Donald P. Prentiss, Jr. v. Adrienne L. Prentiss

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-10-00476-CV

DONALD P. PRENTISS, JR. APPELLANT

V.

ADRIENNE L. PRENTISS APPELLEE

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FROM THE 360TH DISTRICT COURT OF TARRANT COUNTY

MEMORANDUM OPINION1 ----------

I. Introduction

Pro se appellant Donald P. Prentiss, Jr. appeals the trial court’s final

divorce decree. In three issues, Donald contends that the trial court abused its

discretion by awarding temporary spousal support to Appellee Adrienne L.

Prentiss, by increasing the amount of temporary spousal support from $1,000 to

1 See Tex. R. App. P. 47.4. $3,500, and by unequally dividing the parties’ community property without having

sufficient information to do so. We affirm.

II. Background

Donald and Adrienne are both physicians. They were married in 1992 and

have three children together.

Donald filed an original petition for divorce on May 30, 2007. Although the

appellate record does not contain a copy of the order awarding temporary

spousal support to Adrienne, the record does contain a May 15, 2008

handwritten associate judge’s order that reduced Donald’s monthly obligation to

pay temporary spousal support from $3,500 to $1,000. The subsequent

temporary order is also not in the appellate record, but the associate judge

apparently increased the temporary spousal support back to $3,500 per month

beginning June 1, 2009. The trial court also signed further temporary orders in

February 2010 that, among other things, continued the $3,500 in monthly

temporary spousal support through trial.

The case was tried to the court in May 2010, and the trial court heard

testimony from Donald, Adrienne, and Velma Wilson.2 Donald testified that he

filed for divorce and alleged adultery after he discovered a series of e-mails

between Adrienne and a male friend. Wilson testified that Donald was physically

abusive toward Adrienne and that he did not provide Adrienne and their children

2 Wilson is Adrienne’s mother.

2 with sufficient financial support during their marriage, causing her to loan

Adrienne money to cover household expenses. In addition, the trial court heard

testimony and received exhibits establishing that Donald expended

approximately $120,000 of community funds in the eighteen months before he

filed for divorce, that Donald and Adrienne were living in separate bedrooms of

the family home during that time, and that Donald expended another

approximately $140,000 during the pendency of the divorce proceedings.

Donald testified that the $120,000 expended before he filed for divorce was to

complete the build-out of his new medical office, that many of his post-filing

expenses were for child support and temporary spousal support, and that his

monthly expenses (including child and spousal support) exceeded his income by

approximately $7,500.

The trial court signed a final decree of divorce on November 29, 2010.

That judgment divided the parties’ marital estate and included a money judgment

against Donald for $83,663 to equalize the property division and for $61,000 in

unpaid child and spousal support. This appeal followed.

III. Standard of Review

In family law cases, the traditional sufficiency standards of review overlap

with the abuse of discretion standard of review; therefore, legal and factual

insufficiency are not independent grounds of error but are relevant factors in our

assessment of whether the trial court abused its discretion. Watson v. Watson,

286 S.W.3d 519, 523 (Tex. App.—Fort Worth 2009, no pet.). To determine

3 whether there has been an abuse of discretion because the evidence is legally or

factually insufficient to support the trial court’s decision, we must determine

whether the trial court had sufficient evidence upon which to exercise its

discretion and whether the trial court erred in its application of that discretion. Id.

at 522–23. The legal and factual sufficiency standards of review are well

established. See Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651

(Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005);

Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert.

denied, 526 U.S. 1040 (1999); Pool v. Ford Motor Co., 715 S.W.2d 629, 635

(Tex. 1986) (op. on reh’g); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).

In a non-jury trial, when no findings of fact or conclusions of law are filed or

requested, we must presume that the trial court made all the necessary findings

to support its judgment. Pharo v. Chambers Cnty., 922 S.W.2d 945, 948 (Tex.

1996); Byrnes v. Byrnes, 19 S.W.3d 556, 561 (Tex. App.—Fort Worth 2000, no

pet.). Consequently, if the trial court’s implied findings are supported by the

evidence, we must uphold its judgment on any theory of law applicable to the

case. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).

IV. Temporary Spousal Support

In his first and second issues, Donald contends that the trial court erred by

ordering him to pay temporary spousal support to Adrienne and by later

increasing the amount of temporary spousal support from $1,000 to $3,500.

4 A trial court has discretion in entering temporary orders for spousal support

while a divorce proceeding is pending, and we review the temporary order for

support for an abuse of discretion. Barnett v. Barnett, No. 02-04-00259-CV,

2005 WL 3244278, at *2 (Tex. App.—Fort Worth Dec. 1, 2005, no pet.) (mem.

op.) (citing Zorilla v. Wahid, 83 S.W.3d 247, 255 (Tex. App.—Corpus Christi

2002, no pet.), disapproved on other grounds by Iliff v. Iliff, 339 S.W.3d 74, 83

n.8 (Tex. 2011)). However, ―a record sufficient to determine whether an abuse of

discretion has occurred must be provided to the appellate court.‖ Id. (citing

Garduno v. Garduno, 760 S.W.2d 735, 742 (Tex. App.—Corpus Christi 1988, no

writ)).

The record in this case does not include a reporter’s record from, or any

exhibits or affidavits offered during, the 2007 and 2008 hearings that resulted in

the orders requiring Donald’s payment of temporary spousal support to Adrienne.

For this reason, we are not able to review the information that formed the basis

for the trial court’s decisions to award Adrienne temporary spousal support or to

later increase the monthly amount. Throughout his brief, Donald cites to

testimony from the final trial, but the evidence from the 2010 trial is not beneficial

to our review because we are still unable to determine what formed the basis of

the trial court’s decisions to award temporary spousal support in 2007 and 2008.

See id. (stating testimony from trial did not support interlocutory decision to

award and later increase temporary spousal support). Thus, Donald cannot

show that the trial court abused its discretion by awarding Adrienne temporary

5 spousal support or by later changing the amount of the monthly temporary

spousal support obligation, and we therefore overrule his first and second issues.

See id. (holding appellant could not show abuse of discretion because appellate

record did not contain hearing transcript or exhibits from temporary spousal

support hearings).

V. Division of Marital Property

In his third issue, Donald contends that the trial court’s division of

community property was not equitable and just because the trial court did not

have sufficient information available to exercise its discretion.

A. Applicable Law

A trial judge is charged with dividing the community estate in a ―just and

right‖ manner, considering the rights of both parties. Tex. Fam. Code Ann.

§ 7.001 (West 2006); Watson, 286 S.W.3d at 522. The court has broad

discretion in making a just and right division, and absent a clear abuse of

discretion, we will not disturb that division. Jacobs v. Jacobs, 687 S.W.2d 731,

733 (Tex. 1985); Boyd v. Boyd, 131 S.W.3d 605, 610 (Tex. App.—Fort Worth

2004, no pet.).

Community property does not have to be divided equally, but the division

must be equitable. Kimsey v. Kimsey, 965 S.W.2d 690, 704 (Tex. App.—El Paso

1998, pet. denied). The trial court may consider the following non-exclusive

factors, among others, in determining whether the division of the community

estate is equitable: (1) the spouse’s capacities and abilities; (2) education; (3) the

6 relative financial conditions and obligations of the parties; (4) size of the separate

estates; (5) the nature of the property; (6) disparities in earning capacities and

income; (7) fault of the breakup of the marriage; and (8) any wasting of the

community assets by one of the spouses. Murff v. Murff, 615 S.W.2d 696, 699

(Tex. 1981). In determining whether to disproportionately divide the community

estate, the trial court may consider a spouse’s dissipation of the community

estate and any misuse of community property. Vannerson v. Vannerson, 857

S.W.2d 659, 669 (Tex. App.—Houston [1st Dist.] 1993, writ denied). A

disproportionate division must be supported by some reasonable basis. Smith v.

Smith, 143 S.W.3d 206, 214 (Tex. App.—Waco 2004, no pet.).

B. Discussion

Donald contends that the trial court improperly considered or failed to

consider several items in making its community property distribution, and he lists

the items in his brief. He first argues that the trial court did not have Adrienne’s

2008 and 2009 personal and corporate tax returns, Adrienne’s amended 2007

personal and corporate tax returns, or any of Adrienne’s bank records because

Adrienne failed to produce them in discovery. In that regard, the record contains

a motion to compel filed by Donald’s counsel on May 11, 2009. According to the

fiat on the last page of the motion to compel, the trial court scheduled a

telephone hearing on the motion on May 29, 2009. However, the appellate

record does not contain an order granting or denying the motion to compel, there

is no reporter’s record from the telephonic hearing, and Donald concedes in his

7 brief that the trial court did not rule on the motion to compel. Moreover, Donald

did not alert the trial court on the record during the trial that there were any

outstanding issues concerning Adrienne’s production of documents in discovery.

Thus, to the extent Donald contends that the trial court abused its discretion by

failing to require Adrienne’s production of documents in discovery, he has not

shown that the trial court abused its discretion by failing to require the production

of any additional documents. See U. Lawrence Boze’ & Assocs., P.C. v. Harris

Cnty. Appraisal Dist., No. 01-10-00016-CV, 2011 WL 3524209, at *13 (Tex.

App.—Houston [1st Dist.] Aug. 11, 2011, no pet.) (mem. op.) (holding party failed

to preserve for appellate review complaints concerning other party’s discovery

conduct by failing to obtain rulings on discovery issues).

To the extent Donald contends the trial court’s division of community

property was an abuse of discretion because the trial court did not have

Adrienne’s amended 2007 tax return, 2008 or 2009 tax returns, or bank records

at trial, Donald has not shown that the trial court needed that information in order

to properly exercise its discretion. We first note that Donald’s trial counsel cross-

examined Adrienne concerning her original 2007 tax return, her 2004 through

2006 tax returns, the approximate $35,000 to $40,000 balance in her IRA, and

her monthly IRA deposits. In addition, Donald did not complain at trial that he did

not have access to Adrienne’s amended 2007 tax return or her 2008 and 2009

tax returns. Moreover, the trial court questioned Donald’s counsel about the

relevance of Adrienne’s income from prior years, stated that it did not intend to

8 award alimony, and said that it intended to split the community estate ―50/50‖

before accounting for Donald’s expenditure of community funds. The court

further stated that both parties had ―very, very good professional degrees‖ and

that they both needed to and can make more money. Thus, the trial court

considered both Donald’s and Adrienne’s income when dividing the community

estate and observed that neither party was earning what they had the capacity to

earn, and Donald has not shown that the trial court also needed Adrienne’s

amended 2007 tax return, her 2008 and 2009 tax returns, or her bank records to

appropriately exercise its discretion when dividing the community estate. See

generally Ayala v. Ayala, No. 01-09-00785-CV, 2011 WL 2930311, at *8–9 (Tex.

App.—Houston [1st Dist.] July 21, 2011, no pet.) (mem. op.) (holding trial court

had sufficient information to divide marital estate despite lack of evidence

concerning market value of family home). We overrule this part of Donald’s third

issue.

Donald also argues that the trial court accepted the testimony by Wilson

(Adrienne’s mother) that she had loaned Adrienne approximately $23,000 to

meet her living expenses both before and after Donald filed for divorce but that

Wilson did not have any supporting documentation to confirm her testimony. He

further argues that Wilson only ―provided an uncorroborated list of alleged loans‖

to Adrienne.

The list of loans to Adrienne by Wilson was offered and admitted as an

exhibit. We first note that Donald’s counsel cross-examined Wilson concerning

9 many of the amounts on the list of loans, pointing out that as many as seventeen

of the entries on the list were dated before Donald filed for divorce. Donald’s

counsel also questioned Wilson about the lack of documentation to prove that the

amounts allegedly loaned were not gifts. Furthermore, Wilson testified on

redirect examination that she had her bank statements in her car and could bring

them into court if needed, but Donald did not request that Wilson retrieve the

bank statements from her car. In addition, the trial court is the sole judge of the

credibility of the witnesses and the weight to be given to their testimony and was

in the best position to consider the veracity of Wilson’s testimony concerning the

loans to Adrienne. See Pool, 715 S.W.2d at 635; Allegiance Hillview, L.P. v.

Range Tex. Prod., LLC, 347 S.W.3d 855, 872 (Tex. App.—Fort Worth 2011, no

pet.). Moreover, it does not appear that Wilson’s testimony was material to the

trial court’s division of community property because the trial court commented on

the record that both parties were not earning as much as they could and that it

was not basing its division of the community estate on any disparity in earnings.

Thus, we overrule this portion of Donald’s third issue.

Donald next contends that the trial court abused its discretion by finding

that he owed $61,000 in unpaid temporary child and spousal support because

the trial court failed to credit him with a portion of the proceeds from the court-

ordered sale of the parties’ Jaguar vehicle. Donald contends that more than

$10,000 was available for distribution and that the trial court should have credited

him some of that amount when determining his liability for unpaid temporary

10 support. However, the associate judge’s May 15, 2008 order requiring Adrienne

to sell the Jaguar did not contemplate that any proceeds from the sale would be

given to Donald. Rather, the order provided that the Jaguar sale proceeds would

be used to pay the balance of the car note, pay Adrienne’s attorney $5,000, and

pay Donald’s attorney $2,500. The order also said that ―any remaining monies

shall be tendered to wife for additional support until final trial.‖ Therefore, Donald

has not shown that the trial court abused its discretion by failing to credit him any

proceeds from the sale of the Jaguar against his unpaid $61,000 balance for

child and spousal support. We overrule this part of Donald’s third issue.

Donald also complains that the trial court did not allow him to develop

additional evidence at trial concerning his allegation of adultery. In that regard,

Donald’s counsel asked Adrienne to identify a document that had been marked

as an exhibit but not admitted into evidence. The trial court sustained Adrienne’s

relevance objection to the question, and Donald’s counsel moved on to a

different line of questioning. The exhibit itself was not offered into evidence and

is not part of the appellate record.3 Moreover, Donald did not make an offer of

proof or otherwise attempt to ensure that the exhibit or the testimony his counsel

intended to elicit from Adrienne became part of the appellate record as permitted

by the rules of evidence and rules of appellate procedure. See Tex. R. Evid.

3 From the context of the attorneys’ objections and responses, the exhibit is apparently a phone record listing ―hundreds of telephone calls‖ to a certain telephone number.

11 103; Tex. R. App. P. 33.2. In addition, we note that Donald had previously

testified that he filed for divorce because he discovered various e-mails between

Adrienne and her alleged paramour and that the trial court admitted those e-

mails into evidence as exhibits, meaning the trial court had already admitted

evidence concerning Adrienne’s alleged affair. Thus, Donald cannot show on

appeal that the trial court abused its discretion by not permitting his attorney to

question Adrienne about the excluded exhibit, and we overrule this part of his

third issue.

Finally, Donald contends that the trial court’s division of community

property was not equitable and just because the trial court incorrectly determined

that he wasted community assets. In doing so, Donald details the circumstances

under which he believes his financial difficulties arose, and he argues that the

community assets were not wasted but were instead used mostly to pay

temporary spousal support. We first note, however, that most of the factual

assertions in this portion of Donald’s brief were not part of the testimony or other

evidence offered at trial. We are not permitted to consider any matters not

contained within the appellate record. See Quorum Int’l v. Tarrant Appraisal

Dist., 114 S.W.3d 568, 572 (Tex. App.—Fort Worth 2003, pet. denied) (reasoning

that appellate court is bound to determine the case on the record as filed and

cannot look outside the record to discover relevant facts). We also note that the

trial court heard testimony and received exhibits suggesting that Donald

expended approximately $127,000 in the eighteen months before he filed for

12 divorce, that he expended another $140,000 during the pendency of the

proceedings, and that he had received principal and interest payments from

Tuskegee Bank and other lump sum payments from his business interests during

the pendency of the case. Donald denied wasting assets, testifying that much of

the money he spent before filing for divorce was for the build-out of his new office

building and that his expenses during the pendency of the case, including child

and spousal support, exceeded his monthly income by approximately $7,500. As

noted above, the trial court is the sole judge of the credibility of the witnesses and

the weight to be given to their testimony. See Pool, 715 S.W.2d at 635;

Allegiance Hillview, L.P., 347 S.W.3d at 872. From the evidence presented at

trial, the trial court could have chosen not to believe Donald’s testimony and

could have determined that he expended a disproportionate amount of

community assets just before and after he filed for divorce. We hold that the trial

court did not abuse its discretion in its division of community assets, and we

overrule the remainder of Donald’s third issue.

VI. Conclusion

Having overruled each of Donald’s three issues, we affirm the trial court’s

judgment.

ANNE GARDNER JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DELIVERED: March 15, 2012