Summary
In Beach, the trial court filed findings and conclusions pursuant to a request under rule 296 but did so in an untimely manner.
Summary of this case from Filla v. FillaOpinion
No. 05-05-01316-CV
Opinion issued June 20, 2007.
On Appeal from the 330th District Court Dallas County, Texas; Trial Court Cause No. DF-03-07495.
Before Justices Moseley, O'Neill, and Mazzant.
MEMORANDUM OPINION
Christopher Ames Beach appeals from the final judgment entered in this divorce case from his marriage to Leslie Annette Beach. Appellant brings sixteen points of error asserting the trial court erred by (a) denying his requests for continuance, (b) establishing joint managing conservatorship to appellee, (c) not entering a just and right division of the community estate, (d) denying appellant's motion for new trial, (e) not filing findings of fact and conclusions of law until after denying the motion for new trial, and (f) awarding child support and attorney's fees to appellee. Appellant also asserts that new evidence revealed after judgment indicates appellee did not declare substantial assets. Because all dispositive issues are settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.4. We affirm the trial court's judgment.
BACKGROUND
The parties married in 1997 and had a child the following year. Appellee filed for divorce in April 2003. Appellant retained counsel and filed an answer. The trial court ordered a social study of the parties, which was filed in November 2003. On March 4, 2005, the trial court dismissed the cause for want of prosecution. Appellee filed a motion to reinstate the cause on March 5. On March 17, appellant filed an agreed motion for his counsel to withdraw. On March 31, the trial court granted both appellee's motion to reinstate and appellant's motion for withdrawal of counsel. At that time, there were no trial settings.
The trial court scheduled a pre-trial hearing for May 2, 2005. Appellee's counsel sent appellant a first-class, certified letter informing him of the pre-trial hearing, but the letter was returned unclaimed. The trial court held the pre-trial hearing as scheduled where appellant did not attend the hearing, and the court set the case for trial on May 27, 2005. Appellee's counsel sent appellant a letter by regular mail informing him of the trial date, and appellant received the letter on May 7. Before the trial, appellant did not hire counsel or file a motion for continuance. On May 27, 2005, the parties tried the case to the court, and appellant represented himself. Appellant orally requested continuances during the trial, which the trial court denied.
The trial court signed the final divorce decree on June 29, 2005. Appellant had requested findings of fact and conclusions of law before the court signed the final decree, and appellant filed a motion for new trial on July 30, 2005. The trial court denied the motion for new trial on September 8, 2005 and filed its findings of fact and conclusions of law on September 13, 2005.
APPELLANT PRO SE
In this Court, appellant, pro se, filed his original brief. Appellant retained counsel to prepare and file a reply brief. Appellant represented himself in argument before this Court. Pro se litigants are held to the same standards as licensed attorneys and must comply with all applicable laws and rules of procedure. Strange v. Continental Cas. Co., 126 S.W.3d 676, 677-78 (Tex.App.-Dallas 2004, pet. denied). Otherwise, the pro se litigants would be given an unfair advantage over litigants represented by counsel. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978).
PROPERTY DIVISION
In his fifth point of error, appellant contends the division of the community estate was not just and right. The family code requires in a divorce decree that the court "order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage." Tex. Fam. Code Ann. § 7.001 (Vernon 2006). A trial court has wide discretion in dividing property upon divorce, and its decision will be reversed on appeal only if there has been an abuse of discretion. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981); Cole v. Cole, 880 S.W.2d 477, 480 (Tex.App.-Fort Worth 1994, no writ). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner or when it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); Garner v. Garner, 200 S.W.3d 303, 306 (Tex.App.-Dallas 2006, no pet.). Under the abuse of discretion standard, legal and factual sufficiency of the evidence are not independent grounds for review but are relevant in assessing whether the court abused its discretion. Niskar v. Niskar, 136 S.W.3d 749, 753 (Tex.App.-Dallas 2004, no pet.). We review the evidence in the light most favorable to the order and indulge every presumption in favor of the trial court's order. Deltuva v. Deltuva, 113 S.W.3d 882, 886 (Tex.App.-Dallas 2003, no pet.). If some probative and substantive evidence supports the order, there is no abuse of discretion. Id.
Appellant complains of the assigning to him of the bulk of the remaining community debt. Appellee declared bankruptcy while the cause was pending, and her share of the community debt, except for her student loans and a car loan, was discharged. The student loan and car loan liabilities were assigned to appellee, and the remainder of the community debt-credit card debt of $102,579.05-was assigned to appellant. Appellant also complains of the trial court's failure to divide certain community assets acquired by appellee as an employee of Southwest Airlines, such as appellee's retirement accounts, shares in the profit-sharing plan, and flight coupons. The trial court is required to divide the estate, not each asset and debt. The trial court's award of the community estate to appellant included the contents of his two separate-property houses and most of the contents of a warehouse. The record contains no evidence and no findings of the value of the contents of the houses and the warehouse. Finally, the trial court awarded no reimbursement to the community estate for the mortgage payments on appellant's separate property made during the marriage with presumptively community funds, which increased appellant's equity in the property during the marriage. See Tex. Fam. Code Ann. § 3.403(a), (b) (Vernon 2006). Under these facts, we cannot conclude the trial court abused its discretion in its division of the community estate. Appellant also asserts the trial court erred by including appellant's two separate-property houses in the community estate. The record does not show the trial court included the houses in the community estate. We overrule appellant's fifth point of error.
The original credit card debt was approximately $138,000. After subtracting from this number the amount discharged in bankruptcy, the cumulative total was $102, 579.
The trial court made the following findings of fact and conclusions of law concerning division of the marital estate:
The Court took into consideration the following factors in making a determination of a just and right division:
a.
The divorce has been pending since April, 2003, largely due to inaction by Mr. Beach (except for the bankruptcy proceeding of Mrs. Beach).
b.
Mrs. Beach underwent a bankruptcy and most of her debt was discharged.
c.
Respondent was invited to join in with Petitioner and after four months, Petitioner filed without Respondent.
d.
Mr. Beach has been unemployed for at least three and a half years, but has maintained the mortgage payments on his two separate properties, as well as his living expenses[.]
e.
When the parties separated, Mrs. Beach went to a shelter because she found Mr. Beach's calendar entry to "measure her and buy concrete".
f.
Mrs. Beach completed her undergraduate degree and masters degree during the marriage and Mr. Beach has some college coursework. Both are capable of earning a modest salary, Mrs. Beach currently earns 62,000.00 per year, Mr. Beach was a copier repairman earning $43,000.00 annual salary before his period of unemployment.
g.
Mr. Mrs. Beach are of comparable age, relatively good heath and neither stands to inherit any significant estate.
h.
Mr. Beach owns substantial separate property.
CHILD SUPPORT
In his fifteenth point of error, appellant contends the trial court erred in ordering appellant to pay child support even though appellee did not request it. The trial court has wide discretion in determining child support, and we will reverse the order only if it appears from the record as a whole that the trial court abused its discretion. Garner, 200 S.W.3d at 306; Deltuva, 113 S.W.3d at 886.
Appellee's petition for divorce requested the court to order appellant to pay child support. During the trial, appellee testified she was not seeking child support. The divorce decree orders appellant to pay child support of $500 per month. Regardless of whether appellee asked for the decree to order appellant to pay child support, appellant has the duty to support his child. See Hourigan v. Hourigan, 635 S.W.2d 556, 558 (Tex.Civ.App.-El Paso 1981, no writ) ("Each parent has the duty to support his or her minor child. . . . The fact that the husband could support their child from his current earnings without any outside contribution does not relieve the wife of her obligation of support."). The trial court found it was in the best interest of the child that appellant pay child support. We conclude appellant has not shown the trial court abused its discretion in ordering him to pay child support.
Appellant also asserts that the amount of child support ordered, $500 per month, was not supported by the evidence. Chapter 154 of the Texas Family Code establishes a multiple-step process for determining the amount of child support. The trial court must first determine the parties' gross income, net income, and monthly net resources. Each party is required to furnish information sufficient to identify the party's net resources and ability to pay support, such as production of copies of income tax returns, financial statements, and pay stubs. After determining the amount of net resources, the trial court must decide whether to apply the child support guidelines or whether application of the guidelines would be unjust or inappropriate. See Tex. Fam. Code Ann. §§ 154.001-.309 (Vernon 2002 Supp. 2006); Garner, 200 S.W.3d at 306. A parent's child support obligation is not limited to that parent's ability to pay from current earnings but extends to the parent's financial ability to pay from any and all available sources. Garner, 200 S.W.3d at 306; see In the Interest of Striegler, 915 S.W.2d 629, 638 (Tex.App.-Amarillo 1996, writ denied).
The trial court made the following findings of fact concerning child support:
[1]
The application of percentage guidelines in this case would be unjust or inappropriate because [appellant] is underemployed.
[2]
The amount of net resources available to [appellant] per month is sufficient to maintain two pieces of real estate, a vehicle and funds to pay after school care for the child on days of his possession;
[3]
The amount of net resources available to [appellee] per month is $3924.00
[4]
[Appellant] has the capacity to hold a job earning a salary in the low 40,000.00 per year.
[5]
The amount of child support payments per month that is computed if the percentage guidelines of section 154.125 of the Texas Family Code are applied to the first $6000 of [appellant's] net resources is unknown because [appellant] provided no evidence of resources to pay his expenses.
[6]
The percentage applied to the first $6,000 of [appellant's] net resources for child support by the actual order rendered by the Court is 20 percent; and
[7]
the specific reasons that the amount of support per month ordered by the Court varies from the amount computed by applying the percentage guidelines of section 154.125 of the Texas Family Code are: The Court finds that [appellant] is underemployed. The cost of the child's education is $574.00 per month with after school care costs of $11.00 per day. [Appellant] shall pay child support of $500.00 per month beginning July 1, 2005. The Court finds that [appellant] is to reimburse [appellee] for the cost of health insurance which is $10.00 per month. The parties shall divide equally any uninsured medical costs. In addition, see paragraph [2] above. It is in the best interest of the child that [appellant] pay child support. . . .
A trial court may order a parent to pay child support beyond the amount the parent's income would ordinarily indicate under the guidelines if the parent could potentially earn more money but has intentionally chosen not to. Garner, 200 S.W.3d at 306; see Tex. Fam. Code Ann. § 154.066 (Vernon 2002) (intentional unemployment or underemployment). A child-support obligor qualified to obtain gainful employment may not avoid the support obligation by voluntarily remaining unemployed or underemployed. Tenery v. Tenery, 955 S.W.2d 337, 340 (Tex.App.-San Antonio 1997, no pet).
For the trial court to make a finding of intentional underemployment or unemployment, there must be evidence the parent reduced his income for the purpose of decreasing his child support payment. Garner, 200 S.W.3d at 306; In re P.J.H., 25 S.W.3d 402, 405 (Tex.App.-Fort Worth 2000, no pet.); DuBois v. DuBois, 956 S.W.2d 607, 610 (Tex.App.-Tyler 1997, no pet.). The requisite intent, or lack thereof, to be underemployed or unemployed for the purpose of determining a child support award may be inferred from such circumstances as the parent's education, economic adversities, business reversals, business background, and earning potential. In re P.J.H., 25 S.W.3d at 406.
In this case, the evidence shows appellant had worked servicing and repairing copy machines until he lost his job in 2001. The social study, which was admitted into evidence, shows appellant told the social worker that after he lost his job, he earned income by purchasing broken copiers, repairing them, and reselling them. The child's godmother testified appellant frequently was at the child's school with the child during lunch and recess and that appellant said he did so because "he thought that he had the privilege of not having a job." The only evidence appellant had sought employment was his testimony that in the month before trial, he had sent out six job applications and had two interviews. We conclude that from this evidence, the trial court could have reasonably concluded that in the three-and-one-half years after he lost his job, appellant could have obtained employment paying a similar salary to the one he received from his prior employer. We conclude the evidence does not show the trial court abused its discretion in finding appellant was underemployed and ordering appellant to pay $500 per month as child support. We overrule appellant's fifteenth point of error.
CONSERVATORSHIP
In his fourth point of error, appellant contends the trial court erred in granting managing conservatorship of the child to appellee because the evidence prohibited such a decision and was consequently not in the child's best interest. The trial court appointed the parties as joint managing conservators granting appellee the right to establish the child's residential domicile, the right to make education decisions, the right to determine mental health care and to make medical decisions involving invasive procedures. The trial court has wide latitude in determining the best interests of the child for purposes of awarding conservatorship of the child. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Stallworth v. Stallworth, 201 S.W.3d 338, 347 (Tex.App.-Dallas 2006, no pet.). The trial court's judgment will only be disturbed where the record as a whole shows that the trial court has abused its discretion. Gillespie, 644 S.W.2d at 451; Stallworth, 201 S.W.3d at 347.
Appellant asserts the trial court erred by not following the recommendation of the social study that the parties share possession of the child equally. Appellee, however, testified that it would be better for the child to spend the weekdays with her and the weekends with appellant. Thus, the trial court's decision to modify the standard possession order is supported by probative and substantive evidence and is not an abuse of discretion.
Appellant next contends the trial court was prohibited from appointing appellee joint managing conservator because, appellant asserts, appellee admitted to committing physical abuse against appellant within two years of the filing of the divorce. Section 153.004 of the family code states the trial court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of physical abuse by one parent directed against the other parent. Section 153.004 also states it is a rebuttable presumption that the appointment of a parent as the conservator who has the exclusive right to determine the residence of the child is not in the best interest of the child if credible evidence is presented of a history or pattern of physical abuse by that parent directed against the other parent. Tex. Fam. Code Ann. § 153.004(b) (Vernon Supp. 2006). Appellee testified she struck appellant in the shoulder out of frustration. Appellant presented no evidence that he was injured or suffered any pain in this incident. Given the circumstances of the incident, the trial court could reasonably have concluded this incident did not constitute physical abuse. We conclude the record does not show the trial court abused its discretion by appointing appellee a managing conservator. We overrule appellant's fourth point of error.
Appellee testified about the incident as follows:
The time I hit you and I punched you in the shoulder in front of David we had been camping at Tyler State Park . . . and then went to MacDonalds [sic] and I was so existed [sic] that we were doing something child appropriate going to MacDonalds [sic] and David was so excited to run in the door and start playing and you were insisting that David eat first, and I wanted David to be able to play, and you after about . . . maybe 15 minutes you picked David up and carried him out and sat in the car while he cried and screamed and that was not the family time I wanted to have it, if you're going to enforce the limit that the child must eat first when you go to MacDonalds [sic] then both parents need to have agreed on that ahead of time and that wasn't what was happening.
And I, out of frustration, I punched you in the shoulder when I got in the car and we addressed this in front of the marriage counselor the next week and I said you're right that was not appropriate and what I'm going to do is when we're sitting in the car in the same spot, I'm going to say to you, Daddy, I hit you in the shoulder and I shouldn't have done that, I apologize for that and that is not the way to solve a problem. And that was my attempt to rectify that situation, and instead of your accepting that, yes that was an inappropriate way to handle it and resolve it, you have clung to it. And I was trying to, again, I was trying to have a nice family time, and you consistently wanted to enforce limits with David that were not appropriate because they weren't agreed on by the parents.
CONTINUANCE
In his first three points of error, appellant contends the trial court erred in denying his oral motions for continuance. We review the denial of a motion for continuance under an abuse of discretion standard. Coats v. Ruiz, 198 S.W.3d 863, 877 (Tex.App.-Dallas 2006, no pet.). We do not disturb the trial court's ruling unless, after reviewing the entire record, we determine the trial court's ruling was clearly arbitrary and unreasonable. Id.
Appellant's argument in his original brief contains no argument or authorities relevant to these points of error. Instead, appellant argues the law concerning setting aside default judgments, and all his authorities concern that issue. Because there was no default judgment in this case, those arguments and authorities are not applicable. Accordingly, these issues are waived due to improper briefing. See Tex. R. App. P. 38.1(h); Blanks v. Liberty Mut. Fire Ins. Co., 196 S.W.3d 451, 452 (Tex.App.-Dallas 2006, pet. denied). However, in the interest of justice, we will address appellant's points of error to the extent we can discern the asserted error.
In his first point of error, appellant contends the trial court erred in denying his motion for continuance because appellant was not ready for trial and did not receive forty-five days' notice of trial as required by rule of civil procedure 245. See Tex. R. Civ. P. 245. Rule 245 provides that the trial court must provide "reasonable notice of not less than forty-five days to the parties of a first setting for trial." Id. However, any failure to provide forty-five days' notice is waived if the party proceeds to trial without objecting to the lack of notice. In re J. (B.B.) M., 955 S.W.2d 405, 408 (Tex.App.-San Antonio 1997, no pet.). In this case, appellant did not object until about halfway through the trial. By not objecting to the lack of forty-five days' notice and proceeding to trial, appellant has waived any error. We overrule appellant's first point of error.
In his second point of error, appellant asserts the trial court erred in denying a continuance because appellant was never properly cited. In his motion for new trial, appellant asserted he was not properly cited because the notice he received was sent by regular mail, not certified or registered as required by rule 21a. See Tex. R. Civ. P. 21a. Appellant did not move for a continuance on the ground that the notice of the trial setting did not comply with rule 21a, and he did not timely object to any failure to comply with rule 21a. To preserve error, a party must timely present his request to the trial court. Tex. R. App. P. 33.1. Accordingly, appellant has not preserved any error. We overrule appellant's second point of error.
In his third point of error, appellant contends the court erred in denying a continuance because appellant established that he was legally unable to perform discovery. Again, the record does not show appellant moved for a continuance on this ground. Accordingly, he has not preserved error. We overrule appellant's third point of error.
In his sixteenth point of error, appellant contends the trial court erred when it did not assign a "complex case designation" to the proceeding and adjourn the hearing to a more appropriate time. The record does not show appellant requested any such designation or a continuance on this ground before or during the trial. Accordingly, appellant has not preserved any error. See Tex. R. App. P. 33.1. We overrule appellant's sixteenth point of error.
In his reply brief, appellant asserts the trial court should have granted appellant's request for a continuance to afford him an opportunity to retain counsel. Appellant relies on Villegas v. Carter, 711 S.W.2d 624 (Tex. 1986). In that case, the trial court granted Villegas's attorney's motion to withdraw only two days before trial. Id. at 625. Villegas appeared pro se at the trial and requested a continuance to obtain counsel and explained that he had learned of the motion to withdraw only six days earlier, he wanted to hire a particular lawyer, the lawyer would determine whether to take the case after examining the file, and Villegas's withdrawn attorney had not yet given the file to the lawyer and would not return his telephone calls. The trial court denied the motion for continuance. Id. at 626. The supreme court held the denial of the continuance in that situation was an abuse of discretion
because the evidence shows that Villegas was not negligent or at fault in causing his attorney's withdrawal. The court granted Villegas' attorney's motion to voluntarily withdraw two days before trial-too short a time for Villegas to find a new attorney and for that new attorney to investigate the case and prepare for trial. In addition, Villegas could not obtain a new attorney or present his case because the former attorney refused to turn over Villegas' files with his papers and evidence. The attorney did not give Villegas time to employ new counsel or deliver to Villegas the papers and property to which Villegas was entitled. In short, Villegas' attorney did not take reasonable steps to avoid foreseeable prejudice to the client.
The trial court should either have denied the attorney's motion to withdraw or granted the party's motion for continuance; it did neither.
Id. at 626-27. This case is distinguishable from Villegas for many reasons. Villegas did not know his attorney was withdrawing until six days before trial; appellant agreed to his attorney's withdrawal even though the case was being reinstated, and he had sixty days to hire counsel. Appellant also had twenty days to hire counsel after he learned of the trial setting. Villegas explained why he was without counsel and stated that he was in the process of retaining new counsel; appellant did not explain why he had not retained counsel, nor does the record show that appellant had even attempted to find a new attorney. Also, unlike Villegas, the record in this case does not show that appellant's attorney failed to comply with the rules of professional conduct for withdrawing attorneys. See id. Appellant does not complain that his attorney refused to turn over the file with appellant's papers and any evidence. At the time the attorney withdrew, there were no trial settings. This case is not analogous to Villegas.
Appellant also relies on this Court's opinion in Thrower v. Johnston, 775 S.W.2d 718 (Tex.App.-Dallas 1989, no writ). In that case, which was in county court, the case was set for trial at 9:00 a.m. The defendant's attorney was also counsel and a party in another case scheduled for a hearing at that same time and date in district court in a neighboring county. The attorney informed the county court of the conflict with the district court and the fact that the district court was reluctant to release the attorney from attendance at the hearing. Opposing counsel in county court refused to agree to a resetting of the case to an earlier date. The attorney informed the county court that he would be released from the district court at 11 a.m. and would appear after he was released. The attorney was released at 11:20 a.m., but when he got to the county court, he learned the judge had already granted a default judgment, and the judge refused to consider the attorney's motion to vacate. Id. at 719-20. We held under those facts that the failure to grant the motion to reset was an abuse of discretion. Id. at 721. Thrower is readily distinguishable. In Thrower, the defendant's lack of an attorney was not his fault; the defendant had an attorney who was prepared to go to trial on that date or earlier provided the county court would honor the preferential setting in district court. In this case, appellant's lack of counsel was due to his agreeing to his attorney's withdrawal (even though he knew appellee had moved for reinstatement of the case) and his unexplained failure to retain counsel thereafter.
Appellant was never in a position like the parties in Villegas and Thrower. We overrule the arguments asserted in appellant's reply brief. See Taherzadeh v. Ghaleh-Assadi, 108 S.W.3d 927, 928 (Tex.App.-Dallas 2003, pet. denied) (distinguishing Villegas because party had nine days' notice of hearing to find counsel).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In his seventh point of error, appellant contends the trial court erred in not filing findings of fact and conclusions of law as required by section 153.258 of the family code and rules of civil procedure 296 and 297 until after the trial court denied appellant's motion for new trial. See Tex. Fam. Code Ann. § 153.258 (Vernon 2002); Tex. R. Civ. P. 296, 297.
Under section 153.258, in cases in which possession of a child is disputed and the order of possession varies from the standard possession order, a party may request the trial court to state the specific reasons for the variance from the order. In this case, appellant's request for findings of fact and conclusions of law was a request for findings and conclusions under rules 296 and 297 specifically; it did not request the court to set forth the reasons for varying from the standard possession order, and it did not cite section 153.258. Accordingly, appellant did not request findings under section 153.258, and the trial court was not required to enter findings under that section.
Appellant asserted the trial court erred in not entering findings of fact and conclusions of law before ruling on the motion for new trial. Under rules 296 and 297, the trial court has up to forty days after the timely filing of the request to file its findings and conclusions. See Tex. R. Civ. P. 296, 297. In this case, appellant's request was filed prematurely, so we treat it as filed on the day of, but subsequent to, the signing of the judgment. Tex. R. Civ. P. 306c. The trial court signed the judgment on June 29, 2005, and the findings of fact and conclusions of law had to be filed by August 8, 2005. The court untimely filed its findings and conclusions on September 13, 2005.
Rules 296 and 297, however, do not preclude the trial court from issuing belated findings. Robles v. Robles, 965 S.W.2d 605, 610 (Tex.App.-Houston [1st Dist.] 1998, pet. denied); Morrison v. Morrison, 713 S.W.2d 377, 380 (Tex.App.-Dallas 1986, writ dism'd). We do not reverse a judgment due to untimely findings unless the party can show injury due to the late-filed findings and conclusions. Robles, 965 S.W.2d at 610; Morrison, 713 S.W.2d at 381. Injury may be in one of two forms: (1) the litigant was unable to request additional findings, or (2) the litigant was prevented from properly presenting his appeal. Robles, 965 S.W.2d at 610. In this case, appellant argues he was harmed because "the Court's error . . . prevents the appellant from properly presenting a case to the appellate court. . . . As two or more grounds for recovery or defense exist, the inference of harm cannot be overcome and the Court's decision should be reversed. . . ." Three of the cases appellant cites concern situations where the trial court failed to file any findings and conclusions. See Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989); Larry F. Smith, Inc. v. Weber Co., 110 S.W.3d 611, 614 (Tex.App.-Dallas 2003, pet. denied); Randall v. Jennings, 788 S.W.2d 931, 932 (Tex.App.-Houston [14th Dist.] 1990, no writ). The other case appellant cites, In re Davis, 30 S.W.3d 609, 613 (Tex.App.-Texarkana 2000, no pet.), concerns the trial court's failure to make additional findings. In this case, the trial court filed findings of fact and conclusions of law and appellant did not request additional findings of fact and conclusions of law; accordingly, the cases appellant cites are not applicable. Appellant also does not explain what the two grounds for recovery or defense are that prevent him from properly presenting this case on appeal. We conclude appellant has failed to show injury due to the late-filed findings and conclusions. We overrule appellant's seventh point of error.
MOTION FOR NEW TRIAL
Appellant's sixth, eighth through twelfth, and fourteenth points of error assert the trial court erred in denying appellant's motion for new trial. We review the denial of a motion for new trial for abuse of discretion. In re R.R., 209 S.W.3d 112, 114 (Tex. 2006).
In his sixth point of error, appellant contends the trial court erred by denying the motion for new trial because appellant was denied his right to forty-five days' notice of the trial setting through proper citation. This point of error is essentially the same as appellant's first and second points of error. We overrule the sixth point of error for the reasons discussed in the first and second points of error.
In his eighth point of error, appellant asserts the trial court erred in denying his motion for new trial because he established that his being "not ready" for trial was not intentional nor the result of conscious indifference. Appellant's being "not ready" for trial was not a ground of his motion for new trial. Accordingly, appellant has not preserved this issue for appellate review. See Tex. R. App. P. 33.1. We overrule appellant's eighth point of error.
In his ninth, tenth, and twelfth points of error, appellant contends the trial court erred in denying his motion for new trial because appellant raised a meritorious defense, the court precluded appellant from fully raising his meritorious defense, and the evidence was not legally or factually sufficient to support denial. The meritorious defense asserted in the motion for new trial was the unequal division of community property and the inclusion of appellant's separate property in the community estate. We addressed these arguments in appellant's fifth point of error. We overrule appellant's ninth, tenth, and twelfth points of error.
In his eleventh point of error, appellant asserts the trial court erred in denying appellant's motion for new trial because appellant raised the absence of resulting detriment and appellee failed to show any detriment. This argument is one of the elements for obtaining a motion for new trial following a default judgment. See Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 393, 133 S.W.2d 124, 126 (1939); In re J.P., 196 S.W.3d 434, 438 (Tex.App.-Dallas 2006, no pet.). In this case, there was no default judgment, so this argument is not applicable. We overrule appellant's eleventh point of error.
In his fourteenth point of error, appellant asserts he should receive a new trial because new evidence revealed after judgment was entered indicates substantial assets in the control of appellee were not declared at the time of trial. Appellant did not present this issue to the trial court; accordingly, he has not preserved it for appellate review. Furthermore, the record on appeal contains no evidence of undisclosed assets. We overrule appellant's fourteenth point of error.
Appellant asserts that certain documents attached to his brief show appellee failed to disclose assets. An appellate court cannot consider documents cited in a brief and attached as appendices if they are not formally included in the appellate record. Cantu v. Horany, 195 S.W.3d 867, 870 (Tex.App.-Dallas 2006, no pet.).
ATTORNEY'S FEES
In his thirteenth point of error, appellant contends the trial court erred in awarding appellee her attorney's fees. The record shows the trial court awarded appellee a judgment against appellant for $4000 of appellee's $8000 attorney's fees. The court may apportion attorney's fees as part of the just and right division of the property. Sandone v. Miller-Sandone, 116 S.W.3d 204, 208 (Tex.App.-El Paso 2003, no pet.). Appellant does not explain why the equal division of the attorney's-fees obligation made the property division unjust and not right. Appellant cites two cases, Daniel v. Esmaili, 761 S.W.2d 827 (Tex.App.-Dallas 1988, no writ), and Mid-Continent Casualty Co. v. Whatley, 742 S.W.2d 475 (Tex.App.-Dallas 1987, no writ). Both of these cases concerned the award of sanctions under the former version of rule of appellate procedure 45 for taking an appeal for delay without sufficient cause. See Daniel, 761 S.W.2d at 829-30; Mid-Continent Cas. Co., 742 S.W.2d at 479. Neither of these cases is applicable to this case.
We conclude appellant has not shown the trial court abused its discretion in awarding appellee judgment against appellant for one-half of her attorney's fees. We overrule appellant's thirteenth point of error.
We affirm the trial court's judgment.