Robert Gerald Sherwood, Sr., Appellant v. Janet Lynne Sherwood, Appellee

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Court of Appeals of Texas, Beaumont.

Robert Gerald Sherwood, Sr., Appellant v. Janet Lynne Sherwood, Appellee

NO. 09–15–00133–CV

Decided: February 25, 2016

Before McKeithen, C.J., Kreger and Horton, JJ.


Janet Lynne Sherwood (“Janet”) filed a petition for divorce from Robert Gerald Sherwood, Sr. (“Sherwood”).  Sherwood filed a counter-petition for divorce.  In 2013, the trial court entered a decree of divorce, but this Court reversed the trial court's property division.  See Sherwood v. Sherwood, No. 09–13–00453–CV, 2014 WL 4105068, at *2–3, 7 (Tex.App.—Beaumont Aug. 21, 2014, no pet.) (mem.op.).  On remand, in February 2015, the trial court held a final hearing, divided the parties' property, and entered a permanent injunction against Sherwood.  On appeal, Sherwood, acting pro se, argues that:  (1) the trial court failed to rule on various motions;  (2) his trial counsel failed to present an effective defense;  (3) the trial court improperly suppressed documents;  (4) Janet's trial counsel acted deceitfully throughout the proceedings;  and (5) the trial court deprived him of his separate property.  We affirm the trial court's judgment, as modified.

On appeal, Sherwood complains that the trial court failed to rule on numerous pro se pleadings in which Sherwood requested a jury trial and complained that Janet's trial attorney engaged in deceitful conduct.  These motions were all filed subsequent to the trial court's final order of Division of Property and Debts and Permanent Injunction.  As a prerequisite to presenting his complaints regarding the trial court's failure to rule on a motion, Sherwood must show that the motion was brought to the trial court's attention, the trial court denied the motion or refused to rule on the motion, and Sherwood objected to that refusal.  See Bryant v. Jeter, 341 S.W.3d 447, 450–51 (Tex.App.—Dallas 2011, no pet.).  The record does not indicate that the trial court either denied Sherwood's motions or refused to rule on them.  For this reason, Sherwood's complaint regarding the trial court's failure to rule on certain motions is not preserved for appellate review and is overruled.  See id.;  see also Tex.R.App. P. 33.1(a).

Sherwood also complains that trial counsel rendered ineffective assistance and received attorney's fees for providing ineffective assistance.  “[T]he doctrine of ineffective assistance of counsel does not extend to most civil cases, including divorce cases.”  Blair v. McClinton, No. 01–11–00701–CV, 2013 WL 3354649, at *2 (Tex.App.—Houston [1st Dist.] July 2, 2013, pet. denied) (mem.op.);  see Chrisman v. Chrisman, 296 S.W.3d 706, 707 (Tex.App.—El Paso 2009, no pet.).  Because this is a civil divorce case, the doctrine of ineffective assistance is inapplicable.  See Blair, 2013 WL 3354649, at *2–3;  see also Chrisman, 296 S.W.3d at 707.  We overrule this issue.

Next, Sherwood argues that the trial court erred by suppressing evidence of Sherwood's separate property.  The record before us does not contain any orders or other rulings indicating that the trial court suppressed evidence.  Rather, the record shows that Sherwood failed to appear at the final hearing.  Without a record demonstrating the challenged ruling, we cannot determine whether the trial court abused its discretion.  See Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex.1990) (“The burden is on the appellant to see that a sufficient record is presented to show error requiring reversal.”);  see also Huston v. United Parcel Serv., Inc., 434 S.W.3d 630, 636 (Tex.App.—Houston [1st Dist.] 2014, pet. denied) (“The appellant's failure to obtain a reporter's record containing a challenged ruling makes it impossible for the appellate court to determine that the trial court abused its discretion in making the ruling.”).  We overrule this issue.

Sherwood also asserts that Janet's trial attorney engaged in numerous acts of deceitful conduct and colluded with the trial court in an attempt to damage Sherwood and prevail in the case.  As previously discussed, Sherwood failed to obtain rulings on his motions alleging improper conduct by Janet's counsel.  Absent evidence in the record showing that the trial court ruled on Sherwood's complaints, nothing is preserved for our review.  See Wal–Mart Stores, Inc. v. McKenzie, 997 S.W.2d 278, 280 (Tex.1999) (“To preserve a complaint for appellate review, a party must present to the trial court a timely request, motion, or objection, state the specific grounds therefore, and obtain a ruling.”);  see also Tex.R.App. P. 33.1(a).  We overrule this issue.

Finally, we address Sherwood's complaint regarding the deprivation of his separate property.  The final order of Division of Property and Debts and Permanent Injunction includes a broad form permanent injunction, which permanently prohibits Sherwood from, among other things:

11. Selling, transferring, assigning, mortgaging, encumbering, or in any other manner alienating any of the property of Petitioner or Respondent, whether personalty or realty, and whether separate or community, except as specifically authorized by this order.

12. Incurring any indebtedness, other than legal expenses in connection with this suit, except as specifically authorized by this order.

13. Making withdrawals from any checking or savings account in any financial institution for any purpose, except as specifically authorized by this order.

14. Spending any sum of cash in the party's possession or subject to the party's control for any purpose, except as specifically authorized by this order.

While a suit for dissolution of a marriage is pending, the trial court “may render an appropriate order, including the granting of a temporary injunction for the preservation of the property and protection of the parties as deemed necessary and equitable[.]”  Tex. Fam.Code Ann. § 6.502(a) (West 2006).  A temporary order typically expires with the entry of a final judgment.  See Coke v. Coke, 802 S.W.2d 270, 273 (Tex.App.—Dallas 1990, writ denied).  Also, while an appeal is pending, a trial court may enter temporary orders independently of the final decree for the preservation of the property and for the protection of the parties.  See Tex. Fam.Code Ann. § 6.709. Although the Family Code does not speak to permanent injunctions, many Texas cases have addressed final orders in the context of family law matters or divorce decrees that incorporate permanent injunctions.  Peck v. Peck, 172 S.W.3d 26, 35 (Tex.App.—Dallas 2005, pet denied).  Such permanent injunctions are usually consistent with the best interest of the children or the protection of the parties.  See id. at 36.  However, an injunction “must not be drafted so broadly as to prohibit the enjoyment of lawful rights, or to operate perpetually against acts that in the future may become lawful.”  Ex Parte Jackman, 663 S.W.2d 520, 523 (Tex.App.—Dallas 1983, no writ).  In this case, while paragraphs 11–14 of the portions of the judgment that allow permanent injunctive relief may have been necessary for the protection of the property during the pendency of the divorce action, such language is overly broad and acts to prohibit lawful rights of Sherwood to the property awarded to him as his sole and separate property and as such, amounts to an abuse of discretion on the part of the trial court.  See id.  Therefore, we modify the Division of Property and Debt and Permanent Injunction dated February 4, 2015, to strike the language of paragraphs 11–14 of the Permanent Injunction.  We affirm the trial court's judgment, as modified.  See Tex.R.App. P. 43.2(b);  see also T–N–T Motorsports, Inc. v. Hennessey Motorsports, Inc., 965 S.W.2d 18, 25 (Tex.App.—Houston [1st Dist.] 1998, pet. dism'd) (An appellate court “may modify an overbroad injunction.”);  Ghidoni v. Stone Oak, Inc., 966 S.W.2d 573, 583 (Tex.App.—San Antonio 1998, pet. denied) (Modifying overly broad permanent injunction).



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