Lettieri v. Lettieri

• Decision Date: 22 June 1983
• Docket Number: No. 2-82-179-CV,2-82-179-CV
• Citation: 654 S.W.2d 554
• Parties: Michael F. LETTIERI, Appellant, v. Sherlyn LETTIERI, Appellee.
• Court: Texas Court of Appeals

Page 554

654 S.W.2d 554

Michael F. LETTIERI, Appellant, v. Sherlyn LETTIERI, Appellee.

No. 2-82-179-CV.

Court of Appeals of Texas Fort Worth.

June 22, 1983.

Rehearing Denied July 27, 1983.

G.H. Kelsoe, Jr., Dallas, for appellant.

Richard H. Kelsey, Denton, for appellee.

Before FENDER, C.J., and SPURLOCK and BURDOCK, JJ.

OPINION

SPURLOCK, Justice.

This case is an appeal from a divorce judgment of the 211th District Court of Denton County, Texas. Michael Frank Lettieri, appellant-husband filed suit against Sherlyn Lettieri, appellee-wife, seeking a divorce and division of the community property. The wife filed an answer and crossaction for divorce. There were no children of the marriage. Husband appeals from the property division only, complaining that there was an inequitable division of the community property estate of the parties.

We affirm.

In his first five points of error, husband complains that (1) the trial court erred in filing findings of fact and conclusions of law regarding the property division, which consisted only of conclusions of law; (2) that the findings of fact and conclusions of law which were filed do not support the judgment; (3) the trial court erred in its actions in awarding to wife the amount of property it did because such award under all the circumstances was unfair, arbitrary and capricious, and constituted an abuse of discretion by the trial court; (4) that there was no evidence to support the conclusions that the trial court reached in its findings of fact and conclusions of law in its judgment that its division was equitable; and (5) there is insufficient evidence to support the conclusions of the trial court that its judgment was an equitable division of the property.

On June 2, 1982, trial was had before the court without a jury, and on July 2, 1982, the court signed a divorce decree. The husband filed a motion for new trial on July 30, 1982, which the trial court overruled on September 1st, signing an order overruling it on September 8th. Husband timely filed his request for findings of fact and conclusions of law on September 16th. Thereafter, he filed with the court a remainder to file findings of fact and conclusions of law on October 12, 1982, which the trial court acknowledged. The trial court filed its findings of fact and conclusions of law on October 15, 1982.

A review of the trial court's findings of fact and conclusions of law reveals that they sufficiently dispose of the subject matter, venue, jurisdiction, parties, and property issues in this case. While not as complete as husband desires, they nevertheless are dispositive of each of the ultimate (controlling) issues needed to be decided by the court on trial of the case below. Tex.R.Civ.P. 296 and T-Anchor Corp. v. Travarillo Associates, 529 S.W.2d 622 (Tex.Civ.App.--Amarillo 1975, no writ); Goren v. Goren, 531 S.W.2d 897 (Tex.Civ.App.--Houston [1st Dist.] 1975, writ dism'd). Husband's argument in his first point of error is that these findings of fact and conclusions of law filed by the trial court are not effective to be findings of fact and conclusions of law. He contends they are not complete enough to serve any purpose and in effect do not support his theory of the case. In this particular instance, there was no further request after the court filed its findings of facts and conclusions of law for the court to file additional findings and conclusions. This request is authorized by Tex.R.Civ.P. 298 and cases citing such rule. See Vapor Corp. v. Welker, 582 S.W.2d 858 (Tex.Civ.App.--Beaumont 1979, no writ); Lykes Bros. S.S. Co., Inc. v. Benben, 601 S.W.2d 418 (Tex.Civ.App.--Houston [14th Dist.] 1980, writ ref'd n.r.e.). Where the appellant fails to make such a request timely in accordance with Rule 298, that failure is a waiver of any error on the part of the court to make complete findings and a waiver of the right to complain of the trial court's failure to make certain findings deemed necessary by the appellant. See Hausler v. Hausler, 636 S.W.2d 874 (Tex.App.--Waco 1982, no writ); Van Dyke v. Van Dyke, 624 S.W.2d 800 (Tex.App.--Houston [14th Dist.] 1981, no writ); and Vapor Corp., supra. The party failing to make such a request has also been deemed to have waived the right to complain that the findings which were filed were not full and complete. See Fettig v. Fettig, 619 S.W.2d 262 (Tex.Civ.App.--Tyler 1981, no writ). Having failed to complain properly of the trial court's failure to make as full and complete findings of fact and conclusions of law as husband desired, we hold he has waived the right to complain of the lack of completeness of the same upon appeal, and accordingly, hold that the court did not commit error. Point of error number one is overruled.

Point of error two complains that the findings of fact and conclusions of law filed by the trial court do not support the judgment for property division entered by the court. Husband particularly complains that the court's finding of fact is insufficient in item no. 4E to support the court's conclusions of law contained in its item no. 4, stating "that an equitable division of the property was made". The trial court in a divorce case makes many determinations of evidentiary matters leading up to the ultimate conclusion, division of the property. In point of error one, we discussed husband's failure to request specific findings of fact or conclusions of law after he was furnished with the court's original findings.

Texas courts have long tried to settle the issue of what a trial court is required to do in making its findings. It must find on each material issue which is raised by the pleadings and evidence, but not on evidentiary issues as distinguished from controlling matters. See T-Anchor, supra. Further, the court does not have to set out its theories or legal basis for its judgments. See Jamison Cold Storage Door Co. v. Brown, 218 S.W.2d 883 (Tex.Civ.App.--Fort Worth, 1949, writ ref'd n.r.e.). Nor does the court have to set out in minute detail his reasons for having reached the legal conclusions expressed. Jamison, supra, and Stephenson v. Vineyard, 564 S.W.2d 424 (Tex.Civ.App.--Houston [1st Dist.] 1978, writ ref'd n.r.e.). Many Texas courts have considered what constitute the ultimate issues to be decided by the courts in a divorce case. The most recent case, and the one this court is required to follow, is that of Vallone v. Vallone, 644 S.W.2d 455 (Tex.1982).

In Vallone, the Supreme Court has held that characterizing (i.e., determining the source of) property is an issue of fact to be determined by the trial court. Vallone, p. 458. The test to be applied on appeal is whether or not an error of law occurred in applying the right standards by which to test the factual evidence. If there is no question of law preserved by point of error that a wrong test of characterization was applied, "[t]his leaves a factual determination which this court does not have jurisdiction to decide." Vallone, supra. This means that the controlling (ultimate) issue in a case of property division is whether or not the court divided the property in a just and right manner as required by Tex.Family Code Ann. sec. 3.63 (1982). Appellant's point of error presents nothing for this court to review. He has failed to raise any error of law made by the trial court in characterizing property, as he failed to request any specific findings by the trial court. The court's findings are sufficient on the controlling issues, and appellant's point of error two is overruled.

The husband, in his points of error nos. 3, 4 and 5, has argued that the court abused its discretion and divided the property in an unfair, arbitrary, and capricious manner. He further contends that there was no evidence to support the court's judgment that an equitable division was made, and argues there was insufficient evidence to support the judgment. In making its division of property, the trial court awarded the parties the following respective assets:

1. To the wife:

a. The sum of $210,000.00 cash with a lien secured by the real property, the residence of the parties, known as Red Bud Point Home.

b. A Thunderbird automobile and certain community property in the husband's possession, and recovery of disputed items of property which were in the wife's possession.

2. To the husband: the remainder of all of the estate of the parties together with all of the debts of the community which had accrued.

Husband argues that the total value of the recovery of the wife was $304,369.00. He arrived at this figure by adding the $210,000.00 cash, together with the value placed upon the Thunderbird automobile, and by estimating certain values of other property which the court awarded to the wife. There are no specific findings of fact in this regard by the trial court and as most of the testimony was disputed, it is impossible to find on appeal specific values placed upon the property.

Assuming, arguendo, that the $304,369.00 figure is correct, this court must determine whether or not there was sufficient community property remaining to be awarded to appellant so that the trial court could reach its decision that it had as a conclusion of law, divided the property in a fair and equitable manner. The trial court is given wide discretion in making its division, and this court should resolve every reasonable presumption in favor of the trial court's proper exercise of that discretion, absent a clear showing of abuse. Van Dyke, supra p. 802.

The husband has cited this court to many specific instances of testimony about debts and values of items of property. Particularly, he alleges the evidence showed that two paintings were of "no value." This court finds that there is evidence in the record contrary to the conclusions drawn by appellant, and that the paintings could have been found by the trial court to have been of a value as high as $760,000.00. Both of these paintings were awarded...