transcript from the trial, compare the court’s rulings to Mother’s proposed orders,
and prepare proposed final orders. Father ordered and received the transcript,
but Father did not present proposed final orders to the trial court.
Father does not claim the proposed orders submitted by Mother were
inconsistent with the court’s rulings. Instead, he argues the trial court should
have allowed him to reopen discovery related to issues decided in the divorce
and post-divorce proceedings. Father complains that because Mother provided
inadequate responses to Father’s discovery requests, the trial court should have
afforded him additional time to conduct discovery related to Mother’s alleged
fraud on the community prior to the divorce and her alleged submission of
fraudulent documentation in support of her claims for health-care expense
reimbursements.
Father claims Mother converted $100,000.00 from the family business
prior to their divorce. Because of this alleged conversion, Father argues he is
entitled to a reduction in Mother’s share of the community estate. Father raised
this claim for the first time in his motion for continuance of the March 30 hearing.
Father never pled or offered any evidence of Mother’s alleged fraud at trial in the
present action. Moreover, the community property was divided in the 2008
divorce decree, which neither party appealed. Absent an appeal in the original
divorce proceeding, the judgment became final, and Father could not challenge
8
the court’s division of the community property in the present action. See Nelson
v. Williams, 135 S.W.3d 202, 206 (Tex. App.—Waco 2004, pet. denied) (mem.
op.) (holding res judicata barred claims for breach of fiduciary duty, fraud, civil
conspiracy, and negligence because underlying matter, i.e., fraud concerning the
value of the community estate, could have been litigated in divorce case); see
also Pearson v. Fillingim, 332 S.W.3d 361, 363 (Tex. 2011) (“A judgment
finalizing a divorce and dividing marital property bars relitigation of the property
division, even if the decree incorrectly characterizes or divides the property.”).
Father also argues Mother’s inadequate discovery responses necessitated
further discovery related to Mother’s submission of allegedly fraudulent
documentation in support of her claims for health-care expense reimbursements
in the post-divorce action. Father does not specify when he became aware of
the alleged inadequacy of Mother’s discovery responses. If he knew about the
alleged inadequacies before trial, any complaints Father had regarding the
adequacy of Mother’s discovery responses were required to be raised prior to
trial. See State Farm Fire & Cas. Co. v. Morua, 979 S.W.2d 616, 619–20 (Tex.
1998); SunBridge Healthcare Corp. v. Penny, 160 S.W.3d 230, 242 (Tex. App.—
Texarkana 2005, no pet.). The record does not reflect Father raised any
objections to Mother’s discovery responses prior to the trial. Father also did not
raise any complaints regarding Mother’s discovery responses at trial. Moreover,
to the extent Father is claiming he needs additional discovery so that he can
challenge the propriety of the amounts ordered by the court, Father was afforded
9
ample opportunity to raise these issues at trial and to challenge the evidence
Mother offered in support of her claims for health-care reimbursements.
We cannot say the trial court abused its discretion by denying Father’s
motion for continuance or his Motion and Request to Modify Discovery Period,
his Motion to Compel Discovery, his Motion and Request for Production of
Documents, and his Motion for Discovery and Request for Timely Answers to
Superseding Interrogatories by Respondent. We overrule Father’s first issue.
III. Protective Order
In his second issue, Father complains the trial court erred by issuing a
protective order based on a finding of family violence without determining that
family violence occurred and argues that the trial court should have issued
findings of fact regarding whether family violence occurred. Father also
complains there was insufficient evidence to support the protective order
because there was no evidence of family violence occurring during the marriage.
We disagree.
A. Standards of Review
A trial court’s findings of fact are reviewable for legal and factual
sufficiency under the same standards of review used to review the sufficiency of
the evidence supporting a jury’s findings. Ortiz v. Jones, 917 S.W.2d 770, 772
(Tex. 1996); Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); Anderson v.
City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). In a legal sufficiency
review, we review the evidence in the light most favorable to the trial court’s
10
findings, crediting favorable evidence if a reasonable factfinder could and
disregarding contrary evidence unless a reasonable factfinder could not. City of
Keller v. Wilson, 168 S.W.3d 802, 822, 827 (Tex. 2005). So long as the evidence
falls within the zone of reasonable disagreement, we may not substitute our
judgment for that of the factfinder. Id. at 822. When reviewing an assertion that
the evidence is factually insufficient to support a finding, we set aside the finding
only if, after considering and weighing all of the evidence in the record pertinent
to that finding, we determine that the credible evidence supporting the finding is
so weak, or so contrary to the overwhelming weight of all the evidence, that the
answer should be set aside and a new trial ordered. Pool v. Ford Motor Co., 715
S.W.2d 629, 635 (Tex. 1986) (op. on reh’g); Cain v. Bain, 709 S.W.2d 175, 176
(Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). We defer to a
trial court’s factual findings if they are supported by the evidence. Perry Homes
v. Cull, 258 S.W.3d 580, 598 (Tex. 2008), cert. denied, 129 S. Ct. 952 (2009).
B. Analysis
Contrary to Father’s assertions, the trial court made findings in the
protective order that family violence had occurred, that family violence was likely
to occur in the future, and that Father had committed family violence. The family
code provides that a trial court shall issue a protective order if, after a hearing,
the court finds that family violence (1) has occurred and (2) is likely to occur in
the future. Tex. Fam. Code Ann. §§ 81.001 (West 2008), 85.001 (West Supp.
2013). “Family violence” means:
11
(1) an act by a member of a family or household against another member
of the family or household that is intended to result in physical harm, bodily
injury, assault, or sexual assault or that is a threat that reasonably places
the member in fear of imminent physical harm, bodily injury, assault, or
sexual assault . . . .
Id. § 71.004 (West 2008). “Family” includes individuals who are former spouses
of each other and individuals who are the parents of the same child. Id. § 71.003
(West 2008).
Mother’s application for protective order was based on family violence that
occurred after the rendition of the parties’ divorce on June 7, 2007, so the lack of
evidence of family violence occurring during the marriage is irrelevant. 4 In
support of her application, Mother testified that she was afraid of Father and that
since the divorce, Father shoved Phillip, called Phillip names, spat on her, tried to
get into her house, and left her about 100 threatening telephone messages.
Mother made recordings of the threatening messages, and she gave copies of
the recordings to her attorney. She also played the threatening messages for the
police, but the police refused to do anything because Mother had not been
physically harmed by Father and the police viewed the messages as Father
merely expressing his feelings.
4
Father argues that we do not have a sufficient record before us to
determine if family violence occurred prior to the divorce because the transcript
of the trial court’s April 2007 interview of Franklin and Phillip has been destroyed.
Father claims that we must consider the children’s statements made during the
interview and asks us to order the trial judge to record her recollections of the
children’s statements made during the interview. Because Mother’s application
for protective order was based upon family violence that occurred after the
divorce, the interview is not pertinent to our analysis.
12
Mother further testified that in early May 2010, she discovered a box on
her front porch containing a bomb constructed of two salad bowls taped together
with wires, a battery, and gunpowder inside. Mother stated that the bomb did not
go off and that it was later detonated by authorities. Mother later learned Father
deposited the bomb on her porch. Father pled guilty to the offense of possession
of an unregistered destructive device and was sentenced to 120 months in
federal prison.
Mother testified that even though Father was sentenced to ten years’
incarceration, she feared his appeal would be successful and he would be
released within a year. She acknowledged that because Father was currently
incarcerated, he would not personally be able to perpetuate family violence
against her. But Mother feared he might have the ability to threaten her from
prison. Mother stated Father had not made threats against her while he was in
prison, but while he was in jail awaiting sentencing, third parties communicated
threats to her on Father’s behalf.
Applying the appropriate standards of review, and having considered all
the evidence from the hearing on Mother’s application for a protective order, we
hold the evidence is legally and factually sufficient to support the trial court’s
granting of the protective order based upon a finding of family violence. We
overrule Father’s second issue.
13
IV. Calculation of Child Support, Medical Expenses, Health Insurance
Reimbursements, and Attorney’s Fees and Accounting and
Division of Assets and Liabilities
In his third issue, Father complains the trial court abused its discretion in
calculating child support, medical expenses, health insurance reimbursements,
and attorney’s fees and in accounting and dividing the parties’ assets and
liabilities. In support of this issue, Father argues he is entitled to a
reimbursement to his half of the community property because Mother converted
$100,000.00 from the family business prior to the divorce. Father also argues
that Mother’s claims for reimbursement were fraudulent. 5
Father presents no other arguments to support his contention that the trial
court abused its discretion in its calculation of child support, medical expenses,
health insurance reimbursements, and attorney’s fees and in its accounting and
dividing the parties’ assets and liabilities. 6 Mother points out in her brief that
Father fails to direct us to any of the trial court’s findings as erroneous. In his
reply brief, Father refers us to the contents of his motion for continuance, his
motions for additional discovery, and his testimony at the March 30 hearing. He
5
Father also contends the trial court should have continued the case to
examine the evidence of Mother’s alleged fraud. Because we have already
concluded the trial court did not abuse its discretion by denying the motion for
continuance, we do not address Father’s argument here.
6
We address Father’s challenge to the trial court’s valuation and division of
the two Charles Schwab IRAs separately in this opinion.
14
also asks us to review his written objections to Mother’s proposed final judgment
that were filed with the trial court.
Father cannot simply incorporate by reference the arguments he made to
the trial court. “A claim of error on appeal must be argued in the party’s brief; it is
insufficient simply to refer the appellate court to the party’s trial court arguments.”
Allen v. United of Omaha Life Ins. Co., 236 S.W.3d 315, 325 (Tex. App.—Fort
Worth 2007, pet. denied); see also Guerrero v. Tarrant Cnty. Mortician Servs.
Co., 977 S.W.2d 829, 832–33 (Tex. App.—Fort Worth 1998, pet. denied) (“Were
we to approve of this tactic, appellate briefs would be reduced to a simple
appellate record reference to a party’s trial court arguments.”). Moreover, Father
cannot include a new issue in his reply brief in response to Mother’s argument
but not raised in Father’s original brief. See Tex. R. App. P. 38.3; Barrios v.
State, 27 S.W.3d 313, 322 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d), cert.
denied, 534 U.S. 1024 (2001) (“Pointing out the absence of an appellant’s
argument does not raise the argument or entitle appellant to assert that argument
for the first time in his reply brief. If the rule were construed otherwise, an
appellee could never point out matters not raised by an appellant for fear of
reopening the door.”). Therefore, we will only consider the arguments made in
Father’s original brief.
The only arguments Father presents in support of his third issue are
related to Mother’s alleged fraud on the community prior to the divorce and to
Mother’s alleged fraudulent reimbursement claims. We are to construe appellate
15
briefs reasonably, yet liberally, so that the right to appellate review is not lost by
waiver. See Weeks Marine, Inc. v. Garza, 371 S.W.3d 157, 162 (Tex. 2012); see
also Delgado v. Combs, No. 07-11-00273-CV, 2012 WL 4867600, at *2 (Tex.
App.—Amarillo Oct. 15, 2012, no pet.) (mem. op.) (“While pro se litigants must
comply with the law and rules of procedure, pro se pleadings and briefs are to be
liberally construed.”). We attempt to reach the merits of an appeal whenever
reasonably possible. See Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008). A
reasonable, yet liberal, interpretation of Father’s third issue is that he is
challenging the propriety of the trial court’s judgment with respect to the division
of the parties’ community property and the amounts of unreimbursed medical
expenses and health insurance reimbursements. See Delgado, 2012 WL
4867600, at *2; see also Tex. R. App. P. 38.9 (“Because briefs are meant to
acquaint the court with the issues in a case and to present argument that will
enable the court to decide the case, substantial compliance with this rule is
sufficient . . . .”).
A. Standards of Review
We review a trial court’s decision to grant or deny the relief requested in a
motion for enforcement for an abuse of discretion. Beck v. Walker, 154 S.W.3d
895, 901 (Tex. App.—Dallas 2005, no pet.). We also review a trial court’s
division of the marital estate under the same standard. Murff v. Murff, 615
S.W.2d 696, 699 (Tex. 1981). A trial court abuses its discretion if the court acts
without reference to any guiding rules or principles, that is, if the act is arbitrary or
16
unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire, 134
S.W.3d at 838–39. An appellate court cannot conclude that a trial court abused
its discretion merely because the appellate court would have ruled differently in
the same circumstances. E.I. du Pont de Nemours & Co. v. Robinson, 923
S.W.2d 549, 558 (Tex. 1995); see also Low, 221 S.W.3d at 620. A trial court
also abuses its discretion by ruling without supporting evidence. Ford Motor Co.
v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). But an abuse of discretion does not
occur when the trial court bases its decision on conflicting evidence and some
evidence of substantive and probative character supports its decision. Unifund
CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009); Butnaru v. Ford Motor
Co., 84 S.W.3d 198, 211 (Tex. 2002) (op. on reh’g).
In a nonjury trial, the trial court is the sole judge of the credibility of the
witnesses and the weight to be given their testimony. Beck, 154 S.W.3d at 901.
The trial court is also the judge of the facts proved and the reasonable inferences
to be drawn from those facts. Id. When presented with conflicting testimony, the
factfinder may believe one witness and disbelieve another. Id. Where findings of
fact and conclusions of law are neither filed nor timely requested, it is implied that
the trial court made all necessary findings to support its judgment. Holt Atherton
Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992). The legal and factual
sufficiency of the evidence to support these implied findings may be challenged
when, as in this case, a reporter’s record is brought forward. Id. at 84 (citing
Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989)). However, under an
17
abuse of discretion standard, arguments of legal and factual sufficiency of the
evidence to support the judgment are not independent grounds for asserting
error, but they are relevant factors in assessing whether a trial court abused its
discretion. Beck, 154 S.W.3d at 902.
In calculating child-support arrearages, the trial court’s discretion is very
limited. Chenault v. Banks, 296 S.W.3d 186, 189 (Tex. App.—Houston [14th
Dist.] 2009, no pet.) Although the trial court can award certain offsets and
credits, it has no discretion to forgive or decrease a past child-support obligation.
Id. at 189–90. Thus, in a proceeding to confirm child-support arrearages, the trial
court’s child-support calculations must be based on the payment evidence
presented, not the trial court’s assessment of what is fair or reasonable. Id. at
190.
B. Analysis
Father claims that because Mother converted $100,000.00 from the family
business prior to filing for divorce, Father is entitled to a reimbursement to his
half of the community property because of Mother’s alleged misuse of community
funds. It appears Father is suggesting that this reimbursement should have been
credited against the amounts awarded to Mother in the judgment, thereby
reducing the sums he owes to Mother.
Father made this claim for the first time in his motion for continuance of the
March 30 hearing. Father never pled or offered any evidence of Mother’s alleged
fraud at the trial in the present action. Thus, Father did not timely raise this
18
contention in the trial court, and as a result, Father failed to preserve this issue
for appellate review. See Tex. R. App. P. 33.1(a). Moreover, as discussed
above, the parties’ community property was divided in the 2008 divorce decree,
which neither party appealed. Absent an appeal in the original divorce
proceeding, the judgment became final, and Father cannot challenge the court’s
division of the community property in the present action. See Nelson, 135
S.W.3d at 206 (holding res judicata barred claims for breach of fiduciary duty,
fraud, civil conspiracy, and negligence because underlying matter, i.e., fraud
concerning the value of the community estate, could have been litigated in
divorce case); see also Pearson, 332 S.W.3d at 363 (“A judgment finalizing a
divorce and dividing marital property bars relitigation of the property division,
even if the decree incorrectly characterizes or divides the property”).
Next, Father argues that Mother sought “fraudulent sums in fake
reimbursement claims.” Father does not elaborate as to how this assertion
supports his third issue nor does he point us to any portion of Mother’s testimony
or evidence that he contends is “fraudulent” or “fake.” Even though we are not
charged with making Father’s argument and analysis for him, we liberally
construe this argument as a challenge to the sufficiency of the evidence
supporting the amount of unreimbursed medical expenses and health insurance
reimbursements awarded by the trial court. See Tex. R. App. P. 38.9.
The trial court found that as of the date of trial, Father was in arrears
$7,802.36 for health insurance reimbursements and $10,869.11 for
19
unreimbursed health-care expenses. At trial, the parties stipulated that Father
owed $7,802.36 to Mother for health insurance coverage that Mother maintained
on Franklin and Phillip and that Father owed $2,160.00 to Mother for the
children’s extracurricular expenses. Based upon the evidence presented by
Mother and Father, the trial court concluded that Father owed Mother $8,709.11
in unreimbursed medical expenses. The $10,869.11 judgment for unreimbursed
medical expenses consisted of the $8,709.11 in unreimbursed medical expenses
plus the $2,160.00 in extracurricular expenses. Because the amount of
reimbursements in the judgment is supported by the parties’ stipulations and the
evidence presented at trial, we conclude the trial court did not abuse its
discretion in its calculation of the amount of unreimbursed medical expenses and
health insurance reimbursements awarded in the judgment. We overrule
Father’s third issue.
V. Charles Schwab IRAs
Even though he does not raise it as a separate issue, Father devotes
several pages in his brief to a discussion regarding the trial court’s valuation of
the two Charles Schwab IRAs at the time of their division. In light of our
obligation to liberally construe briefs, we address Father’s complaints regarding
the division of the IRAs in a separate issue. See Tex. R. App. P. 38.9.
The final decree specified that the parties were to divide the IRAs by stock
cost basis, if applicable. In July 2010, the trial court held a hearing to effectuate
the award of the IRAs. The court found that the stock cost basis conditionally
20
required by the decree for the distribution of the IRAs did not apply. The court
entered orders assigning to Mother a share of the current assets in the accounts
that equaled her share of the accounts’ value in June 2007. Father complains
the trial court should have assigned to Mother her interest in each account based
upon the value of the accounts at the time of the hearing in July 2010.
The record before us does not contain a record of the hearing at which the
trial court effectuated the division of the IRAs. Nor does the record reflect Father
requested the preparation of the record. Absent a reporter’s record of the
hearing, we must presume the missing record supports the trial court’s ruling.
See In re L.C.H., 80 S.W.3d 689, 691 (Tex. App.—Fort Worth 2002, no pet.)
(“Where a reporter’s record is not requested, the trial court’s findings of fact are
conclusive, and we presume that sufficient evidence was introduced to support
the findings and the judgment based on them.”); In re Marriage of Spiegel, 6
S.W.3d 643, 646 (Tex. App.—Amarillo 1999, no pet.) (“Simply put, if the
reporter’s record is absent because the appellant did not satisfy [Texas Rule of
Appellate Procedure] 35.3(b), we will not only continue to presume that the
missing record supports the trial court’s determination but also forego reviewing
the dispute as authorized under appellate rule 37.3(c).”). Moreover, there is
nothing in the record before us demonstrating that Father objected to these
orders. Therefore, Father has not preserved this complaint for our review. See
Tex. R. App. P. 33.1(a). We overrule Father’s fourth issue.
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VI. Conclusion
Having overruled each of Father’s four issues, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: GARDNER, J.; DAUPHINOT and WALKER, JJ.
DELIVERED: January 9, 2014
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