                                   NO. 07-01-0460-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                      JUNE 21, 2002

                          ______________________________


                       IN THE MATTER OF THE MARRIAGE OF
                      CHERYL VINEYARD AND JOHN VINEYARD


                        _________________________________

        FROM THE COUNTY COURT AT LAW NO. 1 OF LUBBOCK COUNTY;

               NO. 2001-513,025; HONORABLE RUSTY LADD, JUDGE

                         _______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


       In three issues, appellant John Vineyard, who is incarcerated and acting pro se,

challenges a divorce decree dissolving the marriage between himself and appellee Cheryl

Vineyard. In those issues, he contests the trial court’s property distribution between the

parties. Finding no error in the trial court’s ruling, we affirm the judgment.


       Appellee’s original petition for divorce was filed on March 7, 2001. Appellant was

served with process in the Lubbock County Jail on the same day. On April 26, 2001, the

trial court signed a notice of intent to dismiss within 45 days unless a default judgment was
signed or an answer or verified motion to retain was filed. Appellant subsequently filed his

answer on May 2, 2001. In that answer, appellant asserted that certain itemized pieces

of personal property, consisting mainly of tools, were his separate property. He also

asserted that he had made improvements to appellee’s home, which increased the value

of the property, and he had paid off debts that appellee incurred prior to the marriage.


       On June 29, 2001, the court set a final hearing on the divorce petition for August 28,

2001. On July 13, 2001, appellant filed a notice of change of address showing he had

been moved to another prison. Then, on August 31, 2001, the trial court set the final

hearing for September 10, 2001. On that day, the matter was called, and appellee

appeared, but appellant did not. The court noted that there had been no request for a

bench warrant for appellant’s appearance at the hearing, the issues for determination at

the hearing were not constitutional ones, and therefore he knew of no reason why the court

should require his attendance. During the hearing, an exhibit was admitted showing that

delivery of notice of the hearing had been made by Federal Express and signed for (by

someone other than appellant) on August 29, 2001.


       As a result of the hearing, the trial court granted the divorce, and each party was

awarded (1) household furniture, furnishings, fixtures, goods, art objects, collectibles,

appliances, equipment, clothing, jewelry and other personal effects in their possession or

subject to their sole control, (2) cash or funds on deposit in financial institutions which

stand in their sole name or from which they have the sole right to withdraw funds, (3) all

sums related to profit-sharing plans, retirement plans, pension plans and other benefits


                                             2
existing from their individual employment, (4) all life insurance policies insuring their

individual life, and (5) all brokerage accounts, stocks, bonds, and securities registered in

their individual names. Appellee was also awarded a residence. The divorce decree was

signed on September 10, 2001. Two days later, on September 12, appellant filed motions

for continuance, for jury trial, for writ of habeas corpus in which he requested the issuance

of a bench warrant for his presence at the hearing, and for mediated resolution.


       In his issues, appellant claims he was deprived of (1) his property without due

process of law in violation of the United States and Texas Constitutions by the trial court’s

award of his separate property to appellee “in spite of both pleadings and testimony before

the court which clearly raise[d] mixed questions of fact and law . . .”; (2) his property when

the court clerk failed and refused to file his motions in violation of the United States and

Texas Constitutions; and (3) his constitutional protections when the trial court did not read

his answer to the petition “well enough to discern” that clear constitutional issues existed

and did not “give weight to clearly specified allegations and challenges to the original

petition.”


       In his first issue, appellant complains of the trial court’s failure to take into account

the allegations set forth in his answer to the divorce petition, which raised “mixed questions

of fact and law.” He claims that he clearly identified in his answer at least 75 pieces of

separate property, which he left in the “fiduciary care” of his wife, and the trial court should

not have awarded even one piece of that property to appellee without asking her on the

record about the origin of those items and without allowing rebuttal from him. Appellant


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also argues the trial court should have addressed the increase in value of appellee’s home

as a result of improvements made by him and reimbursed him for payment of debts

appellee incurred prior to the marriage. The gist of this issue is that the property matters

were sufficiently contested to require a specific inquiry as to each contested item and

because there was none, the judgment was made without supporting evidence.


       The trial court has wide discretion in dividing the estate of the parties, but must

confine its division to community property. Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex.

1985). The ruling of the trial court will not be disturbed on appeal absent an abuse of that

discretion. Matter of Marriage of DeVine, 869 S.W.2d 415, 427 (Tex.App.--Amarillo 1993,

writ denied). However, the party attacking the division of marital property bears the burden

of showing that the trial court’s division was not just and right, and it must be demonstrable

from the record that there was an abuse of discretion. Pletcher v. Goetz, 9 S.W.3d 442,

446 (Tex.App.--Fort Worth 1999, pet. denied). Property possessed by either spouse on

dissolution of the marriage is presumed to be community property, and the party seeking

to overcome the presumption must establish by clear and convincing evidence that it is

separate property. Tex. Fam. Code Ann. § 3.003 (Vernon 1998).


       Although there is evidence appellant received notice of the hearing and he does not

claim otherwise, he did not request to appear at the hearing by telephone, affidavit,

deposition or personal attendance until after the divorce decree had been signed, and

therefore the only evidence presented was that of appellee. At the hearing, she testified

that she had purchased her home prior to the marriage and was claiming it as personal


                                              4
property. She also stated that she had taken appellant’s personal belongings to his

mother’s house. Further, they only lived together for approximately a year and, during that

time, she averred that appellant provided around $2,000 to the household income.

Otherwise, she supported him with room and board and bought him personal items. When

asked if appellant bought the tools he claimed as his separate property, she replied, “I

probably bought most of them.” She also testified that there had been three domestic

violence reports against appellant in which she sustained broken ribs and bruises.


       Without any controverting evidence by appellant as to the characterization of the

specific items he claims are separate property or their value, he failed to overcome the

presumption that the items were community property. In re Marriage of Daughtery, 42

S.W.3d 331, 335 (Tex.App.--Texarkana 2001, no pet.); Vannerson v. Vannerson, 857

S.W.2d 659, 670 (Tex.App.--Houston [1st Dist.] 1993, writ denied). However, appellant

argues that the listing of property and their values in his response to the petition for divorce

is sufficient to provide the court with that information or, alternatively, impose some duty

on the court to inquire into those matters of the witnesses at trial, even though appellant

was not present to do so himself.


       A court may take judicial notice of papers on file in a case. Tschirhart v. Tschirhart,

876 S.W.2d 507, 508 (Tex.App.--Austin 1994, no writ). However, generally, judicial notice

should be taken of facts only when they are capable of ready or accurate determination by

resort to accurate sources. Tex. R. Evid. 201(b); Bhalli v. Methodist Hosp., 896 S.W.2d

207, 210 (Tex.App.--Houston [1st Dist.] 1995, writ denied); Trimble v. Texas Dept. of


                                               5
Protective & Regulatory Service, 981 S.W.2d 211, 215 (Tex.App.--Houston [14th Dist.]

1998, no pet.). Therefore, even if the court had taken judicial notice of appellant’s

response to the petition for divorce, it could not take judicial notice of the truth of the

allegations in that pleading. Tschirhart, 876 S.W.2d at 508; but see Vannerson, 857

S.W.2d at 671 (holding that the court could take judicial notice of an inventory filed with the

court and rely on it in reaching a conclusion of law, but also finding no harm even if error

occurred because the court had a trial exhibit containing a listing of the community

property). If the reverse were true, it would never be necessary for parties to present

sworn testimony at trial because the court could merely rely on the allegations in the

pleadings of the parties.


       In this instance, the court noted the response filed by appellant and that it was

“[r]espectfully submitted and sworn to,” but received it as a straight pleading because it was

not verified.1 The court further noted that the contested issue was whether certain items

of property were part of the community estate. Thus, the court was aware of the contents

of appellant’s pleading. However, we know of no authority which imposes a duty on the

court to elicit testimony as to the characterization of the property or to require a testifying

party to provide the same. The parties may or may not furnish such information depending

on whether they seek to establish the property as separate. See Finch v. Finch, 825

S.W.2d 218, 226 (Tex.App.--Houston [1st Dist.] 1992, no writ). As already stated, the


       1
        The statement also failed to meet the requirements of section 132.002 of the Civil
Practice and Remedies Code as an unsworn declaration of an inmate in that it did not state
that it was subscribed by the person making the declaration as true under penalty of
perjury.

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burden was on appellant to prove by clear and convincing evidence that the property he

claimed as separate was not part of the community estate. Appellant also bore the burden

to establish his right to reimbursement for money, time and effort expended to improve

appellee’s separate property. Rogers v. Rogers, 754 S.W.2d 236, 239 (Tex.App.--

Houston [1st Dist.] 1988, no writ). Likewise, it was appellant’s responsibility to provide

evidence that his payment on debts incurred by appellee prior to the marriage was

something other than a gift. See Matter of Marriage of Louis, 911 S.W.2d 495, 497

(Tex.App.--Texarkana 1995, no writ). Those burdens were not met, and evidence was

presented at trial to support the court’s ruling. Appellant’s first issue is overruled.


       In his second issue, appellant complains of the failure of the court clerk to file his

motions for continuance, for jury trial, for writ of habeas corpus ad testificandum, and for

mediated resolution which, he contends, resulted in the deprivation of his property. 2

Although appellant hand-dated his pleadings on September 3, 2001, there is no evidence

as to when they were actually placed in the mail. The clerk’s record shows that these

documents were filed on September 12, 2001. Therefore, there was no refusal on the part

of the clerk to file the documents.




       2
         In this issue, appellant also complains of other miscellaneous acts of the trial court
and the court clerk in failing to respond to inquiries, to notify all parties of the notice of
appeal, to deliver copies of transcripts and filed documents during this appeal, to notify him
of “ruling on appeal,” to respond to requests for inquiries on “these transgressions,” to
conduct an investigation of “the matter,” and to rule on his request for a restraining order.
Allegedly, these acts deprived him of his property interests. These remaining matters are
multifarious and we are not required to address them. Furr v. Hall, 553 S.W.2d 666
(Tex.Civ.App.--Amarillo 1977, writ ref’d n.r.e.).

                                              7
       As to whether the clerk failed to timely file the documents, appellant points to

testimony at the divorce hearing on September 10 in which appellee’s counsel indicated

he had received some other documents from appellant which the clerk’s record did not

show were filed as of the hearing. Although appellant complains of counsel’s silence and

the trial court’s failure to investigate, there is no showing that the court was even aware of

the nature of those documents. Further, appellant cites no authority which would require

appellee’s counsel to file those documents on his behalf or require the court to investigate

why the documents had not yet been filed. Finally, there is no evidence that the court clerk

did not file those documents on the date they were received by her office. Appellant’s

second issue is overruled.


       Finally, in his third issue, appellant claims violations of his constitutional rights as

a result of “the failure of the trial court to read the filed document and give weight to clearly

specified allegations and challenges to the original petition; and to, despite clear claims to

seperate [sic] protected property, then declare that no constitutional issues exist; and to

issue an arbitrary decree without basis in fact or law, without asking a single question in

regard to the specific challenges posed clearly in the answer, properly before the court,

relevant to the subject matter and germane to the ruling. . . .” Appellant particularly

complains of the trial court’s following remarks at the hearing:


       What is at issue is whether or not various items were members of the -- was
       part of the community estate or part of a separate estate when it became a
       community estate, and whether or not any of the property that was separate
       estate, and this is is all a legal bunch of mumble jumble I understand as far
       as you’re concerned, but what I am doing is making a record for us, that


                                               8
       there may have been some kind of increase in value of separate estate and
       that increase in value might have been community property.

       Now, none of those rise to any kind of constitutional issue. Mr. Vineyard is
       not -- there is nothing in any pleading in which the court is being asked to
       make any determination that rises to the level of constitutional issue. He is
       not entitled unless he can show some overwhelming just need to be present,
       no reason why the court should bench warrant him here . . . .


Appellant claims this statement is error because the nature of property is fixed by the

constitution, and the separate property of one spouse may not be awarded to the other

spouse because it is constitutionally forbidden. The comment of the trial court was made

with respect to whether a bench warrant should issue. Even if the comment was in error,

no harm resulted to appellant from the comment itself, since he did not timely request to

be present at the hearing.


       Further, while it is reversible error for a trial court to award the separate property of

one spouse to another, in this instance, as we have already discussed, there was no

evidence presented at the hearing as to the separate nature of the property appellant

requested. The burden to provide that evidence was on appellant, not the trial court or

appellee’s counsel. We are aware of no authority, and appellant has provided none, which

states that the mere assertion of allegations in a petition imposes a duty on the court to

conduct its own independent investigation to produce evidence not offered by any of the

parties. Even assuming that the court had questioned appellee extensively at the hearing,

there has been no showing that it would have produced any evidence that would have

changed the result of this proceeding. Therefore, the trial court did not abuse its discretion



                                               9
in not awarding the challenged items of property to appellant. Appellant’s third issue is

overruled.


      Having found no reversible error, we affirm the judgment of the trial court.



                                                John T. Boyd
                                                 Chief Justice

Do not publish.




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