McCloskey, Christopher Joseph v. McCloskey, Anne Miriam

Opinion of May 29, 2003 Withdrawn; Affirmed in Part and Reversed and Remanded in Part; Corrected Memorandum Opinion filed June

Opinion of May 29, 2003 Withdrawn; Affirmed in Part and Reversed and Remanded in Part; Corrected Memorandum Opinion filed June 12, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-00-01300-CV

NO. 14-00-01307-CV

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CHRISTOPHER JOSEPH MCCLOSKEY, Appellant

V.

ANNE MIRIAM MCCLOSKEY, Appellee

On Appeal from the 387th District Court

Fort Bend County, Texas

Trial Court Cause No. 106,445

C O R R E C T E D    M E M O R A N D U M    O P I N I O N

Our Opinion of May 29, 2003, is withdrawn due to a typographical error, and the following is substituted.  Appellant Christopher Joseph McCloskey appeals from a final decree of divorce signed on September 21, 2000, as modified.^[1]  For the reasons stated below, we affirm in part, reverse in part, and remand.

PROCEDURAL BACKGROUND

Anne Miriam McCloskey began divorce proceedings against Chris McCloskey in late 1998.  Chris counter-petitioned for divorce.  A jury heard the issues relating to conservator-ship and primary residence of their two children.  The trial court heard the remaining issues relating to the children, including child support, rights and powers of a parent, and visitation, as well as the characterization and division of property and attorney=s fees.  Although Chris was represented by counsel at the jury trial, he discharged his counsel and represented himself pro se at the bench trial.  The trial court signed a divorce decree on September 21, 2000.  Chris filed a notice of appeal from that judgment.

After the entry of the original decree of divorce, the trial court issued several orders, including a turnover order and Qualified Domestic Relations Orders.  The original decree of divorce was also modified several times, and a corrected final judgment was signed on January 12, 2001. Chris filed an amended notice of appeal in response to the subsequent judgments.  The trial court filed findings of fact and conclusions of law, and later filed amended and additional findings of fact and conclusions of law at Chris=s request.  The trial court also entered an order assessing sanctions in the amount of $5,000.00 against Chris and an attorney he retained after he discharged his earlier counsel. 

DISCUSSION

On appeal, Chris does not contest the trial court=s rulings relating to the children; he challenges only the trial court=s conduct of the bench trial and an ancillary sanctions hearing. Chris raises twelve issues that may be grouped in the following categories: (1) the exclusion of evidence; (2) the limitation on trial time; (3) the assessment of sanctions; (4) the award of attorney=s fees to Anne; and (5) the issuance of orders after the filing of an appeal.  We will address each in turn.  The parties are familiar with the facts, so we will discuss only those necessary for our analysis.

I.          The Exclusion of Evidence

In issues one through four, Chris complains about the exclusion of certain account records and tracing charts from the bench trial of the property issues. Specifically, he claims that the trial court committed the following errors: (1) it placed the burden on him to prove that he timely produced the documents when Anne=s counsel objected to their admission on the grounds that they were not timely produced; (2) alternatively, it found the documents were not timely produced when the evidence was legally and factually insufficient to show that Chris violated any discovery rules or alleged Rule 11 agreements; (3) it excluded the documents even though (i) Anne=s counsel did not come forward with evidence to support their assertions of untimeliness, (ii) Anne=s counsel previously admitted their receipt of account records in a motion to strike the records as untimely, and (iii) Anne=s counsel had waived such complaints as part of an agreement made in open court; and (4) to the extent it relied on Anne=s counsel=s unsworn assertions of untimeliness, the trial court erred in precluding Chris from cross-examining counsel or requiring counsel to produce documents to substantiate Anne=s counsel=s assertions. 

Before an appellate court will reverse a judgment based on exclusion of evidence, the appellant must show that any error in excluding the evidence caused the rendition of an improper judgment.  See Tex. R. App. P. 44.1(a); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995) (holding that error in the exclusion of evidence is not reversible unless appellant shows error probably caused the rendition of an improper judgment).  Here, Chris has wholly failed to demonstrate reversible error.

The general thrust of these issues is that, by erroneously placing the burden of proof on Chris to show the documents were timely produced, not only was evidence excluded, but also Chris=s trial presentation was disrupted.  Because he was forced to spend an inordinate amount of time on the admissibility of the documents, Chris argues he was unable to put on relevant and admissible evidence in support of his case on property division before the trial court determined his time had expired.  Chris also claims evidence was excluded because he was erroneously held to a March 7, 2000 discovery cutoff as provided in a Rule 11 agreement instead of an agreement made in open court on May 10, 2000, in which Chris agreed to waive his right to a jury trial in exchange for Anne=s agreement to waive any complaints about discovery produced through that date.

Chris=s argument focuses primarily on the trial court=s error in placing the burden on him to overcome Anne=s representations that certain documents were not timely produced. And, the record appears to show that Anne in fact may have waived her objections to any late-filed discovery (at least as of May 10, 2000) in exchange for Chris=s agreement to a bench trial on part of the dispute.  However, we need not reach either of these issues, because Chris does not identify what evidence he contends the trial court ultimately excluded in error or what it would have shown.^[2]  Moreover, he does not challenge the trial court=s findings of fact addressing the property division.  See London v. London, 94 S.W.3d 139, 149 (Tex. App.CHouston [14th Dist.] 2002, no pet.) (holding that unchallenged findings of fact are binding on the appellate court unless the contrary is established as a matter of law or there is no evidence to support the trial court=s findings).  In his reply brief, Chris references thirty-eight exhibits that he identified in the fact section of his original brief, and states that the documents were “clearly relevant” to the separate property characterization/tracing issues, but he does not explain how they were relevant or what the documents or accompanying testimony would have shown; nor does he provide any authority for any property character-ization theories he might have raised.  Without this information, we cannot know if the exclusion of the evidence caused the rendition of an improper judgment.  As for the testimony he was unable to adduce, the same problem existsCwe do not know what the witness would have stated.  Thus, not knowing what the excluded evidence might have shown, it is impossible for us to conclude that the trial court=s conduct of the trial caused the rendition of an improper judgment.  Moreover, being a neutral adjudicatory body, we are not at liberty to advocate for one side or the other by making their arguments for them.  See Lagrone v. John Robert Powers Schools, Inc., 841 S.W.2d 34, 37 (Tex. App.CDallas 1992, no writ).  There-fore, Chris has waived the issues relating to the trial court=s exclusion of evidence. 

Issues one through four are overruled. 

II.        The Limitation on Trial Time

In his fifth and sixth issues, Chris complains that the trial court abused its discretion in imposing an arbitrary, unilateral time limit upon Chris=s presentation of his case and terminating the trial when the limit was reached.  Much of Chris=s argument on these issues reprises his arguments in the first four issues, because he contends that the exclusion of relevant evidence relating to his property claims constituted reversible error. 

The trial judge is responsible for the general conduct and management of the trial. Hoggett v. Brown, 971 S.W.2d 472, 495 (Tex. App.CHouston [14th Dist.] 1997, pet. denied).  Every trial court has the “‘inherent power’” to control the disposition of the cases on its docket “‘with economy of time and effort for itself, for counsel, and for litigants.’”  Metzger v. Sebeck, 892 S.W.2d 20, 38 (Tex. App.CHouston [1st Dist.] 1994, writ denied) (quoting Landis v. North Am. Co., 299 U.S. 248, 254 (1936)).  Together, the court=s inherent power and the applicable rules of procedure and evidence accord judges broad, but not unfettered, discretion in handling trials. Id.  The control given the trial judge must be exercised reasonably, and a party must be given a fair opportunity to present its case so the jury may ascertain the truth.  Sims v. Brackett, 885 S.W.2d 450, 455 (Tex. App.CCorpus Christi 1994, writ denied).

Here, Chris complains that, although Anne estimated that the presentation of her case would take one day, she was permitted to exceed that amount of time, and it was not until she rested that the trial court imposed a strict time limit of three hours on Chris.  Chris also complains that the trial court wrongly included in his allotted trial time the time he spent attempting to address Anne=s motions to suppress Chris=s evidence.  He claims this error was particularly harmful since he was acting pro se.  The cumulative effect of these errors, Chris argues, was the rendition of an improper judgment.

It is apparent from our review of the record that Chris=s attempted presentation of his case on the property issues amply illustrates the perils of pro se representation.  Chris did not use his time to any advantage; instead, he wasted considerable time on matters that did not advance his trial presentation.  It is evident that at least some of Chris=s difficulties stemmed, not from any time limits imposed by the trial court, but from his fundamental lack of under-standing of procedural rules, the trial process, and basic legal principles.  Litigants choosing to appear pro se must comply with the applicable procedural rules and are held to the same standards that apply to licensed attorneys.  See Sedillo v. Campbell, 5 S.W.3d 824, 829 (Tex. App.CHouston [14th Dist.] 1999, no pet.).  To treat Chris differently would accord him an unfair advantage over litigants represented by counsel.  See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184 (Tex.1978).

Nevertheless, we are troubled by the three-hour limitation placed on Chris=s presentation of his case on property issues, particularly when Anne was permitted to exceed her allotted time and Chris was given no leeway whatsoever.  When, as here, a trial court undertakes to manage a trial by limiting the total amount of time available for trial, due process concerns may be implicated. See Walton v. Canon, Short & Gaston, 23 S.W.3d 143, 155 (Tex. App.CEl Paso 2000, no pet.) (McClure, J., concurring).

But, as in our discussion of issues one through four, Chris has failed to show us what evidence was excluded, and he does not demonstrate how it might have altered the outcome of the trial.  Therefore, the issues have not been adequately preserved for our review.

We overrule issues five and six.

III.       The Assessment of Sanctions

In issues seven, eight, and nine, all of which address post-judgment sanctions, Chris contends the trial court erred by (1) imposing a $5,000.00 sanction against Chris and his attorney when there was no legal basis for doing so, (2) imposing the sanction when there was no evidence, or factually insufficient evidence, of any sanctionable conduct, and (3) awarding attorney=s fees to Anne as a sanction, when there was no evidence, or factually insufficient evidence, that those fees were reasonably and necessarily incurred as a result of any sanctionable conduct.

The sanctions order was based on Chris=s request that the trial court rule on a voluminous bill of exceptions he filed on November 8, 2000.  At the presentation of the bill, however, it was determined that the bill Chris presented to the court differed in certain respects from the bill served upon Anne, and so the matter was passed.  Anne then filed a motion for sanctions based on her numerous objections to the bill.  Among other things, she argued that much of what was filed in the bill of exceptions (1) had been filed before, (2) was actually entered in evidence, or (3) was prepared after the trial.  Additionally, Chris had retained counsel, Mr. Moore, who filed a notice of appearance on October 18, 2000. Even though Moore was retained and filed a notice of appearance before Chris filed the bill of exceptions, Chris, rather than Moore, signed the bill of exceptions.  The trial court ordered sanctions imposed against Chris and Moore, jointly and severally, in the sum of $5,000.00, plus post-judgment interest. 

The trial court=s order included numerous findings of specific grounds for the imposition of sanctions, including violations of Texas Rules of Civil Procedure 13, 21b, and 57, Texas Civil Practice and Remedies Code section 10.001(1), and Texas Rule of Appellate Procedure 33.2.  Chris makes several arguments as to why the sanctions are unjustified, but we find them unmeritorious.  At a hearing on the motion for sanctions, Moore admitted providing legal services to Chris in June of 2000, and invoices admitted into evidence showed Moore billed Chris for legal services from July through September of 2000.^[3]  Moore did not dispute that he filed a notice of appearance on October 18, 2000, and he did not disagree that Chris filed and signed the bill of exceptions after Moore was designated as counsel of record.  Moore denied that he assisted Chris with the bill of exceptions, but admitted that an invoice entry for September 13 referred to editing and preparing the bill of exceptions.  He explained that “the only thing that I did on that document was to take Mr. McCloskey=s acknowledgment and I did give him changes to the document” and “[t]here were references in his copy that I did not think were proper for him to include in his bill of exceptions.”  Anne=s counsel then testified and was cross-examined regarding the reasonableness of his attorney=s fees.  He testified that the attorney=s fees incurred as a result of the bill of exceptions totaled $11,450.00, as reflected on an invoice admitted into evidence.  He also testified that it was necessary for him and another lawyer to go through the entire 1,685 pages of the bill of exceptions to compare them with other documents and to attend hearings on the matter.

Chris has failed to show that the trial court abused its discretion in awarding the sanctions, and we find the award, totaling less than half of the fees sought by Anne, was appropriate and supported by the record.  See TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991) (holding that a direct relationship must exist between the offensive conduct and the sanction imposed, and the sanction must not be excessive).

IV.       The Award of Attorney’s Fees to Anne

In issue ten, Chris raises two complaints regarding the manner in which the trial court assessed and awarded trial and appellate attorney fees against him.  First, Chris complains that the trial court classified its award of $50,398.00 in attorney’s fees as “child support and property division,” and argues that the trial court=s failure to segregate the portion of the award representing attorney=s fees incurred in the property division and the portion repre-senting fees incurred in connection with child support provides Anne the benefit of the enhanced remedies for enforcement of child support judgments for the entire award.  We agree.  Because Anne is willing to rectify the matter by classifying the fees as part of the division of property, we sustain this part of Chris=s issue and remand to the trial court to correct the judgment on this issue.

Chris=s second complaint is that the trial court erred in failing to condition the guardian ad litem=s appellate attorney fee award on Chris=s unsuccessful appeal of issues relating to the ad litem=s appointment.  However, Chris does not tell us where in the record he brought this problem to the trial court=s attention.  Consequently, the issue is waived.  See Melendez, 998 S.W.2d at 280.

In addition, any error is moot because custody and support issues were not appealed. Two orders in the judgment clarify that there are no appellate attorney=s fees for the ad litem.  First, the judgment itself states that the appellate fee award for Lester Van Slyke is not effective unless the ad litem=s services are required during the pendency of the appeal.  Chris did not appeal any custody or support issues; he appealed only the property division from the bench trial.  As a result, this appeal did not require the services of the ad litem and the order contained in the judgmentCthat the ad litem will not receive appellate attorney=s fees if his services are not requiredCcontrols.  There are no appellate attorney fees for the ad litem.  In addition, the judgment orders that the ad litem, having fulfilled all duties and obligations, is discharged from all further duties and obligations as ad litem.

In short, the ad litem was not involved in this appeal and, therefore, he incurred no appellate attorney=s fees and none will be assessed against Chris.  We therefore overrule this portion of issue ten.

V.        The Issuance of Orders After Appeal

In his last two issues, Chris contends that the trial court erred by (1) issuing orders clarifying and aiding enforcement of its judgment when its judgment was the subject of a notice of appeal, and (2) issuing orders that divested Chris of his separate property.  Chris=s complaints relate to two financial accounts, a Du Pont account and a Vanguard account, which were the subject of a Turnover Order, and a Qualified Domestic Relations Order (QDRO) directed to the Du Pont account.^[4] 

Chris relies on section 9.007(c) of the Texas Family Code, which provides that “[t]he power of the court to render further orders to assist in the implementation of or to clarify the property division is abated while an appellate proceeding is pending.”  Tex. Fam. Code Ann. ' 9.007(c).  Chris also cites this Court’s opinion in English v. English, 44 S.W.3d 102, 106 (Tex. App.CHouston [14th Dist.] 2001, no pet.), in which we discussed section 9.007(c) and noted that, after an initial decree containing a property division, the trial court is legislatively restrained from rendering further orders to assist in the implementation or clarification of the property division pending appeal.  However, Texas Family Code section 9.101 exempts QDROs from the purview of section 9.007:

(a)  Notwithstanding any other provision of this chapter, the court that rendered a final decree of divorce or annulment or another final order dividing property under this title retains continuing, exclusive jurisdiction to render an enforceable qualified domestic relations order or similar order ….

Tex. Fam. Code Ann. ' 9.101(a).  Moreover, English is distinguishable because it did not involve QDROs. Therefore, we find that the trial court did not lack the authority to enter the QDRO directed to the Du Pont account. As for the turnover order, it was filed approximately 90 minutes before the notice of appeal was filed, so we need not reach the question whether it was rendered in violation of section 9.007(c).

Finally, we find that Chris has inadequately briefed the issue of the divestiture of separate property and so has waived the issue.  See Tex. R. App. P. 38.1(h); Rendleman v. Clarke, 909 S.W.2d 56, 59 (Tex. App.CHouston [14th Dist.] 1995, writ dism’d as moot).              Therefore, we overrule issues eleven and twelve.

                                                                 CONCLUSION

In summary, the judgment of the trial court is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. Specifically, we affirm all portions of the judgment, except for that part of the judgment which assessed all attorney=s feesCwhether related to property division or child custodyCas child support and property division, and failed to segregate the fees related to the property division from the child custody issues.  That part of the judgment is reversed and remanded for further proceedings in accordance with this opinion.

/s/        Wanda McKee Fowler

Justice

Judgment rendered and Corrected Memorandum Opinion filed June 12, 2003.

Panel consists of Chief Justice Brister and Justices Hudson and Fowler.

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^[1]  Appellant’s appeal in this cause, No. 14-00-01300-CV, was consolidated with an interlocutory appeal in No. 14-00-01307-CV, which appellant states in his brief he has now abandoned. 

^[2]  The record in this case was voluminous, consisting of thirty-one volumes of clerk’s record plus one supplemental volume, thirty-four volumes of reporter’s record (including eight volumes of exhibits), and a supplemental reporter’s record.  This Court has no duty to search a voluminous recordCwithout guidance from the appellantCto determine whether an assertion of reversible error is valid.  See Melendez v. Exxon Corp., 998 S.W.2d 266, 280 (Tex. App.CHouston [14th Dist.] 1999, no writ).

^[3]  Chris had discharged his prior counsel on June 14, 2000.

^[4]  Chris contends that both the Du Pont and the Vanguard accounts are subject to QDROs, but the record contains no QDRO addressing the Vanguard account.