Theodore Jackson v. Louvenia Jackson--Appeal from 387th District Court of Fort Bend County

Opinion issued November 30, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00194-CV

THEODORE JACKSON, Appellant

V.

LOUVENIA JACKSON, Appellee

On Appeal from the 387th District Court

Fort Bend County, Texas

Trial Court Cause No. 03-CV-133096

MEMORANDUM OPINION

This is an appeal from a decree of divorce and property division rendered after a bench trial. Appellant, Theodore Jackson (husband), challenges the property-division portion of the final decree that dissolved his 1991 marriage to appellee, Louvenia Jackson (wife). Husband states a global challenge in which he complains that the property division disproportionately favored wife. He also presents five specific issues in which he argues that the trial court (1) mischaracterized husband s separate property as community property, (2) improperly relied on documents not admitted into evidence, (3)(a) abused its discretion by ordering death penalty sanctions and (b) violated rule 3 of the Rules of Civil Procedure by applying the local rules of Fort Bend County Courts, and (4) abused its discretion by divesting husband of his separate property, all of which resulted in (5) cumulative error. We affirm.

Underlying Facts and Procedural Background

Husband and wife were married in July 1991. No children were born during the marriage. Wife s son from a previous marriage lived with the couple until he was 16 years old, and husband s sister, whom he described as mentally challenged and slightly disabled, began living with the couple in 1993. Husband and wife each claimed at trial to have contributed to husband s sister s care, both financially and by devoting time to her care. Two of husband s sons from a previous marriage lived with the couple briefly. Husband owned the couple s residence. The community earned income through six rental properties , which they owned and rented to others. Wife also owned property in Louisiana.

Wife worked for Dow Chemical Company, and husband worked for Hydro Chem Industrial Services, a former subsidiary of Dow Chemical Company. Wife also earned supplemental income selling cosmetic products. Both husband and wife had borrowed against their respective 401K plans. Wife stopped working for Dow in June 2004, when the company downsized and offered a severance package, which she accepted.

Husband and wife had sought a divorce and separated in 1995, but reconciled. Marital discord resurfaced in 2000, and the couple stopped living together in November 2003, when wife filed this divorce action. Her petition alleged adultery and cruelty as grounds for an award of a disproportionate share of the parties marital estate. Husband s pleadings include a counterpetition for divorce in which husband claimed that he owned separate property, not part of the community estate, but husband did not identify that property until trial.

Wife, husband, and their respective counsel testified at the one-day trial. The primary focus of the trial was to divide the parties property, as identified in wife s sworn inventories and appraisements. As a result of sanctions entered against husband for not filing an inventory and appraisement ten days before trial, husband was not allowed to dispute the values that wife attributed to certain assets in her inventory at trial. But, the trial court ruled that husband could state his preferences concerning disposition of certain assets, and husband testified extensively about his separate property, divorce settlement from a former marriage, income sources and their origin, an inheritance used toward purchase of the couple s residence, and a life insurance policy and bonds purchased before the marriage and stored in a safety-deposit box. Wife stipulated at trial that husband owned 600 shares of Dow Chemical stock as his personal, separate property. The record reflects acquiescence by the parties in yielding to their respective preferences for disposition of property, including the property that husband identified at trial as his personal, separate property.

At the conclusion of trial, the trial court declared the parties divorced and reserved ruling on the property division. Six days later, the trial court issued an informal notice advising the parties of the court s proposed property division. The trial court signed a formal decree of divorce and property division in accordance with that notice on February 3, 2005. In response to husband s request, the trial court signed findings of fact and conclusions of law.

Standard of Review

Wife proposed the findings of fact and conclusions of law signed by the trial court. The findings and conclusions do not encompass the trial court s sanction order, but husband did not propose additional or amended findings after the trial court adopted the findings proposed by wife. See Tex. R. Civ. P. 298.

In an appeal from a bench trial, we review a trial court s conclusions of law de novo as legal questions, and we will uphold the conclusions if the judgment can be sustained on any legal theory supported by the evidence. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); In re Moers, 104 S.W.3d 609, 611 (Tex. App. Houston [1st Dist.] 2003, no pet.). Though a trial court s conclusions of law may not be challenged for factual sufficiency, we may review the legal conclusions drawn from the facts to determine whether the conclusions are correct. BMC Software Belgium, N.V., 83 S.W.3d at 794. If we determine that a conclusion of law is erroneous, but that the trial court nevertheless rendered the proper judgment, the error does not require reversal. Id.; Vaughn v. DAP Fin. Servs., 982 S.W.2d 1, 6 (Tex. App. Houston [1st Dist.] 1997, no pet.); see Tex. R. App. P. 44.1(a) (stating standards for reversible error in civil cases).

The trial court acts as fact finder in a bench trial and is the sole judge of the credibility of witnesses. See Murff v. Murff, 615 S.W.2d 696, 700 (Tex. 1981); Southwestern Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex. App. Houston [1st Dist.] 1992, writ denied). Accordingly, the trial court may consider all the facts and circumstances in connection with the testimony of each witness and accept or reject all or part of that testimony; an appellate court may not substitute its judgment for the trial court s assessment of testimony in a bench trial. See In re W.E.R., 669 S.W.2d 716, 716 17 (Tex. 1984).

Disproportionate Division Challenge

Husband globally asserts that the trial court s division of the marital estate disproportionately favored wife. Yet, husband does not explain or demonstrate how the trial court s disposition inequitably favors wife. Though wife s petition requested a disproportionate division of property based on allegations of husband s adultery and cruelty, nothing in the decree of divorce, the trial court s findings of fact and conclusions of law, or the clerk s and reporter s records suggests or indicates that the trial court responded to wife s request by dividing the parties property disproportionately and husband has not demonstrated that this occurred. Husband provides no facts, no citations to the record, and no argument to support his global disproportionality challenge. See Tex. R. App. P. 38.1(h).

We thus conclude that husband has neither demonstrated nor supported his global challenge, which we overrule for those reasons.

Separate Property Issues

In his first and fourth issues, husband contends that the trial court mischaracterized husband s separate property as community property and therefore divested husband of his separate property, which compels that we reverse.

Property owned or claimed by a spouse before marriage or acquired after marriage by gift, devise, or descent shall be that spouse s separate property. Tex. Const. art. XVI 15; Tex. Fam. Code Ann. 3.001(1), (2) (Vernon 1998). A court may not decree that separate property of one spouse become the separate property of the other spouse because the nature of separate property is determined by the Texas Constitution, rather than by what is just and right. Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 140 (Tex. 1977).

Conversely, property possessed by either spouse during or on dissolution of marriage is presumed to be community property. Tex. Fam. Code Ann. 3.003(a) (Vernon 2006). A party who claims that property is separate property must meet its burden of proof by clear and convincing evidence. Id. 3.003(b); see Vannerson v. Vannerson, 857 S.W.2d 659, 669 70 (Tex. App. Houston [1st Dist.] 1993, writ denied) (applying same burden on appeal). Evidence is clear and convincing if it will produce in the mind of the trier of fact a firm belief or conviction of the truth of the allegation to be proven. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).

Pursuant to Section 7.001 of the Family Code, the trial court shall order a division of the estate of the parties in a manner that the court deems is just and right. Tex. Fam. Code Ann. 7.001 (Vernon 2006). The value of specific items of property is not an ultimate issue in the trial court s property division and does not require specific fact findings by the trial court. Rafferty v. Finstad, 903 S.W.2d 374, 376 (Tex. App. Houston [1st Dist.] 1995, writ denied).

Because the trial court has wide discretion in effecting a just and right division of the community estate, we may not reverse the disposition unless the trial court clearly abused its discretion. Murff, 615 S.W.2d at 698; Alsenz v. Alsenz, 101 S.W.3d 648, 654 (Tex. App. Houston [1st Dist.] 2003, pet. denied); Rafferty, 903 S.W.2d at 377. We indulge every reasonable presumption in favor of the trial court s exercise of its discretion in dividing a marital estate. Murff, 615 S.W.2d at 699; Vannerson, 857 S.W.2d at 669.

A trial court abuses its discretion when it acts arbitrarily or unreasonably and without reference to any guiding rules or principles. See Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). Because a trial court has no discretion in determining what the law is, which law governs, or how to apply the law, we review this category of discretionary rulings de novo. See id. at 840. In contrast, when we review a ruling that results from the trial court s having resolved underlying facts, we must defer to the trial s factual resolutions and any credibility determinations that may have affected those resolutions and may not substitute our judgment for the trial court s judgment. See id. at 839 40.

A. Wells Fargo Accounts

In his first issue, husband contends that we must reverse because the trial court s sixteenth conclusion of law mischaracterized two Wells Fargo accounts as community property. Husband s arguments fall short of contending specifically that the accounts are his separate, personal property. Indeed, as he specified at trial and reaffirms on appeal, he had no personal funds in the accounts. Similarly, husband does not contend that the trial court s mischaracterization adversely affected the trial court s overall disposition of property, resulted in other error, or harmed husband in any way. See Tex. R. App. P. 44.1(a).

Husband objects, instead, to the trial court s concluding that the funds in the accounts were community property and by characterizing them in that manner, though husband does not dispute that the trial court awarded the accounts to him in the property division. Husband relies on his testimony that he held the accounts on behalf of his sister, as trustee or guardian, though he did not specify which of those capacities he held and offered no evidence of either. Husband explained that his sister received monthly Social Security payments of about $900, that the checks were made payable to him for his sister s care, and that her checks were deposited directly into the two accounts. Yet, husband conceded at trial that the funds had been used recently to help maintain the household, and wife also claimed at trial that she contributed financially to her sister-in-law s support.

Wife acknowledged that she had identified the two accounts as community property in her inventory. As she explained, however, she knew nothing about the accounts and learned only through discovery that husband s name was on both accounts and did not know whether husband had deposited all of his sister s funds into the accounts. Because she lacked knowledge about the accounts, she listed both of them as community property in her inventory. But, wife also requested, in accordance with her proposed property division, that all accounts in husband s name, including these two accounts, be awarded to him. As the trial court s decree and remaining conclusions of law reflect, the trial court did precisely that.

Given the circumstances demonstrated by the record that husband denied having any personal funds in the accounts; stated that he held the funds for his sister, as either her guardian or as a trustee, but without substantiating either; and conceded that the funds had recently been used to maintain the household and given that both husband and wife claimed they contributed to his sister s care, both financially and by time spent on her care, there is no clear and convincing evidence that the accounts constituted husband s separate property within the meaning of section 3.001 of the Family Code and article XVI, section 15 of the Texas Constitution. Tex. Const. art. XVI 15; Tex. Fam. Code Ann. 3.001(1), (2). See Tex. Fam. Code Ann. 3.003(b); In re C.H., 89 S.W.3d at 25; Vannerson, 857 S.W.2d 659, 669 70. Because husband did not establish that the accounts were his separate property, the trial court did not abuse its discretion by applying the section 3.003(a) statutory presumption to conclude that the funds in question were properly characterized as community property, rather than separate property, for purposes of the division of husband s and wife s community estate. See Tex. Fam. Code Ann. 3.003(a). //

We overrule husband s first issue.

B. Unidentified Separate Property

In his fourth issue, husband argues that the trial court abused its discretion by divesting husband of his separate property, in violation of section 3.001 of the Family Code and article XVI, section 15 of the Texas Constitution. Tex. Const. art. XVI 15; Tex. Fam. Code Ann. 3.001(1), (2). Husband s brief addresses the controlling legal principles, but he nowhere identifies any allegedly separate property that is the subject of the alleged divestiture. Furthermore, the record reflects that the trial court awarded to husband the property that husband identified at trial as his separate property, and husband has not demonstrated otherwise. This property includes his 600 shares of Dow Chemical stock, his Ameritrade stock, the inheritance account, and his life insurance policies and saving bonds purchased before his marriage to wife.

We conclude that husband has not presented sufficient argument, supported with citations to the record, to support his divestiture claim and thus conclude that husband has not demonstrated any basis on which this Court might grant relief. See Tex. R. App. P. 38.1(h).

We overrule husband s fourth issue.

Reliance on Documents not Admitted into Evidence

In his second issue, husband challenges the trial court s eighteenth conclusion of law, which lists the debts assigned to wife and includes debts for Capitol One and Palais Royal credit card accounts. Husband argues that the trial court relied on documents not admitted into evidence by including these accounts among the debts assigned to wife because the accounts are not listed on wife s second sworn inventory and appraisement, on which wife relied on at trial.

The record reflects that wife timely filed two sworn inventories and appraisements, as follows: a second amended inventory and appraisement on September 14, 2004, showing a net community estate valued at $846,805.59, and a third amended inventory and appraisement on January 3, 2005, showing a net community estate valued at $821,402.37. During the conferences that preceded trial, wife s counsel announced that she had inadvertently not attached a proposed property division to wife s third amended, sworn inventory and appraisement, filed on January 3, 2005 and would, therefore, proceed to trial based on her earlier-filed, second amended, sworn inventory and appraisement. Wife did not, however, formally withdraw the later-filed inventory and appraisement and later succeeded in admitting it and its attached, proposed property disposition into evidence, without objection by husband.

Husband contends that because wife elected to proceed to trial on the earlier-filed inventory and appraisement, the trial court improperly considered property listed in the later inventory and appraisement, specifically, the debts on the Capitol One and Palais Royal accounts, in dividing the parties marital estate.

Wife acknowledges that there was no direct testimony at trial concerning the debts on the Capitol One and Palais Royal accounts and agrees that the trial court necessarily relied on the later-filed inventory and appraisement in assigning those debts to wife. Wife counters that the trial court properly exercised its discretion by relying on the later-filed inventory, pursuant to this Court s Vannerson decision. We agree.

As in Vannerson, wife s inventories were both verified and filed with the trial court and, therefore, a proper subject for judicial notice by the court. See id., 857 S.W.2d at 671. Also as in Vannerson, the record reflects that the trial court referred to both the earlier-filed and the later-filed sworn inventories during trial. See id. In this case, moreover, husband s own testimony refers to the Palais Royal account disclosed only in the later-filed inventory. Furthermore, when wife testified at trial about debts and property identified only in the later-filed sworn inventory, specifically the Hancock bank accounts and her credit union loan, husband did not object that wife had listed those matters only in the later-filed inventory, but, rather, questioned wife concerning them. The record thus reflects that husband was on notice of references to the later-filed inventory at trial, but did not object, and, moreover, referred to the inventory himself.

The record also reflects that husband delayed responding to discovery that would enable wife to provide full information in her inventories, appraisement, and proposed property division, and that husband never filed his inventory, appraisement, and proposed property division. Nothing in the record suggests that, in offering to proceed to trial on the earlier-filed inventory and appraisement, wife also intended to abandon all items listed in that document.

Husband further contends that he was effectively precluded from testifying about items that were omitted from the earlier-filed inventory and from testifying as to the community s claim for reimbursement. As stated, however, husband had notice, through wife s testimony and the trial court s questions and comments, of items omitted from the earlier-filed inventory, though included in the later-filed inventory. In addition, husband questioned wife about two of those items, the Hancock bank accounts and her credit-union loan, and testified himself about the Palais Royal credit-card account.

Concerning husband s reimbursement claims for contribution to the community estate, husband testified, without objection, that he dedicated inherited funds toward the purchase of the couple s residence. To the extent that husband had other reimbursement claims, he neither offered additional testimony nor otherwise preserved, by a bill of exceptions, what those claims might be. See Tex. R. App. P. 33.1(a), 33.2; Tex. R. Evid.103(a) (b).

We hold that the trial court did not err by considering wife s later-filed, but timely filed, sworn inventory and appraisement in dividing the parties marital estate. We overrule husband s second issue.

Discovery Sanctions

In his third issue, husband contends that the trial court abused its discretion by rendering a death penalty sanction and violated rule 3a of the Rules of Civil Procedure by applying Fort Bend County Local Rule 4. //

We review a ruling on a motion for sanctions for abuse of discretion. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004); see Walker, 827 S.W.2d at 839 40. The trial court s ruling should be reversed only if it was arbitrary or unreasonable. Cire, 134 S.W.3d at 839. The trial court s authority to sanction for failure to comply with an order or discovery request derives from rule 215.2 of the Rules of Civil Procedure, which mandates that any sanction imposed be just. Tex. R. Civ. P. 215.2(b). Among the just sanctions that rule 215.2(b) recognizes is an order . . . prohibiting [the disobedient party] from introducing designated matters into evidence. Tex. R. Civ. P. 215.2(b)(4). The trial court s sanction order in this case is a rule 215.2(b)(4) sanction.

The trial court s sanction order in this case also qualifies as relief granted pursuant to rule 193.6 of the Rules of Civil Procedure, which provides that a party who fails to make, amend, or supplement a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed, or offer the testimony of a witness (other than a named party) who was not timely identified, unless the court finds (1) good cause for the failure or (2) that the failure will not unfairly surprise or unfairly prejudice the other parties. Tex. R. Civ. P. 193.6 (Failing to Timely Respond Effect on Trial). Wife relied on rule 193.6 at trial.

A. Background

On November 18, 2004, the trial court granted wife s motion to compel and ordered husband to respond to discovery requesting that he substantiate his separate property claims. Pursuant to that order, husband s deadline for responding to wife s discovery was November 27, 2004.

On December 30, 2004, wife filed a motion stating that she had agreed to extend the deadline for all outstanding discovery to December 6, 2004, but that husband had still not complied. Wife s motion requested that (1) husband be prohibited from introducing evidence relating to her unanswered discovery at the January 13, 2005 trial and (2) a $900 sanction be assessed against husband. The trial court conducted a hearing on wife s motion on January 6, 2005.

We have no reporter s record of the January 6, 2005 hearing, but the existing record demonstrates that the hearing resulted in the following: the trial court received, but did not file, husband s late-provided inventory and appraisement; conditionally assessed the $900 sanction; and conditionally refused to admit husband s inventory and appraisement at trial. // The trial court conditioned its rulings on husband s demonstrating, at trial, that his earlier responses to wife s discovery satisfied her requests.

At preliminary hearings conducted before trial began on January 13, 2005, the trial court considered two motions filed by husband that day. // Both motions relate to the unrecorded sanctions hearing seven days earlier. In response to husband s first motion, for reconsideration of the sanction, the trial court lifted the $900 portion of its order. But, the trial court denied husband s motion, which sought leave for a late exchange of documents. As a result, both husband s inventory and appraisement and his proposed property division remained received only and were not filed.

The effect of the sanction order signed in this case was to prohibit husband from (1) introducing any and all documents that wife requested in her third request for production that husband had not previously produced and (2) supporting or offering claims or defenses related to those documents.

B. Principles Governing Imposition of Sanctions

Well-settled law proposes a two-part test to determine whether a sanction is just. The sanction must first be no more severe than necessary to satisfy its legitimate purpose, specifically, to ensure compliance with discovery and deter those who might abuse the discovery process in the absence of a deterrent. Cire, 134 S.W.3d at 839; see also TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991) (stating that sanction imposed must relate directly to the abuse found ). Second, the trial court must consider the availability of lesser sanctions before imposing death penalty sanctions. Cire, 134 S.W.3d at 840 (citing GTE Commc n Sys. Corp. v. Tanner, 856 S.W.2d 725, 729 (Tex. 1993)) (emphasis in original).

1. Husband s Separate Property

Though husband contends that he was forbidden from offering testimony as to what he believed was separate property, the record does not support this claim. Husband testified without objection that he owned a life insurance policy and savings bonds and that he had purchased these before marrying wife and stored them in a safety deposit box. He also described, without objection, an inheritance from his father, previously deposited in an account in his and his sons names, that he contributed to the purchase of the couple s residence. In addition, husband testified extensively about the 600 shares of Dow Chemical stock, which he received as settlement after his first marriage ended in divorce, and wife stipulated at trial that the stock was husband s separate property. The trial court s decree and findings of fact and conclusions of law confirm the separate property character of these items. Though he contends he was forbidden from offering testimony, he did not offer proof at trial to show that he had any other items of separate property. See Tex. R. App. P. 33.1(a), 33.2; Tex. R. Evid. 103(a) (b).

Despite the sanction, as applied at trial by both the trial court and opposing counsel, who either did not object or stipulated to testimony in which husband described his separate property, the sanction order did not preclude husband from testifying about that property, which, moreover, he obtained under the decree. And nothing in the sanction order precluded husband from offering additional evidence by offer of proof to support other separate property claims.

2. Mischaracterization of Property

Husband further contends that the trial court s sanction order resulted in mischaracterization of property. As addressed above, however, with respect to the two Wells Fargo accounts, husband has not substantiated, by offer of proof or any other means, his contention by demonstrating how any mischaracterization resulted in loss to husband of those accounts or any other property that he might otherwise contend should have been awarded to him. Tex. R. Evid. 103(a) (b).

3. Valuation of Property

Husband is correct, however, in his contention that the trial court s sanction order prevented husband from disputing the valuations reflected in wife s inventory and appraisement. But, as the record further reflects, wife supported the valuations in wife s inventory and appraisement with documentary statements of accounts or records that would be largely uncontested. The value of the couple s residence, for example, was demonstrated by an appraisal requested and paid for by husband. Husband testified that he and wife kept their finances separate and had separate credit-card accounts, though he used community funds to assist with payment of wife s accounts and cosigned for another account. Husband also stated that he managed the financial affairs concerning the rental properties identified in wife s inventory, all of which he owned, and made all mortgage payments and did all maintenance on those properties, though he conceded that he benefitted from the resulting tax deductions, as demonstrated by the lack of these deductions on wife s income tax statements, which husband prepared. Similarly, documentary evidence amply supports both husband s and wife s testimony concerning loans and borrowing against their respective 401K plans.

4. Lack of Findings

Though husband complains that the trial court did not enter findings to support the sanction order, husband did not object to the absence of these findings in the findings of fact and conclusions of law that the trial court endorsed and did not offer proposed additional findings. See Tex. R. Civ. P. 298.

C. The Sanction Was Just No Abuse of Discretion

As a result of the trial court s sanction, husband could neither introduce evidence that wife requested and that husband did not produce, nor assert claims or defenses related to those documents. // Under the first element of the test of a just sanction, the trial court limited its order to the direct consequences of the offensive conduct. Accordingly, the trial court s order went no further than necessary and was not excessive. See Cire, 134 S.W.3d at 839; TransAmerican Natural Gas Corp., 811 S.W.2d at 917. Under the second element of the test, the record amply demonstrates that the trial court considered lesser sanctions. See Cire, 134 S.W.3d at 840. After ordering that husband comply with wife s discovery request, and after wife agreed to extend the deadline under that order, the trial court conditionally imposed both the sanction ultimately assessed here and a $900 fine. Husband had only to provide the requested discovery timely, but did not. Even then, however, the trial court removed the fee portion of the sanction order. An order granting a motion to compel discovery, standing alone, does not constitute a lesser sanction. See Bair v. Hagans, 838 S.W.2d 677, 681 (Tex. App. Houston [1st Dist.] 1992, writ denied). But, when, as here, a trial court compels discovery and also cautions that more serious sanctions will issue unless compliance occurs, orders granting more serious sanctions, including death-penalty sanctions, will be upheld. See Jaques v. Tex. Employers Ins. Ass n., 816 S.W.2d 129, 131 (Tex. App. -Houston [1st Dist.] 1991, no writ).

In addition to not providing the discovery requested by wife, ordered by the trial court, and required by the Fort Bend County Local Rule 4, husband did not attempt to satisfy the exception to rule 193.6 by demonstrating good cause for lack of compliance or that his discovery response would not unfairly surprise or prejudice wife. See Tex. R. Civ. P. 193.6(a) (b). Likewise, husband did not request a continuance in order to comply with the requested and ordered discovery. See Tex. R. Civ. P. 193.6(c). In keeping with the heading of rule 193.6(a) Exclusion of Evidence the consequences of failure to comply with mandated discovery are mandatory and automatic; evidence must be excluded at trial unless the party seeking to admit it satisfies the exception for good cause. See Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 914 (Tex. 1992).

We conclude that the sanction assessed against husband was just, and that the trial court properly exercised its discretion in assessing the sanction pursuant to rules 193.6 and 215.2(4).

D. No Violation of Rule 3 Shown

Husband contends that, in enforcing Fort Bend County Local Rule 4, the trial court violated rule 3a of the Rules of Civil Procedure. Fort Bend County Local Rule 4 applies to Disclosure of Property and Financial Information and states,

A party s final Inventory, Financial Information Statement and financial information required under the Family Code (including, but not limited to, the party s income tax returns for the past two years and the party s three most recent payroll stubs), as well as suggested findings regarding child support and a proposed division of property shall be exchanged no later than ten (10) days before trial, and shall be filed with the court at the commencement of trial. . . . . This rule providing for the exchange of information shall constitute a discovery request and failure to comply with this rule may be grounds for sanctions.

To establish a violation of rule 3a, husband must demonstrate that the local rule imposes a more arduous burden than the Rules of Civil Procedure or, was applied to determine the merits of a case. Tex. R. Civ. P. 3a(1) (2), (6). Husband has not met this burden. Moreover, as addressed above, we have concluded that, in imposing its sanction against husband, the trial court complied with the requirements of rules 193.6 and 215.2(4).

We overrule husband s third issue.

Cumulative Error

In his fifth issue, husband complains that the trial court committed cumulative error, requiring remand for new trial on the property division. Having found no error in husband s issues one through four, we conclude no cumulative error occurred.

We overrule husband s fifth point of error.

Conclusion

We affirm the judgment of the trial court.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.