Date: 06-23-2017

Case Style:

Case Number: 06-16-00079-CV

Judge: Ralph K. Burgess

Court: Texas Court of Appeals, Sixth District on appeal from the 6th District Court of Red River County

Plaintiff's Attorney: Timothy L. Vinson for Brad Steven Decker

Defendant's Attorney: James R. Rodgers and Sarah L. Kaminar for Tamara Michelle Decker

Description: On July 29, 2016, the trial court entered its final decree of divorce dissolving the marriage
of Tamra Michelle Decker and Brad Steven Decker. As part of the property division, the trial
court awarded Tamra, inter alia, (1) all sums and rights related to any profit-sharing plan,
retirement plan, Keogh plan, pension plan, employee stock option plan, 401(k) plan, employee
savings plan, accrued unpaid bonuses, disability plan, or other benefits existing by reason of her
past, present, or future employment; (2) one hundred percent of the sums and rights related to the
401(k) plan existing by reason of Brad’s employment with Southwestern Bell Telephone Company
and/or AT&T, Inc., through Fidelity, Account No. AT&T SSP (20021); and (3) fifty percent of
the retirement benefits in a defined benefit plan with Southwestern Bell Telephone Company,
and/or AT&T, Inc., accrued from January 1, 2001, until July 29, 2016.
In his sole complaint on appeal, Brad complains that the trial court erred in considering
statements made by the parties’ children during an in-camera child custody interview with the trial
court when making its property division. Brad argues that Section 153.009 of the Texas Family
Code, which allows the trial court to interview the children in its chambers, only authorizes the
trial court to consider the interview “to determine the child’s wishes as to possession, access, or
any other issue in the suit affecting the parent-child relationship.” TEX. FAM. CODE ANN.
§ 153.009(b) (West 2014). Since the division of property is not related to any of these issues, he
argues, the trial court erred in taking the children’s statements into account in its property division.
Brad does not complain on appeal that there is insufficient evidence to support the trial court’s
division of the parties’ property.
3
Brad bases his contention that the trial court considered the children’s statements on comments the trial court allegedly made during a hearing taking place on December 9, 2015, a transcript of which is attached as part of the appendix to his brief.1 The transcript of the December 9, 2015, hearing is not included in the appellate record before us. The appellate record consists of the clerk’s record and, if necessary, a reporter’s record. TEX. R. APP. P. 34.1. “Attaching documents to briefs as exhibits or appendices does not make them part of the appellate record.” Copeland v. Moreland, No. 06-14-00075-CV, 2015 WL 545679, at *2 (Tex. App.—Texarkana Feb. 10, 2015, no pet.) (mem. op.) (citing Robb v. Horizon Communities Improvement Ass’n, Inc., 417 S.W.3d 585, 589 (Tex. App.—El Paso 2013, no pet.)). An appellate court is required to consider a case solely on the appellate record, and it “cannot consider documents attached to briefs as exhibits or appendices.” Id. (citing Robb, 417 S.W.3d at 589; Cherqui v. Westheimer St. Festival Corp., 116 S.W.3d 337, 342 (Tex. App.—Houston [14th Dist.] 2003, no pet.); Brown v. McGonagill, 940 S.W.2d 178, 179 (Tex. App.—San Antonio 1996, no writ); Perry v. Kroger Stores, Store No. 119, 741 S.W.2d 533, 534 (Tex. App.—Dallas 1987, no writ); Zodiac Corp. v. Gen. Elec. Credit Corp., 566 S.W.2d 341, 347 (Tex. Civ. App.—Tyler 1978, no writ)). Therefore, we do not consider the document attached as an appendix to Brad’s brief. See id.
Brad makes no citations to the appellate record filed in this case that supports his contention that the trial court considered any statements by the parties’ children in its division of the parties’
1We note that the transcript attached to Brad’s appendix recites that the hearing took place on December 9, 2015, but the court reporter’s certification attached to the transcript recites that it was executed on November 12, 2015.
4
property. In his brief, Brad notes that the original trial judge, the Honorable Eric Clifford, resigned in March 2016. However, the Honorable R. Wesley Tidwell signed the final divorce decree. In our review of the record, we find no evidence that Judge Tidwell considered any statements made by the parties’ children to Judge Clifford in making his division of the parties’ property. Therefore, we find that Brad’s sole point of error is without merit, and we overrule the same.

Outcome: For the reasons stated above, we affirm the judgment of the trial court.

Plaintiff's Experts:

Defendant's Experts:

Comments: