in the Matter of the Marriage of Charmane Diane Stephens and Douglas Val Stephens

• Court: Court of Appeals of Texas
• Decided: November 7, 2007
• Docket: 10-06-00398-CV
• Status: Published

Opinion

IN THE

TENTH COURT OF APPEALS

 

No. 10-06-00398-CV

In the Matter of the Marriage of

Charmane Diane Stephens

and

Douglas Val Stephens

From the 21st District Court

Burleson County, Texas

Trial Court No. 24,146

ABATEMENT ORDER

        Douglas Val Stephens filed a petition for divorce from Charmane Diane Stephens, and Charmane filed a counterpetition for divorce from Douglas.  The trial court’s divorce decree ordered the parties divorced, divided the parties’ estate, ordered that Douglas pay child support for the child of the marriage, and made other orders.  Douglas appeals the decree on several grounds.  We abate and remand for findings of fact and conclusions of law.

        Texas Family Code Section 154.130 provides: “Without regard to Rules 296-299, Texas Rules of Civil Procedure, in rendering an order of child support, the court shall make the findings required by Subsection (b) if . . . the amount of child support ordered by the court varies from the amount computed by applying the percentage guidelines.”  Tex. Fam. Code Ann. § 154.130(a) (Vernon Supp. 2007); see Act of Apr. 6, 1995, 74th Leg., R.S., ch. 20, § 1, secs. 154.125-154.126, 1995 Tex. Gen. Laws 113, 162-63 (amended 2007) (current versions at Tex. Fam. Code Ann. §§ 154.125.154.126 (Vernon Supp. 2007)).^[1] 

        Section 154.130(b), in turn, provides that:

       If findings are required by this section, the court shall state whether the application of the guidelines would be unjust or inappropriate and shall state the following in the child support order:

       “(1) the monthly net resources of the obligor per month are $______;

       “(2) the monthly net resources of the obligee per month are $______;

       “(3) the percentage applied to the obligor’s net resources for child support by the actual order rendered by the court is ___%;

       “(4) the amount of child support if the percentage guidelines are applied to the first $6,000 of the obligor’s net resources is $______;

       “(5) if applicable, the specific reasons that the amount of child support per month ordered by the court varies from the amount stated in Subdivision (4) are: ____________________________________________; and

       “(6) if applicable, the obligor is obligated to support the children in more than one household, and:

“(A)   the number of children before the court is ___;

“(B)    the number of children not before the court residing in the same household with the obligor is ___; and

“(C)   the number of children not before the court for whom the obligor is obligated by a court order to pay support, without regard to whether the obligor is delinquent in child support payments, and who are not counted under Paragraph (A) or (B) is ___.”

Act of Apr. 6, 1995, 74th Leg., R.S., ch. 20, § 1, sec. 154.130(b), 1995 Tex. Gen. Laws 113, 163-64 (amended 2007) (current version at Tex. Fam. Code Ann. § 154.130(b) (Vernon Supp. 2007)).^[2]

        “Section 154.130 makes these findings mandatory and failure to make these findings when required constitutes reversible error.”  In re C.W., No. 07-04-0543-CV, 2006 Tex. App. LEXIS 363, at *7-*8 (Tex. App.—Amarillo Jan. 17, 2006, no pet.) (mem. op.); accord Omodele v. Adams, No. 14-01-00999-CV, 2003 Tex. App. LEXIS 292, at *12-*13 (Tex. App.—Houston [14th Dist.] Jan. 16, 2003, no pet.) (mem. op.).

        Harm “is presumed unless the contrary appears on the face of the record when” findings of fact and conclusions of law are required and the trial court fails to make and file them.  Tenery, 932 S.W.2d at 30 (citing Tex. R. Civ. P. 296); see Tex. R. App. P. 44.1(a)(2); Chervinskis v. Love, No. 10-06-00105-CV, 2007 Tex. App. LEXIS 3387, at *5 (Tex. App.—Waco May 2, 2007, no pet.) (mem. op.); Glass v. Williamson, 137 S.W.3d 114, 117-18 (Tex. App.—Houston [1st Dist.] 2004, no pet.).  “An appellant has suffered injury from such” failure “when the circumstances of the case require her to guess the reason or reasons the court ruled against her.”  Beard v. Beard, 49 S.W.3d 40, 52 (Tex. App.—Waco 2001, pet. denied) (op. on orig. submission); e.g. In re S.R.O., No. 10-01-184-CV (Tex. App.—Waco May 28, 2003, order) (per curiam) (not designated for publication) (“multiple grounds on which the court may have ruled”), disp. on merits, 143 S.W.3d 237 (Tex. App.—Waco 2004, no pet.).

        “The proper remedy for a trial court’s” failure “to file findings of fact and conclusions of law is abatement of an appeal, thereby giving the trial court an opportunity to cure its error.”  Elliott v. Kraft Foods N. Am., Inc., 118 S.W.3d 50, 56 (Tex. App.—Houston [14th Dist.] 2003, no pet.); see Tex. R. App. P. 44.4; Cherne Indus. Inc. v. Magallanes, 763 S.W.2d 768, 773 (Tex. 1989); Metzger v. Metzger, No. 01-04-00893-CV, 2007 Tex. App. LEXIS 4487, at *11 (Tex. App.—Houston [1st Dist.] June 7, 2007, pet. filed) (mem. op.); Carr v. Hubbard, 664 S.W.2d 151, 153-54 (Tex. App.—Houston [1st Dist.] 1983, writ ref’d n.r.e.).

        Douglas contends, “The trial court erred in setting child support above the presumptive guidelines without pleadings or evidence.”  (Br. at 12; see id. at 12-14; Reply Br. at 9-11.)  Charmane agrees that the trial court implicitly found that “application of the guidelines would be unjust or inappropriate under the circumstances,” and argues several such circumstances.  (Br. at 14 (citing Tex. Fam. Code Ann. § 154.123(b) (Vernon 2002)); see Br. at 14-16.)  Under the pleadings and evidence, multiple grounds exist on which the trial court might have awarded child support in an amount that varied from the percentage guidelines.

        Accordingly, we abate the appeal to the trial court for the making and filing of appropriate findings of fact and conclusions of law.^[3]  The trial court must, within 30 days after the date of this order: (1) make appropriate findings of fact and conclusions of law, and (2) deliver those findings of fact and conclusions of law to the trial-court clerk.  The trial-court clerk must: (1) prepare a supplemental clerk’s record containing the findings of fact and conclusions of law that the trial court makes, and (2) file the supplemental clerk’s record with the Clerk of this Court within 45 days after the date of this order.

        If Douglas, after reviewing the findings of fact and conclusions of law, determines that he should amend or supplement his brief, his amended or supplemental brief will be due 30 days after the supplemental clerk’s record is filed.  If Douglas files an amended or supplemental brief, Charmane will have 30 days thereafter to file an amended or supplemental brief.  No extensions will be considered or granted absent extraordinarily urgent circumstances.

PER CURIAM

Before Chief Justice Gray,

        Justice Vance, and

        Justice Reyna

Abated and remanded

Order delivered and filed November 7, 2007

[CV06]

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                [1] We note that Douglas requested general findings of fact and conclusions of law in accordance with Rules of Civil Procedure 296 and 297, which findings and conclusions the trial court has failed to file.  Douglas argues:

      Without findings of fact and conclusions of law entered by the trial court pursuant to Doug’s request, Doug is unable to show any of the orders complained of . . . resulted in specific harm.  Harm to the complaining party is presumed unless the contrary appears on the face of the record when the party makes a proper and timely request for findings and the trial court fails to comply.  Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996).

(Br. at 20-21; see Reply Br. at 17.)

                [2] We note that the Family Code also requires:

     In a suit for dissolution of a marriage in which the court has rendered a judgment dividing the estate of the parties, on request by a party, the court shall state in writing its findings of fact and conclusions of law concerning:

           (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.

Tex. Fam. Code Ann. § 6.711(a) (Vernon 2006).

                [3] In addition to the findings of fact and conclusions of law required by the Family Code, as noted above, Douglas has also requested findings and conclusions under the Rules of Civil Procedure.