Rule 38.1 Inadequate Briefing Waives Property-Division Complaint | Torres (2025)

In the Matter of the Marriage of Brittany Palumbo Torres and Gibran Jalil Torres and in the Interest of F.J.T., a Child, 12-25-00270-CV, May 29, 2026.

On appeal from 196th Judicial District Court, Hunt County, Texas

Synopsis

A property-division complaint in a divorce appeal will be waived if the appellant does not brief it with developed argument, supporting authority, and record citations as required by Texas Rule of Appellate Procedure 38.1(i). And even if the issue is construed liberally, the absence of a reporter’s record requires the appellate court to presume the evidence supports the trial court’s just-and-right division, effectively defeating an abuse-of-discretion attack on the valuation date used for retirement accounts.

Relevance to Family Law

For Texas family-law litigators, Torres is a sharp reminder that appellate preservation does not end in the trial court. Property-division complaints—especially valuation-date disputes involving retirement accounts, reimbursements, offsets, and disproportionate division theories—must be both properly briefed and supported by a complete appellate record. In practical terms, this case affects divorce litigation most directly, but it also carries over to any family-law appeal where abuse of discretion governs and the challenged ruling depends on trial evidence, including conservatorship, possession, support, and enforcement matters.

Case Summary

Fact Summary

The appeal arose from a final decree of divorce entered after a jury trial and subsequent bench hearings in Hunt County. The jury resolved multiple issues, including fault, conservatorship, attorney’s fees, and characterization of a long list of property items. After the jury returned its verdict, the trial court conducted additional hearings and then entered rulings addressing disputed property allocations and other unresolved matters.

Relevant here, the decree awarded each spouse one-half of the community portion of the other spouse’s retirement accounts. But the decree defined the community portion by using November 12, 2013, as the start date and June 7, 2021—the date the divorce petition was filed—as the end date. After judgment, Brittany moved to modify and clarify the decree, arguing among other things that the retirement-account division should have used a later end date, allegedly March 28, 2025, rather than the filing date.

The trial court denied that motion. On appeal, Brittany challenged the property division, including the valuation period for the retirement accounts. But she did not file a reporter’s record. The court of appeals had granted an extension and required written proof that the record had been requested, warning that absent such proof the appeal would proceed on the clerk’s record alone. No such proof was filed, and the case was submitted without a reporter’s record.

Issues Decided

The court addressed these appellate issues:

• Whether Brittany waived her complaint about the retirement-account valuation end date by failing to adequately brief the issue under Texas Rule of Appellate Procedure 38.1(i).
• Whether, in the absence of a reporter’s record, the court had to presume the evidence supported the trial court’s just-and-right division of the community estate.
• Whether any claimed error in using the divorce-filing date as the end date for division of the retirement accounts could support reversal on the appellate record presented.

Rules Applied

The court relied on familiar but unforgiving appellate rules and family-law standards:

• Texas Rule of Appellate Procedure 38.1(i) requires a clear and concise argument with appropriate citations to authority and the record.
• Inadequate briefing waives appellate complaints. The court cited RSL Funding, LLC v. Newsome, 569 S.W.3d 116, 126 (Tex. 2018).
• Appellate courts are not required to research and construct arguments for a party who does not properly brief them.
• A divorce court must divide community property in a just and right manner under Texas Family Code section 7.001.
• Property-division rulings are reviewed for abuse of discretion, and valuation complaints do not justify reversal unless they render the overall division manifestly unjust.
• Community assets are generally valued at or near the time of divorce, but the precise valuation date may be left to the trial court’s discretion depending on the circumstances.
• When no reporter’s record is filed, the reviewing court presumes the missing record supports the trial court’s judgment. The court cited De Vega v. Munoz, 623 S.W.3d 565, 567 (Tex. App.—El Paso 2021, no pet.).
• In property-division appeals, a reporter’s record is ordinarily necessary to show abuse of discretion because the complaint turns on the evidentiary basis for the overall division.

Application

The Tyler Court of Appeals began with the briefing defect. Brittany’s argument on the retirement-account issue was essentially a conclusory assertion that there was “no reason” to use the divorce-filing date. The court held that this was not enough. She did not cite authority establishing that the chosen date was legally impermissible, did not analyze the standard of review, did not connect the controlling law to the facts, and did not provide the sort of developed appellate reasoning Rule 38.1(i) requires. That failure alone resulted in waiver.

The court then went a step further and explained why the issue would still fail even if liberally construed as a challenge to the just-and-right division itself. A complaint about the valuation date for retirement accounts is not reviewed in isolation. The question is whether the claimed error caused a manifestly unjust overall division. That inquiry is necessarily evidence-dependent. Without a reporter’s record, the appellate court could not evaluate the trial evidence concerning the retirement accounts, the parties’ respective estates, offsets, equities, reimbursement theories, wasting, fault, or any other circumstances bearing on the overall division.

Because Brittany did not bring forward the reporter’s record, the court applied the standard presumption that the missing evidence supported the decree. That presumption was dispositive. Even if a different valuation end date might have been arguable on a fuller record, the appellate court was required to presume the omitted testimony and exhibits justified the trial court’s chosen approach and the decree’s ultimate division.

Holding

The court held that Brittany waived her complaint regarding the retirement-account valuation date because her brief did not satisfy Rule 38.1(i). A bare assertion that there was “no reason” to use the filing date, without legal analysis, authority, or meaningful record citation, did not preserve a reversible appellate complaint.

The court further held that the absence of a reporter’s record independently defeated any abuse-of-discretion challenge to the property division. In a divorce appeal, the appellant bears the burden to present a record showing harmful error. When the appellate record omits the reporter’s record, the court must presume the evidence supports the trial court’s judgment, including the just-and-right division of the community estate and the date used to measure the divisible portion of retirement accounts.

Practical Application

Torres should immediately change how family-law trial and appellate counsel approach property issues that may become appeal points. The lesson is not merely “brief better.” The lesson is that valuation-date complaints are usually inseparable from the evidentiary and equitable architecture of the entire property division.

In retirement cases, litigators often focus on whether the community estate should be measured through separation, filing, mediation, rendition, or decree. Torres confirms that even if there is a colorable argument for a different date, the appellant must show why that date matters under the governing abuse-of-discretion framework and how it made the overall division unjust. That requires evidence, not intuition.

For trial lawyers, this means creating a record that explains why a particular valuation date is equitable. If the account increased after separation because of post-separation contributions, passive market growth, or one spouse’s sole efforts, those distinctions need to be developed clearly. If a filing-date cutoff is proposed, counsel should establish the factual basis for that approach. If a decree uses a date different from the court’s oral ruling or a prior letter ruling, that discrepancy should be addressed promptly and precisely in post-judgment practice.

For appellate lawyers, Torres is a reminder that family-law briefing must be built around the standard of review. A valuation-date complaint is rarely won by showing that another date would also have been reasonable. The appellant must show that the chosen date was outside the zone of reasonable discretion and that the resulting overall division was manifestly unjust. Without a reporter’s record, that argument is usually dead on arrival.

The decision also has spillover consequences beyond retirement accounts. The same briefing and record principles apply to complaints about reimbursement, tracing, separate-property characterization, disproportionate division, waste, hidden assets, and bench interpretations of jury findings affecting property allocation. If the issue depends on what was proved at trial, the reporter’s record is not optional.

Checklists

Preserve the Property-Division Complaint for Appeal

• Obtain explicit rulings on valuation dates, account balances, and the method of division.
• Make sure exhibits showing balances, statements, and contribution history are admitted.
• Tie the requested valuation date to equitable factors relevant to a just-and-right division.
• If the court adopts a different date than requested, object with specificity.
• If the signed decree differs from the court’s oral pronouncement or written ruling, raise the discrepancy promptly in a post-judgment motion.
• Frame objections and post-judgment complaints in terms of abuse of discretion and overall unfairness, not merely disagreement.

Build a Record on Retirement Accounts

• Offer plan statements covering all potentially relevant dates: marriage, separation, filing, trial, rendition, and decree.
• Separate passive gains from post-separation contributions when possible.
• Present testimony explaining why a particular cutoff date is equitable.
• Address whether either spouse had exclusive control, withdrawals, loans, or dissipation after separation.
• If a QDRO will be required, make the decree language precise enough to implement the intended division.
• Preserve evidence of how the proposed valuation method affects the overall estate division, not just the retirement asset in isolation.

Avoid Rule 38.1(i) Waiver

• Include a clear issue statement tied to the relief sought.
• State the governing standard of review.
• Cite controlling authority, not just general propositions.
• Provide record citations for each key factual assertion.
• Apply the law to the facts in a developed argument.
• Explain harm: why the alleged error made the overall property division manifestly unjust.
• Do not rely on conclusory assertions such as “there was no reason” for the ruling.

Perfect the Appellate Record

• File the designation or request for the reporter’s record on time.
• Confirm in writing that the court reporter received the request.
• Pay or make arrangements for the reporter’s record promptly.
• If an extension is needed, file it before the deadline and attach proof of the request.
• Verify that all relevant hearings are included, including post-verdict and post-judgment proceedings.
• Review the clerk’s record for missing exhibits, rulings, or findings and supplement as needed.

Brief an Abuse-of-Discretion Challenge the Right Way

• Start with Family Code section 7.001 and the just-and-right standard.
• Explain the specific ruling being challenged and why it falls outside reasonable discretion.
• Show how the complained-of ruling affected the overall property allocation.
• Address contrary authority suggesting valuation dates are case-specific and discretionary.
• Demonstrate prejudice with numbers, percentages, or comparative property allocations where the record allows.
• Anticipate the presumption that missing portions of the record support the judgment.

Citation

In the Matter of the Marriage of Brittany Palumbo Torres and Gibran Jalil Torres and in the Interest of F.J.T., a Child, No. 12-25-00270-CV, 2026 WL ___ (Tex. App.—Tyler May 29, 2026, no pet.) (mem. op.).

Full Opinion

Read the full opinion here

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