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holding appellant failed to preserve complaint that "substantively defective" withdrawal motion did not comply with rule 10's requirements by not presenting the complaint to the trial court
Summary of this case from Gadberry Constr. Co. v. RaneyOpinion
No. 05-16-00539-CV
05-31-2017
IN THE INTEREST OF A.T., N.T., B.T., AND B.T., CHILDREN
On Appeal from the 470th Judicial District Court Collin County, Texas
Trial Court Cause No. 470-51820-2014
MEMORANDUM OPINION
Before Justices Fillmore, Whitehill, and Boatright
Opinion by Justice Fillmore
Father filed a petition for divorce in the 401st Judicial District Court seeking to dissolve his common law marriage with Mother. Mother filed a counter-petition for divorce also seeking to dissolve the parties' common law marriage. Father failed to appear at trial and, after hearing evidence, the trial court made oral rulings granting the divorce, naming Mother the sole managing conservator of the parties' four children, A.T., N.T., B.T., and B.T., and dividing the community estate. Before the judge of the 401st Judicial District Court signed a final divorce decree, the case was transferred to the 470th Judicial District Court. The judge of the 470th Judicial District Court signed a final divorce decree reflecting the rulings made at trial.
In this opinion, any reference to "trial court" will refer to the district court in which the case was pending at the time of the action being discussed.
Father appeals the final divorce decree asserting, in his first eight issues, that the trial court abused its discretion by (1) granting, ten days prior to trial, Father's attorney's substantively defective motion to withdraw and by failing to sign a written order granting the motion; (2) entering a default judgment against Father without proof that he had actual notice of the trial setting; (3) ordering Father to pay child support and medical support for the children without evidence of his income at the time of trial; (4) granting a divorce and dividing property without evidence at trial establishing a common law marriage; (5) awarding a disproportionate share of the community estate to Mother; (6) appointing Mother sole managing conservator and Father possessory conservator of the children when there was no or insufficient evidence to rebut the statutory presumption that parents should be named joint managing conservators (7) ordering Father to pay Mother's attorney's fees when there was no evidence of fees incurred for the divorce that were not related to enforcement and other proceedings for which Father had already paid attorney's fees ordered by the trial court; and (8) denying Father's motion for new trial. In his ninth issue, Father asserts he was denied due process of law because the judge of the 401st Judicial District Court applied a different standard for notice of the trial setting than did the judge of the 470th Judicial District Court. We reverse those portions of the final divorce decree (1) pertaining to child support and medical support for the children and to conservatorship of the children, and (2) ordering Father to pay $20,000 in attorney's fees and remand those issues to the trial court for further proceedings consistent with this opinion. In all other respects, we affirm the final divorce decree.
Background
On April 11, 2014, Father filed a pro se petition for divorce seeking the dissolution of his and Mother's common law marriage. Father alleged the parties were married on or about May 2007. Father requested he and Mother be appointed joint managing conservators of the parties' four children, but that he be given the exclusive right to establish the children's primary residence and to make decisions regarding their education.
Mother responded and filed a counter-petition for divorce also seeking to dissolve the parties' common law marriage. Mother alleged the parties had been married on or about July 30, 2005. Mother also alleged Father had a history of committing family violence. Mother requested she be appointed sole managing conservator of the children and sought child support and spousal maintenance. She also requested a disproportionate share of the marital estate based on fault in the breakup of the marriage, disparity in the earning power of the spouses and their ability to support themselves, need for future support, wasting of community assets by Father, attorney's fees to be paid, and actual and constructive fraud committed by Father.
Temporary Orders Hearing
The trial court held a hearing on May 8, 2014, on the parties' request for temporary orders. Father testified that he began living with Mother in 2002 in his mother's house. He and Mother were married without a marriage license or a wedding ceremony, but had a Vietnamese-style ceremony for their engagement. According to Mother, she and Father were married without a marriage license on July 30, 2005. The couple moved to the marital residence in 2006.
Mother testified there was always a "lot of tension" in her and Father's relationship, and Father was physically, mentally, and emotionally abusive. Father would often come home late at night intoxicated and would wake her and the children by yelling and screaming. Mother stated that Father had hit her, thrown things at her, and called her "very bad names," and had threatened to kill her sister. Mother's sister testified that Father threatened to physically harm her and she had seen Father hit, strike, and push Mother. According to Mother, Father had a criminal history including convictions for assault in a family violence case, driving while intoxicated, possession of marijuana, evading arrest, and driving with a suspended license.
Father testified he was never physically abusive toward either Mother or the children, but Mother physically abused him. According to Father, every time he and Mother had an argument, she would push him. In 2004, Mother pushed him during an argument and he "tried to block." While he was trying to defend himself with his hands, he accidently hit Mother in the face. After a neighbor called the police, he was arrested for "family violence." Father also testified about an incident in which he hit a wall after Mother pushed him when he was holding their son. Father "pressed charges," but dropped the case after Mother asked him to do so.
Mother testified she quit working in 2007 to care for the children. Father owned an automotive mechanic shop specializing in European vehicles. According to Mother, Father was sometimes paid in cash for his work, "made money" from his business, and owned a Ferrari, a Mercedes, a BMW, and a Honda Odyssey. Father testified he earned approximately $100,000 per year, but was not certain of the amount because he did not "keep track." Father denied that he was ever paid for his work in cash. As to the vehicles that Mother testified about, Father stated the Honda was his brother's van, his father owned the Ferrari, and he sold the BMW two years before the hearing. He currently owned a 1999 Mercedes S500.
Mother testified that, during the marriage, she had access to personal bank accounts and bank accounts for Father's business. The money in Mother's personal account was from "what [Father] gave" her, and she used the money to pay the family's expenses. With Father's authorization, she also made personal and family purchases using the business accounts. According to Father, he gave Mother cash and Mother would pay the family's expenses. He never authorized Mother to spend money from the business's bank accounts. Father left the marriage after he learned during an audit of his business by the Internal Revenue Service (IRS) that Mother had been embezzling money from his company. A deficiency notice issued by the IRS on December 5, 2012, following an audit of the business for the 2010 tax year, indicated that $196,775.25 of corporate business income was deposited in Mother's and Father's personal bank accounts, $5,615 was transferred from business bank accounts to Mother and Father's accounts, and $59,850.69 of personal expenses were paid by the business. The IRS found a tax deficiency of $30,228.
According to Mother, in February 2014, Father "cut off" her access to funds, canceled the automobile insurance on her vehicle, and canceled her and the children's health insurance policy. Mother had been forced to borrow money from her family to pay her monthly bills and attorney's fees. After moving out of the marital home, Father changed his phone number and had not told Mother where he was living. Father had not been involved in caring for the children and had not seen the children since March 30, 2014. Mother's sister confirmed that, based on her observations, Father had not been very involved with the children.
At the end of the hearing, the trial court orally made an affirmative finding of family violence, named Mother temporary sole managing conservator and Father possessory conservator of the children, and established a standard visitation schedule for Father. The trial court ordered Father to reinstate the automobile insurance policy for Mother's vehicle and the health insurance policy for Mother and the children. The trial court also ordered Mother and Father to prepare inventories and appraisals within forty-five days of the hearing. "By way of temporary spousal support," the trial court ordered Father to pay the mortgage and insurance on the marital residence. Mother was ordered to pay the costs of utilities and maintenance for the residence. Father was also ordered to pay $15,000 to Mother for interim attorney's fees and, based on the finding of family violence, $500 per month in spousal support. Noting the evidence showed a "lifestyle that sure indicates a heck of a lot of money," the trial court ordered Father to pay "guideline child support" based on "at least $100,000."
Finally, the trial court made a finding that there was an informal marriage. It indicated it did not have sufficient evidence to determine the exact date of the marriage, but stated it was clear both Mother and Father "believe they have been married for a number of years." The trial court stated it would "figure that one out" if it needed to, "but at the very least, we're eight years."
The trial court signed "agreed" temporary orders on August 11, 2014, reflecting its rulings. Father was ordered to pay $2,917 per month for child support, $500 per month for spousal support, and the mortgage payment, insurance, and utilities for the marital residence and to maintain health insurance on the children.
The provision of the temporary orders that required Father to pay the costs of utilities for the marital residence was inconsistent with the trial court's oral ruling.
Setting Case for Trial
Father failed to comply with the temporary orders, and Mother filed a number of motions to enforce and to hold Father in contempt. Father was arrested twice, but each time was able to quickly post bond in the amount of past due child and spousal support. Father also had a number of different lawyers representing him following the entry of the temporary orders.
On March 13, 2016, the trial court held a hearing on three motions filed by Mother: a motion to enforce, a motion to compel, and a motion to allow Mother to sell the marital residence. Father was not present at the hearing, but was represented by attorney David Beyer. Mother's counsel, Clinton Brown, argued on the motion to compel that Father had failed to produce responsive documents. Beyer indicated he had attempted to obtain the documents from Father, but had not received a response. The trial court granted the motion to compel and awarded Mother $3,500 for attorney's fees incurred in bringing the motion. The trial court noted it could not rule on the motion for enforcement because Father had not been personally served with the motion. The trial court also informed Beyer that Father had been filing pro se motions and needed to be advised the trial court would not consider the motions. At the conclusion of the hearing, Brown stated, "[w]e'd like to see Valerie and set this for trial." The trial court indicated the parties should "[g]et yourself a date." On March 13, 2015, Valerie Blackwell, the Court Coordinator of the 401st Judicial District Court, issued a notice that the case was set for trial on May 14, 2015, at 9:00 a.m.
Motion to Withdraw
Beyer filed a motion to withdraw on April 16, 2015, and an amended motion to withdraw on April 27, 2015. The certificate of service on both the original motion and the amended motion stated the motion was served by electronic transmission on Father and on Brown, but did not contain an email address for Father. The reasons given for withdrawal were that Father had failed to pay for Beyer's services and had failed to heed Beyer's instructions and advice by repeatedly being absent from hearings, failing to respond to telephone calls and texts, continuing to "stonewall" counsel's requests for documents Father had been ordered to produce, and filing pro se motions. Beyer represented in both the original and the amended motion that Father had been informed, via email, that Beyer would have to withdraw if Father "refuse[d] to comply with what the court has ordered and with my advice." On April 28, 2015, the trial court signed a notice setting the motion to withdraw for hearing at 9:00 a.m. on May 4, 2015. The appellate record does not reflect whether Father was served with notice of the hearing on the motion to withdraw. The appellate record also does not contain a reporter's record from the hearing held on May 4, 2015, and does not contain a written order ruling on the amended motion to withdraw.
Trial
The case was called to trial on May 14, 2015. Neither Father nor Beyer appeared. The trial court noted its docket sheet "incorrectly indicates that [Beyer] is counsel for [Father]" because it had "previously, after a hearing, granted his motion to withdraw." The trial court stated it was "satisfied at that time that [Father] knew well of this setting."
Mother testified she was married to Father and the couple had four children. While the divorce was pending, Father had failed to consistently exercise his periods of possession. He saw the children only sporadically and had last seen them in February. The trial court stated it would take judicial notice of the temporary orders that had been entered in the case, and Mother requested those orders become permanent. Mother also provided the trial court with her requested rulings.
The trial court admitted into evidence a chart showing Father had not paid child support, spousal support, and mortgage and utility payments since October 2014 and had not paid the $3,500 in attorney's fees awarded to Mother at the March 13, 2015 hearing. In total, Father had failed to pay $35,432. Mother testified Father had also not obtained health insurance for the children. Father had been placed in jail two times during the divorce proceedings for failing to pay the ordered child support, and Mother did not believe Father would ever pay the ordered child support. Because Father owed her over $35,000, Mother requested she be awarded all of the $83,000 equity in the marital residence.
Mother also introduced evidence that Father and his sister owned two pieces of property in Garland, Texas, with a combined appraised value of $42,240. Mother testified that, during the marriage, Father transferred those properties to his sister and then his sister transferred them back to him. The information from the appraisal district showed that, as of the time of trial, Father and his sister owned the properties. Mother requested that, based on Father's fraudulent conduct, she be awarded Father's approximately $20,000 share of the properties. However, because she did not believe Father would pay her the $20,000, Mother requested the trial court award her six vehicles that records from the Texas Department of Motor Vehicles (the DMV) reflected Father had bought during the marriage and owned at the time of trial. The records from the DMV indicated Father purchased those vehicles for $17,600.
Mother introduced records establishing Father or Father's business had nine accounts at ViewPoint Bank. Mother requested she be awarded fifty percent of any funds in these accounts.
According to Mother, Father failed to produce requested documents regarding his assets. Further, in the two months before the trial, Father had created a family partnership with his sister, and Mother believed he was transferring assets into that partnership. Father had also transferred the title to a Ferrari to his father and received no money in return. Mother believed the Ferrari was worth approximately $60,000. Mother testified she had incurred approximately $20,000 in credit card debt because she was required to pay the family's expenses with a credit card after Father "failed to pay the things he's supposed to pay." She also had borrowed money from her mother and her sister. Mother's sister and mother confirmed that Mother had borrowed $30,800 to assist her with her living expenses and her attorney's fees during the pendency of the divorce. Mother requested a judgment for $30,000 for her interest in the Ferrari and a judgment in an unspecified amount to allow her to repay the loans from her family.
Finally, Mother testified she had incurred a "lot" of attorney's fees during the divorce and part of the reason the fees were so high was because Father had multiple lawyers and failed to appear for numerous hearings. Brown testified he was board certified in family law and routinely practiced in Collin, Dallas, and Tarrant Counties. He was familiar with the usual and customary rates on a case such as this one and, in his opinion, the $350 hourly rate he was charging Mother was reasonable and necessary. Brown testified his legal assistant was preparing to take the board certification exam and he had "leveraged as much work as possible" to her while he worked with the client and the investigators. His legal assistant had an hourly rate of $135 and, in Brown's opinion, this rate was reasonable and necessary.
Brown testified Father had had six lawyers during the pendency of the case, failed to appear for at least three hearings, and been incarcerated twice. Prior to trial, Brown and his legal assistant reviewed the billing statements and categorized each task that was related to Father's failure to appear, drafting capiases, and drafting motions to compel and estimated Brown had spent approximately thirty-five hours of time and his legal assistant approximately sixty hours of time on those activities. Brown requested an award of attorney's fees in the amount of $20,000.
The trial court stated that, to its recollection, after Father was arrested for the second time during the divorce proceedings, he posted a cash bond in the amount of $35,000. The trial court inquired whether any of that money "made it" to Mother. Brown indicated that Mother received the funds that were owed at the time for past due child support and he received some funds for attorney's fees. The trial court granted the divorce and all the relief requested by Mother. It noted Mother had requested a disproportionate share of the estate and found each of the pleaded grounds to be true and to be a sufficient ground independently of the others to support the disproportionate division. Finally, the trial court awarded the attorney's fees requested by Mother.
Post-Trial Proceedings
On June 17, 2015, Father, represented by new counsel, filed a motion for new trial and/or motion to reconsider. Effective September 1, 2015, the case was administratively transferred to the 470th Judicial District Court. On November 6, 2015, Mother filed a motion to enter a final divorce decree.
The 470th Judicial District Court was created effective September 1, 2015. Act of May 31, 2015, 84th Leg., R.S., ch. 1182, § 2.06, 2015 Tex. Gen. Laws 3970, 3975-76 (codified at TEX. GOV'T CODE ANN. § 24.643).
The trial court held a non-evidentiary hearing on January 28, 2016, on Father's motion to reconsider and Mother's motion to enter a final divorce decree. The trial court denied the motion to reconsider and ruled on Father's objections to Mother's proposed decree. After modifying the proposed decree, the trial court signed a final decree on February 11, 2016. In the final decree, the trial court named Mother sole managing conservator and Father possessory conservator of the children, and gave Father possession of the children pursuant to a standard possession order. The trial court also made a finding that Father had a history or pattern of committing family violence during the two-year period preceding the filing of the suit or during the pendency of the suit. Father was ordered to pay $2,917 monthly child support, with the support to "step down" as each child matriculated out of the system, and to maintain health insurance on the children.
As to the division of the marital estate, Father was awarded all household furniture, furnishings, fixtures, goods, art objects, collectibles, appliances, equipment, clothing, jewelry, and other personal effects in his possession or subject to his sole control; all sums of cash in his possession or subject to his sole control; all bank accounts in his sole name or from which he had the sole right to withdraw funds or which were subject to his sole control except for listed accounts at ViewPoint Bank and Chase Bank; fifty percent of the listed accounts at ViewPoint Bank and Chase Bank; all individual retirement accounts, simplified employee pensions, annuities, and variable annuity life insurance benefits in his name; all policies of life insurance insuring his life; and the business known as Master Tune-up. Although not specifically listed, Father was also apparently awarded the two properties located in Garland, Texas, that he owned with his sister. Mother was awarded the marital residence; all household furniture, furnishings, fixtures, goods, art objects, collectibles, appliances, equipment, clothing, jewelry, and other personal effects in her possession or subject to her sole control; all sums of cash in her possession or subject to her sole control; all bank accounts in her sole name or from which she had the sole right to withdraw funds or which were subject to her sole control; fifty percent of the listed accounts at ViewPoint Bank and Chase Bank; all policies of life insurance insuring her life; a Cadillac Escalade automobile; and seven listed vehicles "for [Mother's] undivided interest in the real property parcels which were fraudulently transferred during the course of the divorce" located in Garland, Texas. Mother was also awarded a judgment against Father to equalize the division of the estate in the amount of $30,000 and a judgment in the amount of $20,000 against Father for attorney's fees. Father was ordered to pay all debt associated with the business known as Master Tune-up as well as all debt he had incurred after "January 1, 2014," and all credit card debt in his name. Mother was ordered to pay the balance of the mortgage on the marital residence, all debts she had incurred after "January 1, 2015," and all credit card debt in her name.
Father filed an amended motion for new trial on March 8, 2016, arguing the final divorce decree was contrary to the law and the evidence because: (1) there was no evidence to rebut the presumption the parents should be appointed joint managing conservators of the children; (2) there was no evidence to prove the existence of a common law marriage or the date of the marriage; (3) there was no evidence of Father's ability to pay the ordered child support; (4) the child support obligation was set without a calculation of Father's net resources at the time of the final trial and without consideration of the cost and quality of health insurance coverage available to the parties; (5) the trial court erred by awarding a disproportionate share of the community estate to Mother; (6) Father had a meritorious defense that Mother committed fraud on the community estate; (7) Mother misled the trial court about the character of the property in Garland, leading to an inequitable division of that property and resulting in the award of a monetary judgment to Mother of Father's separate property; (8) the trial court improperly took into a consideration a business that was no longer owned by Father in dividing the community estate; and (9) Father's attorney was allowed to withdraw ten days prior to the trial and Father did not receive notice of either the order to withdraw or the trial date.
At the hearing on Father's amended motion for new trial, Father testified his previous attorney had not informed him about either the motion to withdraw or the trial setting and that he would have appeared if he had known about the trial setting. He also testified he was sick on the day of trial and claimed he gave his new attorney a note from his doctor verifying that he was sick.
Father testified he has been a mechanic for approximately ten years, but is not a licensed mechanic. Father initially testified he did not "own his own business right now," but then stated he owned Master Tuneup & Auto Care. He denied he made over $100,000 a year, and testified he earned $25,600 in 2014 and $30,647 in 2015. He claimed he did not have the ability to pay over $2,900 a month for child support. He admitted he was incarcerated twice during the divorce proceedings for failing to pay child support and had posted the required bonds of $10,776.17 and $32,289 to be released from jail. He claimed he borrowed that money from his mother and sister.
As to the properties in Garland, Father introduced warranty deeds showing he and his sister purchased the properties on June 25, 2002. The records also show, however, that ownership of the properties was transferred multiple times between Father, his sister, and a third party. The last reflected transfer was from the third party to Father and his sister on April 7, 2014. Father testified he did not own the vehicles awarded to Mother in the final divorce decree and could not deliver them to Mother. However, he also claimed that he delivered one of those vehicles to Mother's house, but he "guess[ed] the impound has it." Father denied he ever owned the Ferrari and claimed it was his father's car "from the beginning."
Mother testified she and Father entered into a common law marriage on July 30, 2005. According to Mother, Father owned his own business. She denied stealing money from Father's business. Mother testified Father did not see the children regularly and that there was family violence during the marriage. Father denied being violent toward either Mother or the children.
The trial court indicated it did not find Father's testimony to be credible "at all," but there was no evidence of how he was provided notice of the trial date. During a brief recess, the trial court looked at "Odyssey," and verified notice of the May 14, 2015 trial setting was "generated and mailed" to Father's attorney on March 13, 2015. The trial court provided the parties with a copy of the notice that was in its "system." The trial court denied Father's amended motion for new trial. Father brought this appeal.
Withdrawal of Counsel
In his first issue, Father asserts the trial court erred by granting, ten days prior to trial, Beyer's substantively defective motion to withdraw and failing to sign an order granting the motion. We review the trial court's ruling on an attorney's motion to withdraw as counsel for abuse of discretion. Reule v. M & T Mortg., 483 S.W.3d 600, 615 (Tex. App.—Houston [14th Dist.] 2015, pet. denied). A trial court abuses its discretion when it grants a motion to withdraw that does not comply with the mandatory requirements of rule of civil procedure 10. Gillie v. Goulas, 65 S.W.3d 219, 221 (Tex. App.—Dallas 2001, pet. denied); see also Rogers v. Clinton, 794 S.W.2d 9, 10 n.1 (Tex. 1990).
Rule 10 requires that a motion to withdraw be in writing, demonstrate good cause for the withdrawal, and provide notice to the party. TEX. R. CIV. P. 10; In re A.R., 236 S.W.3d 460, 474 (Tex. App.—Dallas 2007, no pet.) If, as in this case, another attorney is not being substituted for the party, the motion to withdraw must also state:
[T]hat a copy of the motion has been delivered to the party; that the party has been notified in writing of his right to object to the motion; whether the party consents to the motion; the party's last known address and all pending settings and deadlines.TEX. R. CIV. P. 10. If the motion to withdraw is granted, the party must be notified by either personal service or by both certified and regular first class mail. Id.
Father first complains (1) the motion and amended motion to withdraw failed to comply with rule 10 because neither motion notified Father of his right to object to the motion, indicated whether Father consented to the motion, listed Father's last known address, or provided notice of all pending deadlines and settings, and both motions state they were served on Father by electronic transmission, rather than through personal service or by regular and certified mail; and (2) the trial court failed to sign a written order granting the amended motion to withdraw. To preserve a complaint for appellate review, a party must make a timely objection that states the specific grounds for the objection, unless the specific grounds were apparent from the context. TEX. R. APP. P. 33.1(a). The only issue in Father's amended motion for new trial relating to the trial court granting the amended motion to withdraw was that his attorney "was allowed to withdraw 10 days prior to the hearing and [Father] did not receive notice of the Order to Withdraw or final hearing date." Father did not complain in his motion for new trial or motion to reconsider, or during the hearing on either motion, that the motion to withdraw and amended motion to withdraw failed to comply with the requirements of rule 10 or were improperly served or that the trial court failed to sign a written order granting the amended motion to withdraw. Accordingly, these complaints were not preserved for our review. See TEX. R. APP. P. 33.1(a); Guerrero v. Mem'l Turkey Creek, Ltd., No. 01-09-00237-CV, 2011 WL 3820841, at *4 (Tex. App.—Houston [1st Dist.] Aug. 25, 2011, no pet.) (mem. op.) (appellant waived challenge to trial court's grant of counsel's motion to withdraw by failing to raise complaint in trial court); see also Butt v. Ali, No. 14-15-01096-CV, 2017 WL 1015583, at *3 (Tex. App.—Houston [14th Dist.] Mar. 14, 2017, no pet.) (mem. op.) (appellant waived complaint that he was not served with motion for summary judgment electronically by failing to timely raise issue in trial court).
Father next contends the notice of hearing for the motion to withdraw does not indicate it was served on Father. Although Father complained in the trial court that he failed to receive notice of the "Order to Withdraw or final hearing date," he did not complain that he failed to receive notice of the hearing on the motion or amended motion to withdraw. Accordingly, this complaint was also not preserved for our review. See TEX. R. APP. P. 33.1(a); Ablon v. Campbell, 457 S.W.3d 604, 617-18 (Tex. App.—Dallas 2015, pet. denied) (party waived complaint it did not have notice of trial court's action or opportunity to be heard by failing to raise complaint in the trial court before, during, or after hearing on motion); Caudle v. Oak Forest Apts., No. 02-14-00308-CV, 2015 WL 9244874, at *4 & n.21 (Tex. App.—Fort Worth Dec. 17, 2015, pet. denied) (mem. op.) (noting that due process right to proper service of trial settings can be waived).
Finally, Father asserts his rights were "severely impacted" by allowing Beyer to withdraw ten days before trial and the trial court did not provide sufficient time for him to hire a new attorney or for the new attorney to investigate the case and prepare for trial. We construe this argument as complaining the trial court erred by proceeding to trial after allowing Beyer to withdraw.
At the beginning of trial, the trial court stated it had granted Beyer's request to withdraw at a prior hearing and it was satisfied at the time it did so that Father had notice of the trial setting. Father did not request that a transcript of the April 28, 2015 hearing on Beyer's amended motion to withdraw be included in the record on appeal. Without this transcript, we must presume that evidence presented at the April 28 2015 hearing on the amended motion to withdraw supports the trial court's determination that Father had notice of the trial setting. See Bryant v. United Shortline Inc. Assurance Servs., N.A., 972 S.W.2d 26, 31 (Tex. 1998); Cooper v. Hunt, No. 05-14-00928-CV, 2016 WL 1213299, at *4 (Tex. App.—Dallas Mar. 29, 2016, no pet.) (mem. op.). Although he had notice of the trial setting, Father failed to appear at trial and did not request a continuance of the trial date to obtain new counsel. Accordingly, he has waived any complaint by the trial court in proceeding to trial. See McGalliard v. Hill, No. 06-16-00025- CV, 2016 WL 7912461, at *2 (Tex. App.—Texarkana Oct. 20, 2016, no pet.) (mem. op.) (appellant failed to preserve complaint trial court erred in not continuing summary-judgment hearing, given her attorney had been allowed to withdraw six days before hearing, by failing to seek continuance in trial court); Aduli v. Aduli, 368 S.W.3d 805, 817-18 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (concluding party failed to preserve error regarding timing of attorney's withdrawal on day of trial where party opposed motion to withdraw but did not request continuance); Donihoo v. Lewis, No. 01-08-00277-CV, 2010 WL 1240970, at *11-12 (Tex. App.—Houston [1st Dist.] Mar. 25, 2010, pet. denied) (mem. op.).
See also In re B.A.C., No. 01-98-00764, 2000 WL 1838704, at *1 (Tex. App.—Houston [1st Dist.] Dec. 14, 2000, no pet.) (not designated for publication) (without reporter's record, appellate court must presume evidence presented at hearing supported trial court's ruling on counsel's motion to withdraw).
See also Stephenson v. Lynch, No. 05-99-01874-CV, 2001 WL 126403, at *4-5 (Tex. App.—Dallas Feb. 15, 2001, pet. denied) (not designated for publication) (concluding any error by trial court in granting counsel's motion to withdraw was harmless because appellant, who had notice of trial setting, failed to appear at trial and assert right to counsel).
We resolve Father's first issue against him.
Notice of Trial Setting
In his second issue, Father argues the trial court erred by "exercis[ing] its jurisdiction and ruling (proceeding to a default) without sufficient evidence of notice to [Father] of the trial setting." The trial court stated at the beginning of trial that it was satisfied at the hearing on Beyer's motion to withdraw that Father had notice of the trial setting. In our discussion of Father's first issue, we concluded that, without a transcript of the hearing on Beyer's motion to withdraw, we must presume evidence presented at that hearing supports the determination by the trial court that Father had notice of the trial setting. See Bryant, 972 S.W.2d at 31; Cooper, 2016 WL 1213299, at *4. We therefore resolve Father's second issue against him.
See also In re B.A.C., 2000 WL 1838704, at *1
Due Process
In his ninth issue, Father contends he was denied due process of law because the judge of the 401st Judicial District Court applied a different standard for notice of the trial setting than did the judge of the 470th Judicial District Court. Father did not complain in the trial court that his right to due process was violated because the judge of the 401st Judicial District Court and the judge of the 470th Judicial District Court applied different standards of notice for the trial setting. Accordingly, this complaint has not been preserved for our review. See TEX. R. APP. P. 33.1(a); In re L.M.I., 119 S.W.3d 707, 710-11 (Tex. 2003) (noting that even constitutional complaints mast be preserved); O'Kane v. Chuoke, No. 01-05-00523-CV, 2007 WL 926494, at *2 (Tex. App.—Houston [1st Dist.] Mar. 29, 2007, no pet.) (mem. op.).
However, even if preserved, this complaint has no merit. A defendant who has made an appearance in a cause is entitled to notice of the trial setting as a matter of due process under the Fourteenth Amendment to the federal constitution. Peralta v. Heights Med. Ct., Inc., 485 U.S. 80, 84 (1988); LBL Oil Co. v. Intern. Power Servs., Inc., 777 S.W.2d 390, 390-91 (Tex. 1989) (per curiam). If a party has filed an answer, the trial court abuses its discretion by proceeding to trial without giving notice of a trial setting. Guadalupe Economic Servs. Corp. v. Dehoyos, 183 S.W.3d 712, 715 (Tex. App.—Austin 2005, no pet.); Anderson v. Anderson, 698 S.W.2d 397, 399 (Tex. App.—Houston [14th Dist.] 1985, writ dism'd). However, notice may be actual or constructive. Madison v. Gordon, 39 S.W.3d 604, 606 (Tex. 2001) (per curiam); Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988) (per curiam). Proper service upon a party's attorney of record satisfies the notice requirement of the rules of civil procedure. TEX. R. CIV. P. 21a(a); In re G.S., No. 09-15-00359-CV, 2016 WL 747210, at *3 (Tex. App.—Beaumont Feb. 25, 2016, no pet.) (mem. op.), and the attorney's knowledge of a trial setting is imputed to his client, id.; In re D.W., 353 S.W.3d 188, 192 (Tex. App.—Texarkana 2011, pet. denied).
At the conclusion of the March 13, 2015 hearing, Mother's attorney stated to the trial court that the parties were going to "get a date" for trial from "Valerie." That same day, Valerie Blackwell, the court coordinator of the 401st Judicial District Court issued a notice that the case was set for trial on May 14, 2015. When the case was called for trial, the judge of the 401st Judicial District Court stated he recalled being satisfied when he allowed Beyer to withdraw that Father had notice of the trial setting. Following the hearing on the motion for new trial, the judge of the 470th Judicial District Court expressed concern about whether Father had notice of the trial setting. After reviewing the trial court's Odyssey system, the trial judge stated she was satisfied that notice of the trial setting "was mailed directly from the Court to [Father's] attorney on March 13th setting the case for May 14th."
Both trial judges determined Father received notice of the trial setting and nothing in the record demonstrates the judges used anything but the appropriate standard in making that determination. Accordingly, Father has failed to establish he was deprived of his right to due process. We resolve Father's ninth issue against him.
Motion for New Trial
In his eighth issue, Father argues the trial court erred by denying his amended motion for new trial because he satisfied his burden under Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939). We review a trial court's denial of a motion for new trial for an abuse of discretion. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009) (per curiam). A trial court abuses its discretion by not granting a new trial after a default judgment when the defendant establishes all three elements of the Craddock test. Id.; Dir., State Emps. Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994).
Craddock, which applies to both no-answer and post-answer default judgments, Lerma, 288 S.W.3d at 925-26, provides that a new trial should be granted when (1) the defaulting party's failure to answer or to appear was not intentional, or the result of conscious indifference, but was due to a mistake or an accident; (2) the defaulting party has a meritorious defense or claim; and (3) the motion is filed at a time when the granting of a new trial will not occasion delay or work other injury to the prevailing party. Craddock, 133 S.W.2d at 126. The defaulting party has the burden of setting forth facts establishing all three prongs of the Craddock test. In re S.H., No. 02-16-00095-CV, 2017 WL 710635, at *5 (Tex. App.—Fort Worth Feb. 23, 2017, no pet.) (mem. op.). When a party's proof in support of a motion for new trial under Craddock is not controverted, the trial court may not disregard it. Fid. & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 576 (Tex. 2006) (per curiam). However, if the motion for new trial and accompanying affidavits or other evidence fails to establish any element of the test, we will affirm the trial court's denial of a new trial. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992); In re S.H., 2017 WL 710635, at *5.
Father initially argues he established his right to a new trial through his testimony that he failed to receive proper notice of the trial setting. See Sutherland v. Spencer, 376 S.W.3d 752, 755 (Tex. 2012) ("If the defendant did not appear because he or she never received the suit papers, then the court should generally set aside the default judgment."); Mathis v. Lockwood, 166 S.W.3d 743, 744 (Tex. 2005) (per curiam) (defaulting party who establishes he did not receive notice of default judgment hearing need not establish the second element of Craddock test). We have already concluded, however, that neither trial judge erred by determining Father had notice of the trial setting.
Father also contends that, even if he had notice of the trial setting, the evidence at the hearing on his amended motion for new trial established he was entitled to a new trial. Because it is dispositive, we limit our analysis to whether Father established his failure to appear at trial was not intentional, or the result of conscious indifference, but was due to a mistake or an accident. The defaulting party satisfies his burden on the first Craddock element "when the factual assertions, if true, negate intentional or consciously indifferent conduct by the defendant and the factual assertions are not controverted by the plaintiff." In re R.R., 209 S.W.3d 112, 115 (Tex. 2006) (per curiam); see also Sutherland, 376 S.W.3d at 755. "In determining if the defendant's factual assertions are controverted the court looks to all the evidence in the record." In re R.R., 209 S.W.3d at 115. If the facts set out in the motion for new trial and supporting affidavits or other evidence are controverted, the determination is a fact question for the trial court. Litman v. Litman, 402 S.W.3d 280, 286 (Tex. App.—Dallas 2013, pet. denied). "In acting as fact-finder, the trial court resolves conflicts in the evidence and is the sole judge of the credibility of the witnesses and the weight to be given their testimony." In re J.O.A., No. 14-14-00968-CV, 2016 WL 1660288, at *5 (Tex. App.—Houston [14th Dist.] Apr. 26, 2016, no pet.) (mem. op.)
Consciously indifferent conduct occurs when "the defendant knew it was sued but did not care." Fid. & Guar. Ins. Co., 186 S.W.3d at 576; see also Sutherland, 376 S.W.3d at 755. This standard requires a showing of more than mere negligence. Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995) (per curiam). Rather, it involves behavior such as a "pattern of ignoring deadlines and warnings from the opposing party." Levine v. Shackelford, Melton, McKinley, L.L.P., 248 S.W.3d 166, 168-69 (Tex. 2008) (per curiam). The trial court may consider the knowledge and acts of the defaulting party in determining whether the failure to appear was due to intentional disregard or conscious indifference. Evans, 889 S.W.2d at 269; In re J.O.A., 2016 WL 1660288, at *5. Generally, "some excuse, although not necessarily a good one, will suffice to show that a defendant's failure to [appear] was not because the defendant did not care." In re R.R., 209 S.W.3d at 115.
Father contends that, even if he had notice of the trial setting, he met his burden on the first element through his testimony he was sick and unable to appear at trial. Illness can constitute a reasonable excuse for failing to appear at trial. In re Guardianship of Rombough, No. 02-11-00181-CV, 2012 WL 1624027, at *3 (Tex. App.—Fort Worth May 10, 2012, no pet.) (mem. op.). However, although Father claimed he had a note from his doctor regarding the illness, he offered neither this note nor any other evidence to corroborate his testimony. Further, he did not explain why his illness prevented him from contacting the court on the day of trial to explain his absence. Finally, Mother offered evidence establishing Father had a pattern of failing to appear at hearings during the divorce proceedings and failing to comply with the trial court's orders.
At the conclusion of the hearing, the trial court found that Father was not credible. It was within the discretion of the trial court to resolve conflicts in the evidence and to determine that Father's failure to appear at trial was the result of intentional conduct or conscious indifference. See In re J.O.A., 2016 WL 1660288, at *6-7 (concluding trial court could have reasonably found that party's attorney's failure to appear at trial was due to conscious indifference even though attorney claimed to have been ill); In re Guardianship of Rombough, 2012 WL 1624027, at *3. Because Father did not meet his burden of proving the first element of the Craddock test, we resolve his eighth issue against him.
Final Divorce Decree
In his third through sixth issues, Father contends the trial court erred by (1) ordering Father to pay child support and medical support for the children when there was no evidence of his income at the time of trial; (2) granting a divorce and dividing the community estate when there was no evidence establishing a common law marriage; (3) awarding Mother a disproportionate share of the community estate; and (4) appointing Mother sole managing conservator and Father possessory conservator of the children when there was no or insufficient evidence to rebut the presumption that parents should be appointed joint managing conservators.
Most appealable issues in family law cases are reviewed under an abuse of discretion standard. In re T.W.G., No. 05-16-00213-CV, 2017 WL 1427695, at *2 (Tex. App.—Dallas Apr. 19, 2017, no pet.) (mem. op.). This standard applies to the granting of a divorce, In re Marriage of C.A.S., 405 S.W.3d 373, 382 (Tex. App.—Dallas 2013, no pet.); decisions affecting conservatorship of a child, In re M.A.M., 346 S.W.3d 10, 13 (Tex. App.—Dallas 2011, pet. denied); support of the child, Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011); and the division of the community estate. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). A trial court abuses its discretion when it acts arbitrarily or unreasonably, or without reference to any guiding rules or principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam).
A trial court's findings are reviewable for legal and factual sufficiency of the evidence under the same standards that are applied in reviewing evidence supporting a jury's answer. Moroch v. Collins, 174 S.W.3d 849, 857 (Tex. App.—Dallas 2005, pet. denied). In evaluating a legal sufficiency challenge, we credit evidence that supports the finding if a reasonable fact finder could, and disregard contrary evidence unless a reasonable fact finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); In re Marriage of C.A.S, 405 S.W.3d at 382. The test for legal sufficiency is "whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." City of Keller, 168 S.W.3d at 827. In a factual sufficiency review, we examine all the evidence in the record, both supporting and contrary to the trial court's finding, and reverse only if the finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) (per curiam); In re Marriage of C.A.S., 405 S.W.3d at 382-83.
In family law cases, legal and factual sufficiency challenges do not constitute independent grounds for asserting error, but are relevant factors in determining whether the trial court abused its discretion. Slicker v. Slicker, 464 S.W.3d 850, 857 (Tex. App.—Dallas 2015, no pet.). To determine whether the trial court abused its discretion, we consider whether the trial court (1) had sufficient evidence upon which to exercise its discretion, and (2) erred in its application of that discretion. Id.. We conduct the applicable sufficiency review when considering the first prong of the test. In re Marriage of C.A.S., 405 S.W.3d at 383. We then determine whether, based on the elicited evidence, the trial court made a reasonable decision. Id. A trial court does not abuse its discretion if there is some evidence of a substantive and probative character to support the decision. Id.
Child Support and Medical Support
In his third issue, Father contends the trial court abused its discretion by ordering him to pay child support and medical support for the children when there was no evidence of his current income at the time of trial.
A trial court has discretion to set child support within the parameters provided by the family code. Iliff, 339 S.W.3d at 78. Child support is generally determined by calculating the child support obligor's monthly net resources and applying the statutory guidelines to that amount. In re B.Q.T., No. 05-14-00480-CV, 2016 WL 861633, at *1 (Tex. App.—Dallas Mar. 7, 2016, no pet.) (mem. op.); see TEX. FAM. CODE ANN. §§ 154.062, 154.125 (West Supp. 2016), 154.128-.129 (West 2014); see also § 154.122 (West 2014) (amount of support determined by child support guidelines is presumed to be reasonable and in best interest of the child). The court may order support in an amount that varies from the guidelines, but is required to make certain findings to support any such variance. Id. §§ 154.123, 154.130(a)(3) (West 2014); In re H.D.V., Jr., No. 05-15-00421-CV, 2016 WL 4492702, at *10 (Tex. App.—Dallas Aug. 26, 2016, pet. denied) (mem. op.). "There must be some evidence of a substantive and probative character of net resources" to allow the trial court to determine the child support liability. Finley v. Finley, No. 02-11-00045-CV, 2015 WL 294012, at *5 (Tex. App.—Fort Worth Jan. 22, 2015, no pet.) (per curiam) (mem. op.).
Before ordering a parent to provide medical support, the trial court must require the parties to disclose the status and availability of health insurance providing coverage for a child. TEX. FAM. CODE ANN. § 154.181(b) (West 2014). On rendering a final order, the trial court must make specific findings with respect to the manner in which health care coverage is to be provided for the child, in accordance with the priorities identified under section 154.182. Id. § 154.181(d). Section 154.182 requires the trial court to consider the cost, accessibility and quality of health insurance coverage available at a reasonable cost to the parties from various sources. Id. § 154.182(a)-(b-2) (West 2014). If the obligor is responsible under a medical support order for the cost of health insurance for more than one child, "reasonable cost" means the total cost of health insurance coverage for all children for which the obligor is responsible under a medical support order does not exceed nine percent of the obligor's annual resources. Id. §§ 154.182(c)(2); 154.181(e).
At the temporary orders hearing, the trial court ordered Father to pay "guideline child support" based on "at least $100,000." Although the trial court did not specifically find Father had net resources of $100,000, as opposed to gross resources of that amount, there was evidence that Father had earned significantly more than $100,000 in gross income. The temporary orders required Father to pay child support of $2,917 per month, an amount consistent with guideline support based on net resources of $100,000 per year. See TEX. FAM. CODE ANN. § 154.125(b) (child support guideline for four children is thirty-five percent of obligor's net resources). The trial court also ordered that Father maintain health insurance for the children, but failed to make a finding the insurance was available to Father at a reasonable cost.
Section 154.125(a) of the family code provides that the child support guidelines are specifically designed to apply to situations in which the obligor's monthly net resources are not greater than $7,500 or the adjusted amount determined under section 154.125(a-1). TEX. FAM. CODE ANN. § 154.125(a). Section 154.125(a-1) requires the Office of the Attorney General, the Title IV-D agency in Texas, to compute an adjusted amount every six years as necessary to reflect inflation and to publish the adjusted amount in the Texas Register. Id. § 154.125(a-1). On July 19, 2013, the Office of the Attorney General announced that, effective September 1, 2013, "the guidelines for the support of a child apply to situations in which the obligor's monthly net resources are not greater than $8,550." 39 Tex. Reg. 4647, 4647 (July 19, 2013), https://texashistory.unt.edu/ark:/67531/metapth326803/m1/93/?q=%20date:2013-2014%20154.125 (last visited on May 15, 2017).
At trial, Mother offered no evidence of Father's income or of the availability and cost of any health insurance for the children. Rather, at her request, the trial court took judicial notice of the temporary orders and granted Mother's request that the same child and medical support provisions be included in the final decree. Mother and the Office of the Attorney General (the OAG), which intervened in this appeal, argue there was evidence of Father's net resources during the temporary orders hearing, and the trial court did not err by relying on that evidence in ordering Father to pay child support and medical support in the final decree. However, testimony or evidence from the temporary orders hearing was not introduced or admitted at the trial. Accordingly, the evidence from the temporary orders hearing could not be considered by the trial court in rendering the final divorce decree. See In re J.R.K., No. 06-10-00121-CV, 2011 WL 3242264, at *2 (Tex. App.—Texarkana July 8, 2011, no pet.) (mem. op.); see also Moreno v. Perez, 363 S.W.3d 725, 735-36 (Tex. App.—Houston [1st Dist.] 2011, no pet.); May v. May, 829 S.W.2d 373, 376 (Tex. App.—Corpus Christi 1992, writ denied).
The OAG also argues that Father agreed to the temporary orders and the final divorce decree simply incorporates that agreement. See TEX. FAM. CODE ANN. § 154.124 (West 2014). However, although the temporary orders state the parties agreed to the terms and contain a space for Father to sign to signify his agreement, only Mother's attorney signed the temporary orders. Therefore, we cannot conclude that Father agreed to the terms of the temporary orders.
There was no evidence admitted at trial to support the trial court's determinations regarding the amount of child support or medical support that Father was required to provide for the children. The trial court, therefore, abused its discretion by ordering Father to pay child support of $2,917 per month and to provide medical support for the children. See Hendley v. Lywiski, No. 09-09-00485-CV, 2010 WL 4264251, at *3 (Tex. App.—Beaumont Oct. 28, 2010, no pet.) (mem. op.); Miles v. Peacock, 229 S.W.3d 384, 390 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (reversing and remanding trial court's determination of child support and medical support because there was insufficient evidence of parent's net resources). We resolve Father's third issue in his favor, reverse the trial court's determinations pertaining to child support and medical support, and remand those issues to the trial court.
Existence of Common Law Marriage
In his fourth issue and subpart (a) of his fifth issue, Father argues the trial court abused its discretion by granting a divorce and dividing property when there was no evidence establishing an informal marriage or the date the marriage commenced. Father specifically contends that, without evidence of the existence and commencement date of the marriage, the trial court was unable to properly assess the extent and value of the community estate in order to make a just and right division.
Assertions of fact, not pleaded in the alternative, in live pleadings constitute judicial admissions by the party. Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001); see also Randol Mill Pharmacy v. Miller, 465 S.W.3d 612, 616 n.4 (Tex. 2015); In re J.C.J., No. 05-14-01449-CV, 2016 WL 345942, at *6 (Tex. App.—Dallas Jan. 28, 2016, no pet.) (mem. op.). To constitute a judicial admission, there must be a "clear, deliberate, and unequivocal" statement of fact. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex. 2000). The consequence of a judicial admission is that the admitted fact is conclusively established and the party is barred from later disputing the fact. Id.; Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 767 (Tex. 1983).
In his petition for divorce, Father pleaded for "dissolution of his common law marriage" to Mother and stated the common law marriage commenced in May 2007 in Texas. "When a party judicially admits facts that establish a common law marriage, the party is estopped from then claiming the contrary," Humphries v. Humphries, 349 S.W.3d 817, 824 (Tex. App.—Tyler 2011, pet. denied) (citing Shepherd v. Ledford, 962 S.W.2d 28, 33 (Tex. 1998)), and the other party is relived of its burden to prove the common law marriage. Id.; see also Shepherd, 962 S.W.2d at 33 (stipulation by parties in wrongful-death action that plaintiff and decedent had a common law marriage "became conclusive on the existence" of the marriage). Because Father judicially admitted he was married to Mother, she was relieved from the burden of proving the informal marriage at trial.
Without citation to authority, Father argues that "[p]leadings in a divorce case are not considered a judicial admission or confessed." It is true that a petition in a divorce case may not be taken as confessed if the respondent does not file an answer, TEX. FAM. CODE ANN. § 6.701 (West 2006), and that a default judgment of divorce is subject to an evidentiary attack on appeal, Guadalupe v. Guadalupe, No. 11-14-00061-CV, 2016 WL 1072651, at *2 (Tex. App.—Eastland Mar. 17, 2016, no pet.) (mem. op.). This is not, however, a case in which Father failed to file an answer. Rather, Father filed a petition for divorce, admitting he was married to Mother.
Father also contends that, without evidence of the date on which the common law marriage commenced, the trial court could not "render a just and right division of the community estate" or "determine the separate estates of the parties." However, all property possessed by either spouse at the time of the dissolution of the marriage is presumed to be community property. TEX. FAM. CODE ANN. § 3.003(a) (West 2006). A party claiming property as his separate property has the burden to rebut the presumption of community property. Pearson v. Fillingim, 332 S.W.3d 361, 363 (Tex. 2011) (per curiam). To do so, the party must trace and clearly identify the property in question as separate by clear and convincing evidence. Id.; see also TEX. FAM. CODE ANN. § 3.003(b). Father did not attend the trial, much less offer proof that any property possessed by either he or Mother was his separate property. Therefore, the trial court did not err by characterizing all property owned by Mother or Father at the time of trial as community property. See Pearson, 332 S.W.3d at 363.
We resolve Father's fourth issue and subpart (a) of his fifth issue against him.
Disproportionate Division of Marital Estate
In subparts (b) and (c) of his fifth issue, Father asserts the trial court abused its discretion by awarding a disproportionate share of the community estate to Mother. Father specifically argues there was no or insufficient evidence to support either the disproportionate division or the judgment to equalize the division of the community estate.
The trial court's division of the community estate must be just and right, having due regard for the rights of each party and any children of the marriage. TEX. FAM. CODE ANN. § 7.001 (West 2006). The trial court is afforded broad discretion in dividing the community estate, and we must indulge every reasonable presumption in favor of the trial court's proper exercise of its discretion. Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998); Murff, 615 S.W.2d at 698-99; In re Marriage of C.A.S., 405 S.W.3d at 384. The property division need not be equal, and a trial court may consider many factors when exercising its broad discretion to divide the marital property. Murff, 615 S.W.2d at 699. Such factors include the nature of the marital property; the relative earning capacity and business opportunities of the parties; the parties' relative financial condition and obligations; the parties' education; the size of any separate estates; the age, health, and physical conditions of the parties; fault in breaking up the marriage; the benefit the innocent spouse would have received had the marriage continued; and the probable need for future support. Murff, 615 S.W.2d at 699; In re Marriage of C.A.S., 405 S.W.3d at 384. The party complaining of the division of the community estate has the burden of showing from the evidence in the record that the trial court's division of the community estate was so unjust and unfair as to constitute an abuse of discretion. In re Marriage of C.A.S., 405 S.W.3d at 384.
Father argues Mother received one hundred percent of the community estate because the trial court awarded her the entire $83,000 equity in the marital residence as well as six vehicles. Mother, however, requested that she be awarded all the equity in the marital residence because Father had failed to pay $35,432 for child support, spousal support, and mortgage and utility payments for the marital residence that he was required to pay under the temporary orders. Accordingly, Father essentially received $35,324, or 42.7 percent, of the equity in the marital residence, but that equity was used to retire his debt to Mother. Further, Mother was also ordered to pay the outstanding debt on the residence, relieving Father of that obligation.
As to the vehicles awarded to Mother, there was evidence that Father owned an interest valued at $20,120 in two real properties located in Garland. Mother was awarded vehicles with a combined value of $17,600 "for [her] undivided interest in the real property parcels which were fraudulently transferred during the course of the divorce." Father was apparently awarded ownership of his interest in the two real properties, which had a value greater than the vehicles Mother received, and was also awarded ownership of a business, although there was no evidence of its value.
As to the $30,000 judgment to equalize the division of the estate, Mother testified that, during the divorce proceedings, Father transferred the title to a Ferrari worth $60,000 to his Father and received no money in return. She also testified she believed Father was transferring community property assets into a partnership with his sister. The trial court awarded Mother a judgment of $30,000, or fifty percent of the value of Ferrari, based on Father's depriving the community estate of a valuable asset.
We conclude Father has failed to establish Mother was effectively awarded one hundred percent of the community estate, or that the property division was so disproportionate as to constitute an abuse of discretion by the trial court. Accordingly, we resolve subparts (b) and (c) of his fifth issue against him.
Conservatorship of Children
In his sixth issue, Father argues the trial court erred by appointing Mother sole managing conservator and Father possessory conservator of the children because there was no evidence or insufficient evidence to rebut the statutory presumption that parents should be appointed joint managing conservators of the children.
The primary consideration in determining conservatorship and possession of and access to a child is the best interest of the child. TEX. FAM. CODE ANN. § 153.002 (West 2014); In re V.L.K., 24 S.W.3d 338, 342 (Tex. 2000). The trial court may appoint a sole managing conservator or joint managing conservators. See TEX. FAM. CODE ANN. § 153.005(a) (West Supp. 2016). The trial court is required to presume the appointment of both parents as joint managing conservators is in the best interest of the child until evidence is presented to rebut this presumption. Id. § 153.131(b) (West 2014). This best-interest presumption may be rebutted by evidence that such appointment would cause a significant impairment of the child's physical health or emotional development. Id. § 153.131(a) (West 2014). Further, this presumption is "remove[d]" if the trial court finds credible evidence of "a history of family violence involving the parents of a child." Id. § 153.131(b); see also id. § 153.004(a)-(b) (West 2014).
During the 84th legislative session, the Texas Legislature amended section 153.005 of the family code for cases filed on or after September 1, 2015. See Act of May 12, 2015, 84th Leg., R.S., ch. 117, 2015 Tex. Gen. Laws 1119, 1120 (codified at TEX. FAM. CODE ANN. § 153.005(a)). Because the amendment does not substantively affect our analysis, we cite to the current family code section for convenience.
When, as in this case, the parents do not file an agreed parenting plan, the trial court may render an order appointing the parents joint managing conservators only if the appointment is in the best interest of the child. Id. § 153.134 (West 2014). In making this determination, the trial court considers:
(1) whether the physical, psychological, or emotional needs and development of the child will benefit from the appointment of joint managing conservators;
(2) the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child's best interest;
(3) whether each parent can encourage and accept a positive relationship between the child and the other parent;
(4) whether both parents participated in child rearing before the filing of the suit;Id. § 153.134(a)(1)-(7); see also Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); In re N.F.M., No. 05-15-01232-CV, 2016 WL 6835721, at *3 (Tex. App.—Dallas Nov. 3, 2016, no pet.) (mem. op.).
(5) the geographical proximity of the parents' residences;
(6) if the child is 12 years of age or older, the child's preference, if any, regarding the person to have the exclusive right to designate the primary residence of the child; and
(7) any other relevant factor.
Mother relies on testimony from the temporary orders hearing to argue the statutory presumption was rebutted by evidence of a history of family violence by Father. However, as set out above, testimony or evidence from the temporary orders hearing was not introduced or admitted at the trial and could not be considered by the trial court in rendering the final divorce decree. See In re J.R.K., 2011 WL 3242264, at *2; Moreno, 363 S.W.3d at 735-36; May, 829 S.W.2d at 376. Rather, the only evidence at trial relating to conservatorship of the children was Mother's testimony that she recalled the trial court made a finding of family violence at the temporary orders hearing; a copy of the temporary orders; and Mother's testimony that Father had not consistently exercised the possession of the children given to him in the temporary orders, had last seen the children in February 2015, and she had no way of contacting the children while they were with Father because Father had not provided her with his telephone number. Mother requested the trial court make the ruling in the temporary orders permanent and name her the sole managing conservator of the children.
Mother failed to offer any evidence at trial relating to the statutory factors or whether it was in the best interest of the children for her to be named the sole managing conservator, and we conclude, based on the evidence admitted at trial, that the trial court abused its discretion by determining it was in the best interest of the children to appoint Mother as the sole managing conservator of the children. Accordingly, we resolve Father's sixth issue in his favor, reverse that part of the divorce decree appointing Mother the sole managing conservator of children, appointing Father as possessory conservator of the children, and providing Father with "standard" possession of the children and remand those issues to the trial court.
Attorney's Fees
In his seventh issue, Father asserts the trial court erred by awarding Mother a judgment for attorney's fees when there was no or insufficient evidence of fees incurred in the divorce that were unrelated to the enforcement and other proceedings for which the trial court had previously awarded attorney's fees. Mother argues Father failed to raise this issue in his motion for new trial and, therefore, did not preserve it for appellate review. Father contends he was not required to complain in the trial court and may raise his complaint for the first time on appeal.
Father did not challenge the award of attorney's fees in either his motion to reconsider or his motion for new trial. However, a motion for new trial is not a prerequisite to a complaint on appeal from a bench trial about the legal or factual sufficiency of the evidence. TEX. R. CIV. P. 324(a), (b); TEX. R. APP. P. 33.1(d) ("In a nonjury case, a complaint regarding the legal or factual insufficiency of the evidence . . . may be made for the first time on appeal in the complaining party's brief."). Accordingly, Father may challenge in this appeal the sufficiency of the evidence to support the trial court's award of attorney's fees. See Office of Attorney Gen. of Tex. v. Burton, 369 S.W.3d 173, 175 (Tex. 2012) (per curiam).
The trial court has broad discretion in deciding to award reasonable attorney's fees in a suit affecting the parent-child relationship and in a suit for dissolution of a marriage. In re A.E.R., No. 05-15-00019-CV, 2016 WL 4205683, at *2 (Tex. App.—Dallas Aug. 9, 2016, pet. filed) (mem. op.); In re Marriage of Mobley, 503 S.W.3d 636, 645 n.10 (Tex. App.—Texarkana 2016, pet. denied); see also TEX. FAM. CODE ANN. §§ 6.708(c) (West Supp. 2016), 106.002, 157.167(a) (West 2014). The reasonableness of attorney's fees is a question of fact that must be supported by competent evidence. In re A.E.R., 2016 WL 4205683, at *2: In re M.A.N.M., 231 S.W.3d 562, 567 (Tex. App.—Dallas 2007, no pet.); see also Benoit v. Benoit, No. 01-15-00023-CV, 2015 WL 9311401, at *15 (Tex. App.—Houston [1st Dist.] Dec. 22, 2015, no pet.) (mem. op.) (trial court abuses its discretion by awarding attorney's fees without supporting evidence showing reasonableness of fees). Under a non-lodestar method of calculating attorney's fees, an attorney's testimony about his experience, the total amount of fees, and the reasonableness of the fees charged is sufficient to support an award. Garcia v. Gomez, 319 S.W.3d 638, 641 (Tex. 2010) (attorney's brief testimony about experience, total amount of fees, and that total amount of fees was reasonable and necessary is "some evidence" of reasonable attorney's fee); see also In re J.R. III, No. 05-14-00338-CV, 2015 WL 4639625, at *7 (Tex. App.—Dallas Aug. 5, 2015, no pet.) (mem. op.).
Brown testified about his general experience, his and his legal assistant's hourly rates, and that, in his opinion, the rates were reasonable. Brown requested an award of fees based on tasks he and his legal assistant were required to perform generating capiases, motions to compel, and motions to enforce. After reviewing the billing statements, Brown estimated he spent approximately thirty-five hours and his legal assistant spent approximately sixty hours on these tasks. Brown did not testify specifically about which motion or motions caused the fees to be incurred. Brown requested an award of $20,000 in attorney's fees.
The record also reflects there were three enforcement actions filed by Mother based on Father's failure to pay ordered child support. The trial court heard the first two motions to enforce and ordered Father placed in jail on two occasions. On both occasions, Father posted bond in the amount of the child support arrearages. On at least one of these occasions, Brown received money from the posted bond for attorney's fees Father had been ordered to pay.
Brown's testimony constituted some evidence of reasonable attorney's fees. See Garcia, 319 S.W.3d at 641. However, on this record, it is not possible to determine whether Mother sought to recover attorney's fees for work on the first two motions to enforce for which she had previously been awarded attorney's fees and for which Brown had already received payment. Accordingly, we conclude the trial court erred by determining there was sufficient evidence to establish either that the requested attorney's fees were related solely to Mother's third motion to enforce and were for tasks for which Brown had not already received payment. We resolve Father's seventh issue in his favor, reverse the trial court's award of attorney's fees, and remand the issue of Mother's entitlement to attorney's fees to the trial court.
Conclusion
We reverse those portions of the final divorce decree pertaining to child support, medical support, and conservatorship of the children and ordering Father to pay $20,000 in attorney's fees and remand those issues to the trial court for further proceedings consistent with this opinion. In all other respects, we affirm the final divorce decree.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE 160539F.P05
JUDGMENT
On Appeal from the 470th Judicial District Court, Collin County, Texas, Trial Court Cause No. 470-51820-2014.
Opinion delivered by Justice Fillmore, Justices Whitehill and Boatright participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED in part and REVERSED in part. We REVERSE that portion of the trial court's judgment pertaining to child support, medical support, and conservatorship of the children and ordering Phung Van Tran to pay attorney's fees. In all other respects, the trial court's judgment is AFFIRMED. We REMAND this cause to the trial court for further proceedings consistent with this opinion.
It is ORDERED that each party bear its own costs of this appeal. Judgment entered this 31st day of May, 2017.