in the Matter of the Marriage of Kriss Camp and Belinda Camp ( 2014 )


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  •                                    In The
    Court of Appeals
    Seventh District of Texas at Amarillo
    No. 07-13-00283-CV
    IN THE MATTER OF THE MARRIAGE
    OF KRISS RAY CAMP AND BELINDA GAIL CAMP
    On Appeal from the 320th District Court
    Potter County, Texas
    Trial Court No. 80593-D, Honorable Don R. Emerson, Presiding
    July 18, 2014
    MEMORANDUM OPINION
    Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
    Appellant Kriss Camp, an indigent inmate appearing pro se, appeals the
    judgment of the trial court declaring his marriage to appellee Belinda Camp, n/k/a
    Belinda Ingram, void. We will affirm the judgment of the trial court.
    Background
    This is the second appeal of litigation concerning the relationship of Camp and
    Ingram. In 2011, in Camp’s absence, the trial court rendered a divorce decree. On
    appeal, we found the trial court did not afford Camp a meaningful opportunity to
    participate in the trial and the error was harmful.      We reversed the judgment and
    remanded the case for a new trial.1 Our mandate to the trial court stated in part,
    “Pursuant to the opinion of the Court, it is ordered, adjudged and decreed that the
    judgment of the trial court is reversed and this cause is remanded to the trial court for a
    new trial.”
    When the case was retried to the bench, Ingram amended her pleadings to
    present a claim that her marriage to Camp was void. The evidence showed Camp had
    an existing marriage at the time he and Ingram married and after the existing marriage
    ended in divorce Camp and Ingram did not live together as husband and wife. 2 Camp
    sought recovery of a pickup truck he transferred to Ingram. It appears undisputed that
    Camp owned the pickup at the time he and Ingram married. Ingram acknowledged, in
    response to a question from the trial court, that the pickup was not purchased during her
    marriage to Camp. Camp referred to the pickup as “mine” and stated it was “signed
    over [to Ingram] out of fraud.”
    In its judgment, the trial court declared the marriage void and ordered “that each
    party take as his or her sole and separate property all the property that is presently in
    1
    Camp v. Camp, No. 07-11-00282-CV, 2012 Tex. App. Lexis 6473 (Tex. App.—
    Amarillo Aug. 3, 2012, no pet.) (mem. op.) (hereinafter Camp I).
    2
    Texas Family Code section 6.202 provides:
    (a) A marriage is void if entered into when either party has an existing
    marriage to another person that has not been dissolved by legal action
    or terminated by the death of the other spouse.
    (b) The later marriage that is void under this section becomes valid when
    the prior marriage is dissolved if, after the date of the dissolution, the
    parties have lived together as husband and wife and represented
    themselves to others as being married.
    TEX. FAM. CODE ANN. § 6.202(a),(b) (West 2006).
    2
    his or her possession.” Findings of fact and conclusions of law were neither requested
    nor filed. Camp’s motion for new trial was apparently overruled by operation of law.
    This appeal followed.
    Analysis
    The evidence developed at the short trial on remand is sparse and Camp’s
    argument on appeal is difficult to follow. As we see it, the fundamental premise of
    Camp’s complaint is the trial court failed to execute our mandate on remand by not
    affording him a proper trial.    By this Camp means Ingram’s action to declare the
    marriage void exceeded the scope of our mandate in Camp I. He also contends he did
    not receive notice of the trial date required by rule, and was unable to call witnesses to
    prove Ingram defrauded him into transferring the title to his pickup truck to her. In
    passing, he also complains of ex parte communication between Ingram’s pro bono
    counsel and the trial court “to influence the hiding of the facts,” aggravated perjury by
    Ingram, the absence of necessary documents from the clerk’s record, “fraud on the
    court” by Ingram, and “constitutional error” apparently implicating due process.
    The Scope of Retrial
    Concerning our mandate and specifically the scope of retrial, Camp misconstrues
    the effect of our opinion in Camp I. He asserts the scope of our mandate prohibited the
    trial court from considering Ingram’s amended pleadings to declare the marriage void.
    Rather, in his estimation the trial court was bound to retry the prior petition for divorce
    and division of the marital estate.
    3
    When a trial court receives an appellate court’s mandate, it has a mandatory,
    ministerial duty to enforce the appellate court’s judgment. In re Richardson, 
    327 S.W.3d 848
    , 850 (Tex. App.—Fort Worth 2010, orig. proceeding) (citing TEX. R. APP. P. 51.1(b)
    and In re Marriage of Grossnickle, 
    115 S.W.3d 238
    , 243 (Tex. App.—Texarkana 2003,
    no pet.)). In Camp I we placed no limitation on the retrial on remand. Thus the case
    was reopened in its entirety. In re Estate of Crenshaw, No. 07-00-0127-CV, 2000 Tex.
    App. LEXIS 4935, at *4 (Tex. App.—Amarillo July 26, 2000, no pet.) (not designated for
    publication) (citing University of Texas v. Harry, 
    948 S.W.2d 481
    , 483 (Tex. App.—El
    Paso 1997, no writ) (stating remand is generally unlimited in scope and the cause is
    “reopened in its entirety” unless the opinion expressly states to the contrary)); Graham
    S&L Ass’n, F.A. v. Blair, 
    986 S.W.2d 727
    , 729 (Tex. App.—Eastland 1999) (“If a
    reversal is limited to particular fact issues, it must be clear from the court’s decision”
    (citation omitted)).     Therefore, so long as Ingram complied with the applicable
    procedural and substantive requirements, she was free on retrial to amend her
    pleadings to seek a declaration that the marriage was void. TEX. FAM. CODE ANN. §
    6.307(a) (West 2006). Nothing in the record indicates the trial court failed to properly
    execute our mandate. The issue is overruled.
    Lack of Forty-Five Days’ Notice of Trial and Absent Witness Testimony
    In part, rule of civil procedure 245 states “the court may set contested cases on
    written request of any party, or on the court’s own motion, with reasonable notice of not
    less than forty-five days to the parties of a first setting for trial . . . .” TEX. R. CIV. P. 245.
    Rule of evidence 103(a)(2) provides “Error may not be predicated upon a ruling which
    admits or excludes evidence unless a substantial right of the party is affected, and . . . .
    4
    In case the ruling is one excluding evidence, the substance of the evidence was made
    known to the court by offer, or was apparent from the context within which questions
    were asked.” TEX. R. EVID. 103(a)(2). In order to preserve a complaint on appeal,
    appellate rule 33.1(a) requires both the presentation of a complaint to the trial court and
    an express or implicit ruling. TEX. R. APP. P. 33.1(a).
    Camp filed an answer to Ingram’s pleadings to declare their marriage void, and
    was present and participated in the trial. He does not point us to, nor do we find, any
    place in the record at which he timely objected to the adequacy of notice of the trial
    setting, made the court aware of the identity of the witnesses he wished to present or
    made an offer of proof sufficiently summarizing the expected testimony of the absent
    witnesses. Accordingly, these complaints are waived. TEX. R. APP. P. 33.1(a); see
    Stallworth v. Stallworth, 
    201 S.W.3d 338
    , 346 (Tex. App.—Dallas 2006, no pet.)
    (explaining a party waives any complaint of error resulting from a trial court’s failure to
    afford proper notice under rule 245 by proceeding to trial and not objecting to lack of
    notice); TEX. R. EVID. 103(a)(2) (offer of proof); Bosch v. Cedar Vill. Townhomes
    Homeowners Ass’n, Inc., No. 01-09-00654-CV, 2011 Tex. App. LEXIS 804, at *16-17
    (Tex. App.—Houston [1st Dist.] Feb. 3, 2011, no. pet.) (mem. op.) (“When a trial court
    improperly excludes evidence, a party must show that the error affects a substantial
    right of the party and the substance of the error was made known to the court by offer or
    was apparent from the context in which questions were asked. A party must present
    the nature of the evidence with enough specificity that an appellate court can determine
    its admissibility and whether any exclusion was harmful” (citations omitted)); Akin v.
    Santa Clara Land Co., 
    34 S.W.3d 334
    , 339 (Tex. App.—San Antonio 2000, pet. denied)
    5
    (“The failure to make an offer of proof containing a summary of the excluded witness’s
    intended testimony waives any complaint about the exclusion of the evidence on
    appeal”); see In re B.L.D., 
    113 S.W.3d 340
    , 350 (Tex. 2003) (“[r]equiring parties to raise
    complaints at trial conserves judicial resources by giving trial courts an opportunity to
    correct an error before an appeal proceeds”).
    Moreover, even had Camp preserved his lack of adequate notice of trial
    complaint, it would have no merit. The case was called for trial on May 13, 2013. When
    the court discovered Ingram’s void-marriage claim was not alleged in her live pleading it
    continued the case so a proper pleading might be filed with an opportunity for Camp to
    answer. As noted, Camp filed pleadings in response to the void-marriage pleading.
    Trial then occurred on June 12, 2013.
    The forty-five day notice requirement of civil rule 245 applies only to the first trial
    setting. TEX. R. CIV. P. 245. Camp complains here of notice of the June 12 setting.
    Notice of subsequent settings is not subject to a specific time standard but must be
    “reasonable.” See Osborn v. Osborn, 
    961 S.W.2d 408
    , 411 (Tex. App.—Houston [1st
    Dist.] 1997, pet. denied) (parties are entitled to reasonable notice under rule 245 of
    subsequent trial settings); State Farm Fire & Cas. Co. v. Price, 
    845 S.W.2d 427
    , 432
    (Tex. App.—Amarillo 1992, writ dism’d by agr.) (explaining by “the clear language of
    rule 245,” the forty-five day notice requirement applies only to the first trial setting). A
    trial court is presumed to hear a case only on proper notice to the parties. Custom-
    Crete v. K-Bar Servs., Inc., 
    82 S.W.3d 655
    , 659 (Tex. App.—San Antonio 2002, no pet.)
    The presumption is rebuttable. 
    Id. But Camp
    has not shown his notice of the June 12
    setting was unreasonable. The issue is overruled.
    6
    Fraud
    As noted, Camp sometimes used the term “fraud” in his statements during trial
    regarding his transfer of his pickup to Ingram. He did not assert a counterclaim for fraud
    against Ingram, and on appeal he does not expressly contend the trial court erred by
    failing to find she defrauded him. Nonetheless it is clear to us that Ingram’s retention of
    the pickup is Camp’s major complaint of the outcome of the trial. He claims Ingram
    persuaded him to transfer title to the pickup for the vehicle’s “protection” while he was
    incarcerated. Having reviewed the record,3 we do not hold that Camp and Ingram
    litigated a claim that his transfer of the pickup was induced by fraud.4 To any extent,
    however, that Camp’s contentions on appeal depend on that argument, we hold the trial
    court did not err by failing to accept it.5 As trier of fact the trial court was the exclusive
    judge of the credibility of the witnesses, was entitled to believe one witness over
    another, and could resolve any conflicts in the testimony. Sanders v. Total Heat & Air,
    Inc., 
    248 S.W.3d 907
    , 917-18 (Tex. App.—Dallas 2008, no pet.).                 The issue is
    overruled.
    3
    We note also that in our effort to understand thoroughly the issues Camp brings
    before us we have taken judicial notice of and considered the contents of documents
    Camp has submitted in the mandamus proceeding he initiated against the trial court
    judge. In re Camp, No. 07-13-00265-CV, 2014 Tex. App. LEXIS 6965 (Tex. App.—
    Amarillo June 25, 2014, orig. proceeding) (mem. op.).
    4
    Nor do we hold they did not litigate such a claim. The question simply is not
    before us.
    5
    Camp does not couch his argument in terms of a challenge to the court’s
    disposition of the parties’ property. See, e.g., Ratliff v. King, No. 03-08-00424-CV, 2009
    Tex. App. LEXIS 7040, at *12-13 (Tex. App.—Austin Aug. 31, 2009, no pet.) (mem. op.)
    (reviewing division of property of void marriage, citing Dean v. Goldwire, 
    480 S.W.2d 494
    , 496 (Tex. Civ. App.—Waco 1972, writ ref’d n.r.e.)). Even were we to address his
    argument as such a challenge, we could not find the trial court abused its discretion by
    giving effect to the transfer of title to the pickup to Ingram.
    7
    Other Complaints
    Camp’s previously noted other complaints were made in passing and are simply
    not sufficiently presented for review. TEX. R. APP. P. 38.1(f),(i). Therefore they are
    waived. Gray v. Nash, 
    259 S.W.3d 286
    , 294 (Tex. App.—Fort Worth 2008, pet. denied)
    (finding issues waived due to inadequate briefing). Pro se litigants are not exempt from
    the rules of procedure. Pena v. McDowell, 
    201 S.W.3d 665
    , 667 (Tex. 2006) (per
    curiam); Wheeler v. Green, 
    157 S.W.3d 439
    , 444 (Tex. 2005) (per curiam).
    Conclusion
    Any additional relief requested by Camp during the pendency of this appeal and
    carried with the case is denied. The judgment of the trial court is affirmed.
    James T. Campbell
    Justice
    8