Andrew Wilburn Russell v. Heather Diane Schriber

• Court: Court of Appeals of Texas
• Decided: August 16, 2024
• Docket: 03-22-00731-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-22-00731-CV

Andrew Wilburn Russell, Appellant

v.

Heather Diane Schriber, Appellee

FROM THE 459TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-FM-18-000813, THE HONORABLE MADELEINE CONNOR, JUDGE PRESIDING

ORDER AND MEMORANDUM OPINION

PER CURIAM

On appeal, Andrew Wilburn Russell appeals the trial court’s final order in a suit

affecting the parent-child relationship following a bench trial. As a preliminary matter, we

consider Russell’s complaint that the trial court failed to issue findings of fact and conclusions

of law despite his timely filing of both a request and notice of past due findings. See Tex. R.

Civ. P. 297.

“In any case tried to the district or county court without a jury, any party may

request the court to state in writing its findings of fact and conclusion of law.” Id. R. 296. If the

court fails to file findings, the court of appeals must presume the trial court made all the findings

necessary to support the judgment. Ad Villarai, LLC v. Chan Il Pak, 519 S.W.3d 132, 135 (Tex.

2017). “[I]f a court fails to file findings when the facts are disputed, the burden of rebutting every presumed finding can be so burdensome that it effectively ‘prevent[s the appellant] from

properly presenting its case to the court of appeals or the [supreme court]” Id. Consequently, a

trial court’s failure to make findings of fact and conclusions of law after a party has made a

timely and proper request is “presumed harmful, unless ‘the record before the appellate court

affirmatively shows that the complaining party has suffered no injury.’” Id. (quoting Cherne

Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (1989)). “When the trial court’s failure is

harmful, the preferred remedy is for the appellate court to direct the trial court to file the missing

findings.” Id. at 136. In light of the presumption, and based on the record before us, including

the arguments raised in appellant’s brief, we conclude that Russell will be harmed from the trial

court’s failure to issue findings of fact and conclusions of law and that such findings and

conclusions are necessary for a proper presentation of his appeal. See e.g., Marco v. Kirman,

No. 03-24-00133-CV, 2024 Tex. App. LEXIS 3621, at *2 (Tex. App.—Austin May 24, 2024,

order) (mem. op.).

Accordingly, we abate this appeal and remand this cause to the trial court for the

entry of the necessary findings of fact and conclusions of law. A supplemental record containing

the findings and conclusions shall be filed with this Court within thirty days from the date of this

order. This appeal will be reinstated after the supplemental clerk’s record is filed.

Before Chief Justice Byrne, Justices Kelly and Theofanis

Abated and Remanded

Filed: August 16, 2024