Affirmed and Memorandum Opinion filed July 9, 2019.




                                         In The

                      Fourteenth Court of Appeals

                                 NO. 14-19-00016-CV

                           SANTIAGO CRUZ, Appellant

                                            V.
                    DANIELLE JANNETTE CRUZ, Appellee

                     On Appeal from the 312th District Court
                             Harris County, Texas
                       Trial Court Cause No. 2017-77407

                            MEMORANDUM OPINION

      Santiago Cruz appeals from a final divorce decree, dissolving his marriage to
Danielle Jannette Cruz. In three issues, Santiago challenges the provisions in the
divorce decree that divide the marital estate. We affirm.

                                     BACKGROUND

      Danielle filed an original petition for divorce and Santiago filed a counter-
petition for divorce. After a bench trial, the trial court signed a final decree of divorce
in which it awarded the following to Danielle as her separate property:

          All household furniture, furnishings, fixtures, goods, art objects,
           collectibles, appliances, and equipment in Danielle’s possession
           or subject to her sole control.
          The funds on deposit in several bank accounts named in the
           decree.
          All sums, whether matured or unmatured, accrued or unaccrued,
           vested or otherwise, together with all increases thereof, the
           proceeds therefrom, and any other rights related to any profit-
           sharing plan, retirement plan, Keogh plan, pension plan,
           employee stock option plan, 401(k) plan, employee savings plan,
           accrued unpaid bonuses, disability plan, or other benefits
           existing by reason of Danielle’s past, present, or future
           employment.
          The 2007 Isuzu 1-290 motor vehicle.
          The 2013 Hyundai Genesis motor vehicle.
          One hundred percent (100%) of the sole proprietorship known as
           Water Alternative Natural Gas, including but not limited to all
           furniture, fixtures, machinery, equipment, inventory, cash,
           receivables, accounts, goods, and supplies; all personal property
           used in connection with the operation of the business; and all
           rights and privileges, past, present, or future, arising out of or in
           connection with the operation of the business.
The trial court awarded the following property to Santiago:

          The following real property, including but not limited to any
           escrow funds, prepaid insurance, utility deposits, keys, house
           plans, home security access and code, garage door opener,
           warranties and service contracts, and title and closing
           documents: Lot 38 & 59 of Charles O. Ellstrom Tract, Jefferson
           County, 11480 Burr Lane, Winnie, TX 77665.
          All household furniture, furnishings, fixtures, goods, art objects,
           collectibles, appliances, and equipment in Santiago’s possession
           or subject to his sole control;
          The funds on deposit in several bank accounts named in the

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             decree.
           The 2009 Dodge 2500 motor vehicle.
           One hundred percent (100%) of the sole proprietorship known as
            Geotech, including but not limited to all furniture, fixtures,
            machinery, equipment, inventory, cash, receivables, accounts,
            goods, and supplies; all personal property used in connection
            with the operation of the business; and all rights and privileges,
            past, present, or future, arising out of or in connection with the
            operation of the business.
           The 2004 Honda CR 85 Motor Bike.
           The 2004 Honda CR 85 Motor Bike.
           The 2004 Honda CR 50 Motor Bike.
           The Polaris ATV.
           The 2012 AMT Utility Trailer.
           The Gooseneck Trailer.
           The 2012 John Deere 5065 E 2WD Tractor.
           The Boston Whaler Boat.
           The Commercial Chainsaw.
           The Commercial Welder.
           The 1989 John Deere 250B Track Loader.
           The Keystone RV Hideout
           The Ford F600 Diesel Truck motor vehicle,
           His tools and firearms.

The decree further apportioned the parties’ debts.

                                ISSUES AND ANALYSIS

      In three issues Santiago contends that (1) Danielle violated temporary orders;
(2) the trial court abused its discretion in determining that Danielle was “aware of
the underlying factual basis of his Federal-Question claims”; and (3) the trial court
abused its discretion in dividing the marital estate.
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         In Santiago’s first issue he does not raise any error allegedly committed by
the trial court and therefore presents no error for this court to review. See Canton–
Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 931–32 (Tex. App.—Houston [14th
Dist.] 2008, no pet.) (appellate brief must point out any error allegedly committed
by the trial court). We overrule Santiago’s first issue.

         In Santiago’s second issue he challenges the trial court’s determination that
Danielle was aware of his “Federal-Question” claims. The record before this court
contains no evidence of a federal question being raised in the trial court. Santiago’s
brief does not address how a determination that Danielle was aware of a federal
question affected his rights in the divorce decree. Santiago argues that, “[t]he
solution would be to remand the trial or settle out of court with [Danielle] or pay me
$6400 per month for the next 8 years for being married together for 25 years.”

         Even construing Santiago’s appellate brief liberally, we cannot conclude that
he adequately briefed any argument in support of this assertion. See San Saba
Energy, L.P. v. Crawford, 171 S.W.3d 323, 337 (Tex. App.—Houston [14th Dist.]
2005, no pet.). Therefore, we find briefing waiver. See id.; see also Deutsch v.
Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179, 198–99 (Tex. App.—Houston
[14th Dist.] 2002, no. pet.). But, even in the absence of briefing waiver, Santiago
could not prevail because the record does not reflect a federal question complaint in
the trial court that he asserts under his second issue. We overrule Santiago’s second
issue.

         In his third issue Santiago complains about the trial court’s division of the
marital estate. Because Santiago failed to bring forth a reporter’s record from the
bench trial, we cannot address his third issue.

         We review a trial court’s division of marital property for an abuse of
discretion. See Barras v. Barras, 396 S.W.3d 154, 164 (Tex. App.—Houston [14th
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Dist.] 2013, pet. denied). The trial court has broad discretion when dividing the
marital estate at divorce, and we must indulge every reasonable presumption in favor
of the trial court’s proper exercise of its discretion. Murff v. Murff, 615 S.W.2d 696,
698 (Tex. 1981). The party complaining of the division of the marital estate has the
burden of showing from the evidence in the record that the trial court’s division of
the marital estate was so unjust and unfair as to constitute an abuse of discretion. See
Mann v. Mann, 607 S.W.2d 243, 245 (Tex. 1980); Lynch v. Lynch, 540 S.W.3d 107,
130 (Tex. App.—Houston [1st Dist.] 2017, pet. denied).

      In this case, Santiago failed to make payment arrangements for the reporter’s
record and therefore failed to file a reporter’s record of the bench trial. Santiago filed
a Statement of Inability to Afford Payment of Court Costs in the trial court. See Tex.
R. Civ. P. 145. Santiago’s Statement of Inability noted that he received “Veterans
Disability” public benefits and had a monthly income of $3,000. Santiago listed
property valuing $2,500 and monthly expenses including rent, utilities, insurance,
and food and household supplies, totaling $6,123. In a portion of the Statement of
Inability that asked about debts or other facts explaining the affiant’s financial
situation, Santiago wrote, “District Court 312th Harris County didn’t follow the
violations against my wife and she stuck me with the bills and kept my money from
my business and [the trial court] signed off on it.”

      The court reporter filed a contest to Santiago’s Statement of Inability to Afford
Payment of Court Costs. See Tex. R. Civ. P. 145(f)(3). The trial court held a hearing
on the court reporter’s contest and issued an order finding that Santiago “has
adequate resources to pay appellate costs in this matter” and to pay for his housing
and expenses of daily living. See Tex. R. Civ. P. 145(f)(5). The court reporter filed
a record of the hearing on Santiago’s Statement of Inability.

      At the hearing Santiago testified that two years earlier he received $73,000

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from the Veterans Administration as disability pay due to post-traumatic stress
disorder experienced as a result of Santiago’s military service. The trial court noted
that the divorce decree apportioned several bank accounts and items of personal
property to Santiago in addition to real property. Santiago argued that he took on
additional debt after the divorce. The trial court explained to Santiago that he had
assets that could be sold to pay for the reporter’s record.

      A party who files a Statement of Inability may be required to prove the
inability to afford payment of costs at an evidentiary hearing, but the party may not
be required to pay court costs unless the trial court holds an evidentiary hearing, with
proper notice given to the declarant. See Tex. R. Civ. P. 145(f)(5). Absent a
challenge, a trial court order that the declarant can afford to pay court costs also
controls the costs on appeal unless the declarant files a motion in the appellate court
alleging a material change in circumstances. See Tex. R. App. P. 20.1(b)(3).

      Santiago did not challenge the trial court’s ruling on the court reporter’s
contest to his Statement of Inability. See Tex. R. Civ. P. 145(g). Therefore,
Santiago’s status in the trial court carries forward to this court. See Tex. R. App. P.
20.1(b). Even if Santiago filed a motion challenging the trial court’s ruling on his
Statement of Inability we have reviewed the record on the court reporter’s contest
and hold the trial court did not abuse its discretion in denying appellant’s request to
proceed without payment of costs. See Arevalo v. Millan, 983 S.W.2d 803, 804 (Tex.
App.—Houston [1st Dist.] 1998, no pet.) (we review a trial court’s order on
indigence using an abuse-of-discretion standard); see also Tex. R. Civ. P. 145(e) (In
deciding whether the declarant is unable to afford to pay court costs, the test is
whether the declarant proved either that he receives public assistance, is being
assisted pro bono by counsel, or is unable to afford the payment of court costs). After
reviewing the record, we hold that Santiago did not prove that he was unable to

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afford payment for the reporter’s record.

      In family law cases, legal and factual sufficiency challenges do not constitute
independent grounds for asserting error, however, they are relevant factors in
determining whether the trial court abused its discretion. In re S.A.H., 420 S.W.3d
911, 922 (Tex. App.—Houston [14th Dist.] 2014, no pet.). To determine whether a
trial court abused its discretion because the evidence is legally or factually
insufficient to support its decision, we consider whether the trial court (1) had
sufficient evidence upon which to exercise its discretion and (2) erred in its
application of that discretion. Cantu v. Cantu, 556 S.W.3d 420, 426 (Tex. App.—
Houston [14th Dist.] 2018, no pet.). We conduct the applicable sufficiency review
when considering the first prong of the test. Id. We then determine whether, based
on the evidence, the trial court made a reasonable decision. Id. If the division of
marital property lacks sufficient evidence in the record to support it, then the trial
court’s division is an abuse of discretion. See Bradshaw v. Bradshaw, 555 S.W.3d
539, 543 (Tex. 2018).

      A reporter’s record of the bench trial is required to properly assess Santiago’s
third issue. When, as in this case, there is neither a reporter’s record nor findings of
fact, we presume the trial court heard sufficient evidence to make all necessary
findings in support of the judgment. Holt Atherton Industries, Inc. v. Heine, 835
S.W.2d 80, 83 (Tex. 1992); Hebison v. Clear Creek Indep. School Dist., 217 S.W.3d
527, 536 (Tex. App.—Houston [14th Dist.] 2006, no pet.). Although a party may
challenge the legal sufficiency of the evidence supporting the trial court’s judgment,
a party cannot prevail without presenting a sufficient record on appeal. See Schafer
v. Conner, 813 S.W.2d 154, 155 (Tex. 1991) (per curiam); Hebison, 217 S.W.3d at
536. In conducting an appellate review, this court presumes that any missing record
contains sufficient evidence to support the trial court’s judgment dividing the marital

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estate. See Hebison, 217 S.W.3d at 536. Accordingly, because we cannot conduct
the first prong of the test to determine abuse of discretion, Santiago’s challenge to
the division of marital property fails. See Rogers v. Fort Bend Indep. Sch. Dist., No.
14-10-00968-CV, 2011 WL 2685742, at *2 (Tex. App.—Houston [14th Dist.] July
12, 2011, no pet.) (mem. op.). We overrule Santiago’s third issue.

      Having overruled each of Santiago’s issues, we affirm the trial court’s
judgment.



                                              PER CURIAM



Panel consists of Justices Wise, Jewell, and Hassan.




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