author: RICHARD BARAJAS, Chief Justice.

text:
    Trisha UNDERWOOD, Appellant, v. The STATE of Texas, Appellee.
    No. 08-03-00061-CR.
    Court of Appeals of Texas, El Paso.
    Oct. 13, 2005.

      David P. Zavoda, Odessa, for Appellant.
    Tracey Bright, County Attorney, Odessa, for Appellee.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from a jury conviction for the offense of public lewdness. The jury assessed punishment at a twenty dollar fine. On December 4, 2003, this Court entered a judgment reversing Appellant’s conviction. This Court found that the evidence was legally insufficient and rendered a judgment of acquittal. Underwood v. State, No. 08-03-00061-CR, 2003 WL 22870865, at * 1 (Tex.App.-El Paso December 4, 2003) (not designated for publication), reversed, No. 166-04, 2005 WL 77135, at *3 (Tex.Crim.App. November 10, 2004) (not designated for publication). On November 10, 2004, the Court of Criminal Appeals reversed the judgment of this Comb, and remanded the cause for consideration of Appellant’s remaining points on appeal. Underwood v. State, No. 166-04, 2005 WL 77135, at *3 (Tex.Crim.App. November 10, 2004) (not designated for publication).

I. SUMMARY OF THE EVIDENCE

The Court of Criminal Appeals summarized the evidence as follows:

The State alleged that the Appellant committed the offense of public lewdness by “knowingly engaging] in an act of sexual contact by touching the genitals of J. Medrano, with the intent to arouse and gratify the sexual desire of J. Medrano in a public place, to wit: Playmates,” on or about April 11, 2002.
In a trial by jury, the State produced evidence that, on the date alleged, four Odessa police officers went to “Playmates.” It was a place of business that the supervising officer called “an adult cabaret” or “topless bar.” Officer Jordan Medrano testified that he knew “topless dancing” went on there. The Appellant, in her counsel’s words, was “a dancer in a topless bar.”
The officers were men in plain clothes. Each was charged a cover charge of ten dollars when he entered Playmates. They sat at tables, bought and drank alcoholic beverages, watched women dancing on the stage, and gave tips to some of the dancers. Each officer paid for one or more “lap dances” or “table dances,” which are private dances at a table or couch where a customer is sitting. The Appellant was the only dancer who was charged with public lewdness.
Officer Medrano testified that he asked the Appellant for a table dance, and paid her twenty dollars. She took him from his table to a “couch seat,” which was “a large square seat. More of a long chair [than a couch].” The officer testified that “she removed her dress.” No one testified what, if anything, the Appellant wore after she removed her dress, except to say that she was not one of the dancers who “leave their lingerie on” when they remove their dresses to do table dances.
Medrano was clothed during the dance. He testified, “She began her dance in front of me. And she was dancing, at which time she then got between my legs and started rubbing my genitals with her legs.” She touched his “genital area” with her knee and thigh.
The Appellant (in her counsel’s words) “turn[ed] and show[ed] her backside to [Medrano] during the dance.” Medrano said, “She sat in my lap, and ... her buttocks touched my genitals.” Asked on cross-examination, “And did she sit down in your lap?” Medrano answered, “She sat down on my genital area.”
Medrano testified he “was kind of shocked at first” when the Appellant did that to him. When he was asked if his reaction changed into anything else, he said it did not. He wrote in his report that he was “stunned and alarmed” when the Appellant touched his genital area.
Another officer testified that, looking from his table to the couch area in the “fairly dimly lit” establishment, he saw “Officer Medrano seated at-kind of in a chair, seated back like this with his hands out to the side away from his body. And I observed Mrs. Underwood sitting on his lap.” The jury found the Appellant guilty of public lewdness.
Id. at *1-2.

II. DISCUSSION

In Issue No. Two, Appellant asserts that the evidence is factually insufficient to support the conviction. Specifically, Appellant argues that the evidence was factually insufficient to support the conviction in that the State failed to demonstrate that she intended to arouse or gratify the sexual desire of Detective Medrano. In conducting a factual sufficiency review, we view the evidence in a neutral light to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. We set aside the fact finder’s verdict only if (1) the evidence supporting the verdict, when considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; or (2) evidence contrary to the verdict is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App.2004). However, our factual sufficiency review must be appropriately deferential so as to avoid substituting our judgment for that of the fact finder. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App.1996). Accordingly, we are authorized to set aside the jury’s finding of fact only in instances where it is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Id. at 135. If the evidence is factually insufficient, we remand to the trial court for a new trial. Id. at 133-35.

The requisite specific intent to arouse or gratify the sexual desire of a person can be inferred from conduct, remarks or all the surrounding circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex.Crim.App.1981). An oral expression of intent is not required. C.F. v. State, 897 S.W.2d 464, 472 (Tex.App.-El Paso 1995, no pet.). The conduct alone is sufficient to infer intent. Id. In the present case, the conduct occurred in an adult entertainment establishment featuring topless dancers. Appellant performed the dance in question after obtaining a payment of twenty dollars. She then touched the complainant’s genitals with her leg and buttocks. We find that the evidence is factually sufficient to support the conviction. Issue No. Two is overruled.

In Issue No. Three, Appellant maintains that the court erred in overruling her motion for mistrial due to improper jury argument. During the prosecutor’s closing argument at the guilt-innocence stage of trial, the following exchange occurred:

STATE: And if you listened to that officer and judge his demeanor and what he said and compare it to the evidence that was heard — that was propounded by the other witnesses, there is no reason to think that he is lying to you. Why would we be here if there weren’t a crime committed?
DEFENSE: Objection, Your Honor. That invades the province of the jury. It’s improper argument.
COURT: Sustained.
DEFENSE: May the jury be instructed to disregard?
COURT: The jury will be instructed to disregard the last statement.
DEFENSE: I am afraid I am forced to ask for a mistrial, Your Honor.
COURT: Denied.

The four areas of permissible jury argument are (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) response to argument of opposing counsel; and (4) pleas to law enforcement. Long v. State, 823 S.W.2d 259, 267 (Tex.Crim.App.1991), cert. denied, 505 U.S. 1224, 112 S.Ct. 3042, 120 L.Ed.2d 910 (1992). Reversible error results from improper jury argument only where, when examined in light of the entire record, the argument is extreme, manifestly improper, injects new and harmful facts into the case, or violates a mandatory statutory provision. Hernandez v. State, 819 S.W.2d 806, 820 (Tex.Crim.App.1991), cert. denied, 504 U.S. 974, 112 S.Ct. 2944, 119 L.Ed.2d 568 (1992). An instruction to the jury to disregard an improper jury argument is generally sufficient to cure error. Dinkins v. State, 894 S.W.2d 330, 357 (Tex.Crim.App.1995), cert. denied, 516 U.S. 832, 116 S.Ct. 106, 133 L.Ed.2d 59 (1995). Further, any injury from improper jury argument is obviated when the court instructs the jury to disregard, unless the remark is so inflammatory that its prejudicial effect cannot reasonably be removed by such an admonishment. Bower v. State, 769 S.W.2d 887, 907 (Tex.Crim.App.1989), overruled on other grounds, Heitman v. State, 815 S.W.2d 681, 685 n. 6 (Tex.Crim.App.1991); see also Dinkins v. State, 894 S.W.2d 330, 356 (Tex.Crim.App.1995); Jackson v. State, 745 S.W.2d 4, 15 (Tex.Crim.App.1988). Only in the most blatant examples will an instruction to disregard fail to cure any error. Dinkins, 894 S.W.2d at 356.

On appeal, Appellant maintains that the argument was improper because, when the prosecutor asked, “Why would we be here if there weren’t a crime committed?” he was inviting the jury to ignore the presumption that Appellant was innocent until the State had proven her guilty beyond a reasonable doubt. Initially, we note that the objection on appeal does not comport with the objection at trial and, thus, nothing is presented for review. Miller v. State, 566 S.W.2d 614, 619 (Tex.Crim.App.1978); see also Bell v. State, 938 S.W.2d 35, 54-55 (Tex.Crim.App.1996) (en banc) (per curiam); Barley v. State, 906 S.W.2d 27, 37 (Tex.Crim.App.1995) (en banc); Johnson v. State, 803 S.W.2d 272, 292 (Tex.Crim.App.1990) (en banc); Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App.1990) (en banc). Appellant did not present his appellate complaint to the trial court and has forfeited our review. Tex.R.App. P. 33.1(a)(1)(A); see generally Wead v. State, 129 S.W.3d 126, 130 (Tex.Crim.App.2004). Issue No. Three is overruled.

In Issue No. Four, Appellant argues that the court erred by denying Appellant’s objection in the charge to the jury regarding the definition of reasonable doubt. In the court’s charge to the jury at the guilt-innocence stage of trial, the jury was instructed:

All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that a person has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial. The law does not require a defendant to prove his innocence or produce any evidence at all. The presumption of innocence alone is sufficient to acquit the defendant, unless the jurors are satisfied beyond a reasonable doubt of the defendant’s guilt after careful and impartial consideration of all of the evidence in the case.
The prosecution has the burden of proving the defendant guilty, and it must do so by proving each and every element of the offense charged beyond a reasonable doubt, and if it fails to do so, you must acquit the defendant.
It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution’s proof excludes all “reasonable doubt” concerning the defendant’s guilt.

Appellant objected to the last above-quoted paragraph in that it violated the holding of Paulson v. State by giving a definition of reasonable doubt. In Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991), the Texas Court of Criminal Appeals adopted a definitional instruction for “reasonable doubt” and required that the instruction be submitted to the jury in all criminal cases. See Colbert v. State, 108 S.W.3d 316, 318 (Tex.Crim.App.2003). The court subsequently overruled Geesa’s requirement for the trial court to instruct the jury on the definition of reasonable doubt in Paulson v. State, 28 S.W.3d 570, 573 (Tex.Crim.App.2000). The court concluded in Paulson that the Geesa definition was confusing and logically flawed. Paulson, 28 S.W.3d at 573.

With regard to the exact contention Appellant makes on appeal, we have previously held that it is not error for the trial court to submit such an instruction, noting that it is not a definition of “reasonable doubt.” Torres v. State, 116 S.W.3d 208, 212 (Tex.App.-El Paso 2003, no pet.). We overrule Issue No. Four.

In Issue No. Five, Appellant asserts that the court erred by denying his objection to the charge to the jury regarding the definitions of the terms intentionally and knowingly. The court’s charge to the jury at the guilt-innocence stage of trial read:

A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

Appellant objected to the instructions on the ground that public lewdness is a result-oriented offense and the above-quoted instructions should be limited to result of conduct language.

We are unable to find any case law indicating which type of conduct constitutes the offense of public lewdness. However, we find a comparison to the offense of indecency with a child to be instructive. The elements of indecency with a child by sexual contact are set forth in Section 21.11 of the Texas Penal Code:

(a) A person commits an offense if, with a child younger than 17 years and not the person’s spouse, whether the child is of the same or opposite sex, the person:
(1) engages in sexual contact with the child....

Tex. Penal Code Ann. § 21.11(a)(1) (Vernon 2003).

The Penal Code defines sexual contact to mean any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person. Tex. Penal Code Ann. § 21.01(2) (Vernon 2003).

The Texas Penal Code provision proscribing public lewdness reads in relevant part:

(a) A person commits an offense if he knowingly engages in any of the following acts in a public place or, if not in a public place, he is reckless about whether another is present who will be offended or alarmed by his:
(3) act of sexual contact;....

Tex. Penal Code Ann. § 21.07(a)(3) (Vernon 2003).

We find that the two offenses are analogous with regard to determining what type of conduct is involved. There are three “conduct elements” that can be involved in an offense: (1) the nature of the conduct; (2) the result of the conduct; and (3) the circumstances surrounding the conduct. McQueen v. State, 781 S.W.2d 600, 603 (Tex.Crim.App.1989). An offense may contain one or more of these “conduct elements,” which alone or in combination form the overall behavior that the legislature intended to criminalize, and it is those “conduct elements” to which a culpable mental state must apply. Id. A court errs in failing to limit the definitions to the conduct element or elements of the offense to which they apply. See Patrick v. State, 906 S.W.2d 481, 492 (Tex.Crim.App.1995), cert. denied, 517 U.S. 1106, 116 S.Ct. 1323, 134 L.Ed.2d 475 (1996). If an offense is a “result-oriented” offense, the charge should contain statutory definitions of “intentionally” or “knowingly” that are limited to the specific conduct element required for the offense. Skillern v. State, 890 S.W.2d 849, 869 (Tex.App.-Austin 1994, pet. ref’d).

However, this Court has determined that indecency with a child is a “nature of the conduct” offense. Washington v. State, 930 S.W.2d 695, 699 (Tex.App.-El Paso 1996, no pet.); Caballero v. State, 927 S.W.2d 128, 131 (Tex.App.-El Paso 1996, pet. ref’d).

We find that by analogy, the offense of public lewdness is a nature of conduct offense. Appellant’s objection to the charge was erroneous. Even if the definitions should have been restricted to nature of conduct language, it was not error. In Washington, this Court determined that the giving of the full statutory definition as in this instance was not error under the charge as a whole, because the application paragraph correctly required the jury to find that defendant engaged in sexual contact by touching the victim’s penis with the intent to arouse or gratify the defendant’s sexual desire. Accordingly, the jury could not have found the defendant guilty simply because he had a conscious objective or desire to touch the victim’s penis, or on the basis that he intended, some result other than sexual gratification. Washington, 930 S.W.2d at 700. We find the same situation in the present case and we find no error in the jury charge. Issue No. Five is overruled.

Having overruled each of Appellant’s issues on review, we affirm the judgment of the trial court.

      . The application paragraph in the court’s charge to the jury read in pertinent part:
      [D]id then and there, knowingly engage in an act of sexual contact by touching the geni-tais of J. Medrano, with the intent to arouse and gratify the sexual desire of J. Medrano in a public place


source: Caselaw Access Project

license: Public Domain

text:
    Richard ROSS, Appellant, v. NATIONAL CENTER FOR the EMPLOYMENT OF the DISABLED, Assignee of Access Healthsource, Inc., Assignee of O.R. Brooker et al., Appellees.
    No. 08-04-00375-CV.
    Court of Appeals of Texas, El Paso.
    Oct. 20, 2005.
    Rehearing Overruled Nov. 16, 2005.

      John P. Mobbs, El Paso, for Appellant.
    Ken Slavin, Kemp Smith, P.C., El Paso, for Appellees.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

Appellant Richard Ross appeals a denial of a petition for bill of review seeking to set aside a default judgment entered against him in Cause No. 99-1459. On appeal, Appellant raises three issues for review. In Issue No. One, he challenges the service of. process prior to the rendition of the default judgment. In Issue No. Two, he challenges the trial court’s finding that he failed to exercise due diligence to pursue all adequate legal remedies available against the default judgment. In Issue No. Three, he challenges the trial court’s finding that unclean hands precludes him from seeking and obtaining a bill of review. We affirm the judgment of the trial court.

I. PROCEDURAL BACKGROUND

On April 26, 1999, Plaintiffs O.R. Brook-er, W.A. Pitchford, Natalie T. Bornstein, Maria G. Cardenas, Vernoy Walker, Joel Hendryx, Randolph Waldman, Walker Jackson, Kathryn Horn, and Mary Ward brought suit against Defendants Ross, Dr. Richard Standridge, and James Farrelly in County Court at Law Number Seven, El Paso County, Texas. As we summarized in our previous opinion, the original petition alleged specifically, that the Defendants falsely represented how and why the stock merger into Access Healthsource would be beneficial to them and as a result of the Defendants’ misrepresentations the value of their stock went from five million dollars to zero dollars. See Ross v. Access Healthsource, No. 08-03-00096-CV, 2003 WL 22870629, at *1 (Tex.App.-El Paso Dec. 4, 2003, pet. denied).

On October 19, 1999, the trial court granted Appellees’ motion for substitute service of process on Appellant at an address in Scottsdale, Arizona. The Arizona process server’s affidavit on November 1, 1999, states that he attempted to personally serve Appellant at the given address, but had to post and mail the documents served. The description of documents served does not list the citation and the record does not contain a return receipt for certified mail, though the affidavit states the documents were mailed by certified mail. On January 21, 2000, Appellees obtained a default judgment against Appellant in which they were awarded five million dollars in actual damages and five million dollars in exemplary damages plus interest and attorney’s fees. The default judgment recites that Appellant was duly served with process. On February 29, 2000, the trial court severed Appellees’ cause of action against Defendants Dr. Standridge and Mr. Farrelly from its default judgment against Appellant.

In March 2000, Appellees sought enforcement of the Texas default judgment in an Arizona state court. On April 17, 2000, Appellant filed a motion under Ariz. R. Civ. P. 60(c) to vacate the foreign judgment Appellees had filed in Arizona based on insufficient service of process. On August 8, 2000, the Arizona state court found insufficient service of process on Appellant and ordered the foreign judgment filed by Appellees “void and hereby vacated.” On January 7, 2003, Appellant filed a petition for bill of review, challenging the default judgment obtained against him by Appel-lees in January 2000. On January 31, 2003, the trial court ruled that Appellant’s bill of review petition to set aside the January 2000 default judgment was denied. Appellant timely appealed the trial court’s judgment.

In this Court’s opinion in Ross, 2003 WL 22870629, at *5, we held that a genuine fact issue existed as to whether Appellant had shown good cause for failing to exhaust his legal remedies and reversed and remanded the trial court’s granting of summary judgment denying the bill of review for further proceedings. On October 8, 2004, the trial court held a bench trial wherein the trial judge found that Appellant did not come into the court with clean hands and failed to diligently pursue all available avenues. On November 29, 2004, the trial judge signed the judgment denying Appellant’s petition for bill of review seeking to set aside the default judgment granted against him and signed on January 21, 2000. Appellant now timely appeals the trial court’s judgment.

II. DISCUSSION

In Issue No. One, Appellant asserts that because it is undisputed that he was not served with process before the default judgment was entered against him, he is not required to prove the usual bill of review elements; rather, he contends that the bill of review elements ai’e satisfied as a matter of law, thus making him entitled to have the default judgment set aside.

A bill of review petitioner must ordinarily plead and prove the following: (1) a meritorious claim or defense; (2) that he was prevented from making by the fraud, accident or wrongful act of his opponent; (3) unmixed with any fault or negligence of his own. Ortega v. First RepublicBank Fort Worth, N.A., 792 S.W.2d 452, 453 (Tex.1990). Courts have relaxed these requirements when the party petitioning for the bill of review seeks to set aside a default judgment on the basis he was not served with process. Winrock Houston Assocs. Ltd. P’ship v. Bergstrom, 879 S.W.2d 144, 149 (Tex.App.-Houston [14th Dist.] 1994, no writ). In such cases, the petitioner need not prove fraud, accident or a wrongful act of the opposite party. Id. (citing Texas Indus., Inc. v. Sanchez, 525 S.W.2d 870, 871 (Tex.1975)). He also does not have to prove a meritorious defense. Id. (citing Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86-87, 108 S.Ct. 896, 899-900, 99 L.Ed.2d 75 (1988); Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex.1988)).

The petitioner must, however, demonstrate he was free from fault or negligence in letting the judgment be taken, a requirement which encompasses an absence of negligence in allowing the trial court to render the default judgment against him. See id. A party’s failure to make reasonable inquiries regarding his pending litigation is failure to exercise diligence, and without the showing of such diligence, a bill of review will fail since the appellant will not be able to prove his non-negligence in allowing the judgment against him to be rendered and to become final. See Melton v. Ryander, 727 S.W.2d 299, 302 (Tex.App.-Dallas 1987, writ ref’d n.r.e.).

We find Appellant’s first issue is without merit. Appellant cites to this Court’s previous opinion to support his contention that the failure to properly serve him relieves him from proving the usual bill of review elements. See Ross, 2003 WL 22870629, at *3. However, our previous opinion does not absolve Appellant from showing an exercise of due diligence. It is undisputed that Appellant had knowledge of the lawsuit being filed and that it was pending for nine months before the default judgment was granted against him. From the date he discovered the lawsuit, June 25, 1999, to the date the default judgment was entered, January 21, 2000, Appellant was aware of the pending litigation. It is also undisputed that Appellant learned of the default judgment on April 12, 2000. Appellant was not prevented from filing a timely motion for new trial or appeal because of the improper service. Appellant was aware of the default judgment within the time available for filing a motion for new trial or pursuing an appeal. We overrule Issue No. One.

In Issue No. Two, Appellant argues that the evidence demonstrated that he exercised due diligence as a matter of law, and therefore, it was error to find that he did not exercise due diligence and deny his petition for bill of review. Appellant contends that he reasonably relied on his attorney, Mr. Klausner, and that Mr. Klaus-ner’s actions were a reasonable strategic decision, one which a reasonable lawyer could have also reached. Access Health-source on the other hand, maintains that Appellant’s and Mr. Klausner’s failure to “even attempt to investigate the legal remedies available in Texas against the Texas Default Judgment is overwhelming evidence that Ross failed to meet his due diligence requirement to pursue all available legal remedies against the default judgment before an equitable bill of review is available.”

In reviewing the grant or denial of a bill of review, we indulge every presumption in favor of the trial court’s ruling and will not disturb the ruling unless there is an affirmative showing of an abuse of judicial discretion. See Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (citing Interaction, Inc./State v. State/Interaction, Inc., 17 S.W.3d 775, 778 (Tex.App.-Austin 2000, pet. denied)). We may reverse the trial court for abusing its discretion only if it has acted in an unreasonable or arbitrary manner, or without reference to any guiding rules and principles. Id. (citing Beaumont Bank, N.A. v. Butter, 806 S.W.2d 223, 226 (Tex.1991)). We may not reverse for abuse of discretion merely because we disagree with a decision by the trial court, if that decision was within the trial court’s discretionary authority. Id. (citing Beaumont Bank, 806 S.W.2d at 226).

A bill of review is an independent equitable action brought by a party to a former action who seeks to set aside a judgment that is no longer appealable or subject to challenge by a motion for new trial. Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex.1979); Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 926-27 (Tex.1999) (per curiam). According finality to judgments is of fundamental importance. Montgomery v. Kennedy, 669 S.W.2d 309, 312 (Tex.1984). Therefore, a court scrutinizes bills of review seeking relief from final judgments with “extreme jealousy, and the grounds on which interference will be allowed are narrow and restricted.” Id.; Brooks v. Assocs. Fin. Servs. Corp., 892 S.W.2d 91, 92 (Tex.App.-Houston [14th Dist.] 1994, no writ). A bill of review is designed to prevent manifest injustice, but that fact that an injustice occurred is not sufficient cause to justify relief by bill of review. See Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998 (1950). A party who fails to timely avail itself of available legal remedies is not entitled to relief by bill of review. See Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex.1998). If legal remedies were available but ignored, relief by equitable bill of review is not available. Wembley, 11 S.W.3d at 927. This applies even if the failure results from the negligence or mistake of a party’s agent or a party’s attorney. See Lawrence v. Lawrence, 911 S.W.2d 443, 448 (Tex.App.-Texarkana 1995, writ denied) (citing Brownson v. Reynolds, 77 Tex. 254, 13 S.W. 986, 987 (1890)); Gracey v. West, 422 S.W.2d 913, 916 (Tex.1968); Thompson v. Henderson, 45 S.W.3d 283, 288 (Tex.App.-Dallas 2001, pet. denied).

As stated above, under these particular facts, Appellant needed to prove that he acted with due diligence in responding to the default judgment granted against him. See Wembley, 11 S.W.3d at 927. In order to be entitled to a bill of review, Appellant must show a good excuse for failure to exhaust adequate legal remedies. If legal remedies were available but ignored, the equitable remedy of a bill of review will not later intervene. Id. (citing Caldwell, 975 S.W.2d at 537).

In this case, Appellant’s failure to file a motion for new trial or regular appeal is fatal to his bill of review. Appellant directs this Court’s attention to the actions of his attorney, Mr. Klausner to establish due diligence. When Appellant discovered the default judgment entered against him, he immediately contacted Mr. Klausner and relied that Mr. Klausner would do whatever necessary to respond to the default judgment. We therefore focus on Mr. Klausner’s actions.

Mr. Klausner was admitted to practice in Arizona since 1975, where he practices primarily commercial litigation and appellate law. It is undisputed that he discovered the default judgment entered against Appellant on April 12, 2000. Prior to this date, he had not received any notice of the default judgment. Aceoi’ding to his testimony, he had represented five other clients where default judgments were entered against them. However, Appellant’s was the first case where he was attacking a Texas default judgment in Texas. In response to Appellant’s case, he testified that he filed a motion under Ariz. R. Civ. P. 60 to vacate the foreign judgment Ap-pellees had filed in Arizona based on insufficient service of process. The Arizona state court vacated the foreign judgment on grounds of insufficient service of process. At this point, he did not feel it was appropriate to take any other action in Texas in response to the default judgment. The Arizona judgment was the only reason he did not attack the default judgment in Texas.

When asked why after he discovered the default judgment, he did not file a motion for new trial by the May 14, 2000 deadline in Texas, he testified that he never even considered attacking the default judgment in Texas. He did not research Texas law on this subject and did not contact any Texas lawyer for advice on how to handle the situation. Even after knowing the options he could have pursued in Texas, Mr. Klausner stated that he would have not advised, someone to take any action because he believed the best thing was to move in Arizona to vacate the foreign judgment. He never advised Mr. Ross to talk to a licensed Texas attorney because he felt that this was a federal question and not a Texas law question. Prior to October 27, 2000, he did not advise Appellant to seek advice of a Texas lawyer on the default judgment issue even though they had available counsel in Texas.

When asked whether he knew that Texas cases clearly hold that the trial court in Arizona cannot void a Texas trial court’s judgment, he testified that he was not aware of such a case and that this would be contrary to Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945). With respect to this line of argument, in Ross v. Access Healthsource, No. 08-03-00079-CV, 2003 WL 22870451, at *4 (Tex.App.-El Paso Dec. 4, 2003, pet. denied) (not designated for publication), Appellant raised this similar issue. We stated the following:

[W]e reject Mr. Ross’ contention that the Arizona state court order vacating the foreign judgment in Arizona has the effect of voiding the Texas default judgment for enforcement purposes in Texas.

See Ross, 2003 WL 22870451, at *4. In addition, another reason given for not pursuing a remedy in Texas was because it was more economical in Arizona.

Appellant and his attorney’s neglect of the matter simply cannot constitute “due diligence.” See Thompson v. Henderson, 45 S.W.3d 283, 289 (Tex.App.-Dallas 2001, pet. denied). We do not have a situation here where Appellant’s failure to obtain a ruling on its motion for new trial resulted from the accidents or wrongful acts of others and not from lack of due diligence. Here, Appellant offers no adequate explanation for his attorney’s failure to pursue an appeal. A client is bound by the act of his attorney, and attorney negligence is not a sufficient ground to support a bill of review. Nguyen, 93 S.W.3d at 295. Considering the evidence in the light most favorable to the trial court’s findings, we conclude that the evidence supported the trial court’s finding that Appellant failed to exercise due diligence in pursuing all adequate legal remedies available against the default judgment. Issue No. Two is overruled in its entirety.

In Issue No. Three, Appellant contends that the default judgment cannot be sustained based on a finding of unclean hands. Appellant argues that a judgment debtor should not be held bound to a judgment rendered without service of process based on an equitable “unclean hands” argument.

A party seeking an equitable remedy must come to court with clean hands. Flores v. Flores, 116 S.W.3d 870, 876 (Tex.App.-Corpus Christi 2003, no pet.) (citing In re Gamble, 71 S.W.3d 313, 325 (Tex.2002) (Baker J., concurring); Truly v. Austin, 744 S.W.2d 934, 938 (Tex.1988); Omohundro v. Matthews, 161 Tex. 367, 381, 341 S.W.2d 401, 410 (Tex.1960)). Whether a party has come to court with clean hands is a matter of the sound discretion of the court. Flores, 116 S.W.3d at 876 (citing Thomas v. McNair, 882 S.W.2d 870, 880 (Tex.App.-Corpus Christi 1994, no writ)).

Appellant was not present at the hearing on the petition for bill of review, although he had been subpoenaed. Instead, Appellant filed a motion for protective order which was denied. Appellant has been held in contempt in at least two prior occasions in matters dealing with the underlying lawsuit. Appellant was additionally sanctioned for failing to answer post-judgment interrogatories and requests for production, and despite the sanctions, he continues to refuse to comply with the discovery requests. Texas supports full and open discovery. Tilton v. Moye, 869 S.W.2d 955, 956 (Tex.1994). The purpose of discovery is to seek the truth so that disputes may be decided by what the facts reveal and not by what facts are concealed. Jampole v. Touchy, 673 S.W.2d 569, 573 (Tex.1984), overruled in part on other grounds by Walker v. Packer, 827 S.W.2d 833, 842 (Tex.1992).

After reviewing the evidence, we find no abuse of discretion in the trial court’s finding of Appellant’s unclean hands and that this prevented him from seeking or obtaining equitable bill of review relief. Issue No. Three is overruled.

Having overruled each of Appellant’s issues on review, we affirm the judgment of the trial court.

      . In his brief, Appellant cites to the following paragraph:
      Where the petitioner was not served with process, he need not prove he had a meritorious defense, is not required to show he was prevented from presenting such a defense by fraud, accident, or wrongful act of his opponent, and his own want of fault or negligence is established. See Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86, 108 S.Ct. 896, 900, 99 L.Ed.2d 75 (1988)(consti-tutional due process relieves petitioner from proving meritorious defense where no service); Texas Indus., Inc. v. Sanchez, 525 S.W.2d 870, 871 (Tex.1975) (proof of not having been served with citation obviates proving that petitioner was prevented from making defense by fraud, accident, or wrongful act of the opposite party); Caldwell, 975 S.W.2d at 537 (if no service, want of fault or negligence is established).

        See Ross, 2003 WL 22870629, at *3.

      . Appellant also asserts that it would be unconstitutional to apply, the doctrine of "unclean hands” in this circumstance. Appellant contends that the entry of a default judgment against him without service of process on him violated his rights of due process. We agree with Access Healthsource that Appellant’s argument is simply a variation of Appellant’s argument of the "void” judgment. Having addressed this issue in Ross, 2003 WL 22870451, at *4, we do not revisit the issue in this opinion.


text:
    Hector P. GONZALEZ and All Other Occupants of 9866 Staubach Drive, El Paso, TX 79927, Appellants, v. CHASE MANHATTAN MORTGAGE CORPORATION, Appellee.
    No. 08-05-00191-CV.
    Court of Appeals of Texas, El Paso.
    Oct. 20, 2005.
    William A. Elias, El Paso, for Appellants.
    Corey Haugland, James, Goldman & Haugland, P.C., El Paso, for Appellee.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

Pending before the Court on its own initiative is the dismissal of this appeal for want of prosecution. See Tex.R.App.P. 42.3(b). This Court possesses the authority to dismiss an appeal for want of prosecution when an appellant in a civil case fails to timely file its brief and gives no reasonable explanation for such failure. See Tex.R.App.P. 38.8(a)(1).

On May 12, 2005, Appellants timely filed a notice of appeal in this cause. As of this date, no Appellants’ brief nor motion for extension of time has been filed with the Court. On August 22, 2005, this Court’s clerk sent a letter to the parties indicating the Court’s intent to dismiss the case for want of prosecution absent a response from any party within ten days to show grounds for continuing the appeal. No response has been received as of this date. Accordingly, pursuant to Tex.R.App.P. 42.3(b) and (c), we dismiss the appeal for want of prosecution.

CHEW, J., not participating.


author: Justice CARTER.

text:
    In the Matter of the MARRIAGE OF Susan McFARLAND and Stephen McFarland and in the Interest of Austin McFarland, Nicholas McFarland, and Connor McFarland, Children.
    No. 06-04-00126-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Sept. 13, 2005.
    Decided Oct. 25, 2005.

      Alex Tyra, Law Office of Alex Tyra, Longview, for appellant.
    Melissa A. Charles, Longview, for appel-lee.

      Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice CARTER.

On September 24, 2004, the trial court entered a final decree of divorce, ending the nearly seventeen-year marriage of Stephen and Susan McFarland. Stephen now appeals the trial court’s judgment, contending the trial court erred (1) by awarding spousal maintenance to Susan, and (2) by awarding Susan a disproportionate share of the marital estate. We affirm the judgment of the trial court.

I. The Trial Court’s Findings of Fact and Conclusions of Law

Often, the parties to a divorce will submit the issue of how to divide the marital estate to the trial court. When that occurs in lieu of a jury trial, and when the trial court issues written findings of fact and conclusions of law, we accord such findings and conclusions the same dignity as should be given a jury’s verdict. See Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991). Such was the case here. Consequently, while we must review the sufficiency of the evidence using the usual standard of review as a consequence of resolving Stephen’s claims that the trial court abused its discretion, see Pickens, 62 S.W.3d at 214, “we may not interfere with the fact finder’s resolution of conflicts in the evidence,” see Sabine Towing & Transp. Co. v. Holliday Ins. Agency, Inc., 54 S.W.3d 57, 59 (Tex.App.-Texarkana 2001, pet. denied).

A. Findings of Fact

The trial court’s findings of fact that are relevant to the issues presented on appeal are:

12. Susan McFarland had primarily worked in the home as a homemaker. She had no vocational training. She had not worked outside the home until February of 2004 after the divorce was filed.
13. While the divorce was pending, Susan McFarland had worked making $7.00 per hour cleaning a friend’s office and answering the phone. She had also worked at several temporary jobs making a maximum of $9.00 per hour.
14. Susan’s estimated net monthly income from employment at the time of the divorce was approximately $1200.00 per month; together with estimated child support of $1400.00 from Steve McFarland, her total net monthly income was $2600.00 per month. Her estimated monthly expenses for maintaining the residence, daycare, food, transportation, and miscellaneous items exceeded $4300.00.
15. If Susan McFarland returned to school on a full-time basis, it would be unlikely that she could continue working a full-time job given the young ages of her three children.
16. Susan McFarland’s earnings capacity and employment skills required training or education in order for her to become self-supporting.
17. The marital residence ... was recently appraised at $178,000.00 and the mortgage payoff was approximately $148,000.00. The net equity in the residence is approximately $35,000.00. In the event the house is sold, the closing costs and real estate commissions would cost an additional 10% of the market value of the residence and the net equity realized from the sale would be approximately $17,200.00.
18. The parties agreed that Stephen McFarland’s pension maintained by Fidelity Investments was worth approximately $245,952.
20. The Fort Worth Credit Union account in Stephen McFarland’s name had a balance of $2785.00 immediately prior to the divorce.
21. The Fort Worth Credit Union account in Susan McFarland’s name had a balance of $45.36 immediately prior to the divorce.
25. The net value of the community estate (total community property assets — total community liabilities) at the time of the divorce, not including the sums borrowed from family members!,] was $267,032.40. If the residence was immediately sold, the net value of the community estate would be approximately $17,800 less, approximately $249,232.40.
26. Stephen McFarland was awarded [among other things, his Fort Worth Credit Union account and one-half of the Fidelity pension plan].
27. Stephen McFarland was awarded [the balance to Citibank AA, all debts incurred in his name since January 1, 2004, including the debt for the vehicle he was awarded, the balance of two loans borrowed by the community estate from Stephen’s family members, a loan for money from the Fort Worth Credit Union that Stephen used to pay off his credit card debt, and $1,318.84 for various medical bills].
28. Susan McFarland was awarded [among other things, the marital residence, her Fort Worth Credit Union account and one-half of the Fidelity pension plan],
29. Susan McFarland was awarded [debts incurred in her name since January 1, 2004, the debt for the marital residence, her credit card debts, the debt owed to Blockbuster, the balance of a loan borrowed by the community estate from Susan’s family members, $512.00 payable to Stephen for one month’s vehicle rental, and $389.20 for various medical bills].
30. The total net value of community assets and community liabilities awarded to Susan McFarland was $147,855.50, which was 55% of the net value of the total estate. If she immediately sells the residence, the net value would be approximately $17,800 less considering the 10% in commissions and closing costs for the sale. Then the net value of the estate to Susan McFarland would be approximately $130,055.50, which would be 52% of the net value of the total estate.
31. The total net value of community assets and community liabilities awarded to Stephen McFarland was $119,177, which was 45% of the net value of the total estate.

The trial court’s findings regarding Susan’s earning capacity and her living expenses were supported by her testimony. She testified that she had been a homemaker for most of the marriage, had allowed her manicurist’s license to expire several years ago, and had only recently been able to find employment (from which she earned between $7.00 and $9.00 per hour because of her limited education, training, experience, and lack of professional licensure). She also testified that her expenses exceed her income by $1,700.00 each month. She testified Stephen had a pension plan currently worth $245,000.00. Finally, Susan submitted evidence regarding the appraised value of the marital residence, the amount of equity the couple had in the home, and the balance owed on the mortgage.

The trial court’s findings regarding Stephen’s earning capacity were supported by Stephen’s own testimony that he earns a base salary of $77,000.00 per year as a pharmaceutical sales representative and that he receives periodic bonuses (suggesting his projected income would be in excess of $80,000.00). During cross-examination by both Susan’s attorney and by the children’s attorney ad litem, Stephen was forced to admit he had earlier defied a court order prohibiting him from enrolling the children in a private school without first seeking Susan’s approval.

Based on the evidence before the trial court, we cannot say the evidence is legally insufficient to support the trial court’s findings of fact.

B. Conclusions of Law

For purposes of this appeal, the relevant conclusions of law entered by the trial court are:

8. Stephen McFarland was ordered to pay spousal maintenance to Susan McFarland for a period of three years— $1,200.00 per month for the first two years and then dropping to $800 per month in the third year. This spousal maintenance award was based upon the following factors:
• Susan McFarland had primarily been a homemaker during the parties’ 17 year marriage.
• Stephen McFarland had a much higher earnings capacity of $87,000 plus per year based upon his estimated salary and bonuses as a pharmaceutical representative.
• If Susan McFarland and the children moved to Arlington, Texas, with the financial assistance and housing provided by family members, her monthly living expenses would be considerably less and she would have the ability to meet her family’s monthly living expenses solely on the anticipated child support from Stephen McFarland.
• Although it was Susan McFarland’s desire to relocate to Arlington, Texas with the children, she and the children were geographically restricted to Gregg County, Texas in order for Stephen McFarland to visit with the children on a week-to-week rotational basis.
• During the eight months that the divorce was pending, Susan had not been able to support herself with her limited income and child support from Stephen McFarland. Her extended family in Arlington, Texas had provided extensive financial support to her during the pendency of the divorce in order for her to meet her monthly financial obligations.
• Susan McFarland had exercised due diligence in attempting during the pendency of the divorce to obtain suitable employment.
• Susan McFarland had a limited earnings capacity of only $7 to $9 per hour.
• The financial resources available to Susan McFarland at the time of the divorce were not sufficiently liquid to enable her to meet her minimum reasonable monthly needs.
• Susan McFarland needs re-training or education in order to develop the necessary skills to become self-supporting.
• The property awarded to Susan McFarland was not immediately liquid to assist with meeting her monthly financial expenses.

13. The division of the assets and debts between the parties was fair, just, and equitable having due regard for Susan McFarland, Stephen McFarland and their three young sons, based upon the following factors:

• The disparity of earnings power between Stephen McFarland’s wages as a pharmaceutical representative, and Susan McFarland’s ability to earn only $7.00 to $9.00 per hour;
• The ability of Susan McFarland to support herself compared to Stephen McFarland’s ability to support himself;
• The ages of the children and the need for the children to maintain a continuity of lifestyles between each household; and
• The education and work history of Susan McFarland compared to Stephen McFarland’s education and work history.

We now turn to the issues presented while simultaneously considering whether the trial court correctly drew these legal conclusions from the facts in evidence. See Pickens, 62 S.W.3d at 214.

II. The Award of Spousal Maintenance

Stephen first contends the trial court erred by awarding spousal maintenance to Susan. The final decree of divorce orders Stephen to pay spousal maintenance in the amount of $1,200.00 per month for twenty-four months, followed by a one-year period in which he was required to pay $800.00 each month. Stephen asserts the trial court erred in awarding spousal maintenance because (A) the record does not show Susan requested spousal maintenance, and (B) the trial court failed to recognize Susan received sufficient assets from the division of the marital estate, the sale of which (Stephen contends) would suffice to provide for Susan’s immediate financial needs.

A. Had Susan Requested Spousal Maintenance?

In the amended petition for divorce, Susan asked the trial court “to order that Petitioner [Susan] be paid postdivorce maintenance for a reasonable period in accordance with chapter 8 of the Texas Family Code.” Moreover, before receiving evidence and argument on the division of the marital estate, the trial court questioned the parties about what issues remained to be resolved at the bench trial. During that period, the following exchange occurred:

THE COURT: I’m just trying to find out what is at issue.
[Stephen’s counsel]: Sure.
THE COURT: They’re still fighting over the Bank of America debt?
[Stephen’s counsel]: Yes.
THE COURT: And unpaid medical bills?
[Stephen’s counsel]: Yes.
THE COURT: And alimony for her?
[Stephen’s counsel]: Right.
THE COURT: Okay. What else?

(Emphasis added.)

First, we assume the trial court was referring to spousal maintenance when the court referred to an award of “alimony.” “Spousal maintenance” awards are permitted. Tex. Fam.Code Ann. § 8.051 (Vernon Supp.2004-2005).

Next, our review of the record makes it clear that Susan’s pleadings requested an award of “spousal maintenance” and that Stephen knew of this possibility before the hearing. Stephen’s claim to the contrary is not supported by the record. We now turn to the issue of whether the trial court erred by awarding spousal maintenance given the facts of this case.

B. Did the Trial Court Err By Awarding Spousal Maintenance?

There is a general presumption that spousal maintenance is not warranted “unless the spouse seeking maintenance has exercised diligence in: (1) seeking suitable employment; or (2) developing the necessary skills to become self-supporting during a period of separation and during the time the suit for dissolution of the marriage is pending.” Tex. Fam.Code Ann. § 8.053 (Vernon Supp.2004-2005). A trial court’s award of spousal maintenance will not be reversed unless it is shown that the trial court abused its discretion in making such an award. Pickens, 62 S.W.3d at 214; In re Marriage of Hale, 975 S.W.2d 694, 697 (Tex.App.-Texarkana 1998, no pet.); DuBois v. DuBois, 956 S.W.2d 607, 612 (Tex.App.-Tyler 1997, no pet.). A trial court abuses its discretion when it acts without reference to guiding principles or supporting evidence, or when its decision is arbitrary or unreasonable. In re Marriage of Jeffries, 144 S.W.3d 636, 638 (Tex.App.-Texarkana 2004, no pet.). “However, the trial court does not abuse its discretion if there is some evidence of a substantive and probative character to support the decision or if reasonable minds could differ as to the result.” Smith v. Smith, 115 S.W.3d 303, 305 (Tex.App.-Corpus Christi 2003, no pet.). As part of our inquiry into determining whether the trial court abused its discretion by awarding spousal maintenance, we must necessarily consider whether the evidence supporting that decision by the trial court is supported by factually and legally sufficient evidence. Hole, 975 S.W.2d at 697; see also In re Marriage of Lendman, 170 S.W.3d 894, 898 (Tex.App.-Texarkana 2005, no pet. h.).

Article 8.051 of the Texas Family Code permits a trial court to award spousal maintenance if:

(2) the duration of the marriage was 10 years or longer, the spouse seeking maintenance lacks sufficient property, including property distributed to the spouse under this code, to provide for the spouse’s minimum reasonable needs, as limited by Section 8.054, and the spouse seeking maintenance:
(A) is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability;
(B) is the custodian of a child who requires substantial care and personal supervision because a physical or mental disability makes it necessary, taking into consideration the needs of the child, that the spouse not be employed outside the home; or
(C) clearly lacks earning ability in the labor market adequate to provide support for the spouse’s minimum reasonable needs, as limited by Section 8.054.

Tex. Fam.Code Ann. § 8.051.

In this case, both Susan and Stephen testified they had been married longer than ten years. The trial court received evidence, without objection from Stephen, that Susan’s monthly income and expenses were (without including her credit card bills and making an adjustment for the agreed level of child support) as follows:

INCOME
Wages $1,200.00
Child Support $1,566.54
Net Monthly Income: $2,766.54
Total Expenses: $4,298.20
Less Net Income - $2,766.54
= Monthly Shortfall = $1,531.66

During the marriage, Susan kept the couple’s home and tended to their three children, ages three, six, and nine at the time of the divorce. Susan testified that her manicurist’s license had expired several years ago, and the only jobs she was able to secure during the pendency of the divorce paid between $7.00 and $9.00 an hour, each position being only temporary. As of the final hearing on the divorce, Susan had not yet been able to secure permanent, higher-paying employment. Susan also lacked any post-secondary education or vocational training that would enable her to secure better employment, but she did plan to pursue post-secondary education once the divorce became final. Stephen, on the other hand, expected to earn over $80,000.00 from his job as a pharmaceutical sales representative.

In the case now on appeal, the trial court awarded the marital residence to Susan. The couple had approximately $35,000.00 in equity in the home; $143,000.00 was still owed on the mortgage — a significant monthly expense. The remaining significant asset, a retirement fund, was divided evenly. The approximate value of the fund at the time of the divorce was $245,000.00. While one-half of that fund would be a significant amount, the trial court could reasonably assume Susan would not have access to the full $122,500.00, absent severe tax consequences, until she reaches retirement. See 26 U.S.C.A. § 408(d)(6) (West Supp.2005). This is because the federal government will treat the $122,500.00 as being now a separate retirement account for Susan. See id.

If Susan withdrew any of those funds before retirement, she would owe a significant amount in federal taxes. See 26 U.S.C.A. § 408(d)(1) (West Supp.2005). It is likely Susan would be left with less than $100,000.00 after taxes, from which she would have to pay the mortgage, buy a vehicle, pay for her college tuition and expenses, and pay the remainder of her living expenses for the period during which she was enrolled in college.

The purpose of spousal maintenance is to provide temporary and rehabilitative support 'for a spouse whose ability for self support has deteriorated over time while engaged in homemaking activities and whose capital assets are insufficient to provide support. O’Carolan v. Hopper, 71 S.W.3d 529, 533 (Tex.App.-Austin 2002, no pet.) (citing Act of May 26, 1995, 74th Leg., R.S., ch. 655, § 10.01(a), 1995 Tex. Gen. Laws 3543, 3577). Other courts, in considering if a spouse is eligible for spousal maintenance, have upheld the award in situations where the spouse receiving the maintenance obtained substantial property in the divorce proceeding when those capital assets provided insufficient support.

In Deltuva v. Deltuva, 113 S.W.3d 882, 888-89 (Tex.App.-Dallas 2003, no pet.), the Fifth Court of Appeals reversed a trial court’s award of spousal maintenance because the award’s duration was longer than three years, but otherwise approved the general decision to award spousal maintenance. The court noted the wife was awarded “the majority of the marital estate,” id. at 888, but found there was evidence in the record to support the conclusion that the recipient spouse’s living expenses would significantly exceed her income (even after exhaustion of her savings).

In Lopez v. Lopez, 55 S.W.3d 194 (Tex.App.-Corpus Christi 2001, no pet.), the husband contended the trial court erred by awarding spousal maintenance to the wife because the latter received sufficient property from the division of the marital estate from which she could provide for her reasonable minimum needs. Ms. Lopez received a home appraised at $59,262.00, a vehicle valued at $7,014.00, the proceeds of the sale of a home in the amount of $33,678.00, and a one-half interest in a Thrift Savings Plan worth $20,778.00. The Thirteenth Court held there was sufficient evidence in the record about the wife’s “de minimus ” education, a physical disability that prevented her from working full time, and her inability to use the property garnered through the divorce settlement to provide for her minimum needs. Id. at 199.

In Amos v. Amos, 79 S.W.3d 747 (Tex.App.-Corpus Christi 2002, no pet.), the trial court had found that, because of the kind and character of the assets — and as a result of the tax-deferred community property requiring the payment of heavy penalties, interest, and taxes associated with the withdrawal and use of the funds — that the property awarded to the wife was not sufficient to allow her to meet her reasonable needs. Id. at 748-50.

In Trueheart v. Trueheart, No. 14-02-01256-CV, 2003 WL 22176626, 2003 Tex.App. LEXIS 8154 (Tex.App.-Houston [14th Dist.] Sept. 23, 2003, no pet.) (mem. op.) (not designated for publication), $290,000.00 of community property was awarded to the wife. The court of appeals noted that almost one-half of that consisted of life insurance policies, I.R.A. accounts, and other assets that could not be easily liquidated without significant penalties. The court affirmed an award of spousal maintenance.

In Alaghehband v. Abolbaghaei, No. 03-02-00445-CV, 2003 WL 1986777, at *1, 2003 Tex.App. LEXIS 3701, at *7 (Tex.App.-Austin May 1, 2003, no pet.) (mem. op.) (not designated for publication), the wife was awarded about $118,000.00 in community assets. The appellate court noted that several of the assets were retirement accounts and that the tax consequences and long-term financial consequences of early withdrawal would render the liquidity of the assets problematic. Id. at *13 n. 1. The court then stated the spouse would exhaust the liquid assets she was awarded (approximately $85,000.00) within two years. Id. at *13.

Our reading of the cases that have examined the issue of eligibility for spousal maintenance leads us to conclude the trial court in the instant case did not abuse its discretion in awarding spousal maintenance. The primary asset awarded to Susan is the retirement account, which is subject to significant taxes for early withdrawal. Similar amounts of tax-deferred retirement funds have been considered by several courts to lack liquidity due to the substantial monetary disincentives for withdrawal. Here, the trial court found the property awarded to Susan was not sufficiently liquid to enable her to meet her minimum needs. To generate any immediately accessible income from this fund would impose the significant early withdrawal tax consequences discussed previously. While retirement benefits must be considered in determining eligibility for spousal maintenance, we cannot say, based on the facts of this case, that the trial court abused its discretion in finding the retirement account involved did not bar Susan from maintenance since her available capital assets appear to be insufficient to provide adequate support. Likewise, the home is not a readily liquid asset and is incapable of producing current income. Susan meets all other statutory eligibility requirements for spousal maintenance (more than a ten-year marriage, clearly lacks ability in the labor market to provide for her minimum reasonable needs). Therefore, the trial court did not abuse its discretion in granting spousal maintenance.

III. Division of the Marital Estate

In his second point of error, Stephen complains that the trial court’s division of the marital estate did not result in a “just and right” division of the couple’s assets and liabilities. He first complains that Susan should not have been awarded the entire value of the couple’s home because the parties had allegedly agreed before trial to sell the marital residence. The only significant difference between Stephen’s share of the estate and Susan’s share was the award of the home to Susan. Stephen does not specifically complain about the trial court’s division of any of the couple’s remaining assets or debts.

In this case, a number of reasons support the trial court’s division. First, if a trial court finds that the terms of an agreement between the parties to a divorce is not “just and right,” the trial court is not bound to accept the parties’ agreement. Tex. Fam.Code Ann. § 7.006 (Vernon 1998). Nor is the trial court required to divide the marital estate into equal shares. Murff v. Murff, 615 S.W.2d 696, 698-99 (Tex.1981); Tate v. Tate, 55 S.W.3d 1, 10 (Tex.App.-El Paso 2000, no pet.). A trial court may consider a number of factors, including the disparity of income earning potential, in dividing the marital estate. Murff, 615 S.W.2d at 698-99. Thus, contrary to Stephen’s position on appeal, the trial court was not required to order the house be sold and its proceeds divided among the parties.

Second, the record reflects that, while the parties had seemingly agreed to sell the residence, they left to the trial court the decision of how to divide the proceeds from the sale of that house. In this case, the trial court’s decision effectively awarded the entire proceeds from any home sale to Susan. The trial court wrote in its findings of fact that Susan’s sale of the marital residence would likely garner her about $17,000.00. Stephen has not challenged this finding on appeal, nor can we conclude that such a finding is unsupported by the record. We will, therefore, defer to that finding under the appropriate appellate standard. See Anderson, 806 S.W.2d at 794. Thus, the trial court’s decision to award the marital residence to Susan resulted in her receiving assets worth approximately $17,000.00 more than Stephen received. The trial court’s findings of fact and conclusions of law noted that, if Susan immediately sold the house, her share of the marital estate would have been approximately fifty-two percent, while Stephen would receive the remaining forty-eight percent. This very small difference of four percent is the result of awarding Susan only one more asset than was given to Stephen (in an otherwise fifty-fifty split of the community property), and we also note that this asset is saddled with a $143,000.00 mortgage.

Third, the trial court appointed both parents as joint managing conservators of the children. Under the trial court’s custody order, the couple’s children will spend alternate one-week periods with each parent throughout the year, excluding specific holidays. Susan had asked to be allowed to move with the children to the Dallas area; Susan’s plan was to enlist the aid of her relatives in caring for the children while she furthered her education. Stephen, however, wanted Susan to be required to remain with the children in Gregg County. The trial court ultimately sided with Stephen on this issue, but the trial court could also have been acting within its discretion by deciding that the price of granting Stephen’s residency requirement request would be to award the entirety of the marital residence to Susan.

Fourth, Stephen had admitted violating an earlier order -by the trial court that prohibited him from enrolling the children in private school without Susan’s agreement. If the trial court’s decision to not award the home (or a portion of its sale proceeds) to Stephen was influenced by Stephen’s admitted violation of that court’s pretrial orders, we cannot say such a consideration was improper, unreasonable, or manifestly unjust in light of the facts of this case.

Given all these reasons, we cannot say the trial court abused its discretion.

IV. Conclusion

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

      . To avoid confusion, we will refer to the parties by their first names.

      . See In re Marriage of Becerra, 100 S.W.3d 637, 640 (Tex.App.-Texarkana 2003, no pet.) (legal sufficiency standard). A trial court’s conclusions of law are not reviewed for factual sufficiency in the context of a bench trial for division of a marital estate; “instead, we evaluate the trial court’s legal conclusions independently to determine whether the trial court correctly drew such legal conclusions from the facts.” Pickens v. Pickens, 62 S.W.3d 212, 214 (Tex.App.-Dallas 2001, pet. denied).

      . Article 8.054 limits the duration of a spousal maintenance award to a period of three years unless the receiving spouse is (A) physically or mentally disabled, (B) unable to work due to the need to care for a custodial infant or young child, or (C) "another compelling impediment to gainful employment.” Tex. Fam. Code Ann. § 8.054 (Vernon Supp.2004-2005).

      . The parties referred to this as a 40IK plan.

      . Cf. Seidel v. Comm’r, 89 T.C.M. (CCH) 972, 2005 WL 730077 (Mar. 31, 2005). In Seidel, the divorce court ordered the division of the ex-husband’s 401(k) retirement, with a share going to the ex-wife, a share going to the ex-wife’s attorney for payment of those attorney’s fees, a portion going to pay a second mortgage on the marital residence, and the remainder to stay with the husband. The ex-husband was not yet eligible for retirement. The tax court held the wife was liable for federal income taxes on the premature, pre-retirement distribution, but the court further held the ex-wife was not liable for the usual ten percent early withdrawal penalty because the distribution was made pursuant to a divorce court’s qualified domestic relations order (QDRO). Id. (citing 26 U.S.C.A. § 72(t)(2)(C) (excepting distributions from Chapter 401 retirement accounts from ten percent penalty when distribution made pursuant to QDRO)).
      In the case now before us, if Susan withdrew funds from the 40IK, she will have to include the amount of the distribution (which she receives from Stephen’s 40IK) in her total gross income for purposes of calculating her 2005 federal income tax. See 26 U.S.C.A. §§ 72(a), 408(d) (West Supp.2005). Even if she withdrew the funds, she may not owe the ten percent penalty usually imposed when a beneficiary prematurely withdraws money from a Chapter 401 retirement plan because, in this case, the distribution received by Susan will be made pursuant to a QDRO. Because the 2005 calendar year is not over, and because the record before us does not inform us of Susan’s total wages for 2005 before the trial court granted the divorce, we cannot begin to predict the amount of tax Susan will owe on the distribution, as that tax owed will depend also on what other monies Susan will have earned (such as from traditional employment or from a home business) that might be included in her gross income for the year 2005.

      . The couple’s only vehicle, a leased Ford Expedition, was awarded to Stephen.

      . If Susan withdrew the tax-deferred funds and paid the taxes, she would likely have an asset worth less than $100,000.00. Even a seven-percent return on such investment would not generate sufficient funds to provide for her minimum reasonable needs. (Income shortfall of $1,531.66 per month x 12 months = $18,379.92. A seven-percent return on $100,000.00 principal would yield only $7,000.00.)

      . The trial court arrived at this figure by assuming the residence would sell at the appraised value, then the court deducted what it believed would be a realtor’s standard commission from the equity balance.


text:
    Von RATSAVONG and Fong Souphankhaysy, Appellants, v. Bounpone MENEVILAY and Sypanome Menevilay, Appellees.
    No. 08-05-00044-CV.
    Court of Appeals of Texas, El Paso.
    Oct. 27, 2005.
    Rehearing Overruled Nov. 23, 2005.

      Donna Kaye Rashti, Dallas, for Appellants.
    N. Alex Bickley, Dallas, for Appellees.
    Before BARAJAS, C.J., McCLURE, and GUADERRAMA, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from a breach of an alleged oral contract to sell real property. Appellants, Von Ratsavong and Fong Sou-phankhaysy, appeal a judgment awarding title to property located at 610 Neomi Street, Dallas, Texas to Appellees, Boun-pone Menevilay and Sypanome Menevilay. On appeal, Appellants raise fifteen issues for review.

I. FACTUAL AND PROCEDURAL BACKGROUND

On October 8, 2002, Appellees filed a lawsuit against Appellants in which they alleged that on or about April of 1994, they entered into an agreement with the Appellants for the purchase of the property located at 611 Neomi Street in Dallas, Texas. At the time, the Appellees did not have the credit to purchase the house, but the agreement entered into allowed Appellees to borrow Appellants’ credit to purchase the home. According to the Appellees, terms of the agreement were as follows: Appellees were to pay the note in the principal amount of $12,500 executed by the Appellants for payment of the house and premises. Upon payment of the total amount, the understanding was that Appellants would execute a general warranty deed conveying the title to the property to the Appellees. As agreed upon, the Appellees paid a $2,000 down payment. At the time the agreement was entered into, the property was in poor condition and had been purchased “as is” with the understanding that the Appellees would complete the necessary repairs. Appellees moved into the property and began making repairs and improvements to the property. By the time the lawsuit was initiated, the Appellees had paid in full the debt and had made repairs in the home of an estimated cost of $28,000. The Appellants filed their original answer asserting a general denial to the allegations and asserting the following affirmative defenses: estoppel, waiver, lack of consideration, failure of consideration, lack of clean hands by plaintiffs, fraud, the statute of frauds, applicable statute of limitations, latches, and illegality.

On December 14 and 15, 2004, the trial court held a hearing. At the hearing, Bounpone Menevilay testified that he had known the Appellants for over thirty years and that they had been good friends, dating back to when they lived in Laos. He testified that in July of 1993, while he was living in California, Ratsavong visited their home; during his visit, he indicated that there was a house next to his in Texas, and that if Menevilay was interested in buying, Ratsavong would allow him to use his credit to do so. At the time, Menevilay did not have the necessary credit to purchase a house, but it is customary in the Laotian culture for friends to lend each other their credit for the purchase of homes and vehicles; it was customary to not sign written contracts for such agreements. Ratsavong indicated to Menevilay that the house was being sold for $14,500 and that Menevilay would need to give him $2,000 down payment and that he would take care of everything else. According to Menevilay, Ratsavong entered into a contract for the purchase of the home, but the understanding was that Menevilay would make the payments and that the house was really his.

Menevilay testified that the house was not in good condition and that it needed many repairs. When he bought the house, he indicated the bathroom was not in a usable condition. Menevilay testified that he repaired the bathroom, painted the exterior and interior of the house, he constructed a garage, improved the sidewalk and added a concrete driveway to the garage, he replaced a door and windows, and he added a utility room for the washer and dryer. He paid for all the repairs and completed most of the work himself with the help of his wife. After a repair was completed, Ratsavong would often come over to see the improvement and stay for dinner to celebrate the accomplishment. Menevilay testified that he would talk to Ratsavong about some of the repairs because they were friends, and that he did not get a building permit for any of the improvements.

In addition to making these repairs, he testified that he made the mortgage payments, paid the insurance on the home, and the property taxes for the entire time he was living at the house, up to the point where litigation over the title was considered. Once he finished paying the mortgage on the house, Ratsavong refused to transfer the deed to the Appellees. Rather, on September 27, 2002, he received a Notice to Vacate and Notice of Termination of Tenancy at Will from Ratsa-vong’s attorney. At no point in time did Appellees believe they were renting the home. Menevilay indicated that if that were the case, he would not have done any improvements to the house. He indicated that in the previous properties he had rented, he had never made any improvements.

During cross-examination, Menevilay indicated that in the past, he had signed a purchase contract for a mobile home, and rental leases for several properties he had rented. When asked if he found it strange that no contract was signed for the purchase of the home on 610 Neomi Street, he indicated that he did not think that Ratsa-vong would take the house away from him because they were good friends.

Mrs. Menevilay’s testimony reiterated much of what Menevilay indicated in his testimony. She indicated that Ratsavong had approached them about buying the house using his credit in July of 1993. She indicated that Ratsavong had mentioned that he did not want to be driving long distances to visit them in California, and that this house was just next door to his home. She testified that Ratsavong asked for a $2,000 down payment; however, she never saw her husband actually give Ratsavong the money. She also indicated that much of the improvements on the home were done by her and her husband and that these occurred as soon as they move in because the house was “ugly.”

Ratsavong testified at trial as well. He indicated that he purchased the home in question for his children. The deed to the home is under his name and his wife’s name, Fong Souphankhaysy. He indicated that he never told the Appellees anything about lending them his credit to purchase the house. He further denied having any conversation regarding the home in July of 1993 with the Appellees. He had gone to California to visit family and the only reason he visited with the Appellees was because his car broke down. He pointed out that he purchased the house on April 25, 1994, after the 1993 visit. In explaining how Appellees came to live in his home, Ratsavong testified that one day, he saw Menevilay parked outside the house on 610 Neomi Street. He did not know where the Appellees were living at the time or how they got to his house. At that point, Ratsavong testified that he asked Menevilay if he wanted to rent the house and indicated to him that it was in poor condition and that he would be responsible for any improvements and repairs. The rent was set at $258, plus taxes and insurance. His understanding of this agreement was that it was a rental contract. He never told Menevilay that after the mortgage was paid off, he would transfer the deed to the Appellees.

Ratsavong further indicated that Mene-vilay had completed improvements on the house and that only sometimes would Me-nevilay ask for his permission to make the improvements. He denied having received $2,000 from the Appellees as a down payment on the home. He testified that he and his wife paid that money by selling some of her jewelry. Mrs. Souphankhaysy also testified that the money for the down payment came from selling her jewelry. She also denied having any discussions in July of 1993 with the Appellees about allowing them to use their credit to buy the home at issue in this case.

After considering all the evidence, the trial court indicated that having only the credibility of the parties, it found the Ap-pellees to be more credible and awarded title to the Appellees and reimbursement to the Appellants for the monies they paid in taxes and insurance after Appellees stopped paying those expenses. The trial court signed a judgment on December 22, 2004, in which it found that:

Bounpone Menevilay and Sypanome Me-nevilay are entitled to recover of and from Von Ratsavong and Fong Sou-phankhaysy the title to those premises located at 610 Neomi Street, Dallas, Dallas County, Texas 75217....

Appellants timely filed this notice of appeal.

II. DISCUSSION

Initially, we note that Appellants have asserted fifteen points of error in their appellate brief. After careful review of their brief and reply brief, we find that the Appellants have failed to properly brief Issue Nos. Four through Seven, Issue No. Ten, Issue No. Eleven, Issue No. Thirteen and Issue No. Fourteen. In Issue No. Four, Appellants argue that even if there was an oral contract, the Appellees admitted that they did not comply with the purported oral contract. Specifically, Appellants assert that Appellees failed to make the $2,000 down payment, pay the insurance and property taxes on the home. In Issue No. Five, Appellants contend there was a lack of consideration, thus error was committed in the trial court’s decision to enforce the oral agreement. Appellants do not cite to any relevant case law in their discussion of this issue. Rather, in a two paragraph argument, they assert that lack of consideration was asserted as an affirmative defense and that Appellees indicated that Appellants wanted $20,000 for the home, which Appellees refused to pay. Appellants then reach the conclusion that this was lack of consideration. In Issue No. Six, Appellants assert that there was a failure of consideration on the Appellees part, making the enforcement of the oral contract by the trial court error. In Issue No. Seven, Appellants contend that the trial court committed error by only using the credibility of the parties to make its decision when it was clear that Appellants did not speak English and the translator was not able to properly translate their testimony. In Issue No. Ten, Appellants contend that error was committed in enforcing the oral contract because Appellees were unjustly enriched. In Issue No. Eleven, Appellants contend that error was committed in enforcing the oral contract because the Ap-pellees lacked clean hands and could not obtain equitable relief. In Issue No. Thirteen, Appellants allege that the enforcement of the oral contract is not supported by evidence. In Issue No. Fourteen, Appellants assert that enforcement of the oral contract is against the overwhelming weight of the evidence.

Appellants’ arguments in these issues contain no more than a recitation of the evidence presented at trial and a sentence, unsupported by any case law, stating that the standard of review is either de novo or abuse of discretion. Their arguments are not clear and do not present any legal principles supporting their contentions. Appellants also failed to cite to any legal authority to support the issues above. The brief “must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief.” Tex. R.App. P. 38.1(g). Rule 38 requires Appellants to provide us with such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue. See Tesoro Petroleum Corp. v. Nabors Drilling USA Inc., 106 S.W.3d 118, 128 (Tex.App.-Houston [1st Dist.] 2002, pet. denied); Franklin v. Enserch, Inc., 961 S.W.2d 704, 711 (Tex.App.-Amarillo 1998, no pet.). This is not done by merely uttering brief conclusory statements, unsupported by legal citations. Tesoro Petroleum Corp., 106 S.W.3d at 128. By presenting such attenuated, unsupported arguments, we find that Appellants have waived such complaints. We find Issue Nos. Four, Five, Six, Seven, Ten, Eleven, Thirteen, and Fourteen are inadequately briefed and are, therefore, waived. For the reasons stated, we overrule Appellants’ Issue Nos. Four, Five, Six, Seven, Ten, Eleven, Thirteen, and Fourteen.

In Issue No. One, Appellants contend that the trial court should have granted their motion for directed verdict because the Statute of Frauds prohibits the enforcement of the alleged oral agreement because it contained indefinite terms. Texas law is well settled that a defendant who moves for a directed verdict after the plaintiff rests, but thereafter elects not to stand on its motion for instructed verdict, and proceeds with her own case, waives her motion for directed verdict unless the motion is reurged at the close of her case. See Horton v. Horton, 965 S.W.2d 78, 86 (Tex.App.-Fort Worth 1998, no pet.) (citing Jacobini v. Hall, 719 S.W.2d 396, 398 (Tex.App.-Fort Worth 1986, writ ref’d n.r.e.); Wenk v. City Nat’l Bank, 613 S.W.2d 345, 348 (Tex.Civ.App.-Tyler 1981, no writ)); 1986 Dodge v. State, 129 S.W.3d 180, 183 (Tex.App.-Texarkana 2004, no pet.) (citing Cliffs Drilling Co. v. Burrows, 930 S.W.2d 709, 712 (Tex.App.-Houston [1st Dist.] 1996, no writ); McMeens v. Pease, 878 S.W.2d 185, 190 (Tex.App.-Corpus Christi 1994, writ denied)); Wenk v. City Nat’l Bank, 613 S.W.2d 345, 348 (Tex.Civ.App.-Tyler 1981, no writ) (applying this line of argument to nonjury trials). In this case, Appellants moved for a directed verdict after Appel-lees rested. After the trial court overruled the motion, Appellants proceeded with them own witnesses. At the conclusion of the evidence, Appellants did not reurge their motion for a directed verdict. Under these circumstances, any error under the denial of the motion for directed verdict is waived. Issue No. One, therefore, is overruled.

We continue our discussion of Appellants points of error by grouping Issue Nos. Two, Three, and Nine and discussing them together, as we believe each is raising a legal sufficiency argument.. In Issue No. Two, Appellants argue that the trial court committed error by enforcing the oral agreement because the Statute of Frauds should have prohibited the enforcement of an alleged indefinite oral agreement for the sale of property. In their discussion of Issue No. Two, Appellants rely on the argument made in Issue No. One. In Issue No. Three, Appellants argue that the exception to the Statute of Frauds was not met by the Appellees, making the enforcement of the oral agreement by the trial court an error. Appellants contend that the Appellees did not pay consideration for the oral contract, failing to meet the first requirement of the exception. Appellants further contend that there is also no evidence that permanent and valuable improvements were made to the property with their consent. In Issue No. Nine, Appellants assert that the trial court committed error in enforcing the oral contract against Mrs. Sou-phankhaysy because there was no evidence that Mrs. Souphankhaysy made any oral statements or oral agreement for the sale of the property in question.

Standard of Review

In reviewing the legal sufficiency of the evidence, we consider the evidence in the light most favorable to the challenged finding, disregarding all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001). The evidence is legally sufficient if more than a scintilla of evidence supports the finding. Formosa Plastics Corp. USA v. Presidio Engineers and Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998). “More than a scintilla of evidence exists where the evidence supporting the finding, as a whole, ‘rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.’” Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995) (quoting Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994)). Whether particular facts are sufficient to establish a taking presents a question of law that we review de novo, but we rely on the fact finder to resolve disputed facts underlying that determination. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 933 (Tex.1998). When a party appeals from a non-jury trial, it must complain of specific findings and conclusions of the trial court, because a general complaint against the trial court’s judgment does not present a justiciable question. Fiduciary Mortgage Co. v. City Nat’l Bank, 762 S.W.2d 196, 204 (Tex.App.-Dallas 1988, writ denied). When an appellant does not request or file findings and conclusions by the trial court, as in this case, the appellate court presumes the trial court found all fact questions in support of its judgment, and the reviewing court must affirm that judgment on any legal theory finding support in the pleadings and evidence. Point Lookout West, Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex.1987).

As we understand, in Issue No. Two, Appellants allege that there was no evidence offered of the definite terms of the contract. Particularly, Appellants complain that there was no evidence of what the actual price of the contract was. Reviewing the record in the light most favorable to such a finding, we find that the testimony provided by the Appellees in which they indicated that Ratsavong had represented that the home was worth $14,500 indicating this was the price of the contract. The agreement they entered into was for the purchase of the home, and the understanding was that upon completion of payment of the mortgage, the Appellants would transfer the deed to the Appellees. We find that the evidence is legally sufficient to support a finding that the oral contract contained a definite term as to the total price of the contract. We overrule Issue No. Two.

The Statute of Frauds exists to prevent fraud and perjury in certain kinds of transactions by requiring agreements to be set out in a writing signed by the parties. See Haase v. Glazner, 62 S.W.3d 795, 799 n. 21 (Tex.2001) (citing see Restatement (Second) of Contracts § 131 cmt. c (1981); 9 Williston on Contracts § 21:1 (4th ed.1999); see also Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1116 (1921)). In Hooks, 229 S.W. at 1116, the Texas Supreme Court held that “to reheve a parol sale of land from the operation of the statute of frauds, three things were necessary: 1. Payment of the consideration, whether it be in money or services. 2. Possession by the vendee. And 3. The making by the vendee of valuable and permanent improvements upon the land with the consent of the vendor; or, without such improvements, the presence of such facts as would make the transaction a fraud upon the purchaser if it were not enforced.” Each of these three elements is indispensable, and they must all exist. Hooks, 229 S.W. at 1116.

In Issue No. Three, we understand Appellants to be making legal insufficiency claims for a finding of elements one and two of the Statute of Frauds exception described above. At trial, Appellees testified that they paid a $2,000 down payment as requested by the Appellants. As soon as they moved into the house, Appellees testified that they began making repairs, beginning with the bathroom. Other repairs included constructing a garage and a concrete driveway leading to it, adding a utility room to the house, replacing a kitchen door, improving the sidewalk, and painting the exterior and interior of the house. The estimated costs of making these improvements was $28,000. Although much of this testimony came from Appellees’ oral testimony, the trial court found that such oral testimony was sufficient and did not require actual documentation of receipts to be presented. The Appellants’ home was located across the street from the Appellees, allowing the trial court to infer that the Appellants could have been aware of the repairs being done to the home. The Appellees also testified that on several occasions, Ratsa-vong would come over and have dinner to celebrate the completion of an improvement. There was no testimony provided by the Appellants that they opposed any of the repairs being done. Rather, Appellants testified that Appellees would sometimes ask for permission to complete the improvements. After reviewing the record in the light most favorable to the implied findings and disregarding all evidence and inferences to the contrary, we find the evidence was legally sufficient to support a finding that the consideration paid by the Appellees was in the form of the $2,000 down payment and that Appellees made valuable and permanent improvements to the property with Appellants’ consent. We therefore overrule Issue No. Three.

In Issue No. Nine, Appellants contend that there is no evidence to support Mrs. Souphankhaysy of her ownership of the property. Specifically, Appellants argued that there was no evidence that Mrs. Souphankhaysy made any oral agreement to transfer title to the property. Appellants cite to Dalton v. Don J. Jackson, Inc., 691 S.W.2d 765, 767-68 (Tex.App.-Austin 1985, no writ), Vallone v. Miller, 668 S.W.2d 97, 98 (Tex.App.-Houston [14th Dist.] 1983, writ ref’d n.r.e.), and Tex. Fam. Code Ann. § 3.102 (Vernon 1998) to support their contention. In Dalton, the court held that one spouse may not convey to a third party, so as to effectuate a partition by creating a tenancy-in-common between the remaining spouse and the third party. See Dalton, 691 S.W.2d at 768. In Vallone, the court found that one spouse cannot alone convey or encumber joint management community property unless spouses have otherwise agreed. See Vallone, 663 S.W.2d at 99. The facts in this case differ from those in Dalton and Vallone.

In this case, the deed to the house was under both Ratsavong’s and Souphankhaysy’s names. There was testimony that Ratsavong would attend these dinner celebrations after the completion of a repair. Given the proximity of Appellants’ home to the property in question, the trial court could have inferred that Souphankhaysy was also aware of the improvements being done to the home. She testified that she also saw the Appellees on the trip to California in July of 1993. Although she testified that her jewelry was sold to pay the down payment on the home and that she did not see the Appellees pay her husband $2,000, she also could not say with certainty that Appellees did not give him this money. The trial court, being the judge of the credibility of the witnesses, found the testimony of the Appellees more credible. In so doing, he could have inferred that Mrs. Souphankhaysy was also aware of the agreement made with the Appellees concerning the purchase of the home. A review of the record shows that the disputed fact over whether an agreement was made between the Appellants and the Appellees was resolved in favor of the Appellees. We therefore find that the evidence was legally sufficient to support a finding that Appellant Souphankhaysy was also a party to this oral agreement. Issue No. Nine, therefore, is overruled.

In Issue No. Eight, Appellants contend that the Appellees’ claims were barred by the four-year statute of limitations, making the trial court’s enforcement of the oral contract error. According to the Appellants, the oral contract was entered into in 1994, but the lawsuit was not filed until October of 2002, not within the four-year statute of limitations for a breach of contract in Texas. See Tex. Civ. Prac. & Rem.Code Ann. § 16.051 (Vernon 1997). In their reply brief, Appellants argue that the Appellees knew in May of 1994 that they did not receive a deed to the property, constituting a breach of the agreement. Therefore, the latest the lawsuit could be initiated was April of 1998. We disagree with Appellants’ assertions.

A general four-year statute of limitations for breach of contract applies. See Tex. Civ. Prac. & Rem.Code Ann. § 16.051; Stine v. Stewart, 80 S.W.3d 586, 592 (Tex.2002). A party asserting a breach of contract claim must sue not later than four years after the day the claim accrues. Id. It is well-settled law that a breach of contract claim accrues when the contract is breached or when the claimant has notice of facts sufficient to place him on notice of the breach. See Murphy v. Campbell, 964 S.W.2d 265, 270 (Tex.1997); see also Smith v. Fairbanks, Morse & Co., 101 Tex. 24, 102 S.W. 908, 909 (1907); see also Slusser v. Union Bankers Ins. Co., 72 S.W.3d 713, 717 (Tex.App.-Eastland 2002, no pet.).

Here, the earliest date on which Appellants could have breached the promise to transfer the deed was in 2001, the date when the mortgage was paid in full and the earliest Appellees testified Appellants refused to transfer the deed. Appellees sued Appellants in October of 2002, less than four years after this occurred. Applying the general four-year statute of limitations to Appellees’ claims, Appellees timely filed suit. See Tex. Civ. Prac. & Rem.Code Ann. § 16.051. We therefore overrule Issue No. Eight.

In Issue No. Twelve, Appellants contend that Appellees’ failure to plead and prove the necessary elements of a trespass to try title action made the enforcement of the oral contract error. Specifically, Appellants point to the fact that Appellees’ original petition incorrectly identified the property by listing the address as 611 Neomi Street, instead of 610 Neomi Street. The address 611 Neomi Street is the location of the Appellants’ homestead and was the incorrect address. By failing to specifically and properly identify the property in their pleadings, Appellants assert that Appellees cannot prevail in a trespass to try title action.

Before reaching the merits of Appellants’ challenge, we note that they had cited only to one case in the body of their argument. After a careful review of Martin v. Amerman, 133 S.W.3d 262 (Tex.2004), we fail to see its relevance to Appellants’ assertion and Appellants do not provide such a link in their argument. Among other things, Tex.R.App. P. 38.1 requires Appellants to provide the Court with a discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue. See Tesoro Petroleum Corp., 106 S.W.3d at 128; Franklin, 961 S.W.2d at 711. Appellants’ minimal briefing of this issue fails to properly preserve the error for review by this Court.

Moreover, this argument is raised for the first time on appeal. The record does not reflect any objection to what appears to be a clerical mistake in the pleadings. In order to preserve an issue for appellate review, a party must present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling sought. Tex.R.App. P. 38.1(a). We find that Issue No. Twelve is not properly preserved and waived for inadequate briefing as well. Issue No. Twelve, therefore, is overruled.

In Issue No. Fifteen, Appellants assert that in enforcing the oral contract, the trial court deprived Appellants of their Texas and United States constitutional rights to due process and the right not to be deprived of their property without due process of law, and their rights to due course of law. Appellants have also waived any error regarding their due process claims. We find no indication in the record before us that Appellants voiced their complaint to the trial court, and therefore, we find that error has not been preserved in this regard. See Tex.R.App. P. 33.1(a); see also Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex.1993); Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex.1982). Issue No. Fifteen is overruled.

Having overruled each of Appellants’ issues on review, we affirm the judgment of the trial court.

GUADERRAMA, J., sitting by assignment.

      . We additionally note that as is reflected in the record and as represented by Appellants’ counsel at oral argument before this Court, there was no objection raised at trial regarding the translator or the translation of the testimony. To preserve a complaint for appellate review, a party must present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling sought. Tex.R.App. P. 33.1(a). Therefore, we find that Issue No. Seven is also waived by failure to properly object at the trial below.

      . We note that because this case was tried to the bench, the Appellants’ motion for a directed verdict is more properly termed a “motion for judgment.” Qantel Business Sys. v. Custom Controls, 761 S.W.2d 302, 303(Tex.1988). If Appellants had preserved the issue, this would have been an important distinction because we review a judgment pursuant to a motion for judgment differently than a directed or instructed verdict. Id. at 303-04. So as not to create confusion, however, we will refer to the motion as a motion for directed verdict in the remainder of the discussion of Issue No. One.

      . Appellees’ original petition contained the following:
      On or about April 1994, the Plaintiffs entered into an agreement with the Defendants, that the Defendants would purchase that property described as:
      "Lot 14, Block N/6256 of Home Gardens Addition, Unit No. 3, an addition to the City of Dallas, Texas, and being 611 Neomi Street, Dallas, Dallas County Texas, 75217.” (Emphasis added).

      The correct address was 610 Neomi Street. In Appellees’ motion for temporary restraining order and injunction, the correct address is reflected. During the hearing, there was no confusion as to the fact that the property in question was 610 Neomi Street. The final judgment correctly recites:
      [Tjhose premises located at 610 Neomi Street, Dallas, Dallas County, Texas 75217 and being described as:
      Lot 14, Block N/6256 of Home Gardens Addition, Unit No. 3, an addition to the City of Dallas, Texas.
      The descriptions of the property are the same, thereby appearing that the incorrect address in the original petition was nothing more than a careless typing error.