Mary Anne Keely v. Peter Steinhardt ( 2000 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-00-00129-CV
Mary Anne Keely, Appellant
v.
Peter Steinhardt, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. 98-11827, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING
Appellant Mary Anne Keely, pro se, appeals the district court’s divorce decree
terminating her marriage to Peter Steinhardt. By ten issues, Keely generally challenges the trial
court’s division of property and the appointment of Steinhardt as joint managing conservator of their
two children. We will affirm the district court’s decree.
BACKGROUND
Appellee Peter Steinhardt initiated divorce proceedings against Mary Keely in October
1998. After a bench trial during which both parties were represented by counsel, the trial court
signed the final decree of divorce, divided the marital property, and provided for the conservatorship
of the parties’ minor children, but ordered no child support. Steinhardt was awarded the personal
property in his possession, one of the parties’ automobiles, the parties’ house, and the bulk of the
parties’ debt. Keely was awarded the personal property in her possession along with the other
automobile. Steinhardt and Keely were appointed joint managing conservators of their two minor
children. Steinhardt was awarded the right to determine the primary residence of the younger child,
while Keely was to determine the primary residence of the older child. Subsequently, Keely
proceeded pro se and filed a combined motion for new trial and motion to modify and correct
judgment. The motion was overruled by operation of law. See Tex. R. Civ. P. 329b(c). By ten
issues, Keely appeals the divorce decree.
DISCUSSION
We begin by noting that Keely has failed to adequately brief any of her issues on
appeal. In her brief, Keely failed to cite any authority in support of her arguments. A point of error
unsupported by citation to authority presents nothing for this Court to review. Raitano v. Texas
Dep’t of Pub. Safety, 860 S.W.2d 549, 554 (Tex. App.—Houston [1st Dist.] 1993, writ denied).
Moreover, Keely failed to file a reporter’s record with this Court,1 and without the
reporter’s record, we do not know what, if any, evidence was presented to the trial court. Although
the rules of appellate procedure allow us to consider those issues that do not require a review of the
reporter’s record, we need not consider those issues that depend on the existence of the reporter’s
record. Tex. R. App. P. 37.3(c); see In re Spiegel, 6 S.W.3d 643, 646 n.1 (Tex. App.—Amarillo
1999, no pet.). In the alternative, we may presume that the reporter’s record supports the trial
court’s determinations. See Spiegel, 6 S.W.3d at 646.
1
If properly requested, the court reporter is responsible for preparing, certifying, and timely filing
the reporter’s record. See Tex. R. App. P. 35.3(b). However, the record in this case does not reflect
that Keely properly requested or made arrangements to pay for the record. Consequently, Keely has
failed to provide this Court with a sufficient record by which to review her appeal. See In re Spiegel,
6 S.W.3d 643, 646 (Tex. App.—Amarillo 1999, no pet.).
2
While this Court generally construes pro se briefs liberally, pro se litigants are held to
the same standards as licensed attorneys and must comply with applicable laws and rules of
procedure. See Shull v. United Parcel Serv., 4 S.W.3d 46, 52-53 (Tex. App.—San Antonio 1999,
pet. denied), cert. denied, 69 U.S.L.W. 3226 (U.S. Oct. 2, 2000) (No. 99-9531); White v. Cole, 880
S.W.2d 292, 294 (Tex. App.—Beaumont 1994, writ denied). Rules of procedure are readily
accessible and are intended to help clarify issues, expedite resolutions, and ensure accurate decisions.
See Tex. R. Civ. P. 1; In re Caldwell, 918 S.W.2d 9, 10 (Tex. App.—Amarillo 1995, no writ). If we
were to employ a lower standard for pro se litigants, we would be providing them an unfair advantage
over litigants represented by counsel. See Shull, 4 S.W.3d at 53. With these briefing deficiencies in
mind, we will address Keely’s issues to the extent possible.
In her first two issues, Keely complains that Steinhardt committed perjury, false
testimony, fraud, and deceit during the bench trial. She also complains that Steinhardt’s counsel
induced the perjury. In a related issue, Keely argues that the court ignored evidence of inappropriate
behavior between Steinhardt and one of the minor children.
The trier of fact is the sole judge of the credibility of the witnesses and the weight to
be given their testimony. Rego Co. v. Brannon, 682 S.W.2d 677, 680 (Tex. App.—Houston [1st
Dist.] 1984, writ ref’d n.r.e.). This is so because the trial court is in the best position to observe the
demeanor and personalities of the witnesses and can feel the forces, powers, and influences that
cannot be discerned by a review of the record. Jeffers v. Wallace, 615 S.W.2d 252, 253 (Tex. Civ.
App.—Dallas 1981, no writ) (quoting Thompson v. Haney, 191 S.W.2d 491, 493 (Tex. Civ.
App.—Amarillo 1945, no writ)). Moreover, without the benefit of a reporter’s record or findings
3
of fact by the trial court,2 we are obligated to imply all necessary findings to support the divorce
decree. Wade v. Commission for Lawyer Discipline, 961 S.W.2d 366, 374 (Tex. App.—Houston
[1st Dist.] 1997, no pet.). Keely’s first, second, and ninth issues are overruled.
By her third, fourth, and seventh issues, Keely challenges the trial court’s division of
property. By issues five and eight, Keely argues that the trial court should have reimbursed her for
her fees and expenses and considered her pain and suffering in dividing the marital property. The
division of marital property is an issue addressed to the sound discretion of the court when it sits as
trier of fact. Murff v. Murff, 615 S.W.2d 696, 698-99 (Tex. 1981). The trial court’s order will not
be disturbed absent a showing that the trial court acted in an arbitrary and unreasonable manner or
without any reference to guiding rules and principles. See Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241-42 (Tex. 1985). Absent a reporter’s record, we presume the evidence
supported the trial court’s determination. Thus, Keely has failed to show the trial court abused its
discretion, and her third, fourth, fifth, seventh, and eighth issues are overruled.
By her sixth issue, Keely complains of the trial court’s determination regarding
conservatorship of one of the minor children. A trial court’s decision regarding the conservatorship
of a child will not be disturbed absent a clear abuse of discretion. See Jenkins v. Jenkins, 16 S.W.3d
473, 477 (Tex. App.—El Paso 2000, no pet.); Jeffers, 615 S.W.2d at 253. Again, without a
2
Although the record reflects that Keely requested findings of fact and conclusions of law from
the trial court, the record does not include any such findings of fact or conclusions of law. Moreover,
the record does not reflect that Keely ever brought to the attention of the trial court its failure to file
findings of fact and conclusions of law. See Tex. R. Civ. P. 297. Thus, we presume that the evidence
presented to the trial court supports its judgment. See Peterson Sales Co. v. Mica, Inc., 623 S.W.2d
679, 681 (Tex. Civ. App.—Houston [1st Dist.] 1981, no writ).
4
reporter’s record, we find nothing and Keely points us to nothing to show that the trial court abused
its discretion. Keely’s sixth issue is overruled.
In her final issue on appeal, Keely complains that Steinhardt abused the discovery
process. Specifically, Keely argues that Steinhardt failed to produce documents she requested.
Keely’s complaint is essentially a pretrial discovery dispute. See Branham v. Texas Dep’t of Pub.
Safety, 950 S.W.2d 717, 719-20 (Tex. App.—Fort Worth 1997, no writ). Again, Keely fails to point
out where in the record she preserved this error for appeal. A party who fails to get a pretrial ruling
on discovery disputes that exist before trial waives any claim for sanctions based on that conduct.
Remington Arms Co. v. Caldwell, 850 S.W.2d 167, 170 (Tex. 1993). Therefore, Keely has presented
nothing for this Court to review. Keely’s final issue is overruled.
CONCLUSION
Having overruled all of appellant’s issues on appeal, we affirm the trial court’s decree.
J. Woodfin Jones, Justice
Before Justices Jones, Kidd and Yeakel
Affirmed
Filed: October 26, 2000
Do Not Publish
5