Suzanne Hitselberger v. Louis Bakos

• Court: Court of Appeals of Texas
• Decided: November 7, 2022
• Docket: 05-21-00146-CV
• Status: Published

Opinion

AFFIRMED and Opinion Filed November 7, 2022

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00146-CV

SUZANNE HITSELBERGER, Appellant V. LOUIS BAKOS, Appellee

On Appeal from the 256th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-19-18280

MEMORANDUM OPINION Before Justices Schenck, Reichek, and Goldstein Opinion by Justice Goldstein Suzanne Hitselberger appeals from the trial court’s final decree of divorce. In

three issues, Hitselberger argues the trial court abused its discretion by denying her

motion for continuance, characterizing the marital residence as community property,

and failing to award her spousal maintenance. We affirm the trial court’s judgment. BACKGROUND

Hitselberger and Louis Bakos were married in September 2002 and stopped

living together in September 2019. In September 2019, Bakos1 filed his original

petition for divorce. In November 2019, Hitselberger filed a counterpetition for

divorce. Prior to commencement of the bench trial on August 26, 2020, the trial

court heard argument concerning Hitselberger’s motion for a continuance.

Hitselberger’s counsel informed the court that Hitselberger was admitted to the

hospital the day before trial for “mental health issues” and sought a continuance on

that basis. Bakos’ counsel responded that previously, in November 2019,

Hitselberger had voluntarily checked herself into a mental facility “on the eve of a

contested – what she would suspected to be a final hearing.” Bakos’ counsel argued

that Bakos was “entitled to be free” of Hitselberger because he was paying $2400

per month in temporary spousal maintenance that was “entered against him many,

many, many months ago” and also paying the debt service on Hitselberger’s credit

cards. Bakos counsel stated he understood if the trial court was inclined to grant the

motion for continuance “given the exact circumstances,” but he asserted Bakos

needed “relief today on this $2400.00 a month” in temporary spousal maintenance

that “would have ended today.” Bakos’ counsel reminded the court that

1 This Court received a suggestion of death that Bakos passed away in January 2022. This appeal is proceeding forward with the appearance of the Temporary Administrator appointed for the Estate of Louis Michael Bakos. –2– Hitselberger’s counsel’s motion to withdraw remained pending, and Bakos had paid

$7000 directly to Hitselberger’s counsel for the “huge amount of time” spent in trial

preparation. Bakos’ counsel stated that, if Hitselberger’s counsel withdrew, it would

“restart this process” with a new attorney who would require new fees. The trial

court expressed concern that, if the case was reset, it would “probably be January

before I get back to it.” The trial court then denied the motion for continuance.

At the trial that followed, Bakos testified that, prior to the marriage, Bakos

purchased a residence in Dallas but added Hitselberger to the deed during the

marriage. However, the deed was not admitted into evidence. Sworn inventory and

appraisement documents filed by Bakos and Hitselberger both listed the marital

residence as community property.

Regarding Hitselberger’s employment history, Bakos testified Hitselberger

worked as a real estate agent since 2016. Even though Hitselberger had been on SSI

disability insurance since 2001 or 2002, Bakos testified, she continued to work at

various jobs: “a job at Centex for awhile working in the office”; work at

“LaunchAbility as a trainer”; running a swim school for “a couple of summers”; and

work as an interior decorator, substitute teacher, and real estate agent.

Psychiatrist Robert Freele testified Hitselberger had been one of his patients

for about ten years and experienced major depressive disorder, posttraumatic stress

disorder, alcohol dependence, and cannabis abuse. Freele described passive suicidal

thoughts as “where you wish you were dead” and testified Hitselberger reported

–3– suicidal thoughts “since I met her off and on” and the suicidal thoughts were usually

passive. When asked about Hitselberger’s ability to work, Freele testified he had

“not determined that she’s disabled from working” but “just stated that she does not

work.” Freele recalled that Hitselberger had been working on getting a real estate

license, but he did not remember if she “finally got it or was working or not.” When

asked if it was his opinion that Hitselberger was permanently disabled and unable to

work, Freele testified he had “no idea” and had “not evaluated [Hitselberger] for

that.”

On October 1, 2020, the trial court entered a memorandum ruling that, among

other things, granted the divorce, denied spousal support, and made the following

disposition of marital property:

The Court finds that wife and husband each have grounds for an unequal division of the marital property; however, the Court will offset their claims for unequal division and grant essentially an equal division. The Court awards the husband the marital property as his sole and separate property. The marital assets shall be awarded as outlined in the following spreadsheet and is conditioned upon the payment of the attorney fees herein.2 Community personal property is awarded to the party in possession or their control.

The spreadsheet attached to the memorandum ruling, after making various awards

to Bakos including attributing $85,059 for the marital residence3 and a lesser

percentage of the 401k in the amount of $39,514 and awards to Hitselberger

2 Bakos ordered to pay $14,000 in attorneys’ fees from the home equity loan (HELOC) by a date certain. 3 The value was determined by establishing the fair market value, less the mortgage and the HELOC.

–4– including $87,786.00 from the 401(k) and an automobile valued at $20,300, minus

credit card and other debt, reflected that the total value of the assets/debt was

$53,090 and awarded an equal share of $26,545 to each. On December 2, 2020, the

court entered its Final Decree of Divorce and Hitselberger’s motion for new trial

was denied by operation of law.4 This appeal followed.

DENIAL OF CONTINUANCE

In her first issue, Hitselberger complains the trial court abused its discretion

by denying her motion for continuance. Specifically, Hitselberger argues her

absence from trial denied her the ability to participate in her trial and aid her counsel

and her testimony was material “as only she can corroborate that she suffered years

of domestic violence and abuse throughout the marriage by husband.”

We review the denial of a motion for continuance for an abuse of discretion.

Wal–Mart Stores Tex., LP v. Crosby, 295 S.W.3d 346, 356 (Tex. App.—Dallas

2009, pet. denied). The denial will be reversed only if the trial court's action was

arbitrary, unreasonable, or without reference to any guiding rules and principles.

Garner v. Fidelity Bank, N.A., 244 S.W.3d 855, 858 (Tex. App.—Dallas 2008, no

pet.). A party moving for continuance must show sufficient cause supported by

affidavit, consent of the parties, or by operation of law. TEX. R. CIV. P. 251. Failure

to comply with this requirement creates a rebuttable presumption that the trial court

4 Despite requests for findings of fact and conclusions of law, none were entered by trial court.

–5– did not abuse its discretion in denying a motion for continuance. Moffitt v. DSC Fin.

Corp., 797 S.W.2d 661, 663 (Tex. App.—Dallas 1990, writ denied). Whether a

continuance should be granted is to be judged in light of facts before the trial judge

at the time the motion is presented. Aguilar v. LVDVD, L.C., No. 08-01-00438-CV,

2002 WL 1732520, at *3 (Tex. App.—El Paso July 25, 2002, pet. denied) (not

designated for publication) (citing Gulf Ins. Co. v. Dunlop Tire and Rubber Corp.,

584 S.W.2d 886, 889 (Tex. Civ. App.—Dallas 1979, writ ref’d n.r.e.)).

In family law cases, the abuse-of-discretion standard of review overlaps with

the traditional sufficiency standards of review; as a result, insufficiency of the

evidence is not an independent ground of reversible error, but instead constitutes a

factor relevant to our assessment of whether the trial court abused its discretion. In

re A.B.P., 291 S.W.3d 91, 95 (Tex. App.—Dallas 2009, no pet.). To determine

whether the trial court abused its discretion, we consider whether the trial court (i)

had sufficient evidence upon which to exercise its discretion and (ii) erred in its

exercise of that discretion. Id. We conduct the applicable sufficiency review with

regard to the first question. Id. We then proceed to determine whether, based on the

elicited evidence, the trial court’s decision “was neither arbitrary nor unreasonable.”

Moroch, v. Collins, 174 S.W.3d 849, 857 (Tex. App.—Dallas 2005, pet. denied). A

trial court does not abuse its discretion if it bases its decision on conflicting evidence

as long as there is some evidence of a substantive and probative character to support

–6– the decision. In re S.N.Z., 421 S.W.3d 899, 911 (Tex. App.—Dallas 2014, pet.

denied); Moroch, 174 S.W.3d at 857.

Mere absence of a party does not automatically entitle him to a continuance.

Humphrey v. Ahlschlager, 778 S.W.2d 480, 483 (Tex. App.—Dallas 1989, no writ).

When a motion for continuance is based upon the absence of a party, there must be

a showing of diligence in attempting to obtain the required testimony. Id. The due

diligence requirement in procuring a witness’ testimony has been considered by a

number of courts when a motion for continuance has been based upon the illness of

a witness. Id. Further, there is a necessity to show by affidavit the materiality of the

testimony to be offered by the absent witness. Id.

Here, Hitselberger filed her motion for continuance on the day before the case

was set for trial. The motion stated that Hitselberger’s counsel was notified that

Hitselberger was checked into the hospital “due to suicidal ideation and other mental

health issues that threatened her life and safety.” The motion requested “at least a

90-day continuance” due to Hitselberger’s admission to the hospital. The motion

for continuance contained the attorney’s verification that the “statements contained

in the motion [were] within [her] personal knowledge and [were] true and correct.”

However, the motion was not supported by an affidavit demonstrating

sufficient cause for the continuance. See TEX. R. CIV. P. 251. The motion neither

reflected whether there was any effort during the pendency of the case to procure

her testimony nor did Hitselberger otherwise attempt, either in her motion or at the

–7– hearing on the motion, to establish the substance of the testimony she was prevented

from presenting or the materiality of such testimony to the relevant issues. See

Humphrey, 778 S.W.2d at 483. Under these circumstances, we conclude the trial

court did not abuse its discretion in denying Hitselberger’s motion for continuance.

See Garner, 244 S.W.3d at 858. We overrule Hitselberger’s first issue.

MARITAL RESIDENCE AS COMMUNITY PROPERTY

In her second issue, Hitselberger argues the trial court abused its discretion by

determining the marital residence was community property and awarding the marital

residence to Bakos. Hitselberger complains that Bakos purchased the marital

residence before the marriage, and the deed to Bakos and Hitselberger during the

marriage vested in each of them a one-half separate property interest in the marital

residence. With each spouse owning one-half of the marital residence, Hitselberger

argues, “the only option the trial court had was to order the sale of the marital

residence with the proceeds being split equally.

When reviewing an alleged property characterization error, we must

determine whether the trial court’s finding is supported by clear and convincing

evidence and whether the characterization error, if established, was an abuse of

discretion. Magness v. Magness, 241 S.W.3d 910, 912 (Tex. App.—Dallas 2007,

pet. denied). We must indulge every reasonable presumption in favor of the trial

court’s proper exercise of its discretion in dividing marital property. Sink v. Sink,

364 S.W.3d 340, 343 (Tex. App.—Dallas 2012, no pet.). We will reverse the ruling

–8– of the trial court only if the record demonstrates that the trial court clearly abused its

discretion, and the error materially affected the just and right division of the

community estate. Id.

When the burden of proof at trial is by clear and convincing evidence, we

apply a higher standard of legal and factual sufficiency review. Id. at 344. Clear

and convincing evidence is defined as that “measure or degree of proof that will

produce in the mind of the trier of fact a firm belief or conviction as to the truth of

the allegations sought to be established.” TEX. FAM. CODE ANN. § 101.007; Sink,

364 S.W.3d at 344. In reviewing the evidence for legal sufficiency, we look at all

the evidence in the light most favorable to the judgment to determine if the trier of

fact could reasonably have formed a firm belief or conviction that its finding was

true. See Moroch, 174 S.W.3d at 858. We must assume that the fact finder resolved

disputed facts in favor of its finding if a reasonable fact finder could do so. Id. In

reviewing the evidence for factual sufficiency, we must give due consideration to

evidence that the fact finder could reasonably have found to be clear and convincing

and then determine whether, based on the record, a fact finder could reasonably form

a firm conviction or belief that the allegations in the petition were proven. Sink, 364

S.W.3d at 344.

Bakos testified that he purchased the marital residence before the marriage

and deeded the residence to himself and Hitselberger during the marriage. Although

neither Bakos nor Hitselberger introduced copies of the purchase documents or the

–9– purported deed, the purchase and deed transactions are not disputed and each filed a

sworn inventory and appraisement listing the marital residence as community

property. While Hitselberger complains that she was entitled to her half of the

marital residence, 5 she does not dispute the ultimate equitable division of all assets

and debt allocation as part of the court’s efforts to enter an “essentially equal

[property] division,” awarding a total of $26,545 each to Bakos and Hitselberger.

Under these circumstances, we conclude the trial court did not abuse its discretion

in characterizing the marital residence as community property. See Sink, 364 S.W.3d

at 344; Magness, 241 S.W.3d at 912. We overrule Hitselberger’s second issue.

SPOUSAL MAINTENANCE

In her third issue, Hitselberger complains the trial court abused its discretion

in failing to award her spousal maintenance. Hitselberger asserts the evidence

showed that she is “unable to work as a result of her medical diagnoses.”

We review the trial court’s decision whether to award spousal maintenance

under an abuse of discretion standard. Tellez v. Tellez, 345 S.W.3d 689, 691 (Tex.

App.—Dallas 2011, no pet.). The purpose of spousal maintenance is to provide

temporary and rehabilitative support for a spouse whose ability to support herself

has eroded over time while engaged in homemaking activities and whose capital

5 We note there is no challenge as to the amounts allocated for the fair market value or the amounts assigned for the mortgage and HELOC debt deductions, which debts were assigned to Bakos in the final decree. –10– assets are insufficient to provide support. See Deltuva v. Deltuva, 113 S.W.3d 882,

888 (Tex. App.—Dallas 2003, no pet.). A trial court may exercise its discretion and

award spousal maintenance if the party seeking maintenance meets specific

eligibility requirements. See TEX. FAM. CODE ANN. § 8.051(2); Pickens v. Pickens,

62 S.W.3d 212, 214–15 (Tex. App.—Dallas 2001, pet. denied). When a divorce is

sought in a marriage lasting ten years or more, a spouse is eligible to seek spousal

maintenance if the spouse lacks sufficient property to meet minimum reasonable

needs and cannot support himself due to an incapacitating physical or mental

disability. See TEX. FAM. CODE ANN. § 8.051; Pickens, 62 S.W.3d at 215. Deciding

what the minimum reasonable needs are for a particular individual is a fact-specific

determination that should be made by the trial court on a case-by-case basis. In re

Hale, 975 S.W.2d 694, 698 (Tex. App.—Texarkana 1998, no pet.).

Intertwined with her argument that she should have received spousal

maintenance, Hitselberger asserts that the trial court, by awarding the marital

residence to Bakos, “further reduced [her] ability to financially support herself

following the divorce. Again, Hitselberger ignores the fact that the trial court entered

an “essentially equal [property] division” despite its characterization of the marital

residence as community property. Further, the record shows that, while Hitselberger

has been receiving disability payments since 2001 or 2002, she had also been

employed in various jobs and worked as a real estate agent since 2016.

Hitselberger’s own expert, Freele, testified he had “not determined that she’s

–11– disabled from working” but “just stated that she does not work.” Freele did not

remember whether Hitselberger obtained her real estate license. Finally, when asked

if it was his opinion that Hitselberger was permanently disabled and unable to work,

Freele testified he had “no idea” and had “not evaluated [Hitselberger] for that.”

Under these circumstances, we conclude the trial court did not err in making the fact-

specific determination that Hitselberger did not establish that she cannot support

herself due to an incapacitating physical or mental disability. See TEX. FAM. CODE

ANN. § 8.051; Pickens, 62 S.W.3d at 215; In re Hale, 975 S.W.2d at 698.

Accordingly, we determine the trial court did not abuse its discretion in refusing to

award spousal maintenance. See Tellez, 345 S.W.3d at 691. We overrule

Hitselberger’s third issue.

We affirm the trial court’s judgment.

/Bonnie Lee Goldstein/ BONNIE LEE GOLDSTEIN JUSTICE

210146F.P05

–12– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

SUZANNE HITSELBERGER, On Appeal from the 256th Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. DF-19-18280. No. 05-21-00146-CV V. Opinion delivered by Justice Goldstein. Justices Schenck and LOUIS BAKOS, Appellee Reichek participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellee LOUIS BAKOS recover his costs of this appeal from appellant SUZANNE HITSELBERGER.

Judgment entered November 7, 2022

–13–