Donald P. Prentiss, Jr. v. Adrienne L. Prentiss ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00476-CV
DONALD P. PRENTISS, JR. APPELLANT
V.
ADRIENNE L. PRENTISS APPELLEE
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FROM THE 360TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. Introduction
Pro se appellant Donald P. Prentiss, Jr. appeals the trial court’s final
divorce decree. In three issues, Donald contends that the trial court abused its
discretion by awarding temporary spousal support to Appellee Adrienne L.
Prentiss, by increasing the amount of temporary spousal support from $1,000 to
1
See Tex. R. App. P. 47.4.
$3,500, and by unequally dividing the parties’ community property without having
sufficient information to do so. We affirm.
II. Background
Donald and Adrienne are both physicians. They were married in 1992 and
have three children together.
Donald filed an original petition for divorce on May 30, 2007. Although the
appellate record does not contain a copy of the order awarding temporary
spousal support to Adrienne, the record does contain a May 15, 2008
handwritten associate judge’s order that reduced Donald’s monthly obligation to
pay temporary spousal support from $3,500 to $1,000. The subsequent
temporary order is also not in the appellate record, but the associate judge
apparently increased the temporary spousal support back to $3,500 per month
beginning June 1, 2009. The trial court also signed further temporary orders in
February 2010 that, among other things, continued the $3,500 in monthly
temporary spousal support through trial.
The case was tried to the court in May 2010, and the trial court heard
testimony from Donald, Adrienne, and Velma Wilson.2 Donald testified that he
filed for divorce and alleged adultery after he discovered a series of e-mails
between Adrienne and a male friend. Wilson testified that Donald was physically
abusive toward Adrienne and that he did not provide Adrienne and their children
2
Wilson is Adrienne’s mother.
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with sufficient financial support during their marriage, causing her to loan
Adrienne money to cover household expenses. In addition, the trial court heard
testimony and received exhibits establishing that Donald expended
approximately $120,000 of community funds in the eighteen months before he
filed for divorce, that Donald and Adrienne were living in separate bedrooms of
the family home during that time, and that Donald expended another
approximately $140,000 during the pendency of the divorce proceedings.
Donald testified that the $120,000 expended before he filed for divorce was to
complete the build-out of his new medical office, that many of his post-filing
expenses were for child support and temporary spousal support, and that his
monthly expenses (including child and spousal support) exceeded his income by
approximately $7,500.
The trial court signed a final decree of divorce on November 29, 2010.
That judgment divided the parties’ marital estate and included a money judgment
against Donald for $83,663 to equalize the property division and for $61,000 in
unpaid child and spousal support. This appeal followed.
III. Standard of Review
In family law cases, the traditional sufficiency standards of review overlap
with the abuse of discretion standard of review; therefore, legal and factual
insufficiency are not independent grounds of error but are relevant factors in our
assessment of whether the trial court abused its discretion. Watson v. Watson,
286 S.W.3d 519, 523 (Tex. App.—Fort Worth 2009, no pet.). To determine
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whether there has been an abuse of discretion because the evidence is legally or
factually insufficient to support the trial court’s decision, we must determine
whether the trial court had sufficient evidence upon which to exercise its
discretion and whether the trial court erred in its application of that discretion. Id.
at 522–23. The legal and factual sufficiency standards of review are well
established. See Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651
(Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005);
Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert.
denied, 526 U.S. 1040 (1999); Pool v. Ford Motor Co., 715 S.W.2d 629, 635
(Tex. 1986) (op. on reh’g); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).
In a non-jury trial, when no findings of fact or conclusions of law are filed or
requested, we must presume that the trial court made all the necessary findings
to support its judgment. Pharo v. Chambers Cnty., 922 S.W.2d 945, 948 (Tex.
1996); Byrnes v. Byrnes, 19 S.W.3d 556, 561 (Tex. App.—Fort Worth 2000, no
pet.). Consequently, if the trial court’s implied findings are supported by the
evidence, we must uphold its judgment on any theory of law applicable to the
case. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).
IV. Temporary Spousal Support
In his first and second issues, Donald contends that the trial court erred by
ordering him to pay temporary spousal support to Adrienne and by later
increasing the amount of temporary spousal support from $1,000 to $3,500.
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A trial court has discretion in entering temporary orders for spousal support
while a divorce proceeding is pending, and we review the temporary order for
support for an abuse of discretion. Barnett v. Barnett, No. 02-04-00259-CV,
2005 WL 3244278, at *2 (Tex. App.—Fort Worth Dec. 1, 2005, no pet.) (mem.
op.) (citing Zorilla v. Wahid, 83 S.W.3d 247, 255 (Tex. App.—Corpus Christi
2002, no pet.), disapproved on other grounds by Iliff v. Iliff, 339 S.W.3d 74, 83
n.8 (Tex. 2011)). However, ―a record sufficient to determine whether an abuse of
discretion has occurred must be provided to the appellate court.‖ Id. (citing
Garduno v. Garduno, 760 S.W.2d 735, 742 (Tex. App.—Corpus Christi 1988, no
writ)).
The record in this case does not include a reporter’s record from, or any
exhibits or affidavits offered during, the 2007 and 2008 hearings that resulted in
the orders requiring Donald’s payment of temporary spousal support to Adrienne.
For this reason, we are not able to review the information that formed the basis
for the trial court’s decisions to award Adrienne temporary spousal support or to
later increase the monthly amount. Throughout his brief, Donald cites to
testimony from the final trial, but the evidence from the 2010 trial is not beneficial
to our review because we are still unable to determine what formed the basis of
the trial court’s decisions to award temporary spousal support in 2007 and 2008.
See id. (stating testimony from trial did not support interlocutory decision to
award and later increase temporary spousal support). Thus, Donald cannot
show that the trial court abused its discretion by awarding Adrienne temporary
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spousal support or by later changing the amount of the monthly temporary
spousal support obligation, and we therefore overrule his first and second issues.
See id. (holding appellant could not show abuse of discretion because appellate
record did not contain hearing transcript or exhibits from temporary spousal
support hearings).
V. Division of Marital Property
In his third issue, Donald contends that the trial court’s division of
community property was not equitable and just because the trial court did not
have sufficient information available to exercise its discretion.
A. Applicable Law
A trial judge is charged with dividing the community estate in a ―just and
right‖ manner, considering the rights of both parties. Tex. Fam. Code Ann.
§ 7.001 (West 2006); Watson, 286 S.W.3d at 522. The court has broad
discretion in making a just and right division, and absent a clear abuse of
discretion, we will not disturb that division. Jacobs v. Jacobs, 687 S.W.2d 731,
733 (Tex. 1985); Boyd v. Boyd, 131 S.W.3d 605, 610 (Tex. App.—Fort Worth
2004, no pet.).
Community property does not have to be divided equally, but the division
must be equitable. Kimsey v. Kimsey, 965 S.W.2d 690, 704 (Tex. App.—El Paso
1998, pet. denied). The trial court may consider the following non-exclusive
factors, among others, in determining whether the division of the community
estate is equitable: (1) the spouse’s capacities and abilities; (2) education; (3) the
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relative financial conditions and obligations of the parties; (4) size of the separate
estates; (5) the nature of the property; (6) disparities in earning capacities and
income; (7) fault of the breakup of the marriage; and (8) any wasting of the
community assets by one of the spouses. Murff v. Murff, 615 S.W.2d 696, 699
(Tex. 1981). In determining whether to disproportionately divide the community
estate, the trial court may consider a spouse’s dissipation of the community
estate and any misuse of community property. Vannerson v. Vannerson, 857
S.W.2d 659, 669 (Tex. App.—Houston [1st Dist.] 1993, writ denied). 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.).
B. Discussion
Donald contends that the trial court improperly considered or failed to
consider several items in making its community property distribution, and he lists
the items in his brief. He first argues that the trial court did not have Adrienne’s
2008 and 2009 personal and corporate tax returns, Adrienne’s amended 2007
personal and corporate tax returns, or any of Adrienne’s bank records because
Adrienne failed to produce them in discovery. In that regard, the record contains
a motion to compel filed by Donald’s counsel on May 11, 2009. According to the
fiat on the last page of the motion to compel, the trial court scheduled a
telephone hearing on the motion on May 29, 2009. However, the appellate
record does not contain an order granting or denying the motion to compel, there
is no reporter’s record from the telephonic hearing, and Donald concedes in his
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brief that the trial court did not rule on the motion to compel. Moreover, Donald
did not alert the trial court on the record during the trial that there were any
outstanding issues concerning Adrienne’s production of documents in discovery.
Thus, to the extent Donald contends that the trial court abused its discretion by
failing to require Adrienne’s production of documents in discovery, he has not
shown that the trial court abused its discretion by failing to require the production
of any additional documents. See U. Lawrence Boze’ & Assocs., P.C. v. Harris
Cnty. Appraisal Dist., No. 01-10-00016-CV, 2011 WL 3524209, at *13 (Tex.
App.—Houston [1st Dist.] Aug. 11, 2011, no pet.) (mem. op.) (holding party failed
to preserve for appellate review complaints concerning other party’s discovery
conduct by failing to obtain rulings on discovery issues).
To the extent Donald contends the trial court’s division of community
property was an abuse of discretion because the trial court did not have
Adrienne’s amended 2007 tax return, 2008 or 2009 tax returns, or bank records
at trial, Donald has not shown that the trial court needed that information in order
to properly exercise its discretion. We first note that Donald’s trial counsel cross-
examined Adrienne concerning her original 2007 tax return, her 2004 through
2006 tax returns, the approximate $35,000 to $40,000 balance in her IRA, and
her monthly IRA deposits. In addition, Donald did not complain at trial that he did
not have access to Adrienne’s amended 2007 tax return or her 2008 and 2009
tax returns. Moreover, the trial court questioned Donald’s counsel about the
relevance of Adrienne’s income from prior years, stated that it did not intend to
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award alimony, and said that it intended to split the community estate ―50/50‖
before accounting for Donald’s expenditure of community funds. The court
further stated that both parties had ―very, very good professional degrees‖ and
that they both needed to and can make more money. Thus, the trial court
considered both Donald’s and Adrienne’s income when dividing the community
estate and observed that neither party was earning what they had the capacity to
earn, and Donald has not shown that the trial court also needed Adrienne’s
amended 2007 tax return, her 2008 and 2009 tax returns, or her bank records to
appropriately exercise its discretion when dividing the community estate. See
generally Ayala v. Ayala, No. 01-09-00785-CV, 2011 WL 2930311, at *8–9 (Tex.
App.—Houston [1st Dist.] July 21, 2011, no pet.) (mem. op.) (holding trial court
had sufficient information to divide marital estate despite lack of evidence
concerning market value of family home). We overrule this part of Donald’s third
issue.
Donald also argues that the trial court accepted the testimony by Wilson
(Adrienne’s mother) that she had loaned Adrienne approximately $23,000 to
meet her living expenses both before and after Donald filed for divorce but that
Wilson did not have any supporting documentation to confirm her testimony. He
further argues that Wilson only ―provided an uncorroborated list of alleged loans‖
to Adrienne.
The list of loans to Adrienne by Wilson was offered and admitted as an
exhibit. We first note that Donald’s counsel cross-examined Wilson concerning
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many of the amounts on the list of loans, pointing out that as many as seventeen
of the entries on the list were dated before Donald filed for divorce. Donald’s
counsel also questioned Wilson about the lack of documentation to prove that the
amounts allegedly loaned were not gifts. Furthermore, Wilson testified on
redirect examination that she had her bank statements in her car and could bring
them into court if needed, but Donald did not request that Wilson retrieve the
bank statements from her car. In addition, the trial court is the sole judge of the
credibility of the witnesses and the weight to be given to their testimony and was
in the best position to consider the veracity of Wilson’s testimony concerning the
loans to Adrienne. See Pool, 715 S.W.2d at 635; Allegiance Hillview, L.P. v.
Range Tex. Prod., LLC, 347 S.W.3d 855, 872 (Tex. App.—Fort Worth 2011, no
pet.). Moreover, it does not appear that Wilson’s testimony was material to the
trial court’s division of community property because the trial court commented on
the record that both parties were not earning as much as they could and that it
was not basing its division of the community estate on any disparity in earnings.
Thus, we overrule this portion of Donald’s third issue.
Donald next contends that the trial court abused its discretion by finding
that he owed $61,000 in unpaid temporary child and spousal support because
the trial court failed to credit him with a portion of the proceeds from the court-
ordered sale of the parties’ Jaguar vehicle. Donald contends that more than
$10,000 was available for distribution and that the trial court should have credited
him some of that amount when determining his liability for unpaid temporary
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support. However, the associate judge’s May 15, 2008 order requiring Adrienne
to sell the Jaguar did not contemplate that any proceeds from the sale would be
given to Donald. Rather, the order provided that the Jaguar sale proceeds would
be used to pay the balance of the car note, pay Adrienne’s attorney $5,000, and
pay Donald’s attorney $2,500. The order also said that ―any remaining monies
shall be tendered to wife for additional support until final trial.‖ Therefore, Donald
has not shown that the trial court abused its discretion by failing to credit him any
proceeds from the sale of the Jaguar against his unpaid $61,000 balance for
child and spousal support. We overrule this part of Donald’s third issue.
Donald also complains that the trial court did not allow him to develop
additional evidence at trial concerning his allegation of adultery. In that regard,
Donald’s counsel asked Adrienne to identify a document that had been marked
as an exhibit but not admitted into evidence. The trial court sustained Adrienne’s
relevance objection to the question, and Donald’s counsel moved on to a
different line of questioning. The exhibit itself was not offered into evidence and
is not part of the appellate record.3 Moreover, Donald did not make an offer of
proof or otherwise attempt to ensure that the exhibit or the testimony his counsel
intended to elicit from Adrienne became part of the appellate record as permitted
by the rules of evidence and rules of appellate procedure. See Tex. R. Evid.
3
From the context of the attorneys’ objections and responses, the exhibit is
apparently a phone record listing ―hundreds of telephone calls‖ to a certain
telephone number.
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103; Tex. R. App. P. 33.2. In addition, we note that Donald had previously
testified that he filed for divorce because he discovered various e-mails between
Adrienne and her alleged paramour and that the trial court admitted those e-
mails into evidence as exhibits, meaning the trial court had already admitted
evidence concerning Adrienne’s alleged affair. Thus, Donald cannot show on
appeal that the trial court abused its discretion by not permitting his attorney to
question Adrienne about the excluded exhibit, and we overrule this part of his
third issue.
Finally, Donald contends that the trial court’s division of community
property was not equitable and just because the trial court incorrectly determined
that he wasted community assets. In doing so, Donald details the circumstances
under which he believes his financial difficulties arose, and he argues that the
community assets were not wasted but were instead used mostly to pay
temporary spousal support. We first note, however, that most of the factual
assertions in this portion of Donald’s brief were not part of the testimony or other
evidence offered at trial. We are not permitted to consider any matters not
contained within the appellate record. See Quorum Int’l v. Tarrant Appraisal
Dist., 114 S.W.3d 568, 572 (Tex. App.—Fort Worth 2003, pet. denied) (reasoning
that appellate court is bound to determine the case on the record as filed and
cannot look outside the record to discover relevant facts). We also note that the
trial court heard testimony and received exhibits suggesting that Donald
expended approximately $127,000 in the eighteen months before he filed for
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divorce, that he expended another $140,000 during the pendency of the
proceedings, and that he had received principal and interest payments from
Tuskegee Bank and other lump sum payments from his business interests during
the pendency of the case. Donald denied wasting assets, testifying that much of
the money he spent before filing for divorce was for the build-out of his new office
building and that his expenses during the pendency of the case, including child
and spousal support, exceeded his monthly income by approximately $7,500. As
noted above, the trial court is the sole judge of the credibility of the witnesses and
the weight to be given to their testimony. See Pool, 715 S.W.2d at 635;
Allegiance Hillview, L.P., 347 S.W.3d at 872. From the evidence presented at
trial, the trial court could have chosen not to believe Donald’s testimony and
could have determined that he expended a disproportionate amount of
community assets just before and after he filed for divorce. We hold that the trial
court did not abuse its discretion in its division of community assets, and we
overrule the remainder of Donald’s third issue.
VI. Conclusion
Having overruled each of Donald’s three issues, we affirm the trial court’s
judgment.
ANNE GARDNER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DELIVERED: March 15, 2012
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