Nguyen v. Pham

• Decision Date: 26 October 2021
• Docket Number: 14-19-00531-CV
• Citation: 640 S.W.3d 266
• Parties: Jon Van NGUYEN, Appellant v. Alabama Thao PHAM, Appellee
• Court: Texas Court of Appeals

640 S.W.3d 266

Jon Van NGUYEN, Appellant

v.Alabama Thao PHAM, Appellee

NO. 14-19-00531-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinions filed October 26, 2021

Rehearing and Rehearing En Banc Denied February 3, 2022

Erik V. Larson, Houston, for Appellant.

Stephanie J. Proffitt, Aletta "Katy" Gardner, Houston, for Appellee.

Panel consists of Justices Wise, Bourliot, and Spain

Frances Bourliot, Justice Jon Van Nguyen appeals the trial court's final decree dissolving his marriage to Alabama Thao Pham. Nguyen raises ten issues in this appeal, challenging the trial court's determination and division of the community estate and adoption of an alleged agreement between the parties as to child conservatorship, support, and access, among other concerns. We affirm.

Background

This case was tried to the bench. The court considered issues related to the one child of the marriage on March 21, 2018 and the property issues on March 14, 2019. In its final decree, the court granted the divorce on the grounds of insupportability and Nguyen's cruelty.

The court named Pham the child's sole managing conservator with the right to designate the primary residence with a geographic restriction to the State of Texas. The court neither named Nguyen a conservator of the child nor granted him any rights of possession or access. Child support was to be paid directly from Nguyen's social security disability benefits. Pham was required to maintain health and dental insurance for the child, and each party was 50 percent responsible for uninsured healthcare expenses.

In making a just and right division of the marital estate, the trial court awarded Pham the real property located at 9347 Carmalee Street; the personal effects in her possession or control; cash and accounts in her possession, control, and sole name; a 2003 Acura; and a cash payment from Nguyen of $52,000, among other things. To Nguyen, the court awarded the real property at 9335 Carmalee Street; the personal effects in his possession or control; cash and accounts in his possession, control, and sole name; a 2001 Toyota; and a 2008 Toyota, among other things. The court charged each party with paying the liabilities they personally incurred since August 13, 2016, as well as any taxes pertaining to property they were awarded. The court also charged Nguyen with paying any debt associated with 9347 Carmalee Street, which was awarded to Pham.

The trial court held that Nguyen committed fraud on the community when he transferred ownership of 9347 Carmalee to his son from a former marriage, and the court considered that fraud in its division of the community property. The court also ordered Nguyen to pay $10,000 of Pham's attorney's fees. Lastly, the court ordered that all relief requested in this case and not expressly granted in the decree was denied.

In its findings of fact, the trial court determined that Pham and Nguyen were informally married on or about January 1, 2009. The court also found that on March 21, 2018, Pham and Nguyen entered a stipulated agreement which addressed the issues related to child custody. Under the agreement, Pham was to be named sole managing conservator with a geographical restriction to Texas and Nguyen was not to be named a conservator or have any access to the child.

As considerations influencing the division of property, the court listed the fault in the failure of the marriage, the conservatorship of the child, the nature of the property, and actual and constructive fraud. The court stated that during the marriage, Nguyen transferred funds from joint accounts on three occasions in the amounts of $50,025, 40,275, and 44,335.94 but failed to overcome the presumption that these funds were community property. The court also found that Nguyen failed to prove his reimbursement claim related to payments for Pham's education during the marriage. Lastly, the court found that Pham incurred $17,000 in attorney's fees and that Nguyen had incurred $26,897 in attorney's fees.

In its conclusions of law, the trial court held that both properties on Carmalee were community property, as were the funds Nguyen had transferred during the marriage. The court also concluded that Pham's attorney's fees were reasonable and necessary.

Discussion

In ten issues, Nguyen contends that the trial court erred in (1) failing to file findings of fact and conclusions of law¹ ; (2) not making a finding on the date of the marriage; (3) holding that the real property located at 9335 Carmalee Street was community property; (4) ordering Nguyen to make a cash payment of $52,000 to Pham; (5) not making a finding on Nguyen's reimbursement claim regarding payment for Pham's education during the marriage; (6) awarding 9347 Carmalee Street to Pham due to fraudulent transfer; (7) not making a finding regarding Nguyen's claim that Pham fraudulently opened and made charges on two credit cards; (8) ordering Nguyen to pay $10,000 of Pham's attorney's fees; (9) ordering an arbitrary or unreasonable division of community property; and (10) adopting an alleged agreement as to issues concerning the child.

I. Findings of Fact

Nguyen's first, second, fifth, and seventh issues complain that the trial court failed to enter findings of fact. Although this was correct when Nguyen filed his initial briefing in this case, the trial court subsequently filed findings of fact and conclusions of law on November 8, 2019.

When a party makes a proper and timely request for findings of fact and conclusions of law and the trial court fails to comply, harm is presumed unless the record affirmatively shows that the complaining party suffered no injury. See Tex. R. Civ. P. 296 ; Watts v. Oliver , 396 S.W.3d 124, 130 (Tex. App.—Houston [14th Dist.] 2013, no pet.). In assessing whether the requesting party was harmed, courts consider if the failure to file findings prevented the party from properly presenting the case on appeal. Slater v. Slater , No. 14-13-00693-CV, 2014 WL 6677603, at *3 (Tex. App.—Houston [14th Dist.] Nov. 25, 2014, no pet.) (mem. op.). If a party is harmed by the trial court's failure to make requested findings, the proper remedy is to abate the appeal and direct the trial court to file the findings of fact and conclusions of law pursuant to Texas Rule of Appellate Procedure 44.4(b). E.g., Busch v. Hudson & Keyse, LLC , 312 S.W.3d 294, 298 (Tex. App.—Houston [14th Dist.] 2010, no pet.).

Here, the trial court ultimately filed findings of fact and conclusions of law without the necessity of an abatement. Although, as mentioned, the findings were filed after Nguyen filed his initial briefing, he subsequently filed a reply brief and thus had an opportunity to address the findings, and we will consider those arguments in this opinion to the extent he has made them.

Nguyen argues, however, that we should disregard the late-filed findings and reverse and remand this case for a new trial due to the trial court's failure to timely file findings. Nguyen cites Stefek v. Helvey , 601 S.W.2d 168, 170–71 (Tex. Civ. App.—Corpus Christi 1980, writ ref'd n.r.e.), in which the court disregarded findings and conclusions filed 80 days late, deeming it a gross violation of the filing dates. Nguyen cites no support for his assertion that the delay requires reversal and remand. Stefek is distinguishable in part because in that case, the appellant had not met the deadlines for requesting findings, which does not appear to be the case here. See id. ; see also Robles v. Robles , 965 S.W.2d 605, 610 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (distinguishing Stefek on this basis). In the absence of findings, the Stefek court explained that it would affirm the trial court's judgment on any legal theory that was supported by the evidence, and indeed the court did just that. 601 S.W.2d at 171.

As stated, when a party is harmed by the trial court's failure to make requested findings, the proper remedy is to abate the appeal and direct the trial court to file the findings. See Busch , 312 S.W.3d at 298. Here, the appropriate remedy has already occurred: the trial court filed the past due findings. Accordingly, we overrule Nguyen's first, second, fifth, and seventh issues, which were expressly based on the trial court's failure to make findings.²

II. 9335 Carmalee Street

In his third issue, Nguyen contends that the trial court erred in holding that the real property located at 9335 Carmalee Street was community property. Specifically, Nguyen challenges the legal and factual sufficiency of the evidence to support the finding.

A. Governing Law

Community property consists of the property, other than separate property, acquired by either spouse during marriage. See Tex. Fam. Code § 3.002 ; Barnett v. Barnett , 67 S.W.3d 107, 111 (Tex. 2001) ; Stavinoha v. Stavinoha , 126 S.W.3d 604, 607 (Tex. App.—Houston [14th Dist.] 2004, no pet.). The Family Code defines separate property as property owned by a spouse before marriage or acquired during the marriage by gift, devise, descent, or as a recovery for personal injuries sustained during the marriage. See Tex. Fam. Code § 3.001. Property possessed by either spouse on dissolution of the marriage is presumed to be community property, and to overcome this presumption, a party must establish by clear and convincing evidence that the disputed property is separate property. Tex. Fam. Code § 3.003 ; Zagorski v. Zagorski , 116 S.W.3d 309, 314 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) ; see also Tex. Const. art. XVI, § 15 ; Stavinoha , 126 S.W.3d at 607 (" ‘Clear and convincing’ evidence means the measure or degree of proof that will produce in the mind of the trier of fact a firm conviction or belief as to the truth of the allegations sought to be established."). The spouse claiming the separate nature of property must trace and clearly identify the property claimed to be separate. Barras v. Barras , 396 S.W.3d 154, 163–64 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). Such tracing requires...