AFFIRM; and Opinion Filed April 26, 2017.




                                           S   In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                        No. 05-15-01198-CV

                          IN THE INTEREST OF J.M.M., A CHILD

                       On Appeal from the 296th Judicial District Court
                                    Collin County, Texas
                           Trial Court Cause No. 296-51915-2014

                              MEMORANDUM OPINION
                            Before Justices Lang, Brown, and Whitehill
                                    Opinion by Justice Brown
       After a trial before the court, Wife appeals a final decree of divorce. Wife appeared pro

se in the trial court and appears pro se in this appeal. In five issues, she contends (1) she did not

have proper notice of trial, (2) she was denied the right to a jury trial, (3) the trial court erred in

not granting either of her two post-judgment motions, (4) the trial court’s division of the parties’

assets was unfavorable to her, and (5) the trial court erred in failing to void or vacate the decree.

We affirm the trial court’s judgment.

       Husband and Wife were married in 1985. After almost thirty years of marriage, on April

17, 2014, Husband filed a petition for divorce. Wife answered with a general denial. In June

2015, the trial court set the case for a final hearing on August 17, 2015. At the start of that

hearing, the trial court indicated “a final trial, final hearing” was to take place and asked the

parties what the issues were. Husband’s counsel stated they had been unable to communicate

with Wife until that day. Husband had come up with a proposed distribution of property. After
Wife objected to parts of Husband’s proposal, an off-the-record discussion was held. Back on

the record, the trial judge stated that he had assisted the parties in reaching an agreement. The

judge noted that Wife was at a disadvantage because she was asking for things not contained in

her pleadings and because she had not answered any of Husband’s discovery requests. The

judge explained how the parties’ community debts and assets were going to be divided under the

agreement. After Wife indicated she had reached the agreement under duress, the judge decided

to proceed with a trial and told Husband to call his first witness. Husband was the sole witness.

He testified that he had already deeded the marital home to Wife. He also offered evidence of

his proposed division of the community assets and debt. Wife cross-examined Husband. She

did not attempt to present any evidence.

           The court signed a final decree granting the parties a divorce and dividing their property.

Wife filed a motion for new trial and also a motion to vacate the decree which were overruled by

operation of law. This appeal followed. 1

           In her first issue, Wife contends she did not have proper notice of the trial. She maintains

there was a trial by ambush and she did not have time to present any witnesses or evidence. She

does not argue she did not have notice of the August 17 hearing; indeed, she was present. Her

argument is that she was unaware the final hearing was actually a trial on the merits and was her

opportunity to present evidence. She contends she was denied due process for this reason. She

also complains that there was no scheduling order in place.

           As a prerequisite to presenting a complaint for appellate review, an appellant must make

the complaint to the trial court by a timely request, objection, or motion. TEX. R. APP. P. 33.1(a).

A timely objection is one made at such a point in the proceedings that the trial court has the

           1
             Although the style of this case refers to the parties’ child, at the time the decree was signed, J.M.M. had reached the age of majority
and was no longer before the trial court.




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opportunity to cure any alleged error. Crews v. DKasi Corp., 469 S.W.3d 194, 201 (Tex. App.—

Dallas 2015, pet. denied). Even constitutional claims must be raised below or they are not

preserved for appellate review. In re Baby Boy R., 191 S.W.3d 916, 921 (Tex. App.—Dallas

2006, pet. denied).   Pro se litigants are held to the same standards as attorneys, and they are

subject to the same rules of procedure. Millwee v. Capstar Commercial Real Estate Svcs., 337

S.W.3d 517, 521 (Tex. App.—Dallas 2011, no pet.).

       Although the trial court made clear at the start of the hearing that it was a final trial, Wife

waited until her motion for new trial to raise her complaint about not having notice of the trial.

She also complained for the first time about the lack of a scheduling order in her motion for new

trial. Wife argues that we are constrained to reverse this case based on our opinion in Estate of

Merkel, No. 05-14-01596-CV, 2016 WL 462569 (Tex. App.—Dallas Feb. 5, 2016, no pet.)

(mem. op. on rehearing). But Merkel is distinguishable. In that case, the trial court made a final

determination of a party’s homestead rights at a hearing the court had ordered for the executor of

an estate to appear to show why he should not be removed. Id. at *2. The party objected during

the hearing to the court’s action regarding his homestead rights because that was not the issue set

for hearing. Id. We reversed the trial court’s order because the record did not contain notice of a

final trial setting, only notice for the show cause hearing. Id. at *3. Here, unlike Merkel, the

notice given stated that Husband’s divorce petition was set for a “final hearing” on August 17.

Further, Wife did not timely raise her complaint that she did not have adequate notice that the

trial court would be making a final disposition of the case at the August 17 hearing. She has not

preserved her complaints under this issue for our review. We overrule Wife’s first issue.

       In her second issue, Wife contends she was denied her right to a jury trial. In civil cases,

the right to trial by jury is not automatic and arises only when a party has demanded a jury trial

and paid the applicable fee. Aberegg v. Ceschan, No. 05-12-01000-CV, 2014 WL 2921657, at

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*1 (Tex. App.—Dallas June 25, 2014, no pet.) (mem. op.). The Texas Rules of Civil Procedure

require parties desiring a jury trial to make a written request at least thirty days in advance of

trial. See TEX. R. CIV. P. 216(a). Wife acknowledges that she did not request a jury as required

by rule 216, but asserts her failure to do so was because she did not know the trial date. On the

day of the final hearing, Wife said nothing about her desire for a jury trial and participated in the

trial before the court by cross-examining Husband. Again, Wife waited until her motion for new

trial to raise a complaint about not getting a jury trial. Because Wife participated in the bench

trial without raising this complaint to the court, the issue is not preserved for our review. See

TEX. R. APP. P. 33.1(a); Crews, 469 S.W.3d at 201; In re D.R., 177 S.W.3d 574, 580 (Tex.

App.—Houston [1st Dist.] 2005, pet. denied) (even when jury trial has been properly requested,

party may waive right to jury trial by failing to act when court proceeds with bench trial). To the

extent Wife complains that the trial court’s handling of the case amounted to death penalty

sanctions, she likewise failed to raise this complaint in a timely manner in the trial court. We

overrule Wife’s second issue.

       In her third issue, Wife contends the trial court erred in failing to grant “at least one post

judgment motion such as [her] motion for new trial.” Wife’s entire argument under this issue

consists of a single sentence. She has failed to cite applicable authority or provide substantive

analysis. As such, this issue is inadequately briefed and does not present anything for our

review. Humitech Dev. Corp. v. Perlman, 424 S.W.3d 782, 796–97 (Tex. App.—Dallas 2014,

no pet.); see TEX. R. APP. P. 38.1(i). We overrule Wife’s third issue.

       In her fourth issue, Wife complains of the trial court’s division of property. Again, she

has not properly briefed this issue.      Her brief does not contain a clear argument for her

contentions. The reasons she believes the property was inappropriately divided are unclear.

Further, Wife has not cited appropriate authorities; the only authority she has provided on this

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issue is a rule of appellate procedure related to preservation of error. TEX. R. APP. P. 38.1(i); see

id. 33.1(d).

        Nevertheless, we have reviewed the division of property and see no clear abuse of

discretion. In a divorce case, the 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. TEX.

FAM. CODE ANN. § 7.001 (West 2006). The trial court has wide discretion in dividing a marital

estate and may consider many factors. Young v. Young, 609 S.W.2d 758, 762 (Tex. 1980); Toles

v. Toles, 45 S.W.3d 252, 264 (Tex. App.—Dallas 2001, pet. denied). The party attacking the

property division bears the heavy burden of showing that the trial court’s property division was

not just and right. Walter v. Walter, 127 S.W.3d 396, 398 (Tex. App.—Dallas 2004, no pet.).

Equality in the division 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.

Toles, 45 S.W.3d at 264.

        Wife seems to argue that the division was improperly unfavorable to her because

Husband got six cars and a motorcycle and she got one car with a blown engine. We note the

condition of these vehicles is not apparent from the record. Wife also mentions the length of the

marriage, her physical condition, and Husband’s criminal record.            Although Husband was

awarded more vehicles than Wife, Wife was awarded other valuable property including the

marital residence and a baby grand piano. In addition, the parties had substantial debts and

Husband was given a somewhat greater share of those debts. On this record, and especially in

light of Wife’s failure to present any evidence at trial, we are unable to conclude that the trial

court’s property division was a clear abuse of discretion. We overrule Wife’s fourth issue.

        In her fifth issue, Wife contends that the trial court erred in failing to grant her motion to

vacate the divorce decree. In her argument under this issue, Wife argues that the decree is void.

                                                 –5–
The reasons for her argument are not clear; she merely states that the trial court had no

reasonable basis for granting the divorce. Further, the case law cited is not helpful. See, e.g.,

Nat. Res. Defense Council, Inc. v. U.S. E.P.A., 966 F.2d 1292, 1297 (9th Cir. 1992) (case

involving actions of EPA and discussing United States Code provision that authorizes court to

set aside agency action). Again, this issue is inadequately briefed. TEX. R. APP. P. 38.1(i). In

addition, a judgment is void only when it is apparent the court rendering judgment had no

jurisdiction of the parties or property, no jurisdiction of subject matter, no jurisdiction to enter

judgment, or no capacity to act as court. See Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex.

1990). Wife has not advanced any of these reasons for her assertion that the divorce decree is

void. We overrule Wife’s fifth issue.

       We affirm the trial court’s judgment.




                                                      /Ada Brown/
                                                      ADA BROWN
                                                      JUSTICE



151198F.P05




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                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

IN THE INTEREST OF J.M.M., A CHILD                     On Appeal from the 296th Judicial District
                                                       Court, Collin County, Texas
No. 05-15-01198-CV                                     Trial Court Cause No. 296-51915-2014.
                                                       Opinion delivered by Justice Brown; Justices
                                                       Lang and Whitehill participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellee William Andrew McInnis recover his costs of this appeal
from appellant Janine Charboneau.


Judgment entered this 26th day of April, 2017.




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