Robert D. Bankston v. Beverly D. Bankston--Appeal from 18th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-93-249-CV

ROBERT D. BANKSTON,

Appellant

v.

BEVERLY D. BANKSTON,

Appellee

From the 18th District Court

Johnson County, Texas

Trial Court # 5100-93

O P I N I O N

Robert D. Bankston appeals a divorce decree issued by the 18th Judicial District in Johnson County. Appellant alleges several points of error in his brief. In his fourth point of error appellant asserts the trial court denied him fair access to the courts by not permitting him to participate as an incarcerated individual in any hearings concerning these divorce proceedings. Appellant asserts in his second point that the trial court erred in denying his request for the assistance of court-appointed counsel for these divorce proceedings. Appellant's third point of error concerns his disagreement with the trial court's refusal to order an inventory of the community property belonging to the parties. In appellant's first point he argues the trial court erred in permitting appellee's attorney to offer testimony at the final hearing scheduled in these divorce proceedings. Appellant, through his fifth point of error, expresses his disagreement with the trial court's distribution of the marital estate. We affirm.

I. PARTICIPATION IN TRIAL COURT PROCEEDINGS AND THE APPOINTMENT OF COUNSEL

Appellant argues in his fourth point that the trial court erred in refusing to allow him to participate in the divorce proceedings either in person or by written briefs as he had requested. In his second point of error, appellant asserts the trial court erred in denying his request for the assistance of court-appointed counsel in these divorce proceedings.

A final hearing in these divorce proceedings was scheduled for September 23, 1993. The trial court scheduled a hearing for September 17 to address several pretrial motions appellant had filed, including a motion filed on September 7, 1993, for a bench warrant to be issued so that he could be transported from his Huntsville jail cell to the Johnson County Courthouse for the September 23 hearing. // In the alternative, appellant requested permission to appear at the hearing scheduled for September 23 by written briefs. Appellant appeared neither at the hearing scheduled for September 17 nor at the hearing scheduled for September 23 because of his incarceration. In an order dated September 17 appellant's motion for permission to appear in person or by written briefs at the Final Hearing scheduled for September 23, 1993, was denied. On appeal, appellant argues the trial court unlawfully prevented him from adequately defending his interests at the September 23 hearing because the trial court neither permitted him to appear in person at that hearing nor to participate in that hearing by means of written briefs.

A point of error is not properly presented to the court of appeals unless an argument corresponds to the point of error and the argument is adequately supported by the citation to authority. Tex. R. Civ. App. 79; Teague v. Bandy, 793 S.W.2d 50, 58 (Tex. App. Austin 1990, writ denied). Appellant cited no authority to support his arguments in either his second or his fourth points of error.

Rule 74(f) of the Rules of Appellate Procedure provides that briefs submitted to the Court of Appeals "shall include ... such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue." Tex. R. App. P. 74(f). Rule 74(f) has consistently been found to mean that an appellant presents the court of appeals with nothing to consider when he fails to cite any authority for his argument or arguments in his points of error. See Hunter v. NCNB Texas National Bank, 857 S.W.2d 722, 725 (Tex. App. Houston [14th Dist] 1993, writ denied); Malouf v. Dallas Athletic Country Club, 837 S.W.2d 674, 678 (Tex. App. Dallas 1992, writ dism'd w.o.j.); Teague, 793 S.W.2d at 58; Essex Crane Rental Corp. v. Striland Construction Co., 753 S.W.2d 751, 756 (Tex. App. Dallas 1988, writ denied); GTE Directories Corporation v. McKinnon, 734 S.W.2d 429, 432 (Tex. App. Fort Worth 1987, no writ).

Rule 83 of the Texas Rules of Appellate Procedure provides that "[a] judgment shall not be affirmed ... or an appeal dismissed for defects or irregularities, in appellate procedure, either of form or substance, without allowing a reasonable time to correct or amend such defects or irregularities[.]" Tex. R. App. P. 83.

However, the First District Court of Appeals has held the provisions of Rule 83 do not apply in appeals where the appellant sufficiently pleads some of his points of error but insufficiently pleads others. Henry S. Miller Management Corp v. Houston State Associates, 792 S.W.2d 128, 133-135 (Tex. App. Houston [1st Dist.] 1990, writ denied). The First District reached this conclusion by reasoning that the purpose behind Rule 83 is to ensure that an appellant's brief is not dismissed by the court of appeals solely for defective pleading. Id. at 134-135. However, when an appellant adequately pleads some of his point of errors but not all, the court of appeals, in declining to permit the appellant an opportunity to amend his defective points of error, will not be then dismissing the whole of the appellant's brief for defective pleading. Id. at 134-135.

Appellant sufficiently pleaded his first, third, and fifth points of error by making arguments to substantiate these points of error and by citing authority to support these arguments. // Therefore, as appellant sufficiently pleaded his first, third, and fifth points of error but insufficiently pleaded his second and fourth points of error, we overrule appellant's second and fourth points of error under Rule 74(f) of the Texas Rules of Appellate Procedure.

II. REFUSAL TO ORDER ACCOUNTING OF COMMUNITY PROPERTY

In his third point of error, appellant asserts he could not know with any certainty how much property he had to lose from these divorce proceedings because the trial court refused to order an inventory of the marital estate that he had requested in a "Motion To Compel Inventory of Community Property and Sanctions." We find appellant's argument in his third point of error to be without merit.

"To be error, a trial court's refusal to permit discovery must constitute an abuse of discretion." Testoni v. Blue Cross and Blue Shield, 861 S.W.2d 387, 390 (Tex.App Austin 1992) (citing Sneed v. H.E. Butt Grocery Co., 569 S.W.2d 555, 556-557 (Tex.Civ.App. 1978, writ ref'd n.r.e.)). "The test is whether the action was so arbitrary and unreasonable as to amount to prejudicial error." Id. at 390, 391 (citing Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985)). Appellant requested an inventory from appellee via a motion for discovery filed on August 16, 1993. On August 20 appellee filed an "Inventory and Appraisement of Beverly K. Bankston." Appellant believed the contents of this document to be deficient so he filed a "Motion To Compel Inventory of Community Property and Sanctions." In an order dated September 17 the trial court denied this motion. Because appellee filed with the trial court the "Inventory and Appraisement" mentioned above, the trial court knew a response to appellant's original "Motion For Inventory of Community Property" had been filed by appellee. This "Inventory and Appraisement" listed two motor vehicles as the entire contents of the marital estate. The trial court was well within its discretion in believing that this "Inventory and Appraisement" accounted for the entire contents of the marital estate. Consequently, the trial court did not abuse its discretion in denying appellant's "Motion To Compel Inventory of Community Property and Sanctions." Therefore, appellant's third point of error is overruled.

III. ADMISSIBILITY OF STATEMENTS MADE BY COUNSEL FOR APPELLEE AT FINAL DIVORCE HEARING

Appellant in his first point of error argues that statements made by counsel for appellee at the final hearing in these divorce proceedings concerning his conviction and incarceration for child molestation prejudiced his interests in the case.

"To obtain reversal of a judgment based upon error of the trial court in admission or exclusion of evidence, the following must be shown: (1) that the trial court did in fact commit error; and (2) that the error was reasonably calculated to cause and probably did cause rendition of an improper judgment." Gee v. Liberty Mutual Fire Insurance Company, 765 S.W.2d 394, 396 (Tex. 1989) (citing Bridges v. City of Richardson, 354 S.W.2d 366, 368 (Tex. 1962)); Tex. R. App. P. 81(b). Even assuming the trial court erred in not excluding the several comments appellee's attorney made at the final hearing, appellant has failed to demonstrate that this error "was reasonably calculated to cause and did cause rendition of an improper judgment." See Gee, 765 S.W.2d at 396; Tex. R. App. P. 81(b). Appellant in his brief failed to point to any evidence which would indicate that he was prejudiced by these comments to a degree that the comments caused the trial court to render an improper judgment. Without reference to such evidence, we cannot reverse the trial court's divorce decree for not excluding comments made by appellee's attorney at the Final Hearing. See id.

IV. DISAGREEMENT WITH TRIAL COURT'S DISTRIBUTION OF THE MARITAL ESTATE

In his fifth point of error, appellant asserts the trial court improperly divided the community estate. A trial court's division of a marital estate is subject to an abuse of discretion standard of review. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). The trial court was in possession of several documents containing information concerning the contents of the marital estate, including an "Inventory and Appraisement" of the community estate appellee filed with the trial court on August 20, 1993; a response filed on September 7, 1993, to appellant's "Request for Production of Documents"; and responses filed on September 7, 1993, to a set of interrogatories submitted earlier by appellant. In the trial court's final decree of divorce, it granted to appellee:

1. All household furniture, furnishings, fixtures, goods, appliances and equipment in the possession of or subject to the sole control of [appellee].

2. All [appellee's] clothing, jewelry, and other personal effects.

3. Any and all sums of cash in the possession of or subject to the sole control of [appellee], including money on account in banks, savings institutions, or other financial institutions, which accounts stand in [appellee's] sole name or from which [appellee] has the sole right to withdraw funds or which are subject to [appellee's] sole control.

4. 1986 Ford Taurus motor vehicle, together with all prepaid insurance, keys, and title documents.

5. Any and all sums, whether matured or unmatured, accrued or unaccrued, vested or otherwise, together with all increases thereof, the proceeds therefrom, and any other rights related to any profit-sharing plan, retirement plan, pension plan, employee stock option plan, employee savings plan, accrued unpaid bonuses, or other benefit program existing by reason of [appellee's] past, present, or future employment.

The trial court issued the same order of distribution with respect to appellant, except that appellant was awarded a 1983 Ford Maverick instead of the 1986 Ford Taurus. // Given what appears to be an equitable distribution of the marital estate, we cannot say the trial court abused its discretion in its division. See id. at 698. Therefore, appellant's fifth point of error is overruled.

V. CONCLUSIONS

As all of appellant's points of error are overruled, the final decree of divorce issued by the trial court on September 30, 1993, is affirmed in all respects.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed October 19, 1994

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