in the Matter of the Marriage of Daniel D. Clayton and Nancy L. Clayton

• Court: Court of Appeals of Texas
• Decided: August 16, 2004
• Docket: 07-03-00445-CV
• Status: Published

Opinion

NO. 07-03-0445-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

AUGUST 16, 2004

______________________________

IN THE MATTER OF THE MARRIAGE OF

DANIEL D. CLAYTON AND NANCY L. CLAYTON

_________________________________

FROM THE 317TH DISTRICT COURT OF JEFFERSON COUNTY;

NO. C-172,102-A; HONORABLE LARRY THORNE, JUDGE

_______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

MEMORANDUM OPINION

Appellant Daniel D. Clayton, proceeding pro se, appeals from a divorce decree upon

a non-jury trial, contending the trial court erred in making an unequal division of the

property to appellee Nancy L. Clayton. By three points of error, he contends the trial court

erred in (1) failing to set aside the property division as sought by both parties, (2) entry of the federal civil service retirement system order, and (3) entry of the military (reserve)

qualifying court order. We affirm.

Following a hearing held on March 5, 2003, on the petition for divorce, on June 27,

2003, the trial court signed a final decree of divorce.1 By a handwritten order signed on

September 9, 2003, among other things, the trial court denied a motion for new trial and

all other pending motions. Also, on that same date, the trial court signed an order

regarding Nancy’s civil service retirement benefits and a qualifying court order regarding

Daniel’s military reserve retirement benefits. By his notice of appeal, Daniel indicated he

was appealing the judgment signed June 27, 2003, and the order denying the motion for

new trial signed September 9, 2003.

Pursuant to Rule 34.6(c)(1) of the Texas Rules of Appellate Procedure, Daniel

requested preparation of a partial reporter’s record of the hearing held on September 9,

2003. He specifically requested relevant portions regarding the trial court’s denial of the

motion for new trial and entry of disputed civil service and military retirement benefits.

When a partial reporter’s record is filed, an appellate court presumes that the record

1 After the decree was signed, filings with the clerk included (1) petition for enforcement; (2) request for findings of fact and conclusions of law; (3) petition for enforcement by contempt; (4) second request for findings of fact and conclusions of law; (5) response to motion for sanctions; (6) first amended petition for enforcement by contempt; (7) second amended petition for enforcement; (8) response to motion to sign qualified domestic relations order; and (9) first supplemental response to second amended petition for enforcement.

2 constitutes the entire record for purposes of reviewing the stated points or issues. Tex. R.

App. P. 34.6(c)(4).

By his first point, Daniel contends the trial court erred in failing to set aside the

property division following the September 9, 2003 hearing on his motion for new trial. By

his second and third points he contends the trial court erred in making a division of the

retirement benefits for both spouses. Because the three points of error all implicate the

trial court’s discretion, we will consider them simultaneously. Daniel challenges the division

of the marital property and the retirement benefits and requests that we set aside the

challenged orders and remand the cause to the trial court for a hearing. We disagree.

Daniel twice requested that the trial court make findings of fact and conclusions of

law; however, none were made nor filed. Also, Daniel did not give notice of past due

findings of fact and conclusions of law as required by Rule 297 of the Texas Rules of Civil

Procedure.2

A motion for new trial is addressed to the trial court’s discretion and its ruling will not

be disturbed on appeal absent a showing of abuse of discretion. Strackbein v. Prewitt, 671

S.W.2d 37, 38 (Tex. 1984). The scant partial reporter’s record filed of the hearing on the

motion for new trial shows that the only witness called by Daniel, acting as his own

counsel, was Nancy’s counsel. Daniel attempted to establish that the division of property

2 Daniel does not present any error in the trial court’s failure to make and file findings of fact and conclusions of law.

3 was disproportionate. However, no new evidence or legal basis was offered in support

of the motion for new trial by which Daniel sought to set aside the trial court’s division of

property.

Furthermore, a trial court has wide discretion in the division of marital property and

that discretion will not be disturbed on appeal without a showing of clear abuse of

discretion. Jacobs. v. Jacobs, 687 S.W.2d 731, 733 (Tex. 1985); Murff v. Murff, 615

S.W.2d 696, 698 (Tex. 1981). Indulging the presumption that the partial reporter’s record

constitutes the entire record for reviewing Daniel’s complaints, no abuse of discretion is

demonstrated in the trial court’s denial of Daniel’s motion for new trial nor in the court’s

division of the marital property and the retirement benefits. Points of error one, two, and

three are overruled.

Accordingly, the judgment of the trial court is affirmed.

Don H. Reavis Justice