Affirmed and Majority and Dissenting Opinions filed November 24, 2015.
In The
Fourteenth Court of Appeals
NO. 14-14-00640-CV
TUAN ANH TRAN, Appellant
V.
SHERYN D. NGUYEN, Appellee
On Appeal from the 300th District Court
Brazoria County, Texas
Trial Court Cause No. 76429-F
MAJORITY OPINION
Tuan Anh Tran appeals from the final decree of divorce ending his common
law marriage to Sheryn D. Nguyen. In seven issues, Tran contends that the trial
court erred in (1) denying him visitation with the two children of the marriage, (2)
failing to provide specific terms and conditions governing his right to possession or
access, (3) denying his motion for continuance, (4) calculating his child support
obligation, (5) failing to find that Nguyen committed fraud, (6) making its division
of community and separate property, and (7) entering a decree that was
inconsistent with its oral rendition. We affirm.
Background
Tran and Nguyen began holding themselves out as married in October 1998.
They have two children together, daughters K.N. and P.T., and Nguyen has one
child from a previous relationship, daughter J.T. At the time of trial, J.T. was
seventeen years old, K.N. was fifteen, and P.T. was thirteen. In 2012, Tran
pleaded guilty to sexually assaulting J.T. when she was thirteen years old.
Pursuant to a plea bargain agreement, Tran was sentenced to twelve years in prison
for the offense. Tran and Nguyen separated in 2010 after his crime was revealed.
Nguyen subsequently filed a petition for divorce, and Tran filed a counter-petition.
At the beginning of trial, Tran told the court that he was not ready to proceed
and requested additional time to obtain an attorney. According to Tran, he and
members of his family had contacted several attorneys but had yet to receive any
responses. The trial judge asked Tran about his efforts to obtain counsel before
proceeding to trial on the merits.
Nguyen testified regarding Tran’s conviction, noting that the younger
children were aware of the nature of the crime. She said that P.T. does not
currently speak or write to Tran, and K.N., although initially maintaining a
relationship with him after his incarceration began, recently stopped
communicating with Tran. Nguyen stated that during their separation, Tran either
took most of his personal possessions from the family home or the possessions
were delivered to him. She said that he has not requested anything he has not
received. At the time of trial, Nguyen was in possession of Tran’s wedding ring,
2
but she said that he could have it. She also noted that they owned three vehicles.1
Nguyen testified that the community property home appraised for $290,000 and
that they owed $188,988 on the mortgage. She explained that the parties each
maintained debts solely in their own names and had no joint debt. She stated that
she had been paying her debt down during their separation and had been paying the
mortgage, insurance, and taxes on the house.
According to Nguyen, Tran was a banker prior to his incarceration and made
an average annual salary of between $55,000 and $70,000. She further stated that
if he were not in prison, Tran would be earning about $5,000 a month or $3,600 a
month net after taxes. Nguyen said that she was released by her last employer
when Tran sent a letter to the employer accusing Nguyen of fraud. She asked for
$900 a month in child support and requested that she be awarded all of the equity
in the home as a lump sum child support payment because Tran would be unable to
pay any support over the next six to twelve years due to his incarceration.
During his cross-examination of Nguyen, Tran asked her whether she had
impersonated him by using his email account. In response, Nguyen declined to
answer, citing the Fifth Amendment. Tran additionally questioned Nguyen
regarding his virtues as a father. She responded that he had a close relationship
with their children prior to his offense but also that he was “doing [his] own thing a
lot of the time.” She said that she has talked to K.N. and P.T., the children of the
marriage, about visiting him in prison but they do not want to go. She
acknowledged that, prior to his incarceration, Tran exercised periods of possession
with the children.
Tran testified that he had given Nguyen $18,000 in checks since their
1
Nguyen stated that as of the time of trial she owed more on one vehicle than it was
worth.
3
separation but that he currently had no 401K, no stocks, and no bonds. He
estimated their home was worth about $300,000.
At the conclusion of trial, the judge granted the divorce on the grounds of
Tran’s felony conviction. See Tex. Fam. Code § 6.004. The judge further named
Nguyen as K.N. and P.T.’s sole managing conservator and Tran as possessory
conservator, but limited his rights to those contained in section 153.073(8) of the
Texas Family Code. Tex. Fam. Code § 153.073(a)(8) (specifying certain medical
rights in emergency situations). The judge stated that in light of Tran’s conviction,
it was not in the children’s best interest that he be granted other specific rights or
duties or specified access.2 The judge entered a protective order requiring Tran to
stay 500 yards from the children’s residence or school or any location of the
children of which he was aware.
The court acknowledged that Tran had paid Nguyen $18,000 for “general
family support” but noted that this amount was about enough to cover half of the
house payments Nguyen made during their separation and did not constitute
payment of interim child support. The judge granted Nguyen’s proposed division
of property and found it necessary to award her Tran’s interest in the house as
lump sum child support.3 In doing so, the judge emphasized that appellant would
not be eligible for parole until any child support obligation had expired. The judge
speculated that, had he not been incarcerated, Tran would have been required to
pay $900 for 36 months (until K.N. came of age) and then $720 for an additional
twelve months, a total of $41,040, which the trial court calculated to have a present
value at the time of trial of $35,000. The court further stated that Tran’s share of
2
The court stated: “I do not grant any specific visitation. We’ll deal with that when he
gets out of prison.”
3
The court stated: “I would normally divide the property in this scenario somewhere
around 65/35 and 70/30.”
4
the equity interest in the home was less than $35,000. The judge additionally
stated that the award to Nguyen of Tran’s share of the home equity would satisfy
Tran’s child support obligation. The judge further awarded Nguyen the vehicles,
mentioning Tran had no use for them in prison, and assigned all personal property
to the one then in possession of it and all debts to the person in whose name the
debt was held.
The trial judge subsequently signed a final decree of divorce generally in
keeping with the earlier oral pronouncements. In regards to possession or access
by Tran, the court stated in the decree “that it is in the best interest of the children
to not make any ORDERS granting [Tran] possession of or access to the children
due to [his] conviction for family violence.” The court ordered Tran to pay child
support in the amounts set forth above but further stated that the child support
obligation was satisfied by the award to Nguyen of Tran’s share of the community
real property. The court further ordered Tran to make additional payments to
Nguyen for the children’s medical support of $324 a month. Lastly, the court
ordered each party to pay their own attorney’s fees, if any, as part of the division of
the marital estate.
Continuance
We begin with Tran’s third issue, in which he contends that the trial court
abused its discretion in denying his motion for a continuance. As described above,
on the day of trial, Tran appeared, represented to the court that he was not ready,
and orally requested additional time to find an attorney. He further explained to
the court that he and members of his family had contacted several attorneys but
had yet to receive any responses. The trial court effectively overruled Tran’s
request by proceeding with trial. See Tex. R. App. P. 33.1(a)(1)(A) (providing that
a complaint is preserved for appellate review if the trial court implicitly overrules
5
the request).
We review a trial court’s denial of a motion for continuance for an abuse of
discretion. See State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1988).
A trial court abuses its discretion when it acts unreasonably or arbitrarily, or
without reference to any guiding rules or principles. Barras v. Barras, 396 S.W.3d
154, 164 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). We may not
substitute our judgment for the trial court’s judgment unless the trial court’s action
was so arbitrary that it exceeded the bounds of reasonable discretion. See Bowie
Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); Zagorski v. Zagorski, 116
S.W.3d 309, 313-14 (Tex. App.—Houston [14th Dist.] 2003, pet. denied).
In civil cases in which the absence of counsel has been urged as a ground for
continuance, courts generally require a showing that the failure to be represented at
trial was not due to the party’s own fault or negligence. See State v. Crank, 666
S.W.2d 91, 94 (Tex. 1984); In re S.L.L., No. 09-09-00429-CV, 2011 WL 1224983,
at *1 (Tex. App.—Beaumont Mar. 31, 2011) (mem. op.); see also Tex. R. Civ. P.
253 (“[A]bsence of counsel will not be good cause for a continuance or
postponement of the cause when called for trial, except it be allowed in the
discretion of the court, upon cause shown or upon matters within the knowledge or
information of the judge to be stated on the record.”).4
There is no indication in the record that, prior to his request for more time on
the day of trial, Tran made any mention of needing more time to find an attorney or
prepare for trial. Indeed, Tran had filed his own timely answer, counter-petition,
and other pleadings and responses without once indicating he desired to obtain
counsel or that he was having difficulty doing so. Moreover, the court twice had
4
For purposes of this appeal, we will assume without deciding that Tran preserved this
issue for appellate review.
6
provided Tran a “Pro Se Notice” advising him to seek legal counsel if unsure of
what to do.5
About 74 days elapsed between the date Tran was served with the original
petition and the final trial. Although this is a relatively short period of time, the
trial court could reasonably find it was enough time to obtain the services of a
lawyer. Likewise, the trial court could reasonably view Tran’s explanation as an
insufficient effort or “too little, too late.”6 Cf. Smith v. McKinney Hous. Auth., No.
05-08-01466-CV, 2010 WL 3529524, at *2 (Tex. App.—Dallas Sept. 13, 2010, no
pet.) (mem. op.) (holding reasonable trial judge could conclude appellant did not
carry burden to show sufficient cause for continuance where appellant made only a
couple of attempts to find counsel during the period between date of service of
process and trial). On this record, we cannot say that the trial court acted
arbitrarily or unreasonably in implicitly denying Tran’s request for a continuance.
See Crank, 666 S.W.2d at 94; In re S.L.L., 2011 WL 1224983, at *1; see also Tex.
R. Civ. P. 253. Accordingly, we overrule Tran’s third issue.
Possession and Access
In his first two issues, Tran contends that the trial court abused its discretion
5
On appeal, Tran points out that he was incarcerated during the pendency of trial and it is
difficult to communicate with the outside world while in prison; however, appellant did not make
this argument to the trial judge.
6
Courts generally accept uncontroverted statements in a movant’s first motion for
continuance as true. Verkin v. Sw. Ctr. One, Ltd., 784 S.W.2d 92, 94 (Tex. App.—Houston [1st
Dist.] 1989), writ denied). However, the mere fact that assertions of fact may be regarded as true
does not rob the trial court of its discretion in ruling on the motion. See Fritsch v. J.M. English
Truck Line, 151 Tex. 168, 246 S.W.2d 856, 858 (1952) (“There is nothing in the rules on
continuance requiring the granting of a first motion merely because it is in statutory form and is
not controverted by affidavit of the opposite party.”); O’Kane v. Coleman, No. 14-06-00657-CV,
2008 WL 2579832, at *6-7 & n.5 (Tex. App.—Houston [14th Dist.] July 1, 2008, no pet.) (mem.
op.) (citing Fritsch and rejecting argument that uncontroverted facts meant trial court had no
discretion to deny motion).
7
in denying him visitation with P.T. and K.N. and in failing to provide specific
terms and conditions governing his right to possession or access. “The terms of an
order that denies possession of a child to a parent or imposes restrictions or
limitations on a parent’s right to possession of or access to a child may not exceed
those that are required to protect the best interest of the child.” Tex. Fam. Code
§ 153.193. Complete denial of access should rarely be ordered. See In re Walters,
39 S.W.3d 280, 286-87 (Tex. App.—Texarkana 2001, no pet.). A parent appointed
possessory conservator normally should have periodic visitation privileges with his
or her child and should not be denied such privileges except in extreme
circumstances. In re M.S.R., No. 13-05-493-CV, 2007 WL 3228072, at *4 (Tex.
App.—Corpus Christi Nov. 1, 2007, pet. denied) (mem. op.); Green v. Green, 850
S.W.2d 809, 812 (Tex. App.—El Paso 1993, no writ). Tran contends that the
evidence at trial was insufficient to support the trial court’s determination that
ordering specified terms of access was not in the children’s best interest.
We review a trial court’s determination of conservatorship issues under an
abuse of discretion standard. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); Cain
v. Cain, No. 14-07-00115-CV, 2007 WL 4200638, at *3 (Tex. App.—Houston
[14th Dist.] Nov. 29, 2007, no pet.) (mem. op.). A trial court abuses its discretion
when it acts unreasonably, arbitrarily, or without reference to any guiding rules or
principles. In re J.A.J., 243 S.W.3d at 616. Challenges to the legal or factual
sufficiency of the evidence are not separate grounds of error, but instead are
relevant factors to consider in assessing whether the trial court abused its
discretion. In re R.T.K., 324 S.W.3d 896, 899 (Tex. App.—Houston [14th Dist.]
2010, pet. denied). In determining whether the trial court abused its discretion
because the evidence was legally or factually insufficient, we consider whether the
trial court had sufficient information upon which to exercise its discretion and
8
whether it erred in its application of that discretion. In re Marriage of McNelly,
No. 14-13-00281-CV, 2014 WL 2039855, at *11 (Tex. App.—Houston [14th
Dist.] May 15, 2014, pet. denied) (mem. op.). Traditional sufficiency review
comes into play with regard to the first question, and with regard to the second
question, we determine whether the trial court made a reasonable decision. Id. A
trial court does not abuse its discretion if there is some evidence of a substantive
and probative character to support its decision. In re R.T.K., 324 S.W.3d at 900.
Tran focuses much of his argument on the absence of evidence
demonstrating the potential harmful effects on the children of regularly visiting a
prison environment and on the evidence suggesting he had a good relationship with
his biological daughters prior to his conviction. But the trial court reasonably
placed more weight on the fact that Tran pleaded guilty to, and was convicted of,
the aggravated sexual assault of his stepdaughter, who, the parties agreed, believed
she was Tran’s biological daughter until around the time she was ten. See Tex.
Fam. Code § 153.004(c) (“The court shall consider the commission of family
violence or sexual abuse in determining whether to deny, restrict, or limit the
possession of a child by a parent who is appointed as a possessory conservator.”);
cf. In re E.A.G., 373 S.W.3d 129, 143-44 (Tex. App.—San Antonio 2012, pet.
denied) (holding evidence father sexually assaulted step-daughter was sufficient to
support termination of parental rights to biological children); In re Marriage of
Bonner, No. 10-10-00011-CV, 2010 WL 4409704, at *2 (Tex. App.—Waco Nov.
3, 2010, no pet.) (holding trial court did not abuse its discretion in naming husband
possessory conservator of children but denying him access to the children based on
conviction for sexual abuse of the children) (mem. op.); In re Baby Boy R., 191
S.W.3d 916, 925 (Tex. App.—Dallas 2006, pet. denied) (holding in parental rights
termination case that it was reasonable to infer from father’s plea of guilty to
9
aggravated sexual assault of his stepdaughter that father engaged in conduct that
will endanger or jeopardize the physical or emotional well-being of other children
in the home who may discover the abuse or be abused themselves).7 Nguyen
further testified that Tran’s molestation of J.T. occurred over a twelve-month
period. The evidence indicating that over a prolonged period of time Tran
molested a thirteen year-old girl who viewed him as a father figure was sufficient
to support the trial court’s decision to deny Tran regular visitation with his
biological daughters of around the same age. The trial court did not abuse its
discretion. Accordingly, we overrule Tran’s first two issues.
Child Support
In his fourth issue, Tran contends that the trial court erred in calculating his
child support obligation. In its decree, the trial court ordered Tran to pay $900 for
36 months and then $720 for an additional twelve months, which amounts to a total
of $41,040.8 The court found that the present value of these payments, as of the
time of trial, was $35,000. The court further stated that Tran’s share of the equity
interest in the couple’s home was $35,000. The court then awarded to Nguyen
7
In limiting Tran’s rights as possessory conservator to emergency powers, the trial judge
stated:
I’m not granting the other powers normal, in light of the conviction, finding the
conviction to be an aggravated sexual assault, a family violence type offense, and
find it’s not in the interest of the children that he have specific forms of contact or
other rights or duties relative to the children.
8
Although the trial court did not expressly state the basis for its calculation of child
support, we note that the award generally conforms to the guidelines for an employed person
who earns what Nguyen testified Tran earned on average prior to his incarceration. See Tex.
Fam. Code §§ 154.061 (employed persons tax chart), 154.125 (guidelines for person with two
children). Such application of the guidelines to the evidence is rebuttably presumed to be both
reasonable and in the children’s best interest. See Tex. Fam. Code § 154.122; Monroy v.
Monroy, No. 03-10-00275-CV, 2011 WL 3890401, at *5 (Tex. App.—Austin Aug. 31, 2011,
pet. struck) (mem. op.). However, as will be discussed below, we need not decide whether it was
appropriate for the court to consider Tran’s salary immediately before his incarceration as his net
income, if it did, as Tran had other available financial resources.
10
Tran’s share of the home equity as a lump sum payment of the child support
obligation. Tran specifically contends that the trial court erred in basing the child
support obligation on Nguyen’s testimony regarding Tran’s salary prior to his
incarceration.9 Tran urges instead that in the absence of any evidence regarding his
income while in prison, the trial court should have based his child support
obligation on the presumption that he made the federal minimum wage for a 40-
hour workweek, which would have been less in aggregate than what the trial court
awarded. See Tex. Fam. Code §154.068.10
A trial court’s child support order will not be disturbed on appeal unless the
complaining party can show a clear abuse of discretion. Iliff v. Iliff, 339 S.W.3d
74, 78 (Tex. 2011). A trial court abuses its discretion when it acts arbitrarily or
unreasonably, without reference to guiding rules or principles, or by failing to
analyze or apply the law correctly. Id. The trial court does not abuse its discretion
if the record contains some evidence of substantive and probative character to
support its decision. In re Marriage of Merrikh, No. 14-14-00024-CV, 2015 WL
2438770, at *2 (Tex. App.—Houston [14th Dist.] May 19, 2015, pet. filed) (mem.
op.). We view the evidence in the light most favorable to the trial court’s rulings
9
Tran makes several arguments in his brief concerning the difficulties he would have
earning a banker’s salary upon release from prison; however, these arguments were not made to
the trial judge.
10
The dissent insists that under Texas Rule of Appellate Procedure 38.1(g), we must
accept as true Tran’s statement that the trial court simply applied the child-support guidelines in
calculating Tran’s child support obligation because Nguyen did not file a brief disputing this
assertion. Tex. R. App. P. 38.1(g) (“In a civil case, the court will accept as true the facts stated
unless another party contradicts them. The statement must be supported by record references.”).
We disagree that the basis for a trial court’s holding in a case can be established by an
uncontradicted statement in a brief when not expressly stated by the trial court itself. Moreover,
to be accepted as true, an uncontradicted statement must be supported by record references. Id.;
Lambertz v. Montz, No. 01-11-00491-CV, 2012 WL 3042996, at *1 & n.3 (Tex. App.—Houston
[1st Dist.] July 26, 2012, no pet.) (declining to accept as true unsupported statements in brief). In
his brief, Tran does not offer a citation to the record for his assertion that the trial court simply
applied the guidelines.
11
and indulge every legal presumption in favor of the judgment. Id.
In child support decisions, the “paramount guiding principle” of the trial
court should always be the best interest of the child. Iliff, 339 S.W.3d at 81. A
court may order child support paid by (1) periodic payments, (2) a lump-sum
payment, (3) an annuity purchase, (4) the setting aside of property to be
administered for the support of the children, or (5) any combination of these
payment methods. Tex. Fam. Code § 154.003. The child support guidelines
contained in the Family Code “are intended to guide the court in determining an
equitable amount of child support.” Id. § 154.121. The amount of a periodic child
support payment as established by the guidelines is presumed reasonable, and an
order conforming to the guidelines is presumed to be in the children’s best interest.
Id. § 154.122(a). However, a “court may determine that the application of the
guidelines would be unjust or inappropriate under the circumstances.” Id.
§ 154.122(b). Assuming without deciding that, as Tran argues, the minimum wage
presumption of Section 154.068 should have been applied here, Section 154.123
lists seventeen factors to aid in determining whether application of the guidelines
would be unjust or inappropriate in a particular case. Id. at 154.122(b). These
factors include the needs of the children, the ability of the parents to contribute to
the needs of the children, any financial resources available for support, the amount
of time of possession and access given to each parent, whether either party has
custody of another child, and “any other reason consistent with the best interest of
the child, taking into consideration the circumstances of the parents.” Id.
At trial, Nguyen testified that K.N. and P.T. needed support from Tran, and
she requested his share of the home equity as lump sum child support because he
would not otherwise be able to pay child support while in prison. Nguyen
acknowledged that she was unemployed at the time of trial. She further asserted
12
that it was unfair she “should have to raise [the] children on [her] own with no
financial help, no support.” She also recounted a conversation in which she told
Tran that it would be “more fair” for her to receive all of the equity in the home so
that she could support the children for the next seven to eight years while he was in
prison. Tran’s only statements regarding this subject came in his examination of
Nguyen in which he asked her to allow him the means (by his retaining some of
the equity in the home) to help her support the children by making child support
payments. Tran did not present any evidence or make any arguments in the trial
court suggesting that awarding Nguyen his interest in the home equity as lump sum
child support was not just and appropriate under the circumstances.
Viewing the evidence in light of the factors set forth in section 154.123, the
trial court reasonably could have determined that K.N. and P.T. needed support;
Tran would likely be unemployed for the duration of the children’s minority years;
Nguyen would have possession of the children 100 percent of the time and had
custody of another child; Tran’s equity interest in the house was an available
financial resource; and given Tran’s incarceration, it was just and appropriate not
to apply the child support guidelines to the minimum wage presumption, but
instead to order his equity interest in the home as a lump sum child support
payment. Cf. Monroy v. Monroy, No. 03-10-00275-CV, 2011 WL 3890401, at *6
(Tex. App.—Austin Aug. 31, 2011, pet. denied) (mem. op.) (holding trial court did
not err in determining amount of child support based on evidence presented
regarding appellant’s recent income and assets despite fact that appellant was in
jail at the time of trial for an undetermined period of time); Moroch v. Collins, 174
S.W.3d 849, 867-69 (Tex. App.—Dallas 2005, pet. denied) (affirming lump sum
award of child support despite evidence obligor had zero income in some years).11
11
When a trial court orders child support that varies from the Family Code guidelines, it
13
The evidence supports the trial court’s determination regarding the proper
amount and form of child support; therefore, the trial court did not abuse its
discretion in ordering the lump sum payment. See Iliff, 339 S.W.3d at 78; In re
Marriage of Merrikh, 2015 WL 2438770, at *2. Accordingly, we overrule Tran’s
fourth issue.
Fraud
In issue five, Tran asserts that the trial court erred in failing to find that
Nguyen committed fraud against him.12 Although not entirely clear from Tran’s
brief, he appears to be complaining in this issue that the trial court’s refusal to
make fraud findings is not supported by legally or factually sufficient evidence.
To successfully challenge the legal or factual sufficiency of the evidence on an
issue on which he had the burden of proof, Tran must show respectively that the
evidence conclusively established the opposite of the court’s finding or that the
must make the findings required by Family Code section 154.130. Tex. Fam. Code § 154.130.
Tran, however, does not complain on appeal regarding the lack of such findings, and we will not
reverse a case on unassigned error. See Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex.
1998) (per curiam); Bartlett v. Bartlett, 465 S.W.3d 745, 755 n.2 (Tex. App.—Houston [14th
Dist.] 2015, no pet.); Bishop v. Miller, 412 S.W.3d 758, 773 n.17 (Tex. App.—Houston [14th
Dist.] 2013, no pet.).
We note that in the lead case cited by the dissent on this issue, Butts v. Butts, 444 S.W.3d
147 (Tex. App.—Houston [14th Dist.] 2014, no pet.), appellant complained that “the trial court
made no [154.130] findings.” Id. at 153. In Omodele v. Adams, No. 14-01-00999-CV, 2003 WL
133602, at *4–5 (Tex. App.—Houston [14th Dist.] Jan. 16, 2003, no pet.) (mem. op.), also cited
by the dissent, the obligor argued on appeal that his child support “award lacks evidentiary
support and does not conform to the statutory guidelines.” Tran argues that the minimum wage
presumption should have been used to calculate his child support obligation, but does not argue
that the court abused its discretion in awarding above-guidelines support. In the third case cited
by the dissent, In re A.M.P., 368 S.W.3d 842 (Tex. App.—Houston [14th Dist.] 2012, no pet.), it
is unclear from the record whether the issue was raised either at trial or on appeal. None of these
cases convinces us to overturn long-standing guidance not to reverse a trial court’s judgment on
unassigned error. See Pat Baker Co., 971 S.W.2d at 450; Bartlett, 465 S.W.3d at 755 n.2;
Bishop, 412 S.W.3d at 773 n.17.
12
For purposes of this appeal, we will assume without deciding that Tran preserved this
issue for appellate review.
14
court’s finding was so against the great weight and preponderance of the evidence
as to be clearly wrong and unjust. See Dow Chem. Co. v. Francis, 46 S.W.3d 237,
241 (Tex. 2001); Bhatia v. Woodlands N. Houston Heart Ctr., PLLC, 396 S.W.3d
658, 665 (Tex. App.—Houston [14th Dist.] 2013, pet. denied).
Tran specifically contends that the evidence at trial established that Nguyen
“knowingly made [a] false material misrepresentation with the intention that it
should be acted on by the other party [which, relying] on the misrepresentation[,]
suffered injury.” T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 222
(Tex. 1992) (identifying elements of common law fraud).13 Tran alleges in his
brief that Nguyen had access to his email account and used that access to falsify
emails so that it appeared that two different people were communicating with each
other [Tran and Nguyen] when in reality it was just Nguyen writing the emails.
However, when Tran questioned Nguyen at trial regarding this activity, she
declined to answer his questions, citing the Fifth Amendment. Tran does not cite
to any other place in the record in support of this allegation, and our review of the
record has not revealed any evidence supporting this allegation.
Tran next alleges that Nguyen admitted to receiving and signing stolen
commission checks that were payable to him for a real estate transaction.
Although not entirely clear, it appears that Tran accuses Nguyen of having forged
his signature in order to endorse the checks over to her. Although Nguyen
acknowledged at trial that her signature was indeed on the checks, Tran does not
cite to any evidence in the record, and we have not found any, establishing that
Nguyen forged Tran’s signature on the checks.
13
In his counter-petition, Tran requested an equal division of the community property
based, in part, on an allegation that Nguyen was “under investigation for violating S[t]ate and
Federal criminal law by acts of embezzlement, grand theft, forgery, bank fraud and identity theft
in the absence of [Tran].”
15
Additionally, Tran contends Nguyen transferred title of one of their vehicles
into her name without his approval or consent. Nguyen testified, however, that the
vehicle might still be in Tran’s name. The record contains no evidence
establishing fraud related to the title of the vehicle.
Tran next alleges Nguyen transferred $82,000 in community debt from
credit cards that were in her name to credit cards that were in his name. But Tran
does not cite to any evidence that this was done. Nguyen testified that she had
been paying down her credit card debt since the separation, but she did not say that
she did so by transferring balances to credit accounts in Tran’s name.
Tran further suggests Nguyen improperly withdrew funds from her 401K
plan, of which he contends he was the primary beneficiary. Tran does not,
however, explain how this withdrawal, assuming it occurred, constituted fraud.
Lastly, Tran alleges Nguyen “disposed of” a substantial amount of community
property after filing for divorce. Tran, however, neither explains how this alleged
conduct constituted fraud nor cites to any evidence in the reporter’s record
establishing that it actually occurred.
Based on the foregoing analysis, Tran has not demonstrated that the
evidence conclusively established Nguyen committed fraud or the trial court’s
failure to make a fraud finding was against the great weight and preponderance of
the evidence. See Francis, 46 S.W.3d at 241; Bhatia, 396 S.W.3d at 665.
Consequently, we overrule Tran’s fifth issue.
Property Division
In his sixth issue, Tran argues that the trial court erred in making its
community property division because the division was “so disproportionate as to
be clearly inequitable.” In a divorce proceeding, a trial court must divide
16
community property in a “just and right” manner. Tex. Fam. Code § 7.001; Aduli
v. Aduli, 368 S.W.3d 805, 819 (Tex. App.—Houston [14th Dist.] 2012, no pet.). A
trial court possesses wide discretion in determining a just and right division. Aduli,
368 S.W.3d at 819. In a divorce granted on a fault basis, such as here, the trial
court may consider the fault of one spouse in breaking up the marriage when
making a property division. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981).
The property division need not be equal, and we presume the trial court properly
exercised its discretion in determining the value and division of marital property.
Aduli, 368 S.W.3d at 819. We will overturn a property division only if it is
manifestly unjust and unfair. Id.; Stavinoha v. Stavinoha, 126 S.W.3d 604, 607
(Tex. App.—Houston [14th Dist.] 2004, no pet.). Legal and factual sufficiency are
relevant factors, rather than independent bases for reversal, in determining whether
the trial court abused its discretion. Aduli, 368 S.W.3d at 819; London v. London,
94 S.W.3d 139, 143–44 (Tex. App.—Houston [14th Dist.] 2002, no pet.). A trial
court does not abuse its discretion if there is some evidence of a substantive and
probative nature to support the decision. Barras v. Barras, 396 S.W.3d 154, 164
(Tex. App.—Houston [14th Dist.] 2013, no pet.).
Tran’s complaint under this issue is based on a computation that the trial
court awarded Nguyen 99.6% of the community property because it awarded her
everything except his wedding ring, which was valued at $500 or .4% of the
marital estate, according to Tran. This is not what the trial court ordered. The trial
court awarded each party the personal belongings and home furnishings already in
his or her possession at the time of trial. Uncontroverted evidence established that
Tran had received a significant amount of personal possessions from the family
home prior to trial. More importantly, the trial court awarded $35,000, or around
35 percent, of the home equity to Tran. This was by far their most valuable asset.
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Although the trial court also awarded Tran’s equity interest in the property to
Nguyen, this was not as part of the property division, but was a lump sum payment
to satisfy his child support obligation. Therefore, the computation underlying
Tran’s complaint in this issue is incorrect.
Tran additionally argues that the trial court erred in awarding Nguyen all
three community property vehicles. Tran initially alleges that the trial judge
contradicted himself by first rejecting Nguyen’s attorney’s suggestion that the
vehicles should be awarded for the children to use when they came of driving
age—saying “[t]hat’s what child support is for, and that’s why she got all the
interest in the house”—but then awarding Nguyen the vehicles anyway. This is
not actually a contradiction. The judge awarded the vehicles to Nguyen as part of
the property division, not for or to the children as Nguyen’s attorney suggested.
Tran further argues the trial court’s statement in awarding the vehicles—to the
effect that Tran had no use for them anyway as he was incarcerated—was not a
proper basis for the award. We conclude this statement does not overcome the
presumption that the trial judge awarded the vehicles to Nguyen as part of the
overall just and right division of the community property. See Aduli, 368 S.W.3d
at 819.
In dividing the community property, the trial judge was permitted to
consider several factors, including financial condition, future needs for support,
custody of any children, fault in the breakup of the marriage, and attorney’s fees.
See, e.g., Bello v. Bello, No. 01-11-00594-CV, 2013 WL 4507876, at *4 (Tex.
App.—Houston [1st Dist.] Aug. 22, 2013, no pet.) (mem. op.). Tran had the
burden of demonstrating based on evidence in the record that this division was so
unjust and unfair as to constitute an abuse of discretion. In re Marriage of
O’Brien, 436 S.W.3d 78, 82 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
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Tran has not met his burden. Accordingly, we overrule his sixth issue.14
Consistency with Oral Rendition
Lastly, in issue seven, Tran alleges the trial court erred by signing a decree
inconsistent with its oral rendition. Tran specifically raises five alleged
discrepancies in the final decree, including: (1) a statement that Tran waived a jury
trial when Tran contends he was never given that option, (2) the grant to Nguyen
of the exclusive right to apply for passports for the children, (3) the alleged failure
to state that Tran’s child support obligation was discharged by the lump sum award
of his share of the equity in the house, (4) the order requiring Tran to pay medical
support for the children, and (5) the statement that Tran’s support obligations shall
be obligations of his estate should he die before they terminate.15
The only authority Tran cites in support of issue seven stands for the
proposition that a nunc pro tunc judgment can be used to correct clerical errors in a
judgment after the court’s plenary power has expired. See Jenkins v. Jenkins, 16
S.W.3d 473, 482 (Tex. App.—El Paso 2000, no pet.). It is not clear what point
14
In issue six, Tran additionally contended the trial court erred in not considering
Nguyen’s fraud in dividing the community property. We reject Tran’s fraud argument here for
the same reasons addressed above under issue five.
15
None of these asserted discrepancies in the final decree is directly contradicted by
anything the judge said at the conclusion of the trial; they are instead additions to what the judge
said or new issues not specifically addressed in the judge’s statements. The statement in the
judgment that Tran waived a jury trial is accurate because the right to a jury trial is waived when
not timely requested and there is no indication in the record that Tran ever requested a jury trial.
See Tex. R. Civ. P. 216(a); Thomas v. Radioshack Corp., No. 01-08-00400-CV, 2010 WL
724513, at *1 (Tex. App.—Houston [1st Dist.] Mar. 4, 2010, no pet.) (mem. op.). Tran’s
allegation that the judgment did not reflect that his child support obligation was discharged by
the lump sum award is incorrect. In the judgment, the court noted that the present value of child
support was $35,000, valued Tran’s interest in the home at $35,000, and awarded that interest to
Nguyen “to satisfy the child support obligation.”
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Tran was attempting to make with this citation. Regardless, he provides no
analysis regarding whether the trial court had authority to include in the judgment
the orders of which he complains, whether those changes were clerical or judicial
in nature, or even whether the trial court’s statements at trial constituted a rendition
of judgment. He further offers no authority suggesting the trial court erred in
including the additional orders in the written final decree.
Pro se appellants are held to the same standards as licensed attorneys and
must comply with applicable laws and procedures. Lilly v. Texas Dep’t of
Criminal Justice, No. 14-14-00343-CV, 2015 WL 4718836, at *4 n.5 (Tex. App.—
Houston [14th Dist.] Aug. 4, 2015, no pet. h.); Goad v. Hancock Bank, No. 14-13-
00861-CV, 2015 WL 1640530, at *2 (Tex. App.—Houston [14th Dist.] Apr. 9,
2015, no pet.) (mem. op.). An appellant’s brief “must contain a clear and concise
argument for the contentions made, with appropriate citations to authorities and to
the record.” Tex. R. App. P. 38.1(i); see also In re S.A.H., 420 S.W.3d 911, 929
(Tex. App.—Houston [14th Dist.] 2014, no pet.) (declining to craft appellant's
argument for him). Because Tran does not present proper argument or citation to
relevant authority, we overrule his seventh issue.
Having overruled each of Tran’s issues, we affirm the trial court’s judgment.
Martha Hill Jamison
Justice
Panel consists of Chief Justice Frost and Justices Jamison and Busby (Frost, C.J.,
dissenting).
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