Brown v. Brown

Court of Appeals of Texas

Brown v. Brown

917 S.W.2d 358, 1996 Tex. App. LEXIS 415, 1996 WL 41502

CourtCourt of Appeals of Texas

DecidedFebruary 1, 1996

Docket08-95-00044-CV

StatusPublished

Cited by17 cases

This text of 917 S.W.2d 358 (Brown v. Brown) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Brown v. Brown, 917 S.W.2d 358, 1996 Tex. App. LEXIS 415, 1996 WL 41502 (Tex. Ct. App. 1996).

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OPINION

CHEW, Justice.

This is an appeal of a divorce decree entered on October 18, 1994. In nine points of error, Appellant, Jene Elizabeth Brown, asserts that the trial court erred in its rulings on property division and child support. We affirm the judgment of the trial court.

The Brown’s eleven-year marriage was dissolved after a bifurcated trial; child custody was tried to a jury and child support and property division tried to the court. Mrs. Brown only challenges the trial court’s judgment on child support and property valuation and division.

It is the appellant’s burden to ensure that a sufficient record is presented to show error requiring reversal. Tex.R.App.P. 50(d). A “reviewing court must examine the entire record in a case in order to determine whether an error was reasonably calculated to cause and probably did cause the rendition of an improper judgment.” Christiansen v. [360]*360Prezelski, 782 S.W.2d 842, 843 (Tex.1990). To reduce the size of the statement of facts and minimize the expense of and delay associated with the appellate process, Rule 53 of the Texas Rules of Appellate Procedure does provide a complaining party the opportunity to request or prepare only a partial statement of facts, conditioned upon that party supplying a statement of the points to be relied upon during appeal. Superior Packing, Inc. v. Worldwide Leasing & Financing, Inc., 880 S.W.2d 67, 70 (Tex.App.—Houston [14th Dist.] 1994, writ denied).¹

Compliance with Rule 53(d) provides the appealing party the significant benefit of a presumption that “‘nothing omitted from the record is relevant to any of the points specified or to the disposition of the appeal.’ ” Birran v. Don Wetzel & Associates, 894 S.W.2d 552, 554 (Tex.App.—Beaumont 1995, writ denied). But failure to comply with Rule 53(d) cuts the other way, and noncompliance requires that an appellate court presume that the missing parts are relevant and that the omitted portions of the evidence support the trial court’s judgment. Schafer v. Conner, 813 S.W.2d 154, 155 (Tex.1991); James v. Hudgins, 876 S.W.2d 418, 421 (Tex.App.—El Paso 1994, writ denied).

In this case, the statement of facts filed only include the non-jury proceedings relating to child support and property division and omit the testimony and evidence presented in the child custody determination which was tried to a jury. Procedurally, the Appellant should have (1) made a request of the court reporter; (2) included the points of error she intended to assert on appeal; (3) asked that the notice of limitation be included m the appellate transcript; and (4) notified the other parties of the limitation of the record. Superior Packing, Inc., 880 S.W.2d at 70. Here, there is nothing in the record to evidence Appellant’s compliance with Rule 53(a). Her only effort to comply with Rule 53(d) was an untimely attempt to file a Rule 53(d) motion with this Court, not the trial court, at the time of filing her brief.

Without a complete or agreed statement of facts and coupled with Appellant’s failure to comply with Tex.R.App.P. 53(d), this Court must presume that the omitted statement of facts from the separate jury trial on child custody provide the evidence to support the trial court’s implied findings and judgment on property division and child support. Justice McClure’s concurring opinion highlights this trap. Accordingly, we find the evidence sufficient to sustain the court’s judgment and we overrule Appellant’s Points of Error One through Nine.

The judgment of the trial court is in all things affirmed.

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OPINION

CHEW, Justice.

This is an appeal of a divorce decree entered on October 18, 1994. In nine points of error, Appellant, Jene Elizabeth Brown, asserts that the trial court erred in its rulings on property division and child support. We affirm the judgment of the trial court.

The Brown’s eleven-year marriage was dissolved after a bifurcated trial; child custody was tried to a jury and child support and property division tried to the court. Mrs. Brown only challenges the trial court’s judgment on child support and property valuation and division.

It is the appellant’s burden to ensure that a sufficient record is presented to show error requiring reversal. Tex.R.App.P. 50(d). A “reviewing court must examine the entire record in a case in order to determine whether an error was reasonably calculated to cause and probably did cause the rendition of an improper judgment.” Christiansen v. [360]*360Prezelski, 782 S.W.2d 842, 843 (Tex.1990). To reduce the size of the statement of facts and minimize the expense of and delay associated with the appellate process, Rule 53 of the Texas Rules of Appellate Procedure does provide a complaining party the opportunity to request or prepare only a partial statement of facts, conditioned upon that party supplying a statement of the points to be relied upon during appeal. Superior Packing, Inc. v. Worldwide Leasing & Financing, Inc., 880 S.W.2d 67, 70 (Tex.App.—Houston [14th Dist.] 1994, writ denied).¹

Compliance with Rule 53(d) provides the appealing party the significant benefit of a presumption that “‘nothing omitted from the record is relevant to any of the points specified or to the disposition of the appeal.’ ” Birran v. Don Wetzel & Associates, 894 S.W.2d 552, 554 (Tex.App.—Beaumont 1995, writ denied). But failure to comply with Rule 53(d) cuts the other way, and noncompliance requires that an appellate court presume that the missing parts are relevant and that the omitted portions of the evidence support the trial court’s judgment. Schafer v. Conner, 813 S.W.2d 154, 155 (Tex.1991); James v. Hudgins, 876 S.W.2d 418, 421 (Tex.App.—El Paso 1994, writ denied).

In this case, the statement of facts filed only include the non-jury proceedings relating to child support and property division and omit the testimony and evidence presented in the child custody determination which was tried to a jury. Procedurally, the Appellant should have (1) made a request of the court reporter; (2) included the points of error she intended to assert on appeal; (3) asked that the notice of limitation be included m the appellate transcript; and (4) notified the other parties of the limitation of the record. Superior Packing, Inc., 880 S.W.2d at 70. Here, there is nothing in the record to evidence Appellant’s compliance with Rule 53(a). Her only effort to comply with Rule 53(d) was an untimely attempt to file a Rule 53(d) motion with this Court, not the trial court, at the time of filing her brief.

Without a complete or agreed statement of facts and coupled with Appellant’s failure to comply with Tex.R.App.P. 53(d), this Court must presume that the omitted statement of facts from the separate jury trial on child custody provide the evidence to support the trial court’s implied findings and judgment on property division and child support. Justice McClure’s concurring opinion highlights this trap. Accordingly, we find the evidence sufficient to sustain the court’s judgment and we overrule Appellant’s Points of Error One through Nine.

The judgment of the trial court is in all things affirmed.

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917 S.W.2d 358, 1996 Tex. App. LEXIS 415, 1996 WL 41502, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-brown-texapp-1996.

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