Sonnier v. Sonnier

• Decision Date: 20 January 2011
• Docket Number: No. 09–10–00022–CV.,09–10–00022–CV.
• Citation: 331 S.W.3d 211
• Parties: Clyde Martin SONNIER, Appellantv.Bobbie Jo SONNIER, Appellee.
• Court: Texas Court of Appeals

331 S.W.3d 211

Clyde Martin SONNIER, Appellant

v.Bobbie Jo SONNIER, Appellee.

No. 09–10–00022–CV.

Court of Appeals of Texas, Beaumont.

Submitted on Oct. 13, 2010.Decided Jan. 20, 2011.

Hugh O'Fiel, Beaumont, for Appellant.Cimron Campbell, Orange, for Appellee.Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.

OPINION

DAVID GAULTNEY, Justice.

Appellant Clyde Martin Sonnier appeals the trial court's division of property in a divorce decree. Clyde argues that the trial court erred by failing to timely file findings of fact and conclusions of law, and that the court abused its discretion in dividing the community estate. We conclude appellant waived his right to complain of the trial court's failure to file findings of fact and conclusions of law, all necessary findings to support the judgment are implied, and the trial court did not abuse its discretion.

The Record

Appellee Bobbie Jo Sonnier filed a petition for divorce, but after Clyde filed a counter-petition, Bobbie withdrew her petition. In his counter-petition, Clyde asserted reimbursement claims.

The case proceeded to a bench trial. Clyde testified that he worked at ExxonMobil for over thirty-six years, and that he was married to Bobbie during two of those years. According to Clyde, his ExxonMobil retirement account contained $306,000 prior to the parties' marriage. Approximately $102,000 was withdrawn from the account during the marriage. Clyde explained that shortly after the parties' marriage, he paid $12,000 to save Bobbie's separate real estate from foreclosure. The $12,000 came from his 401(k) account. According to Clyde, he also put $30,000 from the account toward the parties' lake house, and $14,000 was used to pay the loan on Bobbie's truck, which she owned before the marriage. Clyde also testified that before the marriage, Bobbie had borrowed $3,000 from her father, and funds from Clyde's retirement account were used to pay that debt. Clyde testified he and Bobbie borrowed $9,700 from his parents. Apparently, the money was used for the lake house and for expenses when Bobbie was unemployed. The lake house was purchased in Bobbie's name.

The seller of the lake house testified that she sold the property to Bobbie, and that the contract for deed was solely in Bobbie's name. The seller testified that Clyde handed Bobbie a check for the down-payment, and Bobbie then handed the check to the seller. Clyde said that the property was his Valentine's Day gift to Bobbie. The seller eventually repossessed the property after Bobbie stopped making payments.

Clyde's mother, Wilma, testified that Clyde and Bobbie borrowed $9,700 from Wilma and her husband. Wilma explained that she was surprised to hear the seller testify that the lake house was a gift from Clyde to Bobbie, because Bobbie and Clyde told her they owned the lake house together. Wilma testified that if she knew Clyde had no right to the house, she would not have loaned the money. Wilma indicated that she believed the lake house was community property because Clyde and Bobbie were married before they purchased the lake house. She and her husband expected the loan to be repaid.

According to Bobbie, Clyde used approximately $17,000 from his retirement account to pay the loan on her truck. Bobbie says that she and Clyde then put the truck into Clyde's name, and Clyde borrowed money against the truck. She testified that she purchased a residence in Lumberton before her marriage to Clyde, so that house was her separate property. She became delinquent in paying the notes on the house because she was instead applying the money to other bills she and Clyde owed. Bobbie explained that the bank eventually foreclosed on the property.

Bobbie explained that she borrowed $3,000 from her father before she married Clyde. According to Bobbie, she and Clyde repaid her father with money from their joint checking account. She was employed at the time. She testified the money in the checking account constituted commingled community funds. When asked about the $9,700 that was borrowed from Clyde's parents, Bobbie testified that she “had already asked [Wilma] to quit loaning money to Clyde.” Bobbie explained that she was present when Clyde borrowed $2,500 from Wilma, and that the money was used for bills, not to pay toward the note on the lake house. Bobbie testified that they also used the $2,500 Clyde borrowed from Wilma on another date to pay bills. Finally, Bobbie testified that Clyde used $30,000 from his retirement fund to pay toward the lake house, and that “the whole thing” was a Valentine's Day present to her from Clyde.

The trial court signed a final decree of divorce, and divided the assets and debts between the parties. The court assigned to Clyde the debt owed to Claude and Wilma Sonnier. The court did not award Clyde anything on his reimbursement claims. Clyde filed this appeal.

Findings and Conclusions

Clyde contends that the trial court erred by failing to timely file findings of fact and conclusions of law after Clyde requested them. The clerk's record does not include a “Notice of Past Due Findings of Fact and Conclusions of Law,” as required by Rule 297 of the Texas Rules of Civil Procedure. See Tex.R. Civ. P. 297. Normally, the failure to file the required “past due” notice is treated as a waiver of the right to complain of the trial court's failure to file findings. In that circumstance, when the record contains no findings of fact and conclusions of law, all necessary findings to support the judgment are implied. Burns v. Burns, 116 S.W.3d 916, 921–22 (Tex.App.-Dallas 2003, no pet.).

Approximately seven months after Clyde filed this appeal, and after he had filed his brief with this Court, the trial court signed findings of fact and conclusions of law. The trial court clerk forwarded the findings and conclusions to this Court in a third supplemental clerk's record after Bobbie requested supplementation of the clerk's record. Clyde challenged these findings in a supplemental brief.

When the trial court signed the findings of fact and conclusions of law, it no longer had jurisdiction over the case. See Tex.R. Civ. P. 296–299a, 329b(d), (e), (g); Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex.2000). Some courts of appeals, including this Court, have suggested that the trial court may file “belated” findings of fact and conclusions of law even after the case is on appeal and the trial court's plenary power has expired. See, e.g., Robles v. Robles, 965 S.W.2d 605, 610–11 (Tex.App.-Houston [1st Dist.] 1998, pet. denied); Jefferson County Drainage Dist. No. 6 v. Lower Neches Valley Auth., 876 S.W.2d 940, 959 (Tex.App.-Beaumont 1994, writ denied); Morrison v. Morrison, 713 S.W.2d 377, 380–81 (Tex.App.-Dallas 1986, writ dism'd w.o.j.). In our view, the opinions in these cases do not adequately explain under what authority the trial court may act in making the belated findings and conclusions when the appellate court has exclusive jurisdiction over the case. Instead, in allowing belated findings, the appellate courts note that the only issue that arises with belated findings is the injury to the appellant and not the trial court's jurisdiction to make the findings. See Robles, 965 S.W.2d at 610; Jefferson County Drainage Dist. No. 6, 876 S.W.2d at 959; Morrison, 713 S.W.2d at 381. Both In re Gillespie and Robles cite this Court's opinion in Jefferson County Drainage District No. 6 as authority. See In re Gillespie, 124 S.W.3d 699, 703 (Tex.App.-Houston [14th Dist.] 2003, orig. proceeding); Robles, 965 at S.W.2d at 610; see also Jefferson County Drainage Dist. No. 6, 876 S.W.2d at 959. We decline to follow the suggestion in Jefferson County Drainage District No. 6 that a trial court may make fact findings and conclusions of law while the appellate court has exclusive jurisdiction over the case.

When a case is on appeal and the trial court's power to perform certain acts after appeal has expired, generally the appellate court exercises exclusive jurisdiction over the case, subject to certain exceptions not applicable here.¹ Saudi v. Brieven, 176 S.W.3d 108, 114 (Tex.App.-Houston [1st Dist.] 2004, pet. denied). Judicial actions taken by a court when the court lacks jurisdiction are viewed as nullities. State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex.1995) (“Judicial action taken after the court's jurisdiction over a cause has expired is a nullity.”); Robertson v. Ranger Ins. Co., 689 S.W.2d 209, 210 (Tex.1985); Goodyear Dunlop Tires N. Am., Ltd. v. Gamez, 151 S.W.3d 574, 593 (Tex.App.-San Antonio 2004, no pet.).

The trial judge tried the divorce suit in a bench trial. In that setting, findings of fact are considered the equivalent of a jury's fact findings. See Heritage Res., Inc. v. Hill, 104 S.W.3d 612, 619 (Tex.App.El Paso 2003, no pet.); James Holmes Enters., Inc. v. John Bankston Const. & Equip. Rental, Inc., 664 S.W.2d 832, 834 (Tex.App.-Beaumont 1983, writ ref'd n.r.e.) (op. on reh'g) (“Findings of facts are the decisions of the judge and reflect the ultimate and controlling factual issues of a plaintiff's claim or a defendant's defense.”). The findings and conclusions form the basis of the judgment. See Tex.R. Civ. P. 299. If there are multiple claims or defenses, the trial court through its findings may narrow the bases of the judgment. 6 Roy W. McDonald & Elaine A. Grafton Carlson, Texas Civil Practice § 18.3 (2d ed. 1998). “[W]hen the findings of fact do not support the judgment, the judgment should either be reformed to conform to the findings, or if appropriate, it should be reversed.” Id. § 18.14 (2d. ed. 1998).²

When the trial court fails to make fact findings after a party has complied with the rules in making a request and in filing the required reminder, the error is to be presumed harmful unless the record affirmatively shows the complaining party has suffered no harm. See Cherne Indus., Inc., v. Magallanes, 763 S.W.2d 768, 772 (Tex.1989)....