Jeffrey Lee Landis v. Kimberly Dawn Landis

• Court: Court of Appeals of Texas
• Decided: December 2, 2009
• Docket: 04-08-00858-CV
• Status: Published

Opinion

i i i i i i

MEMORANDUM OPINION

No. 04-08-00858-CV

Jeffrey Lee LANDIS, Appellant

v.

Kimberly Dawn LANDIS, Appellee

From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2008-CI-09599 Honorable Larry Noll, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Chief Justice Karen Angelini, Justice Marialyn Barnard, Justice

Delivered and Filed: December 2, 2009

AFFIRMED

This is an appeal of a divorce case. In six issues, Jeffrey Lee Landis contends that the trial

court erred in failing to conduct a hearing on his motion for new trial, in signing a divorce decree that

contradicted the court’s judgment as reflected in the court’s notes, and in dividing the parties’

property. We find no error and affirm the trial court’s judgment. 04-08-00858-CV

BACKGROUND

Jeffrey Lee Landis and Kimberly Dawn Landis were married on March 17, 2008. Jeffrey filed

a petition for divorce on June 18, 2008. Kimberly filed an answer and a counterpetition for divorce.

On November 3, 2008, the trial court conducted a final hearing and granted the divorce. The final

divorce decree was signed on November 4, 2008. Jeffrey filed a notice of appeal and a motion for

new trial on November 18, 2008. On December 15, 2008, the trial court conducted a hearing and

entered a judgment nunc pro tunc in order to correct clerical errors in the decree concerning

distribution of proceeds upon the sale of the parties’ residence and the filing of federal income taxes.

MOTION FOR NEW TRIAL

In his second issue on appeal, Jeffrey argues the trial court erred in failing to conduct a

hearing on his timely filed motion for new trial. According to Jeffrey, the trial court set a hearing on

the motion for new trial but, on the scheduled date, chose to hear the motion for judgment nunc pro

tunc instead. Thus, according to Jeffrey, his motion for new trial was never heard by the trial court

and was, therefore, overruled by operation of law.

Generally, a hearing on a motion for new trial is not mandatory. In the Interest of T.B.H.-H.,

188 S.W.3d 312, 315 (Tex. App.—Waco 2006, no pet.). A trial court is only required to conduct a

hearing on a motion for new trial when a motion presents a question of fact upon which evidence

must be heard. See, e.g., Hensley v. Salinas, 583 S.W.2d 617, 618 (Tex. 1979) (holding trial court

was required to conduct hearing on motion for new trial challenging agreed judgment); Navistar Int’l

Corp. v. Valles, 740 S.W.2d 4, 6-7 (Tex. App.—El Paso 1987, no writ) (holding trial court was

required to conduct hearing on motion for new trial challenging attorney ad litem fees). Jeffrey’s

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complaint in his motion, that the trial court abused its discretion in making the property division,

raises no new fact issues upon which a hearing would be mandated. Thus, the trial court did not err

in failing to conduct a hearing on Jeffrey’s motion for new trial. Jeffrey’s second issue is overruled.

JUDGMENT NUNC PRO TUNC

In his fifth issue on appeal, Jeffrey complains that the trial court erred in signing a divorce

decree that contradicted the court’s judgment as reflected in the court’s notes. The trial court did,

however, grant Jeffrey’s motion for judgment nunc pro tunc correcting the final decree to reflect the

proper division of proceeds from the sale of the parties’ house and requiring each party to file federal

income taxes separately. Thus, Jeffrey’s complaints were addressed and the judgment was corrected

by the trial court. Jeffrey’s fifth issue is overruled.

PROPERTY DIVISION

In his remaining issues on appeal, Jeffrey argues that the trial court erred in: (1) failing to

admit certain documents in order to properly divide the parties’ separate property; (2) awarding

Jeffrey’s separate property to Kimberly; (3) failing to clarify the decree to reflect the parties’

agreement regarding property division; and (4) failing to divide Kimberly’s retirement account as

community property. Each of these complaints relates to the trial court’s division of property.

Notably, Jeffrey has not provided this court with a reporter’s record of the divorce hearing.

In a divorce case, the standard of review for property division is abuse of discretion. Wilson

v. Wilson, 132 S.W.3d 533, 536 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). Under this

standard, the appropriate inquiry is whether the ruling was arbitrary or unreasonable. Lucy v. Lucy,

162 S.W.3d 770, 775 (Tex. App.—El Paso 2005, no pet.). Without a reporter’s record, however, we

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are unable to review the trial court’s order for an abuse of discretion. Willms v. Americas Tire Co.,

Inc., 190 S.W.3d 796, 803 (Tex. App.—Dallas 2006, pet. denied). When we are provided no

reporter’s record, we must presume the evidence presented at the hearing was sufficient to support

the trial court’s order. In the Interest of S.C., No. 05-05-01116-CV, 2006 WL 3042129, at *1 (Tex.

App.—Dallas Oct. 27, 2006, no pet.) (mem. op.); Sandoval v. Comm’n for Lawyer Discipline, 25

S.W.3d 720, 722 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). Thus, because Jeffrey’s

remaining issues all pertain to whether the trial court abused its discretion in dividing the parties’

property and because he has failed to provide a reporter’s record, we overrule Jeffrey’s remaining

issues.

CONCLUSION

Accordingly, we overrule all of Jeffrey’s issues on appeal and affirm the trial court’s

judgment.

Karen Angelini, Justice

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