Opinion issued=20
November 30, 2006
In=20
The
Court of=20
Appeals
For The
First =
District of=20
Texas
NO.=20
01-05-00194-CV
THEODORE JACKSON,=20
Appellant
V.
LOUVENIA JACKSON,=20
Appellee
On =
Appeal from the=20
387th District Court
Fort =
Bend County,=20
Texas
Trial =
Court Cause=20
No. 03-CV-133096
MEMORANDUM=20
OPINION
<=
/SPAN>This is an appeal from a decree of divorce and =
property=20
division rendered after a bench trial. Appellant, Theodore Jackson =
(husband), challenges the property-division portion of the final =
decree=20
that dissolved his 1991 marriage to appellee, Louvenia Jackson =
(wife).=20
Husband states a global challenge in which he complains that the =
property=20
division disproportionately favored wife. He also presents five =
specific=20
issues in which he argues that the trial court (1) =
mischaracterized=20
husband=E2=80=99s separate property as community property, (2) =
improperly relied=20
on documents not admitted into evidence, (3)(a) abused its =
discretion by=20
ordering =E2=80=9Cdeath penalty=E2=80=9D sanctions and (b) =
violated rule 3 of the Rules of=20
Civil Procedure by applying the local rules of Fort Bend County =
Courts,=20
and (4) abused its discretion by divesting husband of his separate =
property, all of which resulted in (5) cumulative error. We =
affirm.=20
Underlying Facts=20
and Procedural Background
<=
/SPAN>Husband=20
and wife were married in July 1991. No children were born during =
the=20
marriage. Wife=E2=80=99s son from a previous marriage lived with =
the couple until=20
he was 16 years old, and husband=E2=80=99s sister, whom he =
described as =E2=80=9Cmentally=20
challenged=E2=80=9D and =E2=80=9Cslightly disabled,=E2=80=9D began =
living with the couple in 1993.=20
Husband and wife each claimed at trial to have contributed to =
husband=E2=80=99s=20
sister=E2=80=99s care, both financially and by devoting time to =
her care. Two of=20
husband=E2=80=99s sons from a previous marriage lived with the =
couple briefly.=20
Husband owned the couple=E2=80=99s residence. The community earned =
income through=20
six rental properties , which they owned and rented to others. =
Wife also=20
owned property in Louisiana.
<=
/SPAN>Wife=20
worked for Dow Chemical Company, and husband worked for Hydro Chem =
Industrial Services, a former subsidiary of Dow Chemical Company. =
Wife=20
also earned supplemental income selling cosmetic products. Both =
husband=20
and wife had borrowed against their respective 401K plans. Wife =
stopped=20
working for Dow in June 2004, when the company downsized and =
offered a=20
severance package, which she accepted.
<=
/SPAN>Husband=20
and wife had sought a divorce and separated in 1995, but =
reconciled.=20
Marital discord resurfaced in 2000, and the couple stopped living =
together=20
in November 2003, when wife filed this divorce action. Her =
petition=20
alleged adultery and cruelty as grounds for an award of a =
disproportionate=20
share of the parties=E2=80=99 marital estate. Husband=E2=80=99s =
pleadings include a=20
counterpetition for divorce in which husband claimed that he owned =
separate property, not part of the community estate, but husband =
did not=20
identify that property until trial.
<=
/SPAN>Wife,=20
husband, and their respective counsel testified at the one-day =
trial. The=20
primary focus of the trial was to divide the parties=E2=80=99 =
property, as=20
identified in wife=E2=80=99s sworn inventories and appraisements. =
As a result of=20
sanctions entered against husband for not filing an inventory and=20
appraisement ten days before trial, husband was not allowed to =
dispute the=20
values that wife attributed to certain assets in her inventory at =
trial.=20
But, the trial court ruled that husband could state his =
preferences=20
concerning disposition of certain assets, and husband testified=20
extensively about his separate property, divorce settlement from a =
former=20
marriage, income sources and their origin, an inheritance used =
toward=20
purchase of the couple=E2=80=99s residence, and a life insurance =
policy and bonds=20
purchased before the marriage and stored in a safety-deposit box. =
Wife=20
stipulated at trial that husband owned 600 shares of Dow Chemical =
stock as=20
his personal, separate property. The record reflects acquiescence =
by the=20
parties in yielding to their respective preferences for =
disposition of=20
property, including the property that husband identified at trial =
as his=20
personal, separate property.
<=
/SPAN>At=20
the conclusion of trial, the trial court declared the parties =
divorced and=20
reserved ruling on the property division. Six days later, the =
trial court=20
issued an informal notice advising the parties of the =
court=E2=80=99s proposed=20
property division. The trial court signed a formal decree of =
divorce and=20
property division in accordance with that notice on February 3, =
2005. In=20
response to husband=E2=80=99s request, the trial court signed =
findings of fact and=20
conclusions of law.
Standard of=20
Review
<=
/SPAN>Wife=20
proposed the findings of fact and conclusions of law signed by the =
trial=20
court. The findings and conclusions do not encompass the trial =
court=E2=80=99s=20
sanction order, but husband did not propose additional or amended =
findings=20
after the trial court adopted the findings proposed by wife. =
See=20
Tex. R. Civ. P. =
298.=20
<=
/SPAN>In=20
an appeal from a bench trial, we review a trial court=E2=80=99s =
conclusions of law=20
de novo as legal questions, and we will uphold the conclusions if =
the=20
judgment can be sustained on any legal theory supported by the =
evidence.=20
BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 =
(Tex.=20
2002); In re Moers, 104 S.W.3d 609, 611 (Tex. =
App.=E2=80=94Houston [1st=20
Dist.] 2003, no pet.). Though a trial court=E2=80=99s conclusions =
of law may not=20
be challenged for factual sufficiency, we may review the legal =
conclusions=20
drawn from the facts to determine whether the conclusions are =
correct.=20
BMC Software Belgium, N.V., 83 S.W.3d at 794. If we =
determine that=20
a conclusion of law is erroneous, but that the trial court =
nevertheless=20
rendered the proper judgment, the error does not require reversal. =
Id.; Vaughn=20
v. DAP Fin. Servs., 982 S.W.2d 1, 6 (Tex. App.=E2=80=94Houston =
[1st Dist.]=20
1997, no pet.); see Tex. R.=20
App. P. 44.1(a) (stating standards for reversible error in =
civil=20
cases).
<=
/SPAN>The=20
trial court acts as fact finder in a bench trial and is the sole =
judge of=20
the credibility of witnesses. See Murff v. Murff, 615 =
S.W.2d 696,=20
700 (Tex. 1981); Southwestern Bell Media, Inc. v. Lyles, =
825 S.W.2d=20
488, 493 (Tex. App.=E2=80=94Houston [1st Dist.] 1992, writ =
denied). Accordingly,=20
the trial court may consider all the facts and circumstances in =
connection=20
with the testimony of each witness and accept or reject all or =
part of=20
that testimony; an appellate court may not substitute its judgment =
for the=20
trial court=E2=80=99s assessment of testimony in a bench trial. =
See In re=20
W.E.R., 669 S.W.2d 716, 716=E2=80=9317 (Tex. 1984). =
=E2=80=9CDisproportionate=20
Division=E2=80=9D Challenge
<=
/SPAN>Husband=20
globally asserts that the trial court=E2=80=99s division of the =
marital estate=20
disproportionately favored wife. Yet, husband does not explain or=20
demonstrate how the trial court=E2=80=99s disposition inequitably =
favors wife.=20
Though wife=E2=80=99s petition requested a disproportionate =
division of property=20
based on allegations of husband=E2=80=99s adultery and cruelty, =
nothing in the=20
decree of divorce, the trial court=E2=80=99s findings of fact and =
conclusions of=20
law, or the clerk=E2=80=99s and reporter=E2=80=99s records =
suggests or indicates that the=20
trial court responded to wife=E2=80=99s request by dividing the =
parties=E2=80=99 property=20
disproportionately and husband has not demonstrated that this =
occurred.=20
Husband provides no facts, no citations to the record, and no =
argument to=20
support his global disproportionality challenge. See Tex. R. App. P. 38.1(h). =
<=
/SPAN>We=20
thus conclude that husband has neither demonstrated nor supported =
his=20
global challenge, which we overrule for those reasons. =
&=
nbsp; &n=
bsp; &nb=
sp; Separate Property=20
Issues
<=
/SPAN>In=20
his first and fourth issues, husband contends that the trial court =
mischaracterized husband=E2=80=99s separate property as community =
property and=20
therefore divested husband of his separate property, which compels =
that we=20
reverse.
<=
/SPAN>Property=20
owned or claimed by a spouse before marriage or acquired after =
marriage by=20
gift, devise, or descent shall be that spouse=E2=80=99s separate =
property. Tex. Const. art. XVI =
=C2=A7 15; Tex. Fam. Code Ann. =
=C2=A7 3.001(1),=20
(2) (Vernon 1998). A court may not decree that separate property =
of one=20
spouse become the separate property of the other spouse because =
=E2=80=9Cthe=20
nature of separate property is determined by the Texas =
Constitution,=20
rather than by what is =E2=80=98just and right.=E2=80=99=E2=80=9D =
Eggemeyer v. Eggemeyer,=20
554 S.W.2d 137, 140 (Tex. 1977).
<=
/SPAN>Conversely,=20
=E2=80=9Cproperty possessed by either spouse during or on =
dissolution of marriage=20
is presumed to be community property.=E2=80=9D Tex. Fam. Code Ann. =
=C2=A7 3.003(a)=20
(Vernon 2006). A party who claims that property is separate =
property must=20
meet its burden of proof by clear and convincing evidence. =
Id. =C2=A7=20
3.003(b); see Vannerson v. Vannerson, 857 S.W.2d 659, =
669=E2=80=9370 (Tex.=20
App.=E2=80=94Houston [1st Dist.] 1993, writ denied) (applying same =
burden on=20
appeal). Evidence is clear and convincing if it will produce in =
the mind=20
of the trier of fact a firm belief or conviction of the truth of =
the=20
allegation to be proven. In re C.H., 89 S.W.3d 17, 25 (Tex. =
2002).
<=
/SPAN>Pursuant=20
to Section =
7.001 of=20
the Family Code, the trial court =E2=80=9Cshall order a division =
of the estate of=20
the parties in a manner that the court deems is just and =
right.=E2=80=9D Tex. Fam. Code Ann. =
=C2=A7 7.001=20
(Vernon 2006). The value of specific items of property is =
not an=20
ultimate issue in the trial court=E2=80=99s property division and =
does not require=20
specific fact findings by the trial court. Rafferty v.=20
Finstad,=20
903 S.W.2d 374, 376 (Tex. App.=E2=80=94Houston [1st Dist.] 1995, =
writ=20
denied).
<=
/SPAN>Because=20
the trial court has wide discretion in effecting a just and right =
division=20
of the community estate, we may not reverse the disposition unless =
the=20
trial court clearly abused its discretion. Murff, 615 =
S.W.2d at=20
698; Alsenz v. Alsenz, 101 S.W.3d 648, 654 (Tex. =
App.=E2=80=94Houston [1st=20
Dist.] 2003, pet. denied); Rafferty, 903 S.W.2d at 377. We =
indulge=20
every reasonable presumption in favor of the trial court=E2=80=99s =
exercise of its=20
discretion in dividing a marital estate. Murff, 615 S.W.2d =
at 699;=20
Vannerson, 857 S.W.2d at 669.
<=
/SPAN>A=20
trial court abuses its discretion when it acts arbitrarily or =
unreasonably=20
and without reference to any guiding rules or principles. See =
Walker v.=20
Packer, 827 S.W.2d 833, 839 (Tex. 1992). Because a trial =
court has no=20
discretion in determining what the law is, which law governs, or =
how to=20
apply the law, we review this category of discretionary rulings de =
novo.=20
See id. at 840. In contrast, when we review a ruling that =
results=20
from the trial court=E2=80=99s having resolved underlying facts, =
we must defer to=20
the trial=E2=80=99s factual resolutions and any credibility =
determinations that=20
may have affected those resolutions and may not substitute our =
judgment=20
for the trial court=E2=80=99s judgment. See id. at =
839=E2=80=9340.
A. Wells Fargo Accounts =
<=
/SPAN>In=20
his first issue, husband contends that we must reverse because the =
trial=20
court=E2=80=99s sixteenth conclusion of law mischaracterized two =
Wells Fargo=20
accounts as =E2=80=9Ccommunity property.=E2=80=9D =
Husband=E2=80=99s arguments fall short of=20
contending specifically that the accounts are his separate, =
personal=20
property. Indeed, as he specified at trial and reaffirms on =
appeal, he had=20
no personal funds in the accounts. Similarly, husband does not =
contend=20
that the trial court=E2=80=99s mischaracterization adversely =
affected the trial=20
court=E2=80=99s overall disposition of property, resulted in other =
error, or=20
harmed husband in any way. See Tex. R. App. P.=20
44.1(a).
<=
/SPAN>Husband=20
objects, instead, to the trial court=E2=80=99s concluding that the =
funds in the=20
accounts were community property and by characterizing them in =
that=20
manner, though husband does not dispute that the trial court =
awarded the=20
accounts to him in the property division. Husband relies on his =
testimony=20
that he held the accounts on behalf of his sister, =E2=80=9Cas =
trustee or=20
guardian,=E2=80=9D though he did not specify which of those =
capacities he held and=20
offered no evidence of either. Husband explained that his sister =
received=20
monthly Social Security payments of about $900, that the checks =
were made=20
payable to him for his sister=E2=80=99s care, and that her checks =
were deposited=20
directly into the two accounts. Yet, husband conceded at trial =
that the=20
funds had been used recently to help maintain the household, and =
wife also=20
claimed at trial that she contributed financially to her =
sister-in-law=E2=80=99s=20
support.
<=
/SPAN>Wife=20
acknowledged that she had identified the two accounts as community =
property in her inventory. As she explained, however, she knew =
=E2=80=9Cnothing=E2=80=9D=20
about the accounts and learned only through discovery that =
husband=E2=80=99s name=20
was on both accounts and did not know whether husband had =
deposited all of=20
his sister=E2=80=99s funds into the accounts. Because she lacked =
knowledge about=20
the accounts, she listed both of them as community property in her =
inventory. But, wife also requested, in accordance with her =
proposed=20
property division, that all accounts in husband=E2=80=99s name, =
including these=20
two accounts, be awarded to him. As the trial court=E2=80=99s =
decree and remaining=20
conclusions of law reflect, the trial court did precisely that.=20
<=
/SPAN>Given=20
the circumstances demonstrated by the record=E2=80=94that husband =
denied having=20
any personal funds in the accounts; stated that he held the funds =
for his=20
sister, as either her guardian or as a trustee, but without =
substantiating=20
either; and conceded that the funds had =E2=80=9Crecently=E2=80=9D =
been used to maintain=20
the household=E2=80=94and given that both husband and wife claimed =
they=20
contributed to his sister=E2=80=99s care, both financially and by =
time spent on=20
her care, there is no clear and convincing evidence that the =
accounts=20
constituted husband=E2=80=99s separate property within the meaning =
of section=20
3.001 of the Family Code and article XVI, section 15 of the Texas=20
Constitution. Tex. =
Const.=20
art. XVI =C2=A7 15; Tex. =
Fam. Code=20
Ann. =C2=A7 3.001(1), (2). See Tex. Fam. Code Ann. =
=C2=A7 3.003(b);=20
In re C.H., 89 S.W.3d at 25; Vannerson, 857 S.W.2d =
659,=20
669=E2=80=9370. Because husband did not establish that the =
accounts were his=20
separate property, the trial court did not abuse its discretion by =
applying the section 3.003(a) statutory presumption to conclude =
that the=20
funds in question were properly characterized as community =
property,=20
rather than separate property, for purposes of the division of =
husband=E2=80=99s=20
and wife=E2=80=99s community estate. See Tex. Fam. Code Ann. =
=C2=A7=20
3.003(a). ![3DFootnote](3D"")
<=
/SPAN>We=20
overrule husband=E2=80=99s first issue.
B. Unidentified=20
Separate Property
<=
/SPAN>In=20
his fourth issue, husband argues that the trial court abused its=20
discretion by =E2=80=9Cdivesting=E2=80=9D husband of his separate =
property, in violation=20
of section 3.001 of the Family Code and article XVI, section 15 of =
the=20
Texas Constitution. Tex.=20
Const. art. XVI =C2=A7 15; Tex.=20
Fam. Code Ann. =C2=A7 3.001(1), (2). Husband=E2=80=99s =
brief addresses the=20
controlling legal principles, but he nowhere identifies any =
allegedly=20
separate property that is the subject of the alleged divestiture.=20
Furthermore, the record reflects that the trial court awarded to =
husband=20
the property that husband identified at trial as his separate =
property,=20
and husband has not demonstrated otherwise. This property includes =
his 600=20
shares of Dow Chemical stock, his Ameritrade stock, the =
inheritance=20
account, and his life insurance policies and saving bonds =
purchased before=20
his marriage to wife.
<=
/SPAN>We=20
conclude that husband has not presented sufficient argument, =
supported=20
with citations to the record, to support his divestiture claim and =
thus=20
conclude that husband has not demonstrated any basis on which this =
Court=20
might grant relief. See Tex.=20
R. App. P. 38.1(h).
<=
/SPAN>We=20
overrule husband=E2=80=99s fourth issue.
Reliance on=20
Documents not Admitted into Evidence
<=
/SPAN>In=20
his second issue, husband challenges the trial court=E2=80=99s =
eighteenth=20
conclusion of law, which lists the debts assigned to wife and =
includes=20
debts for Capitol One and Palais Royal credit card accounts. =
Husband=20
argues that the trial court relied on documents not admitted into =
evidence=20
by including these accounts among the debts assigned to wife =
because the=20
accounts are not listed on wife=E2=80=99s second sworn inventory =
and appraisement,=20
on which wife relied on at trial.
<=
/SPAN>The=20
record reflects that wife timely filed two sworn inventories and=20
appraisements, as follows: a second amended inventory and =
appraisement on=20
September 14, 2004, showing a net community estate valued at =
$846,805.59,=20
and a third amended inventory and appraisement on January 3, 2005, =
showing=20
a net community estate valued at $821,402.37. During the =
conferences that=20
preceded trial, wife=E2=80=99s counsel announced that she had =
inadvertently not=20
attached a proposed property division to wife=E2=80=99s third =
amended, sworn=20
inventory and appraisement, filed on January 3, 2005 and would, =
therefore,=20
proceed to trial based on her earlier-filed, second amended, sworn =
inventory and appraisement. Wife did not, however, formally =
withdraw the=20
later-filed inventory and appraisement and later succeeded in =
admitting it=20
and its attached, proposed property disposition into evidence, =
without=20
objection by husband.
&=
nbsp;Husband=20
contends that because wife elected to proceed to trial on the=20
earlier-filed inventory and appraisement, the trial court =
improperly=20
considered property listed in the later inventory and =
appraisement,=20
specifically, the debts on the Capitol One and Palais Royal =
accounts, in=20
dividing the parties=E2=80=99 marital estate.
<=
/SPAN>Wife=20
acknowledges that there was no direct testimony at trial =
concerning the=20
debts on the Capitol One and Palais Royal accounts and agrees that =
the=20
trial court necessarily relied on the later-filed inventory and=20
appraisement in assigning those debts to wife. Wife counters that =
the=20
trial court properly exercised its discretion by relying on the=20
later-filed inventory, pursuant to this Court=E2=80=99s =
Vannerson decision.=20
We agree.
<=
/SPAN>As=20
in Vannerson, wife=E2=80=99s inventories were both verified =
and filed with=20
the trial court and, therefore, a proper subject for judicial =
notice by=20
the court. See id., 857 S.W.2d at 671. Also as in =
Vannerson,=20
the record reflects that the trial court referred to both the=20
earlier-filed and the later-filed sworn inventories during trial. =
See=20
id. In this case, moreover, husband=E2=80=99s own testimony =
refers to the=20
Palais Royal account disclosed only in the later-filed inventory.=20
Furthermore, when wife testified at trial about debts and property =
identified only in the later-filed sworn inventory, specifically =
the=20
Hancock bank accounts and her credit union loan, husband did not =
object=20
that wife had listed those matters only in the later-filed =
inventory, but,=20
rather, questioned wife concerning them. The record thus reflects =
that=20
husband was on notice of references to the later-filed inventory =
at trial,=20
but did not object, and, moreover, referred to the inventory=20
himself.
<=
/SPAN>The=20
record also reflects that husband delayed responding to discovery =
that=20
would enable wife to provide full information in her inventories,=20
appraisement, and proposed property division, and that husband =
never filed=20
his inventory, appraisement, and proposed property division. =
Nothing in=20
the record suggests that, in offering to proceed to trial on the=20
earlier-filed inventory and appraisement, wife also intended to =
abandon=20
all items listed in that document.
<=
/SPAN>Husband=20
further contends that he was effectively precluded from testifying =
about=20
items that were omitted from the earlier-filed inventory and =
=E2=80=9Cfrom=20
testifying as to the community=E2=80=99s claim for =
reimbursement.=E2=80=9D As stated,=20
however, husband had notice, through wife=E2=80=99s testimony and =
the trial=20
court=E2=80=99s questions and comments, of items omitted from the =
earlier-filed=20
inventory, though included in the later-filed inventory. In =
addition,=20
husband questioned wife about two of those items, the Hancock bank =
accounts and her credit-union loan, and testified himself about =
the Palais=20
Royal credit-card account.
<=
/SPAN>Concerning=20
husband=E2=80=99s reimbursement claims for contribution to the =
community estate,=20
husband testified, without objection, that he dedicated inherited =
funds=20
toward the purchase of the couple=E2=80=99s residence. To the =
extent that husband=20
had other reimbursement claims, he neither offered additional =
testimony=20
nor otherwise preserved, by a bill of exceptions, what those =
claims might=20
be. See Tex. R. =
App. P.=20
33.1(a), 33.2; Tex. R.=20
Evid.103(a)=E2=80=93(b).
<=
/SPAN>We=20
hold that the trial court did not err by considering =
wife=E2=80=99s later-filed,=20
but timely filed, sworn inventory and appraisement in dividing the =
parties=E2=80=99 marital estate. We overrule husband=E2=80=99s =
second issue.=20
Discovery=20
Sanctions
<=
/SPAN>In=20
his third issue, husband contends that the trial court abused its=20
discretion by rendering a =E2=80=9Cdeath penalty sanction=E2=80=9D =
and violated rule 3a of=20
the Rules of Civil Procedure by applying Fort Bend County Local =
Rule=20
4.
=
We=20
review a ruling on a motion for sanctions for abuse of discretion. =
Cire=20
v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004); see =
Walker, 827=20
S.W.2d at 839=E2=80=9340. The trial court=E2=80=99s ruling should =
be reversed only if it=20
was arbitrary or unreasonable. Cire, 134 S.W.3d at 839. The =
trial=20
court=E2=80=99s authority to sanction for failure to comply with =
an order or=20
discovery request derives from rule 215.2 of the Rules of Civil =
Procedure,=20
which mandates that any sanction imposed be =
=E2=80=9Cjust.=E2=80=9D Tex. R. Civ. P. =
215.2(b). Among=20
the =E2=80=9Cjust=E2=80=9D sanctions that rule 215.2(b) recognizes =
is =E2=80=9Can order . . .=20
prohibiting [the disobedient party] from introducing designated =
matters=20
into evidence.=E2=80=9D Tex. R. Civ. P.=20
215.2(b)(4). The trial court=E2=80=99s sanction order in =
this case is a=20
rule 215.2(b)(4) sanction.
=
The=20
trial court=E2=80=99s sanction order in this case also qualifies =
as relief granted=20
pursuant to rule 193.6 of the Rules of Civil Procedure, which =
provides=20
that a party who =E2=80=9Cfails to make, amend, or supplement a =
discovery response=20
in a timely manner may not introduce in evidence the material or=20
information that was not timely disclosed, or offer the testimony =
of a=20
witness (other than a named party) who was not timely =
identified,=E2=80=9D unless=20
the court finds (1) good cause for the failure or (2) that the =
failure=20
=E2=80=9Cwill not unfairly surprise or unfairly prejudice the =
other parties.=E2=80=9D=20
Tex. R. Civ. P. =
193.6=20
(Failing to Timely Respond=E2=80=94Effect on Trial). Wife relied =
on rule 193.6 at=20
trial.
A. Background
<=
/SPAN>On=20
November 18, 2004, the trial court granted wife=E2=80=99s motion =
to compel and=20
ordered husband to respond to discovery requesting that he =
substantiate=20
his separate property claims. Pursuant to that order, =
husband=E2=80=99s deadline=20
for responding to wife=E2=80=99s discovery was November 27, 2004.=20
<=
/SPAN>On=20
December 30, 2004, wife filed a motion stating that she had agreed =
to=20
extend the deadline for all outstanding discovery to December 6, =
2004, but=20
that husband had still not complied. Wife=E2=80=99s motion =
requested that (1)=20
husband be prohibited from introducing evidence relating to her =
unanswered=20
discovery at the January 13, 2005 trial and (2) a $900 sanction be =
assessed against husband. The trial court conducted a hearing on =
wife=E2=80=99s=20
motion on January 6, 2005.
<=
/SPAN>We=20
have no reporter=E2=80=99s record of the January 6, 2005 hearing, =
but the existing=20
record demonstrates that the hearing resulted in the following: =
the trial=20
court received, but did not file, husband=E2=80=99s late-provided =
inventory and=20
appraisement; conditionally assessed the $900 sanction; and =
conditionally=20
refused to admit husband=E2=80=99s inventory and appraisement at=20
trial.
The trial court conditioned its rulings =
on=20
husband=E2=80=99s demonstrating, at trial, that his earlier =
responses to wife=E2=80=99s=20
discovery satisfied her requests.
<=
/SPAN>At=20
preliminary hearings conducted before trial began on January 13, =
2005, the=20
trial court considered two motions filed by husband that=20
day.
Both motions relate to the unrecorded =
sanctions=20
hearing seven days earlier. In response to husband=E2=80=99s first =
motion, for=20
reconsideration of the sanction, the trial court lifted the $900 =
portion=20
of its order. But, the trial court denied husband=E2=80=99s =
motion, which sought=20
leave for a late exchange of documents. As a result, both =
husband=E2=80=99s=20
inventory and appraisement and his proposed property division =
remained=20
received only and were not filed.
<=
/SPAN>The=20
effect of the sanction order signed in this case was to prohibit =
husband=20
from (1) introducing any and all documents that wife requested in =
her=20
third request for production that husband had not previously =
produced and=20
(2) supporting or offering claims or defenses related to those =
documents.=20
B. Principles=20
Governing Imposition of Sanctions
<=
/SPAN>Well-settled law =
proposes a=20
two-part test to determine whether a sanction is just. The =
sanction must=20
first be no more severe than necessary to satisfy its legitimate =
purpose,=20
specifically, to ensure compliance with discovery and deter those =
who=20
might abuse the discovery process in the absence of a deterrent.=20
Cire, 134 S.W.3d at 839; see also TransAmerican Natural =
Gas=20
Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991) (stating that =
sanction imposed =E2=80=9Cmust relate directly to the abuse =
found=E2=80=9D). Second, the=20
trial court must =E2=80=9Cconsider=E2=80=9D=20
the availability of lesser sanctions before imposing death penalty =
sanctions. Cire, 134 S.W.3d at 840 (citing GTE =
Commc=E2=80=99n Sys.=20
Corp. v. Tanner, 856 S.W.2d 725, 729 (Tex. 1993)) (emphasis in =
original).
<=
/SPAN>1. Husband=
=E2=80=99s=20
Separate Property
<=
/SPAN>Though=20
husband contends that he was =E2=80=9Cforbidden from offering =
testimony as to what=20
he believed was separate property,=E2=80=9D the record does not =
support this=20
claim. Husband testified without objection that he owned a life =
insurance=20
policy and savings bonds and that he had purchased these before =
marrying=20
wife and stored them in a safety deposit box. He also described, =
without=20
objection, an inheritance from his father, previously deposited in =
an=20
account in his and his sons=E2=80=99 names, that he contributed to =
the purchase of=20
the couple=E2=80=99s residence. In addition, husband testified =
extensively about=20
the 600 shares of Dow Chemical stock, which he received as =
settlement=20
after his first marriage ended in divorce, and wife stipulated at =
trial=20
that the stock was husband=E2=80=99s separate property. The trial =
court=E2=80=99s decree=20
and findings of fact and conclusions of law confirm the separate =
property=20
character of these items. Though he contends he was =
=E2=80=9Cforbidden=E2=80=9D from=20
offering testimony, he did not offer proof at trial to show that =
he had=20
any other items of separate property. See Tex. R. App. P. 33.1(a), =
33.2;=20
Tex. R. Evid. =
103(a)=E2=80=93(b).=20
<=
/SPAN>Despite=20
the sanction, as applied at trial by both the trial court and =
opposing=20
counsel, who either did not object or stipulated to testimony in =
which=20
husband described his separate property, the sanction order did =
not=20
preclude husband from testifying about that property, which, =
moreover, he=20
obtained under the decree. And nothing in the sanction order =
precluded=20
husband from offering additional evidence by offer of proof to =
support=20
other separate property claims.
<=
/SPAN>2. Mischar=
acterization=20
of Property
<=
/SPAN>Husband=20
further contends that the trial court=E2=80=99s sanction order =
resulted in=20
mischaracterization of property. As addressed above, however, with =
respect=20
to the two Wells Fargo accounts, husband has not substantiated, by =
offer=20
of proof or any other means, his contention by demonstrating how =
any=20
mischaracterization resulted in loss to husband of those accounts =
or any=20
other property that he might otherwise contend should have been =
awarded to=20
him. Tex. R. Evid.=20
103(a)=E2=80=93(b).
<=
/SPAN>3. Valuati=
on=20
of Property
<=
/SPAN>Husband=20
is correct, however, in his contention that the trial =
court=E2=80=99s sanction=20
order prevented husband from disputing the valuations reflected in =
wife=E2=80=99s=20
inventory and appraisement. But, as the record further reflects, =
wife=20
supported the valuations in wife=E2=80=99s inventory and =
appraisement with=20
documentary statements of accounts or records that would be =
largely=20
uncontested. The value of the couple=E2=80=99s residence, for =
example, was=20
demonstrated by an appraisal requested and paid for by husband. =
Husband=20
testified that he and wife kept their =E2=80=9Cfinances =
separate=E2=80=9D and had separate=20
credit-card accounts, though he used community funds to assist =
with=20
payment of wife=E2=80=99s accounts and cosigned for another =
account. Husband also=20
stated that he managed the financial affairs concerning the rental =
properties identified in wife=E2=80=99s inventory, all of which he =
owned, and made=20
all mortgage payments and did all maintenance on those properties, =
though=20
he conceded that he benefitted from the resulting tax deductions, =
as=20
demonstrated by the lack of these deductions on wife=E2=80=99s =
income tax=20
statements, which husband prepared. Similarly, documentary =
evidence amply=20
supports both husband=E2=80=99s and wife=E2=80=99s testimony =
concerning loans and=20
borrowing against their respective 401K plans.
<=
/SPAN>4. Lack=20
of Findings
<=
/SPAN>Though=20
husband complains that the trial court did not enter findings to =
support=20
the sanction order, husband did not object to the absence of these =
findings in the findings of fact and conclusions of law that the =
trial=20
court endorsed and did not offer proposed additional findings. =
See=20
Tex. R. Civ. P.=20
298.
C. The=20
Sanction Was Just=E2=80=94No Abuse of =
Discretion
<=
/SPAN>As=20
a result of the trial court=E2=80=99s sanction, husband could =
neither introduce=20
evidence that wife requested and that husband did not produce, nor =
assert=20
claims or defenses related to those documents.
Under the first element of the test of a =
just=20
sanction, the trial court limited its order to the direct =
consequences of=20
the offensive conduct. Accordingly, the trial court=E2=80=99s =
order went no=20
further than necessary and was not excessive. See Cire, 134 =
S.W.3d=20
at 839; TransAmerican Natural Gas Corp., 811 S.W.2d =
at 917.=20
Under the second element of the test, the record amply =
demonstrates that=20
the trial court considered lesser sanctions. See Cire, 134 =
S.W.3d=20
at 840. After ordering that husband comply with wife=E2=80=99s =
discovery request,=20
and after wife agreed to extend the deadline under that order, the =
trial=20
court conditionally imposed both the sanction ultimately assessed =
here and=20
a $900 fine. Husband had only to provide the requested discovery =
timely,=20
but did not. Even then, however, the trial court removed the fee =
portion=20
of the sanction order. An order granting =
a motion=20
to compel discovery, standing alone, does not constitute a lesser=20
sanction. See Bair v. Hagans, 838 S.W.2d 677, 681 (Tex.=20
App.=E2=80=94Houston [1st Dist.] 1992, writ denied). But, when, as =
here, a trial=20
court compels discovery and also cautions that more serious =
sanctions will=20
issue unless compliance occurs, orders granting more serious =
sanctions,=20
including death-penalty sanctions, will be upheld. See Jaques =
v. Tex.=20
Employers=E2=80=99 Ins. Ass=E2=80=99n., 816 S.W.2d 129, 131 =
(Tex. App.=E2=80=94-Houston [1st=20
Dist.] 1991, no writ).
<=
/SPAN>In=20
addition to not providing the discovery requested by wife, ordered =
by the=20
trial court, and required by the Fort Bend County Local Rule 4, =
husband=20
did not attempt to satisfy the exception to rule 193.6 by =
demonstrating=20
good cause for lack of compliance or that his discovery response =
would not=20
unfairly surprise or prejudice wife. See Tex. R. Civ. P. =
193.6(a)=E2=80=93(b).=20
Likewise, husband did not request a continuance in order to comply =
with=20
the requested and ordered discovery. See Tex. R. Civ. P. =
193.6(c). In=20
keeping with the heading of rule =
193.6(a)=E2=80=94=E2=80=9CExclusion of Evidence=E2=80=9D=E2=80=94the=20
consequences of failure to comply with mandated discovery are =
mandatory=20
and automatic; evidence must be excluded at trial unless the party =
seeking=20
to admit it satisfies the exception for good cause. See =
Alvarado v.=20
Farah Mfg. Co., 830 S.W.2d 911, 914 (Tex. =
1992).
<=
/SPAN>We=20
conclude that the sanction assessed against husband was just, and =
that the=20
trial court properly exercised its discretion in assessing the =
sanction=20
pursuant to rules 193.6 and 215.2(4).
D. No=20
Violation of Rule 3 Shown
<=
/SPAN>Husband=20
contends that, in enforcing Fort Bend County Local Rule 4, the =
trial court=20
violated rule 3a of the Rules of Civil Procedure. Fort Bend County =
Local=20
Rule 4 applies to Disclosure of =
Property and=20
Financial Information and states,
A party=E2=80=99s =
final Inventory,=20
Financial Information Statement and financial information required =
under=20
the Family Code (including, but not limited to, the =
party=E2=80=99s income tax=20
returns for the past two years and the party=E2=80=99s three most =
recent payroll=20
stubs), as well as suggested findings regarding child support and =
a=20
proposed division of property shall be exchanged no later than ten =
(10)=20
days before trial, and shall be filed with the court at the =
commencement=20
of trial. . . . . This rule providing for the exchange of =
information=20
shall constitute a discovery request and failure to comply with =
this rule=20
may be grounds for sanctions.
<=
/SPAN>To=20
establish a violation of rule 3a, husband must demonstrate that =
the local=20
rule imposes a more arduous burden than the Rules of Civil =
Procedure or,=20
was applied to determine the merits of a case. Tex. R. Civ. P. =
3a(1)=E2=80=93(2), (6).=20
Husband has not met this burden. Moreover, as addressed above, we =
have=20
concluded that, in imposing its sanction against husband, the =
trial court=20
complied with the requirements of rules 193.6 and=20
215.2(4).
<=
/SPAN>We=20
overrule husband=E2=80=99s third issue.
Cumulative=20
Error
<=
/SPAN>In=20
his fifth issue, husband complains that the trial court committed=20
cumulative error, requiring remand for new trial on the property =
division.=20
Having found no error in husband=E2=80=99s issues one through =
four, we conclude no=20
cumulative error occurred.
<=
/SPAN>We=20
overrule husband=E2=80=99s fifth point of error.
Conclusion
<=
/SPAN>We=20
affirm the judgment of the trial court.
Sherry Radack
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; =
Chief=20
Justice
Panel consists of Chief Justice Radack =
and=20
Justices Alcala and=20
Bland. |