CourtListener opinion 2890262

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NO. 07-03-0445-CV 

 IN THE COURT OF APPEALS 

 FOR THE SEVENTH DISTRICT OF TEXAS 

 AT AMARILLO 

 PANEL A 

 AUGUST 16, 2004 

 ______________________________ 

 IN THE MATTER OF THE MARRIAGE OF 

 DANIEL D. CLAYTON AND NANCY L. CLAYTON 

 _________________________________ 

 FROM THE 317TH DISTRICT COURT OF JEFFERSON COUNTY; 

 NO. C-172,102-A; HONORABLE LARRY THORNE, JUDGE 

 _______________________________ 

 Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ. 
 
 MEMORANDUM OPINION 

 Appellant Daniel D. Clayton, proceeding pro se , appeals from a divorce decree upon 
a non-jury trial, contending the trial court erred in making an unequal division of the 
property to appellee Nancy L. Clayton. By three points of error, he contends the trial court 
erred in (1) failing to set aside the property division as sought by both parties, (2) entry of 
the federal civil service retirement system order, and (3) entry of the military (reserve) 
qualifying court order. We affirm. 
 
 Following a hearing held on March 5, 2003, on the petition for divorce, on June 27, 
2003, the trial court signed a final decree of divorce. (1) By a handwritten order signed on 
September 9, 2003, among other things, the trial court denied a motion for new trial and 
all other pending motions. Also, on that same date, the trial court signed an order 
regarding Nancy's civil service retirement benefits and a qualifying court order regarding 
Daniel's military reserve retirement benefits. By his notice of appeal, Daniel indicated he 
was appealing the judgment signed June 27, 2003, and the order denying the motion for 
new trial signed September 9, 2003. 
 
 Pursuant to Rule 34.6(c)(1) of the Texas Rules of Appellate Procedure, Daniel 
requested preparation of a partial reporter's record of the hearing held on September 9, 
2003. He specifically requested relevant portions regarding the trial court's denial of the 
motion for new trial and entry of disputed civil service and military retirement benefits. 
When a partial reporter's record is filed, an appellate court presumes that the record 
constitutes the entire record for purposes of reviewing the stated points or issues. Tex. R. 
App. P. 34.6(c)(4). 
 
 By his first point, Daniel contends the trial court erred in failing to set aside the 
property division following the September 9, 2003 hearing on his motion for new trial. By 
his second and third points he contends the trial court erred in making a division of the 
retirement benefits for both spouses. Because the three points of error all implicate the 
trial court's discretion, we will consider them simultaneously. Daniel challenges the division 
of the marital property and the retirement benefits and requests that we set aside the 
challenged orders and remand the cause to the trial court for a hearing. We disagree. 
 
 Daniel twice requested that the trial court make findings of fact and conclusions of 
law; however, none were made nor filed. Also, Daniel did not give notice of past due 
findings of fact and conclusions of law as required by Rule 297 of the Texas Rules of Civil 
Procedure. (2) 
 
 A motion for new trial is addressed to the trial court's discretion and its ruling will not 
be disturbed on appeal absent a showing of abuse of discretion. Strackbein v. Prewitt, 671 
S.W.2d 37, 38 (Tex. 1984). The scant partial reporter's record filed of the hearing on the 
motion for new trial shows that the only witness called by Daniel, acting as his own 
counsel, was Nancy's counsel. Daniel attempted to establish that the division of property 
was disproportionate. However, no new evidence or legal basis was offered in support 
of the motion for new trial by which Daniel sought to set aside the trial court's division of 
property. 
 
 Furthermore, a trial court has wide discretion in the division of marital property and 
that discretion will not be disturbed on appeal without a showing of clear abuse of 
discretion. Jacobs. v. Jacobs, 687 S.W.2d 731, 733 (Tex. 1985); Murff v. Murff, 615 
S.W.2d 696, 698 (Tex. 1981). Indulging the presumption that the partial reporter's record 
constitutes the entire record for reviewing Daniel's complaints, no abuse of discretion is 
demonstrated in the trial court's denial of Daniel's motion for new trial nor in the court's 
division of the marital property and the retirement benefits. Points of error one, two, and 
three are overruled. 
 
 Accordingly, the judgment of the trial court is affirmed. 

 Don H. Reavis 
 
 Justice 

 1. After the decree was signed, filings with the clerk included (1) petition for 
enforcement; (2) request for findings of fact and conclusions of law; (3) petition for 
enforcement by contempt; (4) second request for findings of fact and conclusions of law; 
(5) response to motion for sanctions; (6) first amended petition for enforcement by 
contempt; (7) second amended petition for enforcement; (8) response to motion to sign 
qualified domestic relations order; and (9) first supplemental response to second amended 
petition for enforcement. 
 2. Daniel does not present any error in the trial court's failure to make and file findings 
of fact and conclusions of law. 

in\> Mandamus Standard of Review