Cornelis P. Willig v. Marcela Gutierrez Diaz

• Court: Court of Appeals of Texas
• Decided: March 31, 2015
• Docket: 01-15-00073-CV
• Status: Published

Opinion

ACCEPTED 01-15-00073-CV ! FIRST COURT OF APPEALS HOUSTON, TEXAS I ! 3/31/2015 10:18:39 AM I CHRISTOPHER PRINE CLERK

NO.OI-15-00073-CV i FILED IN 1st COURT OF APPEALS IN THE MATTER OF § HOUSTON, IN THE FIRST COURTTEXAS THE MARRIAGE OF § 3/31/2015 10:18:39 AM § CHRISTOPHER A. PRINE CORNELIS P_ WILLIG § OF APPEALS Clerk Al"D § MARCELA GUTIERREZ DIAZ § HOUSTON, TEXAS

. APPELLANT CORNELIS P. 'o/fLLlG'S MOTION TO ABATE APPEAL

Appellant Comelis P. Willig hereby asks the Court tojabate the appeal ofthis case so that the

Trial Court may prepare and file its Findings of Fact and C~nclusions of Law in this matter.

A. Introduction

I. Appellant is Comelis P. Willig, Petitioner in the underlying divorce action. Appellee is

Marcela Gutierrez Diaz, Respondent in the underiyirig divorce action in which Respondent

filed a Special Appearance and a Plea in Abatement in response to Petitioner's Original

Petition for Divorce. After a hearing was held n Respondent's Special Appearance and Plea

in Abatement, the trial Court granted Respondent's Special Appearance.

2. Appellant timely filed and requested Findings of Fact and Conclusions of Law; timely

presented to the trial Court specifically requested, and proposed to the trial Court, Findings

of Fact and Conclusions of Law; and timely filed his Notice of Past Due Findings of Fact

and Conclusions of Law with the Court. Because there werc two or more grounds on which

the Court could have ruled in Appellant's favor, the OJurt should grant this Motion and abate

the appeal so that the trial Court may prepare and file its findings of fact and conclusions of

law.

1 B. Arguments and Authorities I

i 3. The Court has authority to grant this motion becauseiif findings of face and conclusions of

law are properly requested, the trial court has a Landatory duty to file findings and :.

conclusions. Cherne Jndus; Inc. v: Magallanes, 763 .SW2d 768,772 (Tex.l989). Thetrial

court's failure to comply with a proper request to prepare and file findings of fact and .

conclusions of law is presumed harmful, unless th~ record affirmatively shows that the

complaining party suffered no injury. Id. An appellant is harmed ifthere are two or more

possible gromlds on which the Court could have rule~ and the Appellant is left to guess the

basis for the trial Court's ruling. Zieba v. Martin, 928 SW2d 782, 786 (Tex.App.-Houston

[14ti' Dist.11993, no writ), citing Groggins v. Leo, 849 SW2d 373, 379 (Tex.App.-Houston

[14th Dist] 1993, no writ); Electric Power Design, Inc., v. R. A. Hanson Co., 821 SW2d

170,171 (Tex.App.-Houston [14th Distll991, no writ).

4. In this case, the Trial Court ruled in favor of Appellee when it granted the Appellee's Special

Appearanee on the basis that a Court in the Netherlands had acquired jurisdiction over the

matter pending before the Trial Court in Harris County Texas. The Appellant intends to

argue to this Court that the uncontradicted testimony and a subsequent ruling by the Court

in the Netherlands clearly established that the filing in the Netherlands was established and

accomplished after and subsequent to the filing by Petitioner ofhis divoree petition in Harris

County, so it was later in time at its time of filing in the Netherlands than the Harris county

action. Accordingly the proper remedy in this situation is to abate the appeal and direct the

Trial Court to enter Findings of Fact and Conclusions of Law as properly requested by

Appellant in order to correct its error pursuant to Rule 44.4 of the Rules of Appellate

2 Procedure. i 5. Granting the motion and abating the appcal at this time will allow the Appellant to address !

all issues in one brief rather than two.

C. Prayer

6. For these reasons, Appellant asks the Court to grant thls motion and abate the appeal in this

case to allow the Court to direct the trial court to, correct the error pursuant to TRAP i 44.4(2)(b).

Respectfully Submitted, {l-!,- f· c..Q. ? AndresiP. Chaumont State Bar No.: 15779400 806 Daria Houston, Texas 77079 Tel: (281) 493-3999 Fax: (281) 493-3993 Email: anch88@trip.net Attorn'lY for Appellant

CERTIFICATE OF CONFERENCE

I hereby certifY that on this day I conferred with Mr. Michael Busby, counsel for the Appellee. Mr. Busby stated that he is opposed to the granting of this Motion.

Date: March 31, 2015 ~~_.F~·~c~a:::::=~-'7_ Andres:P. Chaumont Attorney for Appellant

CERTIFICATE OF SERVICE

I certifY that a copy of Appellant's Motion to Abate was served on Appellee's counsel of record, Mr. Michael Busby, 2909 Hillcroft, Suite 350, Houston, Texas 77057; Fax: 713-974-1181 by telephonic document transfer to said fax number on March 31,2015.

fl--'- .p-~ AndresP. Chaumont