Howe v. Howe

• Decision Date: 11 April 2018
• Docket Number: No. 08-16-00070-CV,08-16-00070-CV
• Parties: Rusty Wayne HOWE, Appellant, v. Julie Ann HOWE, Appellee.
• Court: Texas Court of Appeals

551 S.W.3d 236

Rusty Wayne HOWE, Appellant,

v.Julie Ann HOWE, Appellee.

No. 08-16-00070-CV

Court of Appeals of Texas, El Paso.

April 11, 2018

ATTORNEY FOR APPELLEE: Caroline McClimon, Morris & McClimon, Attorneys at Law PLLC, 219 Main Street, Smithville, TX 78957.

ATTORNEY FOR APPELLANT: Hon. Christopher A. Hammon, Attorney at Law, PLLC, 1110 Main Street, Ste. A, Bastrop, TX 78602.

Before McClure, C.J., Rodriguez, and Palafox, JJ.

OPINION

ANN CRAWFORD McCLURE, Chief JusticeThis appeal arises out of an acrimonious divorce that is now procedurally challenged by a dispute over whether the trial court made findings of fact and conclusions of law. We affirm in part, and reverse and render in part.

FACTUAL SUMMARY

Julie Ann Howe (Wife) filed a petition for divorce from Rusty Wayne Howe (Husband) in November 2014. The couple had been married for eighteen years and had two children, aged 14 and 16, as of the date of divorce. Initial efforts to reconcile failed, and the relationship of the parties became increasingly confrontational. Following a non-jury trial, and relevant here, the decree: (1) appointed the parents joint managing conservators, but gave Wife the exclusive right to determine the primary residence of the children without geographic limitation; (2) ordered Husband to pay child support; (3) ordered Husband to pay spousal maintenance; (4) divided the assets and debts, and according to Husband, gave him little of the former and most of the latter; (5) determined that the proceeds from the sale of the marital residence were Wife’s separate property; (6) ordered Husband to pay interim attorney’s fees that resulted from an earlier default; (7) assessed the ad litem costs against Husband; and (8) incorporated the standard visitation order. Other than the child support order, Husband attacks each of these rulings. We elaborate on the evidence germane to each ruling in conjunction with each issue below.

PROCEDURAL POSTURE

Our first decision point is whether we are reviewing the trial court’s judgment with or without findings of fact and conclusions of law. What should be a straightforward question is not based on the record before us.

Traditional Findings of Fact

A request for findings and conclusions shall be filed within twenty days after the judgment is signed. Rule 296 mandates that the request be specifically entitled "Request for Findings of Fact and Conclusions of Law." TEX.R.CIV.P. 296. The request should be a separate instrument and not coupled with a motion for new trial or a motion to correct or reform the judgment. A litigant who misses the deadline waives the right to complain of the trial court’s failure to prepare the findings.

Upon timely demand, the court shall prepare its findings and conclusions and file them within twenty days after a timely request is filed. TEX.R.CIV.P. 297. The court is required to mail a copy to each party. Deadlines for requesting additional or amended findings run from the date the original findings and conclusions are filed, as noted below.

If the trial court fails to submit the findings and conclusions within the 20-day period, the requesting party must call the omission to the attention of the judge within 30 days after filing the original request. Failure to submit a timely reminder waives the right to complain of the court’s failure to make findings. Averyt v. Grande, Inc. , 717 S.W.2d 891 (Tex. 1986) ; Employers Mutual Casualty Co. v. Walker , 811 S.W.2d 270 (Tex.App.—Houston [14th Dist.] 1991, writ denied) ; Saldana v. Saldana , 791 S.W.2d 316, 318 (Tex.App.—Corpus Christi 1990, no writ). Where the reminder is filed, the time for the filing of the court’s response is extended to 40 days from the date the original request was filed.

If the court files findings and conclusions, either party has a period of ten days in which to request specified additional or amended findings or conclusions. The court shall file same within ten days after the request, and again, cause a copy to be mailed to each party. No findings or conclusions shall be deemed or presumed by any failure of the court to make additional findings or conclusions. TEX.R.CIV.P. 298.

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 them. Briargrove Park Property Owners, Inc. v. Riner, 867 S.W.2d 58, 62 (Tex.App.—Texarkana 1993, writ denied) ; Cities Services Co. v. Ellison. 698 S.W.2d 387, 390 (Tex.App.—Houston [14th Dist.] 1985, writ ref'd n.r.e.). Where the original findings omit a finding of a specific ground of recovery which is crucial to the appeal, failure to request an additional finding will constitute waiver. Poulter v. Poulter, 565 S.W.2d 107 (Tex.Civ.App.—Tyler 1978, no writ) (failure to request a specific finding on reimbursement waived any reimbursement complaints on appeal).

The general rule is that the failure of the trial court to file findings of fact constitutes error where the complaining party has complied with the requisite rules to preserve error. Wagner v. Riske, 142 Tex. 337, 342, 178 S.W.2d 117, 119 (1944) ; FDIC v. Morris , 782 S.W.2d 521, 523 (Tex.App.—Dallas 1989, no writ). There is a presumption of harmful error unless the contrary appears on the face of the record. In the Matter of the Marriage of Combs, 958 S.W.2d 848, 851 (Tex.App.—Amarillo 1997, no writ) ; City of Los Fresnos v. Gonzalez, 830 S.W.2d 627 (Tex.App.—Corpus Christi 1992, no writ). Thus, the failure to make findings does not compel reversal if the record before the appellate court affirmatively demonstrates that the complaining party suffered no harm. Las Vegas Pecan & Cattle Co., Inc. v. Zavala County, 682 S.W.2d 254, 256 (Tex. 1984). Where there is only one theory of recovery or defense pled or raised by the evidence, there is no demonstration of injury. Guzman v. Guzman, 827 S.W.2d 445 (Tex.App.—Corpus Christi 1992, writ denied) ; Vickery v. Texas Carpet Co., Inc., 792 S.W.2d 759 (Tex.App.—Houston [14th Dist.] 1990, writ denied). Accord, Landbase, Inc. v. T.E.C., 885 S.W.2d 499, 501-02 (Tex.App.—San Antonio 1994, writ denied) (failure to file findings and conclusions harmless where the basis for the court’s ruling was apparent from the record).

The test for determining whether the complainant has suffered harm is whether the circumstances of the case would require an appellant to guess the reason or reasons that the judge has ruled against it. Elizondo v. Gomez, 957 S.W.2d 862 (Tex.App.—San Antonio 1997, writ denied) ; Martinez v. Molinar, 953 S.W.2d 399 (Tex.App.—El Paso 1997, no writ) ; Sheldon Pollack Corp. v. Pioneer Concrete, 765 S.W.2d 843, 845 (Tex.App.—Dallas 1989, writ denied) ; Fraser v. Goldberg, 552 S.W.2d 592, 594 (Tex.Civ.App.—Beaumont 1977, writ ref'd n.r.e.). The issue is whether there are disputed facts to be resolved. FDIC v. Morris, 782 S.W.2d at 523.

With regard to additional findings, the case should not be reversed if most of the additional findings were disposed of directly or indirectly by the original findings and the failure to make the additional findings was not prejudicial to the appellant.

Landscape Design & Const., Inc. v. Harold Thomas Excavating, Inc., 604 S.W.2d 374 (Tex.Civ.App.—Dallas 1980, writ ref'd n.r.e.). Refusal of the court to make a requested finding is reviewable on appeal if error has been preserved. TEX.R.CIV.P. 299.

Where findings of fact are filed by the trial court, they shall form the basis of the judgment upon all grounds of recovery. The judgment may not be supported on appeal by a presumption or finding upon any ground of recovery no element of which has been found by the trial court. When the trial court gives express findings on at least one element of a claim or affirmative defense, but omits other elements, implied findings on the omitted unrequested elements are deemed to have been made in support of the judgment. In other words, if a party secures an express finding on at least one element of an affirmative defense, then deemed findings arise as to the balance of the elements. Lindner v. Hill, 691 S.W.2d 590 (Tex. 1985) ; Dunn v. Southern Farm Bureau Casualty Insurance Co., 991 S.W.2d 467 (Tex.App.—Tyler 1999, pet. denied) ; Sears, Roebuck and Co. v. Nichols, 819 S.W.2d 900 (Tex.App.—Houston [14th Dist.] 1991, writ denied). Where deemed findings arise, it is not an appellee’s burden to request further findings or to complain of other findings made. It is the appellant’s duty to attack both the express and implied findings.

Statutory Findings of Fact

Findings In Child Support Orders

At the time of the final hearing in this case, the Family Code provided that without regard to TEX.R.CIV.P. 296 through 299, in rendering an order of child support, the court shall make written findings of fact if (1) the party files a written request with the court not later than ten days after the date of the hearing, not after the entry of judgment; (2) the party makes an oral request in open court during the hearing; or (3) the amount of child support ordered by the court varies from the child support guidelines. Act of June 19, 2009, 81st Leg., R.S., ch. 767. § 6, 2009 TEX.GEN.LAWS 1938, 1939-40 (amended 2017)(current version at TEX.FAM.CODE ANN. § 154.130 (West Supp. 2017)).

Findings In Visitation Orders

Without regard to Rules 296 through 299, in all cases in which possession of a child by a parent is contested and the possession of the child varies from the standard possession order, the trial court shall state in the order the specific reasons for the variance from the standard order. Act of April 20, 1995, 74th Leg., R.S., ch. 20 § 1, 1995 TEX.GEN.LAWS 113, 152 (amended 2017) (current version at TEX.FAM.CODE ANN. § 153.258 (West. Supp. 2017)). A written request must be filed with the court not later than ten days after the date of the hearing. An oral request must be made in open court during the hearing.

Findings in Dissolution of Marriage

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