Affirmed in Part, Reversed and Remanded in Part, and Opinion filed August 

27, 2015.

In The

Fourteenth Court of Appeals

NO. 14-13-00094-CV

JAMES STEARNS, Appellant

V.

LISA MARTENS AND STEARNS POOLS AND SPAS, INC., Appellees

On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Cause No. 09-DCV-169484

O P I N I O N

This is an appeal from a divorce decree following a jury trial on one issue 

and a bench trial on other issues. The issue at the jury trial was whether the stock 

of a corporation was community property or the separate property of either spouse. 

After the wife rested her case-in-chief and before the husband offered evidence in 

his case-in-chief, the trial court granted a directed verdict that forty-nine percent of 

the shares were the wife’s separate property. The trial court based its decree on the 
2

jury’s verdict that the remaining shares were community property. The trial court 

later conducted a bench trial on various other issues and rendered a final divorce 

decree, which incorporated sanctions against the husband based on his failure to 

appear personally at a court-ordered mediation.

On appeal, we conclude the trial court reversibly erred in the following 

ways: (1) granting the directed verdict, (2) excluding expert valuation testimony 

offered by the husband during the bench trial, and (3) sanctioning the husband for 

failing to appear at mediation. Although we affirm the trial court’s grant of 

divorce and dissolution of the marriage, we reverse the remainder of the divorce 

decree and remand for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellee/petitioner Lisa Martens filed a divorce petition against 

appellant/respondent James Stearns (“Jim”). Jim asserted a counter-petition 

against Lisa, and Lisa made appellee Stearns Pools & Spas, Inc. (“Stearns Pools”) 

a party to the suit. Before marriage to Lisa, Jim started a pool business as a 

proprietorship. In 1998, approximately seven years after their marriage began, the 

pool business was transferred to Stearns Pools. One million shares of Stearns 

Pools were issued, 490,000 in Jim’s name and 510,000 in Lisa’s name. 

Jim served in the United States Army Reserve. In 2004, Jim deployed to 

Iraq. Four years later, Jim deployed to Afghanistan. Before deploying, Jim and 

Lisa executed a Stock Transfer Agreement effective as of January 1, 2008 (the 

“Agreement”). The Agreement provides, among other things, that “[Jim] hereby 

sells all of [Jim’s] Stock of [Stearns Pools] to [Lisa] and [Lisa] hereby purchases 

such Stock from [Jim] in exchange for the payment of Ten and no/100 Dollars and 

other good and valuable consideration, the receipt and sufficiency of which is 
3

hereby acknowledged.” The Agreement does not contain any statement that any 

part of its consideration was Jim’s separate property, nor does the Agreement 

contain the terms “gift,” “partition,” “separate property,” “separate use,” or 

“separate estate.” After the transaction, Stearns Pools’s corporate records reflected 

that Lisa owned all of the outstanding shares of common stock.1

In February 2009, Jim returned from deployment in Afghanistan. Shortly 

thereafter, Lisa presented Jim with her divorce petition. A major issue in the 

divorce proceeding was the marital-property characterization of the Stearns Pools 

common stock. Lisa maintained that all of the stock was her separate property. 

Jim disputed that characterization and, at times, asserted that all of the stock was 

community property. As petitioner, Lisa presented her case to the jury first. After 

Lisa rested in her case-in-chief, but before Jim had an opportunity to present 

evidence in his case-in-chief, Lisa moved for a directed verdict. Lisa asserted that 

she had proved as a matter of law that the 490,000 shares in Stearns Pools were her 

separate property under three theories:

(1) By means of the Agreement, Jim made a gift of these shares to 

Lisa; 

(2) The Agreement is a valid and enforceable partition or exchange 

agreement under Family Code section 4.102; and

(3) The Agreement is a valid means of making the shares the separate 

property of Lisa by a sale of the shares from Jim to Lisa. 

Lisa also argued that under the Agreement all one million shares of Stearns Pools 

were made her separate property.

The trial court granted Lisa’s motion for directed verdict as to the 490,000 

shares in Stearns Pools but did not grant the motion as to the remaining shares. 

 

1

Lisa later transferred thirty percent of the common stock of Stearns Pools to her sister, but Lisa 

later revoked this transfer, and we need not address it. 
4

The trial court overruled Jim’s objection to the granting of a directed verdict at the 

close of Lisa’s case-in-chief, before Jim’s case-in-chief. In response to the only 

issue submitted to it, the jury found that the remaining 510,000 shares of Stearns 

Pools were community property. The parties then tried various other issues to the 

court, including the value of Stearns Pools. 

The trial court appointed Jay Dale as an appraiser to value Stearns Pools. 

Dale valued the company at $544,699. Jim thought that Stearns Pools was worth 

significantly more than this appraised value, and he retained George Abraham as 

an expert witness. Abraham valued Stearns Pools at approximately $1.6 million in 

his expert report. When Jim called Abraham as a witness during the bench trial, 

the trial court sustained Lisa’s objection that it would be inappropriate to allow 

Abraham to testify because Dale was a “joint expert,” appointed by the court, to 

whom Jim and Lisa had agreed. Lisa advocated for Dale’s valuation. In its fact

findings, the trial court valued Stearns Pools at $544,699, the value placed by Dale. 

The trial court rendered a final divorce decree that incorporated sanctions the trial 

court earlier had assessed against Jim for failing to appear personally at a courtordered mediation.

II. ISSUES AND ANALYSIS

In appealing the divorce decree, Jim asserts sixteen issues.2 The main trialcourt rulings he challenges on appeal are the granting of a directed verdict at the 

close of Lisa’s case-in-chief, the exclusion of Jim’s expert’s testimony, the failure 

 

2

Lisa moved to dismiss this appeal because, according to Lisa, (1) Jim allegedly voluntarily 

accepted the benefits of the divorce decree in various ways and therefore Jim is estopped from 

challenging the decree on appeal; and (2) Jim is estopped from appealing the decree because he 

has unclean hands based on various alleged acts and omissions. This court denies Lisa’s motion 

by an order issued today. 
5

to give Jim credit for monies that Lisa allegedly should have paid to him under 

temporary orders, the failure to give Jim credit for rents and revenues Lisa received 

from community properties, and the imposition of monetary sanctions against Jim 

for his failure to attend personally a court-ordered mediation. 

A. Did the trial court reversibly err in granting a directed verdict at the 

close of Lisa’s case-in-chief?

Under his first seven issues, Jim asserts the trial court reversibly erred in 

granting a directed verdict at the close of Lisa’s case-in-chief that 490,000 of the 

Stearns Pools shares are Lisa’s separate property. According to basic principles of 

trial procedure, a trial court should not render a directed verdict against a party 

before that party has had a full opportunity to present the party’s case and has 

rested. See Tana Oil & Gas Corp. v. McCall, 104 S.W.3d 80, 82 (Tex. 2003); 

Nassar v. Hughes, 882 S.W.2d 36, 38 (Tex. App.—Houston [1st Dist.] 1994, writ 

denied); Cecil Pond Constr. Co. v. Ed Bell Investments, Inc., 864 S.W.2d 211, 214 

(Tex. App.—Tyler 1993, no writ). If a trial court renders a directed verdict against 

a party before that party has rested its case-in-chief, the trial court’s directed 

verdict is reversible error absent application of the exception recognized by the 

Supreme Court of Texas. See Tana Oil & Gas Corp., 104 S.W.3d at 82; Schade v. 

Rhodes, No. 01-03-00302-CV, 2004 WL 1355094, at *3, n.2 (Tex. App.—Houston 

[1st Dist.] June 17, 2004, no pet.) (mem. op.); Wedgeworth v. Kirskey, 985 S.W.2d 

115, 116 (Tex. App.—San Antonio 1998, pet. denied); Nassar, 882 S.W.2d at 38; 

Cecil Pond Constr. Co., 864 S.W.2d at 214. In Tana Oil, the high court concluded 

that granting a directed verdict before the plaintiffs rested was harmless error 

because, even if the plaintiffs had proved the claims, the plaintiffs would not have 

been able to recover since the plaintiffs affirmatively limited the claims to damages 

they could not recover as a matter of law. See Tana Oil & Gas Corp., 104 S.W.3d 

at 82. The Tana Oil court stressed that the basis for directed verdict had nothing to 
6

do with an assessment of the trial evidence. See id.

In the case under review, the trial court granted a directed verdict in favor of 

Lisa after she rested her case-in-chief and before Jim even had a chance to present 

his case-in-chief. The trial court overruled Jim’s objection to the court’s grant of a 

directed verdict at the close of Lisa’s case-in-chief, before Jim’s case-in-chief.3 

Lisa asserted that she was entitled to a directed verdict because she had proved as a 

matter of law that the 490,000 shares in Stearns Pools were her separate property. 

Notably, all of the potential independent bases for affirming the trial court’s 

directed verdict require a review or assessment of the trial evidence, and none of 

these bases rely on Jim’s purported affirmative limitation of his claims to damages 

he cannot recover as a matter of law. Today’s case does not fall within the Tana 

Oil exception. See Tana Oil & Gas Corp., 104 S.W.3d at 82. Instead, it falls 

within the general rule. Therefore, the trial court reversibly erred in granting a 

directed verdict against Jim before he had an opportunity to present his case-inchief. See id.; Schade v. Rhodes, 2004 WL 1355094, at *3, n.2; Wedgeworth, 985 

S.W.2d at 116; Nassar, 882 S.W.2d at 38; Cecil Pond Constr. Co., 864 S.W.2d at 

214. 

On appeal, Lisa essentially argues that an instrument in which one spouse 

transfers property (whether separate or community) to the other spouse creates an 

 

3 On appeal, Lisa argues that Jim waived any complaint regarding the trial court’s directed 

verdict by failing to object to the directed verdict until after it had been granted. Generally, a 

party against whom a directed verdict has been granted is not required to preserve error in the 

trial court regarding a complaint that the trial court reversibly erred in granting the directed 

verdict. See Field v. AIM Management Group, Inc., 845 S.W.2d 469, 473 (Tex. App.—Houston 

[14th Dist.] 1993, no writ). But, even presuming for the sake of argument that Jim was required 

to object in the trial court to the premature granting of a directed verdict against him, we 

conclude that Jim’s objection was timely because Jim made it shortly after the trial court granted 

the directed verdict, at a time when the trial court still was in a position to avoid the error by 

withdrawing the directed verdict and reconsidering the directed-verdict issue after Jim had rested 

his case-in-chief. 
7

irrebuttable presumption that the property became the transferee’s separate 

property, even if the document does not contain any “separate property recitals” or 

“significant recitals.”4 Lisa argues that any error by the trial court in granting a 

directed verdict before Jim rested his case-in-chief is harmless because: (1) Jim did 

not seek to set aside the Agreement based on fraud, accident, mistake, or duress; 

and (2) the parol evidence rule precludes consideration of extrinsic evidence that 

Lisa and Jim did not intend to change the marital-property characterization of the 

transferred shares, even if the Agreement contains no separate-property recitals. 

Even if this argument were meritorious, it is not based on Jim’s affirmative 

limitation of his claims to damages he cannot recover as a matter of law, and this 

argument does involve an assessment of the trial evidence. Therefore, this 

argument does not show that the case falls within the Tana Oil exception. See 

Tana Oil & Gas Corp., 104 S.W.3d at 82. 

In any event, we agree with the body of cases in which courts of appeals 

hold that, if the instrument contains no separate-property recitals, then parol 

evidence is admissible regarding the marital-property issue. See Reaves v. Reaves, 

No. 11-11-00026-CV, 2012 WL 3799668, at *6–7 (Tex. App.—Eastland Aug. 31, 

2012, no pet.) (mem. op.); Bahr v. Kohr, 980 S.W.2d 723, 726–27 (Tex. App.—

 

4 According to Lisa, the only way that the transferor-spouse in such an instrument can avoid the 

property becoming the separate property of the transferee-spouse is by proving that the transfer 

was procured by fraud, accident, mistake, or duress. Because fraud, accident, mistake, and 

duress are potential bases for setting aside the instrument, Lisa essentially asserts that, unless the 

transferor spouse can set aside such an instrument, that document creates an irrebuttable 

presumption that the effect of the transfer is to make the property the transferee’s separate 

property, even if the document does not contain any “separate property recitals” or “significant 

recitals.” A “separate property recital” or “significant recital” is a recital in an instrument that 

the consideration comes from the separate property of a spouse or that the property is transferred 

to a spouse as the transferee’s separate property or for the transferee’s separate use. See Roberts 

v. Roberts, 999 S.W.3d 424, 432 (Tex. App.—El Paso 1999, no pet.). 
8

San Antonio 1998, no pet.). But see Magness v. Magness, 241 S.W.3d 910, 912–13 

(Tex. App.—Dallas 2007, pet. denied); Raymond v. Raymond, 190 S.W.3d 77, 80–

81 (Tex. App.—Houston [1st Dist.] 2005, no pet.).5 Because the Agreement 

contains no separate-property recitals, parol evidence is admissible regarding the 

marital-property issue, and there is no irrebuttable presumption that the transferred 

shares are Lisa’s separate property. See Reaves, 2012 WL 3799668, at *6–7; Bahr, 

980 S.W.2d at 726–27. But see Magness, 241 S.W.3d at 912–13; Raymond, 190 

S.W.3d at 80–81.

We conclude that the trial court reversibly erred in granting a directed 

verdict at the close of Lisa’s case-in-chief. The proper remedy is to reverse the 

decree and remand for a new jury trial. See Thomas v. Olympus/Nelson Prop.

Mgmt., 148 S.W.3d 395, 401 (Tex. App.—Houston [14th Dist.] 2004, no pet.). As 

to the scope of that remedy, we note that the marital-property characterization of 

the other 510,000 shares of Stearns Pools stock was disputed at trial. Some of the 

characterization arguments are the same or similar for all of the Stearns Pools 

shares. Lisa argued that, under the Agreement, all one million shares of stock are 

her separate property. On this record, we conclude that the trial court’s error 

affects all of the matters in controversy at the jury trial and that the characterization 

issue regarding the 490,000 shares is not separable from the characterization issue 

regarding the 510,000 shares without unfairness to the parties. See Tex. R. App. P. 

44.1(b); Downing v. Burns, 348 S.W.3d 415, 427–29 (Tex. App.—Houston [14th 

Dist.] 2011, no pet.). Therefore, we sustain Jim’s first through seventh issues to 

the extent that Jim argues the trial court reversibly erred in granting a directed 

 

5

The parties have not cited and research has not revealed any precedent from the Supreme Court 

of Texas determining this issue. Lisa has cited a 1997 unpublished case from this court, Brothers 

v. Brothers, No. 14-96-00364-CV, 1997 WL 7012 (Tex. App.—Houston [14th Dist.] Jan. 9, 

1997, no writ) (not designated for publication). But, that case has no precedential value. See

Tex. App. P. 47.7 & 2008 cmt.
9

verdict at the close of Lisa’s case-in-chief. We reverse the trial court’s decree and 

remand for a new jury trial as to the characterization of all one million shares of 

Stearns Pools stock.

B. Did the trial court reversibly err in excluding expert testimony of 

George Abraham regarding the value of Stearns Pools?

Under his ninth through thirteenth issues, Jim argues that the trial court 

reversibly erred in refusing to allow Jim’s expert to testify at the bench trial 

regarding his opinion of the value of Stearns Pools. Lisa objected and urged the 

trial court not to allow Abraham to testify because Dale was a “joint expert” 

appointed by the court. The trial court sustained Lisa’s objection, disallowed 

Abraham’s testimony, and valued Stearns Pools at $544,699, in accordance with 

Dale’s valuation.

In temporary orders, the trial court ordered the parties’ trial counsel to 

“select reasonable agreed upon appraisers for performing appraisals for the 

business Stearns Pools & Spas, Inc. and the real properties of the parties within 

fifteen (15) days.” After more than fifteen days had passed and Jim’s counsel had 

not suggested any person to perform the appraisal of Stearns Pools, Lisa and 

Stearns Pools moved the trial court for an order appointing Dale to perform the 

appraisal. At an oral hearing, Jim’s counsel stated that he did not oppose the 

appointment of an appraiser and wanted more time to investigate other individuals 

who might be appointed to perform the appraisal. The trial court granted the 

motion and gave all parties thirty more days to agree on an appraiser. On the same 

day, the trial court signed a docket control order requiring the parties to contract 

with an appraiser within thirty days. At no time during this hearing did the trial 

court or any party state that this appraiser’s valuation would be final and binding 

on all parties or that the parties would be precluded from calling experts other than 

the appointed appraiser to offer evidence on the valuation issue. Nor did the 
10

parties’ subsequent conduct suggest any such understanding. 

Within the thirty-day period, the parties signed a letter agreement with Dale 

for him to prepare an appraisal of the value of Stearns Pools. Though the letter 

refers to Dale as a “neutral expert,” it does not state that Dale’s valuation of 

Stearns Pools would be binding on all parties or that the parties would be 

precluded from calling other experts to testify on the valuation issue. The parties 

also signed an agreement under Texas Rule of Civil Procedure 11, in which they 

agreed to a deadline for Dale to perform the appraisal. The trial court later signed 

a docket control order containing this deadline for the completion of Dale’s 

appraisal as well as setting a later deadline for the designation of testifying experts 

and the exchange of these experts’ reports. Under this order, Jim timely designated 

Abraham as a testifying expert and timely provided an expert report from 

Abraham, which described Abraham’s appraisal valuing the company at 

approximately $1.6 million.6

Lisa designated Dale and two other individuals as experts to testify 

regarding the appraisal of Stearns Pools. Lisa asserts that she retained these 

experts to support the valuation in Dale’s appraisal rather than to perform another 

appraisal as Abraham did. Nonetheless, Lisa still retained and designated experts 

other than Dale to testify regarding the company’s value. In a supplemental 

designation, Lisa designated one of these other experts to testify regarding his 

review of Abraham’s appraisal of the company. Even presuming that Dale was an 

agreed expert retained by all parties at the instance of the trial court to perform an 

appraisal of Stearns Pools, the parties did not agree and the trial court did not order 

 

6

Lisa asserts that Abraham’s testimony was improper because Abraham was required to conduct 

his appraisal of Stearns Pools by the earlier deadline, but he failed to do so. Under the 

unambiguous language of the docket control order and the Rule 11 agreement that gave rise to it, 

the earlier deadline applied only to Dale’s appraisal.
11

that Dale’s valuation would be final and binding on all parties or that the parties 

would be precluded from calling any expert on the valuation issue other than the 

appointed expert.

Lisa asserts that the trial court did not err in excluding Abraham’s testimony 

because Jim judicially admitted that the value of the company was the value to 

which Dale testified. Lisa bases this argument on a document entitled “James 

Stearns’ Proposed Final Division of Property,” which the trial court admitted into 

evidence at the bench trial. This document lists various properties, and one of the 

items on the list is “SPS Value (Dale),” for which the value is $544,700, the value 

to which Dale testified. This statement was not made in a pleading, and we 

conclude that it does not rise to the level of a judicial admission by Jim as to the 

company’s value. See Regency Advantage Ltd. P’ship v. Bingo Idea–Watauga, 

Inc., 936 S.W.2d 275, 278 (Tex. 1996); In re S.A.M., 321 S.W.3d 785, 790, n. 1 

(Tex. App.—Houston [14th Dist.] 2010, no pet.). Jim filed an inventory and 

appraisement in which he listed the value of the company as approximately $1.6 

million. 

Lisa also points to testimony by Jim during cross-examination regarding 

“James Stearns’ Proposed Final Division of Property.” When asked whether Jim 

indicated that the value of Stearns Pools was $544,700, Jim said that he had 

indicated that this sum was Lisa’s value. Jim likewise stated that the amount was 

Lisa’s value. Jim then said “[i]f [Lisa] thinks it’s worth that, it’s worth that . . . . I 

have a different opinion.” Jim also said “[i]f [Lisa] thinks that’s what it’s worth, 

then that’s what it’s worth.” Shortly thereafter, Jim again stated that “[t]his was 

Lisa’s value; it’s not my value.” Given the record, we could hardly conclude that 

Jim clearly admitted that Dale’s valuation of the company was correct. Jim did not 

testify that he agreed to be bound by Dale’s valuation or that he agreed that he 
12

would not call any other expert witness to opine on the company’s value.

Lisa also argues that Jim failed to preserve error for appellate review 

because he never made an offer of proof during trial as to what Abraham’s 

testimony would have been. To preserve error on the ground that the trial court 

improperly excluded the testimony of a witness, a party must inform the trial court 

of the substance of the testimony by an offer of proof, unless the substance was 

apparent from the context. See Tex. R. Evid. 103(a)(2); Gipson-Jelks v. Gipson, —

S.W.3d—,—, No. 14-13-00967-CV, 2015 WL 3424714, at *4 (Tex. App.—

Houston [14th Dist.] May 28, 2015, no. pet. h.). The trial court told Jim’s counsel 

during trial that the court would not allow Jim to do a question-and-answer offer of 

proof in open court, and the court suggested that Jim should submit a written bill of 

exception. Jim later filed a written bill of exception. The written bill contained 

appraisal reports by Abraham and also an affidavit by Abraham, but Lisa asserts 

that this bill of exception did not comply with the requirements for formal bills of 

exception. See Tex. R. App. P. 33.2. 

In any event, at the time the trial court excluded Abraham’s testimony, 

Abraham’s expert report had been filed with the trial court. During Lisa’s 

objection to Abraham’s testimony, she stated that Abraham would be testifying as 

to what he thinks Stearns Pools is worth. In response to Lisa’s objection, Jim’s 

counsel stated that Jim wanted Abraham to be allowed to testify regarding 

Abraham’s appraisal of Stearns Pools. Given the context, we conclude that Jim 

either sufficiently informed the trial court of the substance of Abraham’s testimony 

or the substance of this testimony was apparent from the context. See Tex. R. 

Evid. 103(a)(2).

On this record, we conclude that the trial court abused its discretion by 

preventing Abraham from testifying regarding his appraisal of the company’s 
13

value. See Reid Road Mun. Util. Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 337 

S.W.3d 846, 855–58 (Tex. 2011) (holding trial court erred in excluding an 

appraiser’s testimony from the summary-judgment evidence). For the trial court’s 

exclusion of Abraham’s testimony to constitute reversible error, Jim must show 

that the error probably caused the rendition of an improper judgment. See State v. 

Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009). The Supreme 

Court of Texas has recognized the impossibility of prescribing a specific test to 

determine whether a particular error is harmful. Id. The high court entrusts that 

determination to the sound discretion of the reviewing court. Id. In making this 

determination, we must review the entire record. Id. Jim need not prove that “but 

for” the exclusion of evidence, a different judgment necessarily would have 

resulted. See id. Rather, he must show only that excluding the evidence probably 

caused the rendition of an improper judgment. See id. The role that the excluded 

evidence plays in the context of the trial is also important. Id. Thus, the exclusion 

is likely harmless if the evidence was cumulative, or the rest of the evidence was 

so one-sided that the error likely made no difference in the judgment. Id. But, if 

erroneously excluded evidence was crucial to a key issue, the error is likely 

harmful. Id.

Lisa argues that any error was harmless because the trial court admitted 

Jim’s inventory and appraisement into evidence and in that document Jim asserts 

that the value of the company is approximately $1.6 million. But, Jim is not an 

expert, and this document is merely a statement of Jim’s position on this issue. 

Because the trial court disallowed Jim’s expert, there was no expert testimony 

regarding any value of the company other than Dale’s testimony regarding his 

valuation. 

The value of Stearns Pools was a key issue in the bench trial, and the trial 
14

court adopted Dale’s valuation, which was more than a million dollars less than 

Abraham’s valuation. Under the applicable standard of review, we conclude that 

Jim has shown that the trial court committed error in excluding Abraham’s 

testimony and that this error probably caused the rendition of an improper 

judgment. See id. at 870–74. We further conclude that this error affects part, but 

not all, of the matters in controversy at the bench trial, and that the determination 

of the value of Stearns Pools is separable from the other factual issues tried during 

the bench trial without unfairness to the parties. See Tex. R. App. P. 44.1(b). 

Therefore, we sustain Jim’s ninth through thirteenth issues to the extent that Jim 

argues the trial court reversibly erred in excluding Abraham’s testimony. We 

reverse the trial court’s decree and remand for a new bench trial as to the value of 

Stearns Pools.

C. Did the trial court reversibly err in failing to render judgment in 

Jim’s favor based on Lisa’s failure to pay amounts ordered under 

temporary orders and share of rents from community properties?

In his fourteenth issue, Jim asserts that the trial court reversibly erred in 

failing to give Jim a money judgment or other credit for monies Lisa should have 

paid to him from Stearns Pools based on the trial court’s temporary orders. Under 

these orders, the trial court ordered that Lisa, as President of Stearns Pools, was 

“specifically authorized to pay” Jim temporary support in the amount of $2,800 per 

month until further order of the court. Likewise, the trial court ruled that Lisa, as 

President of Stearns Pools, was “specifically authorized to pay” Lisa temporary 

support in the amount of $2,800 per month until further order of the court. In part 

of her testimony at the bench trial, Lisa stated that the trial court ordered her to pay 

Jim $2,800 per month. She testified that she and Jim discussed with counsel 

altering the amount of money Stearns Pools was paying to Jim, and that when she 

and Jim decided not to “comply with the 700 a week,” they were not ignoring the 
15

trial court. Later in her testimony, Lisa read the language of the temporary orders 

and stated that she was authorized to pay Jim and that she paid Jim without being 

ordered to do so.

Jim did not assert any claim in his pleadings against either Stearns Pools or 

Lisa seeking to recover amounts that allegedly were ordered to be paid to Jim 

under the temporary orders but were not paid. Jim has not shown that the trial 

court abused its discretion by failing to give Jim a money judgment or other credit 

for monies Lisa should have paid to him from Stearns Pools based on the trial 

court’s temporary orders or in allegedly not considering the failure to make these 

payments in rendering the divorce decree. See Smith v. Grayson, No. 03-10-

00238-CV, 2011 WL 4924073, at *8 (Tex. App.—Austin Oct. 12, 2011, pet. 

dism’d) (mem. op.). Accordingly, we overrule Jim’s fourteenth issue.

In his fifteenth issue, Jim asserts that the trial court reversibly erred in failing 

to give Jim a money judgment or other credit for rents and revenues Lisa received 

from community rental properties. Jim argues that the trial court erred in denying 

his reimbursement claim based on these rents and revenues and in failing to 

consider these rents and revenues in the just and right division of the community 

property. Jim did not assert any claim in his pleadings against Lisa seeking a 

judgment or a credit for rents and revenues Lisa received from community rental 

properties. Nor does Jim cite any evidence from trial showing what happened to 

these rents and revenues after they were received. In the division of community 

property, Jim received some accounts and Lisa received other accounts. Jim points 

to no testimony showing whether these rents or proceeds were in any accounts Jim 

received or in any accounts Lisa received. Jim has not shown that the trial court 

abused its discretion by failing to give Jim a money judgment or other credit for 

rents and revenues Lisa received for community rental properties or in allegedly 
16

failing to consider these rents and revenues in the just and right division of the 

community property. See Grayson, 2011 WL 4924073, at *8. Therefore, we 

overrule Jim’s fifteenth issue.

D. Did the trial court abuse its discretion in sanctioning Jim for failing 

to appear personally at a mediation? 

In Jim’s sixteenth issue he asserts that the trial court abused its discretion by 

sanctioning him $4,800 based on his failure to appear personally at a court-ordered 

mediation. Jim argues that the trial court abused its discretion in assessing these 

sanctions because (1) Jim moved for a stay of the proceedings under the 

Servicemembers Civil Relief Act7; (2) when the mediation occurred Jim was on 

active duty in the United States Army, and Jim’s military service precluded him 

from attending the mediation; and (3) the evidence is legally and factually 

insufficient to support a sanction amount greater than $2,400.8 We note that in an 

agreement filed with the trial court under Texas Rule of Civil Procedure 11, Jim 

agreed that he would not seek a stay of this case under the Servicemembers Civil 

Relief Act. Though Jim does not expressly assert that the trial court erred in 

denying his motion for a stay of the proceedings under the Act, we presume, for

the sake of argument, that Jim has assigned error on this point and has presented 

sufficient argument in support of the proposition that the trial court erred in 

granting Jim’s motion for a stay.

After the trial court ordered the parties to mediation, but before a date was 

set, Lisa filed a motion seeking a court order that Jim appear personally at the 

mediation. In that motion, Lisa asserted that Jim wanted to participate by 

 

7

See 50 App. U.S.C. § 501, et seq.

8

Jim has not asserted that the evidence is legally or factually insufficient to support a sanctions 

amount of $2,400 or less, nor has Jim presented any argument in support of such an assertion. 
17

telephone in the mediation and in his deposition, rather than appearing personally. 

Lisa stated that every time an event in the case requires Jim’s direct participation, 

Jim claims he cannot participate because he is serving in the military and that Jim 

does so to avoid his responsibilities as a litigant in the case. The trial court granted 

Lisa’s motion and ordered Jim to appear personally at a mediation in Richmond, 

Texas, on November 21, 2011 (the “First Mediation”). Jim’s deposition was set 

for the day after this mediation. 

A week before the date for the First Mediation, Jim filed a motion for 

continuance or motion to stay proceedings. Jim asserted that he was on active duty 

in the United States Army in Hawaii and that he was not allowed to leave his post 

without at least thirty days’ notice. Jim stated that he would not be able to attend 

the mediation or deposition the following week. Jim requested that the mediation 

and deposition be reset so that he could give the necessary notice to his superiors 

and obtain leave to travel to Texas for the mediation and deposition. Jim also 

asked for a stay of the proceedings under the Servicemembers Civil Relief Act 

“until either the period between the Thanksgiving and Christmas holidays or 

anytime following the New Year’s Day holiday.” According to Jim, his 

commanding officer would allow him to return to Texas during this time period if 

Jim gave thirty days’ prior notice. See 50 App. U.S.C. §§ 521, 522. In the 

alternative, Jim stated that he was “more than willing” to participate in the 

mediation and deposition by telephone. The only evidence Jim submitted in 

support of this motion was an unsworn letter from him. Jim did not offer affidavits 

or other statements from his commanding officer or other military supervisor. 

At a hearing four days later, no evidence was presented, and the trial court 

again ordered that Jim personally attend the mediation, implicitly denying Jim’s 

motion for continuance and motion to stay the proceedings. Later that day, Jim 
18

filed a second motion to stay the proceedings. In this motion for stay, Jim made 

arguments similar to those he made in his first motion for stay, except that instead 

of attaching his own unsworn letter, Jim attached a letter written on his behalf by a 

“military legal assistance attorney.” The author of this letter stated that Jim had 

informed him that Jim would not be able to attend the mediation or appear 

personally at the deposition. The author stated that Jim was “more than willing” to 

participate in a mediation and deposition by telephone or “some other remote 

means.” Though the author of the letter stated that Jim’s inability to attend could 

be supported by a copy of his orders, Jim did not submit a copy of his orders.9 Jim 

never submitted any sworn evidence in support of his assertions that he was unable 

to personally attend the mediation and deposition, nor did he submit any document 

from any other person with personal knowledge of the situation. 

Jim did not appear personally at the mediation on November 21 or the 

deposition on November 22. But, Jim did appear two weeks later, and he 

personally participated in the mediation (the “Second Mediation”) and deposition 

at that time. Lisa sought sanctions against Jim for failing to appear personally at 

the First Mediation. Counsel for Lisa and Stearns Pools represented to the trial 

court at the hearing that each party had to pay a $1,200 mediation fee for the First 

Mediation, which did not take place due to Jim’s unexcused absence. The trial 

court announced in open court that it was granting sanctions against Jim in the 

amount of $1,200. The trial court later signed a sanctions order in which the 

amount of the sanctions was $2,400. 

At the bench trial, Jim initially testified on direct examination that it was 

impossible for him to have personally attended the First Mediation and deposition.

 

9 We presume for the sake of argument that Jim timely obtained an adverse ruling on his second 

motion for a stay under the Servicemembers Civil Relief Act.
19

He then stated that, if he “absolutely wanted” to attend, he could have, but that he 

did not pursue this course because it would have required other servicemembers 

who were vacationing with their families to return to Hawaii. After trial, the trial 

court’s sanctions order was superseded by the final divorce decree, in which the 

trial court ordered Jim to pay sanctions in the amount of $4,800.

Though the Servicemembers Civil Relief Act should be liberally construed 

and applied to accomplish its purposes, the statute should not be used as a device 

to delay the proper and expeditious determination of legal proceedings when the 

rights of the party in military service will not be materially affected thereby. See 

Womack v. Berry, 291 S.W.2d 677, 681–82 (Tex. 1956); Power v. Power, 720 

S.W.2d 683, 684 (Tex. App.—Houston [1st Dist.] 1986, writ dism’d). The trial 

court has wide discretion in determining whether to grant a stay under the statute in 

light of the circumstances of a particular case; the trial court also has discretion in 

deciding which party should carry the burden of proof. See Womack, 291 S.W.2d 

at 682; Power, 720 S.W.2d at 684. 

Two different sections of the Servicemembers Civil Relief Act provide for a 

stay of proceedings. See 50 App. U.S.C. §§ 521(d), 522(b). The stay procedure in 

section 521 of the statute applies to “any civil action or proceeding . . . in which 

the defendant does not make an appearance.” Id. § 521(a), (d). Jim filed an 

original answer and counterpetition for divorce more than two and a half years 

before he first sought a stay under the statute. Jim had ample opportunity to seek a 

stay under section 522. Under section 521’s unambiguous language, we conclude 

that it does not apply to either of Jim’s motions for a stay. See id. To the extent 

Jim based either of his stay motions on section 521 of the Servicemembers Civil 

Relief Act, the trial court did not abuse its discretion in denying either of the 

motions. See id.; Power, 720 S.W.2d at 684–85.
20

Section 522 applies to Jim’s motions for a stay. See 50 App. U.S.C. § 

522(a). The trial court must grant a motion for a stay under section 522 if the 

movant satisfies the following statutory conditions:

An application for a stay . . . shall include the following:

(A) A letter or other communication setting forth facts stating the 

manner in which current military duty requirements materially affect 

the servicemember’s ability to appear and stating a date when the 

servicemember will be available to appear.

(B) A letter or other communication from the servicemember’s 

commanding officer stating that the servicemember’s current military 

duty prevents appearance and that military leave is not authorized for 

the servicemember at the time of the letter.

50 App. U.S.C. § 522(b). Under the plain text of this statute, a trial court has 

discretion to deny a stay if the movant fails to include a letter or other 

communication from the movant’s commanding officer stating that the movant’s 

current military duty prevents appearance and that military leave is not authorized 

for the movant at the time of the letter. See id.; In re Walter, 234 S.W.3d 836, 837 

(Tex. App.—Houston [14th Dist.] 2007, orig. proceeding). 

Jim did not submit to the trial court anything from his commanding officer 

regarding his ability to attend the mediation or deposition. Therefore, to the extent 

Jim based either of his stay motions on section 522, the trial court had discretion to 

deny the motions. See 50 App. U.S.C. § 522; In re Walter, 234 S.W.3d at 837. 

Though Jim submitted two unsworn letters in support of the proposition that Jim’s 

military service precluded him from attending the First Mediation, one letter was 

written by Jim and the other was written by a “military legal assistance attorney” 

based on Jim’s statements regarding the situation. The trial court impliedly 

determined that Jim had the burden of proof as to whether his military-duty 
21

requirements materially affected his ability to appear personally at the mediation. 

See Power, 720 S.W.2d at 684–85. The trial court acted within its discretion by 

impliedly discrediting the proof that Jim submitted in support of his motions and in 

impliedly concluding that Jim failed to satisfy the burden of proof. See In re 

Walter, 234 S.W.3d at 837; Power, 720 S.W.2d at 684–85. Therefore, to the 

extent Jim based either of his stay motions on section 522 of the Servicemembers 

Civil Relief Act, the trial court did not abuse its discretion in denying either of the

motions. See 50 App. U.S.C. § 522(a); In re Walter, 234 S.W.3d at 837; Power, 

720 S.W.2d at 684–85.10

We review for an abuse of discretion the trial court’s decision to sanction 

Jim $4,800 for violating the trial court’s order to appear personally at the First 

Mediation. See Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004). 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. See id. at 838–39. 

The trial court’s ruling should be reversed only if it was arbitrary or unreasonable.

See id. at 839. 

The record reflects that the trial court ordered Jim to appear personally at the 

First Mediation and that Jim failed to do so. Though Jim submitted two unsworn 

letters in support of his assertion that military service precluded him from 

attending the mediation, it was within the trial court’s discretion to discredit these 

letters. See id. at 838–39. Jim’s testimony at the bench trial indicated that he 

could have obtained permission to personally attend the mediation, though, 

 

10 In a Rule 11 agreement filed with the trial court more than a year before the mediation, Jim 

agreed that he would not seek a stay of this case under the Servicemembers Civil Relief Act. We 

need not and do not address whether this agreement precluded Jim from moving for a stay under 

the Servicemembers Civil Relief Act or asserting that sanctions should not be assessed against 

him because of his military service. 
22

according to Jim, doing so would have required other servicemembers who were 

vacationing with their families to return to Hawaii. Jim asserts that Lisa did not 

prove that Jim could have attended the mediation and also fulfilled the duties of his 

military service. But, Lisa did not have the burden of disproving Jim’s proffered 

reason for violating the trial court’s order. See Basaldua v. Forest Woods 

Subdivision Prop. Owners Ass’n, No. 04-11-00716-CV, 2012 WL 2583911, at *4–

5 (Tex. App.—San Antonio July 5, 2012, pet denied) (mem. op.). The trial court 

acted within its discretion by impliedly discrediting Jim’s evidence in support of 

the proposition that Jim’s military service precluded him from attending the 

mediation. See Cire, 134 S.W.3d at 838–39; Basaldua, 2012 WL 2583911, at *4–

5. Thus, the trial court did not abuse its discretion in sanctioning Jim for violating 

the trial court’s order to appear personally at the mediation. See Cire, 134 S.W.3d 

at 838–39; Basaldua, 2012 WL 2583911, at *4–5.11 

Jim also challenges the amount of the sanctions, asserting that the evidence 

is legally insufficient to support a sanction amount greater than $2,400. In the 

divorce decree the trial court ordered Jim to pay $2,400 to Lisa and $2,400 to 

Stearns Pools. Each amount appears to be the aggregate of all mediation fees paid 

by each of these parties, including the fees for the mediation at which Jim appeared 

personally. On appeal, Lisa concedes that the correct amount of the sanctions 

should be $2,400: $1,200 to Lisa and $1,200 to Stearns Pools, based upon the 

mediation fee each paid at the First Mediation, at which Jim did not appear. We 

conclude that the trial court abused its discretion to the extent it sanctioned Jim in 

 

11 Jim has not presented argument in support of a challenge to the sufficiency of any findings in 

the trial court’s sanctions order or to the sufficiency of the evidence supporting the trial court’s 

exercise of its inherent power to sanction Jim based on his violation of a court order requiring his 

personal attendance at a mediation. See Ezeoke v. Tracy, 349 S.W.3d 679, 686 (Tex. App.—

Houston [14th Dist.] 2011, no pet.). Therefore, we do not address either of these issues on 

appeal. 
23

an amount greater than $2,400. 

For the foregoing reasons, we sustain Jim’s sixteenth issue to the extent Jim 

asserts that the trial court abused its discretion in sanctioning Jim in an amount 

greater than $2,400.12 We overrule the remainder of Jim’s sixteenth issue.

III. CONCLUSION

The trial court reversibly erred in granting a directed verdict at the close of 

Lisa’s case-in-chief. This error affects all of the matters in controversy at the jury 

trial, and the characterization issue regarding the 490,000 shares is not separable 

from the characterization issue regarding the 510,000 shares without unfairness to 

the parties. The trial court also reversibly erred in excluding Abraham’s testimony 

during the bench trial. This error affects part, but not all, of the matters in 

controversy at the bench trial, and the determination of the value of Stearns Pools 

is separable from the other factual issues tried during the bench trial without 

unfairness to the parties. The trial court did not err in denying either of Jim’s 

motions for a stay under the Servicemembers Civil Relief Act. Nor did the trial 

court abuse its discretion in sanctioning Jim for violating the trial court’s order to 

appear personally at the mediation. Even so, the trial court abused its discretion to 

the extent it sanctioned Jim in an amount greater than $2,400.

Based on our disposition of the issues, we render judgment as follows: 

(1)We affirm the trial court’s grant of divorce and dissolution of the 

 

12 In the final divorce decree, the trial court appears to order Jim to pay the $4,800 in mediation 

fees both as sanctions and as part of the trial court’s division of the parties’ community estate. 

On appeal, Jim has not presented argument in support of a challenge to the trial court’s order that 

Jim pay the $4,800 in mediation fees as part of the trial court’s division of the parties’ 

community estate, and we do not address this issue. In any event, as a remedy for other error 

that we found above, this court is reversing the decree and remanding for further proceedings. 

These proceedings on remand are described below and include another just and right division of 

the community estate.
24

marriage;

(2)We reverse the remainder of the divorce decree and remand for 

further proceedings in accordance with this opinion, including 

(a) a new jury trial as to the characterization of all one million 

shares of Stearns Pools stock, 

(b) a new bench trial as to the value of Stearns Pools, 

(c) a just and right division of the community estate in light of the 

jury findings as to the characterization of all shares of Stearns 

Pools stock, the trial court’s new finding as to the value of Stearns 

Pools, and the trial court’s other findings at the first bench trial on 

issues other than the characterization of the Stearns Pools shares or 

the value of Stearns Pools, and 

 (d) rendition of a new divorce decree, which may include a new 

sanctions order in which the trial court sanctions Jim for failing to 

appear personally at the court-ordered mediation in an amount not 

to exceed $1,200 as to Lisa and $1,200 as to Stearns Pools.13

/s/ Kem Thompson Frost

Chief Justice

Panel consists of Chief Justice Frost and Justices Christopher and Busby.

 

13 See Sprague v. Sprague, 363 S.W.3d 788, 805 (Tex. App.—Houston [14th Dist.] 2012, pet. 

denied). Based on our disposition, we need not address Jim’s eighth issue or the parts of Jim’s 

other issues that we have not overruled or sustained in this opinion.