Opinion
No. 04-16-00609-CV
10-11-2017
Jason Jeremy MATTHEWS, Appellant v. Layna Marie MATTHEWS, Appellee
MEMORANDUM OPINION
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2016-CI-00535
Honorable Stephani A. Walsh, Judge Presiding Opinion by: Sandee Bryan Marion, Chief Justice Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Patricia O. Alvarez, Justice AFFIRMED
After the trial court signed a default divorce decree, appellant, Jason Jeremy Matthews, filed a motion for new trial. The trial court granted the motion in part as to the division of community property. About one month later, the trial court signed a "Decree of Divorce Following Partial Granting of Motion for New Trial." Jason's second motion for new trial was overruled by operation of law. Jason now appeals. We affirm.
PROCEDURAL BACKGROUND
Appellant's "Statement of Facts" in his appellate brief does not contain a single citation to the record on appeal. Therefore, we recite only the relevant procedural background as it appears from the clerk's record and reporter's record.
Appellee, Layna Matthews, filed an original petition for divorce. The trial court entered a default divorce decree after Jason failed to appear. This decree dissolved the marriage, entered orders with regard to Jason and Layna's daughter, and divided the marital estate. Jason, through counsel, filed a motion for new trial, asserting, among other things, that (1) Layna did not serve him with the original petition for divorce and (2) Layna was "granted an extraordinary amount of relief that she did not plead for" and "a grossly disproportionate share of the estate." The trial court conducted a new trial hearing. During a recess in the hearing, the parties reached an agreement. When the hearing resumed, the trial court heard the parties' agreement, made additional rulings, and, at the conclusion, granted Jason's motion for new trial in part as to the division of the community estate, but denied the motion as to the divorce, conservatorship, possession, access, and child support. The trial court also set a hearing to enter the final divorce decree. The motion to enter hearing was reset twice after Jason's attorney moved to withdraw as his counsel. A few weeks after counsel's withdrawal, the trial court held a hearing on the motion to enter. The judge's notes from the hearing indicate the trial court found the "Decree comports w[ith] ruling." The trial court signed the "Decree of Divorce Following Partial Granting of Motion for New Trial." Jason filed a second motion for new trial, which was overruled by operation of law.
The clerk's record indicates a hearing was conducted, but there is no reporter's record from this hearing.
ISSUES ON APPEAL
Because Jason is pro se on appeal, we liberally construe the issues raised in his brief. However, although we construe his brief liberally, we do not afford it a more lenient construction than we would a represented party because we hold pro se parties to the same standard as licensed attorneys, and all parties, represented by counsel or not, must comply with all applicable rules of procedure. See Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 930 (Tex. App.—Houston [14th Dist.] 2008, no pet.). A pro se litigant must properly present his case on appeal; if this were not the rule, pro se litigants would benefit from an unfair advantage over those parties who are represented by counsel. Id. We will not make allowances for or apply different standards because a case is presented by a pro se litigant. Id. Construing Jason's brief liberally, the issues before us are whether the trial court (1) erred by not granting his motion for new trial; (2) erred in accepting Layna and her attorney's "verbal testimony under oath at 'face value'"; and (3) erred in dividing the property. Because all of Jason's complaints are premised on the same argument—that the trial court failed to enter a fair and equitable property division, we discuss his issues together.
DISCUSSION
In his first issue on appeal, Jason asserts he should be granted a new trial because Layna was granted a disproportionate amount of the estate. Jason filed two motions for new trial. The trial court partially granted his first motion and provided him the relief he requested—a new trial on the property division. Jason's second motion for new trial was overruled by operation of law. On appeal, Jason does not indicate whether he is complaining about the denial of his first motion or his second motion. Because Jason's single citation to the reporter's record is to the new trial hearing on his first motion, we assume Jason's first issue on appeal is directed not to the trial court's ruling on that motion, but to the trial court's ruling during the new trial hearing, which ultimately resulted in the "Decree of Divorce Following Partial Granting of Motion for New Trial." Jason's remaining issues on appeal are directed to this decree.
Jason's second issue on appeal asks whether the trial court erred "in accepting [Layna] and her legal counsel's verbal testimony under oath at 'face value,'" and whether the trial court used "due diligence . . . to ensure a valid fact-based decree." Jason contends Layna committed fraud by misrepresenting both marital and premarital assets and their values and by failing to disclose all marital assets of significant value. In Jason's third and fourth issues on appeal, he also complains about the inequity of the property division.
At the hearing on the first motion for new trial, the trial court heard testimony from Jason, and then recessed for lunch. When the hearing recommenced, the parties announced they had reached an agreement. Although the trial court granted Jason a new trial on property, it also accepted the parties' agreement as to (1) further use of credit cards and (2) how proceeds from the house would be paid out. The trial court ordered Layna to prepare the new divorce decree. We presume this ruling from the bench and the subsequently entered "Decree of Divorce Following Partial Granting of Motion for New Trial" are the focus of Jason's brief.
We first note that after Jason filed his original appellate brief, this court issued an order striking that brief and ordering him to file an amended brief. In our order, we noted the original brief did not contain citations to the clerk's record or the reporter's record, and did not contain citations to any legal authority. Jason filed an amended brief. Although we accepted this amended brief, many of his arguments are multifarious and continue to lack appropriate citations to the record or legal authority. The approximately thirty-seven pages in Jason's amended appellate brief contain few citations to the reporter's record from the new trial hearing. None of the citations support Jason's allegations on appeal that Layna committed fraud or in any way misled the trial court. With only witness testimony, but no documentary evidence, in the appellate record, we must defer to the trial court's credibility findings. A trial court acts as fact finder in a bench trial and is the sole judge of the credibility of witnesses. HTS Servs., Inc. v. Hallwood Realty Partners, L.P., 190 S.W.3d 108, 111 (Tex. App.—Houston [1st Dist.] 2005, no pet.). The trial judge, sitting alone, can accept or reject any or all of the testimony of any of the witnesses. D & B, Inc. v. Hempstead, 715 S.W.2d 857, 858-59 (Tex. App.—Beaumont 1986, no writ). "We may not pass upon the credibility of the witnesses or substitute our judgment for that of the trier of fact, even if a different answer could be reached upon review of the evidence." Rich v. Olah, 274 S.W.3d 878, 884 (Tex. App.—Dallas 2008, no pet.). Therefore, on this record, we cannot conclude the trial court erred in dividing the property.
Because we do not have a record from the hearing held on the motion to enter, we do not know if any of Jason's complaints on appeal were raised during that hearing.
We note that at the new trial hearing, the trial court specifically found Layna did not commit fraud.
The index to the reporter's record indicates the following exhibits submitted by Jason: (1) an email, (2) an inventory, (3) a copy of temporary orders, and (4) credit card statements. However, Jason's attorney withdrew all the exhibits; therefore, they are not before us in this appeal.
Any remaining complaints on appeal not addressed in this opinion are waived. Bare assertions of error, without argument or authority, are insufficient to present error for our review. See Sullivan v. Bickel & Brewer, 943 S.W.2d 477, 486 (Tex. App.—Dallas 1995, writ denied); see also Fredonia State Bank v. General Am. Life Ins. Co., 881 S.W.2d 279, 283-84 (Tex. 1994) (it is not appellate court's duty to search record and appellate court has discretion to waive point of error due to inadequate briefing). Jason bore the burden to show that the record supports his contentions and to point out in the record where matters complained of are shown. See Peterson v. Dean Witter Reynolds, Inc., 805 S.W.2d 541, 549 (Tex. App.—Dallas 1991, no writ.). Despite our order directing Jason to file an amended brief that contained citations to the record and to legal authority, Jason's brief is largely multifarious and lacks appropriate citations. An issue is multifarious when it generally attacks the trial court's order with numerous arguments. See In re S.K.A., 236 S.W.3d 875, 894 (Tex. App.—Texarkana 2007), pet. denied, 260 S.W.3d 463 (Tex. 2008); Hollifield v. Hollifield, 925 S.W.2d 153, 155 (Tex. App.—Austin 1996, no writ); Clancy v. Zale Corp., 705 S.W.2d 820, 823 (Tex. App.—Dallas 1986, writ ref'd n.r.e.). We may disregard any issue on appeal that is multifarious. See Hollifield, 925 S.W.2d at 155; Clancy, 705 S.W.2d at 824.
CONCLUSION
We overrule Jason's issues on appeal and affirm the trial court's judgment.
Sandee Bryan Marion, Chief Justice