Robles v. Robles

• Decision Date: 26 February 1998
• Docket Number: No. 01-94-00367-CV,01-94-00367-CV
• Citation: 965 S.W.2d 605
• Parties: Gus C. ROBLES, Appellant, v. Irene ROBLES, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 605

965 S.W.2d 605

Gus C. ROBLES, Appellant, v. Irene ROBLES, Appellee.

No. 01-94-00367-CV.

Court of Appeals of Texas Houston (1st Dist.).

Feb. 26, 1998.

Earle S. Lilly, Warren Cole, Houston, Leslie Werner de Soliz, Corpus Christi, for Appellant.

Greg S. Lindley, Edward E. Lindsay, Houston, for Appellee.

Before WILSON, O'CONNOR and HUTSON-DUNN, ^* JJ.

OPINION ON MOTION FOR REHEARING

WILSON, Justice.

The appellant, Gus C. Robles, appeals from the trial court's entry of a final decree of divorce and division of property between him and the appellee, Irene Robles. ¹ We grant appellant's motion for rehearing, withdraw our original opinion of August 8, 1996, and substitute the following opinion in its place.

In seven points of error, Gus contends the trial court erred by (1) not timely signing findings of fact and conclusions of law when requested to do so; (2) denying his request for a trial de novo on appeal of the associate judge's ruling; (3) classifying certain real property as community property and awarding it to Irene; and (4) classifying a bank account as community property and awarding half of the account funds to Irene. We affirm.

Summary of Facts

Gus and Irene were married in 1949, and lived together until 1970, when they separated. Gus filed for divorce in 1992 in district court. The Honorable C. Dean Huckabee, presiding judge of the 247th District Court, referred the parties' divorce proceeding to an associate judge, ² the Honorable William Morris. ³ The trial court's docket sheet indicates the associate judge presided at a bench trial and heard testimony of the parties and witnesses.

The trial began September 27, 1993. Evidence was presented to the associate judge on September 27 and October 7 and 15. The evidence was concluded on October 15 and the associate judge then took the case "under advisement." The associate judge stated on the record that he would take at least three weeks before reaching a decision.

An entry on the court's docket sheet signed by the associate judge indicates he "granted" the parties a divorce on November 30, 1993. ⁴ The docket sheet entry for that day reads: "Divorce granted per record. Court's Motion to Enter set 12/15/93 9:00 a.m." A statement of facts from the hearing before the associate judge on November 30 indicates that he pronounced all of his recommendations regarding the division of the marital property on the record in open court. This statement of facts also shows that Gus and his counsel did not appear at this hearing to receive the associate judge's findings and recommendations.

On December 15, 1994, new counsel substituted in for Gus and a continuance was granted moving the hearing on the trial court's entry of judgment to January 4, 1994. On January 4, 1994, a final decree signed by the trial court, granting the parties a divorce and dividing certain real and personal property between the parties, was rendered and filed at 2:20 p.m. On that same day, Gus filed his notice of appeal of the associate judge's recommendations and requested a trial de novo before the trial court. After a hearing, the trial court denied Gus's request for a trial de novo as untimely filed.

Findings of Fact and Conclusions of Law

In his first point of error, Gus contends the trial court erred by not timely filing findings of fact and conclusions of law. Specifically, he argues the trial court's failure to timely file the findings of fact deprived him of his opportunity to object or request additional findings, and he has suffered economic harm due to the added expense of filing an amended brief. As a result, he asks us to reverse and remand for a new trial.

After the judgment was signed, Gus timely requested findings of fact and conclusions of law. ⁵ When the trial court did not file findings of fact and conclusions of law, Gus timely filed a notice of past due findings. ⁶ As a result, the trial court's findings of fact and conclusions of law were due to be filed on March 7, 1994. ⁷

Gus's original appellate brief was filed with this Court on August 16, 1994. The findings of fact and conclusions of law were not signed until September 14, 1994. This Court granted Irene's motion for leave to file the original findings of fact and conclusions of law on October 13, 1994. They then became part of the record and now appear in a supplemental transcript. This Court granted Gus's motion for leave to file an amended brief and subsequently granted an extension of time for Gus to file an amended brief addressing the trial court's findings.

Gus filed an amended brief with this Court on January 17, 1995. He also filed an objection to Irene's motion for leave to file findings of fact and conclusions of law or alternatively, a motion to strike the supplemental transcript containing those findings. This Court ordered that the motion be taken with this appeal.

Gus's reliance on Stefek v. Helvey, 601 S.W.2d 168, 170 (Tex.Civ.App.--Corpus Christi 1980, writ ref'd n.r.e.) for the proposition that we must reverse and remand is misplaced. As correctly stated by Gus, in Stefek, the court disregarded the findings of fact and conclusions of law. Id. at 171. The court held that while minor infractions of the rules concerning the timely filing of findings of fact will be permitted, it would not consider findings and conclusions that grossly violate the filing dates. Id. at 170. However, in Stefek, the court refused the findings of fact because the appellant did not timely comply with the provisions for requesting such findings and conclusions. Id. at 170 (emphasis added). The court's refusal was not based on the trial court's untimely filing. Therefore, we hold that Stefek is distinguishable and does not control our interpretation of the rules regarding time limits for a trial court's filing of findings of fact and conclusions of law.

The procedural rules establishing the time limits for the requesting and filing of findings of fact and conclusions of law do not preclude the trial court from issuing belated findings. Jefferson County Drainage Dist. v. Lower Neches Valley Auth., 876 S.W.2d 940, 959-60 (Tex.App.--Beaumont 1994, writ denied); Morrison v. Morrison, 713 S.W.2d 377, 380 (Tex.App.--Dallas 1986, writ dism'd). Unless they can show injury, litigants have no remedy if a trial court files untimely findings and conclusions. Jefferson County, 876 S.W.2d at 960; Morrison, 713 S.W.2d at 381. Injury may be in one of two forms: (1) the litigant was unable to request additional findings, or (2) the litigant was prevented from properly presenting his appeal. Jefferson County, 876 S.W.2d at 960; Morrison, 713 S.W.2d at 381. If injury is shown, the appellate court may abate the appeal so as to give the appellant the opportunity to request additional or amended findings in accordance with the rules. McShan v. Pitts, 538 S.W.2d 266, 266 (Tex.Civ.App.--San Antonio 1976, no writ); see Jefferson County, 876 S.W.2d at 960; Morrison, 713 S.W.2d at 381.

Although the trial court prepared and filed findings of fact and conclusions of law in an untimely manner, Gus has not shown harm. He was not denied the opportunity to properly present his appeal, because after the record was supplemented, Gus was granted leave to file an amended brief addressing the untimely filed findings and conclusions. Additionally, Gus was not prevented from objecting and requesting additional findings of fact and conclusions of law. Within 10 days after the trial court files its original findings and conclusions, any party may file a request for specified additional or amended findings or conclusions. TEX.R.CIV.P. 298. Also, a trial court may file additional findings even after it loses plenary power to affect the judgment. Morrison, 713 S.W.2d at 380-81. The failure to request additional findings of fact and conclusions of law constitutes a waiver on appeal of the trial court's lack of such findings and conclusions. Keith v. Keith, 763 S.W.2d 950, 953 (Tex.App.--Fort Worth 1989, no writ); Goldston Corp. v. Hernandez, 714 S.W.2d 350, 352 (Tex.App.--Corpus Christi 1986, writ ref'd n.r.e.). The record indicates Gus did not file a request for additional findings or conclusions with the trial court. Neither party has asked this Court to abate the appeal in order for the trial court to make additional findings or conclusions.

We overrule his first point of error and overrule his motion to strike the supplemental transcript. Based on this record, we conclude Gus has not been deprived of his ability to properly present his case on appeal because of the trial court's late filing of its findings of fact and conclusions of law. See TEX.R.APP.P. 44.1. Thus, we refuse to remand this case or to abate the appeal.

Right of De Novo Appeal to Referring Court

In his second and third points of error, Gus contends the trial court erred in finding his appeal of the associate judge's recommendations was not timely and in rendering judgment. Gus asserts he was deprived of his statutory right to a de novo appeal of the associate judge's recommendations before the referring court.

The authority and responsibilities of a family court master at the time of the parties' divorce proceeding were governed in part by former section 54.010 of the Texas Government Code. ⁸ That section provided:

(a) At the conclusion of any hearing conducted by a master and on the preparation of a master's report, the master shall transmit to the referring court all papers relating to the case, with the master's signed and dated report.

(b) After the master's report has been signed, the master shall give to the parties participating in the hearing notice of the substance of the report. The master's report may contain the master's findings, conclusions or recommendations. The master's report must be in writing in a form as the referring court may direct. The form may be a notation on the referring court's docket sheet.

(c) Notice of the right of appeal to the judge...