Hamilton v. Hamilton, No. 02-19-00211-CV

CourtCourt of Appeals of Texas
Writing for the CourtMemorandum Opinion by Justice Womack
PartiesPHILIP HAMILTON, Appellant v. LORI ANNE (LINEBARGER) HAMILTON, Appellee
Docket NumberNo. 02-19-00211-CV
Decision Date05 November 2020

PHILIP HAMILTON, Appellant
v.
LORI ANNE (LINEBARGER) HAMILTON, Appellee

No. 02-19-00211-CV

Court of Appeals Second Appellate District of Texas at Fort Worth

November 5, 2020


On Appeal from the 360th District Court Tarrant County, Texas
Trial Court No. 360-601049-16

Before Gabriel, Kerr, and Womack, JJ.
Memorandum Opinion by Justice Womack

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MEMORANDUM OPINION

I. INTRODUCTION

The trial court signed a judgment divorcing Philip and Lori Anne Hamilton, dividing their property, and changing Lori's name to Lori Anne Linebarger. Dissatisfied with the property division, Philip appealed. In five points, Philip argues:

1. The trial court erred by not entering sufficient findings of fact and conclusions of law in violation of Section 6.711 of the Texas Family Code;

2. The trial court abused its discretion by granting the divorce on grounds of fault because legally and factually insufficient evidence supports the trial court's finding that Philip engaged in cruel treatment;

3. The trial court abused its discretion and failed to comply with Section 7.001 of the Texas Family Code because the property division is not just and right;

4. The trial court erred by not calculating and dividing the parties' Internal Revenue Service tax liability; and

5. The trial court abused its discretion by using the property division to punish Philip in violation of Young v. Young, 609 S.W.2d 758, 762 (Tex. 1980), and by discriminating against Philip based on his sex.

We hold that Philip did not preserve his first point and that his remaining four points have no merit. We affirm the trial court's judgment.

II. ARGUMENTS

A. Findings of Fact

In his first point, Philip argues that the trial court erred by not making any asset-value findings as required by the Texas Family Code. See Tex. Fam. Code Ann. § 6.711. Without the asset-value findings, Philip contends that he is severely

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prejudiced in his ability to show that the trial court abused its discretion when dividing the property. See Brown v. Wokocha, 526 S.W.3d 504, 507 (Tex. App.—Houston [1st Dist.] 2017, no pet.).

1. Background

Philip timely requested findings of fact and conclusions of law. He specifically requested characterization and asset-value findings under Section 6.711 of the Texas Family Code. See Tex. Fam. Code Ann. § 6.711.

In response to Philip's request, the trial court timely filed its "Findings of Fact and Conclusions of Law." Characterization findings were among those that the trial court made, but asset-value findings were not. Despite the absence of asset-value findings, Philip never requested any additional or amended findings of fact. See Tex. R. Civ. P. 298.

2. Discussion

Although Section 6.711(a) requires asset-value findings, Section 6.711(b) incorporates the Texas Rules of Civil Procedure. See Tex. Fam. Code Ann. § 6.711(a), (b); Howe v. Howe, 551 S.W.3d 236, 253 (Tex. App.—El Paso 2018, no pet.). Under Rule 298 of the Texas Rules of Civil Procedure, if a party does not request additional or amended findings, it cannot later attack the lack of such findings, and this remains true even in the context of Section 6.711(a). See Tex. R. Civ. P. 298; Barton v. Barton, 584 S.W.3d 147, 156 (Tex. App.—El Paso 2018, no pet.) ("The trial court did not make any express findings on [wife's] [Section 6.711(a)] claims for

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reimbursement . . . . [Wife] did not request additional findings from the court. Consequently, [wife] has waived her complaints related to these reimbursement claims."); Howe, 551 S.W.3d at 244, 253 ("Because the trial judge made some findings on this issue, and Husband requested no additional findings, we therefore presume any omitted findings that are supported by the evidence. We overrule Issue Three that faults the trial court for failing to value each of the community assets and liabilities."); see also In re Marriage of C.A.S. and D.P.S., 405 S.W.3d 373, 381 (Tex. App.—Dallas 2013, no pet.) ("When a party makes an untimely request for additional findings . . ., the party waives the right to complain [about] the trial court's refusal to enter the additional findings . . . ." Thus, "[w]e cannot conclude [husband] preserved his right to complain . . . about the trial court's failure to make the additional [Section 6.711] findings."); Goodfellow v. Goodfellow, No. 03-01-00633-CV, 2002 WL 31769028, at *8 (Tex. App.—Austin Dec. 12, 2002, no pet.) (not designated for publication) ("Because [husband's untimely] request for additional findings and conclusions did not comply with the Texas Rules of Civil Procedure, the trial court was not required to make a specific finding as to the value of the parties' community property, including the house. See Tex. Fam. Code Ann. § 6.711(b).").

Because Philip has not complied with Rule 298, he cannot now complain about the absence of asset-value findings under Section 6.711. See Howe, 551 S.W.3d at 244 ("When a party fails to timely request additional findings and conclusions, it is deemed to have waived the right to complain on appeal of the court's failure to make

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them."); Villalpando v. Villalpando, 480 S.W.3d 801, 810 (Tex. App.—Houston [14th Dist.] 2015, no pet.) ("Because [wife] failed to request additional findings of fact and conclusions of law, she has waived her complaint that the trial court erred by failing to make any omitted findings [relating to fraud on the community or her request for the calculation of the reconstituted estate].").

In his reply brief, Philip relies on Sears, Roebuck & Co. v. Nichols for the proposition that he has preserved his complaint about the missing findings. 819 S.W.2d 900, 908 (Tex. App.—Houston [14th Dist.] 1991, writ denied). Philip's reliance on Sears is misplaced. Philip's complaint is that the trial court erred by not making certain findings. That was not the appellant's complaint in Sears.

Also in Philip's reply brief, he cites Rule 299 for the proposition that the trial court's refusal to make a requested finding is reviewable on appeal. See Tex. R. Civ. P. 299. Philip misplaces his reliance on Rule 299. Philip's first point attacks the absence of certain findings that the trial court did not put in its original findings and that Philip never asked for in a supplemental request. Rule 298, not Rule 299, governs how a party preserves that complaint. See Howe, 551 S.W.3d at 253. If Philip wanted any additional or amended findings, he had to request them. See Tex. R. Civ. P. 298; see also Levine v. Maverick Cnty. Water Control & Imp. Dist. No. 1, 884 S.W.2d 790, 796 (Tex. App.—San Antonio 1994, writ denied) ("The trial court is required to make additional findings of fact, when they are timely requested, but only on ultimate issues.").

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"[A] request for additional findings is in the nature of an objection . . . ." Vickery v. Comm'n for Lawyer Discipline, 5 S.W.3d 241, 255-56 (Tex. App.—Houston [14th Dist.] 1999, pet. denied). Alerting the trial court to an alleged error gives the trial court an opportunity to address and correct any mistake. See In re Marriage of Tyeskie, 558 S.W.3d 719, 725-26 (Tex. App.—Texarkana 2018, pet. denied). Rule 298 is the vehicle by which a party preserves its complaint that the trial court's findings and conclusions were inadequate or incorrect. See Vickery, 5 S.W.3d at 255-56. "It was incumbent upon [the complaining party] to request additional findings of fact to establish the specific valuation of the various community property assets and liabilities used by the trial court." Jones v. Jones, 699 S.W.2d 583, 585-86 (Tex. App.—Texarkana 1985, no writ) (citing Tex. R. Civ. P. 298). Under Section 6.711(b), Philip had to, but did not, comply with Rule 298 to preserve his complaint. See Howe, 551 S.W.3d at 253; Vickery, 5 S.W.3d at 256 ("We find Vickery did not meet the requirements of Rule 298 because he failed to apprise the trial court of the specific omission he now complains of on appeal.").

We overrule Philip's first point.

B. Cruel Treatment

In Philip's second point, he argues that the trial court abused its discretion by granting the divorce on grounds of fault because legally and factually insufficient evidence supports the trial court's finding that Philip engaged in cruel treatment.

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1. Legal Principles

A court may grant a divorce on the ground of cruel treatment. Tex. Fam. Code Ann. § 6.002. To be considered cruel treatment, the accused spouse's conduct must rise to such a level that it renders the couple's living together insupportable. Id. For purposes of cruel treatment, "insupportable" means incapable of being borne, unendurable, insufferable, or intolerable. Ayala v. Ayala, 387 S.W.3d 721, 733 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (citing Henry v. Henry, 48 S.W.3d 468, 473-74 (Tex. App.—Houston [14th Dist.] 2001, no pet.)).

Mere trivial matters or disagreements do not justify granting a divorce on cruel-treatment grounds. Id. Or if a spouse suffers only nervousness or embarrassment, cruelty grounds are not merited. Newberry v. Newberry, 351 S.W.3d 552, 557 (Tex. App.—El Paso 2011, no pet.).

On the other hand, physical abuse will support granting a divorce on cruelty grounds. Id. But cruelty need not be limited to bodily injury. Id. For example, adultery may constitute cruel treatment. Id. A factfinder may use acts occurring after separation to support a cruelty finding. Id. The accumulation of several different acts may constitute sufficient grounds on which to grant a divorce on cruelty grounds. Id.

2. Standard of Review

We review most appealable issues in family law cases under an abuse-of-discretion standard. C.A.S., 405 S.W.3d at 382; Sandone v. Miller-Sandone, 116 S.W.3d 204, 205 (Tex. App.—El Paso 2003, no pet.). This standard of review applies to a

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trial court's granting of a divorce on fault grounds. C.A.S., 405 S.W.3d at 382; Wells v. Wells, 251 S.W.3d 834, 838 (Tex. App.—Eastland 2008, no pet.).

When determining whether a trial court abused its discretion, we must decide whether the...

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