### 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. 03-10-00183- CV

John Wi lliam U ssery, Appellant

v. Laura Catherine Usser y, Appellee

F ROM TH E CO UNTY COURT AT LAW NO . 4 O F WI LLIAM SO N COUNTY NO. 09- 2874 -F 425, H ONO RAB LE JO HN MCM ASTER, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

I n this pro se appea l from a divorce decr ee, appellant J ohn Wil liam Ussery challeng es the tr i al co u rt ’s p ro perty division and the denial of his reque st for a bench war rant to permit his phy sical pre sence at trial. F or the re asons that follow, we aff irm the dec ree .
BACK GR OUND Ussery and appe llee L aura

C. St eczkowski wer e mar ried in September

1997. 1
I n 2007, Ussery was convicted on three counts of indece ncy with a child by contac t and sente nced to twe nty

y ear s on eac h count, with two of his se ntence s running consec utively and the third running concur

rently

.

The divorce decr ee g rante d appe l l ee ’s reque st to chang e her name to L aura Catherine 1 Steczkowski. Her name prior to the divorc e wa s L aura Catherine U ssery .I n September 2009, Stec zkowski filed f or divorce

. She soug ht confirmation of he r separ ate proper

ty , including rea l proper

ty that the parties purcha sed shortly afte r they marrie d. The

rea l proper

ty was 20 acr es of land with a home that the parties had built during their marria g e. After his incar cer ation, Ussery executed a deed convey ing all of his i n t er es t in the rea l proper ty to Steczkowski. Steczkowski also soug ht a disproportionate share of the community estate based upon Ussery ’s fault in the brea kup of the marria g e, th e wa sting of community assets, and incurre d attorney ’s fe es. Prior to trial, Ussery filed a motion for issuance of a bench war rant or, alterna tively , that he be permitted to participa te in the trial by means of a telephone confe renc e. He contende d that his phy sical prese nce at trial was essential to a full and fair deter mination beca

use of cre dibilit y and demea nor issues, the substantial value of the community proper ty involved, and the parties’ dispute as to whethe r ce rtain asse ts were separ ate or community proper ty

. The trial court denied Usse ry ’s motio n b u t o rd ered a proce dure for Ussery to submit documents, such as “any aff idavit” or “propose d dispositi on of prope rty ,” for consideration at trial. A bench trial was held in Marc h 2010. I n acc ordanc e with the proce dure set fo rt h i n the order deny ing Ussery ’s reque st for a bench war rant, the trial court admitted documents t hat Us s er y submitt ed. The documents included Ussery ’s proposed proper ty division,

a decla ration by him, discovery response s by Steczkowski, a letter from Steczkowski to Ussery dated Dec ember 14, 2009, and an aff idavit by a witness conce rning the transfe r of the rea l proper ty

. I n the decla ration, Ussery states that the part ies “live[d] toge ther as ‘common-law ’ husband and wife” beg inning in the winter of 1990 to 1991 until they wer e formally marrie d in 1997, and that the rea l

2proper

ty and funds in a 401k acc ount from Steczkowski’s work we re c ommunity proper ty . I n her Dec ember 2009 letter to Ussery , Steczkowski states that “I haven’ t s ee n t he suit,” but that she “thoug ht it would just be filing [] irrec oncilable differ ence s, not any acc usations.” I n the aff idavit, the witness aver

red that Steczkowski wanted Ussery to transfe r the rea l proper ty to her beca

use she

was a fra id that he would be sue d afte r he w as inca rce rate d. The witnesses who testified at trial wer e Steczkowski and her attorney

. Her attorney testified that Steczkowski had incurre d attorney ’s fee s of $2,500 in th e d i v o rce proce eding

. Steczkowski testified conce rning the parties’ marria g e, rea sons for the divorce , incurre d attorney ’s fee s in Ussery ’s criminal proce eding s, values of assets, amounts of cre dit car d and other debts, and her proposed proper

ty division. She testified that Ussery ’s conduct and subsequent convictions wer e

rea sons for the brea

kup of the marria g e and that the parties “spent approximately $43 , 0 0 0 ” in
at t o rney ’s fee s and other fee s in criminal defe nse costs. The exhibi ts included Steczkowski’ s p roposed proper

ty division, statements showing the balanc e in Steczkowski’s 401k acc ount on October 1, 1997, and Dec ember 31, 2009, the specia l war ranty deed in w hich Ussery convey ed his interest in the rea l proper

ty to Steczkowski, and bank and cre dit car d statements. The balanc e in the 401k acc ount was $22,600 on Oc tober 1, 1997, a nd $185,545 on Dec ember 31, 2009. At the close of the evidenc e, the tri al co u rt granted the divorce and divided the
estate of the parties. The trial court awa rd ed S t ec z k o wski the rea l proper ty and the amount of $22,600 from the 401k acc ount a s her separ ate proper ty and all of the community proper ty , except furniture and household items in Ussery ’s possession, an amount of $20,000 from the 401k acc ount, and g uns and music equipment. This appe al followed.

3ANALYSIS I n two issues, Ussery contends that the trial court abused its discr etion by failing to divide the estate of the parties in a just and rig ht manner a

nd by failing to issue a bench war rant to permit Ussery

to attend the trial.
Division of Property

I n his first issue, Ussery challeng es the proper ty division. He contends that the trial

co u rt er red by char acte rizing the rea l proper ty and the amount of $22,600 in the 401k acc ount as Steczkowski’s separ ate proper ty and by awa

rding a disproportionate share of the community estate
to Steczkowski. We revie w proper ty division issues fo r abuse of discretion. See Murff v. Murff , 615 S.W .2d 696, 698 (Tex. 1981); Mandel l v. Ma n dell , 310 S.W .3d 531, 538-39 (Tex. App.—Fo rt W o rt h 2 010, pet. denied)

. The test for abuse of discretion is “whe ther the court
acte d without ref

ere n ce to any g uiding rules and principles.” Downer v. Aquamarine Operators, Inc ., 701 S.W .2d 238, 241-42 (Te x . 1985).

I n a divorce proce eding , the trial court is char g ed with dividing the community estate in a just and rig ht ma

nner, g iving due reg ard to the rig hts of eac h party

. See Tex. F am. Code Ann. § 7.001 (West 2006). Trial courts are not require d to divide th e p ro p er t y eq u ally

. See Tenery

v. T en ery , 932 S.W .2d 29, 30 (Tex. 1996). They are aff orded wide discretion in dividing th e

comm unity estate, and we must indulge ever y rea sonable presumption in favor of t he trial court’s
proper exerci s e of its discretion. See Mandell , 310 S.W .3d at 538-39. Fa ctors that courts may consider in dividing the estat e i n cl u d e the spouses’ capa cities and abilities, rela tive financ ial condition a

nd obliga tions, na

ture of the proper

ty , fault in the brea

kup of the marria g e, and wasting
4of community assets by a spouse. See Schlueter v. S chlueter , 975 S.W .2d 584, 589 (Tex. 1998) (cour t m ay co n sider many fac tors including wasting of community assets); Murff , 615 S.W .2d at 698-99 (fa ctors that court may consider discussed); Schaban-M aurer v. Maurer-Sc haban , 238 S.W .3d 815, 820-21 (Tex. App.—For t Worth 2007, no pet.) (cour t may consider fault in brea kup of marr iag e). When revie wing an alleg ed proper ty char acte rization e r

r o r , w e d e te r

mi n e whether the trial court’s finding is supported by clea r and convincing evidenc e and whether the char acte rization

err or, if established, was an abuse of discretion. Magness v. Magness , 241 S.W .3d 910, 912 (Tex. App.—Dallas 2007, pet. denied) ; see also Tex. Fam. Code Ann. § 3.003(b) (West 2006) (deg ree of proof nece ssary to establish separ ate proper ty is “cle ar and convincing evidenc e”)

. A trial court does
not abuse its discretion if there is some evidenc e of a substantive and probative char acte r to support

a finding of sepa

rate proper

ty

. Magness , 241 S.W .3d at 912. Fur ther, in a non-jury trial, when no finding s of fac t or conclusions of law are filed or reque sted, as is the case here , we must presume that the trial court made all the nece ssary finding s t o s u p p o rt i t s judgme nt. See Allen v. Allen , 717 S.W .2d 311, 313 (Tex. 1986). I f the trial court’s implied finding s are supported by the evidenc e,

we must uphold its judgme nt on any theory of law applicable to the case . See W orford v. Stamper , 801 S.W .2d 108, 109 (Tex. 1990).

Separa te proper

ty is proper

ty owned or claimed by a spouse befor e m ar ri age or acquir ed by g ift, devise, or desce nt during marria g e. Tex. Const. ar t

. XV I , § 15; Tex. Fam. Code Ann. § 3.001 (West 2006). A deed for proper ty from one spouse as g rantor to the othe r spouse a s g rante e cre ates a presumption that the g rante e spouse rec eived the proper ty as separ ate proper

ty by

5g ift. Magness , 241 S

. W

. 3 d at 912. The presumption may be rebutted by proof the deed was

procur ed by

fra ud, acc ident, or mistake. Id . at 912-13. Ussery contends and stated in his decla ration to the trial court that the rea l proper ty

was community p ro p erty , but he does not dispute that he signe d the deed transfe rring the rea l
proper ty , and t h e deed with his signa ture was an exhibi t at trial. Steczkowski also testified that Ussery signe d the deed afte r he wa s i n ca rcerate d and that a serg eant at the prison notarized his signa ture. This evidenc e crea tes a presumption t h at the real proper ty was S teczkowski’s separ ate
proper ty by g ift and, there fore , is some evidenc e of a substantive and probative char acte r to support a finding that Ussery

g ave his intere st in the real pr operty to Steczkowski. See id . at 912. Fur ther, even if the trial court cre dited the witness’s aver ment that Steczkowski’s stated rea son for wanting Ussery to transfe r the rea l proper ty to her was beca

use she was afr aid that he would be sued afte r he was incar cer at ed , t h i s evidenc e does not support that Steczkowski
pro cu re d t h e deed from Ussery by fra ud, acc ident, or mistake. See id. at 912-13. There was no

ev i d en ce that would support a finding that Ussery lacke d understanding or that Steczkowski was

awa re of a lack of understanding on his part that the execution of the deed transfe rre d his interest in the rea l proper

ty

. See Davis v. Grammar , 750 S.W .2d 766, 768 (Tex. 1988) (“U nilatera l mistake by

one party , and knowledg e of that mistake by the other party , is equivalent to mu t u al m i s t ak e.”)

. There also was no evidenc e to support a finding that Steczkowski’s alleg ed stated rea son for seeking the rea l proper

ty transfe r was false. See Bradford v. Vento , 48 S.W .3d 749, 754-56 (Tex

. 2 001) (ele ment s o f fra

ud include a materia l misrepre sentation “with knowledg e of its falsity or made

rec klessly without any

knowledg e of the truth”).

6As to the amount of $22,600 in the 401k acc ount, Ussery stated in his decla ration that the parties wer e “‘c ommon-law’ husband and wife” at the time that the funds acc rued. See Tex. Fam. Code Ann. § 2.401(a) (West 2006). Steczkowski tes t i fi ed , h o weve r, that the amount of 2 $22,600 was “the portion of my 401k that I had put in prior to the marria g e,” and t h at the parties wer e marrie d in September 1997. The 401k statement showing the balanc e of $22,600 as of October 1, 1997, was admitted as an exhibi t. This e vidence is some evidenc e of a substantive and probative char acte r to support a finding that Steczkowski acquir ed the amount of $22,600 in the 401k acc ount prior to the par t i es ’ m ar ri age and, there fore , that it was her separ ate proper ty

. See Tex. Cons t. art. XVI , § 15; Tex. Fam. Code Ann. § 3.001; Magness , 241 S.W .3d at 912.

Fur ther, even if we wer e to co n cl ude that the rea l proper ty and the amount of $22,600 in the 401k acc ount were community proper ty , we would not c onclude that the trial court abused its discretion in its proper ty division. Magness , 241 S.W .3d at 912. The t ri al co u rt could have considere d and found that the rela tive financ ial condition and obliga tions of the parties supported a disproportionate division. As part o f the division, Steczkowski was awa rded debts,

Section 2.401(a) of the fa mily code pr ovides: 2 (a) I n a judicial, administrative, or other proce eding , the marria g e of a man and woman may

be prove d by

evidenc e that: (1) a decla

ration of their marria g e has been signe d as provided by this subchapte r; or (2) t h e m an an d woman ag ree d to be marrie d and afte r the ag ree m en t they lived toge ther in this state as h u sband and wife and there repr esente d to others that they wer e mar ried. Tex. Fam. Code Ann. § 2.401( a) ( West 2006). 7including approximately $40,000 in cre dit car d debt, and, acc ording to her discovery response s, the

outstanding balanc e of the mortg ag e on the rea l proper ty was $175,000. The trial court further could have found that Ussery was a t fault in the brea kup of the mar

riag e and wasted community assets. Although Steczkowski stated in her Dec ember 2009 letter to Ussery that she thought that the divorce “would just be filing [] irrec oncilable differ ence s, not any ac cu s at i o ns,” she testified that the community estate incurre d $43,000 in criminal d ef en se costs and that Ussery ’s conduct and subsequent convictions wer e rea sons for the brea kup of the marria g e. At the time of the divorce , Ussery was ser ving two of his twenty -y ear sentenc es with another

twenty -y ear

sentenc e to follow. On this rec ord, we conclude that the trial court did n o t ab u s e its discretion by

awa rding the rea l proper

ty and the am o u n t o f $ 22,600 in the 401k acc ount to Steczkowski or by dividing the e state of the pa rties disproportionately . We overrule Ussery ’s first issue.

Bench Warran t

I n his second issue, Usser y ch alleng es the trial court’s denial of his reque st for a bench war

rant. We revie w the denial of a bench war rant under an abuse of discretion standard. See 3
In re Z.L.T. , 124 S.W .3d 163, 165 (Tex. 2003).

L itigants cannot be denied acc ess to the courts simply beca use they are inmates, but

an inmate does not have an absolute rig ht to appea r in person in ever

y court proce eding

. See id. The trial court must weig h the inmate’s rig ht to appea r ag ainst the “p ro t ection of our corr ectional
sy stem’s integ rity ,” and the burden is on the inmate to establish a rig ht to relief

. Id

. at 165-66. The

Us sery does not challeng e the trial court’s denial of his alterna tive reque st for relief to 3 participa te in the trial by

means of a

telephone c onfer ence .

8inmate m ust provide the trial court with suffi cient fac tual information t o allow t he court to assess

the necessity of hi s appea ring at the re levant hea

ring

. Id. at 166. The tria l court is not require d to
g o bey ond the inmate’s motion to determine w hether a per sonal appe ara

nce is a ppropriate

. Id. Fa ctors that courts conside r include: (i) cost and inconvenienc e of transporting the prisoner to the courtroom, (ii) the secur ity risk that the prisoner prese nts to the court and the public, (iii) whether the prisoner’ s claims are substantial , (i v) whether the case may be delay ed until the prisoner is rele ased, (v) whether the prisoner can and will offe r admissible, noncumulative testimony that cannot be eff

ectively prese nted b y some other means, (vi) whether the prisoner’ s prese nce is important in judging his cre dibilit y and demea nor, (vii) wh et h er t h e t rial is to the
court or to the jury , and (viii) the prisoner’ s probability of succe ss on the merits. Id

. at 165-66;

see also In re A.W

. , 302 S.W .3d 9 2 5 , 9 29 (Tex. App.—Dallas 2010, no pet.); Zuniga v. Zuniga , 13 S.W .3d 798, 801 (Tex. App.—San Ant o n i o 1 9 9 9 , no writ), disproved on other grounds , In re Z.L.T

. , 124 S.W .3d at 166.
I n his motion, Ussery advised t h e trial court that he was incar cer ated in L ovelady , Texas and contende d that his phy sical prese nce at trial was essential to a full and fair deter mination beca use of cre dibilit y and demea nor issues, the substantial value of th e co m munity proper ty involved, and the parties’ dispute as to whether cer tain assets wer e separ ate or community proper ty

. He also stated that he “pre sents no specia l security conce rns, being a g ener al population inmate of trusty three status” and that he had a substantial c hance of succ ess on the mer its.

9I n its orde r deny ing his reque st, the trial court expressly considere d rele vant fac tors

a n d s e t f o r th a n a lt e r n a ti v e me a n s f o r U s s e r y t o p a r t ic ip a te in th e tr ia l. T h e tr ia l c o u

r t f o u n d a n d o r d e r e d :
a) The cost and inconvenienc e of transpo r ti n g r e s p o n dent to Wil liamson County cannot be borne by the p ar t i es and would nece ssarily be done at County expense. b) The secur ity risk prese nted by Respondent’s appea ranc e woul d b e that associate d with the transport of a ny prisoner. c) This is a s i mple divorce case . No substantial issues of proper ty have been raised by either pa rty in this case. d) I t is not reasonable to delay this case until Respondent’s re lease

. e) Respondent will be allowed to offe r any evidenc e as to proper ty and any other issues, by aff

idavit. Respon d en t is to send by mail any such written information he wants to bring befor e the Court. The Court will revie w such information as if prese nted by Respondent in evidenc e at the appropr iate time, and will consider sa me in this deliberations. f) The Court will continue to be mindful of the issues set out in Zuniga

. I f the fac ts are such that the prese nce of Respondent is neces s ar y t o deter mine cre dibilit y by demea

nor or otherwise, arra

ng ements for his appea

ranc e will be made

.

I n his motion, Ussery did not provide sufficie nt fac tual information that would allow the trial court to assess the nece ssity of his prese nce, and he did not addre ss tr ansportation costs or inconvenienc e. He also was g iven an alterna tive means to participa te in the trial, and the trial court expressly order ed that his appea ranc e at trial wo u l d be arr ang ed if it beca me nece ssary . On this

rec ord, we cannot conclude that the trial court abused its discretion in balanc ing Ussery ’s reque st to be phy sically prese nt at tr ial with “ the protec tion of our corr ectional sy stem’s integ rity .” See In re Z.L.T

. , 124 S.W .3d at 165. We overr ule Usser y ’s sec ond issue.
10CONCLUSION Having overr

uled Usser

y ’s issues, we a ffirm the divorc e dec ree .

__________________________________________ J an P. Patterson, J ustice Be fore J ustices Patterson, Pember ton and Henson Affir med Filed: De cembe r 2, 2010

11