James Stephen Scroggins v. Margie Lillian Scroggins

                                       In The

                                 Court of Appeals

                     Ninth District of Texas at Beaumont

                               ________________

                               NO. 09-21-00094-CV
                               ________________

                  JAMES STEPHEN SCROGGINS, Appellant

                                          V.

                  MARGIE LILLIAN SCROGGINS, Appellee

________________________________________________________________________

                    On Appeal from the 418th District Court
                         Montgomery County, Texas
                       Trial Cause No. 19-02-02544-CV
________________________________________________________________________

                           MEMORANDUM OPINION

      In this divorce proceeding, James Scroggins appeals the trial court’s judgment

arguing the trial court improperly denied his motion for continuance which denied

him a fair opportunity to present his case, that the trial court incorrectly denied his

motion for new trial, that the trial court signed a final judgment that improperly

divides the parties’ marital estate, and the trial court failed to make necessary




                                          1
findings of fact and conclusions of law. Finding no reversible error, we affirm the

trial court’s judgment.

                                     I. Background

A. Procedural History of the Case

      James and Margie Scroggins 1 were married in 1958. After nearly sixty years

of marriage, they separated and James filed a petition for divorce, alleging

insupportability and requesting the trial court to divide the parties’ community

estate. See 

, 7.001. Margie filed a counter-petition

making the same requests and adding the grounds of cruelty and adultery; she further

requested that she be awarded a disproportionate share of the community estate on

multiple grounds, including James’ fault in the breakup of the marriage. See 

, 6.003.

      During the pendency of the case, the parties requested and received four

continuances on various grounds, including incomplete mediation, a schedule

conflict, and James’ and his attorney’s Covid-19 illnesses. On November 23, 2020,

one week before the November 30, 2020 trial setting, James requested a fifth

continuance based on an allegation that due to his mental condition he might be

unable to withstand the stress of a trial. The trial court denied his motion, and in

James’ absence, proceeded to trial on November 30 as scheduled. The trial court


      1
          For the sake of clarity, we will refer to the parties by their first names.
                                             2
signed a final decree of divorce dividing the parties’ marital estate on January 26,

2021. James filed a timely motion for new trial, which the trial court also denied.

B. The Trial Testimony

       Three witnesses testified in the trial, Margie Scroggins, Katlin Hall, and

Patricia Hall.2 Although James did not attend, his attorney was present and

participated in the trial.

       1. Margie Scroggins’ Testimony

       Margie testified as to the acquisition and disposition of the parties’ property

during their marriage and transfers of real property to and from herself, her daughter

Patricia, and her granddaughter Katlin, and to characterization of her separate

property and that of the marital estate.

       She further described James’ physical, emotional, and financial abuse during

their marriage, noting that James had assaulted her in the past and as recently as after

they separated in 2018.

       2. Katlin Hall’s Testimony

       Katlin, Margie’s and James’ granddaughter, testified that Margie gave her a

tract of real property as a present on her birthday, that Margie had inherited from her

mother. Later, Katlin transferred a different parcel of property to Margie,



       2
        Each party’s attorney testified as to attorney’s fees, but that testimony is not
relevant to the disposition of this appeal.
                                            3
temporarily, without intending to convey any interest in the property to James.

Katlin, as the owner of the parcel, was involved with a lawsuit regarding property

taxes and lived in Dallas. Katlin testified that she deeded the property to her

grandmother temporarily so that her grandmother might attend hearings regarding

the taxes on her behalf. Once the tax matter was resolved, it was the intent of both

Katlin and her grandmother that the parcel would be deeded back to Katlin. No

money changed hands in these transactions. The parcel previously belonged to

Patricia and was awarded to Patricia during her divorce from Katlin’s father.

      3. Patricia Hall’s Testimony

      Patricia is Margie’s and James’ daughter and Katlin’s mother. She testified to

the relationship between her parents, and between herself and her parents, indicating

that her father was abusive to her and to Margie. Patricia testified that when she gave

Margie gifts, she never intended to give an interest in what she gave Margie to James.

      Patricia confirmed that she received a tract of property in Conroe as part of a

settlement in her divorce. She explained this is the same tract she gave Katlin, that

Katlin gave Margie, and that Margie gave back to Katlin. Patricia also testified that

Margie gave her a one-half interest in some property on Lake Livingston that Margie

had inherited but Patricia later transferred title to that property back to Margie.




                                           4
C. The Hearing on the Motion for New Trial

      In his motion for new trial, James argued that the trial court abused its

discretion in denying his fifth motion for continuance that he filed one week before

trial. In the motion, James claimed the evidence introduced during the bench trial

was legally and factually insufficient to support the trial court’s judgment. The basis

of his insufficiency complaint was that Margie had transferred ownership of real

estate in derogation of James’ rights to reimbursement, and the transfers had

deprived him of his rightful part of the parties’ community estate. Although the

motion, itself, did not reference newly discovered evidence, James argued that

ground at the hearing, claiming that Margie had claimed no interest in certain real

property during the divorce trial, yet apparently had reversed her position in a

pleading filed in another unrelated lawsuit.

      1. James Scroggins’ Testimony

      At the hearing on the motion, James testified that he was unable to attend the

trial because he needed to obtain medical care due to respiratory, cardiac, and

psychiatric difficulties, which he attributed to the effects of having suffered from an

infection by the virus, Covid-19.




                                          5
      2. Margie Scroggins’ Testimony

      Margie testified that she is not claiming an interest in the land referenced in

James’ motion for new trial and any pleading that indicates otherwise was filed as

the result of a misunderstanding.

                              II. Standard of Review

      We review a trial court’s ruling on a motion for continuance for a clear abuse

of discretion. BMC Software Belg., N.V. v. Marchand, 

 (Tex.

2002); Villegas v. Carter, 

 (Tex. 1986); State v. Crank, 

 (Tex. 1984). An abuse of discretion exists when a trial court “‘reaches

a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error

of law.’” Marchand, 

 (quoting Johnson v. Fourth Court of Appeals,

 (Tex. 1985)). A trial court may consider the entire procedural

history of the case when deciding a motion for continuance. Qurashi v. Jabeen,

No.14-12-00858-CV, 

, at *3 (Tex. App.—Houston [14th Dist.]

June 11, 2013, pet. denied) (mem. op.). We review the trial court’s denial of James’

motion for new trial and its division of the community estate under the same

standard. See Cliff v. Huggins, 

 (Tex. 1987) (addressing a

motion for new trial); Bradshaw v. Bradshaw, 

 (Tex. 2018)

(addressing property division). We will not disturb the trial court’s exercise of its

discretion unless it acted without regard to guiding rules or principles, and the error

                                          6
was harmful, meaning that it probably resulted in the rendition of an improper

judgment. See U-Haul Int’l, Inc. v. Waldrip, 

 (Tex. 2012);

Tex. R. App. P. 44.1(a)(1).

                                    III. Analysis

      James’ brief expressly mentions only two specific appellate points: the trial

court erred in the denial of his motion for continuance and the trial court erred in its

denial of his motion for new trial. It is clear from the substance of the arguments

made in his brief, however, that James is also complaining about the trial court’s

division of the parties’ community property, and the court’s failure to make findings

of fact and conclusions of law regarding the parties’ net assets. We therefore address

each of these arguments.

A. Motion for Continuance

      As noted above, James filed his fifth motion for continuance on November

23, 2020, one week before trial. James asserts in his motion that he needed a

continuance because his “primary care physician has recommended that he have a

formal psychiatric evaluation to decide if he is competent to stand a divorce trial[;]”

he does not allege he needed a continuance because of the Covid-19 pandemic or its

effects on either James or his attorney. Although the motion was verified by James’

attorney, it was supported by only a letter from a doctor rather than an affidavit, as

required by the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 251. Because

                                           7
the motion was not supported by an affidavit, it did not comply with Rule 251. For

that reason, the trial court did not abuse its discretion in denying the motion. See In

re F.E.M., No. 11-12-00257-CV, 

, at *6 (Tex. App.—Eastland

Mar. 14, 2013, pet. denied) (mem. op.).

       James also failed to comply with Rule 252. The motion fails to set forth

James’ intended testimony or the anticipated evidence and importance of the

evidence he would have offered at trial. See Tex. R. Civ. P. 252. In pertinent part,

the rule states:

       If the ground of such application be the want of testimony, the party
       applying therefor shall make affidavit that such testimony is material,
       showing the materiality thereof, and that he has used due diligence to
       procure such testimony, stating such diligence, and the cause of failure,
       if known; that such testimony cannot be procured from any other
       source; and, it if be for the absence of a witness, he shall state the name
       and residence of the witness, and what he expects to prove by him; and
       also state that the continuance is not sought for delay only, but that
       justice may be done[.]

       James’ motion for continuance fails to state what James intended to prove

through his testimony or how his testimony was material to the court’s division of

the parties’ property. Therefore, the trial court did not abuse its discretion in denying

the motion because the motion did not comply with Rule 252. See Tri-Steel

Structures, Inc. v. Baptist Found. of Tex., 

 (Tex. App.—Fort

Worth 2005, pet. denied).

                                           8
      Because the trial court did not abuse its discretion in denying James’ motion

for continuance, we overrule his first point.

B. Motion for New Trial

      In his second stated issue on appeal, James complains of the trial court’s denial

of the motion for new trial. In his motion for new trial, James contended not only

that the trial court abused its discretion in denying his motion for continuance, but

that the evidence was legally and factually insufficient to support the trial court’s

judgment.

      We have addressed the motion for continuance complaint above and need not

revisit it in the context of James’ motion for new trial. As for James’ complaints of

legal and factual insufficiency of the evidence, for the reasons discussed below, we

overrule his complaints.

      Although James’ motion for new trial addresses the reason for his absence

from trial and his purported meritorious defense to Margie’s claims, we find that the

Craddock v. Sunshine Bus Lines, Inc. standard does not apply to this case because

the trial court did not enter a default judgment against James. 3 

, 126



      3
         In Craddock, our Supreme Court articulated the standard for setting aside a
no-answer default judgment. That standard requires the defaulting party to establish
that his absence from trial was not intentional or the result of conscious indifference;
to set up a meritorious defense; and show that granting the motion for new trial will
not prejudice the plaintiff. See Craddock v. Sunshine Bus Lines, Inc., 

 (Tex. 1939). The same standard applies when a trial court enters a post-
                                           9
(Tex. 1939). In LeBlanc v. LeBlanc, the Texas Supreme Court held that when a

party’s attorney appears at trial in the party’s absence, the trial court has conducted

a trial on the merits. 

 (Tex. 1989) Here, as in LeBlanc, there was no

default and no basis for applying a default judgment standard to James’ motion for

new trial.

C. Findings of Fact and Conclusions of Law

      In his third issue on appeal, James complains that the trial court failed to file

findings of fact and conclusions of law after a “timely and proper request.” He

contends that this failure on the part of the trial court has prevented him from making

a proper appeal to this court, and that he therefore is entitled to a new trial pursuant

to applicable case authority. See Tex. R. App. P. 44.1(a)(2).

      The trial court signed its judgment on January 26, 2021. Rule 296 of the Texas

Rules of Civil Procedure requires a request for findings of fact and conclusions of

law to be filed within twenty days after the judgment is signed. See Tex. R. Civ. P.

296. James filed his request on April 14, 2021, more than twenty days after the

judgment was signed. While this request was filed within twenty days after the trial

court signed the order denying the motion for new trial, the filing of a motion for

new trial does not extend the timetable pursuant to Rule 296. See Tex. R. Civ. P.


answer default judgment against a defendant. See Dolgencorp of Tex., Inc. v. Lerma,

 (Tex. 2009).

                                          10
296. His request for findings of fact and conclusions of law was not timely pursuant

to Rule 296 of the Texas Rules of Civil Procedure, and James consequently has

waived any complaint of the trial court’s failure to act on it. See Tex. R. Civ. P. 296;

Howe v. Howe, 

 (Tex. App.—El Paso 2018, no pet.) We

overrule his complaint about the lack of findings of fact and conclusions of law.

D. Property Division

      In the absence of findings of fact and conclusions of law, we imply all findings

of fact necessary to support the judgment. Marchand, 

. When, as

in this case, there is a complete reporter’s record, implied fact findings are not

conclusive, and may be challenged for legal and factual sufficiency. 

 Here, James’

brief makes it clear he is attacking the sufficiency of the evidence to support the trial

court’s division of the parties’ community estate.

      The Family Code dictates that in a decree of divorce, a trial court “shall order

a division of the estate of the parties in a manner that the court deems just and right,

having due regard for the rights of each party” to the proceeding. 

. Although the property division need not be equal, it must be equitable.

See Murff v. Murff, 

 (Tex. 1981); see also In re Marriage of

Cruey, No. 09-21-00125-CV, 

, at *5 (Tex. App.—Beaumont Aug.

31, 2022, no pet.) (mem. op). A trial court is given wide latitude in determining an

equitable property division, and “may consider such factors as the spouses’

                                           11
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, 

. The trial

court’s discretion is not, however, unfettered; if the trial court’s judgment is not

supported by legally and/or factually sufficient evidence, we will find that the trial

court has abused its discretion. See Colmenero v. Colmenero, No. 01-14-00071-CV,

, at *3 (Tex. App.—Houston [1st Dist.] Mar. 17, 2015, no pet.)

(mem. op.) (citing Beaumont Bank v. Buller, 

 (Tex. 1991)

(explaining that “[i]n family law cases, legal and factual sufficiency challenges do

not constitute independent grounds for asserting error[] but are relevant factors in

determining whether the trial court abused its discretion.”).

      To successfully complain of a trial court’s division of marital property, a party

must show that the trial court’s order was “manifestly unjust or unfair.” Lynch v.

Lynch, 

 (Tex. App.—Houston [1st Dist.] 2017, pet denied)

(quoting Barras v. Barras, 

 (Tex. App.—Houston [14th Dist.]

2013, pet. denied). To make this showing, the complaining party must provide

evidence of the value of the property in question, so that it may be determined

whether such property was or was not inequitably apportioned between the parties;




                                          12
a party who fails to do so generally waives any complaint that the trial court

improperly divided the community estate. See Howe, 

.

      Although the record does indicate that the property Margie’s mother gave her

was worth $62,500 when Katlin sold it in November of 2019, this figure does not

necessarily represent the property’s fair market value at the time Margie conveyed

the property to Katlin in February of 2018, nor does it show the value at the time of

trial, in November of 2020. Even if we could determine the November 2020 fair

market value of the property at issue, its value tells us nothing of its character,

meaning whether it is community or separate property. If it was Margie’s separate

property, its value is irrelevant to the division of the parties’ community estate. See

Eggemeyer v. Eggemeyer, 

 (Tex. 1977) (holding that a trial

court in a divorce proceeding lacks the power to divest a party of his or her separate

property); see also Pearson v. Fillingim, 

 (Tex. 2011).

      Because James provided no evidence of the value of any property he claims

the trial court should have considered, we are unable to “quantify the size of the

community pie” so as to determine “how large a slice each spouse was served[.]” In

re Moschopoulos, 

 (Tex. App.—El Paso 2014, no pet.). We

likewise have no evidence of the community funds allegedly expended to improve

Margie’s separate property. See Vallone v. Vallone, 

 (Tex.

1982) (holding that the party seeking community reimbursement for enhancement

                                          13
of the separate estate of the other spouse has the burden of proving the amount of

the community contribution and the enhanced value); Barber v. Barber, No. 02-21-

00291-CV, 

, at *3 (Tex. App.—Fort Worth Sept. 8, 2022, no pet.)

(mem. op). We have only James’ unsupported contention that he was awarded less

than half of the community estate. Even if accurate, a just and right division of the

community estate need not necessarily be equal, and a mere showing the division is

not unequal is insufficient without more to demonstrate an abuse of discretion on the

record before us here. See Murff, 

; Coleman v. Coleman, No.

09-06-171-CV, 

, at **7-8 (Tex. App.—Beaumont June

21, 2007, pet. denied).

      The trial court heard testimony that James physically and sexually abused

Margie. The trial court had additional evidence from which it could reasonably

conclude that Margie owned the tracts of land Margie gave to Patricia and Katlin as

her separate property, and therefore found that Margie could convey those tracts to

them in any manner that she chose. See In the Estate of Ward, No. 10-11-00003-CV,

, at *9 (Tex. App.—Waco Aug. 24, 2011, pet. denied) (mem. op.).

We must also imply the trial court found James failed to carry his burden to prove

that the tracts Margie gave to Patricia and Katlin were included in the couple’s

homestead. The homestead was located on lots 15 and 16 of block 266 in Harris

County, yet the properties Margie conveyed during the marriage were identified as

                                         14
being located in either the James Foster Survey or the Robert Kuykendahl Survey,

in San Jacinto County and Montgomery County, respectively. Based on the evidence

admitted in the trial, the trial court could reasonably have determined that the tracts

Margie acquired from Patricia and from Katlin were given to her as her separate

property. See 

 Accordingly, the trial court did not abuse its discretion in excluding

these parcels of real estate from the property division.

      The trial court did not abuse its discretion in denying the motion for new trial

because James didn’t meet his burden to demonstrate the trial court failed to render

a judgment that represents a just, fair, and equitable division of the parties’

community estate. Based on the record before us, James has failed to demonstrate

that the division of property was manifestly unjust as to constitute an abuse of

discretion.

                                   IV. Conclusion

      Because the trial court did not abuse its discretion in denying either the motion

for continuance or the motion for new trial, and because James has not shown the

trial court did not make a just, fair, and equitable division of the parties’ community

estate, we affirm the trial court’s judgment.




                                          15
      AFFIRMED.
                                              ________________________________
                                                      CHARLES KREGER
                                                            Justice

Submitted on July 5, 2022
Opinion Delivered December 22, 2022

Before Kreger, Horton and Johnson, JJ.




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