in the Matter of the Marriage of Janet Lynne Hernandez and David Lightfoot Hernandez

IN THE
TENTH COURT OF APPEALS

No. 10-09-00136-CV

IN THE MATTER OF THE MARRIAGE OF
JANET LYNNE HERNANDEZ AND DAVID LIGHTFOOT
HERNANDEZ,

From the 52nd District Court
Coryell County, Texas
Trial Court No. CD-08-38547

MEMORANDUM OPINION

Appellant, David Lightfoot Hernandez, challenges several orders entered by the

trial court in this divorce matter. In four issues, David, who has appeared pro se in trial

and on appeal, contends that the trial court: (1) abused its discretion by dividing the

marital estate disproportionately in favor of appellee, Janet Lynne Hernandez,

especially in light of Janet’s alleged “wrongful disposition” of the marital assets; (2)

engaged in improper ex parte communications by conducting a hearing on Janet’s

request for a temporary restraining order without affording David with notice of the

hearing; (3) abused its discretion in granting Janet’s request for a temporary injunction

without notifying David of the hearing; and (4) abused its discretion in refusing to
consider his allegations that Janet engaged in forgery and fraud when dividing the

marital estate. We will affirm.

Janet and David were married on or about September 9, 1994, while David was

incarcerated for aggravated sexual assault and aggravated burglary of a habitation.

David was released from prison and placed on parole in 2002. After his release from

prison, David and Janet opened a business selling computer and lawn-care equipment.

The business, named “A to Z Cooled Equipment and Computer Diagnostics Center,”

was set up in David’s name as a sole proprietorship, and Janet testified that she and

David used the business’s income to live. She specifically mentioned that their personal

vehicles and the business inventory and equipment were purchased with business

income and that she and David lived with her mother.

In April 2007, David’s parole was revoked for various parole violations,

including failing to participate in required sex offender treatment classes and for using

the internet to contact a woman, with whom he later had sexual relations.1 David was

returned to prison to serve the remainder of his forty-year prison sentence.

According to Janet, while he was in prison, David gave her a power of attorney

to allow her to run the business in his absence, a fact that David later admitted in his

“counter-petition for divorce.” In the trial court, however, David disputed whether the

executed power of attorney was, in fact, valid. He alleged that his social security

number was written on the document and that the document was notarized without his

1In particular, Janet tendered Petitioner’s Exhibit 1, which was a waiver processing sheet from the Texas
Department of Criminal Justice—Parole Division (TDCJ) and in which the TDCJ noted that “Offender
[David] admitted to having access to ‘MySpace.com’ on the internet and meeting a woman there and
having sexual relations. Offender has failed last 4 polygraphs as well for not disclosing rules violations.”

Hernandez v. Hernandez Page 2
consent. David complained that the notary public who signed the document indicated

that David produced identification to her when the document was signed even though

David was incarcerated at the time. Nevertheless, the document contained the

following language that David admitted to have written: “I, David Lightfoot

Hernandez, TDCJ-ID #458230, being presently incarcerated in the Coryell County Jail in

Coryell County, Texas, declared under penalty of perjury that the foregoing is true and

correct. Executed on May 1, 2007.”

Regardless of the validity of the power of attorney, Janet ran the business in

David’s absence, an effort that failed for a number of reasons. Janet testified that half of

the business income came from the repair and sale of computers, which was solely the

expertise of David. The remainder of the business involved the selling of lawn-care

equipment. Because of a severe drought and high-interest financing associated with

inventory that had not been sold, the lawn-care equipment portion of the business

ceased to be profitable. In an attempt to revive the business, Janet liquidated a separate-

property mutual fund that she had and used the $45,000 in proceeds for the business.

She also sold several vehicles and power equipment that were used for the business to

try to keep the business running. Janet also arranged for the exchange of “now-useless

computer parts” for the labor of a technician so that she could avoid having to pay the

technician in cash. None of Janet’s efforts were enough to save the business.

In the fall of 2008, because Janet was unable to keep up with the interest

payments, a secured creditor repossessed the business’s inventory. The bank

subsequently foreclosed on the building used for the business and the sole remaining

Hernandez v. Hernandez Page 3
business account that allegedly had a small amount of money left in it. According to a

2007 tax return jointly filed by David and Janet, the business, in its last year of

operation, lost more than $74,000.

On October 21, 2008, Janet filed her original petition for divorce, which included,

among others, a request for a temporary restraining order. The trial court subsequently

granted Janet an ex parte temporary restraining order. David filed an answer to Janet’s

divorce petition and a “counter-petition for divorce,” both of which the trial court

deemed as David’s answer to Janet’s suit.2 On March 26, 2009, the trial court conducted

a final hearing on Janet’s divorce petition. David participated in the hearing by

teleconference. At the conclusion of the hearing, the trial court, ostensibly concluding

that the marital estate had no community property, awarded the parties their separate

property and any property they had in their possession. This appeal followed.

In his first issue, David contends that the trial court abused its discretion in

dividing the marital estate. In particular, David complains that Janet wrongfully

disposed of community assets while he was incarcerated and effectuated a fraud on the

community.

We review a trial court’s division of property under an abuse of discretion

standard. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). A trial court has wide

latitude in the exercise of its discretion in dividing the marital property in a divorce

proceeding, and that division will not be overturned on appeal unless the trial court has

2The trial court construed David’s “counter-petition for divorce” as an answer because David failed to
pay the corresponding fee for the filing.

Hernandez v. Hernandez Page 4
abused its discretion. Id.; see Zieba v. Martin, 928 S.W.2d 782, 786 (Tex. App.—Houston

[14th Dist.] 1996, no writ); Dankowski v. Dankowski, 922 S.W.2d 298, 304 (Tex. App.—Fort

Worth 1996, no writ). The mere fact that a trial judge may decide a matter within his

discretionary authority differently than an appellate judge is not an abuse of discretion.

Jones v. Jones, 804 S.W.2d 623, 624 (Tex. App.—Texarkana 1991, no writ) (citing Downer

v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). To constitute an abuse

of discretion, the trial court’s division of the property must be manifestly unfair. Mann

v. Mann, 607 S.W.2d 243, 245 (Tex. 1980); see Vandiver v. Vandiver, 4 S.W.3d 300, 303-04

(Tex. App.—Corpus Christi 1999, pet. denied).

Section 7.001 of the family code provides that the trial court shall, in its divorce

decree, order a division of the marital estate in a manner that it deems just and right.

TEX. FAM. CODE ANN. § 7.001 (Vernon 2006). The trial court is not required to divide the

marital estate equally; however, its division must be equitable. Zieba, 928 S.W.2d at 790.

“The trial court’s discretion is not unlimited, and there must be some reasonable basis

for an unequal division of the property.” O’Carolan v. Hopper, 71 S.W.3d 529, 532 (Tex.

App.—Austin 2002, no pet.). In deciding whether a reasonable basis exists for an

unequal division of the marital estate, the trial court may consider “such factors as the

spouses’ capacities and abilities, benefits which the party not at fault would have

derived from continuation of the marriage, business opportunities, education, relative

physical conditions, relative financial condition and obligations, disparity of ages, size

of separate estates, and the nature of the property.” Murff, 615 S.W.2d at 699.

Moreover, because the trial court is in a better position to determine the candor,

Hernandez v. Hernandez Page 5
demeanor, and credibility of the witnesses, we will not substitute our judgment for that

of the trial court. See Garner v. Garner, 200 S.W.3d 303, 308 (Tex. App.—Dallas 2006, no

pet.), overruled on other grounds by Iliff v. Iliff, 339 S.W.3d 74 (Tex. 2011); see also In re

A.L.E., 279 S.W.3d 424, 427 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (noting that

trial court is best able to observe and assess witnesses’ demeanor and credibility and to

sense “forces, powers, and influences” that may not be apparent merely from reading

the record on appeal). Instead, we defer to the trial court’s resolution of underlying

facts and to the credibility determinations that may have affected its decision. In re

A.L.E., 279 S.W.3d at 427. Thus, an abuse of discretion will generally not occur when a

trial court bases its discretion on conflicting evidence. In re De La Pena, 999 S.W.2d 521,

526 (Tex. App.—El Paso 1999, no pet.).

In the instant case, David asserts that Janet improperly disposed of community

assets and, thus, committed a fraud on the community estate. “Texas recognizes the

concept of fraud on the community, which is a wrong by one spouse that the court may

consider in its division of the estate of the parties and that may justify an unequal

division of the property.” Schlueter v. Schlueter, 975 S.W.2d 584, 588 (Tex. 1998).

[A] claim of fraud on the community is a means to an end, either to
recover specific property wrongfully conveyed . . . or . . . to obtain a
greater share of the community estate upon divorce, in order to
compensate the wronged spouse for his or her lost interest in the
community estate.

Id. In making a just and right division of the marital estate, the trial court may consider,

among other things, the wasting of community assets. Id.; see Murff, 615 S.W.2d at 698-

99.

Hernandez v. Hernandez Page 6
 At the final hearing, Janet admitted to selling some vehicles, equipment, and

inventory to keep the business running. However, Janet acknowledged that she failed

in trying to keep the business open. The inventory was repossessed, and the building

was foreclosed upon by the bank. As a result, Janet stated that, “Yes, it’s all gone. I’m

broke.” In his pleadings, David listed a number of vehicles and equipment as part of

the community estate and alleged that Janet improperly sold the items without his

consent. Janet, on the other hand, testified that the equipment and vehicles that David

listed were never owned by the couple, were sold to further their business, or were a

part of their separate property. To refute this testimony, David Bollard, a friend and

past customer of David’s, recalled seeing all of the vehicles and equipment that David

listed in his pleadings. The trial court, however, concluded that the couple did not have

any community property to divide; thus, it clearly believed the testimony of Janet and

rejected the testimony of David and Bollard. See Garner, 200 S.W.3d at 308; see also In re

A.L.E., 279 S.W.3d at 427. Because Janet’s testimony constitutes some evidence that

there were no community assets to divide and because we must defer to the trial court’s

resolution of underlying facts and to the credibility determinations that may have

affected its decision, we cannot say that the trial court abused its discretion in dividing

the marital estate.3 See In re A.L.E., 279 S.W.3d at 427; see also Murff, 615 S.W.2d at 698.

3 We also note that David failed to present any evidence to the trial court regarding the contents and
value of the community estate. He made numerous vague assertions regarding property that may or
may not have been included in the community estate. On appeal, David attached numerous exhibits
documenting what he thinks was contained in the community estate and how much he believed it to be
worth. These exhibits, however, were not included in the appellate record and thus cannot be considered
in this appeal. See Gonzalez v. Villarreal, 251 S.W.3d 763, 777 n.17 (Tex. App.—Corpus Christi 2008, pet.
dism’d w.o.j.) (holding that attachment of documents as exhibits or appendices to appellate briefs is not

Hernandez v. Hernandez Page 7
 David also complains that the power of attorney that was executed was invalid

because it was forged. Thus, according to David, Janet was not authorized to dispose of

the community assets to run the business. However, Janet refuted David’s allegations

about the power of attorney by testifying that David instructed her to run the

business—a fact that David admitted in his “counter-petition for divorce”—and that the

power of attorney was valid. The trial court did sustain David’s objection to the

admission of the power of attorney on authentication grounds, but in concluding that

the marital estate did not contain any community assets and awarding the parties their

separate property, the trial court, in effect, rejected David’s complaint and concluded

that Janet was authorized to run the business for the benefit of the community estate.

See Garner, 200 S.W.3d at 308; see also In re A.L.E., 279 S.W.3d at 427. Based on the

foregoing, we cannot say that David has demonstrated that a fraud on the community

occurred or that the trial court abused its discretion in dividing the marital estate. See

Schlueter, 975 S.W.2d at 588; see also Murff, 615 S.W.2d at 698. We overrule David’s first

issue.

In his second issue, David contends that the trial judge engaged in improper ex

parte communications by holding a hearing on Janet’s request for a temporary

restraining order without affording him with notice or an opportunity to participate in

the hearing. We first note that Texas law “prohibits an appeal from a temporary

restraining order.” Ex parte Tucci, 859 S.W.2d 1, 2-3 n.4 (Tex. 1993); see In re Office of the

formal inclusion in appellate record); Till v. Thomas, 10 S.W.3d 730, 733-34 (Tex. App.—Houston [1st Dist.]
1999, no pet.) (“We cannot consider documents attached to an appellate brief that do not appear in the
record.”).

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Attorney Gen., 257 S.W.3d 695, 698 (Tex. 2008). And, perhaps more importantly, any

complaint regarding the alleged ex parte restraining order is moot because the marital

estate has been divided, the divorce decree is final, and the complained-of order has

expired under its own terms. See Hermann Hosp. v. Tran, 730 S.W.2d 56, 57 (Tex. App.—

Houston [14th Dist.] 1987, no writ) (holding that expiration of temporary restraining

order renders its challenge moot); see also Andrews v. Smith, No. 03-01-00402-CV, 2002

Tex. App. LEXIS 3642, at *15 (Tex. App.—Austin May 23, 2002, pet. dism’d w.o.j.) (op.

on reh’g) (“This challenge is moot because the temporary restraining order is no longer

in effect.”). Accordingly, we overrule David’s second issue.

In his third issue, David complains that the trial court abused its discretion in

granting a temporary injunction in favor of Janet because he neither received notice nor

was afforded the opportunity to participate in the hearing. A review of the record

indicates that the trial court did not grant a temporary injunction in favor of Janet.

Instead, the trial court granted Janet an ex parte temporary restraining order and

authorized one extension of it because Janet had difficulty in serving David because the

prisons were on lockdown pursuant to an order from the Governor.

To the extent that David is arguing that the temporary restraining order

ostensibly became an injunction because the extension caused the temporary restraining

order to expire much later than fourteen days after it was originally granted, we point

out that Texas Rule of Civil Procedure 680 affords the trial court with discretion to grant

at least one extension for good cause. TEX. R. CIV. P. 680. And furthermore, even if we

were to construe the temporary restraining order as a temporary injunction, any

Hernandez v. Hernandez Page 9
complaint associated with the order is moot considering that the trial court entered a

final divorce decree dividing the marital estate and the terms of the order have expired.

See Faddoul v. Oaxaca, 52 S.W.3d 209, 212 (Tex. App.—El Paso 2001, no pet.) (“A

temporary injunction becomes moot when it becomes inoperative due to a change in

status of the parties or the passage of time, or because it has expired.”). If the

complained-of order was, indeed, an injunction, then it was incumbent upon David to

file an interlocutory appeal challenging the propriety of the order. See TEX. CIV. PRAC. &

REM. CODE ANN. § 51.014(a)(4) (Vernon 2008). He did not do so in this case. Thus, we

overrule his third issue.

In his fourth issue, David argues that the trial court abused its discretion “in

refusing to consider the independent tort[s] of forgery and fraud . . . when disposing of

the marital assets which caused appellant injury independent of fraud on the

community.” In asserting this issue, David fails to demonstrate that this claim was

clearly pleaded in the trial court. He also fails to distinguish the “independent tort[s] of

forgery and fraud” from his prior fraud on the community contention. In fact, the

contentions he makes in this issue are substantially similar to those made to support his

fraud on the community argument, which we previously rejected. Moreover, in

support of his allegations of forgery and fraud, David does not direct us to portions of

the appellate record demonstrating that Janet engaged in the complained-of tortious

behavior. Instead, he directs us to portions of Janet’s testimony, which David

characterizes as lies, his own bare assertions, and evidence he attached to his appellate

brief. As we have previously noted, we cannot consider evidence attached to an

Hernandez v. Hernandez Page 10
appellate brief that has not been formally included in the record. See Gonzalez v.

Villarreal, 251 S.W.3d 763, 777 n.17 (Tex. App.—Corpus Christi 2008, pet. dism’d w.o.j.);

Till v. Thomas, 10 S.W.3d 730, 733-34 (Tex. App.—Houston [1st Dist.] 1999, no pet.).

Moreover, David testified about these allegations, yet, in concluding that David was

entitled only to his separate property, the trial court apparently chose to disbelieve

David’s testimony, which it was authorized to do. See Garner, 200 S.W.3d at 308; see also

In re A.L.E., 279 S.W.3d at 427.

Because the only record evidence supporting David’s complaint is the testimony

of witnesses and because the resolution of David’s allegations of forgery and fraud

depended on the candor, demeanor, and credibility of the witnesses, we defer to the

trial court’s resolution of this complaint. See Garner, 200 S.W.3d at 308; see also In re

A.L.E., 279 S.W.3d at 427. Further, David has not directed us to record evidence that

demonstrates that the trial court’s rejection of this complaint and subsequent division of

the marital estate constituted an abuse of discretion. See Murff, 615 S.W.2d at 698. We,

therefore, overrule David’s fourth issue.

Having overruled all of David’s issues, we affirm the judgment of the trial court.

REX D. DAVIS
Justice

Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed August 10, 2011
[CV06]

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