Bruce M. Crider v. Mary H. Crider

Opinion issued July 7, 2011.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00268-CV

———————————

Bruce M. Crider , Appellant

V.

Mary H.

Crider , Appellee

On Appeal from the County Court at Law Number Three

Galveston County, Texas

Trial Court Case No. 09FD2033

MEMORANDUM OPINION

Bruce

and Mary Crider were divorced. Bruce challenges the final judgment in their

divorce action on numerous grounds. We find no error in the trial court’s judgment

and affirm.

Background

On August 4, 2009, Bruce and Mary Crider

filed a verified petition for divorce on grounds of irreconcilable differences.

The petition stated that the Criders had provided for the division of their

community property and obligations in a marital settlement agreement, which was

attached to the petition and incorporated into the petition by reference. The

petition stated that both parties were satisfied with the marital settlement

agreement and signed the agreement without duress, force, or collusion. The

petition for divorce and marital settlement agreement were on pre-printed forms,

filled out by the Criders with handwritten additions and cross-outs. The

petition and marital settlement agreement were each notarized and signed by

Bruce and Mary.

The marital settlement agreement awarded

the following property to Mary: household furnishings, computers, televisions,

a Dodge Ram pickup truck, a .38 revolver, and “1/2 of business, Cutting Edge.” [1] It awarded the following

property to Bruce: tools and equipment, a utility trailer, a Dodge Dakota

pickup truck, a weight bench, a twelve gauge Winchester, a .380 Bersa, a .22

Browning and “1/2 of business (Cutting Edge).” The marital property agreement

identified the couple’s home in Hitchcock, Texas as community property and

provided that it would be sold, with the proceeds from the sale divided evenly

between Bruce and Mary. The agreement stated that the parties owned no separate

property. The agreement also contained a waiver of any right to alimony,

maintenance or spousal support. The Criders had no children.

Approximately three months after

the Criders filed the verified petition for divorce, Mary separately filed a counter-petition

for divorce in which she asked the court to divide the couple’s marital assets,

asserted that she owned separate property, and requested spousal maintenance.

Mary’s counter-petition made no reference to the marital settlement agreement.

Bruce moved to dismiss Mary’s counter-petition,

arguing that the joint verified petition remained valid and pending and that

Mary had no grounds for avoiding enforcement of the marital property agreement.

Bruce also moved to compel performance of the marital settlement agreement, specifically

seeking to compel Mary to move forward with the sale of their home in Hitchcock

and the division of the proceeds, pursuant to the agreement. Finally, Bruce

sought a temporary protective order to prohibit Mary from, among other things,

interfering with his use and possession of the home in Hitchcock and the Dodge

Dakota pickup truck. The record does not contain any response to these motions from

Mary. The trial court denied Bruce’s motions in December 2009.

In March 2010, the trial court held

a hearing on the Criders’ divorce action and entered a final judgment. The

judgment differs from the parties’ earlier agreement. The trial court

determined the residence in Hitchcock, Texas to be Mary’s separate property and

awarded the Browning handgun to Mary rather than Bruce. The judgment ordered

Bruce to pay Mary maintenance in the amount of $250 per month for a one-year

period commencing on April 1, 2010. Because Bruce had possession of the

Browning handgun at the time of trial, the judgment also ordered Bruce to

deliver the Browning handgun to Mary’s attorney’s office within thirty days

from the entry of judgment.

Bruce appealed from the trial

court’s final judgment, raising the following issues: (1) the damages awarded

were manifestly too large, resulting in a violation of his constitutional

rights; (2) the associate judge abused its discretion in recommending denial of

his motions; (3) the trial judge should have recused himself under Rule 18b of

the Texas Rules of Civil Procedure; (4) the maintenance award violated section

8.052 of the Texas Family Code and was unfairly disproportionate; (5) the trial

court improperly excluded evidence, (6) the trial court applied an incorrect

standard of proof; (7) the trial court erred in failing to designate this case

as a “complex case” under the local rules; (8) the trial court had improper ex

parte communications with Mary’s counsel; (9) the trial court attempted to

defraud him; (10) Mary filed an inaccurate financial statement, committed

discovery abuses, perjured herself on the stand and committed other wrongs

against him; (11) Mary’s attorney committed wrongs against him; (12) the order

for delivery of the Browning handgun to Mary’s attorney violated federal gun

laws and U.S. mail regulations; (13) the trial court erred in dividing the

community property rather than enforcing the parties’ marital settlement

agreement; (14) the trial court erred in determining that the home in Hitchcock

was Mary’s separate property; (15) the trial court erred in determining that an

unspecified pistol was Mary’s separate property; (16) the trial court violated

his constitutional rights; and (17) the amount of the maintenance award

violated section 8.055 of the Texas Family Code. Mary waived her right to

respond on appeal.

Standard of Review

The standard of review for property

division issues in family law cases is abuse of discretion. Raymond v.

Raymond , 190 S.W.3d 77, 82 (Tex. App.—Houston [1st Dist.] 2005, no pet.)

(citing Schlueter v. Schlueter ,

975 S.W.2d 584, 589 (Tex. 1998)). A trial court has broad discretion in

dividing the marital estate. Id. (citing

Eggemeyer v. Eggemeyer , 554 S.W.2d

137, 139 (Tex. 1977)). If the division of marital property lacks sufficient

evidence in the record to support it, then the trial court’s division is an abuse

of discretion. Id. at 83.

A post-marital property agreement is a contract, and unless

it is ambiguous, we determine its legal force and meaning as a question of law.

See Evans v. Evans , No. 01-97-00381-CV,

1999 WL 164463 , at *2 (Tex. App.—Houston [1st Dist.] Mar. 25, 1999, no pet.)

(citing McGoodwin v. McGoodwin ,

671 S.W.2d 880, 882 (Tex. 1984)). Likewise, statutory construction is a

question of law that we review de novo. See

HCBeck, Ltd. v. Rice , 284 S.W.3d 349, 352 (Tex. 2009).

Issues Not Preserved

Preservation

of error is a prerequisite for appellate review. Tex. R. App. P. 33.1(a). To preserve error, a party must (1)

raise the issue before the trial court in a manner that is timely, complies

with the rules of civil procedure, and informs the trial court of what the

party requests and the basis for the request, and (2) obtain a ruling from the

trial court or object to the trial court’s refusal to rule. Id. ; In re Commitment of Hill , 334 S.W.3d 226, 229 (Tex. 2011) (“A party preserves error

by a timely request that makes clear—by words or context—the grounds for the

request and by obtaining a ruling on that request, whether express or

implicit.”). Courts of appeals may not review issues that are not preserved for

appeal. Tex. R. App. P. 33.1(a); Bushell

v. Dean , 803 S.W.2d 711, 712

(Tex. 1991) (op. on reh’g). We conclude that Bruce has waived issues three,

five, ten, and seventeen, as enumerated above, by failing to preserve the

issues for appeal.

With respect to issue three, the

rules of civil procedure require a party seeking recusal to file a verified

motion to recuse stating the grounds for recusal at least ten days before a

trial or hearing. See Tex. R. Civ. P. 18a(a). Bruce never

moved to recuse the trial judge. He therefore has not preserved issue three for

appeal. See Zurita v. Lombana , 322

S.W.3d 463 , 471 n.2 (Tex. App.—Houston [14th Dist.] 2010, pet. denied)

(determining that party waived complaint by failing to move for recusal); Harris v. Winston , No. 01-05-00962-CV,

2007 WL 1500279 , at *3 n.5 (Tex. App.—Houston [1st Dist.] 2007, pet. dism’d

w.o.j.) (declining to reach issue where appellant failed to demonstrate that he

filed motion to recuse in trial court prior to final judgment); see also In re Wilhite , 298 S.W.3d 754, 757 (Tex. App.—Houston

[1st Dist.] 2009, no pet.) (“Recusal must be preserved for appeal or it is

waived.”).

With respect to issue five, “[t]o preserve error in the

exclusion of evidence, a party must (1) attempt during the evidentiary portion

of the trial to introduce the evidence; (2) if an objection is lodged, specify

the purpose for which [the

evidence] is offered and give the trial court reasons why the evidence is

admissible; (3) obtain a ruling from the court; and (4) if the court rules the

evidence inadmissible, make a record, through a bill of exceptions, of the

precise evidence the party desires admitted.” Ulogo v. Villanueva , 177 S.W.3d 496 ,

501–02 (Tex. App.—Houston [1st Dist.] 2005, no pet.). Bruce did not satisfy

these prerequisites with respect to any piece of evidence he offered at trial

that was not admitted by the trial court. He has therefore waived any complaint

about the exclusion of evidence. See id.

With respect to issue ten, Bruce has not shown that he

raised his complaints relating to Mary’s evidence or alleged conduct before the

trial court in a timely manner that complied with the rules of civil procedure

or that the trial court ruled on his complaints. Bruce has therefore waived

this issue. See Tex. R. App. P. 33.1(a); In re Commitment of Hill , 334 S.W.3d at 229 .

With respect to issue seventeen, Bruce complains for the

first time on appeal that the trial court’s spousal maintenance award violates

section 8.055 by exceeding the limitation on the amount that may be awarded

under subsection (a). See Tex. Fam. Code Ann. § 8.055(a) (West 2006) (limiting amount of

maintenance trial court may order to lesser of $2,500 or twenty percent of

spouse’s average monthly gross income). Bruce contends that he has no monthly

income and that the maximum amount maintenance that could be awarded against

him is therefore $0. See id. §

8.055(a)(2). Bruce did not raise this issue in his post-judgment filings or

otherwise bring the issue before the trial court and obtain a ruling. He

therefore cannot raise this issue on appeal. See Tex. R. App. P.

33.1(a).

Issues Waived Due to Inadequate Briefing

The

rules of appellate procedure require a party’s brief to contain a “clear and

concise argument” for the party’s contentions and “appropriate citations to

authorities and to the record.” Tex. R.

App. P. 38.1(i). A party who fails to support his or her contentions

with authority or citations to the record when appropriate waives the issue due

to inadequate briefing. E.g. , Izen v. Comm’n For Lawyer Discipline ,

322 S.W.3d 308, 326 (Tex. App.—Houston [1st Dist.] 2010, pet. struck) (holding

that party waived issue by failing to cite relevant legal authority to support

argument); Morrill v. Cisek , 226 S.W.3d 545 , 548–49 (Tex.

App.—Houston [1st Dist.] 2006, no pet.) (holding party waived issues by failing

to cite to record and authority). This rule applies to pro se litigants as well

as litigants represented by legal counsel; otherwise, pro se litigants would

have an unfair advantage over represented litigants. See Mansfield State Bank v.

Cohn , 573 S.W.2d 181 , 184–85 (Tex. 1978) (“There cannot be two sets

of procedural rules, one for litigants with counsel and the other for litigants

representing themselves.

Litigants who represent themselves must comply with the applicable procedural

rules, or else they would be given an unfair advantage over litigants

represented by counsel.”); Morris v. Am. Home Mortg. Serv., Inc. , No. 01-09-00768-CV,

2011 WL 1631762, at *3 (Tex. App.—Houston [1st Dist.] Apr. 28, 2011, no pet.)

(holding pro se litigant waived issue by failing to support arguments with

appropriate citations to legal authority and record). We hold that Bruce has

waived issues one, two, four, six through nine, eleven, fourteen, fifteen, and sixteen

due to inadequate briefing.

Bruce

has waived issues one, two, six, and sixteen by failing to cite even a single legal

authority to support these contentions. In issues one and sixteen, Bruce even

fails to cite to any constitution provision that he contends the trial court

violated. Issues one, two, six and sixteen are thus waived. See Tex.

R. App. P. 38.1(i); Izen , 322 S.W.3d

at 326 ; Morris , 2011 WL 1631762, at *3 .

Bruce has also waived issues seven and

nine by failing to cite legal authority when appropriate and necessary to

support his contentions. In issue seven, Bruce contends that the trial court

should have designated his and Mary’s divorce action as a complex case under

local rules because he was indigent and not represented by counsel. Although

Bruce cites to the pertinent local rule, he provides no argument or authority

to support his contention that indigency and lack of counsel are grounds for

designating a case as complex under the rule. Nor does the plain language of

the rule provide any indication that the rule was intended to apply to actions

involving pro se or indigent litigants without regard to the nature of the case

or the complexity of the legal issues involved. See Galveston Cnty. (Tex.)

Cnty. Ct. Loc. R. 3.19 (authorizing county courts at law to designate a case

as complex such that the court may have discretion to exceed the time limits

for disposition of cases established by rule 6(e) of the Rules of Judicial

Administration). Similarly, in issue nine, although Bruce cites the chapter of

the Texas Penal Code governing fraud and a case discussing fraud, these

authorities are not relevant to his contention that the manner in which the

trial court conducted this case constituted a fraud on him. See Tex.

Penal Code Ann. §§ 32.01–32.52; Fina Supply, Inc. v. Abilene Nat’l Bank , 726 S.W.2d 537, 540 (Tex. 1987) (holding

that statements as to legal effect of amending expiration date of letter of

credit could not support fraud claim). Bruce provides no argument as to how the

trial court’s alleged error in handling his divorce action can constitute fraud

under criminal or civil law and provides no authority relevant to such a claim.

Bruce has therefore waived issues seven and nine. See Tex. R. App. P. 38.1(i); Izen , 322 S.W.3d at 326 ; Morris , 2011 WL 1631762, at *3 .

Bruce has waived issues four, eight,

eleven, fourteen, fifteen, and seventeen by failing to provide a clear and

concise argument and to support it with appropriate citations to the record. See Tex. R.

App. P. 38.1(i). Although

we interpret rule 38.1(i)’s briefing requirements liberally, parties “must put

forth some specific argument and analysis showing that the record and the law supports

their contentions.” San Saba Energy, L.P. v. Crawford , 171 S.W.3d 323,

338 (Tex. App.—Houston [14th Dist.] 2005, no pet.). Additionally, appellate

courts are not required to sift through the record without guidance from the

party to find support for a party’s bare assertion of error. See Reliant Energy Servs., Inc. v. Cotton

Valley Compression, L.L.C. , 336 S.W.3d 764 , 794 n. 36 (Tex. App.—Houston

[1st Dist.] 2011, no pet.); Curtis

v. Comm’n for Lawyer Discipline , 20 S.W.3d 227 , 237 n.2 (Tex. App.—Houston [14th Dist.]

2000, no pet.); Wade v. Comm’n for Lawyer Discipline , 961 S.W.2d 366, 373 (Tex. App.—Houston

[1st Dist.] 1997, no pet.); Nawas v. R & S Vending , 920 S.W.2d 734,

737 (Tex. App.—Houston [1st Dist.] 1996, no writ).

In issue four, Bruce asserts that the trial court violated

section 8.052 of the Family Code by failing to consider some factors and giving

disproportionate weight to others. But Bruce does not support this contention

with any citations to the record or explain his basis for concluding that the

trial court did not consider certain factors or gave greater weight to certain

factors. He does not identify any evidence that favors him under the factors

identified in Section 8.052; nor does he specifically challenge any of Mary’s

evidence under these factors. See Tex. Fam. Code Ann. § 8.052 (West 2006).

In issue fourteen, Bruce states in a single sentence that

Mary falsely claimed that the home in Hitchcock was her separate property. He

does not support this assertion with a single citation to legal authority or

the record, nor does he provide any argument to support it. Mary put forth

evidence at trial that she inherited the house from her parents, and Bruce

identifies no contrary evidence. Issues four and fourteen are thus waived. See Tex. R.

App. P. 38.1(i); San Saba Energy , 171 S.W.3d at 338 .

With respect to issues eight and eleven, Bruce does not cite

to any place in the record to support his allegation that the trial court

engaged in ex parte communications or his accusations against Mary’s attorney. With

respect to issue fifteen, Bruce does not identify in basis in the record to

support his assertion that the trial court determined some unspecified pistol

to be Mary’s separate property; to the contrary, the trial court’s final

judgment identifies only the real property in Hitchcock as separate property

belonging to Mary. These issues are thus also waived. See Tex. R. App. P. 38.1(i); Wade , 961 S.W.2d at 373 (“An appellate

court is under no duty to make an independent search of the record for evidence

supporting an appellant’s position.”).

Marital Settlement Agreement

In his thirteenth issue,

Bruce contests the trial court’s failure to enforce the martial settlement

agreement filed with the parties’ original petition for divorce. Agreements

between spouses entered into incident to a divorce are governed by section

7.006 of the Family Code. See Tex. Fam. Code Ann. § 7.006 (West

2006). Section 7.006 provides that spouses seeking a divorce may enter into a

written agreement concerning the division of the property and the liabilities

of the spouses and maintenance of either spouse. Id. § 7.006(a). Such an agreement may be revised or repudiated by

either spouse before the trial court renders its final divorce judgment, unless

the agreement is binding under another rule of law. [2] Id. ; see Cayan v. Cayan, 38 S.W.3d 161, 164 (Tex. App.—Houston

[14th Dist.] 2000, pet. denied). Additionally, if the trial court

finds that the terms of an agreement incident to divorce are not just and

right, the trial court may request that the parties revise the agreement or it

may set the case for a contested hearing. Tex.

Fam. Code Ann. § 7.006(c); see

Cayan , 38 S.W.3d at 164 .

We will not reverse the trial

court’s judgment to the extent it can be upheld on any legal theory that finds

support in the record. Gainous v. Gainous ,

219 S.W.3d 97, 103 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). Here, the

trial court set aside the parties’ agreement and set the case for a contested

hearing. This action can be upheld under Section 7.006(c) if there is support

in the record for the trial court’s determination that the agreement did not

provide for a fair and just division of the Criders’ community estate. See Tex.

Fam. Code Ann. § 7.006(c); see

also Markowitz v.

Markowitz , 118 S.W.3d 82, 89

(Tex. App.—Houston [14th Dist.] 2003, pet. denied) (holding that trial court

has discretion to approve or reject agreement incident to divorce in order to

ensure just and right division of marital estate). The record contains

evidence that supports the trial court’s determination that the marital

settlement agreement was not just and fair, including evidence that the home in

Hitchcock was Mary’s separate property that she inherited from her parents. We

therefore hold that the trial court did not err in setting the case for

contested hearing. See Tex. Fam. Code Ann. § 7.006(c); Markowitz , 118 S.W.3d at 89 ; cf. Hogan

v. Hogan , No. 05-00-00048-CV, 2001 WL 221542 , at *4–5 (Tex. App.—Dallas

Mar. 7, 2001, no pet.) (holding that trial court properly conducted contested

hearing on divorce action when record supported trial court’s determination

that parties’ divorce agreement was too vague to enforce).

Federal Gun Laws

In

issue twelve, Bruce challenges the order in the final judgment requiring him to

deliver the Browning handgun to Mary’s attorney, asserting that the order

violates section 922(a)(3) and (b)(3) of the United States Code, as well as U.S.

postal service regulations. The order states:

IT IS HEREBY ORDERED that

within 30 days from the entry of this Decree, [the Browning] hand gun is to be

delivered by shipment or U.S. Mail, to the Law Offices of Gerson D. Bloom,

1023- – 21st Street, Galveston, Texas 77550.

The testimony at trial establishes

that Bruce took the Browning handgun and other property with him to his new

residence in Colorado and that the handgun was still located in Colorado at the

time of trial. Delivering the handgun to Mary’s attorney’s office in Texas

therefore requires transportation of the gun across state lines. The testimony

also establishes that the gun was owned by Mary’s father, who gave it to Bruce

and Mary as a gift.

Section

922(a)(3) prohibits a person who is not a licensed importer, manufacturer,

dealer or collector of firearms from transporting into or receiving in the

state where he or she resides any firearm purchased or otherwise obtained by

that person outside the State, with certain exceptions. 18 U.S.C. § 922 (a)(3)

(2005). We hold that the trial court’s order can be complied with without

violation of this statute because, although the order requires Mary to receive

the Browning handgun in Texas, Mary did not purchase or obtain the handgun

outside of Texas. The handgun was given to Bruce and Mary by Mary’s father in

Texas, and possession of the handgun was awarded to Mary by the trial court in

Texas. Cf. id.

Section

922(b)(3) prohibits a licensed importer, manufacturer, dealer or collector of

firearms from selling or delivering a firearm to a person who the licensee

knows or has reasonable cause to believe does not reside in the state in which

the licensee’s place of business is located, with certain exceptions. See 18 U.S.C. § 922 (b)(3). We hold that

the trial court’s order can be complied with without violation of this statute

because Bruce is not a licensed importer, manufacturer, dealer or collector of

firearms with a place of business outside of Texas. Cf. id.

Bruce

does not specify which U.S. postal service regulations prohibit him from

mailing a firearm. Regardless, Bruce need not deliver the handgun to Mary via

U.S. mail to comply with the trial court’s order. The trial court’s order is

broad enough to allow Bruce to deliver the handgun to Mary via any method of

shipment he deems lawful and appropriate. We read the order as broad enough to

permit personal delivery. Bruce does not contend that he may not legally

transport the handgun across state lines himself, as he did when he took the

handgun from Texas to Colorado prior to trial.

We therefore conclude that Bruce

has not demonstrated that he cannot comply with the trial court’s order without

violating subsection (a)(3) and (b)(3) of section 922 of the United States Code

or U.S. postal service regulations. See 18

U.S.C. §§ 922 (a)(3), (b)(3).

Conclusion

We hold that the trial court did

not err in setting the Criders’ divorce action for a contested hearing and that

Bruce has not demonstrated that federal law or U.S. postal service regulations

preclude him from complying with the trial court’s order regarding delivery of

the Browning handgun to Mary. We hold that Bruce has either waived or failed to

preserve for appeal all other issues he raises here. We therefore affirm the

trial court’s judgment.

Appellant’s “Amended Motion to

Reform Judgment” and any other motions filed by appellant with this Court are

dismissed as moot to the extent they seek relief beyond that granted in this

opinion.

Harvey

Brown

Justice

Panel

consists of Chief Justice Radack and Justices Sharp and Brown.

[1]

The trial transcript indicates

that the Criders ran a business together called Cutting Edge Carpentry. There

is testimony that Cutting Edge Carpentry was a d/b/a and not a partnership, and

the parties’ testimony is unclear as to whether Cutting Edge Carpentry still

existed as either a registered business entity or assumed name at the time of

trial.

[2] Bruce does not assert that the marital

settlement agreement is binding under another rule of law.