Sims, Diana Mae v. Sims, Donald L.--Appeal from 255th District Court of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

DIANA MAE SIMS,

Appellant,

v.

DONALD L. SIMS,

Appellee.

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No. 08-02-00038-CV

Appeal from the

255th District Court

of Dallas County, Texas

(TC# DF98-12328-S)

MEMORANDUM OPINION

Diana Mae Sims, pro se, appeals a final decree of divorce. She complains the trial court proceeded without her, while she was incarcerated. She also complains of the trial court=s division of marital assets, including a one hundred thousand dollar award implementing a federal restitution provision, and the award of attorney=s fees and costs. We affirm all aspects of the judgment except the amount of attorney=s fees; we render judgment for the corrected amount.

I

Both appellant and her former spouse, Donald L. Sims, appellee, are in their seventies. They were married forty years. The divorce proceedings followed a bizarre episode ending with appellant=s plea of guilty to federal kidnaping charges. The appellee was taken from his home in Farmers Branch, Texas, and deposited in the Veteran=s Administration Hospital in Coatesville, Pennsylvania. After appellee=s abduction, appellant utilized a 1986 power of attorney to transfer both community real estate and title to a motor vehicle to her name. She also withdrew approximately twenty-three thousand dollars from their joint checking account.

As part of her guilty plea, appellant entered into a stipulation of restitution. The restitution stipulation provided in part: A[T]hat the total amount of restitution due and owing by Defendant Diana Sims to the victim, Donald Sims, is $100,000.@ This stipulation also provided: A[I]t is understood that the details of how this amount will be satisfied may be worked out in the divorce proceeding pending between Donald Sims and Diana Sims.@ A second evaluation stipulation was attached to the stipulation of restitution and listed the eight principal assets of the two parties. This second stipulation was also signed by appellant, her defense counsel, and the Assistant United States Attorney in charge of her case. Virtually all of the divorce court=s judgment and findings are generally supported by these two stipulations, properly introduced into evidence at the divorce trial.

II

The trial judge has wide discretion in dividing the parties= community estate. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981); Winkle v. Winkle, 951 S.W.2d 80, 87 (Tex. App.--Corpus Christi 1997, pet. denied). The party attacking the property division bears the heavy burden of showing that the trial court=s property division was not just and right. Goetz v. Goetz, 567 S.W.2d 892, 896 (Tex. Civ. App.--Dallas 1978, no writ). We must indulge every reasonable presumption in favor of the trial court=s proper exercise of its discretion. Vannersonv. Vannerson, 857 S.W.2d 659, 669 (Tex. App.--Houston [1st Dist.] 1993, writ denied).

One who complains of the trial court=s division of property must be able to demonstrate from evidence in the record that the division was so unjust and unfair as to constitute an abuse of discretion. Finch v. Finch, 825 S.W.2d 218, 221 (Tex. App.--Houston [1st Dist.] 1992, no writ); Wallace v. Wallace, 623 S.W.2d 723, 725 (Tex. Civ. App.--Houston [1st Dist.] 1981, writ dism=d). A trial court=s division will not be disturbed on appeal unless it appears from the record that the division was clearly the result of an abuse of discretion. Mogford v. Mogford, 616 S.W.2d 936, 944 (Tex. Civ. App.--San Antonio 1981, writ ref=d n.r.e.). The test for whether the trial court abused its discretion is whether the court acted arbitrarily or unreasonably. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-43 (Tex. 1985); see also Wilson v. Wilson, 44 S.W.3d 597, 600 (Tex. App.--Fort Worth 2001, no pet.).

III

In her first of ten issues, appellant complains the trial court should have delayed the trial until she was represented. Appellant provides no citation to the record or authority. See Tex. R. App. P. 38.1(h). Nevertheless, our independent review of the record reveals no motion for continuance, or other pleading calling to the trial court=s attention, a request for additional time or delay. A[N]or shall any continuance be granted except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law.@ Tex. R. Civ. P. 251. Because appellant did not properly inform the trial court of her request, we cannot assign error to the court for failing to do something he was not requested to do. Appellant=s first issue is overruled.

Appellant next complains that the trial court should not have awarded appellee one hundred thousand dollars restitution because the federal restitution is being appealed. While appellant does attach a Habeas Corpus Motion under 28 U.S.C. ' 2255 to her brief, we find no such pleading in the record. Allegations asserted by appellant, not found in the record, may not be considered. Siefkasv. Siefkas, 902 S.W.2d 72, 74 (Tex. App.--El Paso 1995, no writ). Further, the only information of record indicates a final judgment from the District Court for the Eastern District of Pennsylvania. As part of the federal court stipulation, in the nature of a confession of judgment, appellant agreed Athe details of how this amount [$100,000] will be satisfied may be worked out in the divorce proceeding pending between Donald Sims and Diana Sims.@ We note that even in her absence from the trial, the court below gave appellant credits against this stipulated restitution. Because there is no evidence the federal judgment is not final, we overrule appellant=s second issue.

Next appellant asserts the trial court erred in the value and characterization of a 1981 Volvo. Appellant claims the Volvo was her separate property because it was purchased during a separation. Once again, this information, even if material, is outside the record. In any event, the Volvo was awarded to appellant as her sole and separate property. And while she was given credit against the restitution judgment for the value of the 1993 Pontiac Grand Am in the amount of $3,725, the assigned value of the Volvo, even if error, is harmless. Tex. R. App. P. 61.1(a). Stated otherwise, even if the Volvo were separate property--which it was not--and valued too high by the court, it did not cause the rendition of an improper judgment. Id. This issue is overruled.

In her fourth issue, appellant states all the household furnishings, except one bedroom suite, were her separate property. She points to no record evidence to support this contention and we find none. See Siefkas, 902 S.W.2d at 74. This issue is overruled.

Next appellant seems to challenge the Aassumptions@ concerning the transfer of two pieces of real estate. We assume she is challenging the court=s additional finding number five. There the court found that appellant breached her fiduciary duty by using a power of attorney to transfer the two properties to herself. We view this as a sufficiency challenge. The record discloses her stipulation regarding restitution of the two properties. The record also reveals appellee=s testimony that in his absence, appellant conveyed community property to herself. Thus, the finding is supported by the evidence. See Dow Chemical Co. v. Francis, 46 S.W.3d 237, 241 42 (Tex. 2001). This issue is overruled.

In her sixth issue, she argues the court erred in awarding appellee a disproportionate share Ainasmuch as the court=s reasons listed are untrue.@ In her brief, she lists sixteen reasons why the trial court abused its discretion in the property division. Three of the sixteen challenges contain sufficient citation to the record to enable us to address them. See Tex. R. App. P. 38.1(h). She argues she could not have wasted the estate when she was locked up. While probably, but not necessarily true, we cannot perceive how this would materially affect the trial court=s decision. See Tex. R. App. P. 61.1(a). She argues appellee should pay both of the parties= attorney=s fees. This will be addressed in the ninth issue. Finally, she says she was not able to care for the properties and has seen the value diminish. The record is to the contrary, indicating most of the values at the exact amounts found in the stipulation signed by appellant. The test for abuse of discretion is whether the court acted arbitrarily or unreasonably. Wilson, 44 S.W.3d at 600. Based on the record information, we find no such abuse. This issue is overruled.

Next she argues she should not have been made responsible for community debts preceding the date of separation. Even if we were to assume an abuse of discretion in awarding appellant all pre-separation debts, none are listed in the judgment, and appellant points to none in the record. Accordingly, such error, if any, is harmless. Tex. R. App. P. 61.1(a). This issue is overruled.

In Issue Eight, appellant assails the award of the homestead to appellee. In her argument, she cites two federal cases indicating restitution could not be made against an exempt homestead under Texas law. We assume, without deciding, that is correct. However, in the marital property division arena, the homestead may be awarded to one spouse and the second spouse may be required to execute a general warranty deed conveying his or her interest in the community property. Magallanez v. Magallanez, 911 S.W.2d 91, 94 (Tex. App.--El Paso 1995, no writ). In any event, the trial court=s action here was a part of the division of the estate. Once again, the court=s action is reviewed by an abuse of discretion standard. Wilson, 44 S.W.3d at 600. We do not find the trial court acted arbitrarily or unreasonably. The issue is overruled.

In her ninth issue, appellant argues against the award of attorney=s fees against her. While earlier in Issue Six she stated appellee should pay for all attorney=s fees, appellant now asks that each party pay their own attorney fees. We also liberally construe this issue as a challenge to the legal and factual sufficiency of the amount of attorney=s fees. Appellant contends the award of attorney=s fees in the amount of seventeen thousand dollars, is Aunjust and uncalled for.@ She claims appellee has Aviciously bitten the only hand that took care of him. . . .@ Our review of the record indicates the only evidence of attorney=s fees before that trial court was the testimony of appellee=s counsel. He testified to having eighty-three and two-tenths hours in the case, which was rounded to eighty five hours for final document preparation. The attorney testified that a reasonable rate for this case was one hundred fifty dollars per hour.[1] He also testified that the one hundred and fifty dollar rate represented his agreement with appellee. The trial court increased the rate by fifty dollars per hour to a total of seventeen thousand dollars.

We review an award of attorney fees under an abuse of discretion standard. Oakev. Collin County, 692 S.W.2d 454, 455 (Tex. 1985). In a divorce case, the trial court may award attorney fees as costs against a party as it deems reasonable. Tex. Fam. Code Ann. ' 106.002(a) (Vernon 2002); State by and through Mattox v. Buentello, 800 S.W.2d 320, 327 (Tex. App.--Corpus Christi 1990, no writ). The Texas Supreme Court informs us that the factors that a fact finder consider when determining the reasonableness of a fee include: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly; (2) the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered. Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997). The trial count did not err in awarding attorney=s fees against appellant. See Eikenhorst v. Eikenhorst, 746 S.W.2d 882, 890 (Tex. App.--Houston [1st Dist.] 1988, no writ). However, because the trial court increased the attorney=s fees based on matters not appearing in the record, we reverse and render that portion of the judgment stating the amount of attorney=s fees. See Dow Chemical Co., 46 S.W.3d at 241 42. Based on the undisputed testimony, the award of attorney=s fees should be twelve thousand seven hundred and fifty dollars; the judgment is reformed and rendered to reflect this lower amount. SeeTex. R. App. P. 43.3. Appellant=s ninth issue is sustained in part and overruled in part.

Finally, in her last issue, appellant contends the court erred in ordering her to pay court costs. In a suit to dissolve a marriage, the court may award costs to a party. Tex. Fam. Code Ann. ' 6.708(a) (Vernon 1998); Buentello, 800 S.W.2d at 327. AThe successful party to a suit shall recover of his adversary all costs incurred therein, except where otherwise provided.@ Tex. R. Civ. P. 131. There is no abuse of discretion when the trial court follows the mandates of the law. The issue is overruled.

The judgment of the trial court is affirmed in all respects, except the amount of the award of attorney=s fees. The attorney=s fees portion of the judgment is rendered in the amount of twelve thousand, seven hundred and fifty dollars. Costs are accessed against the appellant.

DON WITTIG, Senior Justice

August 29, 2003

Before Panel No. 5

Larsen, McClure, and Wittig, JJ.

(Wittig, J., sitting by assignment)

[1]Appellant was not present at the trial, nor was she represented. The proceeding lasted forty-nine minutes.

Even in appellant=s absence, appellee=s counsel laudably noted an arithmetical error against appellant and called it to the attention of the trial court who promptly corrected the error.