Van Dyke v. Van Dyke

• Decision Date: 19 November 1981
• Docket Number: No. B2753,B2753
• Parties: Theresa VAN DYKE, Appellant, v. Gene VAN DYKE, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 800

624 S.W.2d 800

Theresa VAN DYKE, Appellant, v. Gene VAN DYKE, Appellee.

No. B2753.

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

Nov. 19, 1981.

John H. Holloway, Huey O'Toole, Boswell, O'Toole, Davis & Pickering, Houston, for appellant.

Eugene A. Cook, Louis H. Salinas, Jr., Butler, Binion, Rice, Cook & Knapp, Robert J. Brill, Brill, Brooks, Gillis & Young, Houston, for appellee.

Before JUNELL, MURPHY and ROBERTSON, JJ.

SAM ROBERTSON, Justice.

This appeal arises from the court's division of property in a divorce proceeding. Appellant, plaintiff in the trial court, has filed a motion to dismiss the appeal, contending that the judgment entered by the trial court is interlocutory and, therefore, not appealable. Originally, appellant complained that the values placed on certain property and the resulting property division were manifestly unjust and inequitable and amounted to an abuse of the trial court's discretion. She further claimed prejudice in presenting her appeal caused by the trial court's late filing of findings of fact and conclusions of law. We view the judgment as final and find no abuse of discretion. The trial court's judgment is affirmed.

After a non-jury trial, appellant discharged the attorneys who initially represented her, and they intervened in the divorce action seeking judgment against both husband and wife. Appellant set up a counterclaim for negligence, fraud, and other liability issues. Appellant requested a bifurcation of these two causes of action, and a jury heard evidence on the amount and reasonableness of the intervenor's attorney's fees and returned a verdict. Thereafter, the trial court entered judgment terminating the marriage, dividing the parties estate, severing both the plea in intervention and the counterclaim, and awarding any recovery or set-off derived from the counterclaim to appellant.

Appellant's motion to dismiss this appeal is based on her belief that the judgment is interlocutory, failing to dispose of all the issues and parties. The question, then, is whether the severance ordered by the trial court effectually made the judgment a final one.

First, we note that Tex.R.Civ.P. 174(b) permits a trial judge to "order a separate trial of any claim, cross-claim, counterclaim, or third party claim, or of any separate issue or any number of claims, cross-claims, counterclaims, third party claims, or issues." Appellate review of such an order is limited to a determination of whether the trial judge's order amounted to an abuse of discretion. Ramirez v. Johnson, 601 S.W.2d 149 (Tex.Civ.App.-San Antonio 1980, writ ref'd n.r.e.). The trial court, at appellant's request and not over her objection as she now claims, ordered a separate trial on the intervenor's cause of action. We find no abuse of discretion therein.

Additionally, we note that the questioned severance occurred at the time judgment was rendered and not at the time the separate trial was ordered. Severance is authorized under Tex.R.Civ.P. 41 and is proper when more than one cause of action is involved in a controversy, the severed cause could be independently asserted, and the facts, issues, and subject matter are not so interwoven as to be inseparable. Hayes v Norman, 383 S.W.2d 477 (Tex.Civ.App.-Corpus Christi 1964, writ ref'd n.r.e.).

In the present case, both intervenor's claim for attorney's fees and appellant's counterclaim could have been independently asserted and neither was inseparable from the facts, issues and subject matter of the divorce action. Furthermore, the record reveals that appellant requested rather than objected to the bifurcation of the two actions, reserving her counterclaim to a later date. Following judgment, appellant perfected her appeal. Only now does she raise an objection to the severance of the two claims from the divorce action. In our view, appellant has waived her right to object at this point, not having timely presented the objection to the trial judge. Therefore, we overrule appellant's motion to dismiss and proceed to the points of error in her appeal.

On December 5, 1980, the presiding judge signed a judgment terminating the 28 year marriage of the parties and dividing their property. Appellant timely requested findings of fact and conclusions of law on December 9, 1980 and filed her motion for new trial on December 12, 1980. The motion for new trial was overruled by operation of law on January 26, 1981 and the court's findings of fact and conclusions of law were filed on March 13, 1981, some sixteen days late and some fourteen days before the transcript was due in the appellate court.

In her first point of error, appellant complains of prejudice resulting from the court's failure to timely file findings of fact and conclusions of law. If, after a party has requested the court to prepare findings of fact and conclusions of law pursuant to Tex.R.Civ.P. 296, the trial judge fails to file them within the time specified in Tex.R.Civ.P. 297, ¹ that party has five days in which to complain of the failure in writing. The record before us shows that the original request was made on December 9, 1980. After that date, the record contains no written complaint of the court's failure as required. Thus, not having complied with the requisites of Rule 297, appellant has waived all right to complain on appeal. Blair v. Blair, 434 S.W.2d 943 (Tex.Civ.App. Dallas 1968, no writ); Nordheim Independent School District v. Johnson, 597 S.W.2d 48 (Tex.Civ.App.-Corpus Christi 1980, no writ)....