### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-08-00791- CV

Robert Holm es, Jr., A ppellan t

v. Tracy Nannett e Holm es, Appellee

F ROM TH E CO UNTY COURT AT LAW NO . 3 O F WI LLIAM SO N COUNTY , NO. 07- 1294 -F C3, H ONO RAB LE DONALD H IGGINB OTH AM, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant Robert Holmes, Jr., appea ls pro se the trial cour t’s final di vorce decr ee. Holmes (i) challeng es the portions of the decr ee reg arding control, possession, amount and terms of child support, division of the marital estate, and income tax depende ncy exemptions and (ii) complains of the trial court’s order that appellee Trac y Nanne tte Holmes’s attorney prepa re the decr ee and its failure to awa rd “bac k child-visits.” Be cause we find no err or in the divorce decr ee,

we a ffirm the tria l court’s judg ment.

F ACTUAL AND P ROCEDURAL BACK GR OUND Robert Holmes, J r., and Trac y Nanne tte McClain wer e marrie d in J anuar y 1991 by 1 proxy while Holmes was serving overse as in the milit ary . Four children wer e born of the marria g e.

We refe r to Tra cy

Nanne tte McClain Holmes as McClain. 1Holmes and McClain separ ated in Novemb er 2005 when Holmes left his wife and children and

moved to Geor g ia to live with his brother. The children visited Holmes in Geor g ia when they wer e y oung , but it appea

rs from the rec ord that the visits cea sed at some point. McClain filed for divorce in J une 2007. Holmes, who was serve d by substitut ed service , defa ulted, and the trial court enter ed

a divorce decree in September 2007. Holmes filed a motion for new trial, which the trial court g rante d in J anuar

y 2008. I n April 2008, Holmes filed a motion for g enetic te sting of the children, which esta

blished Holmes’s pater

nity as to the four

children.

The Mediated P artial Sett lem ent Agr eem ent

The trial c ourt ref

err ed the c ase to me diation in Aug ust 2008. Holmes participate d in the mediation by telephone, and on September 15, 2008, Holmes and McClain agre ed t o a Memorandum of

Partial Settlement. The settlement include d ag ree ments that:

• The pa

rties would divorce on g rounds of insupportability ,

• Holmes and McClain would be named joint manag ing c onserva tors,

• McClain would provide the c hildren’s he alth insurance throug h her e mploy ment,

• Holmes would pay $130 per month in child support, includ i n g reimbursement to McClain for one-ha lf the cost of the children’ s health insurance , with cre dit for social secur ity and VA be nefits the childre n rec eive throug h Holmes, and

• Holmes owed $650 in re troac tive child support.

Holmes and McClain expressly rese rved for t rial t he is sues of possession, division

o f d eb t s, and the deter

mination as to who would be authorized to decide psy cholog ical an d psy chiatric trea tment for, consent to le g al action for, manag e the estates of, act as ag ent for, obtain

2passports for, and be entitled to the service s and ear nings of the children. They also left unresolved the issues of who would desig nate the children’ s primary residenc e and make decisions conce rning their educ ation.

The Trial I n a brief hearin g, t h e court considered the parties’ mediated settlement ag ree ment and hear d the testimony of McClain. Holmes did not appea r except throug h his attorney

. McClain testified conce rning her rela tionship with Holmes and Holmes’s rela tionship with their children. She stated t h at s h e an d Holmes wer e marrie d in J anuar y 1991 and cea sed living toge ther in November 2005. She further stated that they have four children, that Holmes reque sted pater nity tests on all four children, and that the tests confirme d that Holmes is their fathe r. McClain testified that she has no problem with H olmes’s visitation with the children but wa s asking for a “stair step [amount] beca

use he’s been awa

y from the children for so long.” She added that the children have “a bit of a hesitancy as far as seeing him” and that she is “ conce rned about their saf ety , beca use of how he left t he family .” She also stated t hat s he has tried t o call, but Holmes “won’t talk to [her] as fa r as the kids a

re c oncer ned.” McClain also stated her c oncer ns about Holmes’s cir cumstance s and conduc t. She testified that Holmes now lives in Geor g ia, that she “[does not] know what he is [currently ] doing,” and that he has “a diag nosis of Post Trauma tic Stress Disorder .” She further testified that when the kids wer e y oung er, they visited him in Geor g ia, and that Holmes “would take off drinking , and a lot of par ty ing, a nd they would call bec ause of

differ ent things.”

3McClain also testified conce rning the issues not settled in mediation. She stated that

it was not prac tical or rea sonable to expect that she and Hol m es could ag ree on any of the decision-making issues left unresolved afte r the mediation. McClain testified that there wer e debts that wer e hers, debts that wer e Holmes’s, and debts that belonged t o them jointly

. She further testified that there wer e some debts that wer e listed in her name that she did not know any thing about until she started g etting calls and letters from collector s. Reg arding one of those debts, she stated:

I rec eived a suit fr om Ca

pital One for

a cre dit c ard that I had no knowledg e of. So, I took the information, and I went to t h e h ea d quarte rs of Capital One and said I rec eived a lawsuit. I don’t know what’s going on. I reque sted a signa ture—the orig inal signa ture from when the cr ed i t car d was taken out. I did g et some information from this cre dit car d, but it showed that it was not my signa ture, and they dropped the case . I had no idea about that cr edit car d.

I n cross-e x amination, Holmes’s attorney questioned McClain reg arding her mental health and the conduct o f h er s o n from a previous marria g e. McClain testified that she beca me depre ssed when her g randf ather died, and she took medication for it but had “dec ided to use exercise and other interventions” and no longe r takes it. She stated that her thera pist said she had “borde rline traits and border line persona lity ” but denied ever having any thoughts of suicide. She then rea d from her the rapist’s notes, which included a ref ere nce to “thoug hts of suicide” and stated, “ That wa s in ’05.” Reg arding her son from a previous marria g e, McClain testified that he had been convicted of “ter roristic threa t” ag ainst Hol m es an d “got in a lot of trouble in school,” but that he now has an apar tment and no long er lives with her

.

4The Trial Court’s Rulin g The trial co u rt approve d and confirme d the mediated settlement ag ree ment and incorpora ted its terms into the final decr ee. The decr ee awa rded McClain the exclusive rig ht, afte r consultation with Holmes, to make decisions as to the expressly rese rved issues. The trial court also 2 granted McClain the exclusive rig ht, afte r consultation with Holmes, to make decisions as t o t h e children’ s educa

tion, as well as the exclusive rig ht to desig nate the primary residenc e of the children without consulting Holmes.

The trial c ourt also orde red tha t:

• Holmes pay child support as ag ree d in the mediated settlement ag ree ment, including one-ha lf the cost of the children’ s health insurance , with cre dit for the social secur ity and VA be nefits, and $650 in re troac tive child support, 3

• As additional child support, Holmes purcha se a l i fe insurance policy naming McClain as bene ficiar

y for the be nefit of the c hildren,

• Holmes pay child support until the ear liest of sever al possible occur renc es, including until “any child rea ches the ag e of eig hteen y ear s or gra d u at es from high school, whicheve r occ urs later

. . . ,”

• The c hild support be withheld from Holmes’s e arning s,

• Holmes provide notice of any chang e of e mploy

ment, and

• The obliga tion of child support not terminate on the d ea th of either Holmes or McClain.

Reg arding the rig ht to obtain passports for the children, the trial court order ed McClain to 2 notify Holmes within five day s after the applica tion rather tha n to consult with him in advanc e. The order g rants a j u d gm en t i n fa vor of McClain for child support arr ear ag es in 3 that amount. 5The decr ee included a m o d i fi ed visitation schedule for pare nts living more than

100 miles from the children, including a “stair step” approa ch. Fo r t h e fi rst y ear , Holmes was g rante d supervised visitation in Wil liamson County , Texas, one wee kend ever y o t h er month and

o n e week in the summer and was require d to pay all associate d expenses. After the fi rs t y ea r, Holmes was g rante d visitation under the standard possession order , depending on the events and circ umstances during the first y ear . The trial court also order ed that Holmes and McClain wer e jointly liable for debts in both their names and individually liable for debts in their separ ate names, except that Holmes was order ed liable for the debts incurre d in McClain’s name of which she testified she had no knowledg e. The decr ee also awa rded McClain the exclusive rig ht to claim the children for purposes of the I nterna l Revenue Service ’s tax exemption. The final decr ee of divorce

was enter ed on Dec ember 1, 2008. Neither party reque sted finding s of fac t and conclusions of law, and the tria l court ente red none . This appea l followed.

ANALYSIS We revie w a t ri al co urt’s decisions reg arding division of the marital estate, child support, child custody , control, possession, and visitation under an ab u s e o f discretion standard. Murff v. Murff , 615 S.W .2d 696, 698-99 (Tex. 1981) (divis i o n of the marital estate) ; W or f o r d v. Stamper , 801 S.W .2d 108, 109 (Tex. 1990) (child support); Gillespie v. Gillespie , 644 S.W .2d 449, 451 (Tex. 1982) (child custody , control, possession, and visitation). “A trial court abuses its discretion when its ruling is arbitra ry , unrea sonable or w ithout refer ence to any g uiding rules or leg al principles.” K-Mart Corp. v. Honey cutt , 24 S.W .3d 357, 360 (Tex. 2000). Under an abuse of discretion standard, leg al and fac tual sufficie ncy challeng es to the ev i dence are not
6independe nt g rounds of err or but are rele vant fac tors in assessing whether the trial court abused its

discretion. Zeifman v. Miche ls , 212 S.W .3d 582, 587 (Tex. App

. — Au s t i n 2006, pet. denied) ; In re D.M. , 191 S.W .3d 381, 3 9 3 (T ex . Ap p.—Austin 2006, pet. denied)

. Be cause we apply an abuse of discretion standard to the se issues, the traditional sufficie ncy standards of revie w overla p the abuse of discretion standard, and appellate courts apply a hy brid analy sis. Zeifman , 212 S.W .3d at 587-88; see also Echols v. Olivare z , 85 S.W .3d 475, 477 (Tex. App.—Austin 2002, no pet.). Once it has been deter

mined that the abuse of discretion standard applies, an a p p e ll ate court eng ag es in a two-prong ed inquiry : (1) whether the tr i al co u rt had sufficie nt information on which to exercise its discretion, and (2) whether the trial court err ed in its application of discretion. Zeifman , 212 S.W .3d at 588. The traditional sufficie ncy revie w comes into play with reg ard to the first question; howeve r, the inquiry does not end there

. Id. ; Echols , 85 S.W .3d at 478. The appellate court then proce eds to deter mine whether , based on the evidenc e, the trial court made a rea sonable decision, that is, that the court’s decision was n ei t h er arbitra ry nor unrea sonable. Zeifman , 212 S.W .3d at 588; Echols , 85 S.W .3d at 478.

When a trial court doe s not issue findings of fac t a nd conclusions of law, we imply all finding s nece ssary to support the j udg ment. Sixth RMA Partners v. Sibl ey , 111 S.W .3d 46, 52 (Tex. 2003). When the appel l ate rec ord includes the repor ter’s rec ord, as in this case , the trial

co u rt ’s finding s, express or implied, are not conclusive and may be challeng ed on appea l for evidentiar

y sufficie ncy . Id. We revie w a tri al co u rt ’s finding s of fac t for leg al and fac tual sufficie ncy of the evidenc e by the same standards applied to a jury ver d i ct

. Ortiz v. Jones , 917 S.W .2d 770, 772 (Tex. 1996). We revie w a trial court’s conclusions of l aw de nov o an d will

7uphold the conclusions if the judgme nt can be sustained on any lega l t h eo ry supported by the

evidenc e. BMC Software Belg., N .V. v. Marchand , 83 S.W .3d 789, 794 (Tex. 2002). Alt houg h a trial court’s conclusions of law may not be challeng ed for fac tual sufficie n cy , we may revie w the leg al conc lusions drawn fr om the fac ts to determine whe ther the c onclusions are corr ect. Id.

I n revie wing the leg al sufficie ncy of the evidenc e, we view the evidenc e in the light most fa vorable to the judgme nt, c rediting favor able evidenc e if a rea sonable fac t f inder could, and disreg arding contra

ry evidenc e unless a r easona ble fa ct finder

could not. City of Keller v . W ilson , 168 S.W .3d 802, 807 (Tex. 2005). The test is “whe ther the evidenc e at trial would enable rea sonable and fair- minded people to rea ch the [j udg ment] under revie w.” Id. at 8 2 7

. I n revie wing fac tual sufficie ncy of th e ev i d en ce, we consider and weig h all of the evidenc e in the rec ord, and we may overturn a j udg ment only if it is so ag ainst the gre at weight and preponde ranc e o f t h e evidenc e as to be clea rly wrong and manife stly

unjust. Cain v. Bain , 709 S.W .2d 175, 176 (Tex. 1986). I n all suits reg arding conser vatorship and possession of and acc ess t o childre n , t he best interest of the children “shall alway s be the primary consideration of the court

. . . .” Tex. Fam. Code Ann. § 153.002 (West 2008). The supreme cour t s et o u t a nonexhaustive list of fac tors to consider in deter

mining a child’s best interest in Holley v. Adams , 544 S.W .2d 367 (Tex. 1976). Those fac tors include the desires of the child, the emotional and phy sical needs of and dang er to the child now and in the f

uture, the pa

renta l abilities of the individuals seeking custody , the prog rams available to assist these individuals to promote the best interest of the child, the stability of the home, the acts or omissions of the pare nt, which may indicate that the exis ting pare nt-child rela tionship is not a prope r one, a

nd any excuse for the acts or omissions of the par ent. Id. at 371-72.

8Allocation of Pare ntal Rights an d Duties I n his second throug h ninth issues, Holmes complains of the trial court’s decision to

awa rd McClain the exclusive rig ht, afte r consultation with Holmes, to make decisions on the issues left unresolved afte r mediation. Specifica lly , he urg es that the allocation of rig hts and duties was not equitable or in the best interest of the children and should be revised. He further contends that the rig hts and duties should be alloca ted equa lly to both parents. Holmes and McClain had attempted to resolve these issues in mediation and h ad been unable to do so. McClain testified that it was not prac tical or rea sonable to e x pect that they would be able to ag ree on these matters. She also testified that Holmes had left the family in 2005, moved to Geor g ia, and been awa y from the children for some time. She also stated that Holmes would not talk to her about the ch i l d ren. Holmes offe red no evidenc e on these iss ues. Moreove r, t he Tex as Family Code provides th at i f b o t h p are nts are appointed conservator s, the court “shall specify the rig hts and duti es of a parent t hat are to be ex erc ised: (1) by eac h pare nt independe ntly ; (2) by the joint ag ree ment of the pare nts; and (3) exclusively by one pare nt.” Tex. Fam. Code Ann. § 153.071 (West 2008); see also id. § 153.134 (West Supp. 2009).

We conclude that the evide n ce was sufficie nt to allow rea sonable and fair- minded p eo p l e t o re ach the decision rea ched by the trial court that McClain should be awa rded the decision-making rig hts in issue, see Cit y of K eller , 168 S.W .3d at 827, and we cannot sa y that the decision is so ag ainst the g rea t weig ht and preponde ranc e of the evidenc e as to be clea rly wrong and manifestly unjust. See Cain , 709 S.W .2d at 176. The evidenc e was there fore leg ally and fac tually sufficie nt to support the trial court’s order reg arding control, and the trial court’s order was neither

9arbitr ar y n o r unrea sonable. See Zeifman , 212 S.W .3d at 588; Echols , 85 S.W .3d at 478. We

overr ule Holmes’s sec ond throug h ninth issues.

P ossession I n his tenth issue, Holmes complains that the trial court’s order for modified standard possession, in particula

r the g eog raphic al limit ation and the require ment for supervision during the first y ear , is n ot in the best interest of the children. The family code provides that there is a 4 rebuttable presumption that the s tandar d possession provides reasonable minimum possession for a parent named joint manag ing conservator and is in the best interest of the ch i l d

. S ee T ex . Fam. Code Ann § 153.252 (W es t 2 008). I n addition, the family code sets out the factors t he court is to consider in order ing other than the standard possession. See id. § 153.256 (W es t 2008). Those fac tors include the ag e, developmenta l status, circ umstances, needs, and best interest of the child, the circ umstances of

the conse rvators, a

nd any other re levant fa ctors. Id. McClain testified that her children wer e six teen, fourtee n, twelve, and elev en . McClain also testified that she was not opposed to Holmes’s having visitation with the children but asked for a g radua l incre ase in the amount of visitation beca use he had been awa

y from the children for some time, a

nd the children had some hesitancy about see ing the ir fathe r. She further testified that she had conce rn s ab o u t t he children’ s safe ty beca use of how Holmes had left the family and beca use, when the children vi s i t ed when they wer e y oung er, they called with conce rns about his drinking and “pa

rty ing.” She stated that she ha d tried to talk to Holmes, but he would not di scuss

I n his eleve nth issue, Holmes urg es t h e s am e complaint as to possession in subsequent 4 y ear s. Howeve r we find no g eog raphic al limit ation or require ment for supervision in possession in subsequent y ear s in the decr ee. We ove rrule H olmes’s eleve nth issue. 10the children with her. On cross-e x amination, McClain testified that she had become depre ssed afte r

her g randf

ather’s d ea t h and that her thera pist’s notes ref

lected that she had enter

tained suicidal thoughts in 2005 but that she had dealt with her depre ssion throug h exercise and thera py . She further stated that her son from a previous marria g e, who had been throug h some difficulties, no longe r lives with her. On this rec ord, we conclude that the evidenc e was sufficie nt to allow rea sonable and fair- minded people to conclude that the modified standard possession order enter ed by the trial court

was in the children’ s best interests, see City of Keller , 168 S.W .3d at 827, and we cannot say that the order is so ag ainst the gre at weight an d p reponderanc e of the evidence as to be clearly wrong and manifestly unjust. See Cain , 709 S.W .2d at 176. The evidenc e was there fore leg ally and fac tually sufficie nt to support the trial court’s modified standard possession order , and we ca n n o t s ay that the trial court’s order was either arbitra ry or unrea sonable. See Zeifman , 212 S.W .3d at 588; Echols , 85 S.W .3d at 478. We overr ule Holmes’s tenth issue.

Am ount of

Child Sup port I n his twelfth, thirteenth, and sixteenth issues, Holmes complains of t he amount of child support the trial court order ed him to pay . The divorce decr ee o rd er ed Hol mes to pay the

amoun t o f child support set out in the m ediated settlement ag ree ment, including one-ha lf the cost of the children’ s health insurance and $650 in retroa ctive child support, to which Holmes expressly ag ree d. The mediated settlement ag ree ment is a bin d i n g contra ct. See Tex. Fam. Code Ann. § 153.0071 (West Supp. 2009). Holmes has not cited any evidenc e in the rec ord or any authority as

11to why he should not b e held to the provisions reg arding child support that he ag ree d to in the

settlement ag ree ment and has the ref ore w aived this issue. See Tex. R. App. P . 38.1(i). 5 Even if Holmes had adequately briefe d this issue, howeve r, we see no evidenc e in the

re cord and have found no authority showing that he shoul d not be obli g ated to fulfill the t erms o f the binding mediated settlement ag ree ment. Section 154.124 of the family code authorizes the trial court to ente r an or der in a ccor dance with the ag ree ment perta ining to child support if it finds that the ag ree men t is in the child’s best interest. See Tex. Fam. Code Ann. § 154.124 (West 2008). Moreove r, as to the obl igation to pay one-ha lf of the cost of t he health insurance , section 154.182 of the fa mily code require s the t rial court to order the obligor

of child support to pay

as additional child support an amount equal to the actua l cost of the health insurance being provided throug h the oblige e’ s em p l o y

m ent, as is the case here , not to exceed a rea sonable cost to the obligor

. See id. § 154.182 (West Supp. 2009). Viewing the evidenc e in the li g ht most favor able to the decree , and considering the cre dit g iven Holmes for the g overnme ntal benef its the children rec eive throug h him, we would conclude that the trial court did not abuse its discretion in order ing the amount of child support order ed. See City of Keller , 168 S.W .3d at 807; Ziefman , 212 S.W .3d at 588; Echols , 85 S.W .3d at 478. We overr ule Holmes’s twe lfth, thirteenth, and sixt eenth issues.

A pro se litigant is held to the same standards as licensed attorney s and must comply with 5 the applica

ble laws and rules of proce dure. W heele r v. Gree n , 157 S.W .3d 439, 444 (Tex. 2005). We are , howeve r, obliga

ted to construe the issues raised in Holmes’s b ri ef l i b er ally

. See Tex. R. App. P. 38.9; Anderson v. G ilbert , 897 S.W .2d 783, 784 (Tex. 1995). 12Other Ter m s of Ch ild S upp ort I n his fourtee nth, fiftee nth, and eig hteenth throug h twentieth i s sues, Holmes challeng es other terms of the trial court’s order reg arding child support, which are based on provisions of the fa mily

code. I n his fourtee nth issue, H olmes complains of the trial c ourt’s orde r that he pay child support afte r the ch i l d ren rea ch eig hteen. The lang uag e of the decr ee, howeve r, trac ks the lang uag e of section 154.001 of the famil y co de, which g ives the trial court authority to order child support “until the child is 18 y ear s of ag e or until g radua tion from high school, whicheve r

occur s later.” Tex. Fam. Code Ann. § 154.001 ( West 2008).

Holmes’s fiftee nth issue is a challeng e to the trial court’s order that child support be withheld from his ear

nings and that he notify the court and McClain of any chang e in employ ment. Secti o n 154.007 of the family code provides that the court “shall order ” income withholding for periodic pay

ments of child support. See id. § 154.007(a) (West Supp. 2009). I n addition, section 105.006 provides that the order “must contain” a require ment that the parties notify the court and the other party of any chang es in the information require d by section 105.006, which includes the name, addre ss, and phone number of employ

ment. See id. § 105.006(b) ( West S upp. 2009). I n his eig hteenth issue, Holmes complains of the trial court’s order that, as additional child support, Holmes purcha se a life insurance policy in a n amount not le ss tha

n $50,000 naming McClain as benef

iciary for the benef

it of the children. Holmes did not raise this objection with the trial court and offe rs no evidenc e or authority on this issue and has there fore waived it. See Tex. R. App. P

. 33.1, 38.1(i); In re A.D.A. , 287 S.W .3d 382, 398 (Tex. App.—Texarkana 2009, no writ). Even if Holmes had prese rved err or and adequately briefed this issue, howeve r, the family code

13provides that the trial court has the discretion to make such a n order to provide for

the child in the event of the death of a pare nt and sets out the fac tors the court is to consider, including the value of the mo n t hly child support and health insurance pay ments. See Tex. Fa

m. Code Ann. § 154.016 (West 2008). I n his ninete e n th a n d tw e n ti eth issues, Holmes complains of the trial court’s order that his obliga tion to pay child support does not terminate at his death or at the death of McClain. Under section 154.015 of the family code, the rema ining unpaid balanc e of child support become s pay able

on the death of the obligor

. See id. § 154.015(b) ( West 2008). I n addition, section 154.013 of the family code expressly provides that “[a] child support obliga tion does not terminate on the death of the oblige e . . . .” Id. § 154.013(a) (West 2008).

The divorce decr ee follows the require ments of the family code re garding child support. The lang uag e trac ks the lang uag e of the permissive code provisions and complies with the mandatory code provisions. We there fore conclude that the trial court did not abuse its discr etion. We overrule Holmes’s four teenth, fifte enth, and e ighte enth throug h twentieth issues.

Tax Exem ption

Holmes’s twenty -four

th issue is a challeng e to the trial court’s order that McClain be exclusively entitled to claim the children for the purpose of the I nterna l Revenue Code’s depende ncy exemption. Under the rele vant I nterna l Revenue Code provisions, McClain, as the custodial pare nt for more than half of eac h y ear , is entitled to the exemption. See 26 U.S.C. § 152(a) , (c)(1)( B)

14(Supp. 2010). Be cause the order is consistent with the provisions of the code, we conclude that the 6 trial court did not abuse its discretion and over rule Holmes’ s twentieth-four th issue.

Division of the Marital Estate

I n his twenty -fifth issue, Holmes complains that the trial court order ed him to pay debts that wer e in McClain’s name and were her responsibili ty

. McClain testified that there wer e

cer tain debts in her name that she knew nothing about until she rec eived communications from debt collector s. She testified that in one instance, she investiga ted and deter mined that the signa ture on file with the cre dit car d company was not her signa ture. Holmes did not testify or appea r at trial. Having offe red no evidenc e as to these disputed d eb t s at the hear ing, and having provided no authority or citation to the rec ord on this issue in his briefing , Holmes has waived the rig ht to object on appea l. See Tex. R. App. P . 38.1(i).

Subsections (a) a

nd (c) of sec tion 152 provide in releva nt part: 6 (a) I n g ener al.—For

purposes of this subtitle, the term “de pendent” means— (1) a qualify ing c hild . . . .

. . . (c) Qualify ing c hild.—For purpose s of this section— (1) I n g ener al.—The term “qualify ing child” means, with respe ct to any taxpay er for a ny taxable y ear , an individual—

. . . (B ) who has the same principal place of abode as the taxpay er f or more tha

n one-ha lf of such ta x able y ear . 26 U.S.C. § 152(a), (c )(1) (B ) (Supp. 2010). 15Even had Holmes not waived this issue, howeve r, on the rec ord befor e us, we would

not conclude that the division of debts was manifestly unjust. A trial court is char g ed with dividing the parties’ estate “in a manner that the court deems just and rig ht, having due reg ard for the rig hts of eac h party and any children of the marria g e.” Tex. Fam. Code Ann. § 7.001 (West 2006). Courts have br oad discre tion in sui ts for divorce when dividing the estate, and w e pre sume the trial cour t proper ly exercised its discretion. See Murff , 61 5 S

. W

. 2 d at 698. The party challeng ing the division o f p ro p er t y h as the burden to show that it was not just and rig ht. Gupta v. Gupta , No. 03-09-00018-C V, 2 0 1 0 T ex. App. L EXI S 4841, at *7 (Tex. App.—Austin J une 24, 2010, no pet.) (mem. op). B eca

use Holmes has not met that burde n, we would c onclude on this rec ord that the trial cour

t did not abuse its discretion. We overrule Holmes’s twenty -fifth issue.

P reparat ion of

Dec ree I n his twenty -six th issue, Holmes complains of the trial cou rt ’s d ecision to allow McClain’s attorney to draf t the divorce decr ee. Holmes failed to object at the hear ing when the trial court instructed McClain’s attorney to prepa re the decr ee and has failed to adequately brief this issue, thus waiving his rig ht t o co m p l ai n on appea l. See Tex. R. App. P. 33.1, 38.1(i); In re A.D.A. , 287 S.W .3d at 389. Even if Holmes had not waived this issue, howeve r, we would find no reve rsible

err or. Although th e parties’ mediated settlement ag ree ment contained a provision that Holmes’s attorney was to prepa

re the decr ee , an d s ection 7.006 of t he family code provides t hat i f t he court finds the terms of a written ag ree ment to be “just and rig ht,” the terms are binding on the court, see Tex. Fam. Code Ann. § 7.006 (West 2006), we would conclude on the rec ord befor e us that any err or by the trial court in allowing McClain’s attorney to prepa re the decr ee did not cause the rendition of

16an improper judgme nt or preve nt Holmes from properl y p resenting the case to this Court and is

there fore harmless e rror . See Tex. R. App. P . 44.1. We overrule Holmes’s twenty -six th issue.

“Back Chil d-Visits”

Holmes’s t wenty -seve nth issue is a complaint that the t rial c o u rt err ed in failing to

awa rd “bac k child-visits” while awa rding retroa ctive child support. Holmes ag ree d to the retroa ctive child support in the mediated settlement ag ree ment, failed to raise the issue at the final hear ing, and offe rs no authority on this issue in his briefing

. Be cause Holmes has waived this issue, see Tex. R. App. P. 33.1, 38.1(i); In re A.D.A. , 287 S.W .3d at 389, we overr ule Holmes’s twenty -seve nth issue. 7

Holmes urg es five other issues. I n his first issue, he complains that the trial court err ed in 7 g ranting the divorce on g rounds of insupportability beca use the children wer e rec eiving monies throug h him, appar ently construing “insupportability ” to mean a lack of financ ial support. Be cause insupportability as a g round for divorce ref ers instead to discord that destroy s the leg itimate ends of the marria g e, see Tex. Fam. Code Ann. § 6.001 (West 2006), and beca use the parties ag ree d in their mediated settlement ag ree ment that the divorce would be g rante d on g rounds of insupportability , we conclude that the trial cour t did not abuse its discretion and over rule Holmes’ s first issue. I n his seventee nth issue, Holmes arg ues t hat t he trial court err ed in orde ring him to pay all of the health insurance costs if the children are enrolled in a health car e plan that is not an HMO or PPO. I n his twenty -first and twenty -sec ond issues, Holmes complains of the tria l court’s de cision to g rant McClain the exclusive rig ht to appoint an ag ency or nonpare nt as conser v at o r o f the children. Be cause these issues are not further briefe d, and beca use we find no such provisions in the decr ee, w e over

rule Holmes’ s seventee nth, twenty -first, and twe nty -sec ond issues. I n his twenty -third issue, Holmes complains of the trial court’s failure t o order that if M cClain dies befor e the y oung est child rea ches eig hteen y ear s of ag e, Holmes should rec eive t h e house awa

rded to McC l ai n i n t h e d ec ree . Be cause Holmes did not raise this issue with the trial court and prese nts no authority on it in his briefing , he has waived the rig ht t o complain on appea l. See Tex. R. App. P. 33.1, 38.1(i); In re A.D.A. , 287 S.W .3d at 389. We overr ule Holmes’s twenty -third issue. 17CONCLUSION Having overr

uled all of Holmes’ s issues, we af firm the judg ment of the trial c ourt.

__________________________________________ J an P. Patterson, J ustice Be fore J ustices Patterson, Pury ear , and Pember ton Affir med Filed: Oc tober 5, 2010

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