Hamilton v. Hamilton
Decision Date | 05 November 2020 |
Docket Number | No. 02-19-00211-CV,02-19-00211-CV |
Parties | PHILIP HAMILTON, Appellant v. LORI ANNE (LINEBARGER) HAMILTON, Appellee |
Court | Texas Court of Appeals |
On Appeal from the 360th District Court Tarrant County, Texas
Before Gabriel, Kerr, and Womack, JJ.
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:
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.
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 severelyprejudiced 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.).
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.
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.) () ; Howe, 551 S.W.3d at 244, 253 () ; 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.) ; 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 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 (); 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) ().
"[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 overrule Philip's first point.
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.
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.
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 atrial 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 trial court acted without reference to any guiding rules...
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