Jose Fernandez Galan Palau v. Flor De Maria Navarro Sanchez

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-08-00136-CV

Jose Fernandez Galan Palau, Appellant

v.

Flor de Maria Navarro Sanchez, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
NO. D-1-FM-06-002234, HONORABLE DARLENE BYRNE, JUDGE PRESIDING

MEMORANDUM OPINION

This is an appeal from a final divorce decree dissolving the marriage of Appellant

Jose Fernandez Galan Palau (“Galan”) and Appellee Flor de Maria Navarro Sanchez (“Navarro”).

Galan raises several issues challenging pre-trial rulings and the final divorce decree. Because we

find no error in the trial court’s determinations, we affirm the trial court’s judgment.

BACKGROUND

Galan and Navarro were married in 1950.1 Navarro filed for divorce in Mexico in

2003, alleging that Galan had committed adultery. In her divorce petition, Navarro sought thirty

percent of “the value of the goods acquired by [Galan] during the marriage.” The Mexico court

1
During their marriage, Galan and Navarro had four children. By the time the divorce
proceedings were underway, one of the children had passed away and the other three children were
over the age of eighteen.
denied Navarro’s petition for divorce in February 2006, concluding that Navarro failed to prove that

Galan committed adultery. Because the court denied the divorce, it also denied Navarro’s request

to receive thirty percent of the goods acquired by Galan during the marriage. Navarro appealed the

judgment but then officially abandoned her appeal on May 3, 2006. The Mexico court dismissed the

appeal on May 4, 2006.

On the same day, Navarro filed a petition for divorce in Texas.2 On May 23, 2006,

Galan filed a petition for divorce in Mexico. In the Texas lawsuit, the parties served discovery

requests on each other. On April 16, 2007, Navarro filed a motion to compel Galan to respond to

her discovery requests. After a hearing, the trial court granted the motion, finding that Galan had

“wholly failed to respond or to object to any of [the] properly served discovery requests” and “wholly

failed to complete and exchange his Sworn Inventory and Appraisement.” The trial court ordered

Galan to provide the documents by a certain date and to pay the attorney’s fees Navarro incurred in

bringing the motion.

On May 10, 2007, Navarro filed a second motion to compel and for sanctions after

Galan failed to comply with the court’s previous order. At a hearing on the motion on May 17, 2007,

Galan’s counsel requested thirty more days to respond to the discovery requests. The trial court

granted the request but stated: “This [order] needs to be complied with and not before the Court

again. And if it is [before the court again], then I would certainly encourage significant sanctions.”

2
According to the record, Navarro had been living in a house in Austin since
September 2005.

2
 After thirty days passed and Galan still had not complied with the trial court’s order,

Navarro filed a third motion to compel and for sanctions on June 19, 2007. The trial court held a

hearing on the motion and found that Galan failed to comply with the trial court’s order. As

sanctions, the trial court ordered that Galan was prohibited from offering any documentary evidence

in support of his separate-property claims unless the evidence was produced prior to July 19, 2007,

the day the order was signed. The trial court also ordered Galan to pay: (1) Navarro’s discovery

expenses; (2) the attorney’s fees Navarro incurred in bringing the current and previous motions to

compel; and (3) the cost of the transcript of the previous hearing.

Meanwhile, Navarro filed a motion for temporary orders, and the trial court granted

the motion, awarding Navarro temporary support and interim attorney’s fees. The trial court also

ordered Galan to pay the property taxes on two of the couple’s Austin properties and the mortgage

payments on another.

On July 30, 2007, Navarro filed a motion to enforce the trial court’s July 19, 2007

order and motion for sanctions. After a hearing, the trial court found that Galan had not complied

with the July 19, 2007 order. The trial court ordered Galan to pay the previously ordered monetary

sanctions to Navarro by September 4, 2007, and to respond to Navarro’s discovery requests by

August 31, 2007.

On August 14, 2007, Navarro filed a motion to compel depositions and for sanctions.

After a hearing, the trial court denied Navarro’s motion for sanctions but granted her motion to

compel depositions. The trial court ordered, among other things, that Galan be deposed on

September 4, 2007. Galan did not appear for his deposition as ordered.

3
 On September 4, 2007, Navarro filed a Motion for Sanctions for Violation of Court

Orders, alleging that Galan violated the court’s orders that he appear for his deposition and respond

to discovery requests. At a hearing on a different motion on September 10, 2007, the trial court

ordered that Galan appear for his deposition on September 18, 2007. Galan did not appear for his

deposition as ordered. On September 27, 2007, the trial court held a hearing on Navarro’s Motion

for Sanctions for Violation of Court Orders. The court found that Galan failed to comply with four

court orders by not responding to discovery requests and not paying monetary sanctions. The court

further sanctioned Galan, ordering that he was prohibited from offering any evidence regarding his

separate-property claims unless the evidence was produced prior to the close of discovery on

September 21, 2007. In a separate order, the trial court also found that Galan failed to appear for

two depositions and ordered him to appear on October 2, 2007. The court further ordered that if

Galan did not appear for his deposition, he would be prohibited from offering any evidence of

affirmative claims.

When Galan arrived with his counsel for his deposition on October 2, 2007, a process

server served him with a motion for enforcement of previous court orders by contempt, alleging that

he had not responded to discovery requests, paid monetary sanctions, or appeared for depositions as

ordered. Because the motion requested that Galan be jailed for noncompliance, Galan claimed a

Fifth Amendment right to remain silent and left without testifying.

On October 9, 2007, Galan filed a pre-trial writ of habeas corpus, arguing that he was

entitled to refuse to testify at his deposition based on his Fifth Amendment right. At a hearing on

the motion, Navarro offered to withdraw her request for jail time with prejudice as long as Galan

4
appeared for his deposition on October 17, 2007, and Galan agreed. Accordingly, the trial court

ordered Galan to appear and testify at his deposition on October 17, 2007. At the same hearing, the

trial court considered another motion to compel filed by Navarro. The trial court granted the motion

and sanctioned Galan for his failure to respond to Navarro’s second set of interrogatories by ordering

that Galan’s experts were prohibited from testifying as to any impressions or opinions that had

not been disclosed as of the date of the hearing. Galan did not appear for his deposition on

October 17, 2007, claiming that he was ill and under doctor’s orders to stay in bed.3

On November 5, 2007, the trial court heard pre-trial motions, including a motion for

sanctions filed by Navarro. The trial court granted the motion, finding that Galan had failed to

comply with multiple court orders requiring him to respond to discovery requests and appear for his

deposition. As sanctions, the trial court ordered that Galan was prohibited from offering evidence

of any affirmative claims at trial, including his separate-property claims.

The case went to trial on November 6, 2007. At the close of trial, the trial court

granted the divorce on grounds of insupportability and adultery and ordered that Navarro receive

62.5 percent of the community estate and Galan receive the remaining 37.5 percent of the community

estate. In addition, the trial court ordered Galan to pay 62.5 percent and Navarro to pay 37.5 percent

of the attorney’s fees incurred at trial. The trial court also ordered Galan to pay attorney’s fees for

any appeals brought from the trial court’s final judgment.

On November 15, 2007, after the trial court had issued its ruling but before it had

entered its final divorce decree, UBS Financial Services Inc. (“UBS”) filed an interpleader action.

3
At trial, Galan admitted that he had received a traffic ticket in Mexico on October 17, 2007,
the day he was ordered to appear at his deposition in Texas.

5
UBS was a disinterested stakeholder who maintained two investment accounts that had been claimed

by both Navarro and Galan.

On the following day, November 16, 2007, the trial court entered its final divorce

decree. The decree awarded the two investment accounts maintained by UBS to Navarro. The trial

court issued its findings of fact and conclusions of law on December 21, 2007. Galan filed a notice

of appeal on February 13, 2008.

On March 31, 2008, the trial court held a hearing regarding UBS’s interpleader action.

After hearing UBS’s arguments, the trial court granted UBS’s petition and ordered that UBS transfer

the two investment accounts into the registry of the court. The trial court also ordered that UBS be

discharged from the suit and that Navarro and Galan be enjoined from taking any action against UBS

regarding its management of the accounts.

On April 29, 2008, the Mexico court handling Galan’s divorce suit granted Navarro

and Galan a divorce. On April 30, 2008, Banc of America Investment Services, Inc. (“Bank of

America”) filed an interpleader action in Texas, alleging that it managed an investment account to

which Navarro and Galan had made rival claims. The trial court granted Bank of America’s petition

on May 13, 2008, and discharged Bank of America from the suit. On June 12, 2008, Galan filed a

second notice of appeal from the final divorce decree.

DISCUSSION

Galan raises five issues on appeal, contending that: (1) this case was rendered moot

by the final Mexico judgment; (2) the trial court erred in denying Galan’s plea in abatement; (3) the

trial court erred in imposing sanctions prohibiting Galan from offering evidence as to his separate-

6
property claims; (4) the trial court erred in characterizing the property involved in the divorce as

community property; and (5) the trial court erred in issuing fifty-three of its findings of fact and in

denying Galan’s request for findings of fact and conclusions of law regarding his and Navarro’s

separate property.4

We address each of Galan’s issues separately below.

Mootness

Galan argues that an April 29, 2008 Mexico judgment granting Galan and Navarro

a divorce rendered this appeal moot. Galan concedes that the final divorce decree in the Texas case

was issued on November 16, 2007, five months before the Mexico judgment was issued, and he does

not dispute that the language or content of the Texas judgment indicates that the judgment is final.

Rather, he argues that Bank of America’s interpleader action, which was filed in the Texas case after

the trial court issued the divorce decree, rendered the divorce decree interlocutory and that the

subsequent order granting Bank of America’s interpleader on May 13, 2008, became the final Texas

judgment. We disagree.

A judgment is final when it disposes of all claims and all parties, regardless of its

language. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93, 200 (Tex. 2001). A judgment

that determines all the equities or substantial merits of the case is not rendered interlocutory even

though further proceedings may be necessary to execute the judgment or an incidental matter still

remains to be settled. See Ferguson v. Ferguson, 338 S.W.2d 945, 947 (Tex. 1960) (quoting

4
Galan also raises a sixth issue, but because we address the arguments from that issue within
other issues in this opinion, we do not address his sixth issue separately.

7
Hargrove v. Insurance Inv. Corp., 176 S.W.2d 744 (Tex. 1944)); Beavers v. Beavers, 651 S.W.2d

52, 53-54 (Tex. App.—Dallas 1983, no writ).

Here, the two parties involved in the Texas divorce action were Galan and Navarro.

Bank of America simply managed an account that had already been divided between the parties in

the final divorce decree. Specifically, the November 2007 Texas divorce decree awarded ownership

of the Bank of America account to Navarro but awarded $550,000 of the funds in the account to

Galan. On April 2, 2008, the trial court ordered Galan to transfer the funds in the Bank of America

account into the registry of the court.5 According to Bank of America’s petition, which was filed on

April 30, 2008, Galan had not yet complied with the trial court’s April 2, 2008 order. Bank of

America’s petition also pointed out that Galan had made at least one attempt to transfer funds in the

account during the divorce proceedings. Accordingly, with knowledge that an appeal of the trial

court’s divorce decree was pending in this Court, Bank of America filed an interpleader action

requesting that Bank of America be removed as manager of the account. The trial court granted the

interpleader on May 13, 2008.

The property at issue in the interpleader action was disposed of along with all parties

and claims in the November 2007 divorce decree. Bank of America’s later-filed interpleader action

did not affect any part of the divorce decree. Thus, the divorce decree was a final judgment, and the

interpleader action was merely an incidental matter that remained to be settled after the judgment

was rendered. See Ferguson, 338 S.W.2d at 947; Beavers, 651 S.W.2d at 53-54. We therefore reject

5
The record indicates that the April 2, 2008 order was based on an agreement between the
parties but does not otherwise indicate why Galan was ordered to transfer the funds.

8
Galan’s argument that the later-issued Mexico judgment rendered this appeal moot, and we

overrule this issue.6

Plea in Abatement

Galan contends that the trial court erred in denying his plea in abatement.

Specifically, he argues that Navarro did not establish the domiciliary and residency requirements

necessary to maintain a suit for divorce. See Tex. Fam. Code Ann. § 6.301 (West 2006).

Section 6.301 states that a suit for divorce may not be maintained in Texas unless, at the time suit

is filed, either the petitioner or the respondent has been: (1) a domiciliary of Texas for the preceding

six-month period; and (2) a resident of the county in which suit is filed for the preceding ninety-day

period. See id.

Section 6.301 is not jurisdictional, but it is akin to a jurisdictional provision in that

it controls a party’s right to maintain a suit for divorce and is a mandatory requirement that the

parties cannot waive. See Reynolds v. Reynolds, 86 S.W.3d 272, 276 (Tex. App.—Austin 2002, no

pet.); Oak v. Oak, 814 S.W.2d 834, 837 (Tex. App.—Houston [14th Dist.] 1991, writ denied).

The residency and domiciliary requirements in section 6.301 are properly attacked

by a plea in abatement. See Reynolds, 86 S.W.3d at 277; Svensen v. Svensen, 629 S.W.2d 97, 98

6
We also note that in a related appeal, the Houston (First District) Court of Appeals recently
issued an opinion vacating a judgment from a Harris County District Court that had granted Galan’s
petition to domesticate the April 2008 Mexico judgment. See Sanchez v. Palau, No. 01-08-00648-
CV, 2010 Tex. App. LEXIS 4371, at *16-17 (Tex. App.—Houston [1st Dist.] June 10, 2010, no pet.
h.). The appellate court held that the Uniform Foreign Country Money-Judgments Recognition
Act—pursuant to which Galan had filed his petition seeking to domesticate the Mexico
judgment—did not authorize the district court to recognize the judgment. Id. at *15. Thus, the
Mexico judgment has not been domesticated in the Texas courts.

9
(Tex. App.—Dallas 1981, no writ). We review a trial court’s ruling on a plea in abatement under

an abuse of discretion standard. See Dolenz v. Cont’l Nat’l Bank, 620 S.W.2d 572, 575 (Tex. 1981);

Molano v. State, 262 S.W.3d 554, 558 (Tex. App.—Corpus Christi 2008, no pet.). An abuse of

discretion occurs when a trial court acts without reference to any guiding rules and principles.

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). In the case of a plea

in abatement, a trial court abuses its discretion if it acts arbitrarily or unreasonably in its ruling. See

Dolenz, 620 S.W.2d at 575.

In Navarro’s original divorce petition, which she filed on May 4, 2006, she alleged

that she had been a domiciliary of Texas for the preceding six-month period and a resident of Travis

County for the preceding ninety-day period. In the plea in abatement that Galan filed the day before

trial, he alleged that Navarro’s statements regarding her domicile and residence were untruthful. As

proof of his claim, he attached to his plea in abatement portions of a deposition of Navarro and

Galan’s daughter, in which the daughter stated that Navarro traveled back and forth from Texas to

Mexico during the six months before Navarro filed the divorce petition. Galan also attached a copy

of Navarro’s border-crossing card and copies of immigration documents explaining that the visa with

which she entered the United States was issued for Mexican citizens who were temporarily visiting

the United States as tourists. In addition, Galan attached an affidavit in which Navarro stated: “I

am a Mexican citizen. I am domiciled in Texas but I have not sought permanent residency status in

the United States.”

At a hearing on Galan’s plea in abatement and various other motions, the trial court

asked Navarro’s counsel for a response to Galan’s plea. Navarro’s counsel stated:

10
 [Navarro] has already testified that she was a resident of the State of Texas six
months prior to the filing of this divorce petition and in Travis County a resident of
the 90-day divorce petition [sic], that was established at the commencement of the
hearing before Judge Dietz back in May ‘06. She will testify to those facts again
when she takes the witness stand.

The trial court denied Galan’s plea in abatement, finding that the plea was untimely

under a local rule.7

Even if we were to assume that the trial court erred in denying Galan’s plea in

abatement, the proper remedy in sustaining a plea in abatement is not to dismiss the suit but to retain

it on the docket so that it may be revived when the impediment is removed. See Svensen,

629 S.W.2d at 98; Black’s Law Dictionary 1269 (9th ed. 2009) (“A defendant who successfully

asserts a plea in abatement leaves the claim open for continuation in the current action or reassertion

in a later action if the defect is cured.”). Thus, even if the documents attached by Galan to his plea

in abatement established that Navarro did not satisfy the domiciliary and residency requirements at

the time she filed her divorce petition, nothing would have stopped her from satisfying the

requirements at the time the plea in abatement was heard so as to cure any defect in her petition. At

trial on the day following the hearing in November 2007, Navarro testified that she had been living

at a house in Austin since September 2005. She testified that she went back and forth from Austin

to Mexico “just for a few days” right after she moved to Austin but that it had been a long time since

she traveled back to Mexico. She also testified that it had been her intent since she moved to Austin

in September 2005 to live in Austin.

7
The transcript of the May 2006 hearing referenced by Navarro’s counsel at the hearing on
the plea in abatement is not in the record.

11
 During cross-examination, Navarro conceded that her visa was a “tourist visa” and

that she had not sought permanent residency status in the United States. She also testified that at the

time she filed her visa application, she informed government officials that her residence was in

Mexico. However, section 6.301 requires only that a petitioner be a domiciliary of Texas and a

resident of the county in which the suit is filed, not that she be a citizen of the United States or carry

a certain type of visa. See Tex. Fam. Code Ann. § 6.301. Black’s Law Dictionary defines

“domiciliary” as “[a] person who resides in a particular place with the intention of making it a

principal place of abode.” Black’s Law Dictionary 559 (9th ed. 2009). Navarro testified that she

had lived in a house in Austin since September 2005 and that at the time of moving there, she

intended to live there. Thus, she satisfies the definition of “domiciliary.” Black’s Law Dictionary

defines “resident” as “[a] person who lives in a particular place” or “[a] person who has a home in

a particular place.” Id. at 1424. Regarding the second definition of “resident,” Black’s Law

Dictionary adds: “a resident is not necessarily either a citizen or a domiciliary.” Id. As previously

stated, Navarro testified that she had lived in a house in Austin since September 2005. She therefore

also satisfies the definition of a “resident.”

Given all of the circumstances, we conclude that the trial court did not abuse its

discretion in denying Galan’s plea in abatement, see Dolenz, 620 S.W.2d at 575, and that in any case,

Navarro satisfied the domiciliary and residency requirements at the time of trial. Accordingly, we

overrule this issue.

Sanctions

Galan asserts that the trial court erred in imposing sanctions prohibiting him from

offering evidence at trial as to his separate-property claims. He contends that the trial court erred

12
in imposing the sanctions because: (1) there was not a pending motion for sanctions at the time the

sanctions were imposed; (2) he was not given notice or a hearing before the sanctions were imposed;

(3) he did in fact appear for his October 2, 2007 deposition but properly invoked his Fifth-

Amendment right to remain silent; (4) at the time the trial court imposed the sanctions, it had no

information regarding previously imposed sanctions; and (5) an October 15, 2007 order discharged

Galan from all previous orders imposing sanctions.

A trial court’s ruling on a motion for sanctions is reviewed for an abuse of discretion.

Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004). The test for an abuse of discretion is not

whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial

court’s action, but “whether the court acted without reference to any guiding rules and principles.”

Id. at 838-39. The trial court’s ruling should be reversed only if it was arbitrary or unreasonable.

Id. at 839. A trial court’s discretion is limited by the requirements that sanctions be “just”

and comport with due process. See Tex. R. Civ. P. 215.2(b); TransAmerican Natural Gas Corp.

v. Powell, 811 S.W.2d 913, 917 (Tex. 1991). For sanctions to be just, there must be a direct

relationship between the offensive conduct and the sanction, and the sanction must not be excessive.

Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex. 1992).

Here, the hearing at which the sanctions prohibiting Galan from offering evidence

supporting his separate-property claims (“the final sanctions”) were imposed took place on

November 5, 2007, the day before trial. At that point in the pre-trial proceedings, the trial court had

already warned Galan on multiple occasions to comply with discovery requests and had imposed

sanctions for his failure to do so. Specifically, after an April 2007 hearing on a motion to compel,

13
the trial court found that Galan had “wholly failed to respond or to object to any of [the] properly

served discovery requests” and “wholly failed to complete and exchange his Sworn Inventory and

Appraisement.” The trial court ordered Galan to provide the documents by a certain date and to pay

the attorney’s fees Navarro incurred in bringing the motion. At a hearing on Navarro’s second

motion to compel and motion for sanctions in May 2007, Galan’s counsel requested thirty more days

to respond to the discovery requests. The trial court granted the request but stated: “This [order]

needs to be complied with and not before the Court again. And if it is [before the court again], then

I would certainly encourage significant sanctions.”

In July 2007, the trial court held a hearing on Navarro’s third motion to compel and

motion for sanctions and found that Galan failed to comply with the trial court’s previous order. As

sanctions, the trial court prohibited Galan from offering any documentary evidence in support of his

separate-property claims unless the evidence was produced prior to July 19, 2007, the day the

order was signed.

At a hearing on August 24, 2007—this time regarding a motion for enforcement of

the trial court’s July 19, 2007 order, motion to compel depositions, and motion for

sanctions—Navarro’s counsel informed the trial court that Galan had not yet complied with previous

court orders to make mortgage payments, pay property taxes, and pay Navarro temporary support

and interim attorney’s fees. Navarro’s counsel requested that the trial court create a new deadline

for Galan to comply, and the trial court declined, stating:

I’m telling you that moving the date is just not very effective. And so—I’m not
inclined to do that, because I don’t think that’s the way to enforce my order. I think
the way to enforce my order is to get his attention and make sure he understands that

14
 there are consequences to the failure to follow a court order. And moving the date
isn’t a consequence that I think makes sense. [Galan’s counsel], you need to advise
your client . . . that it is very possible that he will go to jail for violation of this
court’s order and that I’m very serious about that. I don’t know that I’ll put him in
jail. I’m not making a decision about that yet. I’m telling you that I don’t think that
moving the date makes a lick of sense. He’s already had a date. It’s come and gone.
And I’m very serious about enforcing my own court orders, and I will very much
consider putting him in jail if he doesn’t comply with it.

After the hearing, the trial court denied Navarro’s motion for sanctions but granted her motion to

compel depositions. The trial court ordered, among other things, that Galan be deposed on

September 4, 2007. Galan did not appear for his deposition as ordered.

The next order regarding a deposition setting for Galan occurred at a hearing on

September 10, 2007. At the hearing, the trial court ordered that Galan appear for his deposition on

September 18, 2007. Galan did not appear for his deposition as ordered. At a subsequent hearing

on September 27, 2007, the trial court found that Galan failed to comply with four court orders by

not responding to discovery requests and not paying monetary sanctions. The court

further sanctioned Galan, ordering that he was prohibited from offering any evidence regarding his

separate-property claims unless the evidence was produced prior to the close of discovery on

September 21, 2007. In a separate order, the trial court also found that Galan failed to appear for

two depositions and ordered him to appear on October 2, 2007. The court further ordered that if

Galan did not appear for his deposition on October 2, 2007, he would be prohibited from offering

any evidence of his affirmative claims.

When Galan arrived with his counsel for his deposition on October 2, 2007, he was

served with a motion for enforcement of previous court orders by contempt, alleging that he had not

15
responded to discovery requests, paid monetary sanctions, or appeared for depositions as ordered.

Because the motion requested that Galan be jailed for noncompliance, Galan claimed a

Fifth Amendment right not to incriminate himself and left without testifying.

At an October 15, 2007 hearing regarding various motions, the trial court sanctioned

Galan for his failure to respond to Navarro’s second set of interrogatories by ordering that Galan’s

experts were prohibited from testifying as to any impressions or opinions that had not been disclosed

as of the date of the hearing. At the same hearing, Navarro offered to withdraw her request for jail

time with prejudice as long as Galan appeared for his deposition on October 17, 2007, and Galan

agreed. Accordingly, the trial court ordered Galan to appear and testify at his deposition on

October 17, 2007. One of the motions for which the hearing was held was a motion for sanctions

filed by Navarro. The trial court deferred its ruling on the motion, stating:

With regard to the pending motion for sanctions, I’m going to remain that—keep that
under advisement until after the October 17[th] deposition.

If he does not give his deposition . . . on October 17th, I will take up that motion for
sanctions; and if he does but it’s incomplete in some way or something, I’ll, again,
deal with that at that time. But you should, as you prepare and since your deadline
for preparation of documents and exchange of information and so forth has been
extended until Friday, you should both just continue to assume that all the issues that
have always been in the case are still in the case and operate accordingly. Better to
over prepare than to under prepare. And I appreciate that this might create some
inconvenience to you, but I’m not going to decide that till I know whether or not he
cooperates at his deposition.

And I’ve said before and I’ve made rulings before about whether or not certain
evidence is going to be able to be offered and certain people will be allowed to testify
and so forth, depending on whether or not they give depositions and so on. And I’m
not changing any of those rulings. I just want to keep my options open for further
sanctions, if necessary, in the event that he does not cooperate on October 17th. But
that one will stay pending.

16
Galan did not appear for his deposition on October 17, 2007, claiming that he was ill and under

doctor’s orders to stay in bed.

The next hearing was on November 5, 2007, during which the trial court imposed the

final sanctions that Galan complains about on appeal. The district judge who presided at the hearing,

Judge Byrne, had not presided at any of the previous hearings. At the hearing, Navarro’s counsel

explained to Judge Byrne that other district judges had ordered Galan to appear for his deposition

four times but that he still had not done so. Galan’s counsel explained that Galan appeared on the

third date on which he was ordered to appear, October 2, 2007, but refused to answer questions

because, upon his arrival, a process server served him with a show-cause order that threatened jail

time if he did not appear in court and explain why he had not made certain payments mandated by

the court. Galan’s counsel stated that he had advised Galan to assert his Fifth Amendment right to

remain silent. Judge Byrne stated that she did not understand why Galan could not have answered

questions about the identification and valuation of property related to the divorce and then assert his

Fifth Amendment right only when he was asked questions about his failure to pay court-

ordered amounts of money. Galan’s counsel stated that he felt that Galan could assert the privilege

for all questions.8

8
A similar discussion occurred between Judge Livingston and Galan’s counsel during the
October 4, 2007, hearing in which Judge Livingston deferred her ruling on Navarro’s motion for
sanctions and ordered Galan to appear for his deposition on October 17, 2007. Judge Livingston
explained her position regarding Galan’s refusal to testify on October 2, 2007, as follows:

[Navarro’s counsel] can take [Galan’s] deposition for eight and a half hours, and in
the last 30 minutes if she asks a question that might incriminate him, he can invoke
his right against self-incrimination at that time. He can ask—she can ask the first
question of the deposition that he thinks requires him to invoke his privilege. He can

17
 Navarro’s counsel also explained to Judge Byrne that the most recent order, which

was issued by Judge Livingston on October 15, 2007, ordered Galan to appear for his deposition on

October 17, 2007. She informed Judge Byrne that Galan did not appear as ordered on October 17,

claiming he was ill. Judge Byrne focused on Judge Livingston’s October 4, 2007 order9 and the

pending motion for sanctions, which led to the following exchange between the trial court and

Galan’s counsel:

Court: The order reads specifically as follows: The Court further orders that
if respondent, Mr. Galan, fails to appear for his oral deposition on
October 2nd, 2007 in the offices of Gray & Becker at 9:00 a.m. that
he will be sanctioned as follows: Respondent Galan is prohibited
from offering any evidence, whether or not produced, of any
affirmative claim in this matter. What is your response?

invoke it on question number 1. He can invoke it on question number 101. He can
invoke it whenever it’s applicable . . . .

I’m just telling you that there is no relationship whatsoever to the property issues that
[are] going to be the subject in front of this jury about the division—the character of
the property and the division of the property, let alone his affirmative claims . . .
[N]one of that is going to incriminate him in any way. And he’s not suggested
without divulging any confidences, which I’m not certainly asking you to do, but
there is no relationship that’s obvious between his claims for affirmative relief or
hers with regard to the division of the property or the character of the property that
would incriminate him in any way. So her filing an enforcement action to enforce
the terms of a temporary order [has] absolutely nothing to do with the ultimate issues
that have to be decided by the jury in the divorce case.
9
The order was signed by Judge Livingston on October 2, 2007, and filed on
October 4, 2007, but the content of the order was based on Judge Livingston’s verbal ruling at a
hearing on September 27, 2007. Because there was a delay in filing the order, the order gives the
appearance that the trial court ordered Galan to appear at a deposition that occurred two days
before the order was issued. In reality, however, the trial court expressed its verbal order on
September 27, 2007, several days before the October 2, 2007 deposition date.

18
 Counsel: Your Honor, that was heard by—that’s a motion that’s being carried
by the court, it was heard by Judge Livingston when [Navarro’s
counsel] filed. That was the hearing in which I asked [Navarro’s
counsel] to withdraw the show cause and he would appear
immediately to testify. And Judge Livingston after hearing all of the
argument, decided not to rule on it. So there is no order as of yet. As
of that request we actually had a hearing in front of Judge Livingston
there and we—

Court: You don’t have a ruling. Okay. The Court grants the sanctions and
that Mr. Galan will be prohibited from offering any evidence of any
affirmative claim in this matter for his violation of the October 2nd,
2007 [sic] order for failing to appear and answer questions at a
deposition.

In a written order memorializing the trial court’s verbal ruling, the trial court found

that: (1) monetary sanctions were imposed on Galan on May 10, 2007 for failure to answer written

discovery; (2) sanctions were imposed on Galan on July 19, 2007, prohibiting him from offering any

documentary evidence as to his separate-property claims if the evidence was not produced by

July 19, 2007; (3) sanctions were imposed on Galan again on October 4, 2007, prohibiting him from

offering any evidence of his separate-property claims if the evidence was not produced by

September 21, 2007; (4) Galan was ordered to appear for his deposition on four separate dates

but failed to appear for any of them; (5) Galan was ordered to appear for his deposition on

October 2, 2007, and was warned that if he failed to appear, he would be prohibited from offering

any evidence of any of his affirmative claims; (6) Galan failed to appear and be deposed on

October 2, 2007; and (7) lesser sanctions had been imposed on Galan but failed to result in his

compliance with court orders. Accordingly, the trial court ordered that Galan was “hereby

sanctioned for abuse of the discovery process and for failure to appear for oral deposition on four

19
separate dates as ordered, said sanctions to be a prohibition against [Galan] offering any evidence

as to any affirmative claim at trial, including his claim of separate property upon which [he] has

the burden of proof.”

In his first argument regarding the final sanctions, Galan contends that there was not

a pending motion for sanctions at the time the final sanctions were imposed. Galan argues that a

First Amended Motion for Sanctions filed by Navarro was withdrawn by Navarro’s counsel at a

hearing on October 4, 2007, and that it was also stricken by the trial court, thus leaving no pending

motion for sanctions. However, Galan does not accurately depict what occurred at the hearing.

According to a transcript of the hearing, Galan objected to Navarro’s first amended motion for

sanctions, claiming he did not have enough notice that the motion would be addressed at the hearing.

The trial court sustained Galan’s objection but noted that there was no objection to Navarro’s

original motion for sanctions and that there was no reason why the court could not hear the original

motion at that time. Navarro’s counsel stated that she was withdrawing the amended motion and was

ready to proceed on the original motion. Galan’s counsel objected, stating that the original motion

became void as of the moment the amended motion was filed. The trial court overruled his

objection, stating that the amended motion no longer existed because it had been withdrawn and was

stricken for all purposes, thus leaving the original motion intact. The trial court then considered the

original motion.

Ultimately, the trial court stated that it would defer its ruling on the motion for

sanctions, taking it “under advisement,” until after it ruled on Navarro’s motion for summary

judgment. Thus, the motion for sanctions was still pending at the close of the October 4, 2007,

20
hearing. Accordingly, we reject Galan’s argument that there was no motion for sanctions pending

when the trial court imposed the final sanctions on November 5, 2007.

In his second argument, Galan asserts that he was not given notice or a hearing before

the final sanctions were imposed on November 5, 2007. However, Galan had considerable notice

that the final sanctions were a possibility and several hearings on the matter before the final

November 5, 2007 hearing. As we have already described in detail, Galan was repeatedly sanctioned

by the trial court throughout the pre-trial proceedings for his failure to answer discovery requests and

appear at his deposition. Sanctions regarding prohibitions on aspects of his separate-property claims

began at a hearing on July 19, 2007, at which the trial court sanctioned Galan by prohibiting him

from offering any documentary evidence in support of his separate-property claims unless the

evidence was produced by July 19, 2007. Galan was similarly sanctioned after a hearing on

September 27, 2007, at which the trial court prohibited him from offering any evidence of his

separate-property claims unless the evidence was produced by September 21, 2007. Also at the

September 27, 2007 hearing and in an order memorializing the trial court’s ruling at the hearing, the

trial court explicitly warned Galan that if he did not appear for his deposition on October 2, 2007,

he would be prohibited from offering any evidence of any of his affirmative claims.

At the November 5, 2007 hearing, the trial court learned that Galan had appeared for

his deposition on October 2, 2007, but had refused to answer questions, asserting his Fifth

Amendment right to remain silent based on a show-cause order served on him upon his arrival. The

trial court disagreed with Galan’s position that he could not have answered the questions relating

21
only to the property involved in the divorce proceedings, and the trial court found that Galan had not

appeared for his deposition as ordered.

Given all of the hearings that the trial court conducted based on Galan’s failure to

follow court orders—including the hearing on November 5, 2007, when the final sanctions were

imposed—and considering the multitude of sanctions imposed on Galan and the explicit warnings

given to him by the trial court that he would be prohibited from offering evidence as to his separate-

property claims if he did not comply with court orders, we reject Galan’s argument that he did not

receive notice and a hearing before the imposition of the final sanctions.10

10
To the extent that Galan argues that the trial court’s sanctions violated constitutional due
process because they were merits-based sanctions, we reject the argument. Although the sanctions
were severe, the Texas Supreme Court has said that a trial court may impose merits-based sanctions
when a party shows flagrant bad faith or counsel shows callous disregard for the responsibilities of
discovery under the rules; when a party’s hindrance of the discovery process justifies a presumption
that its claims or defenses lack merit; and when the sanctions are clearly justified and it is fully
apparent that no lesser sanctions would promote compliance with the rules. See Spohn Hosp.
v. Mayer, 104 S.W.3d 878, 882 (Tex. 2003); TransAmerican Natural Gas Corp. v. Powell,
811 S.W.2d 913, 918 (Tex. 1991).
Here, as we have already detailed at length in the opinion, the trial court held several hearings
at which it found that Galan had not complied with discovery requests or court orders to respond to
discovery requests. The trial court warned Galan that it would impose significant sanctions and even
consider sending him to jail if he continued to fail to comply with court orders. Galan still did not
comply. Eventually, the trial court began limiting the evidence that Galan could offer at trial in
support of his separate-property claims, and finally, the trial court prohibited Galan from offering
any evidence in support of his separate-property claims. Given that Galan repeatedly failed to
comply with court orders despite the trial court’s warnings, we conclude that the trial court did not
abuse its discretion in determining that Galan showed flagrant bad faith. Further, the trial court
imposed lesser sanctions—monetary sanctions and limitations on the evidence Galan could offer at
trial in support of his separate-property claims—and Galan continued to disregard court orders,
making it apparent that lesser sanctions were not promoting compliance with the discovery rules and
justifying a presumption that his separate-property claim lacked merit. See TransAmerican,
811 S.W.2d at 918 (“[I]f a party refuses to produce material evidence, despite the imposition of
lesser sanctions, the court may presume that an asserted claim or defense lacks merit and dispose of
it.”). Accordingly, we conclude that the trial court did not violate constitutional due process in

22
 In his third argument, Galan contends that he should not have been sanctioned based

on his failure to testify at his October 2, 2007 deposition because he properly relied on his

Fifth Amendment right to remain silent in refusing to testify. However, Galan does not cite to any

legal authority in support of his argument. Accordingly, he waives this argument. See Tex. R. App.

P. 38.1(i). We also note that the trial court informed Galan on more than one occasion that he could

have answered questions relating to the identification of and valuation of property involved in the

divorce and asserted his Fifth Amendment right only when asked questions regarding his failure to

comply with court-ordered payments. In addition, the trial court did not impose the final sanctions

based solely on Galan’s refusal to testify on October 2. In imposing the sanctions, the trial court

recited each of the times that Galan was sanctioned for failure to answer discovery requests or failure

to appear at his deposition and specifically stated that he was sanctioned “for abuse of the discovery

process and for failure to appear for oral deposition on four separate dates as ordered.” Accordingly,

we reject this argument.11

imposing merits-based sanctions in this case. See id.; Mayer, 104 S.W.3d at 882.
11
Regarding Galan’s refusal to testify at his October 2, 2007 deposition, Galan also asserts
that the trial court should have sanctioned his trial counsel rather than him because he was simply
following his trial counsel’s advice in asserting his Fifth-Amendment right to remain silent. Galan
is correct in his assertion that a trial court may impose sanctions exclusively on an attorney if the
evidence demonstrates that the offensive conduct is attributable to counsel alone. See American
Flood Research, Inc. v. Jones, 192 S.W.3d 581, 584 (Tex. 2006). However, an appellate court must
review the entire record in determining whether the trial court abused its discretion in imposing
sanctions, see id. at 583, and the entire record reveals that Galan repeatedly flouted court orders
regarding the discovery process. Even if Galan’s attorney was solely responsible for Galan’s refusal
to testify on October 2, 2007, Galan’s actions at that particular deposition setting are only one of the
many actions for which he was sanctioned. Accordingly, we reject this argument.

23
 In his fourth argument, Galan asserts that Judge Byrne should not have imposed the

final sanctions because she was not the presiding judge at the previous hearings and had not

considered any evidence or arguments regarding previously imposed sanctions. However, the record

shows that Judge Byrne considered at least two previous orders that imposed sanctions involving

Galan’s affirmative claims. The transcript from the hearing held on November 5, 2007, shows that

Judge Byrne considered a July 19, 2007 order in which Galan was found to have failed to respond

to discovery requests and prohibited from offering any documentary evidence in support of his

separate-property claims unless the evidence was produced to Navarro before July 19, 2007. The

transcript also shows that Judge Byrne considered the October 4, 2007 order in which the trial court

found that Galan failed to appear for two court-ordered depositions, ordered him to appear on

October 2, 2007, and warned that he would be prohibited from offering any evidence of any of his

affirmative claims if he did not appear for his deposition on October 2, 2007. In addition, the order

Judge Byrne issued after the hearing indicated that she considered the entire record because the order

listed all of the previous sanctions imposed on Galan before the imposition of the final sanctions.

We also note that Galan requested on April 30, 2007, that the trial court take judicial

notice of adjudicative facts in the case, including all documents presently in the court’s file, all

documents that would later become part of the court’s file, and all findings of fact and conclusions

of law that were issued in any orders or judgments in the case. Further, Galan does not cite to, and

we have not found, any legal authority for the proposition that a district judge operating within a

centralized, rotating docket system cannot issue a ruling on a motion if he or she did not preside over

24
previous pre-trial hearings or directly hear all of the same evidence that each of the previous district

judges heard. We therefore overrule this argument.12

In his fifth argument, Galan contends that the trial court erred in imposing the final

sanctions because an October 15, 2007 order discharged Galan from all previous orders imposing

sanctions. We disagree with Galan’s characterization of the October 15, 2007 order. The order was

based on the trial court’s ruling at a hearing that took place the same day. At the hearing, the trial

court addressed a writ of habeas corpus filed by Galan regarding Navarro’s show-cause order and

her request in the order that Galan serve jail time for not complying with court orders. Navarro

offered to withdraw the request for jail time with prejudice as long as Galan appeared for his

deposition on October 17, 2007, and made all of the payments he had been ordered to make. The

trial court asked the parties if they could come to an agreement in which Galan agreed to appear for

12
Galan also alleges within this argument that Judge Byrne was unaware that Judge
Livingston already considered the same evidence—Galan’s assertion of his Fifth-Amendment right
to remain silent on October 2, 2007—at a hearing on October 4, 2007, and that Judge Livingston
“refused” to impose the same sanctions that Judge Byrne later imposed. However, Galan
inaccurately summarizes the record. At the hearing before Judge Livingston on October 4, 2007,
Judge Livingston heard arguments regarding Navarro’s motion for partial summary judgment, which
was directed at Galan’s affirmative claims. Judge Livingston also heard arguments regarding
Navarro’s motion for sanctions, in which Navarro asked the court to prohibit Galan from offering
any evidence regarding any of his affirmative claims. After hearing arguments on both motions,
Judge Livingston explained that she would not rule on the motion for sanctions until after she ruled
on the motion for summary judgment. Specifically, she stated:

I’m going to . . . wait until I’ve looked at the summary judgment, because to the
extent that the summary judgment might be granted, then your motion would only
apply to those affirmative claims of Mr. Galan that are still at issue. If your—if the
motion for summary judgment is denied, then it would apply to whichever ones it’s
denied as to.

Thus, Judge Livingston did not “refuse” to grant Navarro’s motion for sanctions but rather deferred
her ruling until a later date.

25
his deposition if Navarro agreed to withdraw her request for jail time. The parties ultimately reached

an agreement that was memorialized in the following order:

Relief is GRANTED by agreement on [Galan’s] application for pre-trial writ of
habeas corpus. [Galan] is in all things discharged from the show cause order of
October 1, 2007, and the events and allegations contained therein. [Galan] shall
appear, be sworn in and testify at his deposition on October 17th 2007 at 9 a.m. at the
offices of Gray & Becker, subject to any privileges asserted.

Galan contends in his brief that the order discharges him “not only from the

October 2nd 2007 order . . . but from all previous orders of sanctions referenced in Navarro’s Show

Cause Order.” His position seems to be that the order discharges all previous sanctions orders

because the previous orders were referenced in and attached to the show-cause order. Thus, he

appears to argue, when the trial court ordered that Galan be discharged from the show-cause order

and all events and allegations contained in the order, the trial court was also discharging him from

all the orders referenced in and attached to the order. However, such an interpretation is not

consistent with the language of the order or what occurred at the hearing. The language of the order

states that Galan was discharged from the show-cause order and its contents. The order states

nothing about discharging previous orders imposing sanctions. In addition, at no time in the hearing

did the trial court indicate that the agreement between the parties represented a discharge of all

previous orders imposing sanctions. The trial court indicated only that the agreement would dispose

of Galan’s writ of habeas corpus and require him to appear for his deposition on October 17, 2007.

Further, at the end of the hearing, the trial court stated that it was keeping “the pending motion for

sanctions . . . under advisement until after the October 17 deposition.” As quoted previously, the

trial court also went on to state:

26
 And I’ve said before and I’ve made rulings before about whether or not certain
evidence is going to be able to be offered and certain people will be allowed to testify
and so forth, depending on whether or not they give depositions and so on. And I’m
not changing any of those rulings. I just want to keep my options open for further
sanctions, if necessary, in the event that [Galan] does not cooperate on October 17th.

Because the record does not indicate that the October 15, 2007 order discharged Galan from all

previous orders imposing sanctions, we reject Galan’s argument.

Having rejected all of Galan’s arguments regarding the trial court’s imposition of the

final sanctions, and considering Galan’s repeated refusal to comply with court orders despite

numerous threats of sanctions, opportunities to comply, and the imposition of lesser sanctions, we

conclude that the trial court did not abuse its discretion in imposing the final sanctions.13 See Tex.

R. Civ. P. 215.2(b); TransAmerican, 811 S.W.2d at 917; Cire, 134 S.W.3d at 838-39.

13
The dissent argues that the trial court failed to accord Galan due process by violating the
principle that a Texas trial court may not divest a party of his or her separate property. See
Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 139-40 (Tex. 1977). We note that the trial court acted
upon Galan’s separate-property claim, not upon property previously determined to be separate
property. The rules of civil procedure specifically authorize a trial court to enter orders refusing to
allow a party who has not complied with discovery requests or discovery orders to support a
designated claim or prohibiting the party from introducing certain matters into evidence. See Tex.
R. Civ. P. 215.2(b)(4). We also note that there are many instances in which a separate-property
claim may be waived or barred without violating legal principles. See Knight v. Knight, 301 S.W.3d
723, 730 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (separate-property claim waived by failure
to object); Peck v. Peck, 172 S.W.3d 26, 31-32 (Tex. App.—Dallas 2005, pet. denied) (separate-
property claim barred because of judicial admission); Dutton v. Dutton, 18 S.W.3d 849, 853 (Tex.
App.—Eastland 2000, pet. denied) (same); Mathis v. Mathis, No. 04-95-00386-CV, 1996 Tex. App.
LEXIS 5102, at *13 (Tex. App.—San Antonio Nov. 20, 1996, no writ) (not designated for
publication) (separate-property claim waived by entering into agreed judgment).

27
Characterization of Marital Property

Galan asserts that the trial court erred in characterizing the marital estate as

community property because there was no evidence, or insufficient evidence, that the estate was

community property. Galan contends that Navarro “failed to meet her burden” of proving that the

marital property “was not Galan’s separate property.” However, Navarro had no such burden. To

the contrary, all property possessed by either spouse during or on dissolution of marriage in Texas

is presumed to be community property. See Tex. Fam. Code Ann. § 3.003 (West 2006). To

overcome the community-property presumption, the spouse attempting to do so must present clear

and convincing evidence that the property is separate property. See id.; Boyd v. Boyd, 131 S.W.3d

605, 612 (Tex. App.—Fort Worth 2004, no pet.). We therefore review the trial court’s

characterization based on the clear and convincing evidence standard. See Tate v. Tate, 55 S.W.3d

1, 5 (Tex. App.—El Paso 2000, no pet.).

Here, based on sanctions that we have previously upheld in this opinion, Galan was

prohibited from offering any evidence showing that any of the property involved in the divorce was

his separate property. Because we have upheld the sanctions, we will not consider any of the offers

of proof Galan made as to his separate-property claims. Despite the ban on evidence of his separate-

property claims, however, Galan contends that he established that much of the property involved in

the divorce was his separate property based on evidence that was not excluded by the ban:

specifically, portions of the petition for divorce that Navarro initially filed in Mexico in 2003 and

portions of Navarro’s testimony at trial. Galan quotes several parts of Navarro’s Mexico petition

in which she stated that she was married “under the regime of separate property” and that Galan was

the owner of the assets the couple acquired during their marriage. At trial, Galan’s counsel asked

28
Navarro to confirm that she made the statements in the Mexico petition, and she confirmed that she

made each statement. The following exchange then occurred:

Galan’s Counsel: As to what is listed in the petition, as to those items, is it your
understanding that at the time of the filing of the divorce
petition all the items that we have described belonged to
[Galan]?

Navarro: Yes.

Galan contends that the statements in Navarro’s Mexico petition and the statements she made at trial

establish by clear and convincing evidence that the property involved in the divorce was his separate

property. We disagree.

In order to prove certain assets are separate property, a spouse must trace and clearly

identify the property claimed to be separate. See McKinley v. McKinley, 496 S.W.2d 540, 543 (Tex.

1973); Zagorski v. Zagorski, 116 S.W.3d 309, 316 (Tex. App.—Houston [14th Dist.] 2003, pet.

denied). “Tracing involves establishing the separate origin of the property through evidence showing

the time and means by which the spouse originally obtained possession of the property.” Zagorski,

116 S.W.3d at 316; In re Parker, 997 S.W.2d 833, 837 (Tex. App.—Texarkana 1999, pet. denied).

Here, Galan has established only that Navarro stated that she and Galan were married under a

separate-property regime in Mexico and that at the time she filed a divorce petition in Mexico in

2003, she felt that all of the property acquired during the marriage was “owned” by Galan and

“belonged” to him. Galan points to no evidence admitted at trial establishing what a “separate-

property regime” means under Mexican law. He also points to no evidence tracing the origins of

each piece of property. Rather, he contends that Navarro’s statements in her Mexico petition were

29
judicial admissions that the property was Galan’s separate property. A judicial admission is an

assertion of fact, not pled in the alternative, in the live pleadings of a party. See Holy Cross Church

of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001). However, the pleading that Galan refers

to is a petition from a divorce suit in Mexico in which the Mexico court determined that Navarro was

not entitled to a divorce. Galan does not cite to, nor have we found, any legal authority establishing

that a foreign pleading in a divorce suit that was resolved without granting a divorce constitutes a

live pleading in a Texas case.14

Considering the lack of evidence in the record to rebut the community-property

presumption, we conclude that Galan did not prove by clear and convincing evidence that the

property involved in the divorce was his separate property. Accordingly, the trial court did not abuse

its discretion in characterizing the property as community property.

Sufficiency of Evidence Supporting Findings of Fact

Galan challenges fifty-three of the trial court’s findings of fact and argues that the trial

court erred in denying his request for findings of fact and conclusions of law regarding the

characterization and value of the separate property of Galan and Navarro.15 Forty-three of the

challenged findings relate to Galan’s failure to respond to discovery requests or pay monetary

sanctions. Galan makes the following one-sentence argument regarding the findings: “Those matters

14
Galan also raises an estoppel argument regarding the Mexico petition in his reply brief.
However, we do not consider the argument because he did not raise the issue in his brief, nor was
the issue raised in Navarro’s brief. See Tex. R. App. P. 38.3 (“The appellant may file a reply brief
addressing any matter in the appellee’s brief.”).
15
Galan states in his brief that he is challenging various findings of fact and conclusions of
law, but he lists only findings of fact in his argument.

30
all dealt with specific discovery disputes over which [Judge Byrne] did not preside and which

involved matters not considered at the pretrial or trial of the case.” However, like the first time

Galan made this argument in this appeal, he does not cite to, and we have not found, any legal

authority supporting the proposition that a district judge operating within a centralized, rotating

docket system cannot issue findings of fact based on the entire case if she did not preside over every

hearing in the case. Further, Galan specifically requested on April 30, 2007, that the trial court take

judicial notice of adjudicative facts in the case, including all documents presently in the court’s file,

all documents that would later become part of the court’s file, and all findings of fact and

conclusions of law that were issued in any orders or judgments in the case. Galan made the same

request—specifically, that the trial court “take judicial notice of its file”—at a pretrial hearing on

November 5, 2007, and the trial court stated that it would “be happy to take judicial notice of those

court orders in its file.” Because we find no support for Galan’s position, we reject his argument.16

16
Galan raises this argument a third time as a separate issue in his brief. In the issue, he
makes the same argument he did in the issue challenging the sanctions that prohibited him from
offering evidence as to his separate-property claims. He argues that Judge Byrne erred in imposing
the sanctions and issuing findings of fact in support of the sanctions because she had not presided
over all the previous pre-trial hearings. In support of his argument, Galan cites rules and cases
involving the authority of a newly assigned judge to act on motions or judgments that are pending
due to the expiration of a previous judge’s term or due to a previous judge’s death, resignation, or
disability. He also cites a case in which the appellate court vacated a judgment because a judge
signed the judgment without hearing any of the evidence in the case. See W.C. Banks, Inc. v. Team,
Inc., 783 S.W.2d 783, 785-86 (Tex. App.—Houston [1st Dist.] 1999, no writ).
We do not address this argument as a separate issue because we have already addressed it
twice in the opinion. However, we note that the authorities cited by Galan are distinguishable from
this case. Specifically, this case does not involve a judge who was assigned to a pending case
because another judge’s term had expired or because another judge died, resigned, or became
disabled. This case also does not involve a judge who signed a final judgment after a trial but had
not heard any evidence in the case. Judge Byrne presided at a pre-trial hearing and at trial and took
judicial notice of all matters in the case file. In addition, and as we have previously stated, this case
involves a centralized, rotating docket system in which various district judges preside over numerous

31
 For another of the challenged findings—specifically, the finding that Navarro

satisfied the residence and domiciliary requirements necessary to bring a divorce suit in

Texas—Galan refers to his arguments in support of his first issue challenging the trial court’s denial

of his plea in abatement. Because we have already overruled that issue, we affirm the trial court’s

findings with respect to the issue. Similarly, for another subset of the challenged findings—those

regarding Galan’s failure to appear for depositions on three separate occasions—Galan refers to his

arguments in support of his third issue challenging the trial court’s imposition of sanctions

prohibiting Galan from offering evidence regarding his separate-property claims. Because we have

previously upheld the sanctions, we affirm the trial court’s findings with respect to that issue.

Regarding the remaining four challenged findings of fact, Galan provides only a one-

sentence argument and fails to cite to any legal authority. Accordingly, we conclude that he has

waived the arguments. See Taylor v. State, 293 S.W.3d 913, 917 (Tex. App.—Austin 2009, no pet.)

(“Brief, conclusory statements, unsupported by legal citations, are insufficient to sustain an

appellant’s complaint.”); see also Tex. R. App. P. 38.1(i) (requiring briefs to contain clear and

concise argument for contentions made and appropriate citations to authorities and record).

Galan also contends that the trial court erred in denying his request for findings of fact

and conclusions of law regarding “the characterization and value” of his and Navarro’s separate

property. However, the trial court did not issue findings of fact and conclusions of law regarding

the separate property of Galan and Navarro because the trial court determined that all of the property

hearings and trials. Galan does not cite to any legal authority in support of his claim that a district
judge in such a system cannot rule on ongoing issues unless she has directly heard all of the evidence
presented in previous hearings held by other judges. Accordingly, we again reject this argument.

32
was community property. Galan was prohibited from offering any evidence regarding his separate-

property claims, and Navarro did not make any separate-property claims. Because the trial court

treated all the property as community property and there was no evidence of separate property, we

reject Galan’s argument.

CONCLUSION

Having overruled each of Galan’s issues, we affirm the trial court’s judgment.

___________________________________________

David Puryear, Justice

Before Justices Puryear, Pemberton and Onion*;
Dissenting Opinion by Justice Onion

Affirmed

Filed: November 10, 2010

* Before John F. Onion, Jr., Presiding Judge (retired), Texas Court of Criminal Appeals, sitting
by assignment. See Tex. Gov’t Code Ann. § 74.003(b) (West 1998).

33