Guzman v. Guzman, 13-90-360-CV

• Decision Date: 05 March 1992
• Docket Number: No. 13-90-360-CV,13-90-360-CV
• Citation: 827 S.W.2d 445
• Parties: Enriqueta Chapa GUZMAN, Appellant, v. Julio Roberto GUZMAN, Appellee.
• Court: Texas Court of Appeals

Page 445

827 S.W.2d 445

Enriqueta Chapa GUZMAN, Appellant, v. Julio Roberto GUZMAN, Appellee.

No. 13-90-360-CV.

Court of Appeals of Texas Corpus Christi.

March 5, 1992.

Rehearing Overruled April 2, 1992.

John Robert King, McAllen, for appellant.

Leo Montalvo, Montalvo & Ramirez, McAllen, Roberto M. Garcia, Garcia, Lopez & Rodriguez, Edinburg, for appellee.

Before NYE, C.J., and GILBERTO HINOJOSA and DORSEY, JJ.

OPINION

GILBERTO HINOJOSA, Justice.

The issue presented in this appeal is whether professional goodwill is property subject to just and right division upon divorce. We hold that it is not and affirm.

The parties sought a divorce. The former husband owned a solo CPA practice containing goodwill. The trial court found that this goodwill did not exist independently of the former husband's professional ability, and did not divide it between the parties. The former wife appeals this ruling.

By her first point of error, appellant argues that the district court erred in failing to issue requested written findings of fact and conclusions of law. TEX.R.CIV.P. 296 and 297. Once a timely request is made and a reminder is filed by the party requesting findings of fact and conclusion of law, the trial judge is mandated to file such findings of fact and conclusions of law. Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex.1989); Anzaldua v. Anzaldua, 742 S.W.2d 782, 783 (Tex.App.--Corpus Christi, 1987, writ denied).

Under the rules in effect at the time of trial, a trial judge's findings of fact and conclusions of law were due within thirty days after the judgment was signed. TEX.R.CIV.P. 297 (Vernon 1985). Failure by the trial judge to file the findings within the thirty days requires the requesting party to file a reminder to call the omission to the judge's attention. Id. In this case, it is undisputed that the appellant timely filed a request for findings of fact and conclusions of law and a subsequent reminder with the court. The trial judge, however, did not file findings of fact and conclusions of law as requested.

Appellant argues that there is a presumption that she has been harmed by the failure of the judge to make the requested findings of fact and conclusions of law. This presumption, she asserts, is only overcome if the record affirmatively shows that she has suffered no injury; which in this instance, she argues, it does not. Appellee responds that while in many instances it is reversible error for the trial judge to fail to make findings of fact and conclusions of law when requested, there is no reversible error when the record on appeal establishes that there has been no injury caused to the appellant by such failure. See Fraser v. Golberg, 552 S.W.2d 592 (Tex.Civ.App.--Beaumont 1977, writ ref'd n.r.e.).

In Fraser, the Beaumont Court of Appeals held that "it is not reversible as a matter of law for the trial court to completely fail to file findings of fact and conclusions of law." Fraser, 552 S.W.2d at 593. The court in Fraser relied on the old Rule 434 of the Texas Rules of Civil Procedure (now RULE 81(B)(1) OF THE TEXAS RULES OF APPELLATE PROCEDURE¹) in coming to the conclusion that it is necessary to show injury in order to reverse the trial court for its failure to make findings of fact and conclusions of law. The Court agreed that there were situations in which findings of fact and conclusions of law are necessary in order for the appellant to properly present his case to the appellate court. If the case presented factually complicated situations in which there were two or more possible grounds for recovery or defense, an undue burden would be placed upon an appellant. The court, however, held that in the case before it "only one defense was pled, and no other defense was raised by the evidence." There was only one issue before the trial court at the time of trial and little dispute as to the factual situation. It found that the record before it affirmatively showed that the appellant suffered no injury by reason of the trial court's failure to make findings of fact and conclusions of law and was therefore "not prevented from making a proper presentation of the only issues in this case before this appellate court." Fraser, 552 S.W.2d at 594.

We agree with the court in Fraser that it is not reversible error as a matter of law for the trial court to fail to file findings of fact and conclusions of law. If it is clear from examining the complete record before this Court that appellant has not been deprived of the opportunity to properly present her case on appeal, then we see no reason for reversing the trial court's judgment or abating the appeal until such time as the trial court files findings of fact and conclusions of law. In this case, appellant ultimately complains of the trial court's failure to apportion goodwill. The record shows ² that, on the issue of appellee's entitlement to goodwill, the only dispute is whether such goodwill is subject to just and right division.

We hold, therefore, that appellant suffered no injury by reason of the trial court's alleged failure to file findings of fact and conclusions of law and she has not been deprived of the opportunity to properly present her case to this appellate court. Point of error number one is overruled.

We now address point of error two, in which the former wife complains that the trial court erred in failing to divide professional goodwill between the parties in its just and right division of the marital estate. TEX.FAM.CODE ANN. § 3.63 (Vernon 1972). Professional goodwill is conceptually distinct from that associated with a trade or business. See Keith v. Keith, 763 S.W.2d 950, 952 (Tex.App.--Fort Worth 1989, no writ). The Fourteenth Court of Appeals has defined professional goodwill as that which: attaches to the person as a result of the clients' confidence in professional skill or ability; does not possess value separate from the professional; and is extinguished at death, retirement or disablement. Rathmell v. Morrison, 732 S.W.2d 6, 17 (Tex.App.--Houston [14th Dist.] 1987, no writ). Whether goodwill exists is a question of fact. Taormina v. Culicchia, 355 S.W.2d 569, 575 (Tex.Civ.App.--El Paso 1962, writ ref'd n.r.e.).

In Nail v. Nail, 486 S.W.2d 761, 763-64 (Tex.1972), the Supreme Court of Texas held that professional goodwill was not property of the marital estate subject to division under TEX.FAM.CODE ANN. § 3.63, because the goodwill in that case did not exist independently of the professional's skills.

Subsequent decisions have refined the principles in Nail. Goodwill in a professional business is not considered part of the marital estate unless it exists independently of the professional's skills, and the estate is otherwise entitled to share in the asset. See Hirsch v. Hirsch, 770 S.W.2d 924, 927 (Tex.App.--El Paso 1989, no writ); Finn v. Finn, 658 S.W.2d 735, 740-41 (Tex.App.--Dallas 1983, writ ref'd n.r.e.).

Goodwill in a professional corporation which exists independently of a professional's personal skills...