Larisa Jackson v. Vagram Saradjian ( 2013 )

Opinion issued August 29, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-11-00128-CV
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LARISA JACKSON, Appellant
V.
VAGRAM SARADJIAN, Appellee
On Appeal from the 245th District Court
Harris County, Texas
Trial Court Case No. 2009-11459
MEMORANDUM OPINION ON REHEARING
We grant Larisa Jackson’s motion for rehearing and withdraw our June 21,
2012 opinion, vacate our judgment, and issue this opinion and the related judgment
in their stead.
This is an appeal from the granting of a final decree of divorce. For the
reasons set forth below, we modify the trial court’s March 4, 2011 judgment and,
as modified, we affirm.
Background
After a trial presided over by the trial judge, the Honorable Annette Kuntz,
on November 22, 2010 the associate judge, the Honorable Roy Moore, signed a
final decree of divorce. The decree was approved as to form by the lawyers for
both appellant Larisa Jackson and appellee Vagram Saradjian. At the time he
signed the decree, Judge Moore had been elected as judge of the 245th District
Court of Harris County, but his term as a district judge did not begin until January
1, 2011. On December 10, 2010, Jackson requested findings of fact and
conclusions of law, which District Court Judge Moore signed on January 13, 2011.
On January 3, 2011, Jackson filed a motion to declare the November 22,
2010 divorce decree void because an associate judge has no authority to render a
final decree. Jackson in her motion stated that the “order should be set aside as
void and a new trial should be granted.” On February 21, 2011, Judge Moore, at
that time the district judge, ruled on the motion and held that the November 22,
2010 decree was a final decree and the court had lost plenary power thirty days
after it was signed, i.e., December 22, 2010. Judge Moore held that the court had
no jurisdiction to consider the January 3, 2011 motion, but he also held that a
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judgment nunc pro tunc should be signed in the interest of justice. On March 4,
2011, Judge Moore signed a “Final Decree of Divorce Nunc Pro Tunc.” No
postjudgment motions challenging the merits of either the November 22, 2010 or
March 4, 2011 decrees were filed.
Jackson brings five issues on appeal. The first three issues assail the
November 22, 2010 decree: (1) whether an associate judge has the authority to sign
a final divorce decree; (2) whether the trial court erred in not declaring the
November 22, 2010 decree void; and (3) whether the trial court erred in rendering
judgment nunc pro tunc. In the remaining two issues, Jackson contends (1) a new
trial is necessary because of alleged variances between the oral rendition at trial
and the written decree and because of other alleged errors and (2) the trial court
erred in awarding $300,000 in missing funds to Jackson as a part of the division of
the community estate.
Discussion
This Court has previously held that the Family Code does not generally
authorize an associate judge to render a final divorce decree. See Robles v. Robles,
965 S.W.2d 605, 609 n.4 (Tex. App.—Houston [1st Dist.] 1998, pet. denied); see
also TEX. FAM. CODE ANN. § 201.007 (West 2008) (listing powers of associate
judge). Even in cases referred to the associate judge, Family Code section 201.013
provides, with an exception not applicable in this case, that a judgment of the
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associate judge becomes the judgment of the referring court only on the referring
court’s signing the proposed judgment. TEX. FAM. CODE ANN. § 201.013(b) (West
2008). There is no referral order in this case, so the November 22, 2010 decree
signed by the associate judge does not even have the standing of a section
201.013(b) proposed judgment.
Because the November 22, 2010 decree was not signed by the district judge,
we hold that it has no legal effect as a judgment. As a result, the trial court did not
lose plenary power on December 22, 2010, as no valid judgment had been signed.
See TEX. R. CIV. P. 329b(d) (trial court retains plenary power over its judgment for
thirty days if no proper postjudgment motion is timely filed). The trial court
signed a final decree on March 4, 2011, and even though it is improperly described
in its caption as a “Final Decree of Divorce Nunc Pro Tunc,” it is nonetheless the
trial court’s final judgment. Accordingly, we sustain Jackson’s first two issues and
hold that the associate judge had no authority to sign a final divorce decree and the
trial court erred in treating the November 22, 2010 decree as a final judgment over
which the court had lost plenary power.
The first two issues, however, are moot because the trial court rendered a
final decree on March 4, 2011. Jackson argues in issue three that the decree is an
improper judgment nunc pro tunc. We disagree. A judgment nunc pro tunc is only
proper if the trial court is correcting clerical error in its judgment and plenary
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power over the judgment has lapsed. See Andrews v. Koch, 702 S.W.2d 584, 585
(Tex. 1986). In this case, no final decree had been rendered before March 4, 2011,
so the description of the March 4, 2011 decree as being rendered nunc pro tunc
was error only to the extent that the decree related back in time to the November
22, 2010 decree to adjudicate any of the parties’ rights and responsibilities.
Accordingly, we sustain issue three only to the extent of modifying the March 4,
2011 decree to delete the words “nunc pro tunc.” See TEX. R. APP. P. 43.2(b).
In her fourth issue, Jackson contends that a new trial is necessary because of
alleged variances between the oral rendition at trial and the written decree, as well
as other alleged errors. Jackson admits in her appellate brief that the problems she
raises are present in both the November 22, 2010 and March 4, 2011 decrees.
Jackson’s lawyer approved the November 22, 2010 decree as to form, and she did
not file a postjudgment motion in the trial court raising any of these alleged errors
in the decree or arguing that they constitute fundamental error. Accordingly, we
hold that she has not preserved her complaints for appellate review. See TEX. R.
APP. P. 33.1(a)(1) (requiring preservation of error). We overrule Jackson’s fourth
issue.
In her fifth issue, Jackson claims the trial court erred in awarding $300,000
in missing funds to Jackson as a part of the division of the community estate,
because there is no evidence to support the award.
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In family law cases, we review the trial court’s division of property for an
abuse of discretion. Grayson v. Grayson, 103 S.W.3d 559, 561 (Tex. App.—San
Antonio 2003, no pet.); see also Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex.
1998) (recognizing trial court is afforded wide discretion in dividing marital
estate). Under an abuse of discretion standard, legal and factual insufficiency are
not independent grounds of error, but rather are relevant factors in assessing
whether the trial court abused its discretion. Stamper v. Knox, 254 S.W.3d 537,
542 (Tex. App.—Houston [1st Dist.] 2008, no pet.). The trial court does not abuse
its discretion as long as some evidence of a substantive and probative character
exists to support the trial court’s decision. Id.
We consider favorable evidence if a reasonable fact finder could, and we
disregard contrary evidence unless a reasonable fact finder could not. Id. at 542.
With regard to whether the trial court abused its discretion, we determine whether,
based on the elicited evidence, the trial court made a reasonable decision. Id. The
trial court, as fact finder, is the “sole judge of the credibility of the witnesses and
the weight to be given their testimony.” McGalliard v. Kuhlmann, 722 S.W.2d
694, 696 (Tex. 1986). The trial court may believe one witness, disbelieve others,
and resolve inconsistencies in a witness’s testimony. Id. at 697.
“In a decree of divorce or annulment, the court shall order a division of the
estate of the parties in a manner that the court deems just and right, having due
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regard for the rights of each party and any children of the marriage.” TEX. FAM.
CODE ANN. § 7.001 (West 2006). It is the responsibility of the parties to the suit to
produce evidence of the value of various properties to provide the trial judge with a
basis on which to divide them. Wallace v. Wallace, 623 S.W.2d 723, 725 (Tex.
Civ. App.—Houston [1st Dist.] 1981, writ dism’d). The party complaining of the
trial court’s division of the property must demonstrate that the division is so unjust
and unfair as to constitute an abuse of discretion. Id.
The trial court found that Jackson withdrew $300,000 from the marital estate
and failed to account for it. The trial court awarded Jackson the missing $300,000.
To offset this award, it assessed approximately $100,000 in credit card debt against
her. It also awarded Saradjian his retirement account, valued at approximately
$100,000.
The trial court heard some testimony that Jackson withdrew at least
$300,000 from the marital estate, and that she failed to account for it at the time of
the divorce. Jackson conceded that she withdrew $209,0000 from a joint account
and put it in her individual bank account. She testified that the money was later
transferred to an investment account in her name. However, she testified that
Saradjian was in charge of the investment account and that she no longer knew
where the money was and had none of it left. On the other hand, Saradjian
testified that once Jackson had taken the money, he never had access to Jackson’s
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investment account or individual bank account. He never received any part of the
$209,000, and he believed that Jackson still had it.
Jackson also testified that she removed Saradjian as an authorized user on a
bank account that she held in the name of Schlern International Music Festival.
She testified that after removing his name, she withdrew about $70,000 in cash
from the account in $9,500 increments. She testified that she gave most of the
money to Saradjian. However, Saradjian testified that he never received this
money. The cash was not accounted for at trial.
Saradjian also testified that Jackson had obtained credit cards in his name
without his knowledge. He testified that Jackson charged more than $70,000 on
these cards without his knowledge after Saradjian and Jackson had separated. He
testified that he had no access to those credit cards, and did not receive any
benefits from those charges. Jackson testified that she used the credit cards to
invest with her Ameritrade account and to pay for living expenses for her and
Saradjian.
Because the trial court heard conflicting evidence about whether Jackson
had withdrawn at least $300,000 from the marital estate, it was free to weigh the
credibility of the witnesses and determine that Jackson had failed to account for
some or all of this money in connection with the marital estate. Kuhlmann, 722
S.W.2d at 696–97. Hence, the evidence is legally and factually sufficient to
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support the trial court’s division of the marital estate. See Stamper, 254 S.W.3d at
542; Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989).
Conclusion
We modify the trial court’s March 4, 2011 final decree to delete the words
“Nunc Pro Tunc” from the caption “Final Decree of Divorce Nunc Pro Tunc.” As
so modified, we affirm. See TEX. R. APP. P. 43.2(b).
Jim Sharp
Justice
Panel consists of Justices Keyes, Bland, and Sharp.
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