Luke Clyde Teixeira v. Lucrecia Teixeira--Appeal from 166th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00603-CV
Luke Clyde TEIXEIRA,
Appellant
v.
Lucrecia TEIXEIRA,
Appellee
From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 2000-CI-15576
Honorable Juan Gallardo, Judge Presiding (1)

Opinion by: Paul W. Green, Justice

Sitting: Alma L. L pez, Chief Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: August 18, 2004

AFFIRMED

This case arises from divorce proceedings. On October 25, 2000, appellee Lucrecia Teixeira (Lucrecia) filed her petition for divorce from appellant Luke Teixeira (Luke). (2) Luke responded to Lucrecia's petition on April 1, 2002. He also filed a counterclaim on June 6, 2002. Following a number of hearings, the trial court resolved all material issues and signed a final decree of divorce. The court entered its final judgment in the matter on January 29, 2003. Luke now appeals the trial court's ruling in three issues. (3)

Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion under Tex. R. App. P. 47.1 for the following reasons:

1. In his first issue, Luke claims the trial court erred in denying his request for a jury trial. Under Texas Family Code section 6.703, in a suit for the dissolution of a marriage, either party may demand a jury trial. Tex. Fam. Code Ann. 6.703 (Vernon 1998); Taylor v. Taylor, 63 S.W.3d 93, 100 (Tex. App.--Waco 2001, no pet.). The Texas Rules of Civil Procedure, however, mandate that in order for a jury demand to be proper, the party requesting a jury must file its written request not less than thirty days before the date set for trial and must deposit a jury fee with the clerk of the court. Tex. R. Civ. App. 216.

The trial court initially granted Luke's request for a jury trial, reversing its decision only after a hearing on Lucrecia's motion to strike the jury demand. In her motion, Lucrecia enumerates three reasons why Luke's demand should not have been granted: (1) Luke filed his written request for a jury on May 6, 2002, less than 30 days before the non-jury docket setting of May 30, 2002; (2) Luke failed to pay the required jury fee within the proper time period; and (3) the issues asserted in both the divorce and the counter suit were not material. A review of the record shows that Luke filed a motion requesting a jury on April 24, 2002, more than 30 days before the non-jury trial setting. In addition, although Luke did not pay the necessary jury fee, he timely filed a motion of indigency, negating the need for any such payment.

Because Luke met the requirements necessary for being granted a jury trial, we can not uphold the trial court's decision on either of these grounds. However, even if the trial court did err in failing to grant Luke's request, we may affirm the court's judgment if the error was harmless. A refusal to grant a jury trial is harmless error only if the record shows that no material issues of fact exist and an instructed verdict would have been justified. Halsell v. Dehoyos, 810 S.W.2d 371, 371 (Tex. 1991). Conflicting evidence of probative value on contested issues raises a fact issue which should be presented to the jury for determination. See Texas Emp. Ins. Ass'n v. Page, 553 S.W.2d 98, 102 (Tex. 1977). The record shows that Luke's counterclaim contests the division of property and asks the court to divide the estate in a manner that is deemed just and right as provided by law. The division of property in a divorce action is exclusively within the province of the trial judge, not the jury. Walter v. Walter, 127 S.W.3d 396, 398 (Tex. App.--Dallas 2004, no pet.);Massey v. Massey, 807 S.W.2d 391, 398 (Tex. App.--Houston [1st Dist.] 1991, writ denied). Even assuming the trial court erred in denying Luke's request for a jury trial, we conclude the error was harmless because the only viable issue on appeal is not a material issue of fact. Grossnickle v. Grosssnickle, 865 S.W.2d 211, 212 (Tex. App.--Texarkana 1993, no writ). We overrule Luke's first issue.

2. In his second issue, Luke claims the trial court erred in failing to grant his request for spousal support and in finding that he was not eligible for such award as a matter of law. In his counterclaim, Luke asked the trial court to "grant him spousal support in the amount of $500 a month for the months of January 2001 through August 2001," as well as "$200 a month for the months of September 2001 through March 2002." Following a hearing, the court found that Luke was not entitled to such maintenance.

We review a trial court's order relating to spousal maintenance under an abuse of discretion standard. Alexander v. Alexander, 982 S.W.2d 116, 119 (Tex. App.--Houston [1st Dist.] 1998, no pet.). Under the Texas Family Code, a court may order maintenance for either spouse when, among other things, the duration of the marriage was ten years or longer. Tex. Fam. Code Ann. 8.002(Vernon 1998). In the case at hand, the record shows the trial court denied Luke's request for "spousal support" because the Teixeiras had been married for less than ten years. Thus, the court did not abuse its discretion in denying Luke's request.

On appeal, Luke claims the court mistakenly read his pleading as asking for spousal maintenance, which is governed by the above statute, when he was actually requesting "alimony" under Texas Family Code section 6.502. Under this statute, a court may require payments to be made for the support of either spouse while a suit for the dissolution of a marriage is pending. Tex. Fam. Code Ann. 6.502(2)(Vernon 1998). However, Luke did not raise this issue in his counterclaim, failing to clarify under which statute he was pleading. In addition, Luke failed to clarify his position at the hearing, allowing the trial court to deny his request based on the length of the marriage without an objection.

In general, when a party fails to request an issue at trial, he waives that issue and may not assert it on appeal. Harris Co. Child Welfare Unit v. Caloudas, 590 S.W.2d 596, 598 (Tex. Civ. App.--Houston [1st Dist.] 1979, no writ). An appellant is limited to the theories upon which the case is tried and may not appeal the case on new or different theories. Id. Because he did not raise the issue before appeal, we find Luke to have waived any appellate argument as to "alimony." Tex. R. App. P. 33.1. Accordingly, we overrule his second issue.

3. In his third and final issue, Luke contends the trial court deprived him of his constitutional right to due process in allowing four different judges to preside over hearings which related to his case. He cites several alleged instances of deprivation including the court's ignoring his continuance, ex parte communication between the court and Lucrecia's attorney, lack of a fair hearing, and the court's "lack of investigation" concerning matters pertinent to this case. Although Luke raises the issue of due process in his brief, he fails to provide support for his accusations. He also fails to cite any authority for his contention that having four different judges sit on matters related to his case constitutes a violation of his constitutional rights. Under the Texas Rules of Appellate Procedure, an appellant's brief "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(h). Because Luke has inadequately briefed his claimed due process violation, we overrule his third and final issue. Id.; See Harkins v. Dever Nursing Home, 999 S.W.2d 571, 572 (Tex. App.--Houston [14th Dist.] 1999, no pet.).

The judgment of the trial court is affirmed.

Paul W. Green, Justice

1. Although the Honorable Juan Gallardo ruled on the final divorce decree, the Honorable David Berchelmann, the Honorable David Peeples, and the Honorable Phylis Speedlin also ruled on issues which are the subject of this appeal.

2. Lucrecia subsequently filed several amended petitions, with the fourth and final petition submitted to the court on February 21, 2002.

3. We note that Lucrecia failed to file an appellate brief, responding to Luke's issues.