Serge Dasque v. Fabiola Aidee Dasque
Opinion
ACCEPTED
13-13-00645-CV
THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS
7/10/2015 11:08:32 AM
CECILE FOY GSANGER
CLERK
No. 13-13-00645-CV
FILED IN
13th COURT OF APPEALS
CORPUS
IN THE THIRTEENTH COURT OF CHRISTI/EDINBURG, TEXAS APPEALS
AT CORPUS CHRISTI-EDINBURG,7/10/2015 TEXAS 11:08:32 AM
CECILE FOY GSANGER
Clerk
SERGE DASQUE
Appellant,
v.
FABIOLA AIDEE DASQUE
Appellee.
On Appeal from the
County Court at Law No. 2, Hidalgo County, Texas (Cause No. F-1947-12-2 )
APPELLANT’S BRIEF
STRASBURGER & PRICE L.L.P.
Kelly H. Leonard
State Bar No. 24078703
kelly.leonard@strasburger.com 909 Fannin Street, Suite 2300 Houston, Texas 77056
(713) 951-5619 (Tel)
(713) 960-5660 (Fax)
Counsel for Serge Dasque
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL Appellant Serge Dasque Trial Counsel
Glenn V. Devino 2017 Magnolia Street Mission, TX 78573 956) 583-4825 (Tel) (956) 583-4835 (Fax)
-and-
C. Brandon Holubar King Law Firm 3409 North 10th Street McAllen, TX 78501 (956) 687-6294 (Tel) (956) 687-5514
-and-
Serge Dasque Pro Se
Counsel on Appeal
Kelly H. Leonard State Bar No. 24078703 kelly.leonard@strasburger.com STRASBURGER & PRICE, LLP 909 Fannin Street, Suite 2300 Houston, Texas 77056 (713) 951-5619 (Tel) (713) 960-5660 (Fax)
i
Appellee Fabiola Aidee Dasque Trial and Appellate Counsel
Amber L. Vanschuyver State Bar No. 24066232 AVanSchuyver@trla.org TEXAS RIO GRANDE LEGAL AID 316 S. Closner Boulevard Edinburg, TX 78539 (956) 393-6200 (Tel)
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL .............................................................i TABLE OF CONTENTS ......................................................................................... iii INDEX OF AUTHORITIES......................................................................................v DESIGNATION OF RECORD REFERENCES ................................................... viii STATEMENT OF THE CASE .................................................................................ix STATEMENT REGARDING ORAL ARGUMENT ..............................................ix STATEMENT OF THE ISSUES PRESENTED ....................................................... x STATEMENT OF FACTS ........................................................................................1 I. After a brief marriage and a long relationship together, S.D. filed for divorce from F.D. in December 2008. .................................................. 1 II. A final judgment was entered in the December 2008 case. ....................... 4 III. F.D. petitions for divorce a second time and S.D. complains of the jurisdictional defects in her filing. .............................................................. 5 IV. The Court nevertheless proceeded to enter a new divorce decree and support orders. .....................................................................................8 SUMMARY OF ARGUMENT ...............................................................................10 ARGUMENT AND AUTHORITIES ......................................................................11 I. The trial court lacked subject matter jurisdiction to enter the Final Divorce Decree. ........................................................................................11 A. The parties’ marital assets and liabilities were previously adjudicated, depriving the court of jurisdiction. ............................12 B. The trial court similarly lacked jurisdiction to adjudicate custody and support for the couple’s minor child..........................15 C. The reinstatement, to the extent necessary, was effective. ............ 16 II. The trial court erred in entering the Divorce Decree by unequally dividing the parties’ community property. ...............................................18 A. An award of community property must be equitable and just and cannot result from an abuse of discretion. ..............................19 B. S.D. and F.D. mutually benefitted from the credit card debt incurred during their marriage. ......................................................20
iii
III. Trial court erred in awarding F.D. primary custody of C.S.D. with S.D. receiving only limited visitation with his son. .................................23 A. Custody matters are reviewed for an abuse of discretion. ............. 23 B. S.D. should have received extended visitation with C.S.D., consistent with their long-time arrangement..................................24 CONCLUSION AND PRAYER .............................................................................28 CERTIFICATE OF COMPLIANCE .......................................................................30 CERTIFICATE OF SERVICE ................................................................................30
iv
INDEX OF AUTHORITIES
Page(s)
CASES Alfonso v. Skadden, 251 S.W.3d 52 (Tex. 2008).................................................................................11
Baxter v. Ruddle, 794 S.W.2d 761 (Tex. 1990) ..............................................................................12
Chacon v. Chacon, 222 S.W.3d 909 (Tex. App.—El Paso 2007, no pet.) ........................................20
Charles L. Hardtke Inc. v. Katz, 813 S.W.2d 548 (Tex. App.—Houston [1st Dist.] 1991, no writ.) ..............16, 17
Chavez v. Chavez, 269 S.W.3d 763 (Tex. App—Dallas 2008, no pet.) ...........................................20 Douglas v. Am. Title Co., 196 S.W.3d 876 (Tex. App.—Houston [1st Dist.] 2006, no pet.) ........................ 1 Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) ..............................................................................20 Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex. 2000)...................................................................................11 Emerald Oaks Hotel/Conference Ctr., Inc. v. Zardenetta, 776 S.W.2d 577 (Tex. 1989) ..............................................................................16
Energo Int’l Corp. v. Modern Indus. Heating, Inc., 722 S.W.2d 149 (Tex. App.—Dallas 1986, no writ) ..........................................18
Fleming v. Easton, 998 S.W.2d 252 (Tex. App.—Dallas 1999, no pet.) ..........................................15
Hagen v. Hagen, 282 S.W.3d 899 (Tex. 2009) ..............................................................................12
In re Doe 2, 19 S.W.3d 278 (Tex. 2000).................................................................................23
v
In re M.W.T., 12 S.W.3d 598 (Tex. App.—San Antonio 2000, pet. denied)............................24
In re N.A.S., 100 S.W.3d 670 (Tex. App.—Dallas 2003, no pet.) ..........................................24
Jansen v. Fitzpatrick, 14 S.W.3d 426 (Tex. App.—Houston [14th Dist.] 2000, no pet.) .....................15
Mapco, Inc. v. Forrest, 795 S.W.2d 700 (Tex. 1990) ..............................................................................11
N-S-W Corp. v. Snell, 561 S.W.2d 798 (Tex. 1977) (orig. proceeding) ................................................17
Nealy v. Home Indem. Co., 770 S.W.2d 592 (Tex. App.—Houston [14th Dist] 1989, no writ) ....................16 Office of Pub. Util. Counsel v. Pub. Util. Com’n of Tex., 878 S.W.2d 598 (Tex. 1994) ................................................................................ 1 Pearson v. Fillingim, 332 S.W.3d 361 (Tex. 2011) ..............................................................................12 Reiss v. Reiss, 118 S.W.3d 439 (Tex. 2003) ..............................................................................12 Schlueter v. Schlueter, 975 S.W.2d 584 (Tex. 1998) ..............................................................................19 Smith v. Smith, 143 S.W.3d 206 (Tex. App.—Waco 2004, no pet.) ...........................................22
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ACCEPTED
13-13-00645-CV
THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS
7/10/2015 11:08:32 AM
CECILE FOY GSANGER
CLERK
No. 13-13-00645-CV
FILED IN
13th COURT OF APPEALS
CORPUS
IN THE THIRTEENTH COURT OF CHRISTI/EDINBURG, TEXAS APPEALS
AT CORPUS CHRISTI-EDINBURG,7/10/2015 TEXAS 11:08:32 AM
CECILE FOY GSANGER
Clerk
SERGE DASQUE
Appellant,
v.
FABIOLA AIDEE DASQUE
Appellee.
On Appeal from the
County Court at Law No. 2, Hidalgo County, Texas (Cause No. F-1947-12-2 )
APPELLANT’S BRIEF
STRASBURGER & PRICE L.L.P.
Kelly H. Leonard
State Bar No. 24078703
kelly.leonard@strasburger.com 909 Fannin Street, Suite 2300 Houston, Texas 77056
(713) 951-5619 (Tel)
(713) 960-5660 (Fax)
Counsel for Serge Dasque
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL Appellant Serge Dasque Trial Counsel
Glenn V. Devino 2017 Magnolia Street Mission, TX 78573 956) 583-4825 (Tel) (956) 583-4835 (Fax)
-and-
C. Brandon Holubar King Law Firm 3409 North 10th Street McAllen, TX 78501 (956) 687-6294 (Tel) (956) 687-5514
-and-
Serge Dasque Pro Se
Counsel on Appeal
Kelly H. Leonard State Bar No. 24078703 kelly.leonard@strasburger.com STRASBURGER & PRICE, LLP 909 Fannin Street, Suite 2300 Houston, Texas 77056 (713) 951-5619 (Tel) (713) 960-5660 (Fax)
i
Appellee Fabiola Aidee Dasque Trial and Appellate Counsel
Amber L. Vanschuyver State Bar No. 24066232 AVanSchuyver@trla.org TEXAS RIO GRANDE LEGAL AID 316 S. Closner Boulevard Edinburg, TX 78539 (956) 393-6200 (Tel)
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL .............................................................i TABLE OF CONTENTS ......................................................................................... iii INDEX OF AUTHORITIES......................................................................................v DESIGNATION OF RECORD REFERENCES ................................................... viii STATEMENT OF THE CASE .................................................................................ix STATEMENT REGARDING ORAL ARGUMENT ..............................................ix STATEMENT OF THE ISSUES PRESENTED ....................................................... x STATEMENT OF FACTS ........................................................................................1 I. After a brief marriage and a long relationship together, S.D. filed for divorce from F.D. in December 2008. .................................................. 1 II. A final judgment was entered in the December 2008 case. ....................... 4 III. F.D. petitions for divorce a second time and S.D. complains of the jurisdictional defects in her filing. .............................................................. 5 IV. The Court nevertheless proceeded to enter a new divorce decree and support orders. .....................................................................................8 SUMMARY OF ARGUMENT ...............................................................................10 ARGUMENT AND AUTHORITIES ......................................................................11 I. The trial court lacked subject matter jurisdiction to enter the Final Divorce Decree. ........................................................................................11 A. The parties’ marital assets and liabilities were previously adjudicated, depriving the court of jurisdiction. ............................12 B. The trial court similarly lacked jurisdiction to adjudicate custody and support for the couple’s minor child..........................15 C. The reinstatement, to the extent necessary, was effective. ............ 16 II. The trial court erred in entering the Divorce Decree by unequally dividing the parties’ community property. ...............................................18 A. An award of community property must be equitable and just and cannot result from an abuse of discretion. ..............................19 B. S.D. and F.D. mutually benefitted from the credit card debt incurred during their marriage. ......................................................20
iii
III. Trial court erred in awarding F.D. primary custody of C.S.D. with S.D. receiving only limited visitation with his son. .................................23 A. Custody matters are reviewed for an abuse of discretion. ............. 23 B. S.D. should have received extended visitation with C.S.D., consistent with their long-time arrangement..................................24 CONCLUSION AND PRAYER .............................................................................28 CERTIFICATE OF COMPLIANCE .......................................................................30 CERTIFICATE OF SERVICE ................................................................................30
iv
INDEX OF AUTHORITIES
Page(s)
CASES Alfonso v. Skadden, 251 S.W.3d 52 (Tex. 2008).................................................................................11
Baxter v. Ruddle, 794 S.W.2d 761 (Tex. 1990) ..............................................................................12
Chacon v. Chacon, 222 S.W.3d 909 (Tex. App.—El Paso 2007, no pet.) ........................................20
Charles L. Hardtke Inc. v. Katz, 813 S.W.2d 548 (Tex. App.—Houston [1st Dist.] 1991, no writ.) ..............16, 17
Chavez v. Chavez, 269 S.W.3d 763 (Tex. App—Dallas 2008, no pet.) ...........................................20 Douglas v. Am. Title Co., 196 S.W.3d 876 (Tex. App.—Houston [1st Dist.] 2006, no pet.) ........................ 1 Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) ..............................................................................20 Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex. 2000)...................................................................................11 Emerald Oaks Hotel/Conference Ctr., Inc. v. Zardenetta, 776 S.W.2d 577 (Tex. 1989) ..............................................................................16
Energo Int’l Corp. v. Modern Indus. Heating, Inc., 722 S.W.2d 149 (Tex. App.—Dallas 1986, no writ) ..........................................18
Fleming v. Easton, 998 S.W.2d 252 (Tex. App.—Dallas 1999, no pet.) ..........................................15
Hagen v. Hagen, 282 S.W.3d 899 (Tex. 2009) ..............................................................................12
In re Doe 2, 19 S.W.3d 278 (Tex. 2000).................................................................................23
v
In re M.W.T., 12 S.W.3d 598 (Tex. App.—San Antonio 2000, pet. denied)............................24
In re N.A.S., 100 S.W.3d 670 (Tex. App.—Dallas 2003, no pet.) ..........................................24
Jansen v. Fitzpatrick, 14 S.W.3d 426 (Tex. App.—Houston [14th Dist.] 2000, no pet.) .....................15
Mapco, Inc. v. Forrest, 795 S.W.2d 700 (Tex. 1990) ..............................................................................11
N-S-W Corp. v. Snell, 561 S.W.2d 798 (Tex. 1977) (orig. proceeding) ................................................17
Nealy v. Home Indem. Co., 770 S.W.2d 592 (Tex. App.—Houston [14th Dist] 1989, no writ) ....................16 Office of Pub. Util. Counsel v. Pub. Util. Com’n of Tex., 878 S.W.2d 598 (Tex. 1994) ................................................................................ 1 Pearson v. Fillingim, 332 S.W.3d 361 (Tex. 2011) ..............................................................................12 Reiss v. Reiss, 118 S.W.3d 439 (Tex. 2003) ..............................................................................12 Schlueter v. Schlueter, 975 S.W.2d 584 (Tex. 1998) ..............................................................................19 Smith v. Smith, 143 S.W.3d 206 (Tex. App.—Waco 2004, no pet.) ...........................................22
State Bar of Texas v. Gomez, 891 S.W.2d 243 (Tex. 1994) ..............................................................................11 Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440 (Tex. 1993) ..............................................................................11 Vallone v. Vallone, 664 S.W.2d 455 (Tex. 1982) ..............................................................................19
vi
Walker v. Packer, 827 S.W.2d 833 (Tex.1992)................................................................................24
Worford v. Stamper, 801 S.W.2d 108 (Tex. 1990) ..............................................................................24
Zieba v. Martin, 928 S.W.2d 782 (Tex. App.—Houston [14th Dist.] 1996, no writ) ................... 20
STATUTES TEX. FAM. CODE ANN. § 7.001 .................................................................................19
TEX. FAM. CODE ANN. § 7.0006(a) ..........................................................................13 TEX. FAM. CODE ANN. § 7.0006(b) .............................................................................13
TEX. FAM. CODE ANN. § 9.002 .................................................................................13 TEX. FAM. CODE ANN. § 9.007(a) ............................................................................13
TEX. FAM. CODE ANN. § 9.007(b) ...............................................................................13
TEX. FAM. CODE ANN. § 9.008 ...................................................................................13 TEX. FAM. CODE § 153.002 ......................................................................................24
TEX. FAM. CODE § 153.003 ......................................................................................24 TEX. FAM. CODE § 153.004 ......................................................................................24
TEX. FAM. CODE § 153.256 ......................................................................................25 Texas Family Code § 153.312 .................................................................................25
RULES TEX. R. CIV. P. 165a(3)....................................................................................16, 17
OTHER AUTHORITIES Barbara Anne Kazen, Division of Property at the Time of Divorce, 49 BAYLOR L. REV. 417, 424-28 (1997) .......................................................19, 21
vii
DESIGNATION OF RECORD REFERENCES The record in this appeal consists of the clerk’s record and several volumes of the reporter’s record across three separate filings. This brief uses the following conventions in citing the record:
Clerk’s Record:
(CR:[page]) or (CR: Ex.[number]:[page]);
Reporter’s Record:
(RR [vol]:[page]) or (RR [vol]: Ex.[number]);
First Supplemental Reporter’s Record:
(1st Supp. RR [vol]:[page]) or (1st Supp. RR [vol]:
Ex.[number]:[page]);
Second Supplemental Reporter’s Record:
(2nd Supp. RR [vol]:[page]) or (2nd Supp. RR [vol]:
Ex.[number]:[page]);
Appendix:
(App. [letter]).
viii
STATEMENT OF THE CASE
This is an appeal from a Final Decree of Divorce. (App. A). The trial court rendered an August 12, 2013 judgment dividing the couple’s community estate and confirming their separate property along with child custody matters although the parties were previously divorced in a separate proceeding. The trial court therefore lacked jurisdiction to enter the final judgment made the basis of this appeal. Moreover, in rendering judgment in this divorce case, the trial court abused its discretion in awarding a disproportionate amount of community debt to S.D. and in failing to award him custody or extended visitation with his son.
STATEMENT REGARDING ORAL ARGUMENT Serge Dasque respectfully requests oral argument in this matter.
ix
STATEMENT OF THE ISSUES PRESENTED
1. Is the Divorce Decree entered by the trial court void due to lack of jurisdiction?
2. Did the trial court abuse its discretion in entering the Divorce Decree by disproportionately dividing community assets?
3. Did the trial court abuse its discretion in limiting Mr. Dasque’s visitation with his minor son although the parties previously agreed to extended visitation between Mr. Dasque and his son every week and substantial evidence supported extending custody to Mr. Dasque or ordering extended visitation?
x
STATEMENT OF FACTS
This is an appeal from a divorce decree. (App. A). While the factual background of this case is not complicated, a related proceeding resulting in a final judgment make the facts necessary to this appeal more extensive.
The divorce of Serge Dasque (“S.D.”) and Fabiola Dasque (“F.D.”) spans four separate cause numbers in Hidalgo County. The first action, Cause F-5441- 08-7, Dasque v. Dasque, was filed in December 2008 and a final Divorce Decree was entered in the case on April 20, 2012. The second case, Cause P-075-09-5, Dasque v. Dasque, was filed in February 2009 and dismissed for want of prosecution. The third case, Cause F-501-12-2, In re C.S.D.—a Suit Affecting the Parent-Child Relationship—was consolidated with the cause number giving rise to this appeal, Cause F-1947-12-2, Dasque v. Dasque. Of these various proceedings, the first and last are necessary to appreciate the factual background to this appeal.1
I. After a brief marriage and a long relationship together, S.D. filed for divorce from F.D. in December 2008.
S.D. and F.D. were married on July 6, 2007 and ceased living together in November 2008. (RR4:7; CR:10, 154). Though S.D. and F.D. were married for
1 S.D. asks the Court to take juridical notice of the dockets in each of these cause numbers and their filings. See, e.g., Douglas v. Am. Title Co., 196 S.W.3d 876, 878 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (appellate court may take judicial notice of records between same parties involving same subject matter); Office of Pub. Util. Counsel v. Pub. Util. Com’n of Tex., 878 S.W.2d 598, 600 (Tex. 1994) (court of appeals has power to take judicial notice for first time on appeal). For the Court’s convenience, Mr. Dasque has provided copies of certain of these filings and hearing transcripts within the appendix.
only a short while, they had a long relationship before their marriage. Their son, C.S.D., was born to them in October 2001 while they were unmarried but dating. (See RR4:6-7). S.D. has at all times accepted paternity of C.S.D. and has eagerly participated in his upbringing.
Following a separation, S.D. filed for divorce from F.D. in December 2008. 2 S.D. contended the marriage had become insupportable because of discord or conflict of personalities that destroyed the legitimate ends of the marriage relationship and prevented any reasonable expectation of reconciliation. 3 In his Original Petition, S.D. asked that he and F.D. be named Joint Managing Conservators of C.S.D. and that he have the right to establish C.S.D.’s primary residence. 4 S.D. further asked that F.D. be ordered to make child support payments on behalf of C.S.D. 5 F.D. appeared in the suit and filed a counter petition for divorce.6 Initially, the case proceeded quickly. In May 2009, the court held a “Final Decree Hearing.”7 During the hearing, the parties read an agreement into the record with regard to possession and child support and the court approved their
2 See App. B, Original Petition for Divorce in Cause F-5441-08-5, at p. 1-2. 3 See App. B, Original Petition for Divorce in Cause F-5441-08-5, at p. 2. 4 See App. B, Original Petition for Divorce in Cause F-5441-08-5, at p. 4. 5 See App. B, Original Petition for Divorce in Cause F-5441-08-5, at p. 4. 6 See App. C, Counter Petition for Divorce in Cause F-5441-08-5. 7 See App. D, May 7, 2009 Final Divorce Hearing Transcript.
agreement and granted the divorce. 8 (CR:154). The parties agreed at the time to extended visitation between C.S.D. and S.D. and they agreed S.D. would pay $150.00 per month in child support.9 But because the issue of community debt was left unresolved, the court agreed to address that issue at a later time and did not enter a written divorce decree.10 (CR:154).
In March 2010, after multiple settings to resolve the issue of community debt, the trial court notified the parties that it had set a dismissal hearing for May 12, 2010 to determine whether the case should be dismissed for want of prosecution. 11 When the parties did not oppose dismissal and apparently did not appear for the dismissal hearing, the trial court dismissed Cause No. F-5441-08-5 for want of prosecution.12 Within thirty days of the dismissal order, F.D. petitioned the trial court to reinstate the case.13 In her Verified Motion to Reinstate, F.D. observed the trial court had plenary power to reinstate that case and that good cause existed to reinstate the matter. 14 F.D. requested an oral hearing on her motion to reinstate, which the court scheduled for October 7, 2010. At the hearing, the parties reached an agreement to
8 See App. D, May 7, 2009 Divorce proceedings at p. 4-8. 9 See App. D, May 7, 2009 Divorce proceedings at p. 4-8. 10 See App. D, May 7, 2009 Divorce proceedings at p. 7-8.
11 See App. E, March 12, 2010 DWOP Notice.
12 See App. F, August 11, 2010 Order of Dismissal in Cause F-5441-08-5.
13 See App. G, Respondent’s Verified Motion to Reinstate filed September 10, 2010. 14 See App. G, Respondent’s Verified Motion to Reinstate filed September 10, 2010.
reinstate the case.15 The trial court “accept[ed] the agreement of counsel and reinstate[d] the case” but did not reduce its oral ruling to writing. 16 II. A final judgment was entered in the December 2008 case.
Following the reinstatement hearing, the case was transferred from Court County Court at Law No. 5 to County Court at Law No. 7.17 Upon receiving the case, County Court at Law No. 7 issued interim orders for visitation of C.S.D. In its orders, the court, “after examining the record and hearing the evidence and argument of counsel,” found “all necessary prerequisites of the law have been legally satisfied and that the Court has jurisdiction of this case and of all the parties.” 18 The court then set a final hearing on divorce, which culminated in an April 20, 2012 Decree of Divorce and Modified Visitation Order. As with its interim orders, the Decree of Divorce recites that the trial court reviewed the record and concluded that “it ha[d] jurisdiction over th[e] cause of action and the parties.” 19 The April 2012 Decree of Divorce and Modified Visitation Order classifies the parties’ property and divides community assets and debts. The Decree also provides for the care of C.S.D., including adjudicating parental rights, visitation,
15 See App. H, October 7, 2010 Reinstatement Hearing Transcript at p. 4-5. 16 See id. 17 See App. I, Order of Transfer and Acceptance. 18 See App. J, Interim Orders for Visitation dated December 14, 2011. 19 See App. K, Decree of Divorce and Modified Visitation Order.
custody, support and other matters. Portions of the Decree differ from the agreement reached by the parties in May 2009 at the Final Divorce Hearing.
III. F.D. petitions for divorce a second time and S.D. complains of the jurisdictional defects in her filing.
Two months after County Court at Law No. 7 entered its April 2012 Decree of Divorce and Modified Visitation Order, F.D. filed a second petition for divorce. (CR:9).
Doubting the court’s authority to render a second divorce between the parties, S.D. moved to dismiss the case for lack of jurisdiction. (CR:46, 70). S.D. advised the court “[F.D.’s] [P]etition is moot in that the parties are divorced and order of conservatorship, possession, access and support have been rendered, by that certain Decree of Divorce and Modified Visitation Order rendered by the Court on April 20, 2012.” (CR:46, 70). He urged “the said Petition being moot as all relief requested therein has been granted by the prior divorce Decree, any orders rendered in connection with the said Petition should be set aside as null.” (CR:46, 70). S.D. included a copy of the Final Decree of Divorce in Cause No. F-5441-08- 7 in support of his motion. (Id.).
S.D. again explained his confusion with regard to the underlying proceedings during a June 18, 2012 status conference: “I don’t even know I don’t even know why we have to be here for this case, because we’ve been divorced already since May the 7th of 2009. . . I have a copy of the transcript, okay, just to
prove that we’ve been divorced already. . . . I also have the copy of Final Decree of the divorce.” (RR 3:5)
In response to S.D.’s jurisdictional complaints, F.D. attempted to describe the grounds for seeking a second decree of divorce. At an initial conference in the case, her counsel explained:
COUNSEL: What has happened in this case, Your Honor, is there was a divorce originally filed back in 2008 by the now Respondent in this case. He’s the Petitioner in the other case. . . . Mr. Dasque is actually here, Your Honor -- the Respondent. . . .
THE COURT: Okay.
COUNSEL: What happened, Your Honor, Mr. Dasque had filed for divorce back in 2008, and that case had been dismissed for Want of Prosecution.
THE COURT: Okay.
COUNSEL: We had filed a Motion -- a Verified Motion to Reinstate, Your Honor. At that time, Legal Aid was still representing Ms.
Dasque, but we -- I wasn’t the attorney of record. Mr. Dasque was represented, at that time, by Brandon Holubar.
THE COURT: Right.
COUNSEL: What happened was that the both parties appeared for the Motion to Reinstate. The Court, apparently, granted the Motion to Reinstate. There was never --
THE COURT: Nobody did an Order.
COUNSEL: Nobody ever submitted an Order, Your Honor, back in 2010. We kept going forward on the case as if there had -- as if it was fine.
THE COURT: There was an order, but there was no Order.
COUNSEL: There was no Order. So that -- we had a Divorce Decree that’s void. And that just was brought up to our attention, Your Honor, because the Attorney General’s Office were reviewing the case and they said this case --
THE COURT: You have no Order.
COUNSEL: We have no Order. Right. So that’s why we’re here today.
THE COURT: You’re here today, so it’s re-filed? It was re-filed, right?
COUNSEL: Yes, Your Honor.
Though F.D.’s counsel cited the Attorney General’s objections to the original Divorce Decree as grounds for filing a second divorce petition, the Attorney General’s objections were never fully clarified by the parties.
Instead, the record reveals that the dual divorce proceedings caused considerable confusion within the office. The Attorney General’s Office made this confusion known to the trial court:
MS. DIAZ: Good morning, Your Honor. Ana Diaz for the Attorney General’s Office. I’m here on F-1947-12-2.
THE COURT: Right.
MS. DIAZ: Viewing the Court’s file, I believe Mr. Glenn Devino filed a Motion to Dismiss Ms. Fabiola Dasque’s Divorce Petition. I’m a little confused because we have a Divorce Order under F-10-1947-12-
B, but the Cause Number is F-5441-08-7 that was signed April 20th, 2012. This Court rendered Temporary Orders for this Petitioner, Ms.
Fabiola Dasque, filed on June 12th, 2012. So I’m kind of unclear as to which came first under which cause number.
THE COURT: We need to, I guess –
MS. DIAZ: The other one is County Court Seven.
THE COURT: Why don’t we do this – why don’t we set, when we get, you know –
MS. DIAZ: Sure.
THE COURT: -- Get all our ducks in order and see where we’re at.
MS. DIAZ: Yes, sir.
(RR2:4-5). The record does not contain any follow up to this colloquy.
IV. The Court nevertheless proceeded to enter a new divorce decree and support orders.
Though the court did not rule on S.D.’s motion or consult with the Attorney General about the dual divorce proceedings, it proceeded to address the parties’ assets and liabilities and the care of C.S.D.
The court held a final hearing and trial in June 2013. (RR4:1-45 and RR5:1-
75). S.D. testified at the hearing that he sought custody of C.S.D. and wanted a divorce from F.D. due to their mutual differences. Concerning the family’s income, S.D. testified both he and F.D. were substitute teachers who relied on credit cards to fund their daily living expenses. (RR5:25-26; 51-53). S.D. reported his income in 2012 was $22,988.00. (RR5:51). S.D. further testified C.S.D. was well-cared for during his time at S.D.’s home. (RR5:17-18). C.S.D. had his own bedroom at his father’s house. (Id.) During their time together, S.D. assisted his son with his homework, fed him and addressed his needs without issue. (Id.) Conversely, C.S.D.’s interaction with his mother was complicated in ways that
impaired F.D.’s ability to look after C.S.D.’s best interests. (RR5:21-24). S.D. complained of specific instances to support his contention that F.D. neglected C.S.D. and failed to look after his basic needs. Infra at 26-27.
Confirming much of S.D.’s testimony on the community’s assets and liabilities, F.D. testified the couple accrued significant credit card debt during the course of their marriage. F.D. testified that both she and S.D. worked as substitute teachers and earned $16,000 to $17,000 per year in 2012 and that they primarily looked to credit cards to support their daily living expenses, such as electrical bills. (RR4:19-20). She asked “that any credit card debt that was taken out during the marriage, that the Court subtract from that any expenses that S.D. made to pay other credit cards that were opened prior to the marriage.” (RR4:16).
Regarding C.S.D., F.D. testified she had agreed in the past to extended visitation between S.D. and C.S.D., but asked for modification of the custody arrangement after approximately three years because “it was very difficult for [her] and it was also very difficult for the boy.” (RR4:23-24). However, she agreed S.D. made meals for C.S.D. (RR4:27) and that a social report concluded both she and S.D. made good parents, among other matters. (RR4:36, 39; RR5:6).
In connection with this testimony, the court entered a divorce decree awarding F.D. primary custody of C.S.D. and S.D. visitation every other week. The court further divided the parties’ debts and ordered S.D. responsible for the
bulk of their community obligations. The Court found S.D.’s net resources per month to be $1,557.96 and ordered S.D. to pay 20% of his net resources in child support each month for a total of $312.00 each month beginning September 1, 2013 in addition to medical support. (CR:179-80).
SUMMARY OF ARGUMENT
S.D. and F.D. are bound by a prior divorce decree entered in April 2012.
That decree divided their community assets and liabilities and addressed custody of their minor child. Because S.D. and F.D. have been previously divorced, the trial court lacked jurisdiction to enter the Final Divorce Decree made the subject of this appeal.
Notwithstanding this jurisdictional defect, the Final Divorce Decree places a significant portion of the couple’s debts on S.D.’s shoulders and grants him only limited visitation with his son. But S.D. and F.D. incurred community debts to fund their mutual living expenses. An equitable and just division of the community debt must account for their shared responsibility for debt accrued during marriage. Moreover, S.D. has eagerly participated in his son’s upbringing. He is passionate about C.S.D.’s education and his well-being. During the final divorce hearing, S.D. offered testimony on the many ways in which C.S.D.’s interests would be served by awarding possession to S.D. or, in the alternative, extended visitation. A social study prepared in this case found him to be a good
parent, and did not recommend any particular custody arrangement between S.D. and F.D. Nevertheless, S.D. offered testimony questioning F.D.’s ability to care for C.S.D.’s needs. He contended F.D.’s history of neglecting C.S.D. supported granting custody to him. The trial court disregarded this testimony although it largely went unrebutted. The trial court therefore abused its discretion in awarding F.D. primary custody of the couple’s minor son.
ARGUMENT AND AUTHORITIES
I. The trial court lacked subject matter jurisdiction to enter the Final Divorce Decree.
“Subject matter jurisdiction requires that the party bringing the suit have standing, that there be a live controversy between the parties, and that the case be justiciable.” State Bar of Texas v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994). Subject-matter jurisdiction is essential for a court to have authority to decide a case; it is never presumed and cannot be waived or conferred by consent. See Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000); Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993) (subject-matter jurisdiction may be raised for first time on appeal); see also Alfonso v. Skadden, 251 S.W.3d 52, 55 (Tex. 2008) (per curiam) (subject-matter jurisdiction cannot be waived and can be raised at any time). Where a court lacks subject matter jurisdiction, its judgment is void. Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990). Jurisdiction is reviewed de novo.
A. The parties’ marital assets and liabilities were previously adjudicated, depriving the court of jurisdiction.
S.D. raised subject-matter jurisdiction as a defect in the trial court when he moved to dismiss F.D.’s suit for lack of subject matter jurisdiction and attached a certified copy of the April 2012 Final Divorce Decree to his motion. (CR:46, CR:70). S.D. argued that the presence of a Final Decree of Divorce in Cause F- 5441-08-7, Dasque v. Dasque, prevented the trial court from divorcing S.D. and F.D. a second time. (CR:46, CR:70). Texas law supports his position.
Upon entry of a Final Decree of Divorce, parties to a marriage no longer have a “justiciable” controversy with respect to their rights to property acquired during the marriage. This principal is consistent with cases holding that “[a] judgment finalizing a divorce and dividing marital property bars relitigation of the property division, even if the decree incorrectly characterizes or divides the property.” Pearson v. Fillingim, 332 S.W.3d 361, 363 (Tex. 2011) (citing Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003) and Baxter v. Ruddle, 794 S.W.2d 761, 762-63 (Tex. 1990)). Attempting to obtain an order that alters or modifies a divorce decree’s property division is an impermissible collateral attack. Hagen v. Hagen, 282 S.W.3d 899, 902 (Tex. 2009). The legislature codified this principal when it enacted Section 9.007 of the Family Code:
(a) A court may not amend, modify, alter, or change the division of property made or approved in the decree of divorce or annulment. An order to enforce the division is limited to an order to assist in the
implementation of or to clarify the prior order and may not alter or change the substantive division of property.
(b) An order under this section that amends, modifies, alters, or changes the actual, substantive division of property made or approved in a final decree of divorce or annulment is beyond the power of the divorce court and is unenforceable.
TEX. FAM. CODE ANN. § 9.007(a), (b) (West 2006). And, even assuming a party could bring a collateral attack on a Divorce Decree, the original divorce court is the one that retains jurisdiction to clarify and enforce the property division within the decree under the Family Code. TEX. FAM. CODE ANN. § 9.002, .008 (West 2006). A party may not circumvent the purposes of the statute by filing a new petition for divorce in a different court in order to secure a more favorable outcome.
In this case, a “Final Decree Hearing” on S.D. and F.D.’s divorce proceedings was held in May 2009. During the hearing, the parties read an agreement into the record with regard to possession and child support and the court approved an agreement and granted the divorce. (CR:154). That agreement was binding on the Court except as to the matters left unresolved—namely, the division of certain credit card debts. See TEX. FAM. CODE ANN. § 7.0006(a), (b) (agreement concerning division of property is binding on the Court if its terms are just and right).
Following the March 2010 hearing but prior to the April 2012 entry of the Final Divorce Decree, the case was dismissed for want of prosecution. To keep the
case alive, F.D. moved filed a verified motion in support of reinstatement. (2nd Supp. RR2:5-6); (App. G). The trial court orally reinstated the case in October 2010 following a hearing on F.D.’s motion and pursuant to an agreement of the parties to reinstate. (See App. H).
S.D. and F.D. proceeded to resolve the case. (Supp. RR2:5-6). The case was transferred from Court County Court at Law No. 5 to County Court at Law No. 7.20 Upon receiving the case, County Court at Law No. 7 issued interim orders for visitation of C.S.D. In its orders, the court “after examining the record and hearing the evidence and argument of counsel,” found “all necessary prerequisites of the law have been legally satisfied and that the Court has jurisdiction of this case and of all the parties.”21 The trial court set a final hearing on divorce which culminated in an April 20, 2012 Decree of Divorce and Modified Visitation Order. As with its interim orders, the Decree of Divorce recites that the trial court reviewed the record and concluded that “it ha[d] jurisdiction over th[e] cause of action and the parties.”22 F.D. agreed to the terms of the divorce decree in open court. (RR4:23). The parties’ April 20, 2012 divorce is binding and may not be re-litigated through the separate, underlying proceeding. Accordingly, the trial court lacked jurisdiction to enter the final judgment in this case.
20 See App. I, Order of Transfer and Acceptance. 21 See App. J, Interim Orders for Visitation dated December 14, 2011. 22 See App. K, Decree of Divorce and Modified Visitation Order.
B. The trial court similarly lacked jurisdiction to adjudicate custody and support for the couple’s minor child.
Because the Final Divorce Decree in Cause F-5441-08-7, Dasque v. Dasque, addressed matters affecting the parent-child relationship, the trial court further lacked jurisdiction under Section 155.001 of the Texas Family Code.
Section 155.001 of the Texas Family Code provides that a trial court “acquires continuing, exclusive jurisdiction over the matters provided for by this title in connection with a child on the rendition of a final order.” Continuing jurisdiction is established where a prior court has entered a final order adjudicating matters affecting the parent child relationship. See id.
S.D. and F.D.’s divorce involved matters pertaining to the parent-child relationship between S.D. and F.D., on the one hand, and C.S.D., on the other hand. Their December 2008 suit for divorce culminated in a Final Decree of Divorce addressing their interaction with C.S.D. and providing for his care. (CR:48-68). S.D. received visitation with C.S.D. every other weekend between Thursday and Sunday, and he was ordered to pay $150.00 in child support plus arrears and costs for medical support. (CR:54-57). Accordingly, the suit falls within the ambit of Section 155.001 for purposes of establishing continuing and exclusive jurisdiction in County Court at Law No. 7, which entered the April 2012 Decree of Divorce. See Fleming v. Easton, 998 S.W.2d 252, 255 (Tex. App.— Dallas 1999, no pet.); Jansen v. Fitzpatrick, 14 S.W.3d 426, 430-31 (Tex. App.—
Houston [14th Dist.] 2000, no pet.). The court below improperly usurped that jurisdiction in attempting to adjudicate custody and support for the couple’s minor child a second time in violation of the prior judgment governing his care.
C. The reinstatement, to the extent necessary, was effective.
In response to S.D.’s Motion to Dismiss, F.D. contended the Final Divorce Decree entered in Cause F-5441-08-7 was ineffective because the trial court did not issue a written order reinstating the case after dismissing it for want of prosecution. 23 This argument glosses over circumstances in which reinstatement may be effective in the absence of a written order.
As a general principal, it is true that the Texas Supreme Court has held a written order of reinstatement is necessary to reinstate a case previously dismissed for want of prosecution. See Emerald Oaks Hotel/Conf. Ctr., Inc. v. Zardenetta, 776 S.W.2d 577, 578 (Tex. 1989). In the interests of promoting justice, however, Texas courts have recognized limited exceptions to this principal. For example, in Charles L. Hardtke Inc. v. Katz, 813 S.W.2d 548 (Tex. App.—Houston [1st Dist.] 1991, no writ.), the First Court of Appeals concluded that a docket entry and trial setting order unambiguously set aside a dismissal where the docket entry stated,
23 If a plaintiff files a proper, timely, and verified motion to reinstate, a trial court must sign an order on the motion within 75 days after the date the judgment was signed, or the motion will be overruled by operation of law on the 76th day. TEX. R. CIV. P. 165a(3); Emerald Oaks Hotel/Conference Ctr., Inc. v. Zardenetta, 776 S.W.2d 577, 578 (Tex. 1989). Once the motion is overruled, the trial court retains plenary power to change its ruling for 30 more days. TEX. R. CIV. P. 165a(3); Nealy v. Home Indem. Co., 770 S.W.2d 592, 594 (Tex. App.-Houston [14th Dist] 1989, no writ).
“Order of 3-11-87 struck; case removed from special dismissal docket - TRP” and the initials were those of the trial judge—and later supreme court justice, Thomas R. Phillips.
There, the trial judge ordered a joint status report to be filed by March 10, 1987. Id. 549. Though the parties timely submitted a status report, the court – unaware of the parties’ filing – dismissed the case for want of prosecution. Id. at 549-50. Neither party moved for reinstatement of the case. Id. Nevertheless, the Court immediately attempted to reverse its dismissal order the following day by striking the dismissal order in a docket entry and later setting the case for trial. Id. The First Court of Appeals concluded the docket entry and trial setting, taken together, were sufficient to reinstate the case in the absence of a formal, written order. Id. The court distinguished Emerald Oaks in reaching its holding. It reasoned:
[Emerald Oaks’ holding] was compelled by TEX. R. CIV. P. 165a(3), which expressly required that a motion to reinstate ‘shall be filed’ and overruled by law after 75 days unless ‘decided by a signed written order. . . .’ Rule 165a(3) does not apply here because no motion to reinstate was filed. The rule requires a ‘filed,’ ‘verified’ motion that ‘shall set forth the grounds therefor,’ that ‘shall be served’ on the parties, that ‘shall’ be delivered by the clerk to the judge, who ‘shall set a hearing . . . [and] shall notify all parties . . . of the hearing.’ None of that happened here because this was not a proceeding conducted under rule 165a(3).”24
24 The Texas Supreme Court too has acknowledged that docket entries may, in certain circumstances, evidence rulings. In N-S-W Corp. v. Snell, 561 S.W.2d 798, 799 (Tex. 1977, orig. proceeding) (citations omitted), the Court noted "A docket entry may supply facts in certain
This case fits within Katz’s exception. Though F.D. moved to reinstate the case, the trial court agreed to reinstatement pursuant the parties’ agreement at an oral hearing. The docket in this case and the trial court’s oral ruling affirmatively demonstrate the court’s intent the reinstate the proceedings. Upon reinstatement, both the court and the parties proceeded to litigate the case to a final disposition that balanced F.D. and S.D.’s mutual interests. That final judgment should hold sway and prevent the relitigation of F.D. and S.D.’s divorce. Both the parties and the trial court intended the April 2012 Divorce Decree to be final.
II. The trial court erred in entering the Divorce Decree by unequally dividing the parties’ community property.
In the alternative, the trial court abused its discretion in entering the Divorce Decree made the subject of this appeal. In the little evidence at trial demonstrated S.D. and F.D. incurred debt during the course of their marriage and that much of the debt related to the couple’s mutual living expenses. The trial court erred in disregarding this evidence to enter a Divorce Decree placing the bulk of the credit card debt on S.D. The trial court similarly erred in awarding possession of C.S.D. to F.D. and visitation to S.D.
situations, but it cannot be used to contradict or prevail over a final judicial order." The Fifth Court of Appeals has similarly acknowledged that a docket entry may supply facts described in N-S-W Corp. where the docket sheet is required to correct clerical errors in judgments or orders. Energo Int’l Corp. v. Modern Indus. Heating, Inc., 722 S.W.2d 149, 151 & n. 2 (Tex. App.— Dallas 1986, no writ).
A. An award of community property must be equitable and just and cannot result from an abuse of discretion.
In a divorce decree, the trial court “shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.” TEX. FAM. CODE ANN. § 7.001. Texas courts have considered the following factors when equitably dividing a community estate: (1) fault in the breakup of the marriage; (2) the benefits that the innocent spouse would have derived had the marriage continued; (3) disparity in the spouses’ income or earning capacities; (4) each spouse’s business opportunities; (5) differences in the spouses’ education; (6) physical health and need for future support; (7) the relative ages of the parties; (8) each spouse’s financial condition and obligations; (9) the size of each spouse’s separate estate and any expected inheritance; (10) the nature of the spouses’ property; (11) the rights of the children of the marriage; (12) waste of community assets or constructive fraud against the community; (13) gifts by one spouse to the other; and (14) tax liabilities. See Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998); Barbara Anne Kazen, Division of Property at the Time of Divorce, 49 BAYLOR L. REV. 417, 424-28 (1997) (discussing factors a court may consider in making an equitable division of the community estate).
A court’s division of property is reviewed for abuse of discretion. Vallone v.
Vallone, 664 S.W.2d 455 (Tex. 1982). Under this abuse of discretion standard, the
legal and factual sufficiency of the evidence are not independent grounds of error, but are merely relevant factors in assessing whether the trial court abused its discretion. Zieba v. Martin, 928 S.W.2d 782, 786 (Tex. App.—Houston [14th Dist.] 1996, no writ).
Though a trial court does not abuse its discretion when it bases its decision on conflicting evidence or when some evidence of a probative and substantive character exists to support the division, id. at 787, a court of appeals may disturb the division where the record demonstrates “that the division was clearly the result of an abuse of discretion.” Id. To determine if a trial court abused its discretion, the court analyzes the following two factors: (1) whether the trial court had sufficient information to exercise its discretion, and (2) whether the trial court abused its discretion by making a property division that is manifestly unfair and unjust. Chacon v. Chacon, 222 S.W.3d 909, 915 (Tex. App.—El Paso 2007, no pet.); see also Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); Chavez v. Chavez, 269 S.W.3d 763, 766 (Tex. App—Dallas 2008, no pet.).
B. S.D. and F.D. mutually benefitted from the credit card debt incurred during their marriage.
S.D. opened several credit cards prior to his marriage to F.D. (RR5:25-26).
S.D. paid off the balance of his credit card debt except for $1,500 on an American Airlines Citi Advantage Card prior to marrying F.D. (RR5:55). The credit cards— two of which S.D. opened during marriage—were thereafter used primarily to fund
community needs, such as daily living expenses. (RR5:25-26; 51-53, 55). 25 These expenses included rent, food, electricity, water, and C.S.D.’s care. (RR4:19; RR5:26).
After transferring the balances on these cards several times, S.D. paid off community debts accrued on the credit cards arising from the couple’s daily living expenses with money earned from his job and his income tax return. (RR5:27, 56- 58). However, additional amounts remained outstanding at the time of the divorce. (RR5:59-62). S.D. and F.D. did not testify to a specific amount of community credit card debt but disputed it was “somewhere under” $40,000.00. (RR5:61, 65).
Though the trial court correctly determined that these debts constituted community property, it erred in making a disproportionate award of the community debt. (CR189-90). F.D. and S.D. have the same or similar earning capacity as substitute teachers and make roughly the same amount. See Barbara Anne Kazen, Division of Property at the Time of Divorce, 49 BAYLOR L. REV. 417, 424-28 (1997) (factors most commonly used to support a disproportionate community property division are fault and disparity in income, earning capacity, business opportunities, and education). F.D. was educated as an engineer in Mexico, (RR4:21), and S.D. has plans to become a licensed nurse. (RR5:61).
25 S.D. further testified he also used the cards for expenses to improve his earning ability during their marriage, such as school expenses. (RR5:57).
The court awarded F.D. $1,314.03 in community debt and ordered S.D.
responsible for $18,079.79 in community debt. (See App. A). Yet, the parties both testified F.D. and S.D. jointly enjoyed the goods and services purchased on their credit cards during marriage. (RR5:25-26). Those costs included their daily living expenses and costs for C.S.D.’s care. (Id.) The record contains no exhibits at all apart from a December 2008 Bank of America statement, (RR8:PX1), to establish the amounts of these debts or that S.D. should bear such a disproportionate share of expenses that the parties agreed funded their living expenses. (See, e.g., RR5:61- 65). Thus, the relevant evidence, considered in the light required for a legal- sufficiency challenge, is as follows: S.D. brought limited credit card debts to the marriage. (RR5:55). S.D. and F.D. then accrued significant credit card debts during their marriage using cards opened by S.D. (RR4:14). The cards were mostly used to fund community obligations to the tune of about $1,300 per month. (RR4:15; RR5:66-67). Those community needs included daily living expenses like food, gas, electricity and clothing. (RR4:19-20). And, though, S.D. used certain cards to pay off a vehicle, the court awarded both the vehicle and amounts outstanding on it to S.D. as separate property. (RR4:13). There is no evidence relating to the amount of community debt spent on the car as S.D.’s separate obligation.
Although the court need not divide the community estate equally, 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.). Here, in addition to the above defects, the record contains very little evidence disclosing the amount of debts the parties incurred or their origin. Thus, the court lacked sufficient information from which to make a disproportionate award of community debt. The couple mutually enjoyed the benefits of the credit cards, and should be mutually responsible for the debts accrued during the course of their marriage. In the absence of any evidence to support a disproportionate share of debts for which there is legally and factually insufficient evidence, the trial court abused its discretion.
III. Trial court erred in awarding F.D. primary custody of C.S.D. with S.D.
receiving only limited visitation with his son.
In addition to making an unjust and disproportionate award of community debt, the court further erred in failing to order possession of C.S.D. to S.D. or, in the alternative, extended visitation between S.D. and C.S.D. The parties previously agreed to extended visitation between S.D. and C.S.D. and direct, positive testimony offered by S.D. supported S.D.’s plea for custody and/or extended visitation due to S.D.’s superior ability to care for his now pre-teen son’s interests.
A. Custody matters are reviewed for an abuse of discretion.
Custody, visitation and possession orders are reviewed for abuse of discretion. See, e.g., In re Doe 2, 19 S.W.3d 278 (Tex. 2000). A trial court’s
judgment may be reversed when it appears from the record as a whole that the trial court abused its discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). A trial court abuses its discretion as to factual matters when it acts unreasonably or arbitrarily. In re M.W.T., 12 S.W.3d 598, 602 (Tex. App.—San Antonio 2000, pet. denied) (construing Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992)); see also Worford, 801 S.W.2d at 109. A trial court abuses its discretion as to legal matters when it fails to act without reference to any guiding principles. In re M.W.T., 12 S.W.3d at 602 (construing Walker, 827 S.W.2d at 840). Though it is true that a trial court “is in the best situation to observe the demeanor and personalities of the witnesses and can ‘feel the forces, powers, and influences that cannot be discerned by merely reading the record,’” In re N.A.S., 100 S.W.3d 670, 673 (Tex. App.— Dallas 2003, no pet.), it cannot disregard unrebutted testimony that is clear, direct and positive.
B. S.D. should have received extended visitation with C.S.D., consistent with their long-time arrangement.
In considering which party to appoint managing conservator, a court may not discriminate based on sex or marital status. See TEX. FAM. CODE § 153.003. Instead, it must be guided solely by the best interest of the child. See TEX. FAM. CODE § 153.002. This includes crediting evidence of neglect. See TEX. FAM. CODE § 153.004.
And, to the extent a court does not award a parent possession of a minor child, but orders the terms of possession of a child under an order other than a standard possession order, see Texas Family Code section 153.312, the court shall further be guided by the guidelines established by the standard possession order and may consider: (1) the age, developmental status, circumstances, needs, and best interest of the child; (2) the circumstances of the managing conservator and of the parent named as a possessory conservator; and (3) any other relevant factor. See TEX. FAM. CODE § 153.256.
S.D. asked to be appointed sole managing conservator or, in the alternative, for extended visitation with his now pre-teen son in deviation from the standard possession order due, in part, to the parties’ past child-care arrangement. (RR5:11- 12). From 2009 to 2012, S.D. and F.D.’s agreed possession schedule allowed for S.D. to see his son every Thursday through Sunday each week. (RR5:15-16). The possession schedule worked well for C.S.D., RR5:15-16, but was later modified on F.D.’s motion as part of the parties’ first divorce proceeding. S.D. sought a return to the agreed arrangement so that he could have an increased role in C.S.D.’s upbringing. (RR5:28-30, RR6:6-8). C.S.D. is approaching his teenage years, and those years play a critical role in development that are best served by promoting C.S.D.’s relationship with his father. Cf. TEX. FAM. CODE § 153.256.
In support of his request for custody and extended visitation, S.D. testified C.S.D. was well-cared for at S.D.’s home where he had his own bedroom and space. (RR5:17-18). During their time together, S.D. assisted his son with his homework, fed him and addressed his needs without issue. (Id.) S.D. testified he took proactive steps to improve C.S.D.’s education by enrolling him in tutoring sessions, helping with his homework and attending school meetings. (RR5:29-30, 34-35). Further, S.D. took C.S.D. to doctor’s appointments and ensured his health was looked after. (RR5:36).
Conversely, S.D. testified to a series of concerns about C.S.D.’s time with his mother. (RR5:20-24, 35-37). Among them:
• C.S.D. stayed up late at his mother’s house during school nights such that he fell asleep during school hours. (RR5:21).
• F.D. left her son in the car while grocery shopping. (RR5:21-22).
• F.D. was unable to assist C.S.D. with his homework due to a language barrier. (RR5:29).
• F.D. sent C.S.D. to school without the appropriate seasonal attire.
(RR5:30).
• F.D. allowed C.S.D. to play violent video games. (RR5:31-32).
• F.D. did not well-arrange for after school care for C.S.D. but generally left him home alone and unattended. (RR5:37, 39-40).
• F.D. allowed C.S.D. to cross the street without supervision on his way home from school and to wander around parking lots. (RR5:39).
S.D. reported some of his concerns to child protective services after he discovered F.D. allowed C.S.D. to cross streets without supervision and found bruising on him. (RR5:37, 39-40). All of these facts, taken together, constitute significant evidence that extended visitation between S.D. and C.S.D. (or primary custody) served the child’s best interests. The trial court erred in wholly disregarding these facts to schedule more limited visitation between S.D. and C.S.D.
A social study prepared in connection with the case provides additional, compelling evidence regarding the care of C.S.D. After interviewing C.S.D. and both his parents, the social study concluded that both S.D. and F.D. are good parents to their son. (RR5:6-7). Nothing in the report concluded S.D. should have limited access to his son or culminated in a finding that would call for reduced visitation between C.S.D. and S.D. (RR5:7, 27-28).
And, F.D.’s countervailing testimony regarding C.S.D.’s best interests was often based on speculation or otherwise failed to contradict S.D.’s testimony. When asked if she knew if S.D. instructed C.S.D. in his homework, fed C.S.D. or otherwise appropriately cared for him during the times of visitation, F.D. testified, “Well, he’s with him. I don’t know what they do together.” (RR5:9). And, when questioned on whether she objected to extended visitation based solely on her
contention that it would require C.S.D. to adapt to a new visitation schedule, F.D. responded as follows:
Q: So it’s your testimony that your son cannot adapt so long as it’s more visitation with my client?
A: I’m not saying that, but what does it have anything to do with one day before or one day after?
Q: Okay. Would you agree to allow your child to spend time with Serge every Thursday and the first, third and fifth Friday through Monday like we talked about?
A: Each Thursday? I don’t know.
(RR5:13). This testimony is insufficient to contradict S.D.’s testimony that
extended visitation with C.S.D. served his son’s best interests. As a result, the only credible testimony offered in the trial court supported awarding S.D. extended visitation in accord with the parties’ previous, agreed possession schedule. The trial court erred in failing order possession in accord with this testimony or custody.
CONCLUSION AND PRAYER
For these reasons, Serge Dasque respectfully requests that the Court vacate the trial court’s Divorce Decree or, in the alternative, reverse the Final Divorce Decree with respect to its division of community debt and visitation rights and remand for further proceedings.
Respectfully submitted,
STRASBURGER & PRICE L.L.P.
By: /s/ Kelly H. Leonard Kelly H. Leonard
State Bar No. 24078703
kelly.leonard@strasburger.com 909 Fannin Street, Suite 2300 Houston, Texas 77056
(713) 951-5619 (Tel)
(713) 960-5660 (Fax)
Counsel for Serge Dasque
CERTIFICATE OF COMPLIANCE In accordance with TEX. R. APP. P. 9.4(b)-(e) and Local Rule 3(e), the undersigned counsel certifies that this document was generated with a computer using MS Word and contains 7,018 words. Further, this document was prepared using Times New Roman 14-point font, except for its footnotes which are no smaller than Times New Roman 12-point font. The undersigned will provide the Court with one paper copy of this filing in accord with Local Rule 3(g) within one business day.
/s/ Kelly H. Leonard
Kelly H. Leonard
CERTIFICATE OF SERVICE
I hereby certify that I have complied with the Texas Rules of Appellate Procedure and the Local Rules of this Court and that the foregoing Amended Appellant’s Brief has been electronically filed and served on all counsel of record in accordance with these Rules on this the 10th day of July, 2015.
/s/ Kelly H. Leonard
Kelly H. Leonard
No. 13-13-00645-CV
IN THE THIRTEENTH COURT OF APPEALS AT CORPUS CHRISTI-EDINBURG, TEXAS
SERGE DASQUE
Appellant,
v.
FABIOLA AIDEE DASQUE
Appellee.
APPENDIX
TAB DOCUMENT Tab A Final Divorce Decree Tab B Original Petition for Divorce in Cause F-5441-08-5 Tab C Counter Petition for Divorce in Cause F-5441-08-5 Tab D May 7, 2009 Final Divorce Hearing Transcript Tab E March 12, 2010 DWOP Notice Tab F August 11, 2010 Order of Dismissal in Cause F-5441-08-5 Tab G Respondent’s Verified Motion to Reinstate filed September 10, 2010 Tab H Reinstatement Hearing Transcript Tab I Order of Transfer and Acceptance. Tab J Interim Orders for Visitation dated December 14, 2011 Tab K Decree of Divorce and Modified Visitation Order
APPX. A
APPX. B
APPX. C
APPX. D
APPX. E
APPX. F
APPX. G
APPX. H 1 REPORTER'S RECORD VOLUME 1 OF 1
2
3 TRIAL COURT CAUSE NO. F-5441-08-5
4 SERGE DASQUE ) IN THE COUNTY COURT 5 )
)
6 VS. ) AT LAW NO. 5 )
7 )
FABIOLA DASQUE ) HIDALGO COUNTY, TEXAS 8
9 * * * * * * * * * * * * * * * * * * * * * * * * * * * * 10 REINSTATEMENT HEARING
11 OCTOBER 7, 2010
12 * * * * * * * * * * * * * * * * * * * * * * * * * * * * 13
14 On the 7th day of October, 2010, the following 15 proceedings came on to be heard in the above-entitled 16 and numbered cause, before the Honorable Arnoldo Cantu, Jr., 17 Judge presiding, held in Edinburg, Hidalgo County, Texas. 18 Proceedings reported by computerized stenotype 19 machine; Reporter's Record produced by computer-aided 20 transcription. 21
22 GAY R. RICHEY, Texas CSR #7260 23 Official Court Reporter - County Court at Law No. 5 Hidalgo County Courthouse 24 100 North Closner, Second Floor Edinburg, Texas 78539
25 (956) 318-2460
GAY R. RICHEY, CSR
1 A P P E A R A N C E S: 2
3 MR. FELIX RAMOS SBOT NO: 16508015 4 LAW OFFICE OF FELIX RAMOS 425 West Nolana Avenue 5 McAllen, Texas 78539 Telephone: (956) 630-6046 6 ATTORNEY FOR SERGE DASQUE
7
8 MS. JULIA SUZANNE RANEY SBOT NO: 24046678 9 FAMILY VIOLENCE PREVENTION SERVICES, INC.
7911 Broadway Street 10 San Antonio, Texas 78209 Telephone: (210) 393-6209 11 ATTORNEY FOR FABIOLA DASQUE
12 13 14 15 16 17 18 19 20 21 22 23 24 25
GAY R. RICHEY, CSR
1 INDEX 2 PAGE 3 Appearances . . . . . . . . . . . . . . . . . 4 4 Court's Ruling . . . . . . . . . . . . . . . 4 5 Reporter's Certificate . . . . . . . . . . . 6 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
GAY R. RICHEY, CSR
1 October 7, 2010 2 Morning Session 3 P R O C E E D I N G S 4 THE COURT: Ms. Raney, good morning. 5 MS. RANEY: Good morning. I have, I believe, a 6 quick announcement on F-5441-08-5. 7 THE COURT: Serge Dasque vs. Fabiola Dasque? 8 MS. RANEY: Yes, Your Honor. 9 I am standing in for Brandon Holubar, Your Honor. 10 And my understanding is that he is in agreement with reinstating 11 and having a hearing, Final Hearing, in two weeks. 12 MR. RAMOS: And, Your Honor, two weeks from today 13 would work perfectly. 14 MS. RANEY: Okay. 15 THE COURT: Mr. Delgado, you have a setting? 16 Can I get you to visit with my staff and see if 17 you can get a setting? 18 MR. RAMOS: Okay. So then the Court will grant 19 Motion to Reinstate? 20 MS. RANEY: And, Your Honor -- 21 THE COURT: Well, let me have counsel approach. 22 MR. RAMOS: Okay. 23 MS. RANEY: Okay. 24 (Bench Conference). 25 THE COURT: F-5441-08-5, Dasque vs. Dasque, Court
GAY R. RICHEY, CSR
1 will accept the agreement of counsel and reinstate the case. 2 (End of Proceedings). 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
GAY R. RICHEY, CSR
1 THE STATE OF TEXAS) 2 COUNTY OF HIDALGO ) 3 I, GAY R. RICHEY, Official Court Reporter in and for 4 Hidalgo County, State of Texas, do hereby certify that the above 5 and foregoing contains a true and correct transcription of all 6 portions of evidence and other proceedings requested in writing 7 by counsel for the parties to be included in this volume of the 8 Reporter's Record, in the above-styled and numbered cause, all 9 of which occurred in open court or in chambers and were reported 10 by me. 11 I further certify that this Reporter's Record of 12 the proceedings truly and correctly reflects the exhibits, if 13 any, offered by the respective parties. 14 I further certify that the total cost of this 15 Reporter's Record is $____.__ and will be paid by MS. KELLY 16 LEONARD. 17 WITNESS MY OFFICIAL HAND this the ____ day of 18 __________, 2015. 19 20
21 _____________________________ Gay R. Richey, CSR
22 Certification No. 7260 Date of Expiration: 12-31-16 23 Official Court Reporter Hidalgo County, Texas
24 25
GAY R. RICHEY, CSR
APPX. I
APPX. J
APPX. K
Serge Dasque v. Fabiola Aidee Dasque (Serge Dasque v. Fabiola Aidee Dasque) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.