Robert Sloan Van Buren v. Merrilee McMillen--Appeal from 328th District Court of Fort Bend County

Affirmed and Memorandum Opinion filed August 26, 2004

Affirmed and Memorandum Opinion filed August 26, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00928-CV

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ROBERT SLOAN VAN BUREN, Appellant

V.

MERRILEE MCMILLEN, Appellee

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On Appeal from the 328th District Court

Fort Bend County, Texas

Trial Court Cause No. 104734

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M E M O R A N D U M O P I N I O N

Appellant Robert Sloan Van Buren appeals from the trial court=s order which, inter alia, directed him to pay retroactive child support and attorney=s fees to appellee Merrilee McMillen. Appellee contends this appeal is frivolous and has filed a motion for damages under Rule 45 of the Texas Rules of Appellate Procedure. We affirm the trial court=s judgment and deny appellee=s Rule 45 motion.

Because all dispositive issues in this appeal are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.4.

Factual Background

On March 2, 1998, appellant filed a AMotion to Modify in Suit Affecting the Parent Child Relationship.@ Trial was commenced on November 25, 2002, and subsequently recessed to be reconvened at a later date. On March 21, 2003, trial was reconvened and the court ordered appellant to pay $11,130 in retroactive support and $6,500 in attorney=s fees to appellee. This appeal ensued.

I. Discussion

In three issues, appellant argues the trial court erred in (1) awarding retroactive child support to appellee because (a) there is no evidence justifying such an award, and (b) no request for such support was made in appellee=s petition; and (2) evidence regarding the reasonableness of appellee=s attorney=s fees was not properly before the trial court. In addition to responding to these arguments, appellee requests damages under Rule 45 of the Texas Rules of Appellate Procedure.[1] We consider these arguments in that order.

1. Retroactive Child Support

a. Appellant=s Compliance with Texas Rule of Appellate Procedure 34.6 (c)(1)

In his first and second issues, appellant argues that the trial court erred in awarding retroactive child support. He first argues there is no evidence justifying such an award. However, appellant has failed to provide this court with a complete reporter=s record, including all of the trial court exhibits which are essential to our resolution of this particular issue.[2] We find this failure dispositive of the issue.

An appellant who requests a partial record must include in (or at least with) the request a statement of the points or issues to be presented on appeal; he will then be limited to only those points or issues raised. Tex. R. App. P. 34.6(c)(1); Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex. 2002). A copy of the request must be filed with the trial court clerk. Tex. R. App. P. 34.6(b)(2). When an appellant completely fails to submit his statement of points or issues, we are required under Rule 34.6 to affirm the judgment of the trial court. Bennett,96 S.W.3d at 229.

In the present case, the reporter=s record consists only of the transcripts of the November 25, 2002 and March 21, 2003 proceedings. However, the clerk=s record contains neither a request for a partial reporter=s record from appellant to the official reporter nor a statement of the points or issues to be presented on appeal. Because appellant did not comply with Rule 34.6(c)(1) of the Rules of Appellate Procedure, we must presume that the omitted portions of the reporter=s record support the trial court=s judgment. See Williams v. Gage, No. 12-03-00023-CV, 2003 WL 22839260, *2 (Tex. App.CTyler November 26, 2003, no pet.) (mem. op.).

b. Are Appellee=s Pleadings Sufficient to Support an Award for Retroactive Support? Appellant next argues that the trial court erred in awarding retroactive child support because no request for such support was made in appellee=s petition. However, any alleged defect in the pleadings must be specifically pointed out by exception in writing and brought to the attention of the trial court; otherwise, it is deemed to have been waived by the party seeking reversal on such account. See Tex. R. Civ. P. 90. The record in the present case is devoid of any such written exception by appellant. Therefore, he has waived this issue on appeal.

Even assuming appellant had not waived this issue, we find his argument without merit. When a party fails to specially except to a pleading, courts should construe the pleadings liberally in favor of the pleader. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2000); see also Tex. R. Civ. P. 45 (stating, AAll pleadings shall be construed so as to do substantial justice.@). In the present case, appellee stated in her petition that she Arequests that any increase [in child support] be made retroactive to the earlier of the time of service on citation on [appellant] on the original motion or the appearance of [appellant] in this modification action.@ In her prayer for relief, appellee stated that she Aprays that citation and notice issue as required by law and that the Court enter its orders in accordance with the allegations contained in this petition.@ These pleadings, whether liberally construed or otherwise, are sufficient to constitute a request for judgment on appellee=s claim for retroactive child support.

In sum, appellant=s first issue is overruled because we are required to affirm the judgment below pursuant to Rule 34.6 and appellant waived his arguments concerning the sufficiency of appellee=s pleadings.

 2. Attorney=s Fees

In his third issue, appellant argues that the trial court erred in awarding attorney=s fees to appellee because the evidence regarding the reasonableness of appellee=s attorney=s fees was not properly before the trial court. Specifically, he claims that appellee failed to make a motion to reopen the evidence at trial prior to the court hearing testimony by appellee=s counsel regarding the reasonableness of the attorney=s fees claimed. However, as a prerequisite to presenting this complaint on appeal, appellant was required to make a timely objection to the trial court and obtain a ruling on the objection. See Tex. R. App. P. 33.1(a). The record in the present case is devoid of any such objection by appellant. Therefore, he has waived this issue on appeal.

Even if appellant had not waived this issue, we are unpersuaded by his argument. Under Rule 270 of the Texas Rules of Civil Procedure, a trial court Amay permit additional evidence to be offered at any time@ when it Aclearly appears to be necessary to the due administration of justice.@ In the present case, appellee did, in fact, move to reopen the evidence. After the close of appellant=s evidence, appellee=s counsel made the following statement: AYou[r] honor, I need to testify for the record, if I may, that as attorney for Mrs. McMillen, that attorney=s fees that we=ve presented to the court in the exhibit were reasonable and necessary for the proper representation of Mrs. McMillen@ (emphasis added). While the trial court apparently did not make an audible response to this request, the testimony of appellee=s counsel as to the reasonableness of the attorney=s fees appears next in the record. Based on these facts, we find that appellee moved to reopen the evidence and the trial court granted her motion; therefore, the evidence regarding the reasonableness of appellee=s attorney=s fees was properly before the trial court. Accordingly, appellant=s second issue is overruled.

 3. Appellee=s Rule 45 Motion

Finally, we consider whether appellee should be awarded Ajust damages@ under Rule 45 of the Rules of Appellate Procedure based on appellant=s allegedly frivolous appeal to this court. This is a matter of discretion, which we should exercise with prudence and only after careful deliberation. Angelou v. African Overseas Union, 33 S.W.3d 269, 282 (Tex. App.CHouston [14th Dist.] 2000, no pet.). Although the imposition of damages lies within our discretion, we will do so only in circumstances which are truly egregious. Id. While we disagree with appellant=s application of the law to the facts in this case, our consideration of the record and the briefs does not lead us to believe that appellant=s presentation of this appeal warrants an award of damages to appellee. See id. Accordingly, we overrule appellee=s request for relief under Rule 45.

The judgment of the trial court is affirmed.

/s/ Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed August 26, 2004.

Panel consists of Chief Justice Hedges and Justices Frost and Guzman.

[1] That Rule provides: AIf the court of appeals determines that an appeal is frivolous, it may B on motion of any party or on its own initiative, after notice and a reasonable opportunity for response B award each prevailing party just damages. In determining whether to award damages, the court must not consider any matter that does not appear in the record, briefs, or other papers filed in the court of appeals.@ Tex. R. App. P. 45.

[2] We note that appellee alleges that appellant was made aware of this omission several months prior to the date of submission, but never attempted to address the situation. Appellant has not responded to this allegation.