                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-12-00703-CV

                                             Eric WARD,
                                              Appellant

                                                 v.
                                               Brooke
                                           Brooke WARD,
                                              Appellee

                   From the County Court at Law No 4, Williamson County, Texas
                                   Trial Court No. 11-1851-FC4
                         The Honorable John B. McMaster, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Rebeca C. Martinez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: February 5, 2014

AFFIRMED

           In this appeal from a final divorce decree, appellant asserts the trial court erred by (1)

disregarding certain provisions of the parties’ mediated settlement agreement; (2) rendering a

partial summary judgment concluding the parties’ property agreement was unenforceable; (3)

improperly dividing the marital estate; and (4) improperly ordering him to pay Brooke’s attorney’s

fees directly to her and from his portion of a joint account. We affirm.
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                                         BACKGROUND

        Eric and Brooke Ward married in January 2004, and, in 2007, they had a son. On May 30,

2011, Eric and Brooke signed a “Property and Co-Parenting Agreement” (“the Property

Agreement”). Two weeks later, Eric filed an original petition for divorce. Brooke later filed a

counter-petition for divorce. In April 2012, Brooke filed a motion for partial summary judgment

arguing the Property Agreement was not enforceable as a matter of law. About a year after Eric

filed his original petition, Eric and Brooke signed a “Mediated Settlement Agreement” (“the

MSA”), which resolved only the issues regarding their son. The trial court later signed an order

granting Brooke’s motion for partial summary judgment and declaring the Property Agreement

unenforceable. On August 1, 2012, the trial court signed the final divorce decree. Eric now

appeals.

                          MEDIATED SETTLEMENT AGREEMENT

        Eric first contends the divorce decree is inconsistent with the provisions of the MSA

regarding certain joint responsibilities for their son. Under the MSA, Eric and Brooke agreed to

be joint managing conservators of their son; they would jointly exercise the right to consent to

medical, dental, and surgical treatment involving invasive procedures for their son; and each had

the right to consent to psychiatric and psychological treatment for their son. The MSA is signed

by both parties and their respective attorneys.

        However, contrary to the MSA, the trial court stated on the record:

        I’m worried about [the child]. There’s an agreement that was made in regards to
        [the child]. It is not customary for judges to come back in and redo mediated
        settlement agreements. You guys did a good job that you got that out of the way
        because if that was in front of me right now it would be real bad. . . . .

The trial court also stated:

               Mrs. Ward, I’m going off the reservation on one item of your mediated
        settlement agreement because I do specifically find that it is not in the child’s best
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       interest that anyone make psychological or medical decisions but you. That’s on
       the final decree I want Mrs. Ward making all medical and psychological decisions
       for [the child]. Everything else is shared.

       In its findings of fact, the trial court found it was in the child’s best interest that Eric and

Brooke be appointed joint managing conservators with certain exclusive rights vested in Brooke,

including the right to consent to medical, dental, and surgical treatment involving invasive

procedures, as well as psychiatric and psychological treatment for their son. In the divorce decree,

the trial court ordered that Brooke, as joint managing conservator, had the exclusive right to

consent to medical, dental, and surgical treatment involving invasive procedures, as well as

psychiatric and psychological treatment for the child. On appeal, Eric asserts the trial court abused

its discretion by disregarding the MSA provisions. Specifically, Eric contends there is no evidence

or insufficient evidence to support a finding that the MSA’s provisions regarding medical, dental,

and surgical treatment involving invasive procedures, as well as psychiatric and psychological

treatment for their son, were not in the child’s best interest or that the MSA was illegal or violated

public policy.

       When the trial court verbally pronounced its decision “that it is not in the child’s best

interest that anyone make psychological or medical decisions but” Brooke, Eric did not object.

Later, during a hearing on the language of the final decree, one of the disputes involved who should

pay for expenses related to psychiatric and psychological treatment for the child. The MSA, which

allowed each parent to independently exercise the right to seek such treatment, provided that if the

parents “do not both agree on the rendition of [these] service[s] . . . then the parent who obtains

those services shall be solely responsible for their cost.” At the hearing on entry of the decree,

Brooke’s attorney argued that because the trial court decided Brooke alone could exercise this

right, this payment provision in the MSA should be struck and the costs shared equally. Eric’s

attorney, again, did not object to the trial court’s ruling regarding the exclusive rights granted to
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Brooke, and, instead, only argued that Eric should not be required to pay half the cost. We

conclude that, because Eric did not raise the same objections before the trial court that he now

raises on appeal, he has not preserved his complaints for our review. See TEX. R. APP. P. 33.1(a).

                               THE PROPERTY AGREEMENT

       Eric next asserts the trial court erred by rendering a partial summary judgment in favor of

Brooke. In her motion for summary judgment, Brooke asserted the Property Agreement was

unenforceable as a matter of law for two reasons. She first argued the agreement was not a valid

partition/exchange or conversion agreement because it did not effectuate an immediate transfer of

the parties’ rights and interests in their property. Second, Brooke argued the agreement was not

an enforceable settlement agreement incident to divorce because (1) the agreement was drafted

and signed before the parties anticipated or filed for divorce, and (2) if it is a valid settlement

agreement, the agreement is not valid because it was not submitted to the trial court for approval

or incorporated into the divorce decree and was repudiated by Brooke before the court rendered

the divorce.

       On appeal, the entirety of Eric’s argument in his appellate brief centers on whether the

Property Agreement is a valid partition agreement and not simply an agreement to agree in the

future. Eric asserts the trial court erred by “finding that the Property Agreement was unenforceable

because it was not a valid partition agreement.” However, in its summary judgment order, the trial

court did not specify its grounds. Instead, the trial court simply held the Property Agreement was

“unenforceable as a matter of law.” When, as in the present case, a movant asserts multiple

grounds for summary judgment, and the trial court does not specify in the order the ground on

which summary judgment was granted, the nonmovant must negate all grounds on appeal. See

Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995); Lewis v. Adams, 979 S.W.2d 831,

833 (Tex. App.—Houston [14th Dist.] 1998, no pet.). If the nonmovant fails to challenge all
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grounds on which the judgment may have been granted, the appellate court must uphold the

summary judgment. See Lewis, 979 S.W.2d at 833; Fields v. City of Texas City, 864 S.W.2d 66,

68 (Tex. App.—Houston [14th Dist.] 1993, writ denied).

       In her appellee’s brief, Brooke asserted this court should affirm the summary judgment

because Eric did not challenge her second reason for summary judgment. In his reply brief, Eric

admits he “did not specifically address Brooke’s argument that the Property Agreement was not

an enforceable agreement incident to divorce because it clearly was not enforceable.” He further

states: “Even if the Property Agreement was an agreement incident to divorce (which is doubtful),

Brooke clearly repudiated the Property Agreement a few days after she and Eric signed the

Property Agreement.” Having apparently conceded to Brooke’s second basis for summary

judgment, Eric extends his challenge to the first basis for summary judgment by arguing, for the

first time, that Brooke’s defenses to a partition or exchange agreement are limited to whether she

signed the agreement voluntarily or whether the agreement is unconscionable. Eric contends

Brooke signed the Property Agreement voluntarily.

       In his reply brief, Eric contends the voluntariness of the agreement is not waived because

he raised a broad Malooly point in his Motion for New Trial and his Motion to Modify, Correct or

Reform. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970) (issue on appeal

stating simply that trial court erred by granting summary judgment “allows argument as to all the

possible grounds upon which summary judgment should have been denied”). On appeal, a party

must argue his claim of error in his appellate brief; “it is insufficient simply to refer the appellate

court to the party’s trial court arguments.” Allen v. United of Omaha Life Ins. Co., 236 S.W.3d

315, 325 (Tex. App.—Fort Worth 2007, pet. denied). “Were we to approve of this tactic, appellate

briefs would be reduced to a simple appellate record reference to a party’s trial court arguments.

Additionally, this would be an open door for parties to circumvent the appellate brief page
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limitations.” Guerrero v. Tarrant Cnty. Mortician Servs. Co., 977 S.W.2d 829, 832–33 (Tex.

App.—Fort Worth 1998, pet. denied). Accordingly, on appeal, we do not construe Eric’s specific

complaint as a broad Malooly complaint.

         As to the argument raised in his reply, the Texas Rules of Appellate Procedure provide that

an appellant “may file a reply brief addressing any matter in the appellee’s brief.” TEX. R. APP. P.

38.3. However, an issue raised for the first time in a reply brief is waived and need not be

considered by an appeals court. See Anderson Prod. Inc. v. Koch Oil Co., 929 S.W.2d 416, 424

(Tex. 1996) (court declined to consider issue first raised in reply brief); López v. Montemayor, 131

S.W.3d 54, 61 (Tex. App.—San Antonio 2003, pet. denied) (court declined to consider issue not

raised in appellant’s original brief or raised in response to appellee’s brief). The issues raised in

Eric’s reply brief with regard to whether the Property Agreement was signed voluntarily were not

raised in Eric’s original brief, and cannot be said to be responsive to the arguments contained in

Brooke’s appellee’s brief. See TEX. R. APP. P. 38.3; López, 131 S.W.3d at 61. Accordingly, Eric’s

argument raised in his reply brief are not properly before this court.

         Because Eric either did not challenge all grounds on which the summary judgment may

have been granted or he conceded to the second basis for summary judgment, we must uphold the

summary judgment.

                                     MARITAL PROPERTY DIVISION

         Eric asserts the trial court erred in dividing the marital property, including community and

separate, in the final divorce decree. 1 Specifically, Eric contends (1) the evidence is insufficient

to support the factors—other than cruelty—that the trial court considered in dividing the property;



1
  Eric’s statement of this issue also includes his claim that the trial court erred in characterizing and valuing the marital
property; however, he provides no argument under this portion of his issue on appeal. Therefore, we consider this
issue only as it pertains to the trial court’s division of the marital property.

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(2) the trial court divided the property based upon an arbitrary ten percent rule; (3) the

38.5%/61.5% division of property is manifestly unjust; and (4) the trial court failed to hold Brooke

accountable for funds she spent during the pendency of the divorce.

       One of the factors considered by the trial court was “the cruelty on the part of Eric Ward

during the marriage.” On appeal, Eric does not challenge the sufficiency of the evidence in support

of this finding. “Although infrequent since the introduction of no-fault divorce, a Texas court may

still grant a divorce on the ground of cruel treatment.” Newberry v. Newberry, 351 S.W.3d 552,

556 (Tex. App.—El Paso 2011, no pet.) (concluding court did not err in its finding of cruelty as a

basis of fault because evidence was legally sufficient to support trial court’s finding of cruelty;

therefore, court did not err in awarding disproportionate share of marital estate to appellee on both

cruelty and adultery as bases of fault); see also Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981)

(holding trial court may consider fault of one spouse in breaking up the marriage when making a

property division). “The court may grant a divorce in favor of one spouse if the other spouse is

guilty of cruel treatment toward the complaining spouse of a nature that renders further living

together insupportable.” TEX. FAM. CODE ANN. § 6.002 (West 2006). Therefore, because Eric

does not challenge the trial court’s finding on cruelty, and because a trial court may consider

cruelty in making a disproportionate division of property, we need not address Eric’s contention

that the evidence is insufficient to support the other factors considered by the trial court in dividing

the marital property.

       Other than his conclusory statement that the trial court divided the property based upon an

arbitrary ten percent rule, Eric provides no authoritative support for his contention. See TEX. R.

APP. P. 38.1(i) (“The brief must contain a clear and concise argument for the contentions made,

with appropriate citations to authorities and to the record.”). Therefore, we next consider Eric’s

assertion that the trial court’s 38.5%/61.5% division of property is manifestly unjust.
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       Equality in the division of marital property is not required, and this court indulges every

reasonable presumption in favor of the proper exercise of discretion by the trial court in dividing

the community estate. Murff, 615 S.W.2d at 699; Johnson v. Johnson, 948 S.W.2d 835, 838 (Tex.

App.—San Antonio 1997, writ denied). In exercising its discretion, the trial court may consider

numerous factors, such as the nature of the marital property; the relative earning capacity and

business opportunities of the parties; the parties’ relative financial condition and obligations; the

parties’ education; the size of separate estates; the age, health, and physical conditions of the

parties; fault in breaking up the marriage; the benefit the innocent spouse would have received had

the marriage continued; and the probable need for future support. Murff, 615 S.W.2d at 699.

       In reviewing a trial court’s division of a marital estate, it is our duty to presume that the

trial court properly exercised its discretion. Chafino v. Chafino, 228 S.W.3d 467, 473 (Tex.

App.—El Paso 2007, no pet.); Burney v. Burney, 225 S.W.3d 208, 215 (Tex. App.—El Paso 2006,

no pet.). Thus, the party challenging the division bears the burden of demonstrating from the

evidence in the record that the trial court’s division was so unjust and unfair as to be an abuse of

discretion. Chafino, 228 S.W.3d at 473-74; Burney, 225 S.W.3d at 215.

       On appeal, Eric lists the community property awarded to him and the community property

awarded to Brooke. He then contends the division of community property including the $94,000

attorney’s fee awarded to Brooke that was deducted from his accounts resulted in him being

awarded 38.5% of the community estate and Brooke being awarded 61.5% of the community

estate. With no discussion of or citation to the record and no authoritative support, Eric concludes

this resulted in a grossly disproportionate division of property. Because Eric provides no facts, no

citations to the record, and no argument to support his global disproportionality challenge, we must

conclude he has not satisfied his burden of demonstrating from the evidence in the record that the

trial court’s division was so unjust and unfair as to be an abuse of discretion.
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       Eric’s final complaint regarding the property division is his contention that the trial court

failed to hold Brooke accountable for funds she spent during the pendency of the divorce. As

support, Eric first points to a statement made by the trial court during a pre-trial hearing that with

regard to attorney’s fees, the court was “putting everyone on a diet.” Eric also points to an agreed

docket control plan, in which the court states that “[o]ther than attorneys’ fees and litigation

expenses, the Parties are ORDERED not to incur an expense on any one item which exceeds

$5,000.00 without written agreement or Court Order.” Other than his testimony at a post-trial

hearing that Brooke spent more than $623,000 from June 2011 to September 2012, Eric cites to

no place in the record during the bench trial where he asked the trial court to hold Brooke

responsible for her spending, nor does he cite to any evidence in the record that any one item of

her spending exceeded $5,000.00. Therefore, this contention on appeal is without merit.

                                      ATTORNEY’S FEES

       Finally, Eric asserts the trial court abused its discretion in awarding Brooke $94,000 in

attorney’s fees and ordering him to pay the fees from his portion of a Vanguard Joint Account.

       Eric did not raise any concerns when the trial court announced on the record it was

awarding Brooke $94,000 in attorney’s fees; he did not object to the proposed final decree during

a later hearing regarding the language of the proposed final decree; and, at another post-trial

hearing, Eric expressly agreed that an additional $50,000 in retainer be paid to Brooke’s attorney

from the Vanguard account. Because it does not appear that Eric raised any complaint about the

attorney’s fee award at trial, he may not raise it for the first time on appeal. TEX. R. APP. P. 33.1;

see In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003) (failure to raise complaint at trial waives review

of complaint on appeal); McIntyre v. McIntyre, 722 S.W.2d 533, (Tex. App.—San Antonio 1986,

no writ) (holding husband had “no basis for now complaining that the proceeds from the sale of



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the property are exempt” because he failed to raise the complaint at trial or in a motion for new

trial).

                                           CONCLUSION

          For reasons stated above, we affirm the trial court’s judgment.



                                                    Sandee Bryan Marion, Justice




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