in the Matter of the Marriage of Bryan Blackheart and Dawniel Blackheart

IN THE
TENTH COURT OF APPEALS
No. 10-20-00073-CV
IN THE MATTER OF THE MARRIAGE
OF BRYAN BLACKHEART AND DAWNIEL BLACKHEART
From the 361st District Court
Brazos County, Texas
Trial Court No. 19-000670-CVD-361
MEMORANDUM OPINION
In four issues, appellant, Bryan Blackheart, challenges the trial court’s final decree
in his divorce from appellee, Dawniel Blackheart. We affirm.
I. ANALYSIS
In his first issue, appellant contends that the trial court erred by denying his
motion to transfer venue and motion for continuance so that he could retain an attorney
and complete discovery. With regard to venue, appellant argues that the general venue
statute, section 15.002 of the Texas Civil Practice and Remedies Code, applies, and as
such, this matter should have been transferred to Jefferson County, Texas, where
appellant was incarcerated at the time. See TEX. CIV. PRAC. & REM. CODE ANN. § 15.002.
A defendant raises the question of proper venue by objecting to a plaintiff’s venue
choice through a motion to transfer venue. See TEX. R. CIV. P. 86. We review a trial court’s
denial of a motion to transfer venue de novo. See Silverman v. Johnson, 317 S.W.3d 846,
848 (Tex. App.—Austin 2010, no pet.) (citing Wilson v. Tex. Parks & Wildlife Dep’t, 886
S.W.2d 259, 260-62 (Tex. 1994); Killeen v. Lighthouse Elec. Contractors, L.P., 248 S.W.3d 343,
347 (Tex. App.—San Antonio 2007, pet. denied)).
The Texas Family Code provides that a suit for divorce may not be maintained in
this state unless at the time the suit is filed either the petitioner or the respondent has
been (1) a domiciliary of this state for the preceding six months, and (2) a resident of the
county in which the suit is filed for the preceding ninety days. TEX. FAM. CODE ANN. §
6.301. As a specific statute, section 6.301 of the Texas Family Code controls over the
general venue statute, section 15.002 of the Texas Civil Practice and Remedies Code. See
In re Hurley, 442 S.W.3d 432, 433 (Tex. App.—Dallas 2013, orig. proceeding) (stating that
the venue provisions of the Texas Civil Practice and Remedies Code do not apply to cases
governed by the Texas Family Code (citing In re Nabors, 276 S.W.3d 190, 194 (Tex. App.—
Houston [14th Dist.] 2009, orig. proceeding))); Lutes v. Lutes, 538 S.W.2d 256, 257 (Tex.
App.—Houston [14th Dist.] 1976, no writ); see also In re Elliott, No. 12-07-00217-CV, 2007
Tex. App. LEXIS 5603, at *3 (Tex. App.—Tyler July 18, 2007, orig. proceeding) (mem. op.).
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Therefore, the general venue statute does not apply in divorce actions. See In re Hurley,
442 S.W.3d at 433; Lutes, 538 S.W.2d at 257; see also In re Elliott, 2007 Tex. App. LEXIS 5603,
at *3. Accordingly, we conclude that appellant’s venue complaint lacks merit.
Additionally, appellant complains about the trial court’s ruling on his motion for
continuance so he could retain an attorney and complete discovery.1 However, appellant
cites to no authority in support of his contention. Therefore, we conclude that this sub-
issue has been inadequately briefed.2 See TEX. R. APP. P. 38.1(i). We overrule appellant’s
first issue.
In his second issue, appellant complains that the trial court erroneously interfered
with his attempts to retain counsel and made inappropriate comments and criticized him
for not having counsel. Once again, appellant does not cite to any relevant authority to
support his contention in this issue. Instead, appellant cites to boilerplate language
1 Appellant’s additional complaint about his motion for continuance is arguably multifarious. See
In re S.K.A., 236 S.W.3d 875, 894 (Tex. App.—Texarkana 2007, pet. denied) (observing that a multifarious
issue or point of error is one that raises more than one specific ground of error). Courts may disregard any
assignment of error that is multifarious. Rich v. Olah, 274 S.W.3d 878, 885 (Tex. App.—Dallas 2008, no pet.).
However, a reviewing court may consider a multifarious issue if it can determine, with reasonable
certainty, the error about which appellant wants to complain. Id. While we endeavor to do so here,
appellant has not provided us with any legal authority to support his argument. Furthermore, we note
that appellant was afforded more than 250 days to file his appellant’s brief in this matter. Pursuant to Texas
Rule of Appellate Procedure 38.6(a), appellant’s brief was due within thirty days of the later of the date the
Clerk’s Record or Reporter’s Record was filed. See TEX. R. APP. P. 38.6(a).
2 We also note that the record reflects that appellant was granted one continuance, which resulted
in the postponement of trial from September 12, 2019, to October 30, 2019. During that time, no additional
discovery requests were made by appellant, and all responses to appellant’s discovery were served on
October 1, 2019. Furthermore, the record does not reflect that appellant asked for a hearing on the issue of
requiring appellee to pay for his attorney’s fees.
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regarding the duties imposed on those who represent themselves and argues, without
citing any authority, that an exception to the proposition that pro se litigants are held to
the same standards as licensed attorneys should be made for federal inmates involved in
state court litigation.
A party proceeding pro se must comply with all applicable procedural rules.
Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex. 1978). A pro se litigant is held to
the same standard that applies to a licensed attorney. Weaver v. E-Z Mart Stores, 942
S.W.2d 167, 169 (Tex. App.—Texarkana 1997, no writ) (citing Brown v. Tex. Emp. Comm’n,
801 S.W.2d 5, 8 (Tex. App.—Houston [14th Dist.] 1990, writ denied)). No allowance is to
be made for the fact that a party is not a lawyer. Id. (citing Bailey v. Rogers & Keyser, 631
S.W.2d 784, 786 (Tex. App.—Austin 1982, no writ)).
In the instant case, appellant did not file a motion to recuse the trial judge based
on the alleged inappropriate comments. Furthermore, as stated above, appellant has not
cited to any relevant authority in support of his requested relief in this issue.
Accordingly, we conclude that this issue is inadequately briefed. See TEX. R. APP. P.
38.1(i). We overrule appellant’s second issue.
In his third issue, appellant asserts that the trial court’s division of the community
property and debts was manifestly unfair. We disagree.
In a divorce proceeding, the Texas Family code requires the trial court to “order a
division of the estate of the parties in a manner that the court deems just and right, having
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due regard for the rights of each party and any children of the marriage.” TEX. FAM. CODE
ANN. § 7.001. We review a trial court’s division of property under an abuse-of-discretion
standard. Bradshaw v. Bradshaw, 555 S.W.3d 539, 543 (Tex. 2018). A trial court abuses its
discretion when it acts arbitrarily or unreasonably or without reference to any guiding
rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.
1985).
Other than a vague, unsupported claim that “the trial court accepted all of
Appellee’s evidence and ignored or gave no credit to Appellant’s evidence that Appellant
had contributed approximately $30,000.00 to the pay [sic] toward community debts, even
though the Appellee acknowledged receipt of numerous payments from Appellant
directly or on Appellant’s behalf,” appellant has not shown that the trial court’s division
of the community estate was manifestly unjust. Appellee presented detailed evidence
regarding her separate-property expenditures for the purchase and improvement of a
house, payment of appellant’s credit cards, and payment for appellant’s criminal-defense
attorney. Based on our review of the record, we cannot say that the trial court abused its
discretion in dividing the community estate. See Bradshaw, 555 S.W.3d at 543. We
therefore overrule appellant’s third issue.
In his fourth issue, appellant contends that the trial court erred by denying every
motion and objection he made at trial, at a hearing on his motion to compel, and for an
accounting. In this issue, appellant once again references alleged improper comments
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made by the trial judge and complains that no hearing was held on his motion for new
trial.
As stated earlier, appellant did not file a motion to recuse the trial judge on the
basis of the alleged improper comments. As such, this complaint has not been preserved
for our review. See TEX. R. APP. P. 33.1; see also Dow Chem. Co. v. Francis, 46 S.W.3d 237,
241 (Tex. 2001).
With regard to his complaint about a hearing on his motion for new trial, there is
nothing in Texas Rule of Civil Procedure 320 that requires a trial court to conduct a
hearing on the motion for new trial before granting or denying it. See TEX. R. CIV. P. 320;
see also Olsen v. Comm’n for Lawyer Discipline, 347 S.W.3d 876, 887 (Tex. App.—Dallas 2011,
pet. denied) (stating that, generally, the trial court is not required to hold a hearing on a
motion for new trial, except when the motion presents a question of fact upon which
evidence must be heard); Landis v. Landis, 307 S.W.3d 393, 394 (Tex. App.—San Antonio
2009, no pet.) (same). Furthermore, appellant’s complaint about the trial court’s
purported failure to rule on his motion for new trial lacks merit because Texas Rule of
Civil Procedure 329b(c) provides that if a motion for new trial “is not determined by
written order signed within seventy-five days after the judgment was signed, it shall be
considered overruled by operation of law on expiration of that period.” TEX. R. CIV. P.
329b(c).
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And finally, regarding his other motions and objections, appellant makes no
specific claim or argument that the trial court erred in resolving those matters. We
therefore conclude that this general contention also lacks merit. We overrule appellant’s
fourth issue.
II. CONCLUSION
Having overruled all of appellant’s issues on appeal, we affirm the judgment of
the trial court.
MATT JOHNSON
Justice
Before Chief Justice Gray,
Justice Johnson,
and Senior Justice Rex Davis3
Affirmed
Opinion delivered and filed July 7, 2021
[CV06]
3 The Honorable Rex Davis, Senior Justice of the Tenth Court of Appeals, sitting by assignment of
the Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002, 75.003.
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