IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
AUGUST 16, 2004
______________________________
IN THE MATTER OF THE MARRIAGE OF
DANIEL D. CLAYTON AND NANCY L. CLAYTON
_________________________________
FROM THE 317TH DISTRICT COURT OF JEFFERSON COUNTY;
NO. C-172,102-A; HONORABLE LARRY THORNE, JUDGE
_______________________________
Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINIONAppellant Daniel D. Clayton, proceeding pro se, appeals from a divorce decree upon a non-jury trial, contending the trial court erred in making an unequal division of the property to appellee Nancy L. Clayton. By three points of error, he contends the trial court erred in (1) failing to set aside the property division as sought by both parties, (2) entry of the federal civil service retirement system order, and (3) entry of the military (reserve) qualifying court order. We affirm.
Following a hearing held on March 5, 2003, on the petition for divorce, on June 27, 2003, the trial court signed a final decree of divorce. (1) By a handwritten order signed on September 9, 2003, among other things, the trial court denied a motion for new trial and all other pending motions. Also, on that same date, the trial court signed an order regarding Nancy's civil service retirement benefits and a qualifying court order regarding Daniel's military reserve retirement benefits. By his notice of appeal, Daniel indicated he was appealing the judgment signed June 27, 2003, and the order denying the motion for new trial signed September 9, 2003.
Pursuant to Rule 34.6(c)(1) of the Texas Rules of Appellate Procedure, Daniel requested preparation of a partial reporter's record of the hearing held on September 9, 2003. He specifically requested relevant portions regarding the trial court's denial of the motion for new trial and entry of disputed civil service and military retirement benefits. When a partial reporter's record is filed, an appellate court presumes that the record constitutes the entire record for purposes of reviewing the stated points or issues. Tex. R. App. P. 34.6(c)(4).
By his first point, Daniel contends the trial court erred in failing to set aside the property division following the September 9, 2003 hearing on his motion for new trial. By his second and third points he contends the trial court erred in making a division of the retirement benefits for both spouses. Because the three points of error all implicate the trial court's discretion, we will consider them simultaneously. Daniel challenges the division of the marital property and the retirement benefits and requests that we set aside the challenged orders and remand the cause to the trial court for a hearing. We disagree.
Daniel twice requested that the trial court make findings of fact and conclusions of law; however, none were made nor filed. Also, Daniel did not give notice of past due findings of fact and conclusions of law as required by Rule 297 of the Texas Rules of Civil Procedure. (2)
A motion for new trial is addressed to the trial court's discretion and its ruling will not be disturbed on appeal absent a showing of abuse of discretion. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984). The scant partial reporter's record filed of the hearing on the motion for new trial shows that the only witness called by Daniel, acting as his own counsel, was Nancy's counsel. Daniel attempted to establish that the division of property was disproportionate. However, no new evidence or legal basis was offered in support of the motion for new trial by which Daniel sought to set aside the trial court's division of property.
Furthermore, a trial court has wide discretion in the division of marital property and that discretion will not be disturbed on appeal without a showing of clear abuse of discretion. Jacobs. v. Jacobs, 687 S.W.2d 731, 733 (Tex. 1985); Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). Indulging the presumption that the partial reporter's record constitutes the entire record for reviewing Daniel's complaints, no abuse of discretion is demonstrated in the trial court's denial of Daniel's motion for new trial nor in the court's division of the marital property and the retirement benefits. Points of error one, two, and three are overruled.
Accordingly, the judgment of the trial court is affirmed.
Don H. Reavis
Justice
1. After the decree was signed, filings with the clerk included (1) petition for enforcement; (2) request for findings of fact and conclusions of law; (3) petition for enforcement by contempt; (4) second request for findings of fact and conclusions of law; (5) response to motion for sanctions; (6) first amended petition for enforcement by contempt; (7) second amended petition for enforcement; (8) response to motion to sign qualified domestic relations order; and (9) first supplemental response to second amended petition for enforcement.
2. Daniel does not present any error in the trial court's failure to make and file findings of fact and conclusions of law.
in">Mandamus Standard of Review
“Mandamus issues only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law.” Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding), quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding). To show entitlement to mandamus relief, a relator must (1) show that he has no adequate remedy at law to redress the alleged harm and (2) the act sought to be compelled is ministerial and does not involve a discretionary or judicial decision. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210 (Tex.Crim.App. 2007). Additionally, a relator must satisfy three requirements: (1) a legal duty to perform; (2) a demand for performance; and (3) a refusal to act. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979).
When a motion is properly pending before a trial court, the act of considering and ruling upon it is a ministerial act. Eli Lilly and Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992). However, the trial court has a reasonable time within which to perform that ministerial duty. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.App.–San Antonio 1997, orig. proceeding). Whether a reasonable period of time has lapsed is dependent on the circumstances of each case. Barnes v. State, 832 S.W.2d 424, 426 (Tex.App.–Houston [1st Dist.] 1992, orig. proceeding).
Additionally, the party seeking relief has the burden to provide a sufficient record to establish entitlement to mandamus relief. Walker, 827 S.W.2d at 837. The record must show that the motion was presented to the trial court and that it refused to act. See generally In re Villareal, 96 S.W.3d 708, 710 n.2 (Tex.App.–Amarillo 2003, orig. proceeding) (filing something with the trial court clerk does not demonstrate that a motion was presented to the trial court). See also In re Chavez, 62 S.W.3d 225, 228 (Tex.App.–Amarillo 2001, orig. proceeding).
Discussion
Notwithstanding Judge Enn’s letter to Relator that he will “defer ruling” on pending motions and Relator’s prayer that we compel the trial court “to respond to his motions currently before it, and or to put into motion the warrant necessary to move [relator] to its jurisdiction for testing,” the record before us does not contain certified or sworn copies of any motions pending before Judge Enns. See Tex. R. App. P. 52.3(j)(1)(A). The record does contain copies of “Defendant’s Motion for DNA Testing” and “Defendant’s Amended Motion for DNA Testing,” which the trial court granted in 2005. Appendix item J is a copy of Relator’s “Request for Appointment of Counsel Persuant [sic] to Article 64.01(c) Code of Criminal Procedure.” A date of “3-31-08" is noted beside Relator’s signature. The document, however, is not file-stamped by the trial court clerk.
Except for a reference in Judge Enn’s May 8, 2007 letter to Relator providing that he will defer ruling on pending motions, Relator has not satisfied his burden to provide a sufficient record demonstrating that properly filed motions were presented to the trial court and have awaited disposition for an unreasonable length of time. Neither has Relator demonstrated that the trial court has abused its discretion or violated a duty imposed by law.
Consequently, Relator’s petition for writ of mandamus is denied.
Patrick A. Pirtle
Justice