Opinion issued April 9, 2009
In The
Court of Appeals
For The
First District of Texas
NO. 01-08-00198-CV
RITU SINGH, Appellant
V.
RAJIV SINGH, Appellee
On Appeal from the 312th District Court
Harris County, Texas
Trial Court Cause No. 2006-36005
MEMORANDUM OPINION
Appellant Ritu Singh (“Ritu”) appeals from the final judgment of a divorce proceeding ending her marriage to appellee Rajiv Singh (“Rajiv”). Ritu complains that (1) Rajiv’s pleadings and the evidence were insufficient to support the trial court’s decision to name Rajiv as their children’s primary conservator; (2) the trial court failed to accomplish a just and right division of the marital estate; (3) the trial court’s findings of fact and conclusions of law were insufficient to support the judgment; and (4) the trial court abused its discretion in denying Ritu’s motion for continuance and motion for new trial. Finding no error, we affirm.
Background
Rajiv and Ritu married in 1993. The parties have two minor children together. During the marriage, Rajiv was employed full-time as partner in a small business. For all but three years of the parties’ marriage, Ritu did not work outside of the home, and she was not employed at the time of the divorce.
Rajiv filed for divorce on June 13, 2006. Six months later, Ritu filed a counter-petition. While the divorce proceeding was pending, Ritu lived in the parties’ Pasadena residence, while Rajiv prepared to put it on the market for sale to offset some of the marital estate’s substantial debt. In the summer of 2007, Rajiv made a unilateral decision to remove the children from the private school they had been attending, moved them from the Pasadena home to his home in Fort Bend County, and enrolled them in the Fort Bend public school system at the start of the new school year. In the meantime, Ritu had liberal visitation of the children at mutually agreed-upon times.
In July of 2007, Ritu’s former counsel moved to withdraw from representation. In conjunction with that motion, counsel filed a second motion for continuance on behalf of Ritu, asking the court to grant her time to find new counsel. The trial court granted the request and continued the trial to November 12, 2007.
On the trial date, Ritu appeared before the trial court pro se to request a third continuance for additional time to retain counsel. The trial court denied this motion and proceeded to trial.
At trial, Rajiv submitted oral and written evidence, including an inventory and appraisements of the parties’ assets and debts. Ritu declined to introduce any evidence or make any objections to Rajiv’s testimony or evidence.
The trial court signed the divorce decree on December 5, 2007. The decree designated the parents as joint managing conservators and gave Rajiv, as primary conservator, the exclusive right to determine the primary residence of their children. The trial court also awarded Rajiv $556,000 of the $585,000 total gross value of the community estate. At the same time, the trial court ordered that Rajiv was responsible for $508,657 of the debt held by the estate. Ultimately, the trial court’s division awarded Rajiv 45% and Ritu 55% of the net value of the community estate.
Ritu secured counsel and moved for new trial. The trial court heard the motion and denied it on February 21, 2008.
DISCUSSION
Conservatorship and Division of Property
Ritu contends the trial court erred in its appointment of Rajiv as the children’s primary managing conservator as well as in its division of the parties’ community property, challenging both the sufficiency of the evidence and the trial court’s exercise of discretion.
Standard of Review
In family law cases, we review issues concerning conservatorship and property division for abuse of discretion. Grayson v. Grayson, 103 S.W.3d 559, 561 (Tex. App.—San Antonio 2003, no pet.); see also Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998) (recognizing trial court is afforded wide discretion in dividing marital estate). Under an abuse of discretion standard, legal and factual insufficiency are not independent grounds of error, but rather are relevant factors in assessing whether the trial court abused its discretion. Stamper v. Knox, 254 S.W.3d 537, 542 (Tex. App.—Houston [1st Dist.] 2008, no pet.). The trial court does not abuse its discretion as long as some evidence of a substantive and probative character exists to support the trial court’s decision. Id. In a sufficiency review, appellate courts apply a hybrid analysis because the sufficiency-of-the-evidence and abuse-of-discretion standards of review often overlap in family law cases. Id.
Within this overarching standard, we engage in a two-pronged inquiry to determine whether the trial court (1) had sufficient information on which to exercise its discretion and (2) erred in its application of discretion. Id. The traditional sufficiency review comes into play in addressing the first question. Id. When conducting a legal-sufficiency review, we determine whether the evidence would enable reasonable people to reach the judgment being reviewed. Id. (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). We consider favorable evidence if a reasonable fact finder could, and we disregard contrary evidence unless a reasonable fact finder could not. Stamper, 254 S.W.3d at 542. In a factual sufficiency review, we consider all the evidence supporting and contradicting the finding. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). We set aside the finding only if the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). With regard to whether the trial court abused its discretion, we determine whether, based on the elicited evidence, the trial court made a reasonable decision. Stamper, 254 S.W.3d at 542.
Conservatorship
Ritu contends that the evidence is legally and factually insufficient to support the trial court’s finding that it was in the best interest of the children to appoint Rajiv as primary joint managing conservator with the exclusive right to establish their primary residence. It is a rebuttable presumption that the appointment of the parents as joint managing conservators is in the best interest of their child. Tex. Fam. Code Ann. § 153.131(b)(1) (Vernon 2008). In appointing joint managing conservators, the court shall designate the conservator who has the exclusive right to determine the primary residence of the child. Id. § 153.134(b)(1). The best interest of the child is always the primary consideration in determining conservatorship. Id. § 153.002. Because the trial court faced the parties and their witnesses, observed their demeanor, and evaluated the claims made by each parent, it is in a better position to determine what will be in the best interest of a child. In re Marriage of Jeffries, 144 S.W.3d 636, 638–39 (Tex. App.—Texarkana 2004, no pet.).[1]
The record shows that the children had been living with Rajiv in Fort Bend County since August of 2007, and that they attend school in the Fort Bend Independent School District. The trial court heard evidence that the children were happy in their new school and that Ritu visited them regularly. No evidence suggests that placing the children with Rajiv would be detrimental to their interest. This evidence is sufficient to allow a reasonable people to find that it would be in the best interest of the children to designate Rajiv as primary managing conservator with the exclusive right to determine the children’s primary residence. Additionally, given that Ritu produced no evidence to the contrary, the trial court’s finding is not against the overwhelming weight of the evidence as to be clearly wrong and unjust. The trial court had sufficient facts on which to exercise its discretion and made a reasonable decision based on those facts. We therefore hold that the trial court did not abuse its discretion in appointing Rajiv as primary joint managing conservator with the exclusive right to determine the children’s primary residence.
Property Division
Ritu next contends that there was insufficient evidence to support a just and right property division and that the trial court abused its discretion in the just and right division. Specifically, Ritu argues that the property division was an abuse of the trial court’s discretion because the Court did not have adequate information to support its judgment.
In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage. Tex. Fam. Code Ann. § 7.001 (Vernon 2006). It is the responsibility of the parties to the suit to produce evidence of the value of various properties in order to provide the trial judge with a basis on which to make the division. Wallace v. Wallace, 623 S.W.2d 723, 725 (Tex. Civ. App.—Houston [1st Dist.] 1981, writ dism’d). The party complaining of the trial court’s division of the property must be able to demonstrate from the record that the division is so unjust and unfair as to constitute an abuse of discretion. Id.
The trial court admitted into evidence Rajiv’s inventory list assigning values to various assets and liabilities and his proposed property division, as well as his testimony regarding the parties’ assets and liabilities, which the trial court used as the basis for its judgment. Ritu did not object to Rajiv’s evidence, declined to ask him any questions, and did not offer any evidence of her own to controvert the values provided in the inventory list. Because Ritu did not dispute the evidence concerning the value of the community estate in the trial court, she waived any appellate complaint that the trial court lacked sufficient information to make its decision. See Vannerson v. Vannerson, 857 S.W.2d 659, 670 (Tex. App.—Houston [1st Dist.] 1993, writ denied) (“Where an appellant does not provide values on any of the property to the trial court, he cannot on appeal complain of the trial court's lack of complete information in dividing that property.”); see also LeBlanc v. LeBlanc, 761 S.W.2d 450, 453 (Tex. App.—Corpus Christi 1988), aff’d, 778 S.W.2d 865 (Tex. 1989).
The evidence presented by Rajiv is sufficient to support the trial court’s findings of fact and conclusions of law, and, in light of the available evidence, it did not make an unreasonable decision regarding the division of property. We therefore hold that the trial court did not abuse its discretion in its division of the community estate.
Denials of Motion for Continuance and Motion for New Trial
Ritu contends the trial court abused its discretion in denying her motion for continuance and motion for new trial. We review denials of a motion for continuance and a motion for new trial for abuse of discretion. In re R.R., 209 S.W.3d 112, 114 (Tex. 2006); Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner or when it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
Under the abuse of discretion standard, we view the evidence in the light most favorable to the trial court’s actions and indulge every presumption in favor of the judgment. Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.—Houston [1st Dist.] 1993, writ denied). Even if the reviewing court would have decided the issue differently, it cannot disturb the trial court’s decision unless it is shown to be arbitrary and unreasonable. Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992). If some probative and substantive evidence supports the order, there is no abuse of discretion. Whitworth v. Whitworth, 222 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
Motion for continuance
Ritu asserts that the trial court abused its discretion in denying her third motion for continuance, claiming that, based on the totality of the circumstances, sufficient facts existed to require the continuance.
A motion for continuance may not 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; O’Connor v. O’Connor, 245 S.W.3d 511, 516 (Tex. App.—Houston [1st Dist.] 2007, no pet. h.). Absence of counsel, standing alone, is not good cause for a continuance. Tex. R. Civ. P. 253; O’Connor, 245 S.W.3d at 516. When withdrawal of counsel is the ground for continuance, the movant must show that failure to be represented by counsel at trial was not due to his own fault or negligence. Villegas, 711 S.W.2d at 626.
Ritu does not make any such showing. The trial court had granted two prior continuances at Ritu’s request. The second, granted in tandem with Ritu’s prior attorney’s motion to withdraw, continued the trial setting for nearly four months. Compare id. (holding that trial court abused its discretion in refusing to continue case where, through no fault of appellant, counsel withdrew two days before trial). In the hearing on Ritu’s third motion for continuance, Ritu explained that she did not obtain counsel during that period because of opposing counsel’s two-month delay in responding to her correspondence, and because she could not pay an attorney.[2] This explanation is insufficient to demonstrate that Ritu acted diligently in seeking counsel. Based on the facts presented, we hold that the trial court did not abuse its discretion in denying Ritu’s motion for continuance.
Motion for new trial
Ritu’s complaint concerning the denial of her motion for new trial also fails. Ritu likens her case to C. v. C., 534 S.W.2d 359, 361 (Tex. App.—Dallas 1976, writ dism’d), in which the court of appeals held that failure to grant a motion for new trial may be an abuse of discretion when the evidence presented is sufficiently strong. Id. In C. v. C., the court, citing affidavits in support of the mother’s motion for new trial that showed the father had a violent temper and had treated his children harshly, held that the trial court abused its discretion. Id.
Here, in contrast to the record in C. v. C., nothing in this record indicates that the trial court’s custody order has had any adverse effect on the children. See id. In her affidavit in support of her motion for new trial, Ritu complains that the court heard “nothing of our lives or how the boys are cared for,” but does not state any facts that bear negatively on the children’s care or well-being while in Rajiv’s custody. The trial court thus did not abuse its discretion in overruling Ritu’s motion for new trial.
Sufficiency of the Pleadings
Finally, Ritu contends that Rajiv’s pleadings were legally insufficient. To preserve a complaint regarding the adequacy of pleadings in a non-jury case, an objection must be made in writing and presented to the trial court before the judgment is signed. Tex. R. Civ. P. 90; In re A.C.S., 157 S.W.3d 9, 18 (Tex. App.—Waco 2004, no pet.). The record reveals that these complaints were not properly preserved at trial. Thus, they are waived on appeal. See Tex. R. App. P. 33.1.
CONCLUSION
We hold that the trial court did not abuse its discretion in naming Rajiv as primary managing conservator with the exclusive right to determine the children’s primary residence or in dividing the marital estate. We further hold that the trial court acted within its discretion in denying Ritu’s motion for continuance and motion for new trial. We therefore affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Judges Taft, Bland, and Sharp.
[1] A non-exhaustive list of factors courts may examine in determining the best interest of a child include: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individual seeking custody; (5) the programs available to assist the individual; (6) the plans for the child by the parent and the individual seeking custody; (7) the stability of the home; (8) the parent’s acts or omissions that indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the parent’s acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). A trial court may also consider “any other relevant factor” in its determination. Tex. Fam. Code Ann. § 153.134(7) (Vernon 2008). A court is required to apply the Holley factors in examining whether termination of a parent’s rights is in the best interest of the child. See Vasquez v. Tex. Dep’t of Prot. & Reg. Servs., 190 S.W.3d 189, 196 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (citing Holley, 544 S.W.2d at 371–72). No such requirement exists, however, when—as here—the court is deciding primary managing conservatorship and neither parent’s fitness is at issue.
[2] At the hearing on the motion for new trial, Ritu’s counsel conceded that Ritu held an account with more than $10,000.00.