Opinion
No. 04-03-00642-CV.
Delivered and Filed: May 12, 2004.
Appeal from the 225th Judicial District Court, Bexar County, Texas, Trial Court No. 1995-CI-05988, Honorable John J. Specia, Jr., Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
The original divorce decree was signed on May 2, 1996. On appeal, a panel of this court affirmed the trial court's dissolution of the marriage, but reversed and remanded all other issues (regarding the property division) to the trial court for further proceedings. See Cluck v. Arlitt, No. 04-99-00578-CV, 2001 WL 456340 (Tex. App.-San Antonio May 2, 2001, no pet.) (not designated for publication). On June 6, 2003, the trial court signed a revised final decree. On appeal, appellant raises numerous issues, complaining of various rulings by the trial court. We affirm.
EVIDENTIARY RULINGS
In his first issue, appellant asserts the trial court erred in admitting into evidence appellee's exhibits 1 and 3, which are copies of assignments from two financial institutions to First Capital Mortgage Company ("First Capital"). At trial, appellant expressly stated he had no objection to the admission into evidence of exhibit 1; therefore, any complaint he may have on appeal as to exhibit 1 is waived. Exhibit 3 is a copy of a November 29, 1990 letter written by appellant to Mr. Arlie Rogers, a vice president at Commonwealth Federal Savings Association ("Commonwealth"). Attached to the letter is an assignment in which Commonwealth assigns its interest in a promissory note and security agreement to First Capital in consideration of $20,000 paid to Commonwealth. The promissory note was executed by appellant, in Commonwealth's favor, in the original principal amount of $89,000 and was secured in part by Commonwealth's lien on various furniture, fixtures, and equipment owned by appellant. First Capital was solely owned by appellee as her separate property and is now a defunct company.
On appeal, appellant contends the trial court abused its discretion in admitting exhibit 3 into evidence because the assignment was void. Appellant asserts he satisfied his debt to Commonwealth on November 29, 1995 when he mailed to his bankruptcy attorney a check for $20,000 payable to Commonwealth in full satisfaction of his debt to Commonwealth. According to appellant, satisfaction of his debt to Commonwealth extinguished the encumbrances on the legal title to the collateral described in the security agreement and legal title to the collateral vested in him as his separate property. Therefore, appellant concludes, the assignment was void.
At trial, appellant objected to the admission of exhibit 3 on the grounds that it was not signed or dated. Because his objection on appeal fails to comport with his objection at trial, any complaint he may have on appeal as to exhibit 3 is waived. See Tex.R.App.P. 33.1(a).
MONEY JUDGMENT IN FAVOR OF APPELLANT
In his second issue, appellant asserts the trial court erred in refusing to enter a money judgment in his favor for damages he allegedly suffered when appellee sold certain property at auction. Appellant contends the items sold at auction were his separate property.
Appellee does not deny that she sold the contested items at auction; however, she claims she owned some of the property herself and obtained other items based on the assignments evidenced by the above-referenced exhibits 1 and 3. Appellee testified she sold the items at auction because appellant left her with significant debts arising from a failure to pay the house mortgage, utilities, and credit card debt. At trial and on appeal, appellee contends these debts were community expenses.
Appellee testified that, in an effort to raise capital to pay these debts, she contacted an auction house in Dallas, which agreed to sell certain items now contested on appeal. Following the auction, appellee received $12,000, which she applied to the payment of the community debt.
A trial court does not have the power to divest a spouse of his or her separate property and award that separate property to the other spouse. See Cameron v. Cameron, 641 S.W.2d 210, 214-15 (Tex. 1982); Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 142 (Tex. 1977). However, separate property may be used to pay community expenses. Norris v. Vaughan, 152 Tex. 491, 502-03, 260 S.W.2d 676, 683 (1953); Butler v. Butler, 975 S.W.2d 765, 769 (Tex. App.-Corpus Christi 1998, no pet.); see also Tex. Fam. Code Ann. § 2.501 (Vernon 1998). Generally, when separate funds are expended toward the community living expenses, there is no future right of reimbursement for the expended funds. Farish v. Farish, 982 S.W.2d 623, 627 (Tex. App.-Houston [1st Dist.] 1998, no pet.); Butler, 975 S.W.2d at 769. "The rationale underlying this general rule is the obligation of each spouse to provide for the community's well-being." Farish, 982 S.W.2d at 628. These funds constitute a gift to the community. Norris, 152 Tex. at 503, 260 S.W.2d at 683; Winkle v. Winkle, 951 S.W.2d 80, 89 (Tex. App.-Corpus Christi 1997, writ denied).
Appellant does not dispute appellee's contention that the proceeds from the sale of his alleged separate property were used to satisfy community living expenses. Therefore, the trial court did not err in denying appellant a money judgment for his alleged damages resulting from the sale of the property at auction.
OWNERSHIP AND POSSESSION OF FIREARMS
In his third issue, appellant asserts the trial court erred in not ordering appellee and her past and present attorneys to return to him three firearms that he contends are his separate property. The three guns at issue are a Kentucky Long Rifle, a Rabbit Ear Shotgun, and a Browning Sweet Sixteen Shotgun.
In the divorce decree, the trial court awarded the Kentucky Long Rifle and the Rabbit Ear Shotgun to appellant as his separate property, and appellee does not dispute appellant's contention that these guns are his separate property. However, appellee testified she gave the guns to her prior attorney. No testimony was offered at the hearing regarding why appellee gave the two guns to her former attorney, but she testified she did not know the present location of the guns and that her former attorney also did not know the present location of the guns. As to the third firearm, the Browning Sweet Sixteen Shotgun, appellee testified this gun was her separate property, which she received as a gift from appellant before their marriage. Appellee said she did not know the present location of this gun.
The trial court recalled testimony by appellee's attorney during a prior hearing, at which time the attorney stated he did not know the location of the two guns.
At the hearings following remand from this court, appellant did not controvert appellee's testimony that she did not know the present location of the guns, nor did he establish the location of the guns or that appellee had access to them. Therefore, on this record, we cannot say the trial court abused its discretion in failing to order appellee to return the guns to appellant.
SANCTIONS
In his fourth issue, appellant asserts the trial court erred in imposing sanctions on him in the amount of $3,500. We review a trial judge's imposition of sanctions for an abuse of discretion. TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991).
Texas Rule of Civil Procedure 13 and Chapters 9 and 10 of the Civil Practice and Remedies Code authorize sanctions against parties who file pleadings, motions, or other papers that are frivolous, groundless, brought in bad faith, or for any improper purpose. See Tex. R. Civ. P. 13; Tex. Civ. Prac. Rem. Code Ann. §§ 9.012, 10.001 et seq. (Vernon 2002). Asserting an allegation or other factual contention in a pleading or motion that has no evidentiary support or, for a specifically identified allegation or factual contention, is not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery, constitutes frivolous, sanctionable conduct. Tex. Civ. Prac. Rem. Code Ann. at § 10.001(3). A trial court may impose sanctions upon motion or its own initiative. See Tex. R. Civ. P. 13; Tex. Civ. Prac. Rem. Code Ann. §§ 9.012, 10.001(a), (b).
Here, appellee filed a Second Motion to Re-Urge [Appellee's] Pending Motion to Declare [Appellant] A Vexatious Litigant and Motion for Sanctions. The trial court refused to award sanctions on the vexatious litigant motion. Appellee also requested sanctions on the grounds that appellant had attempted to damage her attorney's reputation and humiliate her attorney by accusing him of filing falsified documents with the trial court. The origin of these accusations lies with the trial court's request that the parties submit letter briefs regarding the validity of the above-discussed assignments. On April 14, 2003, appellant filed a responsive letter with the court in which he stated appellee's attorney (Mr. Christopher Weber) offered into evidence a document that "purported" to be "a genuine government record" filed in appellant's bankruptcy case with the intent to "impair the verity and legibility of a governmental record and thereby affect the course or outcome of the underlying proceedings. . . ." Appellant alleged this action violated the Texas Penal Code and he urged the trial court to send a copy of the reporter's record and a copy of the document to the Bexar County District Attorney, The Commission for Lawyer Discipline, and The State Bar Grievance Committee. On April 16, 2003, appellant wrote another letter to the trial court in which he again accused appellant's counsel of fabricating a document.
On May 12, 2003, the trial court held a hearing on appellee's motion for sanctions. Appellant insisted that a copy of a bankruptcy document offered by Mr. Weber deviated from the certified copy of the same document. However, the trial court determined that the document submitted by Mr. Weber was substantially the same as that on file with the bankruptcy court, and apparently only the verified signature page was missing from Mr. Weber's copy. The trial court specifically found that Mr. Weber had committed no misconduct, that appellant's allegations of misconduct were "grossly exaggerated and inappropriate, and that appellant had falsely accused Mr. Weber of criminal conduct." On this record, we find no abuse of discretion by the trial court in sanctioning appellant.
On appeal, appellant also complains at length about various portions of appellee's motion to declare him a vexatious litigant. However, because the court did not rule on this motion, we do not address these complaints on appeal.
RECUSAL
In his fifth issue, appellant asserts the trial judge abused his discretion by not recusing himself. Appellant contends the trial judge exhibited a personal bias and prejudice by excluding certain evidence appellant claims is relevant to his case.
A party who fails to file a motion that complies with Texas Rule of Civil Procedure 18a waives the right to complain of a judge's refusal to recuse himself. See In re Union Pac. Resources Co., 969 S.W.2d 427, 428 (Tex. 1998); Pena v. Pena, 986 S.W.2d 696, 700 (Tex. App.-Corpus Christi 1998), pet. denied per curiam, 8 S.W.3d 639 (Tex. 1999); McElwee v. McElwee, 911 S.W.2d 182, 185-86 (Tex. App.-Houston [1st Dist.] 1995, writ denied). In a similar manner, a trial court's obligation to either recuse himself or refer the motion to the presiding judge of the administrative judicial district "never come[s] into play unless and until a timely motion to recuse is filed." Beard v. Beard, 49 S.W.3d 40, 51 (Tex. App.-Waco 2001, pet. denied) ( quoting Wright v. Wright, 867 S.W.2d 807, 811 (Tex. App.-El Paso 1993, writ denied)); see also Hawkins v. Estate of Volkmann, 898 S.W.2d 334, 340 (Tex. App.-San Antonio 1994, writ denied). Appellant did not file a motion to recuse the trial judge; therefore, his complaint on appeal is waived.
CONCLUSION
Pursuant to Texas Rule of Appellate Procedure 45, appellee asserts appellant's appeal is frivolous and she requests that she be awarded attorney's fees in the amount of $7,500.00 and that appellant be sanctioned. See Tex.R.App.P. 45. We deny appellee's request that appellant be sanctioned. We decline to address appellee's request that she be awarded attorney's fees on appeal because the trial court's judgment included an award of attorney's fees in the event of an appeal.
We affirm the trial court's judgment.