post judgment

POST JUDGMENT

JOHN T. ECK Law Offices Of Robert T. Stites, P.C.

933 West Weatherford Street Fort Worth, Texas 76102

(817) 336-7577 Facsimile (817) 336-7583

State Bar Of Texas THE ULTIMATE TRIAL NOTEBOOK: FAMILY LAW

December 9-10, 2004 Dallas

CHAPTER 18

JOHN T. ECK LAW OFFICES OF ROBERT T. STITES, P.C.

933 West Weatherford Street Fort Worth, Texas 76102

(817) 336-7577 Facsimile (817) 336-7583

EDUCATION

University of Oklahoma College of Law, Norman, Oklahoma Doctor of Jurisprudence Southern Methodist University, Dallas, Texas Bachelor of Science, Economics Bachelor of Arts, Political Science with Departmental Distinction

PROFESSIONAL LICENSES

State of Texas Northern District of Texas Fifth Circuit Court of Appeals

MEMBERSHIPS AND APPOINTMENTS

State Bar of Texas Tarrant County Bar Association Tarrant County Family Law Bar Association Fort Worth-Tarrant County Young Lawyers Association College of the State Bar of Texas Advisory Committee for the 233rd District Court Managing Editor, American Indian Law Review

CLE ACTIVITIES AND PUBLICATIONS

Eliminating Indian Stereotypes From American Society: Causes and Legal and Societal Solutions (co-authored with Kim Chandler Johnson), American Indian Law Review, Vol. 20:1, p.65 (1995-96). Alternative Enforcement Remedies, Texas Association of Domestic Relations Offices, 15th Annual Conference, October 1999. Unusual Uses of QDRO: Using the QDRO to Collect Child Support and Spousal Maintenance, 25th Annual Marriage Dissolution Institute, May 2002. Receiverships in Family Law Cases, 3rd Annual Family Law on the Front Lines Conference, March 2003.

Receiverships in Family Law Cases, Tarrant County Family Law Bar Association, April, 2003.

Post Judgment Chapter 18

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TABLE OF CONTENTS

I. INTRODUCTION................................................................................................................................................... 1

II. FINDINGS OF FACT AND CONCLUSIONS OF LAW ...................................................................................... 1 A. The Law........................................................................................................................................................... 1 B. The Request ..................................................................................................................................................... 1 C. Limited Importance of Conclusions of Law.................................................................................................... 1 D. Entitlement to Findings of Fact ....................................................................................................................... 1

1. Combined Jury and Nonjury Trial........................................................................................................... 1 2. Other Areas Allowed ............................................................................................................................... 2 3. No Entitlement to Findings of Fact ......................................................................................................... 2 4. Optional Entitlement to Findings of Fact ................................................................................................ 3

E. Making the Request......................................................................................................................................... 3 1. Initial Request.......................................................................................................................................... 3 2. Presentment to the Court is Unnecessary ................................................................................................ 3 3. Effect of Premature Request.................................................................................................................... 3 4. The Response........................................................................................................................................... 3 5. When the Response is Untimely.............................................................................................................. 4 6. Reminder Notice...................................................................................................................................... 4 7. Additional or Amended Findings ............................................................................................................ 4 8. Failure to Request.................................................................................................................................... 4 9. Who Prepares the Request? ..................................................................................................................... 4 10. Form of Findings of Fact and Conclusions of Law ................................................................................. 5 11. Findings in Conflict or at Variance with the Judgment ........................................................................... 5 12. Conflict Between Findings and Admissions............................................................................................ 6 13. Which Judge Makes the Findings? .......................................................................................................... 6

F. Failure to Respond........................................................................................................................................... 6 1. Bill of Exceptions .................................................................................................................................... 6 2. Effect of Court’s Failure to File .............................................................................................................. 6 3. Failure to Make Additional Findings....................................................................................................... 7

G. Effect of Court’s Filing ................................................................................................................................... 7 H. Deemed Findings............................................................................................................................................. 7 I. Challenges on Appeal...................................................................................................................................... 7

1. Challenging the Failure to File Findings of Fact ..................................................................................... 7 2. Challenging Findings and Conclusions on Appeal.................................................................................. 7

J. Specialized Findings in Family Law ............................................................................................................... 8 1. Property Division..................................................................................................................................... 8 2. Child Support........................................................................................................................................... 9 3. Possession of a Child............................................................................................................................. 10 4. Findings of Associate Judges ................................................................................................................ 11

III. MOTION FOR NEW TRIAL ............................................................................................................................... 11 A. The Law......................................................................................................................................................... 11 B. Filing for Appellate Purposes........................................................................................................................ 11 C. Timetable for Filing....................................................................................................................................... 12 D. Plenary Power................................................................................................................................................ 12 E. Second Judgment Problems........................................................................................................................... 12 F. Late Notice of Judgment ............................................................................................................................... 13 G. Exception for Citation by Publication ........................................................................................................... 13 H. Format of Motion .......................................................................................................................................... 13 I. Hearing .......................................................................................................................................................... 13 J. Order on Motion for New Trial ..................................................................................................................... 13 K. Grounds for Motion for New Trial ................................................................................................................ 14

1. Default Judgment................................................................................................................................... 14 a. Conscious Indifference .................................................................................................................. 14 b. Meritorious Defense ...................................................................................................................... 14


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c. No Delay or Injury......................................................................................................................... 15 d. Family Law Concerns with Default............................................................................................... 15

2. Newly Discovered Evidence ................................................................................................................. 15 3. Mistakes Made at Trial .......................................................................................................................... 16 4. No Reporter’s Record Available ........................................................................................................... 16 5. Sufficiency of the Evidence................................................................................................................... 16

a. No Evidence................................................................................................................................... 16 b. Insufficient evidence...................................................................................................................... 17

(1) Jury vs. Nonjury Trials .......................................................................................................... 17 (2) Appellate Court Final Arbiter of Factual Sufficiency............................................................ 17 (3) Findings of Fact and Conclusions of Law not Required to Raise Sufficiency ...................... 17 (4) Appellate Remedy.................................................................................................................. 17

L. Motion to Modify, Correct, or Reform.......................................................................................................... 17 M. Motion for Judgment Non Obstante Veredicto.............................................................................................. 18

1. Jury Trials in General ............................................................................................................................ 18 2. Exceptions in the Texas Family Code ................................................................................................... 18

N. Judgment Nunc Pro Tunc .............................................................................................................................. 18 O. Motion to Clarify........................................................................................................................................... 18

IV. SUMMARY SHEET AND CONCLUSION ........................................................................................................ 19


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POST JUDGMENT I. INTRODUCTION This article is intended to refresh your memory on post judgment procedure. If not successful in the trial court, this article should see you through several crucial steps to prepare your case for an appeal. II. FINDINGS OF FACT AND CONCLUSIONS

OF LAW In an appeal from a jury trial, the appellate court can

look to the jury charge to determine what principles of law governed the case and how disputed fact issues were resolved. Findings of fact and conclusions of law are the nonjury trial equivalent of the jury trial’s definitions, instructions, and questions. Findings of fact and conclusions of law permit the parties to show the appellate court the bases on which the trial court resolved the factual and legal issues. If there is only one theory of liability or defense, the basis of the court’s judgment can be inferred from the judgment itself, even without findings of fact and conclusions of law. However, if more than one legal theory, or more than one set of factual determinations, could serve as the basis for the trial court’s judgment, then it can be very difficult to brief the appellate attack on the judgment. Without them, the appellate court will presume that the trial court resolved all legal and factual issues raised by the evidence in a manner that supports the judgment entered. See Lemons v. EMW Mfg. Co., 747 S.W.2d 372 (Tex. 1988). A. The Law

Apart from findings of fact and conclusions of law under the Texas Rules of Civil Procedure (see TEX. R. CIV. P. 296-299a), the Texas Family Code contains a procedure for obtaining findings in child support orders (TEX. FAM. CODE. § 154.130) and findings in visitation orders (TEX. FAM. CODE. § 153.258). Further, The Texas Rules of Appellate Procedure also have an effect on findings of fact and conclusions of law. B. The Request

Generally, findings of fact and conclusions of law are available in any case tried in the district or county court without a jury. See TEX. R. CIV. P. 296. It is not reversible error for the trial court to refuse a request for findings of fact and conclusions of law after a jury trial where the complaining party suffers no injury. Baley v. W/W Interests, Inc., 754 S.W.2d 313 (Tex. App.--Dallas 1988, no writ).

When findings of fact and conclusions of law appear in the record, the appellant court can evaluate the correctness of the trial court’s judgment in light of the facts and legal principles actually relied on by the trial judge. Thus, an appeal based on findings of fact and conclusions of law can test the real reasons for the trial court’s judgment, rather than

presumed reasons for the judgment. Further, in a case involving multiple claims or defenses, the appellant should request findings of fact and conclusions of law to narrow the bases of the judgment to only a portion of those claims and defenses, thereby focusing the contentions that the appellant must raise on appeal. C. Limited Importance of Conclusions of Law

Conclusions of law are really not essential to the appeal. The primary purpose is to demonstrate the theory on which the case was decided. A conclusion of law can be attacked on the ground that the trial court did not properly apply the law to the facts. Foster v. Estate of Foster, 884 S.W.2d 497 (Tex. App.--Dallas 1994, no writ). Erroneous conclusions of law are not binding on the appellate court and if the controlling findings of fact will support a correct legal theory, are supported by the evidence and are sufficient to support the judgment, then the adoption of erroneous legal conclusions will not mandate reversal. Leon v. Albuquerque Commons Partnership, 862 S.W.2d 693 (Tex. App.--El Paso 1993, no writ); Westech Engineering, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190 (Tex. App.--Austin 1992, no writ); Bellaire Kirkpatrick Joint Venture v. Loots, 826 S.W.2d 205 (Tex. App.--Fort Worth 1992, writ denied). The standard of review for legal conclusions is whether they are correct. Zieben v. Platt, 786 S.W.2d 797 (Tex. App.--Houston [14th Dist.] 1990, no writ). Conclusions of law are reviewable de novo as a question of law. State v. Evangelical Lutheran Good Samaritan Society, 981 S.W.2d 509 (Tex. App.--Austin 1998, no pet.); Nelkin v. Panzer, 833 S.W.2d 267 (Tex. App.--Houston [1st Dist.] 1992, writ dism’d w.o.j.). The appellate court must independently evaluate conclusions of law to determine their correctness when they are attacked as a matter of law. U.S. Postal Serv. v. Dallas Cty. App. D., 857 S.W.2d 892 (Tex. App.--Dallas 1993, writ dism’d). D. Entitlement to Findings of Fact 1. Combined Jury and Nonjury Trial

It is not unusual in a divorce case for there to be a jury trial on custody and a separate bench trial on property division. Findings and conclusions are available in the nonjury trial issues. See Toles v. Toles, 45 S.W.3d 252 (Tex. App.--Dallas 2001, pet. denied); Roberts v. Roberts, 999 S.W.2d 424 (Tex. App.--El Paso 1999, no pet.); Operation Rescue - National v. Planned Parenthood of Houston and Southeast Texas, Inc., 937 S.W.2d 60 (Tex. App.--Houston [14th Dist.] 1996), aff’d. as modified, 975 S.W.2d 546 (Tex. 1998); Shenandoah Associates v. J & K Properties, Inc. 741 S.W.2d 470 (Tex. App.--Dallas 1987, writ denied).

In addition, when the judgment of the court differs substantially from or exceeds the scope of the jury verdict, findings are available. See Rothwell v. Rothwell, 775 S.W.2d 888 (Tex. App.--El Paso 1989, no writ).


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In the event the trial court does give findings of fact in a jury case, those findings will be considered by the appellate court only for the purpose of determining whether facts recited are conclusively established and support the decree as a matter of law. Holloway v. Holloway, 671 S.W.2d 51 (Tex. App.--Dallas 1984, writ dism’d). Thus, if the evidence does not support the jury verdict, the judgment cannot be supported merely by the findings of fact and conclusions of law submitted by the trial court. 2. Other Areas Allowed Findings of fact have been helpful in the following circumstances:

• In a nonjury case, which is resolved by a judgment after the petitioner rests. Qantel Business Systems, Inc. v. Custom Controls Co., 761 S.W.2d 302 (Tex. 1988);

• When the jury omits elements of an issue. See TEX. R. CIV. P. 296;

• When the court rules on jurisdiction challenges after an evidentiary hearing. See Goodenbour v. Goodenbour, 64 S.W.3d 69 (Tex. App.--Austin 2000, pet. denied);

• After the court holds a hearing on motion to transfer venue. See Coke v. Coke, 802 S.W.2d 270 (Tex. App.--Dallas 1990, wit denied); Challenger Sales & Supply v. Haltenberger, 730 S.W.2d 453 (Tex. App.--Beaumont 1987, writ ref’d n.r.e.);

• After an evidentiary hearing on a motion for new trial. See Higginbotham v. General Life & Accident Insurance Co., 796 S.W.2d 695 (Tex. 1990);

• In an original mandamus proceeding in the trial court. Anderson v. City of Seven Points, 806 S.W.2d 791 (Tex. 1991);

• Appeal of temporary restraining order or temporary injunction. See TEX. R. APP. P. 28.1; Operation Rescue-Nat’l v. Planned Parenthood of Houston & Southeast Tex., Inc., 937 S.W.2d 60 (Tex. App.--Houston [14th Dist.] 1996), aff’d as modified, 975 S.W.2d 546 (Tex.1998);

• After class action certification. TEX. R. CIV. P. 42(b)(3);

• To review supersedeas bond sufficiency. TEX. R. APP. P. 24.4(d);

• After a hearing on sanctions under Rule 215 of the Texas Rules of Civil Procedure; IKB (Nigeria) Industries v. Pro-Line Corporation, 938 S.W.2d 440 (Tex.1997);

• DWOP. Cf. Phillips v. Beavers, 938 S.W.2d 446 (Tex. 1997);

• Groundless Pleadings. See TEX. R. CIV. P. 13; TEX. CIV. PRAC. & REM. CODE § 10.001;

• Exemplary damages. See Transportation Insurance Co. v. Moriel, 879 S.W.2d 10 (Tex.1994); TEX. CIV. PRAC. & REM. CODE § 41.013(a); and

• Remittitur. See Landon v. Jean-Paul Budinger, Inc., 724 S.W.2d 931 (Tex. App.--Austin 1987, no writ).

3. No Entitlement to Findings of Fact

There are exceptions to the rule for findings of fact and conclusions of law in nonjury cases. Courts have held that findings are not authorized in the following circumstances:

• When the cause is dismissed without a trial.

Eichelberger v. Balette, 841 S.W.2d 508 (Tex. App.--Houston [14th Dist.] 1992, writ denied); Timmons v. Luce, 840 S.W.2d 582 (Tex. App.--Tyler 1992, no writ);

• When the cause is withdrawn from the jury by directed verdict due to the general rule that the trial court can grant an instructed verdict only where there are no fact issues to be resolved by the jury. Yarbrough v. Phillips Petroleum Co., 670 S.W.2d 270 (Tex. App.--Houston [1st Dist.] 1983, writ ref’d n.r.e.); Spiller v. Spiller. 535 S.W.2d 683 (Tex. Civ. App.--Tyler 1976, writ dism’d);

• When a judgment notwithstanding the jury verdict is entered. IKB Industries (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440 (Tex. 1997); Fancher v. Cadwell, 159 Tex. 8, 314 S.W.2d 820 (1958);

• When a summary judgment is granted. Linwood v. NCNB Texas, 885 S.W.2d 102 (Tex. 1994); Chavez v. El Paso Housing Authority, 897 S.W.2d 523 (Tex. App.--El Paso 1995, writ denied);

• In an appeal to district court from an administrative agency. Valentino v. City of Houston, 674 S.W.2d 813 (Tex. App.--Houston [1st Dist.] 1983, writ ref’d n.r.e.);

• When a default judgment is granted. Wilemon v. Wilemon, 930 S.W.2d 295 (Tex. App.--Waco 1996, no writ); Harmon v. Harmon, 879 S.W.2d 213 (Tex. App.--Houston [14th Dist] 1994, writ denied);

• When a case is dismissed for want of subject matter jurisdiction, without an evidentiary hearing. Zimmerman v. Robison, 862 S.W.2d 162 (Tex. App.--Amarillo 1993, no writ); and

• Agreed statement of facts. See TEX. R. CIV. P. 263.


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4. Optional Entitlement to Findings of Fact Rule 28.1 of the Texas Rules of Appellate Procedure

provides for an option on the part of the trial judge in appeals from interlocutory orders. See TEX. R. APP. P. 28.1; Mueller v. Beamalloy, Inc., 994 S.W.2d 855 (Tex. App.--Houston [1st Dist.] 1999, no pet.). The court is not required to file findings and conclusions, but may do so within 30 days after the judgment is signed. See Smith Barney Shearson, Inc. v. Finstad, 888 S.W.2d 111 (Tex. App.--Houston [1st Dist.] 1994, no writ) (involving interlocutory appeal of denial of motion for arbitration). One court of appeals has admonished trial courts to give findings and conclusions to aid appellate courts in reviewing class certification decisions. Franklin v. Donoho, 774 S.W.2d 308 (Tex. App.--Austin 1989, no writ).

If a party is entitled to findings of fact and conclusions of law, but the deadline to make the request is missed, the party has waived the right to complain of the trial court’s failure to prepare the findings. The request can still be made even if it is untimely. The trial court can give you findings and conclusions even though it is not obligated to do so. The timetables set out by Rules 296 and 297 are flexible if there is no gross violation of the filing dates and no party is prejudiced by the late filing. Wagner v. GMAC Mortg. Corp. of Iowa, 775 S.W.2d 71 (Tex. App.--Houston [1st Dist.] 1989, no writ). Rule 5 of the Texas Rules of Appellate Procedure (“Enlargement of Time”) appears to permit the trial court to enlarge the time for requesting findings and conclusions. E. Making the Request

The timely filing of a request for findings of fact and conclusions of law extends the time for perfecting appeal from 30 days to 90 days after the judgment is signed by the court. TEX. R. APP. P. 26.1(a)(4). See also IKB Industries (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440 (Tex. 1997). The timely filing of a request for findings and conclusions also extends the deadline for filing the record from the 60th to the 120th day after judgment is signed. TEX. R. APP. P. 35.1(a). A timely request for findings and conclusions does not extend the trial court’s period of plenary power. See TEX. R. CIV. P. 329b; In re Gillespie, 124 S.W.3d 699, 703 (Tex. App.--Houston [14th Dist.] 2003) (orig. proceeding); Pursley v. Ussery, 982 S.W.2d 596 (Tex. App.--San Antonio 1998, pet. denied); Lane Bank Equipment Co. v. Smith Southern Equipment, Inc., 10 S.W.3d 308, 310 (Tex. 2000); In re T.G., 68 S.W.3d 171 (Tex. App.--Houston [1st Dist.] 2002, pet. denied). Even though its plenary power has expired, the trial court is not prevented from entering properly requested findings and conclusions. Jefferson County Drainage District No. 6 v. Lower Neches Valley Authority, 876 S.W.2d 940 (Tex. App.--Beaumont 1994, writ denied).

Note that these rules do not apply where findings of fact and conclusions of law cannot be properly requested. See Linwood v. NCNB of Texas, 885 S.W.2d 102 (Tex. 1994) (after summary judgment granted, request for

findings of fact and conclusions of law do not extend appellate timetables for appeal). See also, Chavez v. El Paso Housing Authority, 897 S.W.2d 523 (Tex. App.--El Paso 1995, writ denied). A matter which is dismissed for lack of subject matter jurisdiction, or in which there has been no evidentiary hearing, has not been “tried without a jury” as used in the rule, so that a request for findings does not extend the deadline to perfect the appeal. Zimmerman v. Robinson, 862 S.W.2d 162 (Tex. App.--Amarillo 1993, no writ). Accord, O’Donnell v. McDaniel, 914 S.W.2d 209 (Tex. App.--Fort Worth 1995, writ denied) (where appeal is from dismissal rendered without evidentiary hearing, a request for findings of fact and conclusions of law does not extend any applicable deadlines); Smith v. Smith, 835 S.W.2d 187 (Tex. App.--Tyler 1992, no writ) (in divorce case tried to jury, request for findings of fact and conclusions of law did not extend appellate timetable even though the trial judge was not bound by some of the jury’s answers). 1. Initial Request

Rule 296 requires that the request for findings and conclusions be filed within 20 days after the judgment is signed. Filing a motion for new trial does not extend the time period for filing a request for findings and conclusions. The request must be specifically entitled “Request for Findings of Fact and Conclusions of Law”. See TEX. R. CIV. P. 296. The request should be a separate instrument and not coupled with a motion for new trial or a motion to correct or reform the judgment.

2. Presentment to the Court is Unnecessary

Presentment to the trial judge is no longer required. Rule 296 now provides that the request shall be filed with the clerk of the court “who shall immediately call such request to the attention of the judge who tried the case”. Notice to the opposing party of the filing of the request is still required under the rule. See TEX. R. CIV. P. 296. See also Cherne Industries, Inc. v. Magallanes, 763 S.W.2d 768 (Tex. 1989). 3. Effect of Premature Request

Rule 306c provides that no motion for new trial or request for findings of fact and conclusions of law will be held ineffective because of premature filing. Instead, every such request shall be deemed to have been filed on the date of but subsequent to the signing of the judgment. See TEX. R. CIV. P. 306c; Fleming v. Taylor, 814 S.W.2d 89 (Tex. App.--Corpus Christi 1991, no writ). 4. The Response

Rule 297 provides that, upon timely demand, the court shall prepare its findings of fact and conclusions of law and file them within 20 days after a timely request is filed. Cherne Industries, Inc. v. Magallanes, 763 S.W.2d 768 (Tex. 1989). The court is required to mail a copy of its findings and conclusions to each party to the suit. See TEX.


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R. CIV. P. 297. Deadlines for requesting additional or amended findings run from the date the original findings and conclusions are filed, as noted below.

If the requesting party has filed an accelerated appeal, the trial court must file its findings of fact within 30 days of the date of the signing of the judgment. See TEX. R. APP. P. 28.1. 5. When the Response is Untimely

The procedural time limits in the rules do not prevent the trial court from issuing late findings. Robles v. Robles, 965 S.W.2d 605 (Tex. App.--Houston [1st Dist.] 1998, pet. denied); Morrison v. Morrison, 713 S.W.2d 377 (Tex. App.--Dallas 1986, no writ); Bostwick v. Bucklin, 144 Tex. 375, 190 S.W.2d 818 (1945) (minor delays will not affect the appeal). One court has held that filing findings after the clerk’s record is filed in the appellate court is improper. Labar v. Cox, 635 S.W.2d 801 (Tex. App.--Corpus Christi 1982, writ ref’d n.r.e.) (late filing was reversible error because it prevented the appellant from requesting additional findings).

In the past, a significant delay in filing has resulted in the findings of fact and conclusions of law being disregarded, and even reversed. Stefek v. Helvey, 601 S.W.2d 168 (Tex. Civ. App.--Corpus Christi 1980, writ ref’d n.r.e.); Waldrop v. Manning, 507 S.W.2d 626 (Tex. Civ. App.--Texarkana 1973), writ ref’d n.r.e., 514 S.W.2d 899 (Tex. 1974).

Presently, the trend is that when a court files late findings the only issue that arises is the injury to the appellant, not the trial court’s jurisdiction to make the findings. Morrison v. Morrison, 713 S.W.2d 377 (Tex. App.--Dallas 1986, no writ). Unless injury can be shown, litigants have no remedy if a trial court files untimely findings and conclusions. Robles v. Robles, 965 S.W.2d 605 (Tex. App.--Houston [1st Dist.] 1998, pet. denied). 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. 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. Robles v. Robles, 965 S.W.2d 605 (Tex. App.--Houston [1st Dist.] 1998, pet. denied); McShan v. Pitts, 538 S.W.2d 266 (Tex. Civ. App.--San Antonio 1976, no writ).

From the standpoint of preservation of error, note that to complain of the untimely filing, the appellant may be required to file a motion to strike. See Narisi v. Legend Diversified Investments, 715 S.W.2d 49 (Tex. App.--Dallas 1986, writ ref’d n.r.e.). See also Summit Bank v. The Creative Cook, 730 S.W.2d 343 (Tex. App.--San Antonio 1987, no writ). Thus, if the appellant has been prejudiced in the appeal because of the late filing, consider filing a motion to strike, but be prepared to demonstrate injury.

6. Reminder Notice Rule 297 provides that if the trial court fails to submit

the findings and conclusions within the 20-day period, the requesting party must call the omission to the attention of the judge within 30 days after filing the original request. See TEX. R. CIV. P. 297. Failure to submit a timely reminder waives the right to complain of the court’s failure to make findings. Averyt v. Grande, Inc., 717 S.W.2d 891 (Tex. 1986); Saldana v. Saldana, 791 S.W.2d 316 (Tex. App.--Corpus Christi 1990, no writ).

The rules require that the reminder be specifically entitled “Notice of Past Due Findings of Fact and Conclusions of Law”. See TEX. R. CIV. P. 297. Presentment is not required as Rule 297 specifically provides that the filing of the reminder notice “shall be immediately called to the attention of the court by the clerk”. Where the reminder is filed, the time for the filing of the court’s response is extended to 40 days from the date the original request was filed. See TEX. R. CIV. P. 297. 7. Additional or Amended Findings

If the court files findings and conclusions, either party has a period of 10 days in which to request specified additional or amended findings or conclusions. The court shall file any additional or amended findings and conclusions within 10 days after the request, and again, cause a copy to be mailed to each party. No findings or conclusions shall be deemed or presumed by any failure of the court to make any additional findings or conclusions. See TEX. R. CIV. P. 298. If the court omitted a finding on a material fact, the requesting party must submit a specific proposed finding. See Alvarez v. Espinoza, 844 S.W.2d 238 (Tex. App.--San Antonio 1992, writ dism’d w.o.j.). 8. Failure to Request

Failure to make a timely request for additional findings of fact and conclusions of law waives the right to complain on appeal of the court’s failure to enter additional findings. Briargrove Park Property Owners, Inc. v. Riner, 867 S.W.2d 58 (Tex. App.--Texarkana 1993, writ denied); Cities Services Co. v. Ellison. 698 S.W.2d 387 (Tex. App.--Houston [14th Dist.] 1985, writ ref’d n.r.e.).

Where the original findings omit a finding of a specific ground of recovery which is crucial to the appeal, failure to request an additional finding will constitute a waiver of the issue. Poulter v. Poulter, 565 S.W.2d 107 (Tex. Civ. App.--Tyler 1978, no writ); Keith v. Keith, 763 S.W.2d 950 (Tex. App.--Fort Worth 1989, no writ). 9. Who Prepares the Request?

The trial court, as a matter of practice, usually invites the prevailing party to prepare proposed findings and conclusions based upon its rulings. See Grossnickle v. Grossnickle, 935 S.W.2d 830 (Tex. App.--Texarkana 1996, writ denied). Thus, while the appellant will often make a general request for findings of fact and conclusions of law under Rule 296, the request is global in nature. It is


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often the appellee who drafts a detailed proposal “requesting” a finding on specific elements necessary to support the court’s judgment.

To prevent elements of an opponent’s ground of recovery or defense from being presumed on appeal, a party may object to the omission. See TEX. R. CIV. P. 279. However, before an objection to a missing element will prevent it from being deemed on appeal, the objection must point out distinctively the objectionable matter and the grounds for objection. See TEX. R. CIV. P. 274. Thus, if the objection is obscured or concealed by voluminous unfounded objections, minute differentiations or numerous unnecessary requests, the omitted element will be deemed to have been found by the trial court notwithstanding the opponent’s objection to its omission from the jury charge. See Vickery v. Commission for Lawyer Discipline, 5 S.W.3d 241 (Tex. App.--Houston [14th Dist.] 1999, no pet. h.).

Likewise, in a bench trial, the appellant may request additional findings on omitted elements to prevent them from being deemed on appeal. See TEX. R. CIV. P. 298. However, before the failure to grant additional findings will impede the appellate court from presuming implied findings, the omission must be made manifest to the trial court. While Rule 298, unlike Rule 274, does not expressly require the party to distinctly point out the omission, it is logically required. If the trial court is not specifically made aware of the missing element, the omission is presumed to be inadvertent. See Vickery v. Commission for Lawyer Discipline, 5 S.W.3d 241 (Tex. App.-Houston [14th Dist.] 1999, no pet. h.).

A request for negative findings will rarely apprise the trial court that it has omitted an essential element in its original findings. For example, if the losing party is simply dissatisfied with the court’s resolution of disputed fact issues, the losing party may request “additional” or “amended” findings that are contrary to those originally made by the trial court. The trial court, however, as the trier-of-fact has no duty to make additional or amended findings that are unnecessary or contrary to its judgment. A trial court is only required to make additional findings and conclusions that are appropriate. See TEX. R. CIV. P. 298. See Vickery v. Commission for Lawyer Discipline, 5 S.W.3d 241 (Tex. App.--Houston [14th Dist.] 1999, no pet. h.); ASAI v. Vanco Insulation Abatement, Inc., 932 S.W.2d 118 (Tex. App.--El Paso 1996, no writ). Moreover, the trial court is not required to make additional findings which conflict with the original findings. See Hunter v. NCNB Tex. Nat’l Bank, 857 S.W.2d 722 (Tex. App.--Houston [14th Dist.] 1993, writ denied). 10. Form of Findings of Fact and Conclusions of Law

Findings of fact and conclusions of law need not be in any particular form as long as they are in writing and are filed of record. Hamlet v. Silliman, 605 S.W.2d 663 (Tex. App.--Houston [1st Dist.] 1980, no writ). It is permissible for the trial court to list its findings in a letter to the

respective attorneys, as long as the letter is filed of record. Villa Nova Resort, Inc. v. State, 711 S.W.2d 120 (Tex. App.--Corpus Christi 1986, no writ). Oral statements as to findings made by the judge on the record will not be accepted as findings of fact and conclusions of law. In re W.E.R., 669 S.W.2d 716 (Tex. 1984); Stevens v. Snyder, 874 S.W.2d 241 (Tex. App.--Dallas 1994, writ denied); Giangrosso v. Crosley, 840 S.W.2d 765, 769 (Tex. App.--Houston [1st Dist.] 1992, no writ); Ikard v. Ikard, 819 S.W.2d 644 (Tex. App.--El Paso 1991, no writ). Nor may the court have those statements prepared as a reporter’s record and filed as findings of fact and conclusions of law. Nagy, v. First National Gun Banque Corporation, 684 S.W.2d 114 (Tex. App.--Dallas 1984, writ ref’d n.r.e.). However, appellate courts must give effect to intended findings of the trial court, even where the specific findings made do not quite get the job done, provided they are supported by the evidence, the record and the judgment. See Black v. Dallas County Child Welfare, 835 S.W.2d 626 (Tex. 1992).

Rule 299a provides that findings of fact are to be separately filed and not recited in the judgment. If there is a conflict between findings of fact recited in a judgment in violation of this rule and findings of fact made pursuant to Rules 297 and 298, the latter findings will control for appellate purposes. See TEX. R. CIV. P. 299a. As a result of the rule change, findings of fact that are recited in a judgment cannot form the basis of a claim on appeal. See Hill v. Hill, 971 S.W.2d 153 (Tex. App.--Amarillo 1998, no pet.) (if there is no conflict between separate findings of fact and findings contained in the judgment, those contained in the judgment should be given effect); Frommer v. Frommer, 981 S.W.2d 811 (Tex. App.--Houston [1st Dist.] 1998, no pet.) (“[W]hile the propriety of findings of fact and conclusions of law in judgments was once a matter of debate, in 1990 the Texas Supreme Court ended the debate once and for all.”); Tate v. Tate, 55 S.W.3d 1 (Tex. App.–El Paso 2000, no pet. h.) (the findings recited in the judgment were not utilized to support a claim on appeal, but instead to support the judgment).

The Texas Family Code requires visitation and child support orders to contain certain findings of fact and these provisions are discussed below. 11. Findings in Conflict or at Variance with the

Judgment When the findings of fact appear to conflict with each

other, they will be reconciled if reconciliation is possible. If they are not reconcilable, they will not support the judgment. Yates Ford, Inc. v. Benevides, 684 S.W.2d 736 (Tex. App.--Corpus Christi 1984, writ ref’d n.r.e.). Where Rule 296 findings appear to conflict with findings recited in the judgment, the Rule 296 findings control for purposes of appeal. TEX. R. CIV. P. 299a.

A problem can arise if an amended judgment is signed after findings and conclusions have been given. In


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White v. Commissioner’s Court of Kimble County, 705 S.W.2d 322 (Tex. App.--San Antonio 1986, no writ), judgment was entered on November 12, 1984. Findings of fact and conclusions of law were requested and filed. An amended judgment was entered on January 25, 1985, in response to a motion to correct. The appellate court ruled that the findings could not be relied upon to support the corrected judgment because they pertained only to the November 12 judgment.

Note also that if there are conflicts between statements made by the trial judge on the record and findings of fact and conclusions of law actually prepared, the formal findings will be deemed controlling. Ikard v. Ikard, 819 S.W.2d 644 (Tex. App.--El Paso 1991, no writ). 12. Conflict Between Findings and Admissions

The Texas Supreme Court has considered whether a reviewing court is bound by admissions of parties as to matters of fact when the record shows that the admissions were not truthful and that the opposite of the admissions was in fact true. In Marshall v. Vise, 767 S.W.2d 699 (Tex. 1989), the plaintiff submitted requests for admissions which were never answered. Prior to the nonjury trial, the court granted the plaintiff’s motion that his requests for admissions be deemed admitted. Nevertheless, the defendant presented testimony in direct contravention of the deemed admissions. Plaintiff, who had filed no motion for summary judgment, failed to urge a motion in limine, failed to object to the evidence when offered and failed to request a directed verdict. The court rendered judgment contrary to the facts deemed admitted and made findings of fact and conclusions of law contrary to the facts deemed admitted. The appellate court concluded that the trial court’s findings were directly contrary to the deemed admissions and were so against the great weight and preponderance of the evidence as to be manifestly erroneous. The Texas Supreme Court concluded that unanswered requests for admission are in fact automatically deemed admitted unless the court permits them to be withdrawn or amended. An admission, once admitted, is a judicial admission such that a party may not introduce testimony to contradict it. Here, however, the plaintiff had failed to object and, in fact, elicited much of the controverting testimony himself. Thus, he was found to have waived his right to rely on the admissions which were controverted by testimony admitted at trial without objection. 13. Which Judge Makes the Findings?

Suppose a trial judge hears the evidence in a case and enters judgment but dies, becomes disabled, or fails to win re-election, before findings of fact and conclusions of law are made. In Ikard v. Ikard, 819 S.W.2d 644 (Tex. App.--El Paso 1991, no writ), the family court master heard the evidence by referral with regard to a requested increase in child support. The master prepared a written report and the order was signed by the judge of the referring court. In the

intervening time between trial and entry of the order, the court master won the November election to a district court bench, and left the master’s bench. Findings of fact and conclusions of law were prepared following a timely request. Due to the absence of the court master who had heard the evidence, the findings were approved by another court master and signed by the referring judge, neither of whom had heard the evidence. The appellate court found that a successor judge has full authority to sign the findings, which in most cases, have been prepared by counsel for the prevailing party and not by the trier of fact. The findings then become those of the trial court, regardless of who prepared them. See also Roberts v. Roberts, 999 S.W.2d 424 (Tex. App.–El Paso 1999, no pet.); Lykes Bros. Steamship Co., Inc. v. Benben, 601 S.W.2d 418 (Tex. Civ. App.--Houston [14th Dist.] 1980, writ ref’d n.r.e.); Horizon Properties Corp. v. Martinez, 513 S.W.2d 264 (Tex. Civ. App.--El Paso 1974, writ ref’d n.r.e.).

Other courts have taken a different approach where the trial judge is no longer available. In FDIC v. Morris, 782 S.W.2d 521 (Tex. App.--Dallas 1989, no writ), the appellate court noted that the trial judge was no longer on the bench and was unavailable to respond to the order to prepare findings. Citing Anzaldua v. Anzaldua, 742 S.W.2d 782 (Tex. App.--Corpus Christi 1987, writ denied), the court reversed the judgment. F. Failure to Respond 1. Bill of Exceptions

Under the former rules, one could easily assume that error had been preserved so as to enable the appellant to complain on appeal of the trial court’s failure to make additional or amended findings and conclusions if a timely request were filed. Some older cases required the party seeking additional or amended findings to make a bill of exception to the court’s failure to respond. Black v. Basset, 619 S.W.2d 193 (Tex. Civ. App.--Texarkana 1981, no writ); Hausler v. Hausler, 636 S.W.2d 874 (Tex. Civ. App.--Waco 1982, no writ).

Presently, under Rule 297, a file-stamped copy of the original request should be sufficient to show that it was timely filed in the clerk’s office. A file-stamped copy of the past due notice should be sufficient to preserve any error if the trial court fails to file findings and conclusions. See TEX. R. CIV. P. 297. 2. Effect of Court’s Failure to File If the trial court does not file findings, it is presumed harmful unless the record affirmatively shows the appellant suffered no harm. See Tenery v. Tenery, 955 S.W.2d 337 (Tex. App.--San Antonio 1997, no pet.). Where there is only one theory of recovery or defense pled or raised by the evidence, there is no demonstration of injury. Guzman v. Guzman, 827 S.W.2d 445 (Tex. App.--Corpus Christi 1992, writ denied); Vickery v. Texas Carpet Co., Inc., 792 S.W.2d 759 (Tex. App.--Houston [14th Dist.] 1990, writ


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denied). Accord, Landbase, Inc. v. T.E.C., 885 S.W. 2d 499 (Tex. App.--San Antonio 1994, writ denied) (failure to file findings and conclusions harmless where the basis for the court’s ruling was apparent from the record).

The test for determining whether the complainant has suffered harm is whether the circumstances of the case would require an appellant to guess the reason or reasons that the judge has ruled against it. See Thomas James Associates v. Owens, 1 S.W.3d 315 (Tex. App.--Dallas 1999, no pet.); Elizondo v. Gomez, 957 S.W.2d 862 (Tex. App.--San Antonio 1997, no writ); Martinez v. Molinar, 953 S.W.2d 399 (Tex. App.--El Paso 1997, no writ).

If the trial court’s failure to act prevents a proper presentation of the case on appeal and if the trial court can correct its failure, the court of appeals must direct the trial court to correct the error and then proceed as if the failure to act had not occurred. See TEX. R. APP. P. 44.4(b); Cherne Industries, Inc. v. Magallanes, 763 S.W.2d 768 (Tex. 1989) (trial judge was still on the bench and could correct the error). If the error is not curable, the appellate court may reverse and remand the case for a new trial. Larry F. Smith, Inc. v. The Weber Co., Inc., 110 S.W.3d 611 (Tex. App.--Dallas 2003, pet. filed) (case reversed, judge no longer on the bench). 3. Failure to Make Additional Findings

With regard to additional findings, the case should not be reversed if most of the additional findings were disposed of directly or indirectly by the original findings and the failure to make the additional findings was not prejudicial to the appellant. ASAI v. Vanco Insulation Abatement, Inc., 932 S.W.2d 118 (Tex. App.--El Paso 1996, no writ); Landscape Design & Const., Inc. v. Harold Thomas Excavating, Inc., 604 S.W.2d 374 (Tex. Civ. App.--Dallas 1980, writ ref’d n.r.e.). Refusal of the court to make a requested finding is reviewable on appeal if error has been preserved. See TEX. R. CIV. P. 299.

G. Effect of Court’s Filing

Rule 299 provides that where findings of fact are filed by the trial court, they shall form the basis of the judgment upon all grounds of recovery. See TEX. R. CIV. P. 299. The judgment may not be supported on appeal by a presumption or finding upon any ground of recovery no element of which has been found by the trial court. Where one or more of the elements have been found by the court, however, any omitted unrequested elements, if supported by the evidence, will be supplied by presumption in support of the judgment. This presumption does not apply where the omitted finding was requested by the party and refused by the trial court. Chapa v. Reilly, 733 S.W.2d 236 (Tex. App.--Corpus Christi 1987, writ ref’d n.r.e.).

Findings of fact are accorded the same force and dignity as a jury verdict. McPherren v. McPherren, 967 S.W.2d 485 (Tex. App.--El Paso 1998, no pet.) When they are supported by competent evidence, they are generally binding on the appellate court. Where a reporter’s record is

available, challenged findings are not binding and conclusive if manifestly wrong. The same is true of patently erroneous conclusions of law. Reddell v. Jasper Federal Savings & Loan Association, 722 S.W.2d 551 (Tex. App.--Beaumont 1987) rev’d on other grounds 730 S.W.2d 672 (1987); De La Fuenta v. Home Savings Association, 669 S.W.2d 137 (Tex. App.--Corpus Christi 1984, no writ). Where no reporter’s record is presented, the court of appeals must presume that competent evidence supported not only the express findings made by the court, but any omitted findings as well. D&B, Inc. v. Hempstead, 715 S.W.2d 857 (Tex. App.--Beaumont 1986, no writ); Mens’ Wearhouse v. Helms, 682 S.W.2d 429 (Tex. App.--Houston [1st Dist.] 1984, writ ref’d n.r.e.), cert. denied, 474 U.S. 804, 106 S.Ct. 38 (1985).

H. Deemed Findings

When the trial court gives express findings on at least one element of a claim or affirmative defense, but omits other elements, implied findings on the omitted unrequested elements are deemed to have been made in support of the judgment. In other words, if a party secures an express finding on at least one element of an affirmative defense, then deemed findings arise as to the balance of the elements. Linder v. Hill, 691 S.W.2d 590 (Tex. 1985); Dunn v. Southern Farm Bureau Casualty Insurance Co., 991 S.W.2d 467 (Tex. App.--Tyler 1998, pet. denied); Sears, Roebuck & Co. v. Nichols, 819 S.W.2d 900 (Tex. App.--Houston [14th Dist.] 1991, writ denied). Where deemed findings arise, it is not an appellee’s burden to request further findings or to complain of other findings made. It is the appellant’s duty to attack both the express and implied findings.

I. Challenges on Appeal 1. Challenging the Failure to File Findings of Fact

Where findings and conclusions were properly requested, but none were filed by the trial court, and the trial court was properly reminded of its failure to file the findings and conclusions, the injured party must then complain about the failure to file by point of error in the brief, or else the complaint is waived. Seaman v. Seaman, 425 S.W.2d 339 (Tex. 1968); In Interest of Hidalgo, 938 S.W.2d 492 (Tex. App.--Texarkana 1996, no writ); Southwest Livestock & Trucking Co. v. Dooley, 884 S.W.2d 805 (Tex. App.--San Antonio 1994, writ denied). 2. Challenging Findings and Conclusions on Appeal

Unless the trial court’s findings of fact are challenged by point of error in the brief, the findings are binding on the appellate court. S&A Restaurant Corp. v. Leal, 883 S.W.2d 221 (Tex. App.--San Antonio 1994), rev’d on other grounds, 892 S.W.2d 855 (Tex. 1995) (per curiam); Wade v. Anderson, 602 S.W.2d 347 (Tex. Civ. App.--Beaumont 1980, writ ref’d n.r.e.).

Frequently, trial courts include disclaimers to the effect that “any finding of fact may be considered a


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conclusion of law, if applicable” and vice-versa. There is a difference, however, in the standard of review. Findings of fact are the equivalent of a jury answer and should be attacked on the basis of legal or factual sufficiency of the evidence. Associated Telephone Directory Publishers, Inc. v. Five D’s Publishing Co., 849 S.W.2d 894, 897 (Tex. App.--Austin 1993, no writ); Lorensen v. Weaber, 840 S.W. 2d 644 (Tex. App.--Dallas 1992) rev’d on other grounds sub nom.; Exxon Corp. v. Tidwell, 816 S.W.2d 455 (Tex. App.--Dallas 1991, no writ); A-ABC Appliance of Texas, Inc. v. Southwestern Bell Tel. Co., 670 S.W.2d 733 (Tex. App.--Austin 1984, writ ref’d n.r.e.). Conclusions of law should be attacked on the ground that the law was incorrectly applied.

Sometimes, however, findings of fact are mislabeled as conclusions of law, as in Posner v. Dallas County Child Welfare, 784 S.W.2d 585 (Tex. App.--Eastland 1990, writ denied). There, the ultimate and controlling findings of fact were erroneously labeled as conclusions of law, and instead of challenging these, the appellant challenged the immaterial evidentiary matters which were included in the findings of fact. The appellate court found that the appellant was bound by the unchallenged findings which constituted undisputed facts. J. Specialized Findings in Family Law 1. Property Division

Generally, the court must make findings on each material issue raised by the pleadings and evidence, but not on evidentiary issues. Findings are required only when they relate to ultimate or controlling issues. Roberts v. Roberts, 999 S.W.2d 424, 434 (Tex. App.–El Paso 1999, no pet.); Dura-Stilts v. Zachry, 697 S.W.2d 658 (Tex. App.--Houston [1st Dist.] 1985, writ ref’d n.r.e.); Loomis International v. Rathburn, 698 S.W.2d 465 (Tex. App.--Corpus Christi 1985, no writ); Lettieri v. Lettieri, 654 S.W.2d 554 (Tex. App.--Fort Worth 1983, writ dism’d). Before the enactment of section 6.711 of the Texas Family Code, appellate courts were split on the issue of whether a trial court must make findings of fact on the values and character of specific assets divided by the court or confirmed as separate property.

In a divorce case, the ultimate issue is whether the property has been divided in a just and right manner. Hill v. Hill, 971 S.W.2d 153 (Tex. App.--Amarillo 1998, no pet.). Many courts took the position that the value of the property being divided, though related to the ultimate issue, was not a controlling issue. Thus, the court need not enter findings or conclusions with respect to values. See Tenery v. Tenery, 932 S.W.2d 29 (Tex. 1996); Finch v. Finch, 825 S.W.2d 218 (Tex. App.--Houston [1st Dist.] 1992, no writ); Wallace v. Wallace. 623 S.W.2d 723 (Tex. Civ. App.--Houston [1st Dist.] 1981, writ dism’d).

The El Paso court of appeals, however, held that because an appellant cannot demonstrate that a trial court abused its discretion in making a just and right division of the community estate without being able to quantify the

size of the community pie or just how large a slice each spouse was served, an appellant is entitled to findings on characterization and valuation when error is preserved. Roberts v. Roberts, 999 S.W.2d 424 (Tex. App.--El Paso 1999, no pet.). See also Lawson v. Lawson, 828 S.W.2d 158 (Tex. App.--Texarkana 1992, writ denied); Archambault v. Archambault, 763 S.W.2d 50 (Tex. App.--Beaumont 1988, no writ); Joseph v. Joseph, 731 S.W.2d 597 (Tex. App.--Houston [14th Dist.] 1987, no writ); Jones v. Jones, 699 S.W.2d 583 (Tex. App.--Texarkana 1985, no writ).

In a suit for dissolution of marriage in which the court orders a division of the estate, on a party’s request the court shall state in writing its findings of fact and conclusions of law regarding (1) the characterization of each party’s assets, liabilities, claims, and offsets on which disputed evidence has been presented and (2) the value or amount of the community estate’s assets, liabilities, claims, and offsets on which disputed evidence has been presented. The request for findings of fact and conclusions of law must conform to the Texas Rules of Civil Procedure. TEX. FAM. CODE § 6.711. Note that this statute does not encompass factors which the trial court considers in making a disproportionate division of the community estate. It may be necessary to resort to traditional findings under Rule 296 if that is likely to be an issue on appeal.

Section 6.711 assists the attorney in obtaining some of the findings needed to pursue an appeal. It still leaves several hurdles for an appellant to overcome should a trial court limit itself to just the statutory findings. For example, although the Texas Family Code allows the trial court to take into consideration the value of a party’s separate estate in making the division of property, it is not mandatory for the trial court to put a value on the separate estates of the parties. Without this information, it would be virtually impossible for an appellate court to determine whether the trial court had made a full and equitable division.

Remember, the findings must track the evidence. The statute requires findings regarding “assets, liabilities, claims, and offsets on which disputed evidence has been presented. . .” TEX. FAM. CODE § 6.711(a)(2). As to characterization, the community property presumption will prevail such that if the disputed evidence does not rise to the clear and convincing level, all assets, liabilities, claims and offsets will be characterized as community. Similarly, it would seem that if no evidence has been presented at all, no specific fact findings on characterization would be required. Valuation is more complicated. It is the responsibility of the parties to the suit to produce evidence of value. Wallace v. Wallace, 623 S.W.2d 723 (Tex. Civ. App.–Houston [1st Dist.] 1981, writ dism’d). If there is no evidence of value, there can be no finding of value. Moreover, without evidence of value, an appellate court cannot determine whether the ultimate division of property was manifestly unjust. Forgason v. Forgason, 911 S.W.2d 893 (Tex. App.–Amarillo 1995, no writ).


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While sworn inventories and appraisements may provide some evidence of value, the intermediate courts are in disagreement as to whether the inventories must be formally introduced into evidence. The Tyler court of appeals has analogized an inventory to written interrogatories and determined that it must be admitted to be considered on appeal. Poulter v. Poulter, 565 S.W.2d 107 (Tex. Civ. App.–Tyler 1978, no writ); Bokhoven v. Bokhoven, 559 S.W.2d 142 (Tex. Civ. App.–Tyler 1977, no writ). The Austin court of appeals likens inventories to pleadings. See Tschirhart v. Tschirhart, 876 S.W.2d 507 (Tex. App.– Austin 1994, no writ) (while not technically a pleading in that it does not constitute either a petition or an answer, an inventory may constitute a judicial admission). However, in Vannerson v. Vannerson, 857 S.W.2d 659 (Tex. App.–Houston [1st Dist.] 1993, writ denied), the court held that an inventory need not be introduced because the trial court could have taken judicial notice of it. 2. Child Support

Section 154.130 of the Family Code provides that, without regard to Rules 296 through 299, in all cases in which child support is contested and the amount of child support ordered by the court varies from statutory guidelines, the trial court shall make findings in the child support order. TEX. FAM. CODE § 154.130.

The court shall state whether the application of the guidelines would be unjust or inappropriate and shall state: (1) the amount of the obligor’s monthly net resources; (2) the amount of the obligee’s monthly net resources; (3) the percentage applied to the obligor’s net resources in the actual order rendered; (4) the amount of child support if the percentage guidelines are applied to the first $6,000 of the obligor’s net resources; (5) if applicable, the specific reasons the amount ordered varies from the amount computed by applying the percentage guidelines; and, (6) if applicable, because the obligor has multiple support obligations, the number of children before the court, the number of children not before the court residing in the same household with the obligor, and the number of children not before the court and not in the household of the obligor for whom the obligor is obligated by court order to pay support. TEX. FAM. CODE § 154.130(b).

The statute requires that a written request be made or filed with the court no later than 10 days after the date of the hearing (not within 10 days after the date the order is signed). See TEX. FAM. CODE § 154.130(a)(1). Note that the computation of support pursuant to section 154.129 for children in more than one household, however, does not constitute a variance from child support guidelines that requires specific findings. TEX. FAM. CODE § 154.130(c).

The purpose of the statute is to foster a challenge to the trial court’s order and to enable the appellate court to conduct a meaningful review. In re Gonzalez, 993 S.W.2d 147 (Tex. App.–San Antonio 1999, no pet.) citing Tenery v. Tenery, 932 S.W.2d 29 (Tex. 1996); In re Marriage of Combs, 958 S.W.2d 848 (Tex. App.–Amarillo 1997, no

pet.). A court’s order of child support will not be reversed on appeal unless the appellant can show a clear abuse of discretion. Worford v. Stamper, 801 S.W.2d 108 (Tex. 1990). The statutory findings also serve to establish in the decree a point-of-reference for a later modification action. If utilized properly, the traditional findings and conclusions contemplated by Rule 296 are not needed.

Although it appears from a strict interpretation of the statute that it is mandatory that the trial court make findings without the necessity of a written request when it renders an order that varies from the amount computed by applying the guidelines, the Texas Supreme Court has held that a written request for the findings is required and such findings are waived without the written request. Tenery v. Tenery, 932 S.W.2d 29 (Tex. 1996); In re M.M., 980 S.W.2d 699 (Tex. App.--San Antonio 1998, no pet.). Accordingly, unless it is very clear that the child support ordered by the court clearly varies from the amount computed by applying the percentage guidelines, the complaining party should make a request at the hearing or within 10 days of the hearing on child support. When there is a clear variation from child support guidelines, the statute fails to clearly designate a date by which findings of fact must be requested or made by the trial court. See TEX. FAM. CODE § 154.130(a); see also Tenery, 932 S.W.2d at 29 (findings of fact requested pursuant to rule 296 held to be timely when record revealed clear variation from guidelines). However, since a prematurely filed request for findings of fact and conclusions of law does not render them ineffective, the best practice would be to make all requests for findings of fact in child support cases within 10 days of the hearing. See TEX. R. CIV. P. 306c.

The trial court is required to include the findings in the child support order. The duty does not arise, however, unless a request is timely made. Hatteberg v. Hatteberg, 933 S.W.2d 522 (Tex. App.–Houston [1st Dist.] 1994, no writ). Although this requirement conflicts with Rule 299a, the Texas Family Code provides that the requirement applies notwithstanding the Texas Rules of Civil Procedure. Further, nothing in the statute precludes the court from making the same findings or other findings in compliance with the rules. This may be helpful when other factors which do not neatly fit into the section 154.130 findings, the statutory findings are insufficient, the request is not timely made, or if the trial court fails to include the section 154.130 findings in the child support order itself, despite a timely request. In this instance, two separate findings may be filed. It also appears that if the specific elements of section 154.130 are included in the general findings, the error in failing to include findings in child support orders would be harmless.

One court has held that where a trial court does not strictly comply with the statutory requirement that the findings be enumerated in the support order itself, substantial compliance may be demonstrated if the findings are reduced to writing and filed among the papers of the cause. Zajac v. Penkava, 924 S.W.2d 405 (Tex. App.–San


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Antonio 1996, no writ). However, insertion of the findings into the support order will be helpful if a modification is necessary. These findings establish what the circumstances of the parties were at the time of the divorce and whether the support ordered was in compliance with the guidelines.

Yet another court has concluded that the statutory requirements for findings in child support orders do not apply to retroactive support under section 160.005(c). In the Interest of Valdez, 980 S.W.2d 910 (Tex. App.–Corpus Christi 1998, pet. denied). Nor do they apply in a modification proceeding if the support is unchanged. In Interest of S.B.C., 952 S.W.2d 15 (Tex. App.–San Antonio 1997, no writ); In re Striegler, 915 S.W.2d 629 (Tex. App.--Amarillo, 1996, writ denied) (motion to modify denied). Finally, no findings are necessary if the support order does not constitute a deviation from the guidelines. Carson v. Hathaway, 997 S.W.2d 760 (Tex. App.–El Paso 1999, no pet.); Wilemon v. Wilemon, 930 S.W.2d 290 (Tex. App.–Waco 1996, no writ).

Remember, if it becomes necessary to seek findings of fact in regard to the amount of child support, note that the monthly net resources of the obligee is a mandatory finding. Accordingly, such information should be sought and obtained during discovery in case it becomes an issue at trial. Typically, when this information is requested during discovery in cases where the obligor is not seeking custody, a relevance objection is raised. However, this information is clearly relevant to the obligor’s decision to seek a variance from guideline support.

If you represent the obligee and are trying to sustain the trial court’s award of sizeable child support, consider a finding that finds that additional amounts of child support are required, based upon the demonstrated needs of the child. Arguably, the obligor could then request a specific finding under Rule 296 as to the demonstrated needs of the child. See In re Gonzalez, 993 S.W.2d 147 (Tex. App.–San Antonio 1999, no pet) (appeal abated and trial court ordered to supplement statutory findings with Rule 296 finding on exact amount of child’s proven needs). If you represent the obligor, do not accept merely the section 154.130 findings. Try to pin the trial court down as to what specific factors were considered and what the total monthly needs of the child are, in actual dollars.

The appellate courts are not consistent in their remedies for the failure of the trial court to make the statutory findings when properly requested. In Hanna v. Hanna, 813 S.W.2d 626 (Tex. App.–Houston [1st Dist.] 1991, no writ), the court found that the failure to make findings in a child support order upon proper request is reversible error, and the appellate court reversed and remanded. See also, Morris v. Morris. 757 S.W.2d 466 (Tex. App.–Houston [14th Dist.] 1988, writ denied) (where trial court failed to make required child support findings, case was reversed). However, in Chamberlain v. Chamberlain, 788 S.W.2d 455 (Tex. App.–Houston [1st Dist.] 1990, writ denied), the appellate court abated the appeal and directed the trial court to make the necessary

findings. See also Tenery v. Tenery, 932 S.W.2d 29 (Tex. 1996) (reversed and remanded the cause to the court of appeals with instructions for it to direct the trial court to correct its error). 3. Possession of a Child

Section 153.258 of the Texas Family Code provides that without regard to the Texas Rules of Civil Procedure, in all cases in which possession of a child by a parent is contested and the possession of the child varies from the standard possession order, the trial court shall state in the order the specific reasons for the variance from the standard order. TEX. FAM. CODE § 153.258. The statute requires that a written request be made or filed with the court no later than 10 days after the date of the hearing (not within 10 days after the date the order is signed). An oral request is sufficient if made in open court during the hearing. An oral request should be made on the record.

The requirement to make findings under section 153.258 is mandatory. Under the provision, the trial court is required to insert the required findings (specific reasons for the variance from the standard possession order) within the body of the visitation order. The court may not simply state that the special needs of the child render the application of the standard possession order unworkable and inappropriate. Voros v. Turnage, 849 S.W.2d 353 (Tex. App.--Houston [1st Dist.] 1992), on appeal after remand, 856 S.W.2d 759 (Tex. App.--Houston [1st Dist.] 1993, writ denied). Requiring a court to state specific reasons for variance is functionally equivalent to making findings of fact. In re T.J.S., 71 S.W.3d 452 (Tex. App.--Waco 2002, pet. denied).

Although this requirement conflicts with Rule 299a, the statute trumps the rule. It would appear that compliance with the statute does not preclude the court from making other findings and conclusions in compliance with the Texas Rules of Civil Procedure, particularly where issues other than visitation are involved.

The presumptions arising from a trial court’s failure to file traditional findings have now been applied to the statutory findings. Assuming a timely request has been made, the failure of the trial court to file findings of fact pursuant to the Texas Rules of Civil Procedure is error. Martinez v. Molinar, 953 S.W.2d 399 (Tex. App.–El Paso 1997, no writ). Harm is presumed unless the contrary appears on the face of the record. Stated inversely, the failure to make findings does not compel reversal if the record affirmatively demonstrates that the complaining party has suffered no harm. Where the findings of the court are recited in the judgment rather than in a separate document as contemplated by Rule 299a, the underlying purpose of Rule 296 has nevertheless been served. In Gray v. Gray, 971 S.W.2d 212 (Tex. App.–Beaumont 1998, no pet.), the statutory findings were not contained within the order, but written findings of fact were obtained via Rule 296. Adopting the Martinez analysis, the court determined that although the failure to incorporate the statutory


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findings into the visitation order was error, the error was harmless. 4. Findings of Associate Judges

The associate judge is also empowered to make findings of fact on evidence and formulate conclusions of law. TEX. FAM. CODE § 201.007(a)(8),(9). See In re, A.J.L., 108 S.W.3d 414 (Tex. App.--Fort Worth 2003, writ denied). It is important to remember that decisions of associate judges can be appealed to the referring court. See TEX. FAM. CODE § 201.015. The appeal is limited to specified findings and conclusions. See TEX. FAM. CODE § 201.015(b). Note that a notice of appeal must be filed three days after the date the party receives notice of the substance of the associate judge’s report. See TEX. FAM. CODE § 201.015(a). While it is not clear that the associate judge would produce findings consistent with the Texas Rules of Civil Procedure or whether those are the type forwarded to the referring court. It is likely the case that if the associate judge’s decision was a final decision, findings consistent with the Texas Rules of Civil Procedure would be appropriate. III. MOTION FOR NEW TRIAL

A motion for new trial asks the trial court to reconsider and correct a trial error either in its rulings or in the jury’s findings and to grant the movant a new trial. The primary reasons for filing a motion for new trial is to give the trial court a chance to correct any mistakes, to preserve error for appeal, and to extend the appellate deadlines. Remember, to preserve a complaint for appeal, a party must first have presented (excepting sufficiency of the evidence) the complaint to the trial court through a timely, specific objection and obtained a ruling or presented a motion to the trial court and obtained a ruling. See TEX. R. APP. P. 33.

New trials may be granted and judgment set aside for good cause on motion or on the court’s own motion on the terms the court directs. If it appears to the court that a new trial should be granted on a point or points that affect only a part of the matters in controversy and that the part is clearly separable without unfairness to the parties, the court may grant a new trial as to that part only. A motion for new trial is addressed to the sound discretion of the trial court, and the court’s ruling will not be set aside on appeal in the absence of a showing of an abuse of discretion. Cliff v. Huggins, 724 S.W.2d 778 (Tex. 1987). A trial court in a divorce proceeding has discretion to grant a new trial within the time frame that the court has plenary jurisdiction, even if one party dies after the divorce decree is entered. Nichols v. Nichols, 907 S.W.2d 6 (Tex. App.--Tyler 1995, writ denied). A motion for new trial may not be used as a vehicle by which the case may be tried over and differently. Scheffer v. Chron, 560 S.W.2d 419 (Tex. Civ. App.--Beaumont 1977, writ ref’d n.r.e.).

A. The Law See Rules 306c, 320-329b of the Texas Rules of Civil

Procedure and Rule 33.1 of the Texas Rules of Appellate Procedure. B. Filing for Appellate Purposes

A motion for new trial is not necessary to preserve error in either a jury or a nonjury case, except under very limited circumstance. See TEX. R. CIV. P. 324(a). After either a jury or a nonjury trial, a motion for new trial is necessary to preserve post trial complaints on which evidence must be heard, such as newly discovered evidence or failure to set aside a default judgment (TEX. R. CIV. P. 324(b)(1)) and complaints that were not brought to the trial court’s attention during the trial (TEX. R. CIV. P. 324(a)–(b)). The motion for new trial, however, does not negate the need for the party to have objected at trial. Additionally, after a jury trial, a party must file a motion for new trial to preserve certain types of complaints on appeal, including:

• Post trial complaints on which evidence must be

heard (such as jury misconduct). TEX. R. CIV. P. 324(b)(1);

• To preserve complaints not brought to the trial court’s attention during trial. TEX. R. CIV. P. 324(a);

• Complaints of incurable jury argument if the trial court has not otherwise made a ruling on it. TEX. R. CIV. P. 324(b)(5);

• Complaints of factual insufficiency of the evidence to support a jury finding or that the jury finding is against the great weight and preponderance of the evidence. TEX. R. CIV. P. 324(b)(2),(3);

• Complaints of legal insufficiency. Steves Sash & Door Co. v. Ceco Corp., 751 S.W.2d 473 (Tex. 1988). However, if a party raises legal insufficiency for the first and only time in a motion for new trial, the party is not entitled to a rendition by the appellate court, only to a remand to the trial court. Horrocks v. Texas Dept. of Transportation, 852 S.W.2d 498 (Tex. 1993); and

• Complaints that the jury’s damages are inadequate or excessive. Tex. R. Civ. P. 324(b)(4).

If a motion for new trial is a prerequisite of appeal, error not complained of in the motion is waived. Beacon National Insurance Co. v. Young, 448 S.W.2d 812 (Tex. Civ. App.--Dallas 1969, writ ref’d n.r.e.). A party whose motion for judgment on verdict of a jury is denied may forgo the filing of a motion for new trial and predicate his points of error on appeal on matters included in the motion. The party following that course may complain on appeal


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only of denial of the motion for judgment. Abbott v. Earl Hayes Chevrolet Co., 384 S.W.2d 782 (Tex. Civ. App.--Tyler 1964, no writ). The filing of a motion for new trial in order to extend the appellate timetable is a matter of right, regardless of whether there is any sound or reasonable basis for the conclusion that a further motion is necessary. Old Republic Insurance Co. v. Scott, 846 S.W.2d 832 (Tex. 1993). C. Timetable for Filing

A motion for new trial must be filed before or within 30 days after the judgment or other order complained of is signed. TEX. R. CIV. P. 329b(a). Within that same 30-day period, a party may file one or more amended motions for new trial without leave of court as long as the trial court has not already overruled an earlier motion for new trial. With leave of the court, a party may file an amended motion even if the court has overruled an earlier motion for new trial. Tex. R. Civ. P. 329b(b). This rule also applies to supplemental motions. See Equinox Enterprises, Inc. v. Associated Media, Inc., 730 S.W.2d 872 (Tex. App.--Dallas 1987, no writ). Motions, whether original, amended, or supplemental, filed after this 30-day period are a nullity and cannot be considered by appellate courts. A court may not lengthen the period for taking any action under the Texas Rules of Civil Procedure relating to new trials except as stated in those rules. Tex. R. Civ. P. 5. A court is without authority to grant leave to file an amended motion for new trial after this 30-day period. Lund v. Gresham, 672 S.W.2d 20 (Tex. App.--Houston [14th Dist.] 1984, no writ). A prematurely filed motion for new trial is deemed to be filed on the date of, but subsequent to, the time that the court signs the judgment. TEX. R. CIV. P. 306c. The judgment date still serves as the date from which the appellate timetable begins. Exceptions to the general rule requiring filing of the motion within 30 days of the signing of the judgment apply when a party receives a late notice of judgment (see TEX. R. CIV. P. 306a when the trial court signs a judgment rendered after citation by publication (see TEX. R. CIV. P. 329(a)) or when a party files an original petition in a Texas court to enforce a foreign judgment. See TEX. CIV. PRAC. & REM. CODE § 35.003(b),(c). D. Plenary Power

The trial court has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment within 30 days after judgment is signed, regardless of whether an appeal has been perfected. TEX. R. CIV. P. 329b(d). This power is extended when a motion for new trial is filed, such that the court may alter its original judgment at any point until 30 days after all motions have been overruled, either by written order or operation of law, whichever occurs first, but in no event more than 105 days from the date the judgment was signed. See TEX. R. CIV. P. 329b(c),(g) (motion for new trial or to modify, correct, or reform a judgment), 306a(4) (no notice of judgment). Judicial action taken after the court’s jurisdiction over a

cause has expired is a nullity. State ex rel. Latty v. Owens, 907 S.W.2d 484 (Tex. 1995). If the motion is granted, plenary power is extended for 30 days after the order was signed, but in no event more than 75 days from the date the judgment was signed.

After such time, the order may not be set aside except by bill of review. The court may, however, correct a clerical error in the judgment by a nunc pro tunc order entered under Rules 316 and 317 of the Texas Rules of Civil Procedure. The nunc pro tunc order will extend the appellate timetable provided it does not appear that the second order was signed solely to provide the extension. Mackie v. McKenzie, 890 S.W.2d 807 (Tex. 1994).

An amended motion for new trial may be filed without leave of court, provided it is filed within the 30-day period and before the original motion is overruled. The Dallas Court of Appeals has considered the distinction between an amended motion and a supplemental motion. In Sifuentes v. Texas Employers’ Insurance Association, 754 S.W.2d 784 (Tex. App.--Dallas 1988, no writ), the appellant filed a motion for new trial on May 29, 1987 and a “Plaintiff’s Second Motion for New Trial” on June 4, 1987. While the initial motion complained of factual insufficiency of the evidence, the second did not. Claiming waiver, TEIA urged that the second motion was in fact an amended motion that superseded the original motion, so that there was no “live” motion for new trial raising factual insufficiency of the evidence as required by the rules. The court of appeals disagreed, noting that the title of the motion gave no indication that it should be considered an amended motion. Instead, the language indicated that the second motion had been filed shortly after the trial court had conducted a hearing and orally overruled the first motion. No written order was signed. Because there was no written order overruling the original motion for new trial, the court chose to treat the second motion as a supplemental motion. The factual insufficiency points were accordingly preserved. Although this case involves a complaint of factual sufficiency in an appeal from a jury trial, the construction of an amended vs. supplemental motion for new trial may be equally applied in nonjury appeals.

Only a motion for new trial filed by a party of record automatically extends the trial court’s plenary power. A motion for new trial filed by a nonparty is simply an unofficial plea to the trial court to exercise its discretion allowed under rule 320 to set aside the judgment during the court’s plenary power. State & County Mutual Fire Insurance Co. v. Kelly, 915 S.W.2d 224 (Tex. App.--Austin 1996, no writ). E. Second Judgment Problems

When the trial court corrects the judgment by signing a second judgment, a motion for new trial filed to challenge the first judgment is effective for the second judgment if the substance of the motion challenges the second judgment. See Fredonia State Bank v. General


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American Life Ins. Co., 881 S.W.2d 279 (Tex.1994). A motion for new trial filed after the first judgment is a prematurely filed motion as to the second judgment, and it extends the appellate timetables from the signing of the second judgment if the grounds in the motion “assail” the second judgment. TEX. R. CIV. P. 306c; Harris Co. Hospital Dist. v. Estrada, 831 S.W.2d 876 (Tex. App.--Houston [1st Dist.] 1992, no writ). F. Late Notice of Judgment

If a party receives notice of the judgment between 20 and 90 days after the judgment was signed, the deadline for filing a motion for new trial is counted from the date the party actually learned or received notice of the judgment rather than the date the judgment was signed. TEX. R. CIV. P. 306a(4),(5). G. Exception for Citation by Publication

Where the respondent has been served by publication, the time for filing a motion for new trial is extended by Rule 329(a). The court may grant a new trial upon petition showing good cause and supported by affidavit, filed within two years after the judgment was signed. The appellate timetable is computed as if the judgment were signed 30 days before the date the motion was filed. However, the validity of an order terminating the parental rights of a person who is served by citation by publication is not subject to collateral or direct attack after the sixth month after the date the order was signed. TEX. FAM. CODE § 161.211(b). H. Format of Motion

The motion must be in writing and signed by the attorney or the party. TEX. R. CIV. P. 320. Each point relied on in a motion for new trial or in arrest of judgment shall briefly refer to that part of the ruling of the court, charge given the jury or charge refused, admission or rejection of evidence, or other proceedings that are designated to be complained of, in such a way that the objection can be clearly identified and understood by the court. TEX. R. CIV. P. 321. Grounds of objection couched in general terms shall not be considered by the court. TEX. R. CIV. P. 322. The motion must specifically request a new trial. If the request is for a different judgment, it is not a motion for new trial. See Mercer v. Band, 454 S.W.2d 833 (Tex. App.--Houston [14th Dist.] 1970, no writ).

It is necessary to very a motion for new trial and include affidavits when the motion is based on the grounds listed in Rule 324(b)(1) (jury misconduct, newly discovered evidence, failure to set aside a default judgment), or any other ground that requires the presentation of evidence at a hearing. Zuniga v. Zuniga, 13 S.W.3d 798 (Tex. App--San Antonio 1999, no pet.). A nonmovant should consider filing a similar response since the appellate court will consider an uncontroverted affidavit as true. Director v. Evans, 889 S.W.2d 266 (Tex. 1994).

The Texas Government Code specifies that a $15 filing fee must be paid for a motion for new trial. See TEX. GOV’T CODE § 51.317. If a motion for new trial is filed without the payment of the fee, the document is considered “conditionally filed” on the date it was tendered to the clerk. Jamar v. Patterson, 868 S.W.2d 318 (Tex. 1993).

In Tate v. E.I. DuPont de Nemours & Co., 934 S.W.2d 83 (Tex.1996), the Texas Supreme Court extended the appellate timetable when the filing fee was paid after the motion for new trial was overruled, but before the trial court lost plenary jurisdiction. However, the court expressly refused to decide the issue as to whether the appellate timetable is extended if the filing fee is paid after the trial court loses plenary jurisdiction.

The few courts addressing the issue have held that a motion for new trial will extend the appellate timetable, even though the filing fee was paid after the appellee moved for dismissal in the court of appeals. See Finley v. J.C. Pace Ltd., 4 S.W.3d 319 (Tex. App.—Houston [1st Dist.] 1999, order on mot.); Polley v. Odom, 937 S.W.2d 623 (Tex. App.--Waco 1997, no writ). The courts reasoned that, while an untimely payment may deprive the trial court of the ability to rule on the motion, the appellate timetable would nevertheless be extended, given the Texas Supreme Court’s policy of liberally interpreting rules in favor of permitting appeal. I. Hearing

Most motions for new trial do not require a hearing. If a motion for new trial requires sworn evidence to support it, it also requires a hearing to receive evidence. The types of motions for new trial that require a hearing are the following: jury misconduct; newly discovered evidence; failure to set aside a default judgment; and any other motion that must be supported by evidence. See e.g., Hensley v. Salinas, 583 S.W.2d 617 (Tex.1979). J. Order on Motion for New Trial

An order granting a motion for new trial must be written and signed. Faulkner v. Culver, 851 S.W.2d 187 (Tex. 1993). A docket entry is not an order and may not be considered as part of the record. Jauregui Partners, Ltd. v. Grubb & Ellis Commercial Real Estate Services, 960 S.W.2d 334 (Tex. App.--Corpus Christi 1997, writ denied). If the motion is not determined by written order, it shall be deemed overruled by operation of law 75 days after judgment is entered. Balazik v. Balazik, 632 S.W.2d 939 (Tex. App.--Fort Worth 1982, no writ). Mere reference in an order that a hearing was held on the motion for new trial without specifically granting the motion will not suffice. The overruling by operation of law of a motion for new trial preserves error unless the taking of evidence was necessary to present the complaint in the trial court. TEX. R. APP. P. 33.1(b). The automatic overruling of a motion for new trial on which there has been no trial court’s ruling is constitutional. Texaco, Inc. v. Pennzoil Company, 729


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S.W.2d 768 (Tex. App.--Houston [1st Dist.] 1987, writ ref’d n.r.e.).

K. Grounds for Motion for New Trial

Motions for new trial may be granted by the trial court so long as it comes within the umbrella of “good cause”. TEX. R. CIV. P. 320. While certain matters have been raised in this state in virtual perpetuity, the laundry list is by no means exclusive. 1. Default Judgment

A respondent challenging a default judgment must show that (1) the failure of the defendant to answer before judgment was not intentional or the result of conscious indifference, but was due to a mistake or an accident, (2) the motion for new trial set up a meritorious defense, and (3) the motion was filed at a time when to grant it would cause no delay or otherwise work an injury to the plaintiff. Bank One, Texas v. Moody, 830 S.W.2d 81 (Tex. 1992) (interpreting three-pronged test set out in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939)). Although in Craddock the default judgment was taken because the defendant failed to answer, the same requirements apply to a post answer default judgment. Cliff v. Huggins, 724 S.W.2d 778 (Tex.1987); Grissom v. Watson, 704 S.W.2d 325 (Tex.1986). a. Conscious Indifference

“Conscious indifference” means a failure to take some action that would seem indicated to a person of reasonable sensibilities under the same or similar circumstances. Sharpe v. Kilcoyne, 962 S.W.2d 697 (Tex. App.--Fort Worth 1998, no pet.). In State v. Sledge, 982 S.W.2d 911 (Tex. App.--Houston [14th Dist.] 1998, no pet.) (failure to appear is not due to conscious indifference merely because it was intentional or deliberate; it must also be without adequate justification). The courts have liberally interpreted the first Craddock prong in favor of the movant. See Gotcher v. Barnett, 757 S.W.2d 398 (Tex. App.--Houston [14th Dist.] 1988, no writ) (absence of a purposeful or bad faith failure to answer is the “controlling fact” and is satisfied by even a slight excuse). Negligence alone will not preclude setting aside a default judgment. Ivy v. Carrell, 407 S.W.2d 212 (Tex.1966); Ferguson & Co. v. Roll, 776 S.W.2d 692 (Tex. App.--Dallas 1989, no writ). Thus, it appears that some excuse, even if not strong, is sufficient under the Craddock rationale to warrant setting aside a default judgment, provided that the defendant’s failure to answer was, in fact, accidental. Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939).

A party’s failure to answer because of a heavy workload or preoccupation with other activities can satisfy Craddock’s first prong. See Southland Paint Co. v. Thousand Oaks Racket Club, 724 S.W.2d 809 (Tex. App.--San Antonio 1986, writ ref’d n.r.e.) (late answer due to staff shortage at defendant’s insurance broker’s office);

Evans v. Woodward, 669 S.W.2d 154 (Tex. App.--Dallas 1984, no writ) (finding no conscious indifference when answer not filed due to confusion in attorney’s office); Drake v. McGalin, 626 S.W.2d 786 (Tex. Civ. App.--Beaumont 1981, no writ) (holding failure to answer due to accident or mistake when answer prepared by secretary presumably lost by volunteer exchange student who was assisting defendant’s attorney as an “office boy”); Dallas Heating Co. v. Pardee, 561 S.W.2d 16 (Tex. Civ. App.--Dallas 1977, writ ref’d n.r.e.) (holding suit papers inadvertently misplaced in defendant’s office sufficient to negate conscious indifference); Leonard v. Leonard, 512 S.W.2d 771 (Tex. Civ. App.--Corpus Christi 1974, writ dism’d) (finding no conscious indifference when attorney misplaced file).

b. Meritorious Defense

To set up a meritorious defense, the motion must allege facts that in law would constitute a defense to the cause of action asserted by the plaintiff, and it must be supported by affidavits or other evidence proving prima facie that the defendant has such a meritorious defense. Estate of Pollock v. McMurrey, 858 S.W.2d 388 (Tex. 1993) (quoting Ivy v. Carrell, 407 S.W.2d 212 (Tex. 1966)). The movant must do more than merely assert that it has a meritorious defense. However, it need not prove the defense in order to meet Craddock’s second prong. In order to satisfy this requirement, the defaulting party need only assert, but not prove, facts, which if true, would cause a different result on retrial. See Gotcher v. Barnett, 757 S.W.2d 398 (Tex. App.--Houston [14th Dist.] 1988, no writ); The Moving Co. v. Whitten, 717 S.W.2d 117 (Tex. App.--Houston [14th Dist.] 1986, writ ref’d n.r.e), overruled on other grounds, Hines v. Hash, 843 S.W.2d 464 (Tex. 1992). A meritorious defense, however, is not limited to one that, if proved, would lead to an entirely opposite result. It is sufficient if at least a portion of the judgment would not be sustained at retrial. HST Gathering Co. v. Motor Service, Inc., 683 S.W.2d 743 (Tex. App.--Corpus Christi 1984, no writ); Folsom Investments, Inc. v. Troutz, 632 S.W.2d 872 (Tex. App.--Fort Worth 1982, writ ref’d n.r.e.). The trial court may not try the defensive issues in deciding whether to set aside the default judgment and should not consider counter affidavits or conflicting testimony offered to refute the movant’s factual allegations. Estate of Pollock v. McMurrey, 858 S.W.2d 388 (Tex. 1993).

Where there is defective service of process, however, there is no requirement that a litigant establish a meritorious defense. Such a requirement violates due process rights under the Fourteenth Amendment to the federal constitution. Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988); Lopez v. Lopez, 757 S.W.2d 751 (Tex. 1988)


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c. No Delay or Injury In order to set aside a default judgment, the defendant

must also prove that a new trial would occasion no delay or otherwise work an injury to the plaintiff. Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939). In determining whether the granting of a new trial would injure the plaintiff or occasion delay, the court should deal with the facts on a case-by-case basis. Angelo v. Champion Restaurant Equipment Co., 713 S.W.2d 96 (Tex. 1986). One way a defendant may show that the granting of a new trial will not injure the plaintiff is by showing that he is ready to proceed to trial and that he has offered to reimburse the plaintiff for expenses incurred in obtaining the default judgment. See Gotcher v. Barnett, 757 S.W.2d 398 (Tex. App.--Houston [14th Dist.] 1988, no writ). Although reimbursement of costs in obtaining default judgment and the defendant’s ability to go to trial immediately may both be important factors in avoiding delay or injury to a plaintiff, neither factor is so indispensable that a new trial cannot be granted without it. Angelo v. Champion Restaurant Equipment Co., 713 S.W.2d 96 (Tex. 1986). In determining whether to grant a motion for new trial, the court may not consider expenses accrued by a party after the filing of the opponent’s motion for new trial. The court similarly may not consider a change of position to the nonmovant’s detriment if that change of position relied on the validity of the judgment after the filing of the motion for new trial. Burns v. Burns, 568 S.W.2d 669 (Tex. Civ. App.--Fort Worth 1978, writ ref’d n.r.e.). d. Family Law Concerns with Default As a general rule, no evidence is required to support a default judgment because a defendant’s failure to appear or answer is taken as an admission of the factual allegations in a plaintiff’s petition. Stoner v. Thompson, 578 S.W.2d 679 (Tex.1979)). However, the general rule is limited in a divorce case by section 6.701 of the Texas Family Code, which provides: “In a suit for divorce, the petition may not be taken as confessed if the respondent does not file an answer.” TEX. FAM. CODE § 6.701. Thus, if a respondent in a divorce case fails to answer or appear, the petitioner must present evidence to support the material allegations in the petition. O’Neal v. O’Neal, 69 S.W.3d 347 (Tex. App.-Eastland 2002, no pet.); Ratisseau v. Ratisseau, 44 S.W.3d 695 (Tex. App.--Houston [14th Dist.] 2001, pet. dism’d by agr.). Therefore, a default judgment of divorce is subject to an evidentiary attack on appeal. Osteen v. Osteen, 38 S.W.3d 809 (Tex. App.--Houston [14th Dist.] 2001, no pet.). Further, in Considine v. Considine, 726 S.W.2d 253 (Tex. App.--Austin 1987, no writ), the Austin Court of Appeals discussed the application of section 3.53 of the family code (the predecessor of section 6.701) to modification orders. The court of appeals acknowledged that there was no Texas Family Code provision relating to modification of prior orders comparable to section 3.53.

Nevertheless, the court decided that the policy considerations underlying the section, which were applicable to original divorce judgments appointing conservators and setting support for and access to children, should obtain also in proceedings to modify like provisions of prior orders. The court reasoned that the requirement of section 14.08 (the predecessor of section 156.101 regarding modification orders) for a hearing before modification impliedly required the admission and consideration of proof. This is a substantial difference from taking allegations of the motion for modification “as confessed for want of an answer.” This logic has been used to argue that the same proof should be required in suits involving the parent-child relationship. See Agraz v. Carnley, 2004 WL 1926059, (Tex. App.--Dallas 2004, ______).

The Fourteenth Court of Appeals has questioned the wisdom of applying the Craddock principles, which spring from traditional civil litigation, to the peculiarities of family law. In Lowe v. Lowe, 971 S.W.2d 720 (Tex. App.--Houston [1st Dist.] 1998, pet. denied), the mother appealed a default judgment which had appointed her husband as managing conservator of two young children. Although finding that Mrs. Lowe had indeed satisfied the Craddock elements, the court noted that it did not find Craddock to be an appropriate test for suits involving the parent-child relationship. Discussing several reasons why that premise is true, the court noted that although the Texas Family Code provides that the paramount inquiry shall be the best interest of the child, the Craddock test omits the child’s interests and looks only to the actions of whichever parent happens to be the defaulting party. 2. Newly Discovered Evidence

It is incumbent on a party who seeks a new trial on the ground of newly discovered evidence to satisfy the court that (1) the evidence has come to the party’s knowledge since the trial, (2) the failure to discover the new evidence was not for want of due diligence, (3) it is not cumulative evidence, and (4) the evidence is so material that it would probably produce a different result if a new trial were granted. Jackson v. Van Winkle, 660 S.W.2d 807 (Tex. 1983), overruled on other grounds, Maritz v. Priess, 121 S.W.3d 715 (Tex. 2003). Whether to grant a motion for new trial on the ground of newly discovered evidence is generally a matter addressed to the sound discretion of the trial court, and the trial court’s action will not be disturbed on appeal absent an abuse of such discretion. In passing on a motion for new trial on the ground of newly discovered evidence, the court will take into consideration the weight and the importance of the new evidence and its bearing in connection with the evidence received at trial. The inquiry is not whether, according to the evidence in the record, the application should have been granted in the particular case, but whether the refusal to grant the application has involved the violation of a clear legal right or a manifest abuse of judicial discretion. Every reasonable presumption will be


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made on review in favor of orders of the trial court refusing new trials. Jackson v. Van Winkle, 660 S.W.2d 807 (Tex. 1983), overruled on other grounds, Maritz v. Priess, 121 S.W.3d 715 (Tex. 2003). In reviewing a trial court’s decision refusing a new trial, appellate courts recognize the well-established principle that courts do not favor motions for new trial on the ground of newly discovered evidence, and such motions are reviewed with careful scrutiny. Brown v. Hopkins, 921 S.W.2d 306 (Tex. App.--Corpus Christi 1996, no writ). Review of a trial court’s action under the abuse of discretion criteria is a question of law. Jackson v. Van Winkle, 660 S.W.2d 807 (Tex. 1983), overruled on other grounds, Maritz v. Priess, 121 S.W.3d 715 (Tex. 2003). Each element of a motion for new trial must be established by affidavit. Brown v. Hopkins, 921 S.W.2d 306 (Tex. App.--Corpus Christi 1996, no writ); Fulton v. Duhaime, 525 S.W.2d 62 (Tex. Civ. App.--Houston [1st Dist.] 1975, writ ref’d n.r.e.). This is true even though the motion is verified and not controverted. Steelman v. Rosenfeld, 408 S.W.2d 330 (Tex. Civ. App.--Dallas 1966, no writ). Specifically, the attached affidavit must contain a statement that, with the exercise of due diligence, the newly discovered evidence could not have been discovered before the hearing. Medlock v. Commission for Lawyer Discipline, 24 S.W.3d 865 (Tex. App.--Texarkana 2000, no pet.). Furthermore, the motion must be accompanied by an affidavit of the person by whom the expected proof is to be made, and that witness must be called to testify on the hearing of the motion. Steelman v. Rosenfeld, 408 S.W.2d 330 (Tex. Civ. App.--Dallas 1966, no writ).

Courts may be more inclined to accept the theory of newly discovered evidence in cases involving child custody because of the welfare and well being of the children in issue. See C. v. C., 534 S.W.2d 359 (Tex. Civ. App.--Dallas 1976, no writ), where the court ruled that in an extreme case where the evidence is sufficiently strong, failure to grant the motion for new trial may well be an abuse of discretion. See also Gaines v. Baldwin, 629 S.W.2d 81 (Tex. App.--Dallas 1981, no writ) which holds that the evidence presented must demonstrate that the original custody order would have a serious adverse effect on the welfare of the child and that presentment of that evidence would probably alter the outcome.

3. Mistakes Made at Trial

This area includes the improper admission or rejection of certain evidentiary materials. If it can be demonstrated that a correct ruling would have probably altered the outcome of the trial, a new trial may be granted. 4. No Reporter’s Record Available

Section 105.003(c) of the Texas Family Code provides that a record shall be made in all suits affecting the parent-child relationship, unless expressly waived by the parties with the consent of the court. Inability to obtain

the reporter’s record in order to pursue an appeal will entitle the complaining party to a new trial:

• If the party has timely requested a reporter’s

record; • If, without that party’s fault, a significant exhibit

or a significant portion of the court reporter’s notes and records has been lost or destroyed;

• If that exhibit or portion of the record is necessary to the appeal’s resolution; and

• If the parties cannot agree on a complete record. TEX. R. APP. P. 34.6(f). 5. Sufficiency of the Evidence a. No Evidence

A motion for new trial is not required in order to complain of legal sufficiency of the evidence (a “no evidence” point) in a nonjury trial. A “no evidence” or legal insufficiency point is a question of law which challenges the legal sufficiency of the evidence to support a particular fact finding. The standard of review requires a determination by the appellate court as to whether, considering only the evidence and inferences that support a factual finding in favor of the party having the burden of proof in a light most favorable to such findings and disregarding all evidence and inferences to the contrary, there is any probative evidence which supports the finding. Garza v. Alviar, 395 S.W.2d 821 (Tex. 1965); Southwest Craft Center v. Heilner, 670 S.W.2d 651 (Tex. App.--San Antonio 1984, writ ref’d n.r.e.); Terminix v. Lucci, 670 S.W.2d 657 (Tex. App.--San Antonio 1984, writ ref’d n.r.e.); Dayton Hudson Corp. v. Altus, 715 S.W.2d 670 (Tex. App.--Houston [1st Dist.] 1986, writ ref’d n.r.e.).

There are basically two separate “no evidence” claims. When the party having the burden of proof suffers an unfavorable finding, the point of error challenging the legal sufficiency of the evidence should be that the fact or issue was established as “a matter of law”. When the party without the burden of proof suffers an unfavorable finding, the challenge on appeal is one of “no evidence to support the finding”. See Creative Manufacturing, Inc. v. Unik, 726 S.W.2d 207 (Tex. App.--Fort Worth 1987, no writ).

A “no evidence” point of error may be sustained only when the record discloses:

• A complete absence of evidence of a vital fact; • The court is barred by rules of law or evidence

from giving weight to the only evidence offered to prove a vital fact;

• The evidence offered to prove a vital fact is no more than a mere scintilla of evidence; or

• The evidence establishes conclusively the opposite of a vital fact. Neily v. Aaron, 724 S.W.2d 908 (Tex. App.--Fort Worth 1987, no writ).


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Note that as a general rule, in the event a “no evidence” point of error is sustained, it is the court’s duty to reverse and render rather than remand. National Life Accident Insurance Co. v. Blagg, 438 S.W.2d 905 (Tex. 1969); Vista Chevrolet, Inc. v. Lewis, 709 S.W.2d 176 (Tex. 1986). b. Insufficient evidence

Remember that while complaints of factual insufficiency of the evidence to support a jury finding or a complaint that the finding is against the overwhelming weight of the evidence must be raised in a motion for new trial before it may be urged on appeal, there is no such requirement in nonjury trials.

“Insufficient evidence” or factual insufficiency involves a finding that is so against the great weight and preponderance of the evidence as to be manifestly wrong. The test for factual insufficiency points is set forth in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). In reviewing a point of error asserting that a finding is against the great weight and preponderance of the evidence, the appellate court must consider all of the evidence, both the evidence which tends to prove the existence of a vital fact as well as evidence which tends to disprove its existence. If the verdict is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust, the point should be sustained.

The realm of insufficient evidence exists in an area where there is some evidence of a fact in issue sufficient that a jury question is warranted, but that evidence won’t support a finding in favor of the proponent of that fact in issue. The parlance used by the courts of appeals is that such a finding “shocks the conscience” or that it is “manifestly unjust” limited by such phrases as “the jury’s determination is usually regarded as conclusive when the evidence is conflicting,” “we cannot substitute our conclusions for those of the jury,” and “it is the province of the jury to pass on the weight or credibility of a witness’s testimony.” See, e.g., Transportation Ins. Co. v. Moriel, 879 S.W.2d 10 (Tex. 1994); Beall v. Ditmore, 867 S.W.2d 791 (Tex. App.--El Paso 1993, writ denied). Because the trial court’s findings of fact are accorded the same force and dignity as a jury verdict, the appellate court likewise will not substitute its conclusions for those of the fact finder, even when the fact finder is the trial court rather than a jury. McPherren v. McPherren, 967 S.W.2d 485 (Tex. App.--El Paso 1998, no pet.).

In constructing points of error for a factual sufficiency challenge, remember that there are two distinct complaints here as well. When the party having the burden of proof complains of an unfavorable finding, the point of error should allege that the findings “are against the great weight and preponderance of the evidence”. The “insufficient evidence” point of error is appropriate only when the party without the burden of proof on an issue complains of the court’s findings. Neily v. Aaron, 724 S.W.2d 908 (Tex. App.--Fort Worth 1987, no writ).

(1) Jury vs. Nonjury Trials The test for determining factual sufficiency of the

evidence is the same in a jury and nonjury trial. Escobar v. Escobar, 728 S.W.2d 474 (Tex. App.--San Antonio 1987, no writ); State Bar v. Roberts, 723 S.W.2d 233 (Tex. App.--Houston [1st Dist.] 1986, no writ); Foreman v. Graham, 693 S.W.2d 774 (Tex. App.--Fort Worth 1985, no writ). (2) Appellate Court Final Arbiter of Factual

Sufficiency Although recent dissents from the Supreme Court of

Texas argue otherwise, see, e.g., Transport Ins. Co. v. Faircloth, 898 S.W.2d 269 (Tex. 1995) (Hightower, J., concurring and dissenting), a claim of insufficient evidence raises a question of fact rather than law and only the court of appeals can review the issue. The Texas Supreme Court has no jurisdiction to consider questions of fact, Vallone v. Vallone, 644 S.W.2d 655 (Tex. 1983), and it may not consider a point of error challenging factual insufficiency of the evidence. Dyson v. Olin, 692 S.W.2d 456 (Tex. 1985). The Court does have jurisdiction, however, to determine whether the court of appeals used the correct rules of law in reaching its conclusion on an insufficient evidence point. Harmon v. Sohio Pipeline Co., 623 S.W.2d 314 (Tex. 1981).

(3) Findings of Fact and Conclusions of Law not

Required to Raise Sufficiency A request for findings of fact and conclusions of law

is not required in order to raise the issue of sufficiency of the evidence. Pruet v. Coastal States Trading Company, 715 S.W.2d 702 (Tex. App.--Houston [1st Dist.] 1986, no writ). (4) Appellate Remedy

If an “insufficient evidence” point is sustained on appeal, the appellate court must reverse and remand for new trial. Glover v. Texas General Indemnity Co., 619 S.W.2d 400 (Tex. 1980). The court of appeals has no jurisdiction to render based on a great weight and preponderance of the evidence point. WrightWay Spraying Service v. Butler, 690 S.W.2d 897 (Tex. 1985). L. Motion to Modify, Correct, or Reform

A motion to modify, correct, or reform the judgment is filed to request the trial court to change its judgment. See TEX. R. CIV. P. 329b(g). It should be filed to correct any error in the judgment, such as when the trial court does not award attorney’s fees or does not award the correct amount of attorney’s fees (see Texas Education Agency v. Maxwell, 937 S.W.2d 621 (Tex. App.--Eastland 1997, writ denied)) or when the judgment does not award costs or awards an incorrect amount (see Portland Savings & Loan Ass’n v. Bernstein, 716 S.W.2d 532 (Tex. App.--Corpus Christi 1985, writ ref’d n.r.e.), cert. denied, 475 U.S. 1016 (1986), overruled on other grounds, Dawson-Austin v. Austin, 968 S.W.2d 319 (Tex. 1998)).


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The motion must be in writing and signed by the party or his attorney and must specify what aspects of the judgment should be modified, corrected, or reformed. TEX. R. CIV. P. 329b(g). The motion to modify, correct, or reform the judgment must be filed within 30 days of the date the court signed the judgment. TEX. R. CIV. P. 329b(g). A party may file a motion to modify, correct, or reform the judgment even if the court has already overruled a motion for new trial as long as it is filed within the 30-day period following the court’s signing of the judgment. L.M. Healthcare, Inc. v. Childs, 929 S.W.2d 442 (Tex. 1996). Rule 329b(g) provides that a motion to correct, reform or modify a judgment has the same effect upon the court’s plenary power and the appellate timetable as a motion for new trial. TEX. R. CIV. P. 329b(g). M. Motion for Judgment Non Obstante Veredicto 1. Jury Trials in General

On motion and reasonable notice, the court may render judgment non obstante veredicto if a directed verdict would have been proper. On like motion and notice, the court may disregard any jury finding on a question that has no support in the evidence. Only one final judgment shall be rendered in any cause except when it is otherwise specifically provided by law. TEX. R. CIV. P. 301.

A motion for directed verdict, judgment non obstante veredicto, or to disregard jury findings will preserve for appeal a contention that the evidence is legally insufficient to support the verdict of the jury. TEX. R. CIV. P. 301; Aero Energy Corp. v. Circle C Drilling Co., 699 S.W.2d 821 (Tex. 1985). These motions will not preserve a factual sufficiency point, which must be preserved in a motion for new trial. TEX. R. CIV. P. 324(b)(2)-(3).

Although a motion for judgment non obstante veredicto is not one of the motions listed in rule 26.1 of the Texas Rules of Appellate Procedure as one of the motions that extends the appellate timetable, the San Antonio court of appeals has held that it also extends the appellate timetable. Kirschberg v. Lowe, 974 S.W.2d 844 (Tex. App.--San Antonio 1998, no pet.). See Brazos Electric Power CoOp v. Callejo, 734 S.W.2d 126 (Tex. App.--Dallas 1987, no writ). However, in First Freeport National Bank v. Brazoswood National Bank, 712 S.W.2d 168 (Tex. App.--Houston [14th Dist.] 1986, no writ), the appellant filed a motion for a modified judgment after rendition of the trial court’s judgment. The appellate court concluded that the motion was really a motion for judgment n.o.v. and that such a motion is not one which will extend the appellate timetable pursuant to Rule 329b(g). It dismissed the appeal for want of jurisdiction.

The Texas Supreme Court in L.M. Healthcare, Inc., v. Childs, 920 S.W.2d 286 (Tex. 1996), concluded that the rules provide that a timely filed motion to modify judgment extends plenary power separate and apart from a motion for new trial.

2. Exceptions in the Texas Family Code In suits affecting the parent-child relationship, the

court may not contravene a jury verdict on the issue of the appointment of a sole managing conservator, the appointment of joint managing conservators, the appointment of a possessory conservator, or the determination of which joint managing conservator has the exclusive right to designate the child’s primary residence, and any restrictions on the geographic area where the residence may be located, but not regarding the issues of child support, periods of possession, or the rights and duties of each conservator. TEX. FAM. CODE § 105.002(c). N. Judgment Nunc Pro Tunc

A motion to modify, correct or reform the judgment may be used to correct either a judicial error or a clerical error within the first 30 days following entry of the judgment. After the first 30 days following the signing of the judgment, if an order is entered to correct a judicial error in the guise of judgment nunc pro tunc, that order is void. See Escobar v. Escobar, 711 S.W.2d 230 (Tex. 1986). The only ground for a motion for judgment nunc pro tunc is to correct a clerical error made in entering the judgment as opposed to a judicial error made in rendering the judgment. A clerical error may be corrected at any time. TEX. R. CIV. P. 316. If it is corrected after the court loses plenary jurisdiction, the appellate timetable is not extended for any complaint about the original judgment. TEX. R. CIV. P. 306a(6). A clerical error is a discrepancy between the entry of a judgment in the official record and the judgment as it was actually rendered. Universal Underwriters Insurance Co. v. Ferguson, 471 S.W.2d 28 (Tex. 1971). A clerical error does not result from judicial reasoning or determination. Andrews v. Koch, 702 S.W.2d 584 (Tex. 1986). A clerical error includes a variance between the judgment signed and the judgment the court intended to sign. Delaup v. Delaup, 917 S.W.2d 411 (Tex. App.--Houston [14th Dist.] 1996, no writ) (judgment did not reflect settlement agreement made in open court). O. Motion to Clarify

A motion to modify differs from a motion to clarify. A court may clarify an order rendered by the court if the court finds, on the motion of a party or on the court’s own motion, that the order is not specific enough to be enforced by contempt. TEX. FAM. CODE § 157.421(a); Lundy v. Lundy, 973 S.W.2d 687 (Tex. App.--Tyler 1998, pet denied). A court, however, may not change the substantive provisions of an order to be clarified, and a substantive change is not enforceable. TEX. FAM. CODE § 157.423(a). The only basis for clarifying a prior decree is when a provision is ambiguous and nonspecific. See Bina v. Bina, 908 S.W.2d 595 (Tex. App.--Fort Worth 1995, no writ). In the absence of an ambiguity, the trial court is without authority to modify the judgment. A court may not modify the original judgment under the guise of clarification. Dunn v. Dunn, 708 S.W.2d 20, 23 (Tex. App.--Dallas 1986, no


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writ), citing McGehee v. Epley, 661 S.W.2d 924, 925 (Tex. 1983). A motion to clarify does not extend the time to file the notice of appeal. See Tex. R. App. P. 26.1. IV. SUMMARY SHEET AND CONCLUSION Attached to this article is a Summary Sheet of dates and deadlines to assist the practitioner in post judgment procedure. It is important to be familiar with these rules and to have some understanding of them in advance of trial so that if there is an appeal, all possible grounds are preserved and no deadlines are missed.


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SUMMARY SHEET

REQUEST FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW

STEP EVENT RULE--STATUTE DEADLINE

1

Trial Court renders Judgment and Child Support order varies from the amount computed by applying percentage guidelines.

TEX. FAM. CODE § 154.130(a) (Findings of Fact)

Orally in Court or file written request with court not later than 10 days after date of hearing. However, the Texas Supreme Court has held that a written request for the findings is required and such findings are waived without the written request. Tenery v. Tenery, 932 S.W.2d 29 (Tex. 1996); In re M.M., 980 S.W.2d 699 (Tex. App.--San Antonio 1998, no pet.).

2 In cases in which possession of a child by party is contested and possession of the child varies from the standard possession order.

TEX. FAM. CODE § 153.258 (Findings of Fact)

Orally in Court or file written request with court not later than 10 days after date of hearing.

3 Trial Court signs Judgment TEX. R. CIV. P. 306a(1) 4 Request for Findings of Fact

and Conclusions of Law TEX. R. CIV. P. 296 (Findings of Fact and Conclusions of Law) TEX. FAM. CODE § 6.711

Written request within 20 days after judgment is signed. Trial Court then has 20 days from date of request to file Findings of Fact and Conclusions of Law. The associate judge is also empowered to make findings of fact on evidence and formulate conclusions of law. TEX. FAM. CODE § 201.007(a)(8),(9). See In re, A.J.L., 108 S.W.3d 414 (Tex. App.--Fort Worth 2003, writ denied). It is important to remember that decisions of associate judges can be appealed to the referring court. See TEX. FAM. CODE § 201.015. The appeal is limited to specified findings and conclusions. See TEX. FAM. CODE § 201.015(b). Note that a notice of appeal must be filed three days after the date the party receives notice of the substance of the associate judge’s report. See TEX. FAM. CODE § 201.015(a).

5 Filing Notice of Past Due Findings of Fact and Conclusions of Law

TEX. R. CIV. P. 297 (Notice of Past Due Findings of Fact and Conclusions of Law)

If Trial Court does not file Findings of Fact and Conclusions of Law, a written request must be filed for past due Findings of Fact and Conclusions of Law within 30 days of the original request. Trial Court then has 40 days from original request to file Findings of Fact and Conclusions of Law.

6 Additional or Amended Findings of Fact and Conclusions of Law

TEX. R. CIV. P. 298 (Additional or Amended Findings of Fact and Conclusions of Law)

After Trial Court files Findings of Fact and Conclusions of Law, either party has 10 days from the date of filing by the Trial Court to file a written request. Trial Court then has 10 days from date of request to file additional or amended Findings of Fact and Conclusions of Law.


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MOTION FOR NEW TRIAL

STEP EVENT RULE--STATUTE DEADLINE

1 Trial Court signs Judgment TEX. R. CIV. P. 306a(1) 2 Filing of Motion for New Trial TEX. R. CIV. P. 324, 329b(a)

(Motion for New Trial) Motion for New Trial must be filed within 30 days after Trial Court signs Judgment. No extensions are available.

3 Motion for New Trial is Overruled

TEX. R. CIV. P. 329b(c)

Motion for New Trial is overruled by operation of law 75 days after Judgment is signed, or earlier by written order denying Motion for New Trial.

3 Appellant perfects Appeal Files Docketing Statement

TEX. R. APP. P. 25.1, 26.1(a) (Notice of Appeal)

30 days after the date the Trial Court signs Judgment if no Motion for New Trial is filed or Request for Findings of Fact and Conclusions of Law is made. OR 90 days after the date the Trial Court signs Judgment if Motion for New Trial is filed or Request for Findings of Fact and Conclusions of Law is made.

4 Accelerated Appeal TEX. R. APP. P. 26.1 (Notice of Accelerated Appeal)

20 days after Trial Court signs Judgment.

5 Motion to Modify, Correct, Reform Judgment

TEX. R. CIV. P. 329b

30 days after Trial Court signs Judgment.

6 Trial Court loses plenary power over Judgment

TEX. R. CIV. P. 329b(d),(e)

30 days after the date the Trial Court signs Judgment if no Motion for New Trial is filed. OR 30 days after Motion for New Trial has been overruled, either by written order or operation of law, whichever occurs first, but in no event more than 105 days from the date the judgment was signed.

If a party receives notice of the judgment between 20 and 90 days after the judgment was signed, the deadline for filing a motion for new trial is counted from the date the party actually learned or received notice of the judgment rather than the date the judgment was signed. TEX. R. CIV. P. 306a(4),(5).

Where the respondent has been served by publication, the time for filing a motion for new trial is extended by Rule 329(a). The court may grant a new trial upon petition showing good cause and supported by affidavit, filed within two years after the judgment was signed. The appellate timetable is computed as if the judgment were signed 30 days before the date the motion was filed. However, the validity of an order terminating the parental rights of a person who is served by citation by publication is not subject to collateral or direct attack after the sixth month after the date the order was signed. TEX. FAM. CODE § 161.211(b).

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