in the Matter of the Marriage of Ellie Lou Bost-Steelman and Thomas C. Steelman, Jr.

NO. 07-05-0008-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
JULY 21, 2005
______________________________
IN THE MATTER OF THE MARRIAGE OF
ELLIE LOU BOST-STEELMAN AND THOMAS C. STEELMAN, JR.
_________________________________
FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;
NO. 51,844-B; HONORABLE JOHN B. BOARD, JUDGE
_______________________________
Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
Proceeding pro se, appellant Thomas C. Steelman, Jr. challenges the trial court’s
order, following a non-jury evidentiary hearing, dismissing his divorce proceeding on the
ground that residency requirements had not been met. Presenting three issues, Thomas
contends the trial court should (1) not have allowed the case to be dismissed upon the
motion of appellee Ellie Lout Bost-Steelman, (2) have issued a divorce on December 28,
2004, and (3) not have rendered a judgment of dismissal. Also proceeding pro se, Ellie
urges this Court to affirm the dismissal order.1 We affirm.
Initially, we note that pro se litigants are held to the same standards as licensed
attorneys and must comply with applicable laws and rules of procedure. Holt v. F.F.
Enterprises, 990 S.W.2d 756, 759 (Tex.App.–Amarillo 1998, no pet.). By his first issue,
Thomas contends the trial court should not have allowed the case to be dismissed for Ellie
upon her motion to dismiss her petition. Then by his second issue, he contends the trial
court should have issued a divorce to the parties on December 28, 2004. Rule 38.1(h) of
the Texas Rules of Appellate Procedure requires that points of error or issues be developed
by appropriate argument and citation to authorities. It is not our function to independently
review the record and research the applicable law. Because issues one and two are not
developed by argument and supported by authorities, the issues are waived. Wilkinson v.
Dallas/Forth Worth Intern. 54 S.W.3d 1, 18 (Tex.App.--Dallas 2001, pet. denied). See also
Couch v. Simmons, 108 S.W.3d 338, 343 (Tex.App.--Amarillo 2003, no pet.). Accordingly,
issues one and two are overruled.
By his third issue, as restated in his argument, Thomas contends the evidence does
not support the trial court’s decision to dismiss the case. We disagree.
1
Both parties appeared pro se in the trial court.
2
After the trial court dismissed Ellie’s petition for divorce on September 7, 2004, at
a non-jury trial on December 28, 2004, it heard Thomas’s counter-petition for divorce. At
that hearing Thomas and Ellie testified, and other evidence was received. At the
conclusion of the trial, the trial court announced that it would dismiss the case and on
January 13, 2005, signed his order dismissing the case “for lack of residency requirements
of the parties.”
Residency requirements for maintaining a divorce action include being a domiciliary
of Texas for the preceding six-month period and a resident of the county in which suit is
filed for the preceding 90-day period. See Tex. Fam. Code Ann. § 6.301 (Vernon 1998).
Although not jurisdictional, those requirements are mandatory to maintain a divorce action.
McKinney v. McKinney, 274 S.W.2d 908, 909 (Tex.Civ.App.–Amarillo 1954, no writ). See
also Cook v. Mayfield, 886 S.W.2d 840, 842-43 (Tex.App.–Waco 1994, no writ), citing
Beavers v. Beavers, 543 S.W.2d 720, 721 (Tex.Civ.App.–Waco 1976, no writ) (noting that
residency to maintain a divorce action requires an actual, physical, continuous living in the
county of suit by one of the parties for the period specified, coupled with a good faith intent
to make that county home).
Where, as here, neither party requests findings of fact and conclusions of law, all
questions of fact are presumed found in support of the judgment and the judgment should
be affirmed if it can be upheld on any basis. Point Lookout West, Inc. v. Whorton, 742
S.W.2d 277, 278 (Tex. 1987). Also, because the trial court admitted conflicting testimony
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from interested witnesses, it was within the sole province of the trial judge as trier of fact
to observe the demeanor of the witnesses, to judge their credibility, and to determine the
weight to be given to their testimony. In Interest of J.J.R., 669 S.W.2d 840, 843 (Tex.App.
--Amarillo 1984, writ dism'd w.o.j.). The trial court was authorized to either believe or
disbelieve the parties and to determine how much weight to give their testimony. Id. A
court of appeals may not pass upon the credibility of witnesses nor substitute its findings
for those made by the trial judge, even though after reviewing the evidence, it may have
reached a different conclusion from that of the trial judge sitting without a jury. Id.
Therefore, because neither Thomas nor Ellie requested findings of fact and conclusions of
law, we are required to presume that all questions of fact were found in support of the
judgment and affirm the judgment if it can be upheld on any basis.
Testimony at the hearing established that when Ellie filed for divorce she was a
resident of Randall County; Thomas was a resident of Grayson County. Ellie testified that
after her Randall County suit was voluntarily dismissed she moved to Fannin County,
where she had property and established residency. She returned to Randall County
several times for brief periods of time only to tend to property there. The trial court made
great effort to establish a timeline of Ellie’s movements between Randall and Fannin
Counties for residency purposes; however, her residency remained unclear following her
testimony. Thomas also testified that Ellie had filed a new action for divorce in Fannin
County on August 26, 2004.
4
Based on our review of the entire record and the testimony presented, and applying
the standard of review set out above, we conclude the trial court did not err in dismissing
the case. Issue three is overruled.
Accordingly, the judgment of the trial court is affirmed.
Don H. Reavis
Justice
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