in the Interest of L.M.C and E.H.C., Children ( 2015 )

AFFIRMED as Modified; Opinion Filed April 14, 2015.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-00872-CV
HENRY PHILIP CASTILLON, Appellant
V.
MICHELLE MISSY MORGAN, Appellee
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219-54113-2010
MEMORANDUM OPINION
Before Chief Justice Wright, Justice Myers, and Justice Evans
Opinion by Justice Myers
Henry Philip Castillon appeals from the trial court’s division of the parties’ estate in this
suit for dissolution of his marriage with Michelle Missy Morgan. Castillon brings three issues
contending the trial court erred by (1) finding the parties had an informal marriage before their
formal marriage; (2) characterizing certain property as community property instead of Castillon’s
separate property; and (3) failing to include Castillon’s recovery of $3,917 in tax payments in the
final decree. We modify the trial court’s judgment to delete the finding of informal marriage,
and we affirm the judgment as modified.
PRO SE PARTIES
Castillon is pro se before this Court. We liberally construe pro se pleadings and briefs.
Washington v. Bank of N.Y., 362 S.W.3d 853, 854 (Tex. App.—Dallas 2012, no pet.). However,
we hold pro se litigants to the same standards as licensed attorneys and require them to comply
with applicable laws and rules of procedure. Mansfield State Bank v. Cohn, 573 S.W.2d 181,
184–85 (Tex. 1978); Washington, 362 S.W.3d at 854. To do otherwise would give a pro se
litigant an unfair advantage over a litigant who is represented by counsel. Shull v. United Parcel
Serv., 4 S.W.3d 46, 53 (Tex. App.—San Antonio 1999, pet. denied).
BACKGROUND
Before April 2006, the parties were living together, jointly owned a house, and had a
child, but they were not married. According to Morgan, the parties agreed in April 2006 to be
married. On April 23, 2006, Castillon signed a purchase agreement for a house. Included in the
purchase agreement was a “Homebuyer Information Sheet,” which Castillon filled in stating his
“Spouses [sic] Full Name” was “Missy Morgan.” Castillon testified they never had an informal
marriage and that he wrote Morgan’s name on the Homebuyer Information Sheet because they
were engaged at the time and had “the intention of being married and to share—share the home
together.” The parties had a formal marriage ceremony on August 25, 2007.
In 2010, Morgan filed a petition for divorce, and Castillon later filed a counterpetition.
The parties agreed to the division of property for most items, but they could not reach an
agreement concerning the characterization or division of the house and of certain financial
accounts in Castillon’s name. In a trial before the court, Castillon testified that the house and the
financial accounts were his separate property. Morgan testified Castillon had contributed to the
accounts during the marriage. In a written summary of her testimony of the relief she requested,
which the trial court admitted as an exhibit, Morgan stated the accounts were community
property. The trial court determined that the parties had an informal marriage before their formal
marriage. The court divided the retirement and stock funds equally between the parties.
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STANDARD OF REVIEW
An appellate court reviews a trial court’s division of the community estate under an abuse
of discretion standard. Reisler v. Reisler, 439 S.W.3d 615, 619 (Tex. App.—Dallas 2014, no
pet.). The trial court is afforded broad discretion in dividing the community estate, and an
appellate court must indulge every reasonable presumption in favor of the trial court’s proper
exercise of its discretion. Id. A trial court does not abuse its discretion if there is some evidence
of a substantive and probative character to support the decision. Id. A trial court abuses its
discretion when it acts arbitrarily or unreasonably, without any reference to guiding rules or
principles. Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011). To determine whether the trial court
abused its discretion, an appellate court considers whether the trial court: (1) had sufficient
evidence upon which to exercise its discretion; and (2) erred in its exercise of that discretion.
Reisler, 439 S.W.3d at 619. When deciding whether the trial court abused its discretion, the
legal and factual sufficiency of the evidence are not independent grounds of reversible error but
constitute factors relevant to an appellate court’s assessment of whether the trial court abused its
discretion. Id.
The parties did not timely request findings of fact and conclusions of law, 1 and the trial
court did not make findings of fact and conclusions of law. When no findings of fact and
conclusions of law were timely requested or filed, it is implied that the trial court made all
findings necessary to support its judgment. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.
1990) (per curiam); Beck v. Walker, 154 S.W.3d 895, 902 (Tex. App.—Dallas 2005, no pet.).
1
A party must request findings of fact and conclusions of law within twenty days after the judgment is signed. TEX. FAM. CODE ANN. §
6.711 (West 2006); TEX. R. CIV. P. 296. In this case, the trial court signed the judgment on May 26, 2013. The twentieth day after May 26, 2013
was June 15, 2013, which was a Saturday. Therefore, Castillon’s request was due the following Monday, June 17, 2013. See TEX. R. CIV. P. 4.
Castillon filed his request on June 18, 2013, which was not timely. Therefore the trial court was not required to make findings of fact and
conclusions of law. See Williams v. Kaufman, 275 S.W.3d 637, 642 (Tex. App.—Beaumont 2009, pet. denied).
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The judgment will be upheld on any legal theory that finds support in the evidence. Niskar v.
Niskar, 136 S.W.3d 749, 754 (Tex. App.—Dallas 2004, no pet.).
We review the implied findings of fact for legal and factual sufficiency, and we review
the trial court’s implied legal conclusions de novo. In re M.P.B., 257 S.W.3d 804, 808 (Tex.
App.—Dallas 2008, no pet.). When addressing a legal sufficiency challenge, we view the
evidence in the light most favorable to the challenged finding, crediting favorable evidence if a
reasonable fact-finder could and disregarding contrary evidence unless a reasonable fact-finder
could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Anything more than a
scintilla of evidence is legally sufficient to support the finding, but evidence that amounts to no
more than a scintilla is legally insufficient to support a finding. Wilson, 168 S.W.3d at 813;
Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.
1998). “More than a scintilla of evidence exists when the evidence rises to a level that would
enable reasonable, fair-minded persons to differ in their conclusions.” King Ranch, Inc. v.
Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Merrell Dow Pharms., Inc. v. Havner, 953
S.W.2d 706, 711 (Tex. 1997)). “Less than a scintilla of evidence exists when the evidence is ‘so
weak as to do no more than create a mere surmise or suspicion’ of a fact.” Id. (quoting Kindred
v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)); see also Wilson, 168 S.W.3d at 813
(“evidence does not rise above a scintilla (and thus is legally insufficient) if jurors would have to
guess whether a vital fact exists.”). In a factual sufficiency review, we view all the evidence in a
neutral light and set aside the finding only if the finding is so contrary to the overwhelming
weight of the evidence such that the finding is clearly wrong and unjust. Cain v. Bain, 709
S.W.2d 175, 176 (Tex. 1986) (per curiam); Morris v. Wells Fargo Bank, N.A., 334 S.W.3d 838,
842 (Tex. App.—Dallas 2011, no pet.).
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In a divorce decree, the trial court shall order a division of the parties’ estate in a manner
that the trial court deems just and right, having due regard for the rights of each party. TEX.
FAM. CODE ANN. § 7.001 (West 2006). The property division need not be equal, and the trial
court may consider many factors when exercising its broad discretion to divide the community
estate. Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981); Reisler, 439 S.W.3d at 620. The party
complaining of the trial court’s division of the property has the burden of showing from the
evidence in the record that the trial court’s division of the community estate was so unjust and
unfair as to constitute an abuse of discretion. Reisler, 439 S.W.3d at 620–21.
INFORMAL MARRIAGE
In his first issue, Castillon contends the trial court erred by finding in the judgment that
“the parties were informally married prior to their formal marriage on August 25, 2007.”
Castillon asks that we correct the judgment.
Section 2.401 of the family code provides that a party may prove an informal marriage
“by evidence that . . . the man and woman agreed to be married and after the agreement they
lived together in this state as husband and wife and there represented to others that they were
married.” TEX. FAM. CODE ANN. § 2.401(a)(2) (West 2006). Whether an informal marriage
exists is a question of fact, and the party seeking to establish the existence of the marriage has
the burden of proving the three elements of an informal marriage. Nguyen v. Nguyen, 355
S.W.3d 82, 88 (Tex. App.—Houston [1st Dist.] 2011, pet. denied).
Castillon asserts the evidence was legally insufficient to support the trial court’s
determination that the parties held themselves out to others as married. The element of the
couple holding themselves out as married requires more than occasional references to each other
as “wife” and “husband.” Smith v. Deneve, 285 S.W.3d 904, 910 (Tex. App.—Dallas 2009, no
pet.). “The couple’s reputation in the community as being married is a significant factor in
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determining the holding out element.” Id. (quoting Danna v. Danna, No. 05-05-00472-CV, 2006
WL 785621, at *1 (Tex. App.—Dallas Mar. 29, 2006, no pet.) (mem op.)).
In this case, Morgan testified the couple held itself out to others as married in 2006
because their joint car insurance showed she was his spouse, and some life insurance policies
listed her as the spouse. She also testified, “We represented ourselves as married,” but she did
not state to whom or how frequently they made the representation. The record contains evidence
indicating the parties were not informally married, including evidence that before their formal
marriage, Morgan used her maiden name, she did not have or wear a wedding ring, she received
an engagement ring in February 2007 (ten months after they supposedly entered into an informal
marriage), and she filed her taxes as a single person in 2006 and 2007. Castillon’s sister testified
she never saw them introduce themselves as married before their formal marriage, but she stated
she saw them only a couple of times a year. Castillon testified he wrote Morgan’s name as his
spouse on the Homebuyer Information Sheet because he had “the intention of being married and
to share—share the home together.”
In Smith v. Deneve, we concluded there was no more than a scintilla of evidence of the
element of the couple representing to others that they were married when the evidence showed
the woman accepted a ring, they introduced each other as husband and wife and they did not
object when others introduced them as husband and wife (but the record did not show whether
these introductions were common or rare), and they were listed as husband and wife on certain
contracts. Smith, 285 S.W.3d at 909–10. The parties did not present any evidence that they had
a reputation in the community for being married. Id. We stated, “It would be sheer speculation
for us to infer from Smith’s evidence that he and Deneve sufficiently held themselves out to the
community as married to satisfy the third element.” Id.
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In this case, Morgan did not wear a wedding ring. She testified that she and Castillon
“represented ourselves as married,” but she presented no evidence of the frequency of this
representation. She testified that they were listed as husband and wife on life and auto insurance
policies, and the record shows Castillon listed her as his spouse on the Homebuyer Information
Sheet. However, there was no evidence that anyone in the community saw the insurance forms
or the Homebuyer Information Sheet. Morgan presented no evidence of their reputation in the
community for being married.
Following our decision in Smith, we must conclude there was not more than a scintilla of
evidence that Morgan and Castillon had an informal marriage. See id. at 909–10; see also Danna
v. Danna, No. 05-05-00472-CV, 2006 WL 785621, at *1–2 (Tex. App.—Dallas Mar. 29, 2006,
no pet.) (no more than a scintilla of evidence of informal marriage when evidence showed couple
introduced themselves as married four times in two years, man gave woman a Valentine card that
read “For My Wife,” and AARP form listed woman as wife). Accordingly, the evidence was
legally insufficient, and the trial court erred by finding the parties were informally married
before their formal marriage on August 25, 2007. We sustain Castillon’s first issue.
FINANCIAL ACCOUNTS
In his second issue, Castillon contends the trial court erred by characterizing as
community property the stock and retirement accounts in his name. Castillon asserted the
investments in those accounts were made before the parties married and that they were entirely
his separate property. Castillon offered the account statements prepared by the financial
institutions into evidence to prove the value of the accounts at the time of the marriage and the
time of the trial, but Morgan objected to the account statements as hearsay, and the trial court
sustained the objection. Castillon then testified to the accounts’ value on the date of their formal
marriage and at the time of the trial. Castillon asserted the entire amounts in the accounts were
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separate property, and he made no attempt to isolate any separate property from any community
property that might be in the accounts.
Property possessed by either spouse during or on the dissolution of marriage is presumed
to be community property. TEX. FAM. CODE ANN. § 3.003(a) (West 2006). Property owned
before marriage, or acquired during marriage by gift, devise, or descent, is separate property. Id.
§ 3.001. The degree of proof necessary to establish that property is separate property is clear and
convincing evidence. Id. § 3.003(b). The party seeking to establish the separate character of
property must trace and clearly identify the property in question as separate by clear and
convincing evidence. Pearson v. Pilgrim, 332 S.W.3d 361, 363 (Tex. 2011).
When the burden of proof is clear and convincing evidence, we review the legal
sufficiency of the evidence by considering all the evidence in the light most favorable to the
finding and determining whether a reasonable juror could have formed a firm belief or
conviction that the finding was true. See In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We
assume the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder
could do so, and we disregard all contrary evidence that a reasonable fact finder could have
disbelieved or found to be incredible. Id.
In reviewing challenges to the factual sufficiency of the evidence, we give due
consideration to evidence that the factfinder could reasonably have found to be clear and
convincing. Id. We determine whether the evidence is such that the trier of fact could
reasonably form a firm belief or conviction as to the truth of the allegations sought to be
established. Id. When there is disputed evidence, we must consider whether it is such that a
reasonable fact finder could not have reconciled the disputed evidence in favor of its finding. Id.
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Admission of the Account Statements
To determine whether the trial court erred in its characterization of the accounts, we must
first decide Castillon’s contention that the trial court erred by sustaining Morgan’s hearsay
objections to the account statements created by the financial institutions for the accounts,
Respondent’s Exhibits 9, 10, 71, 72, 73, and 74. Castillon sought admission of the account
statements to establish the value of the accounts near the date of the marriage and the date of
trial.
Evidentiary rulings are committed to the trial court’s sound discretion. Bay Area
Healthcare Group, Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007). We review a trial
court’s decision to admit or exclude evidence for an abuse of that discretion. In re J.P.B., 180
S.W.3d 570, 575 (Tex. 2005). A trial court abuses its discretion when it acts without reference to
any guiding rules and principles. U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex.
2012). We must uphold the trial court’s evidentiary ruling if there is any legitimate basis for the
ruling. Enbridge Pipelines (E. Tex.) L.P. v. Avinger Timber, LLC, 386 S.W.3d 256, 264 (Tex.
2012) (quoting Owens–Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998)).
“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” TEX. R. EVID.
801(d) (amended Apr. 1, 2015). 2 Hearsay is not admissible in evidence unless a rule or statute
authorizes its admission. TEX. R. EVID. 802. Records of a regularly conducted activity are
hearsay, but they are admissible in evidence if a qualified witness testifies (1) the documents
were made and kept in the course of a regularly conducted business activity, (2) it was the
regular practice of the business activity to make the documents, (3) the documents were made at
or near the time of the event that it recorded, and (4) the documents were made by a person with
2
The Texas Rules of Evidence were amended effective April 1, 2015. The amendments were part of a restyling project and changed the
wording, although not the substance, of the rules cited in this opinion. However, we apply the version of the rules in place at the time of trial.
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knowledge who was acting in the regular course of business. TEX. R. EVID. 803(6); Powell v.
Vavro, McDonald, & Assocs., L.L.C., 136 S.W.3d 762, 765 (Tex. App.—Dallas 2004, no pet.).
The witness laying the predicate for admission of the records need not be the creator of the
evidence or have personal knowledge of the records’ contents; but the witness must have
personal knowledge of the manner in which the records were prepared. Riddle v. Unifund CCR
Partners, 298 S.W.3d 780, 783 (Tex. App.—El Paso 2009, no pet.). Documents received from
another entity are not admissible under rule 803(6) if the witness is not qualified to testify about
the entity’s record keeping. Id.; Powell v. Vavro, McDonald, & Assocs., L.L.C., 136 S.W.3d
762, 765 (Tex. App.—Dallas 2004, no pet.). In this case, Castillon received the documents from
other entities, the financial companies, but he presented no evidence that he had personal
knowledge of the manner in which the financial companies prepared the account statements.
However, courts have held that documents received by a party from another entity may
constitute admissible business records upon proof by the party that (1) the records are
incorporated and kept in the course of the party’s business, (2) the party typically relies upon the
accuracy of the records’ contents, and (3) the circumstances otherwise indicate the documents’
trustworthiness. Nat’l Health Resources Corp. v. TBF Fin. LLC, 429 S.W.3d 125, 130 (Tex.
App.—Dallas 2014, no pet.); Simien v. Unifund CCR Partners, 321 S.W.3d 235, 240–41 (Tex.
App.—Houston [1st Dist.] 2010, no pet.).
Even if the trial court erred by denying admission of the exhibits, we cannot reverse
unless the record shows the error probably caused the rendition of an improper judgment. TEX.
R. APP. P. 44.1(a)(1). Castillon testified that Respondent’s Exhibit 10 was account statements
for an individual retirement account containing funds rolled over from other 401K retirement
accounts, Respondent’s Exhibits 71 through 74. The account statements for Respondent’s
Exhibit 73 and 74 predate the marriage; the account statements in Respondent’s Exhibits 71 and
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72 include periods after the parties’ marriage. Respondent’s Exhibit 9 is account statements
from a retirement savings plan from August 1, 2007 through February 28, 2013. Statements for
each of the accounts for periods after the marriage show cash dividends, interest, or “investment
income” was paid on the accounts during the marriage. These payments constituted community
property. See Fischer-Stoker v. Stoker, 174 S.W.3d 272, 279 (Tex. App.—Houston [1st Dist.]
2005, pet. denied). Castillon had the burden to trace the separate-property portions of the
accounts and to isolate them from the community property commingled in the accounts. He
made no attempt to do so. Instead, Castillon testified, contrary to the account statements, that the
only growth in the accounts was due to appreciation, not interest. Because the excluded exhibits
did not support Castillon’s assertion that the accounts consisted solely of his separate property,
we conclude the denial of admission of the account statements did not probably cause the
rendition of an improper judgment. Accordingly, any error from the denial of admission of the
account statements is not reversible.
Testimony about Characterization of the Accounts
Castillon testified that after the marriage, he made no further contributions to the
financial accounts. He testified to the value of each fund on or around August 25, 2007 and to
the current value of each fund. He testified that any growth in the value of the funds was due to
“appreciation” and not from payments of interest. Morgan testified that Castillon contributed to
the funds during the marriage.
The trial court, as the trier of fact, was the judge of the witnesses’ credibility and the
weight of their testimony. The court could have concluded that Castillon’s testimony,
contradicted by Morgan’s testimony, was insufficient to provide a firm belief or conviction that
the accounts contained only separate property.
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We conclude Castillon has failed to show the trial court erred by characterizing the
financial accounts as community property. We overrule Castillon’s second issue.
TAX REIMBURSEMENT
In his third issue, Castillon contends the trial court erred by not including in the judgment
the court’s ruling that Morgan pay half of the $7,834 of taxes due from the early withdrawal
from a 401K to pay the parties’ attorney’s fees.
At the conclusion of the trial, the court issued a memorandum detailing its decision. The
court listed the division of assets and liabilities in exhibits to the memorandum. In one of those
exhibits, the court stated that Morgan would pay half the $7,834 of taxes due as a result of the
early withdrawal of a 401K account. In the final judgment, the trial court did not order Morgan
to pay half of those taxes. Castillon filed a motion for judgment nunc pro tunc and to reform the
judgment complaining of the omission, but that motion was filed thirty-one days after the
judgment was signed, the trial court had lost plenary power, and the court declined to rule on the
motion. See TEX. R. CIV. P. 329b(d) (trial court has plenary jurisdiction for thirty days after
judgment is signed).
On appeal, Castillon argues the trial court erred by failing to include in the judgment the
requirement that Morgan pay half the taxes. Castillon cites no authority in support of his
argument. Rule of appellate procedure 38.1(i) states that a party’s arguments must contain
“appropriate citations to authorities.” TEX. R. APP. P. 38.1(i). Morgan asserts in her appellee’s
brief that Castillon’s failure to cite any authority waived the issue on appeal. Castillon filed a
reply brief but again failed to include any citations to authorities in support of this issue. We
conclude this issue is not properly briefed and presents nothing for review. See In re B.A.B., 124
S.W.3d 417, 420 (Tex. App.—Dallas 2004, no pet.). We overrule Castillon’s third issue.
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CONCLUSION
We modify the judgment to delete the trial court’s finding that the parties had an informal
marriage prior to their formal marriage on August 25, 2007, and we affirm the trial court’s
judgment as modified.
/Lana Myers/
LANA MYERS
130872F.P05 JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
Henry Philip Castillon, Appellant On Appeal from the 219th Judicial District
Court, Collin County, Texas
No. 05-13-00872-CV V. Trial Court Cause No. 219-54113-2010.
Opinion delivered by Justice Myers. Chief
Michelle Missy Morgan, Appellee Justice Wright and Justice Evans
participating.
In accordance with this Court’s opinion of this date, we MODIFY the judgment of the
trial court by deleting the statement, “The Court finds the parties were informally married prior
to their formal marriage on August 25, 2007,” and we AFFIRM the judgment of the trial court
as modified.
It is ORDERED that appellee Michelle Missy Morgan recover her costs of this appeal
from appellant Henry Philip Castillon.
Judgment entered this 14th day of April, 2015.
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