In re C.A.S., 05-11-01338-CV

• Decision Date: 26 June 2013
• Docket Number: No. 05-11-01338-CV,05-11-01338-CV
• Parties: IN THE MATTER OF THE MARRIAGE OF C.A.S. AND D.P.S
• Court: Court of Appeals of Texas

IN THE MATTER OF THE MARRIAGE OF C.A.S. AND D.P.S

No. 05-11-01338-CV

Court of Appeals Fifth District of Texas at Dallas

Dated: June 26, 2013

AFFIRM; and Opinion Filed June 26, 2013.

On Appeal from the 199th Judicial District Court

Collin County, Texas

Trial Court Cause No. 199-53871-2009

OPINION

Before Justices Lang-Miers and Fillmore¹

Opinion by Justice Fillmore

Daniel Silvey (Daniel) appeals from a divorce decree dissolving the marriage between him and Cynthia Silvey (Cynthia). In three issues, Daniel argues the trial court erred in dividing the marital property, by granting the divorce on fault grounds, and by failing to make sufficient findings of fact. We affirm the trial court's judgment.

Background

Daniel and Cynthia married in 1999 and separated on March 23, 2009 when Cynthia moved out of the marital home. Cynthia filed for divorce in August 2009 alleging irreconcilable differences but, shortly before trial, filed an amended petition asserting Daniel had committed adultery and seeking a disproportionate share of the community estate. The property divisionissues were tried to the bench over the course of four nonconsecutive days between April and July 2011.

On July 6, 2011, the trial court sent a letter to the parties stating the divorce was granted on fault grounds and setting out the division of the marital property. On July 22, 2011, Daniel filed a request for findings of fact and conclusions of law pursuant to rules of civil procedure 296 and 297 and, on August 1, 2011, filed a supplemental request for findings of fact and conclusions of law pursuant to section 6.711 of the family code. Daniel filed a motion for new trial on August 5, 2011, a notice of past due findings of fact and conclusions of law on August 12, 2011, and a notice of appeal on October 3, 2011.

On October 13, 2011, the trial court signed a final decree of divorce that specifically divided certain of the community assets and liabilities and ordered that any of the community assets not specifically divided would be divided through alternate selection by Cynthia and Daniel. On November 14, 2011, the trial court made findings of fact and conclusions of law pursuant to section 6.711 of the family code and rules of civil procedure 296 and 297. The trial court found that Daniel had committed adultery and that the divorce was granted on that basis. The trial court also found that Daniel "made a game of this divorce. On the surface it appears that he has made a game of the dissolution of his business, and such conduct on his part constitutes a 'mockery of the judicial system.'" The trial court valued a number of the specifically divided assets, as well as some of the assets that were to be divided by alternate selection. Our review of the trial court's findings indicates the marital assets that were specifically divided and valued by the trial court equal $1,646,683.10. Cynthia was awarded $1,334,958.10, or eighty-one percent, of these assets, and Daniel was awarded $311,735.00, or nineteen percent, of these assets. The trial court also listed the factors it considered in making a just and right division of the community estate.

On December 12, 2011, Daniel requested the trial court make additional findings, asserting his counsel had not been notified of the trial court's findings of fact and conclusions of law until December 3, 2011. Daniel specifically requested the trial court make findings as to:

A. Whether adultery of [Daniel] was at fault for causing the break up of the parties' marriage.

B. Whether the marriage became insupportable because of discord or conflict of personalities that destroyed the legitimate ends of the marital relationship and prevented any reasonable expectation of reconciliation.

C. Whether any conduct of [Daniel] as alleged in paragraph 9 of [Cynthia's] Second Amended Petition for Divorce supports the award of a disproportionate share of the community estate in favor of Cynthia.

Daniel specifically requested nineteen additional findings relating to these three subjects.

On January 26, 2012, the trial court signed an amended decree of divorce that did not change the division of community property, but awarded Daniel certain property as his separate property. On February 15, 2012, Daniel again requested findings of fact and conclusions of law and, on March 14, 2012, filed a notice of past due findings of fact and conclusions of law. The trial court did not make any additional findings or conclusions.

Findings of Fact and Conclusions of Law

In his third issue, Daniel contends the trial court erred by failing to make sufficient findings of fact, by failing to timely mail its findings to counsel, and by failing to make additional findings.²

Daniel first asserts the trial court's findings failed to comply with section 6.711(a) of the family code because the findings "omit evaluation findings for a third of the items divided in thedecree, including significantly, [Daniel's] tax liability." Daniel's brief contains no further argument pertinent to this complaint, and we question whether it had been adequately briefed. See TEX. R. APP. P. 38.1(h), (i). However, we will address the complaint as to the tax liability, the only specific asset or liability raised by Daniel on appeal.

Section 6.711(a) of the family code provides that in a suit for dissolution of marriage, on request by a party, the court shall state in writing its findings of fact and conclusions of law concerning (1) the characterization of each party's assets, liabilities, claims, and offsets on which disputed evidence has been presented, and (2) the value or amount of the community estate's assets, liabilities, claims, and offsets on which disputed evidence has been presented. TEX. FAM. CODE ANN. § 6.711(a) (West 2006). The trial court apportioned the parties' 2009 and 2010 tax liability to Daniel. As to the tax liability, Daniel testified he estimated the tax liability for 2009 was $40,000 and for 2010 was $20,000. Cynthia testified she had been told there was a tax debt for 2009 and 2010, but had not been provided any documents to substantiate that claim. Based on the check register, Cynthia believed $240,000 had been paid toward the 2009 tax liability and that there was an additional $75,000 credit carried forward from the 2008 tax return to be applied to the 2009 tax liability. Daniel agreed that approximately $300,000 had been paid toward the 2009 tax liability. Because the amount of the tax liability was undisputed, the trial court was not required to make a finding as to the amount. See TEX. FAM. CODE ANN. § 6.711(a); Jackson v. Jackson, No. 03-10-00736-CV, 2011 WL 3373290, at *3 (Tex. App.—Austin Aug. 3, 2011, no pet.) (mem. op.).

Daniel next contends the trial court erred by failing to timely mail its November 14, 2011 findings to Daniel's counsel and by failing to make additional findings as requested by Daniel on December 12, 2011. Daniel argues the original findings fail to (1) state whether the trial court found that adultery caused the dissolution of the marriage or related to pre- or post-separationconduct, (2) state the basis for the trial court's award to Cynthia of more property than she requested, and (3) contained no explanation for the trial court's "harsh rebuke" that Daniel had made a game of the divorce and the dissolution of his business and that his conduct constituted a "mockery of our judicial system." Daniel asserts he is "left guessing" as to the basis for the trial court's ruling and cannot adequately address the findings on appeal. Daniel's complaints necessarily relate to the trial court's failure to make additional findings pursuant to rule of civil procedure 298. See Moore v. Moore, 383 S.W.3d 190, 200-01 (Tex. App.—Dallas 2012, pet. denied) (recognizing distinction between findings of fact under section 6.711 of the family code and findings of fact under rules of civil procedure).

Rule of civil procedure 298 provides that, after a trial court files original findings of fact and conclusions of law, "any party may file with the clerk of the court a request for specified additional or amended findings or conclusions. The request for these findings shall be made within ten days after the filing of the original findings and conclusions by the court." TEX. R. CIV. P. 298. When a party makes an untimely request for additional findings and conclusions, the party waives the right to complain on appeal of the trial court's refusal to enter the additional findings or conclusions. Edgewater Seed Market v. Magnolia Indep. Sch. Dist., No. 11-07-00136-CV, 2008 WL 4512851, at *2 (Tex. App.—Eastland Oct. 9. 2008, no pet.) (mem. op.); Cities Servs. Co. v. Ellison, 698 S.W.2d 387, 390 (Tex. App.—Houston [14th Dist.] 1985, writ ref'd n.r.e.). In this case, Daniel failed to file his request for additional findings of fact and conclusions of law within ten days after the trial court signed the original findings of fact and conclusions of law. Although Daniel claims he was prevented from making a timely request for additional findings by the trial court's failure to provide timely notice of the filing of the findings of fact and conclusions of law, he did not obtain a ruling from the trial court as to the date he received notice. See TEX. R. CIV. P. 306a; Florance v. State, 352 S.W.3d 867, 873 (Tex. App.—Dallas 2011, no pet.). Other than Daniel's contention in his request for the additional findings that he had not received notice of the original findings, the record is silent as to when either Daniel or his counsel was notified of the filing of the findings and conclusions.

Daniel had the burden to preserve any error in the trial court. See TEX. R. APP. P. 33.1(a). His recitation in his request for additional findings and in his brief that he did not receive notice of the findings of fact and conclusions of law is not sufficient to preserve error.³ We cannot conclude Daniel preserved his right to complain on appeal about the trial court's failure to...