Affirmed and Memorandum Opinion filed May 13, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-07-00487-CV
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RICHARD STEVEN PATTERSON, Appellant
V.
GWENDOLYN ELIZABETH PATTERSON, Appellee
On Appeal from the 247th District Court
Harris County, Texas
Trial Court Cause No. 2006-42569
M E M O R A N D U M O P I N I O N
Appellant, Richard Steven Patterson, appeals the final decree of divorce signed by the trial court on March 5, 2007. We affirm.
Factual and Procedural Background
Appellee, Gwendolyn Elizabeth Patterson, filed for divorce on July 17, 2006. At the time the divorce was filed, there was no child of the marriage under the age of 18. Appellant filed a Waiver of Citation, Original Answer, and Counter-Claim for Divorce on August 23, 2006. Appellant subsequently filed a First Amended Answer on September 5, 2006, which included special exceptions. There is nothing in the record on appeal to indicate a hearing was ever held on appellant=s special exceptions or that the trial court ruled on them. On December 4, 2006, the trial court ordered the parties to mediation. The record indicates this mediation did not occur.
On February 5, 2007, despite having already filed a counterclaim on August 23, 2006, appellant filed Respondent=s Original Counterclaim. Appellant included a jury demand in this pleading. Simultaneously, appellant filed an affidavit alleging indigence and seeking to have the trial court waive the jury fee. There is no indication in the record the trial court considered this request or entered an order pursuant to Rule 217 of the Texas Rules of Civil Procedure instructing the clerk to place the suit on the jury docket despite the non-payment of the jury fee.
On March 5, 2007 a bench trial was held, the trial court granted the divorce, and signed the final decree of divorce. No reporter=s record was taken of the proceedings. As part of the divorce decree, appellant was ordered to pay $8,500.00 in attorney=s fees incurred by appellee. Appellant filed a Motion for New Trial and to Set Aside and/or Modify Judgment on April 4, 2007. Appellant=s motion for new trial was overruled by operation of law and this appeal followed.
Discussion
Appellant raises five issues on appeal: (1) the trial court abused its discretion when it refused to transfer the divorce suit to the district court where a prior divorce suit between the parties had allegedly been filed; (2) the trial court abused its discretion when it denied appellant a jury trial; (3) the trial court erred when it assessed appellee=s attorney=s fees against appellant; (4) the trial court erred when it denied a motion for continuance allegedly filed by appellant; and (5) the trial court erred when it did not enforce a local rule requiring service on appellant of a copy of a proposed judgment or final order at least five days before the entry date of the same. We address each issue in turn.
I. The Appellate Record
The record in this appeal consists only of a small clerk=s record. Appellant filed an appendix to his brief containing documents not found in the clerk=s record. Appellee contends we may not consider these additional documents in our resolution of this appeal. We agree. An appellate court must hear and determine a case on the record as filed, therefore we cannot consider any of the documents contained in appellant=s appendix not also found in the clerk=s record. Mitchison v. Houston Independent School Dist., 803 S.W.2d 769, 771 (Tex. App.CHouston [14th Dist.] 1991, writ denied).
II. Appellant Waived His Argument On Appeal That The Trial Court Abused Its Discretion By Not Transferring the Divorce Action
In his first issue on appeal, appellant contends the trial court abused its discretion when it failed to abide by the requirements of Rule 2 of the Rules of the Judicial District Courts of Harris County, Texas B Family Trial Division, by not transferring the 2006 divorce case to the court where a divorce action between appellant and appellee had allegedly been previously assigned. In appellant=s view, this alleged violation of a local procedural rule deprived the trial court of subject matter jurisdiction to handle the 2006 divorce action. Appellee responds appellant has waived consideration of this issue on appeal because he did not make reference to any document in the appellate record supporting appellant=s contention there was a previously filed divorce action. We agree with appellee.
An appellant=s brief must contain a clear, concise argument for the contentions made, including appropriate citations to authorities and the record. Tex. R. App. P. 38.1(h); Nguyen v. Kosnoski, 93 S.W.3d 186, 188 (Tex. App.CHouston [14th Dist.] 2002, no pet.). Here, appellant has not cited to any document in the record supporting his contention there was a previously filed divorce action between appellant and appellee. An issue not supported by authority or references to the record is waived. Id. Accordingly, appellant has waived review of this issue. We overrule appellant=s first issue.
III. Appellant Waived Consideration Of His Issue Contending The Trial Court Erred When It Allegedly Denied Appellant=s Request For A Jury Trial
In his second issue, appellant argues the trial court abused its discretion when it denied his request for a jury trial. Appellee asserts appellant has waived this issue on appeal because he failed to preserve this issue for appellate review by objecting on the record to the trial court conducting a bench trial. Once again, we agree with appellee.
When a party has perfected his right to a jury trial in accordance with Rule 216 of the Texas Rules of Civil Procedure but the trial court proceeds to trial without a jury, the party must, to preserve error, object on the record or affirmatively indicate on the record it intends to stand on its perfected right to a jury trial. In re K.M.H., 181 S.W.3d 1, 8 (Tex. App.CHouston [14th Dist.] 2005, no pet.) (citing Sunwest Reliance Acquisitions Group, Inc. v. Provident Nat=l Assurance Co., 875 S.W.2d 385, 387B88 (Tex. App.CDallas 1993, no writ). The burden is on an appellant to bring forth a record sufficient to show reversible error. Sunwest, 875 S.W.2d at 388. Because there is no reporter=s record in this appeal, even assuming without deciding appellant perfected his right to a jury trial, appellant cannot demonstrate he preserved this issue for appellate review by objecting on the record or otherwise affirmatively indicating on the record his intention to stand on his right to a jury trial. Accordingly, appellant has waived this issue on appeal. Tex. R. App. P. 33.1; Sunwest, 875 S.W.2d at 388. We overrule appellant=s second issue.
IV. Appellant Has Not Shown The Trial Court Abused Its Discretion When It Ordered Appellant To Pay Appellee=s Attorney=s Fees
In his third issue, appellant contends the trial court abused its discretion when it awarded appellee her attorney=s fees as part of the Final Decree of Divorce. In appellant=s view, the trial court erred because appellee did not include a request for attorney=s fees in any of her pleadings.
We review a trial court=s award of attorney=s fees for an abuse of discretion. Panozzo v. Panozzo, 904 S.W.2d 780, 785 (Tex. App.CCorpus Christi 1995, no writ). A trial court abuses its discretion when it acts arbitrarily, unreasonably, or without reference to any guiding principals. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).
A trial court may apportion attorney=s fees in a divorce action as part of a just and right division of the property. Henry v. Henry, 48 S.W.3d 468, 480 (Tex. App.CHouston [14th Dist.] 2001, no pet.). Attorney=s fees incurred by both spouses during the divorce are a factor to be considered by the trial court in making an equitable division of the marital estate. Carle v. Carle, 149 Tex. 469, 474, 234 S.W.2d 1002, 1005 (1950). The fact the final divorce decree in this case does not include the attorney fee award in the list of property awarded to appellee cannot be viewed as an indication the attorney=s fees were not considered in the division. Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981).
In her Original Petition for Divorce, appellee asked the trial court, in the event the parties could not agree on a property division, to divide the marital estate in a manner the trial court deemed just and right and as provided by law. In addition, in appellee=s Original Answer to appellant=s counterclaim, appellee asked for her attorney=s fees as part of an equitable division of the estate or, alternatively, they be taxed as costs. Pleadings are to be liberally construed in favor of the pleader, particularly when, as here, the complaining party did not obtain a ruling on his special exceptions. See Tull v. Tull, 159 S.W.3d 758, 762 (Tex. App.CDallas 2005, no pet.). The purpose of the pleading is to give notice of the claim involved. Id. Appellee=s pleadings adequately apprised appellant that appellee was seeking the recovery of her attorney=s fees as part of her suit for divorce.[1] We overrule appellant=s third issue.
V. Appellant Waived Consideration of His Issue Contending The Trial Court Erred When It Allegedly Denied Appellant=s Motion For Continuance
In his fourth issue, appellant asserts the trial court erred when it denied his motion for continuance. In response, appellee contends appellant waived appellate review of this issue as there is no motion for continuance and no order denying a motion for continuance in the appellate record. For the same reasons stated in sections II and III of this opinion, appellant has waived this issue. We overrule appellant=s fourth issue.
VI. Appellant Has Not Established He Was Harmed As A Result Of Not Being Served With The Proposed Judgment As Required By The Local Rules
In his fifth issue, appellant asserts the trial court erred when it signed the Final Decree of Divorce in this case even though appellant was allegedly not served with the proposed final divorce decree in compliance with rule 3.8 of the Rules of the Judicial District Courts of Harris County, Texas B Family Trial Division.[2] In response, appellee contends appellant has failed to show he was harmed by the alleged violation of the local rule. We agree with appellee.
Assuming without deciding local rule 3.8 applies under the facts of this case and that appellant did not receive a copy of the proposed judgment at least five days before the entry of the final decree of divorce, appellant has not shown he was harmed by this omission. Under Rule 44.1, to obtain a reversal of a judgment on appeal, an appellant must demonstrate the error probably (1) caused the rendition of an improper judgment; or (2) prevented appellant from properly presenting the case to the court of appeals. Tex. R. App. P. 44.1(a). Here, appellant has not shown how the violation of the local rule led to the rendition of an improper judgment or prevented him from properly presenting his case to this court because, through his motion for new trial, appellant was able to lodge numerous objections to the judgment, including the same complaints he raises in this appeal, prior to the expiration of the trial court=s plenary power. We overrule appellant=s fifth issue.
Conclusion
Having addressed and overruled all issues raised by appellant in this appeal, we affirm the trial court=s final decree of divorce.
/s/ John S. Anderson
Justice
Judgment rendered and Memorandum Opinion filed May 13, 2008.
Panel consists of Chief Justice Hedges and Justices Anderson, and Boyce.
[1] In his brief, appellant contends appellee=s original answer containing her specific request for attorney=s fees was moot because the trial court struck his original counterclaim. We need not resolve this issue as there is no order striking appellant=s original counterclaim in the appellate record.
[2] In pertinent part, rule 3.8 provides:
Judgments and Orders. All judgments and orders must be submitted to the court for signing within ten (10) days from the date of rendition, unless otherwise directed by the court. The party who is directed to prepare the judgment or order shall furnish all opposing parties with a copy of the proposed judgment or order at least five (5) days prior to the entry date.
Harris Cty. (Tex.) Dist. Ct. Fam. Div. Loc. R. 3.8