                                   NO. 12-18-00345-CV

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

 IN THE MATTER OF THE                              §      APPEAL FROM THE 294TH

 MARRIAGE OF RANDALL LEE
                                                   §      JUDICIAL DISTRICT COURT
 HUTCHERSON AND PENNI RHNEA
                                                   §      VAN ZANDT COUNTY, TEXAS
 HUTCHERSON

                                  MEMORANDUM OPINION
       Randall Lee Hutcherson appeals from a final decree of divorce in which the trial court
granted Appellee Penni Rhnea Hutcherson’s petition for divorce and divided the parties’ marital
estate. In two issues, Appellant asserts the final decree did not comport with the trial court’s oral
pronouncement or Appellee’s pleading, and the trial court abused its discretion in denying
Appellant’s motion for new trial. We affirm in part and reverse in part.


                                          BACKGROUND
       Appellee filed a petition for divorce and requested the court divide the parties’ property.
Appellant appeared pro se at the hearing, by telephone due to his incarceration. The parties were
the only testifying witnesses. The trial court granted the divorce, divided the property based on
their testimony, and signed the decree the same day. Appellant timely filed a motion for new trial
contesting only the awards of two items. The trial court denied the motion, and this appeal ensued.


                                               SASSY
       In his second issue, Appellant asserts that the trial court erred in denying his motion for
new trial regarding the question of ownership of the Pomeranian/Yorkie mix dog named Sassy.
He contends that Appellee presented false testimony with respect to her ownership of the dog, and
his evidence shows that the dog was neither personal property nor community property of the
parties.
Standard of Review
           New trials may be granted and judgment set aside for good cause. TEX. R. CIV. P. 320.
Denial of a motion for new trial is reviewed for an abuse of discretion. Waffle House, Inc. v.
Williams, 313 S.W.3d 796, 813 (Tex. 2010). The test for abuse of discretion in ruling on a motion
for new trial is whether the trial court acted without reference to any guiding rules or principles or
whether the trial court’s actions were arbitrary or unreasonable under the circumstances of the
case. Ward v. Hawkins, 418 S.W.3d 815, 824 (Tex. App.−Dallas 2013, no pet.). A trial court
abuses its discretion if it clearly fails to correctly analyze or apply the law. In re Ford Motor Co.,
442 S.W.3d 265, 269 (Tex. 2014) (orig. proceeding). In determining whether the trial court abused
its discretion, the reviewing court will consider the whole record on appeal. See In re Estate of
Miller, 243 S.W.3d 831, 839 (Tex. App.−Dallas 2008, no pet.).
Applicable Law
           In a divorce proceeding, the trial court is charged with dividing the community estate in a
just and right manner considering the rights of both parties. TEX. FAM. CODE ANN. § 7.001(West
2006); Neyland v. Raymond, 324 S.W.3d 646, 651 (Tex. App.−Fort Worth 2010, no pet.). Assets
belonging to a third party are not part of the marital estate and therefore not subject to division by
the trial court. Collins v. Collins, 345 S.W.3d 644, 650-51 (Tex. App.−Dallas 2011, no pet.).
Mischaracterization of a third party’s property as a part of the community estate is error affecting
the trial court’s “just and right” division. Sheshtawy v. Sheshtawy, 150 S.W.3d 772, 780 (Tex.
App.−San Antonio 2004, pet. denied).
           “Fraud practiced on the court is always ground for vacating the judgment, as where the
court is deceived or misled as to material circumstances.” Pinkston v. Pinkston, 266 S.W.2d 515,
519 (Tex. Civ. App.−Waco 1954, writ ref’d n.r.e.). Specifically, the “willful giving of false
testimony by a party,” affecting an issue to be tried, is fraud entitling the injured party to have the
cause reexamined. McMurry v. McMurry, 4 S.W. 357, 359 (Tex. 1887). Thus, courts may grant
equitable relief when a judgment has been obtained by fraud, mistake, or accident, and without
any want of diligence on the part of the aggrieved party. Id. “The rule which denies to a party the
right to relitigate a matter once in controversy” should not be applied where “one party has, by his
own false evidence, knowingly given, . . . obtained a judgment or decree against his adversary



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which gives to him something which truth and justice would deny.” Id. at 360. Intrinsic fraud,
including perjured testimony, should be corrected by motion for new trial. Travenol Labs., Inc.
v. Bandy Labs., Inc., 630 S.W.2d 484, 486 (Tex. App.−Waco 1982, writ ref’d n.r.e.). Thus, a new
trial may be granted on the ground that a witness willfully testified falsely to a material fact.
Traylor v. Pickering, 324 F.2d 655, 658 (5th Cir. 1963). Where a party is surprised by the other
party’s testimony, as in a case of perjury, the party may ask for a continuance to prepare rebuttal
testimony. Id.
Analysis
        In his motion for new trial, Appellant contested the final decree of divorce “because the
division and award [of] personal and community property of the parties was premised upon the
false testimony of the Petitioner.” He claimed that the item of property described by Appellee as
a cabin or portable building is actually a permanent structure. He asked that the divorce decree be
amended to delete the award of the building to Appellee. He also attacked the award of a
Pomeranian/Yorkie mix dog named Sassy to Appellee. Among the evidence attached to the
motion is a handwritten document entitled “Title To Sassy” and signed by Appellee. In pertinent
part it states:


                  I, Penni Hutcherson hereby give ownership of my dog, Sassy to Royse [sic] and
                  Cherell Ann Hutcherson this day of November 23, 2017 – Thanksgiving Day
                  2017, by my own choosing. . . . I promise this day forward y’all are Sassy’s new
                  owner’s. [sic] I can’t claim ownership anymore.


        Appellant also included as an exhibit a copy of an email from Appellee to Appellant’s
mother, Cherell Hutcherson, in which Appellee indicated that she had given Royce Hutcherson the
dog. The exhibits are supported by Appellant’s unsworn declaration that the exhibits are true and
correct copies.
        Appellee filed a response denying that she gave false testimony and explaining that the
building is built on piers and is small enough to move. She also explained that the letter of
ownership transfer of the dog was based upon a “peace agreement” with Appellant’s family but
they did not keep their word, thereby voiding her “gift/offering agreement.” She provided no
evidence in support of her response.




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       In its order denying the motion, the trial court recited the events at the trial and identified
two of the contested items as a dog named Sassy and a portable building. The court explained the
rationale behind the denial as follows:


               During the trial, Respondent testified that he had documentation regarding the
               ownership of Sassy which he did not currently have. Because Respondent was
               incarcerated, the Court stated she would allow Respondent to file the
               documentation at a later time, but would not grant the divorce until such time.
               Respondent declined and stated he wanted the divorce to be completed that day
               and did not wish to submit any additional information.

               Respondent now complains that the “portable building” is not portable and that
               the dog, Sassy, belonged to his parents, Royce and Cherell Hutcherson. The Court
               finds Respondent fully participated in the final trial and the Court gave him
               additional time to submit evidence which he declined.



       In our review of the record, we were unable to locate the referenced statement by Appellant
that “he had documentation regarding the ownership of Sassy which he did not currently have.”
He testified, at least seven times, that the dog belongs to his parents, Royce and Cherell
Hutcherson. He explained that Sassy previously belonged to his brother who committed suicide,
but his parents have taken care of her for four years.
       After hearing from both sides, the court announced that, as to certain items including the
dog, each side would have thirty days “to submit any documentation as to whether or not those
items were community property or if they were separate property.” Then the following exchange
took place:


                        The Court: All right, Mr. Hutcherson?
                        Mr. Hutcherson: Does that mean that we’re not divorced today?
                        The Court: That’s correct.
                        Mr. Hutcherson: Okay.
                        The Court: Okay. Or I can find that you didn’t fail to – prove that those
               items are separate property, which is your burden of proof today. And I can just
               divide them all up myself. Do you want me to do that?
                        Mr. Hutcherson: Well, I was going to ask Penni if she would like to
               leave things just the way that they are and we make a clean break today and she
               go on about her business –
                        The Court: She’s saying no.
                        Mrs. Hutcherson: That’s fine if we – I mean, what’s he calling a clean
               break? I take the dog? My dog?
                        Counsel for Mrs. Hutcherson: I think what the judge is saying is do you
               want her [sic] to let her make that decision today?
                        Mrs. Hutcherson: You know what? I – Yes. Yes.




                                                       4
                          The Court: Okay. Ms. Hutcherson just wants me to make the decision
                about whether or not the dog, the log splitter, the wood-burning stove, the enamel
                table, the roll-top table, the stereo, and the wardrobe are community property
                subject to division or whether or not they’re gifts and separate property.
                          Is that what you want me to do?
                          Mr. Hutcherson: Well, I’m in agreement with that other than the animal.
                That – that belongs to my parents.
                          The Court: And you have no proof of that today, do you, other than your
                word? You say it’s yours and she says it’s hers.
                          Mr. Hutcherson: Okay.
                          The Court: And that’s all I’ve got today.
                          Mr. Hutcherson: Okay.
                          The Court: What’s the dog worth?
                          Mr. Hutcherson: Well, it’s worth everything to my parents.
                          The Court: Tell me what the dog is worth.
                          Mr. Hutcherson: I don’t know. It’s a mixture. It don’t have no papers
                on it, no pedigree, or anything like that.
                          The Court: Okay. Maybe $50. What’s the log splitter worth?



        The court went on to demand each party name a value for each item of property. When
Appellant said he was not sure, the court suggested $50. When Appellant suggested a value range
for an item, the court assigned a value in the middle of the range. Besides asking Appellee if she
really thought someone would give more than $50 for the dog, the court seemed to accept
Appellee’s testimony on value. Immediately following the valuation testimony, the court said,
“As to the dog Sassy, the Court’s going to award that to Mrs. Hutcherson.” Appellant then told
the court that Sassy does not belong to Appellee. The court responded, “And, Mr. Hutcherson –
Mr. Hutcherson, we’re done. We’re done talking. I’m ruling, okay.” Appellant responded,
explaining that Appellee took another animal off the property and it is already dead. He stated that
the dog never belonged to Appellee. The court tried to cut him off but he continued, saying, “I
can’t believe that you would award her something that belonged to my dead brother; that belongs
to my parents. She’s never taken care of that dog.” The court responded, “Mr. Hutcherson, if you
cannot be quiet I’m going to hang up.” The court then continued to award the named items of
personal property. There was no mention of documentation.
        We acknowledge that an argument can be made that, if the evidence in support of the
motion for new trial was available to the moving party at the time of the trial, but that party made
a decision not to use it, the motion should be overruled. See Pileggi v. Pileggi, 471 S.W.2d 586,
588 (Tex. Civ. App.−San Antonio 1971, no writ). We conclude that rationale is inapplicable under
the facts of this case.




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       Appellant told the court that he did not agree to disposing of the issue of the dog’s
ownership that day. The trial court ignored his statement and addressed the issue anyway. When
the court announced it was awarding Sassy to Appellee, Appellant immediately reiterated that
Sassy does not belong to Appellee. The court threatened to end the hearing because of his verbal
response to the award. The court’s stated reason for denying the motion for new trial, that
Appellant chose not to present further evidence at trial, is contrary to actual events shown by the
record. Notably, the record shows that, after offering to give Appellant time to produce evidence,
an offer he accepted, the court refused to allow him to do so.
       The only evidence introduced at trial that could support awarding Sassy to Appellee is
Appellee’s testimony that the dog belonged to her. Thus, the trial court could only have reached
its decision to award Sassy to Appellee by relying on her testimony.
       The agreement presented with the motion for new trial shows that the award is based on
false testimony, and the trial court was deceived as to a material issue. See Pinkston, 266 S.W.2d
at 519; see also Dixie Gas & Fuel Co. v. Jacobs, 47 S.W.2d 457, 462 (Tex. Civ. App.−Beaumont
1932, writ dism’d w.o.j.) (held that, where affidavits presented with motion for new trial showed
judgment was based on perjury, trial court erred in denying motion for new trial). We conclude
that the evidence presented by Appellant conclusively establishes a factual basis mandating the
granting of a new trial. See Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 372-73 (Tex.
2000). The trial court’s ruling was unreasonable under the circumstances, and therefore, an abuse
of discretion. See Ward, 418 S.W.3d at 824.
       Pet dogs are property in the eyes of the law and a special form of personal property. Lira
v. Greater Houston German Shepherd Dog Rescue, Inc., 488 S.W.3d 300, 304 (Tex. 2016) (per
curiam). A forfeiture of rights of property is not favored by the courts, and laws will be construed
to prevent rather than to cause such forfeiture. Id. Sassy is not a fungible, inanimate object. Id.
The evidence presented with the motion for new trial shows that Sassy is neither community
property nor the separate property of the parties. The trial court has no authority to award Sassy
to either Appellee or Appellant. See Collins, 345 S.W.3d at 651. When a trial court includes a
valuable asset belonging to a third party in its division, the mischaracterization of the third party’s
property affects the trial court’s “just and right” division. See Sheshtawy, 150 S.W.3d at 780.




                                                  6
         The trial court abused its discretion by denying Appellant’s motion for new trial. We
sustain Appellant’s second issue. It is unnecessary for us to reach Appellant’s first issue. See TEX.
R. APP. P. 47.1.


                                                  DISPOSITION
         Appellant did not complain, in his motion for new trial or on appeal, of the portion of the
divorce decree ordering that he and Appellee are divorced and the marriage between them is
dissolved. Therefore, we affirm the portion of the decree granting the parties’ divorce. See
Collins, 345 S.W.3d at 651-52.
         We reverse that portion of the trial court’s decree dividing the parties’ community estate
and remand the cause to the trial court for further proceedings.

                                                                JAMES T. WORTHEN
                                                                   Chief Justice



Opinion delivered September 27, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                   (PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                        SEPTEMBER 27, 2019


                                         NO. 12-18-00345-CV


                  IN THE MATTER OF THE MARRIAGE OF
         RANDALL LEE HUTCHERSON AND PENNI RHNEA HUTCHERSON



                                Appeal from the 294th District Court
                      of Van Zandt County, Texas (Tr.Ct.No. FM18-00198)

                      THIS CAUSE came to be heard on the appellate record and brief filed herein,
and the same being considered, it is the opinion of this court that there was error in the final decree
of divorce of the court below. In accordance with this court’s opinion of this date, the decree of
the trial court is reversed and remanded in part and affirmed in part.
                      It is therefore ORDERED, ADJUDGED and DECREED that the portion of the
divorce decree granting the parties’ divorce is affirmed.
                      It is therefore ORDERED, ADJUDGED and DECREED that the portion of the
divorce decree dividing the parties’ community estate is reversed and the cause is remanded to
the trial court for further proceedings in accordance with this court’s opinion.
                      It is further ORDERED, ADJUDGED, and DECREED that all costs of this
appeal are hereby adjudged against the Appellee, PENNI RHNEA HUTCHERSON, for which
execution may issue, and that this decision be certified to the court below for observance.
                      James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
