                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-310-CV


KIMBERLY YOUNG                                                   APPELLANT

                                        V.

ALAN D. YOUNG                                                      APPELLEE

                                    ------------

           FROM THE 233RD DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

      This appeal stems from the trial court’s granting of Appellee Alan D.

Young’s counterpetition for divorce. In two points, Appellant Kimberly Young

contends that the trial court abused its discretion by assessing death penalty

sanctions for her discovery violations and by awarding Alan a disproportionate




      1
          … See Tex. R. App. P. 47.4.
share of the community assets.      Because the trial court did not abuse its

discretion, we affirm the trial court’s judgment.

      Kimberly filed a petition for divorce on July 13, 2006, alleging no-fault

grounds and requesting a temporary restraining order enjoining Alan from,

among other things, excluding her from the use and enjoyment of her apartment

in Corpus Christi. Kimberly did not request possession of the Arlington home

that the couple had shared during the marriage. Alan filed a general denial on

July 20, 2006. In the agreed temporary orders also signed by a visiting judge

on July 20, 2006, Alan was awarded the exclusive and private use and

possession of “the residence located at 1201 Brookvalley, Arlington, Texas

76018,” the home the couple had shared during their marriage, and each party

was ordered to file with the clerk and deliver to opposing counsel by September

20, 2006 a sworn inventory and appraisement of all the separate and

community property owned by the parties. Additionally, Alan was awarded

possession of “copies of taxes” held by Kimberly.

      On March 9, 2007, Alan served a request for production and inspection

of documents on Kimberly. On March 23, 2007, on Kimberly’s motion, her

original attorney of record was removed and Richard Gladstone was substituted

as her attorney. More than five months later, Alan filed an amended answer,

seeking the confirmation of separate property, reimbursement to the community

                                       2
and to his separate estate, economic contribution to the community and to his

separate estate, and attorney’s fees.      On October 31, 2007, Alan filed a

counterpetition for divorce. Almost five months later, on March 25, 2008,

Richard Gladstone filed a motion to withdraw as Kimberly’s attorney,

contending that she and his office had “developed [a] lack of communication

resulting in failure to discuss the direction and management of the case.” The

final trial was set for April 30, 2008, at 1:30 p.m.

      On March 27, 2008, while the motion to withdraw was pending, Alan

filed a motion to compel and for sanctions. In the motion, Alan contended that

a request for production and inspection of documents had been served on

Kimberly on March 9, 2007, that she had responded on or about January 31,

2008, that her response did not raise any objections to the requests, and that

her response was “wholly inadequate” for a multitude of reasons, including her

failure to answer many of the requests; her failure to produce any tax returns,

a W-2 for 2007, and any check stubs for 2008; and her production of only one

check stub for 2007. Alan also contended in the motion that “[w]ell prior to

filing this [m]otion, counsel for Alan Dale Young advised counsel for Kimberly

Leann Young of these deficiencies and non-responsiveness, yet no effort has

been made by Kimberly Leann Young to comply with the Court’s order of July

20, 2006.”

                                       3
      In the motion, Alan also complained that Kimberly had not filed the

ordered inventory and appraisement despite several requests by Alan’s counsel

to her counsel. Alan contended that Kimberly’s failure to comply with the trial

court’s orders of July 20, 2006 severely prejudiced his ability to adequately

prepare for trial and sought sanctions including the striking of Kimberly’s

pleadings, an award of his attorney’s fees incurred in completing the divorce,

an order compelling Kimberly to respond to the requests for production and to

provide her sworn inventory and appraisement by a specific date, a continuance

of the trial to allow her time to complete the discovery and inventory, and

attorney’s fees for bringing the motion.   The hearing was set for April 11,

2008.   On April 2, the trial court signed the order allowing Kimberly’s trial

counsel to withdraw.

      Kimberly did not file a response to the motion to compel and for

sanctions. On April 11, the associate judge held the hearing on Alan’s motion

to compel and for sanctions; Kimberly, who had received proper notice of the

hearing, failed to appear. The associate judge ordered Kimberly to respond to

all discovery by April 18, 2008 and to deliver all documentation then requested

to Alan’s trial counsel by 5:00 p.m. on that date. The associate judge also

awarded Alan $1500 for attorney’s fees incurred in bringing the motion to

compel and ordered Kimberly to pay the amount by April 30, 2008 at 9:00 a.m.

                                      4
Finally, the associate judge warned in the order that the court could strike

Kimberly’s pleadings on April 21, 2008 at 9:00 a.m. if Kimberly failed to

respond to discovery as ordered.

      On April 21, 2008, after Kimberly had neither completed the discovery

nor filed her inventory and appraisement, the trial court signed a default

sanctions order. The court found that she failed to appear on April 21, 2008

and wholly made default. The sanctions order provides,

            The Court finds that Kimberly Leann Young has demonstrated
      a blatant disregard for the responsibilities of discovery under the
      Texas Rules of Civil Procedure by, among other things, failing to
      respond to discovery, failing to adequately respond to discovery,
      and failing to obey this Court’s Temporary Orders dated July 20,
      2006, by failing to prepare and failing to deliver to opposing
      counsel her sworn Inventory and Appraisement as ordered by this
      Court.

            The Court has considered the imposition of less stringent
      sanctions and finds that due to Kimberly Leann Young’s disregard
      for the Rules of discovery and the prejudice suffered by Alan Dale
      Young as a result of same, among other things, a lesser sanction
      would not satisfy the purpose of promoting compliance with the
      rules of discovery set forth in the Texas Rules of Civil Procedure.

The court struck Kimberly’s pleadings, barred her from denying any allegation

in Alan’s pleadings, barred her from introducing any evidence in support of her

pleadings, and ordered her to pay $1500 for attorney’s fees directly to Alan’s

trial counsel by April 30, 2008 at 9:00 a.m. Relevant to the sanctions, in

addition to findings mirroring those in the sanctions order, the visiting judge

                                      5
sitting for the trial court also found in its later findings of fact and conclusions

of law that Kimberly failed to respond to discovery and failed to provide any

answers or documents until January 31, 2008, some nine months overdue.

      Gladstone appeared with Kimberly at trial and cross-examined Alan’s

witnesses. In the decree, the visiting judge sitting for the trial court, among

other things, confirmed the residence at 1201 Brookvalley Drive, Arlington,

Texas as Alan’s separate property, ordered him to pay the note on it, and

ordered Kimberly to pay additional attorney’s fees of $14,000, which amounted

to about half of the attorney’s fees Alan incurred in the case, exclusive of those

incurred in bringing the motion to compel and for sanctions.

      In her first point, Kimberly contends that the trial court abused its

discretion in assessing death penalty sanctions for her discovery violations. The

Supreme Court of Texas has provided the test:

            A trial court’s ruling on a motion for sanctions is reviewed
      under an abuse of discretion standard. The test for an abuse of
      discretion is not whether, in the opinion of the reviewing court, the
      facts present an appropriate case for the trial court’s action, but
      “whether the court acted without reference to any guiding rules
      and principles.” The trial court’s ruling should be reversed only if
      it was arbitrary or unreasonable.

            Texas Rule of Civil Procedure 215.2 allows a trial court to
      sanction a party for failure to comply with a discovery order or
      request. Rule 215.2(b) lists the sanctions a court may impose.
      They include: (1) an order disallowing any further discovery of any
      kind; (2) an order charging all or a portion of the expenses of

                                         6
discovery against the disobedient party; (3) an order that the
matters regarding which the order was made or any other
designated facts shall be taken to be established; (4) an order
refusing to allow the disobedient party to support or oppose
designated claims or defenses, or prohibiting designated evidence
from being introduced into evidence; (5) an order striking out
pleadings or parts thereof, staying the action until the order is
obeyed, dismissing the action with or without prejudice, or
rendering judgment by default; (6) a contempt order; and (7) an
order requiring the disobedient party to pay reasonable expenses,
including attorney fees, caused by the failure.

      Sanctions are used to assure compliance with discovery and
deter those who might be tempted to abuse discovery in the
absence of a deterrent. However, a trial court may not impose a
sanction that is more severe than necessary to satisfy its legitimate
purpose. . . .

       In TransAmerican, . . . [w]e held that Rule 215 requires that
any sanctions imposed be “just,” and explained that there are two
components to measuring whether an imposition of sanctions is
just. First, a direct relationship must exist between the offensive
conduct and the sanction imposed. We noted that “[t]his means
that a just sanction must be directed against the abuse and toward
remedying the prejudice caused the innocent party.” Second, the
sanctions must not be excessive.           In other words, “[t]he
punishment should fit the crime ... courts must consider the
availability of less stringent sanctions and whether such lesser
sanctions would fully promote compliance.”

      ....

      In GTE, we required the record to “reflect that the court
considered the availability of lesser sanctions.” Nothing in the
standard articulated in GTE requires that a trial court test the
effectiveness of lesser sanctions by actually implementing and
ordering each and every sanction that could possibly be imposed
before striking the pleadings of a disobedient party. Nor does GTE
require a trial court to list each possible lesser sanction in its order

                                   7
      and then explain why each would be ineffective. GTE requires that
      the record reflect that the court “consider” the availability of
      appropriate lesser sanctions, and cautions that in all but the most
      exceptional cases, the trial court must actually test the lesser
      sanctions before striking the pleadings. Again, we reemphasize
      that striking pleadings is a harsh sanction that must be used as a
      last resort after the trial court has considered lesser sanctions, and
      that in all but the most egregious and exceptional cases, the trial
      court must test lesser sanctions before resorting to death penalty
      sanctions. 2

The supreme court further held that “Rule 215.3, which authorizes a trial court

to impose sanctions, does require ‘notice and hearing’ before sanctions are

imposed. However, nothing in the rule indicates that this must be an ‘oral

hearing.’” 3

      Kimberly contends that the April 11, 2007 order signed by the associate

judge did not have the specificity to justify death penalty sanctions because it

did not specifically state which documents were omitted from her prior

responses, did not define the meaning of “all documents then requested,” did

not specify whether the inventory and appraisement was included in the

sanctions order, and did not specifically state that April 21, 2008 was

designated as a hearing or court appearance. She also complains that she was

not specifically notified to appear on April 21, 2008, although she states that


      2
        … Cire v. Cummings, 134 S.W.3d 835, 838–39, 842 (Tex. 2004)
(citations omitted).
      3
          … Id. at 843–44 (citations omitted).

                                         8
she received the order dated April 11 on April 18, three days before the order

containing the death penalty sanctions was signed.

      Kimberly does not contend that she had any trouble understanding the

July 20, 2006 temporary orders requiring the filing of her inventory and

appraisement by September 20, 2006, Alan’s discovery requests served on

March 9, 2007, or Alan’s motion to compel and for sanctions.

      Based on our review of the record, we cannot say that the trial court

abused its discretion by imposing the harsh sanctions of striking Kimberly’s

pleadings and barring her from putting on evidence when the record shows that

she failed to obey the trial court’s order to file an inventory and appraisement,

failed to communicate with her trial counsel, failed to object to Alan’s discovery

requests, failed to respond to his motion to compel and for sanctions or to

attend the April 11 hearing, failed to seek out the results of said hearing, and

failed to complete the discovery or appear in court on April 21, 2008 at 9:00

a.m. after having seen the April 11 order compelling her to complete discovery,

ordering her to pay $1500 in attorney’s fees to Alan related to the motion to

compel and for sanctions, and warning that her pleadings could be struck on

April 21, 2008 at 9:00 a.m. if she did not complete the discovery. We further

note that Kimberly did not pay the $1500 as ordered. We overrule Kimberly’s

first point.

                                        9
      In her second point, Kimberly contends that the trial court abused its

discretion by awarding Alan a disproportionate share of the community’s

assets, focusing on the characterization and award of the residence in

Arlington, Texas.

      “Property possessed by either spouse during or on dissolution of marriage

is presumed to be community property.” 4 This presumption can be rebutted by

clear and convincing evidence. 5 Clear and convincing evidence is defined as

that “measure or degree of proof that will produce in the mind of the trier of

fact a firm belief or conviction as to the truth of the allegations sought to be

established.” 6

      A trial court is charged with dividing the community estate in a “just and

right” manner, considering the rights of both parties.7 If there is any reasonable

basis for doing so, we must presume that the trial court exercised its discretion

properly.8     We will not disturb the trial court’s division unless the record



      4
          … Tex. Fam. Code Ann. § 3.003(a) (Vernon 2006).
      5
          … Id. § 3.003(b).
      6
      … Id. § 101.007 (Vernon 2008); Transp. Ins. Co. v. Moriel, 879 S.W.2d
10, 31 (Tex. 1994).
      7
     … Tex. Fam. Code Ann. § 7.001 (Vernon 2006); Todd v. Todd, 173
S.W.3d 126, 128–29 (Tex. App.—Fort Worth 2005, pet. denied).
      8
          … Todd, 173 S.W.3d at 129.

                                       10
demonstrates “that the division was clearly the result of an abuse of

discretion.” 9 That is, we will not reverse the case unless the record clearly

shows that the trial court acted arbitrarily or unreasonably.10 The complaining

party has the burden of proving from the record that the division was so unjust

that the trial court abused its discretion.11

      At trial, Alan testified that he purchased the Arlington property before he

and Kimberly married and that he refinanced the house during the marriage to

pay off debt that he and Kimberly had incurred. The trial court admitted a

certified copy of the deed naming Alan, “a single person,” the grantee. On

cross-examination, Alan admitted that the property was titled in Kimberly

Young’s name pursuant to the Tarrant County Deed records and tax records but

stated that he had “no clue how the title got in her name,” that he did not

execute a deed to her, that he “never transferred it over to anybody,” and that

he received tax statements on the property. Given all the evidence, we cannot

say that the trial court improperly characterized the Arlington residence as

separate property, nor can we conclude that the trial court’s division of the

community estate was unjust. We overrule Kimberly’s second point.


      9
          … Id.
      10
           … Id.
      11
           … Id.

                                        11
     Having overruled both of Kimberly’s points, we affirm the trial court’s

judgment.




                                              PER CURIAM

PANEL: DAUPHINOT, LIVINGSTON, and GARDNER, JJ.

DELIVERED: May 28, 2009




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