Joaquin Ospina (a/K/A Joaquin Ospina Retavisca) v. Nicole Stefany Garcia Florez

• Court: Court of Appeals of Texas
• Decided: May 27, 2021
• Docket: 01-19-00465-CV
• Status: Published

Opinion

Opinion issued May 27, 2021

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-19-00465-CV ——————————— JOAQUIN OSPINA, A/K/A JOAQUIN OSPINA RETAVISCA, Appellant V. NICOLE STEFANY GARCIA FLOREZ, Appellee

On Appeal from the 309th District Court Harris County, Texas Trial Court Case No. 2017-76410

MEMORANDUM OPINION

In this divorce case between appellant Joaquin Ospina and appellee Nicole

Stefany Garcia Florez, trial began in September 2018 in the 309th District Court of

Harris County. Following the 2018 general election, a new presiding judge took office on January 1, 2019. The new trial judge started the trial over in May 2019,

and after hearing testimony, rendered a divorce decree dissolving the marriage on

grounds of cruelty.

In three issues on appeal, Ospina argues that (1) the trial court deprived him

of due process of law when it treated the May 2019 proceeding as a new trial without

advance notice to the parties; (2) if the May 2019 proceeding was not a new trial,

then the court improperly made a substantive legal determination based on facts and

evidence heard by the former presiding judge at the September 2018 proceeding;

and (3) the court erred by failing to file findings of fact and conclusions of law,

which prevented Ospina from properly presenting his case to this Court. We affirm.

Background

Ospina and Garcia Florez married in April 2017. They have no children

together. In November 2017, Ospina filed for divorce and alleged that the marriage

had become insupportable. In February 2018, Garcia Florez filed a counter-petition

for divorce, alleging that the marriage had become insupportable and that Ospina

had engaged in cruel treatment.

A. September 2018 Proceeding

On September 17, 2018, trial began before the Honorable Sheri Dean, then

the presiding judge of the 309th District Court of Harris County. Two witnesses

testified on this date: Ospina and Garcia Florez.

2 The parties generally testified about when they started dating and the

beginning of their marriage. At the time the parties married in April 2017, Ospina

already had a roommate, and Garcia Florez could not be added to his lease. The

parties therefore did not live together. Aside from each party’s personal effects, the

only property they had was a computer. The parties disputed the ownership of this

computer and who had paid for it.

Ospina testified about two incidents that occurred in October 2017. During

the first incident, the parties got into an argument while at Ospina’s apartment, and

Garcia Florez stated that she was going to take the computer. She started to pack the

computer with her belongings. Ospina told her that she could not take the computer

because it was his and he was making payments on it, and he “pulled her out of the

room.” Garcia Florez called the police, and Ospina was arrested on assault charges.

Ospina denied hitting Garcia Florez at that point or at any other point. A few days

later, Garcia Florez went to Ospina’s apartment while he was still in custody and

took the computer. Ospina filed a police report concerning the computer. After

Ospina testified, he rested his case-in-chief.

Garcia Florez testified that Ospina had engaged in domestic violence against

her on multiple occasions, not just during the October 2017 incident involving the

computer. After the October incident, Garcia Florez called the police and obtained a

3 protective order. Garcia Florez testified that when she picked up the computer from

Ospina’s apartment, the police were with her and she had authorization to be there.

During Garcia Florez’s testimony, her counsel mentioned that “a recording”

existed, but neither party’s counsel had heard the recording. Garcia Florez’s counsel

requested a break to listen to the recording “[a]t the appropriate time before [she]

close[s].” Garcia Florez did not rest her case in chief, and no cross-examination of

Garcia Florez occurred at this proceeding. The trial court went off the record and

then adjourned the proceedings.

In early November 2018, Harris County voters elected a new presiding judge

for the 309th District Court. On January 1, 2019, the Honorable Linda Marie Dunson

took office.

B. May 2019 Proceeding

On May 13, 2019, Judge Dunson called the case for trial. Ospina started to

testify concerning ownership of the computer and payments made on the computer.

The trial court stated its understanding that the parties had reached an agreement

concerning the computer. Ospina’s counsel stated on the record that the parties had

agreed that Garcia Florez would pay Ospina nearly $1,000 for the computer; Ospina

would not seek recovery of the computer from Garcia Florez; and Ospina would

assume the outstanding debt on the computer. The following exchange then

occurred:

4 The Court: Okay. So—and the only outstanding issue in this case is grounds for divorce? [Ospina’s counsel]: Yes, your Honor. The Court: Okay. The parties are excused. Just sit for a minute and we’ll proceed on the trial on the grounds of the divorce. Okay. You’re excused.

The trial court and counsel for both parties held a discussion off the record. The

parties agree that, during this off-the-record discussion, Judge Dunson stated that

she had not read the transcript from the September 2018 proceeding and the parties

were essentially starting over. Neither party raised any objection on the record to

starting the trial over.

Ospina called his roommate, Juan Camilo Lopez, as a witness. Lopez testified

that he arrived home one day in October 2017 to find Garcia Florez, a member of

her family, and police officers present. Officers prevented Lopez from going inside

the apartment while Garcia Florez removed belongings from Ospina’s room. Lopez,

who had lived with Ospina for around three years, never saw Ospina and Garcia

Florez have a physical altercation. Nevertheless, he did see them have arguments

and yell at each other.

Ospina testified that he and Garcia Florez married in April 2017, and that it is

not possible for them to remain married. He testified that he and Garcia Florez would

have verbal arguments, but they were never involved in a physical altercation or

anything “aggressive.” Ospina testified concerning the incident that occurred in 5 October 2017 involving the computer and his arrest. Ospina stated that, during this

incident, he grabbed Garcia Florez’s arm and “took her out of the room,” but he

denied hitting her. Ospina asked the trial court to make a finding that he had not

engaged in cruel treatment of Garcia Florez.

Garcia Florez testified that Ospina became violent towards her two to three

weeks after they got married, and she gave examples of his conduct. Garcia Florez

testified about three instances of domestic violence, including the October 2017

incident with the computer. Her testimony, although more detailed at this

proceeding, was largely consistent with her testimony from the September 2018

proceeding. The trial court admitted three exhibits purporting to be photographs

taken after instances of domestic violence by Ospina against Garcia Florez. Garcia

Florez had not offered these exhibits at the September 2018 proceeding. The trial

court also admitted a copy of the information charging Ospina with assault arising

out of the October 2017 incident. Garcia Florez also testified that Ospina

emotionally abused her and had “conversations with other women.”

Garcia Florez’s aunt, Sandra Florez, also testified. She never personally saw

Ospina behave violently toward Garcia Florez, but she did see bruises and marks on

Garcia Florez’s arms. Florez was present at Ospina’s apartment while Garcia Florez

was talking to the police following the October 2017 incident. She also testified that

Ospina would not provide for Garcia Florez, and that she and other family members

6 sometimes needed to take Garcia Florez to the store because Ospina would not let

her go.

At the close of trial, the trial court granted the parties a divorce on the ground

of cruelty, and the court later signed a written divorce decree memorializing that

finding. Ospina requested that the trial court file findings of fact and conclusions of

law. When the trial court did not do so, Ospina filed a notice of past-due findings

and conclusions.

Ospina also moved for a new trial. In this motion, Ospina argued that the trial

court erred by “holding all testimony and evidence adduced at the September 17,

2018 partial trial for naught without any advanced notice to” Ospina. He argued that

the court’s decision at the May 2019 proceeding to start over “constituted a sua

sponte motion for new trial,” and he had no opportunity to prepare for a new trial.

Ospina argued that this decision by the trial court violated his due process rights.

This motion was overruled by operation of law. This appeal followed.

Restarting the Trial

Ospina argues that the trial court effectively granted a new trial at the May

2019 proceeding without stating reasons for doing so on the record, running afoul of

the Texas Supreme Court’s decision in In re Columbia Medical Center and its

progeny. See In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d

204 (Tex. 2009) (orig. proceeding); see also In re Toyota Motor Sales, U.S.A., Inc.,

7 407 S.W.3d 746 (Tex. 2013) (orig. proceeding); In re United Scaffolding, Inc., 377

S.W.3d 685 (Tex. 2012) (orig. proceeding). That line of cases holds that a trial court

must give clear, specific, and valid reasons whenever it grants a new trial following

a jury verdict. See, e.g., In re Toyota Motor Sales, 407 S.W.3d at 759. Ospina urges

this Court to extend In re Columbia Medical Center to situations like this, where the

trial court restarts a bench trial prior to judgment.

By contrast, Garcia Florez argues that the trial court did not grant a new trial,

noting that the Rules of Civil Procedure applicable to motions for new trial reference

setting aside a judgment and ordering a new trial. See, e.g., TEX. R. CIV. P. 320. In

this case, Judge Dean did not render judgment at the September 2018 proceeding or

at any time thereafter. According to Garcia Florez, Judge Dean adjourned the case

prior to judgment, and Judge Dunson restarted the case upon being elected to the

bench.

We agree with Garcia Florez that the In re Columbia Medical Center line of

cases does not control here. In re Columbia Medical Center addressed a scenario

where the trial court had set aside a jury verdict and granted a new trial after the jury

had already reached a verdict following a four-week trial. See In re Columbia Med.

Ctr., 290 S.W.3d at 206. The trial court gave no reason for its decision, except that

the decision was “in the interests of justice and fairness.” Id.

8 The Texas Supreme Court held that this was an insufficient explanation for

setting aside a jury verdict. In so holding, the court reasoned that “[j]ury trials are

essential to our constitutionally provided method for resolving disputes when parties

themselves are unable to do so.” Id. at 211. The court further acknowledged that,

historically, trial courts have had the discretion to grant new trials “in the interest of

justice.” Id. at 213. Nevertheless, the court ultimately concluded that

such a vague explanation in setting aside a jury verdict does not enhance respect for the judiciary or the rule of law, detracts from transparency we strive to achieve in our legal system, and does not sufficiently respect the reasonable expectations of parties and the public when a lawsuit is tried to a jury. Parties and the public generally expect that a trial followed by a jury verdict will close the trial process. Those expectations may be overly optimistic, practically speaking, but the parties and public are entitled to an understandable, reasonably specific explanation why their expectations are frustrated by a jury verdict being disregarded or set aside, the trial process being nullified, and the case having to be retried.

Id. Finding that the “protection of the right to jury trial” had created exceptional

circumstances, id. at 209, the court granted conditional mandamus relief requiring

the trial court to give a more detailed explanation for its order. Id. at 215.

This case does not involve the same concerns that In re Columbia Medical

Center presented. This is not a situation in which the trial court granted a motion for

new trial and set aside a jury verdict without stating its reasons beyond “in the

interests of justice and fairness.” Rather, the divorce case was tried to the bench, not

a jury. Furthermore, whereas a motion for new trial is a “direct attack” on an existing

9 judgment, see PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 271 (Tex. 2012), no

judgment was in place at the time that Judge Dunson restarted the trial. The restart

appears to have been designed to allow Judge Dunson to hear all the evidence

firsthand, and for good reason. As we recently held, a “judge who did not preside

over some or all the trial may make substantive legal decisions, but only if the

decision does not require the judge to find facts based on evidence that [s]he has not

heard.” Lyon v. Bldg. Galveston, Inc., No. 01-19-00571-CV, 2020 WL 7391705, at

*4 (Tex. App.—Houston [1st Dist.] Dec. 17, 2020, no pet. h.) (citations omitted).

Given these distinctions, we conclude that In re Columbia Medical Center

does not govern this case. See In re J.C., No. 14-18-00904-CV, 2018 WL 5797366,

at *2 (Tex. App.—Houston [14th Dist.] Nov. 6, 2018, orig. proceeding) (mem. op.)

(per curiam) (“Relators offer no argument to explain why standards developed

specifically for the grant of a new trial after a jury verdict apply to a trial court’s

grant of a new trial following a bench trial in a parental-termination proceeding.”);

see also In re Toyota Motor Sales, 407 S.W.3d at 762–63 (Lehrmann, J., concurring)

(“Both Columbia and our subsequent opinion in In re United Scaffolding focused on

transparency in the context of setting aside jury verdicts, noting the importance of

ensuring that trial courts do not impermissibly substitute their judgment for that of

the jury. This concern, however, is not present with respect to new-trial orders that

10 do not set aside a jury verdict, such as orders issued after a bench trial or setting

aside a default judgment.” (internal citations omitted)).

Ospina further argues that the trial court’s decision to restart the trial deprived

him of due process because he did not have notice that the court intended to try the

entire case again, and he did not have time to prepare for the new trial. Garcia Florez

responds that Ospina’s allegations of harm and lack of notice are not supported by

the record. She points out that the record contains multiple notices re-setting the trial

date; Ospina filed a motion in limine—a motion that is typically filed pre-trial—in

March 2019; Ospina’s motion in limine requested that the court order Garcia Florez

not to mention any arrests or convictions of Ospina and order Garcia Florez to

provide a witness and exhibit list; and Ospina filed a witness and exhibit list days

before the May 2019 proceeding began. She further argues that Ospina did not

preserve his due process argument for appellate review because Ospina did not

object to the trial court’s proposed procedure, and he did not raise a due process

argument until his motion for new trial after the trial court rendered the divorce

decree.

We agree with Garcia Florez that Ospina did not preserve his notice-based

and due process arguments for appellate review. To preserve a complaint for

appellate review, the record must demonstrate that the complaining party made his

complaint to the trial court by timely request, objection, or motion that stated the

11 grounds for the ruling sought with sufficient specificity to make the trial court aware

of the complaint. TEX. R. APP. P. 33.1(a). The record must also demonstrate that the

court either ruled on the request or refused to rule and the complaining party objected

to the refusal. Id.; First Nat’l Collection Bureau, Inc. v. Walker, 348 S.W.3d 329,

337 (Tex. App.—Dallas 2011, pet. denied) (“An objection is timely urged when

asserted at either the earliest opportunity or when the potential error becomes

apparent.”). Even constitutional arguments may be waived by failure to raise the

complaint at trial. See In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003).

Ospina waived any due process argument by failing to object in the trial court.

The parties agree that at the May 2019 proceeding, the trial court stated its intention

to restart the trial off the record. When the proceeding resumed on the record, Ospina

made no objection to restarting trial. He did not object on the bases that he had not

received sufficient notice that the trial court intended to restart the trial, that this

procedure constituted an improper granting of a motion for new trial, or that this

procedure violated his due process rights. The record contains no indication that this

procedure caused any surprise or prejudice to Ospina. Ospina did not request a

continuance to prepare for giving his testimony again or for cross-examining Garcia

Florez.

Raising these objections prior to the trial restarting would have alerted the trial

court to any potential problems with the proposed procedure and would have allowed

12 the trial court to grant relief—namely, a continuance—to ameliorate those concerns.

But Ospina did not raise these objections until after the trial court rendered the

divorce decree. Consequently, we conclude that Ospina did not preserve these

complaints for appellate review. See TEX. R. APP. P. 33.1(a); In re B.L.D., 113

S.W.3d at 350 (“Requiring parties to raise complaints at trial conserves judicial

resources by giving trial courts an opportunity to correct an error before an appeal

proceeds.”).

We overrule Ospina’s first issue.

Decision Based on Evidence Heard by Prior Judge

In his second issue, Ospina argues in the alternative that the trial court erred

in rendering the divorce decree because the court made a legal determination based

on facts and evidence heard by the prior presiding judge.

“The rules of practice and procedure in civil district court allow judges to

exchange courts and transfer cases from one court to another.” Malone v. PLH Grp.,

Inc., 570 S.W.3d 292, 294–95 (Tex. App.—Houston [1st Dist.] 2018, no pet.)

(quoting Masa Custom Homes, LLC v. Shahin, 547 S.W.3d 332, 335 (Tex. App.—

Dallas 2018, no pet.)); TEX. R. CIV. P. 330(e). The rules also permit a practice in

which one trial judge hears part of a case and determines some issues while another

trial judge completes the case. Malone, 570 S.W.3d at 295; Masa Custom Homes,

547 S.W.3d at 335; TEX. R. CIV. P. 330(g) (“When in such counties there are two or

13 more district courts having civil jurisdiction, any judge may hear any part of any

case or proceeding pending in any of said courts and determine the same, or may

hear and determine any question in any case, and any other judge may complete the

hearing and render judgment in the case.”); see also TEX. R. CIV. P. 18 (addressing

continuation of court business after trial judge dies, resigns, or becomes disabled

during court’s term).

A trial judge may sign a judgment in accordance with a jury verdict even

though the judge did not preside over the trial. Masa Custom Homes, 547 S.W.3d at

336; Hot-Hed, Inc. v. Safehouse Habitats (Scotland), Ltd., 333 S.W.3d 719, 734

(Tex. App.—Houston [1st Dist.] 2010, pet. denied). A trial judge who did not preside

over a bench trial may sign the final judgment “so long as the written judgment

merely memorializes an earlier final judgment rendered by the judge who heard the

evidence.” Masa Custom Homes, 547 S.W.3d at 336. Additionally, a trial judge may

make substantive legal determinations in a case in which he did not preside over

some or all of the trial “so long as the decision does not require the judge to find

facts based on evidence he has not heard.” Id. The Rules of Civil Procedure do not,

however, “authorize a judge to render judgment following a bench trial unless he

personally heard the evidence on which the judgment is based.” Id.; see Malone, 570

S.W.3d at 295 (“[N]either the rules nor case law permit one judge to preside over

14 the entire bench trial and a visiting judge, who heard no evidence, to render a

judgment based on disputed facts.”).

In a bench trial, the trial judge observes the demeanor of the witnesses and

weighs the evidence. Malone, 570 S.W.3d at 295; Masa Custom Homes, 547 S.W.3d

at 337 (“Only the judge who presides over the bench trial can see and observe the

witnesses’ mannerisms, reactions, and demeanor.”). “Drawing on these

observations, the presiding judge, acting as factfinder, determines the facts from the

disputed evidence.” Malone, 570 S.W.3d at 295; Masa Custom Homes, 547 S.W.3d

at 337 (“[The presiding judge] alone can determine the impact of the evidence and

weigh the success and force of impeachment by cross-examination through careful

observation.”).

Because of the differences in reading the record and presiding over the trial,

“courts have recognized the narrow, but essential exception to the otherwise

relatively free exchange of benches provided for by the rules and the constitution: a

judge who did not hear the evidence in a bench trial cannot thereafter read the trial

record and then render judgment in the case.” Masa Custom Homes, 547 S.W.3d at

337; see Malone, 570 S.W.3d at 295 (“Another judge exercising a judicial role in

the same court is not authorized to render judgment without hearing any of the

evidence on which the judgment is based.”); see also Lyon, 2020 WL 7391705, at

*4, 7 (holding that trial court’s judgment was void because trial court rendered

15 judgment on attorney fees based on transcript of previously admitted evidence, when

judge had not personally heard any evidence regarding amount of reasonable and

necessary attorney fees and evidence from prior proceeding raised disputed fact

questions).

In this case, Judge Dean heard approximately forty pages of testimony from

Ospina and Garcia Florez at the September 2018 proceeding. The parties testified

concerning the start of their relationship and marriage, ownership of the computer,

the October 2017 incident, Garcia Florez’s taking of the computer after the October

2017 incident, and two other instances of alleged domestic violence.

At the May 2019 proceeding before Judge Dunson, the parties stipulated that

they had reached an agreement concerning the computer and this agreement was

stated on the record. Ospina and Garcia Florez testified at this proceeding, as did

Lopez and Florez. The witnesses testified concerning the dating relationship

between the parties, the October 2017 incident, Garcia Florez’s return to Ospina’s

apartment after that incident, and other instances of alleged domestic violence.

Ospina’s and Garcia Florez’s testimony in the September 2018 and May 2019

proceedings was not identical, but they testified to the same topics before Judge

Dunson.

Although Judge Dunson did not preside over all the proceedings in this case,

she heard evidence concerning the parties’ marriage, their testimony that the

16 marriage was insupportable, and evidence of domestic violence before rendering a

divorce decree that dissolved the marriage on the basis of cruelty. Evidence of

domestic violence can support a divorce based on cruelty. See Newberry v.

Newberry, 351 S.W.3d 552, 557 (Tex. App.—El Paso 2011, no pet.). Judge Dunson

therefore “personally heard the evidence on which the judgment [was] based.” See

Masa Custom Homes, 547 S.W.3d at 336. Judge Dunson observed the witnesses and

their demeanor while testifying, heard disputed testimony concerning domestic

violence allegations, and weighed the evidence to “determine[] the facts from the

disputed evidence.” See Malone, 570 S.W.3d at 295.

We conclude that Judge Dunson did not impermissibly render judgment based

on evidence that she did not personally hear. See id.; Masa Custom Homes, 547

S.W.3d at 336–37.

We overrule Ospina’s second issue.

Failure to File Findings of Fact and Conclusions of Law

Finally, in his third issue, Ospina contends that the trial court erred by failing

to file findings of fact and conclusions of law. He argues that the trial court’s failure

harmed him because, without the findings and conclusions, “it is impossible to know

what testimony the trial court believed and what acts or omissions the trial court

found were cruel.” As a result, he cannot attack the sufficiency of the evidence to

support the trial court’s findings and properly present his case to this Court.

17 In a bench trial, “any party may request the court to state in writing its findings

of fact and conclusions of law.” TEX. R. CIV. P. 296; Ad Villarai, LLC v. Chan Il

Pak, 519 S.W.3d 132, 135 (Tex. 2017) (per curiam). The party must make this

request within twenty days after the trial court signs the judgment. TEX. R. CIV. P.

296. The trial court shall file its findings and conclusions within twenty days after a

timely request is filed. TEX. R. CIV. P. 297. If the trial court fails to file timely

findings and conclusions, the party making the original request shall, within thirty

days of his original request, file a notice of past due findings of fact and conclusions

of law. Id.; Ad Villarai, 519 S.W.3d at 137 (stating that party waives right to

challenge court’s failure to file findings if it does not file notice of past due findings

as required by Rule 297).

If the trial court fails to file findings and conclusions in response to a proper

and timely request, we must presume the trial court made all the findings necessary

to support the judgment. Ad Villarai, 519 S.W.3d at 135 (citing BMC Software Belg.,

N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002)). A party may rebut this

presumption by demonstrating that the evidence in the record does not support a

presumed finding. Id.; Harris Cty. v. Ramirez, 581 S.W.3d 423, 427 (Tex. App.—

Houston [14th Dist.] 2019, no pet.). Fact findings are not necessary when the matters

in question are not disputed. Ad Villarai, 519 S.W.3d at 135 (quoting Barker v.

Eckman, 213 S.W.3d 306, 310 (Tex. 2006)).

18 If a trial 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 appellate court. Id. (quoting

Graham Cent. Station, Inc. v. Peña, 442 S.W.3d 261, 263 (Tex. 2014) (per curiam)).

A trial court’s failure to file findings and conclusions in response to a proper request

“is thus ‘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 (Tex. 1989)); Ramirez, 581 S.W.3d

at 427 (“When a party is not prevented from properly presenting its case to the court

of appeals, the failure to file findings and conclusions is harmless.”).

The general rule is that a trial court’s failure to file findings and conclusions

harms an appellant if, under the circumstances of the case, he is forced to guess the

reason why the trial court ruled against him. Liberty Mut. Fire Ins. v. Laca, 243

S.W.3d 791, 794 (Tex. App.—El Paso 2007, no pet.); Larry F. Smith, Inc. v. The

Weber Co., Inc., 110 S.W.3d 611, 614 (Tex. App.—Dallas 2003, pet. denied). If

there is only a single ground of recovery or a single defense in the case, the record

demonstrates that the appellant has suffered no harm from the failure to file findings

because he is not forced to guess the reasons for the trial court’s judgment. Pham v.

Harris Cty. Rentals, L.L.C., 455 S.W.3d 702, 706 (Tex. App.—Houston [1st Dist.]

2014, no pet.); Liberty Mut. Fire Ins., 243 S.W.3d at 794; Larry F. Smith, Inc., 110

19 S.W.3d at 614. However, in a case in which there are multiple grounds for recovery

or multiple defenses, an appellant is forced to guess what the trial court’s findings

were, unless the findings are provided to him. Pham, 455 S.W.3d at 706; Liberty

Mut. Fire Ins., 243 S.W.3d at 794; Larry F. Smith, Inc., 110 S.W.3d at 614; see

Fraser v. Goldberg, 552 S.W.2d 592, 594 (Tex. App.—Beaumont 1977, writ ref’d

n.r.e.) (“Undoubtedly, there are situations in which findings and conclusions are

necessary in order for the appellant to present his case. In factually complicated

situations in which there are two or more possible grounds for recovery or defense,

an undue burden would be placed upon an appellant.”).

Putting an appellant in the position of having to guess the reasons for the

judgment rendered against him defeats the purpose of Rules 296 and 297, which

allow a request for findings and conclusions to “narrow the bases of the judgment to

only a portion of [the multiple] claims and defenses, thereby reducing the number of

contentions that the appellant must raise on appeal.” Pham, 455 S.W.3d at 706

(quoting Larry F. Smith, Inc., 110 S.W.3d at 614). Without findings that narrow the

bases for the judgment, an appellant must “broaden his appeal to attack all possible

findings the trial court conceivably could have made.” Larry F. Smith, Inc., 110

S.W.3d at 614.

The Family Code provides that a trial court “may grant a divorce in favor of

one spouse if the other spouse is guilty of cruel treatment toward the complaining

20 spouse of a nature that renders further living together insupportable.” TEX. FAM.

CODE ANN. § 6.002. A spouse’s conduct rises to the level of cruel treatment when

their conduct renders the couple’s living together insupportable. Ayala v. Ayala, 387

S.W.3d 721, 733 (Tex. App.—Houston [1st Dist.] 2011, no pet.); Newberry, 351

S.W.3d at 557. “‘Insupportable’ for purposes of ‘cruel treatment,’ means incapable

of being borne, unendurable, insufferable, or intolerable.” Ayala, 387 S.W.3d at 733

(citing Henry v. Henry, 48 S.W.3d 468, 473–74 (Tex. App.—Houston [14th Dist.]

2001, no pet.)); Newberry, 351 S.W.3d at 557. “Abuse need not be limited to bodily

injury; nonetheless, physical abuse will support granting a divorce on cruelty

grounds.” Newberry, 351 S.W.3d at 557; In re Marriage of Rice, 96 S.W.3d 642,

649–50 (Tex. App.—Texarkana 2003, no pet.) (holding that wife’s testimony that

husband had physically abused her on several occasions in past was sufficient

evidence to support trial court’s findings of cruel treatment).

The record of the May 2019 proceeding reflects that the parties entered into a

stipulation concerning the disputed ownership of the computer. Garcia Florez agreed

to pay Ospina nearly $1,000 for the computer, and Ospina agreed that he would not

seek recovery of the computer from Garcia Florez. After this agreement was stated

on the record, Ospina’s counsel agreed with the trial court that the only outstanding

issue remaining was “grounds for divorce.” Both Ospina and Garcia Florez testified

21 that the marriage was insupportable and there was no chance of reconciliation;

insupportability was therefore undisputed at trial.

Garcia Florez had also alleged cruelty as a fault-based ground for divorce.

This was the only disputed ground for divorce presented to the trial court, and the

court, in the written divorce decree, dissolved the marriage on cruelty grounds.

Garcia Florez presented testimony that Ospina had engaged in domestic violence,

and she testified to three specific instances in which he had physically abused her.

Florez testified that she never saw Ospina abuse Garcia Florez, but she did witness

marks and bruises on Garcia Florez. Ospina disputed her characterization of these

incidents and denied ever hitting Garcia Florez. The evidence consisted of less than

100 pages of testimony, the information charging Ospina with assault arising out of

the October 2017 incident, and four pictures purporting to show injuries Ospina

caused to Garcia Florez.

This is not a case with a voluminous factual record, multiple grounds for

recovery, or multiple defenses. Although the facts are disputed, this case involved

only one disputed ground for divorce: cruelty. The only question before the trial

court at the May 2019 proceeding was whether Ospina had engaged in cruel

treatment towards Garcia Florez that “render[ed] further living together

insupportable.” See TEX. FAM. CODE ANN. § 6.002. Garcia Florez presented

evidence that Ospina had engaged in domestic violence towards her, which supports

22 granting a divorce on the basis of cruelty. See Newberry, 351 S.W.3d at 557

(“[P]hysical abuse will support granting a divorce on cruelty grounds.”); Marriage

of Rice, 96 S.W.3d at 649–50 (concluding that sufficient evidence existed to support

finding of cruelty when wife testified husband had physically abused her on four

occasions).

On appeal, Ospina does challenge the sufficiency of the trial court’s implied

findings on cruelty, but that does not compel a conclusion that he was prevented

from doing so by the trial court’s failure to file findings of fact. This is not a situation

in which Ospina was required to guess at the reasons for the trial court’s judgment.

Even without the benefit of specific fact findings concerning which acts the trial

court found constituted cruel treatment, this is not a factually complicated case, and

challenging the trial court’s implied factual findings on cruelty in this case does not

place an undue burden on Ospina. Assuming that the trial court found that all three

incidents of domestic violence testified to by Garcia Florez occurred, challenging

the sufficiency of the evidence of these implied findings is not “so burdensome” that

it effectively prevented Ospina from properly presenting his case to this Court. See

Ad Villarai, 519 S.W.3d at 135.; see also Reisler v. Reisler, 439 S.W.3d 615, 620

(Tex. App.—Dallas 2014, no pet.) (stating that trial court’s obligation “is to make

findings of fact and conclusions of law on the ultimate or controlling issues, but not

on evidentiary issues”).

23 We therefore conclude that the trial court’s failure to file findings and

conclusions, while erroneous, did not harm Ospina. See Ad Villarai, 519 S.W.3d at

135; Pham, 455 S.W.3d at 706 (“[W]hen there is only a single ground of recovery

or a single defense, the appellant suffers no harm [from the failure to file findings of

fact] because the reason for the trial court’s judgment is clear, and the appellate court

does not have to guess the reason for the trial court’s decision.”).

We overrule Ospina’s third issue.

Conclusion

We affirm the judgment of the trial court.

April L. Farris Justice

Panel consists of Chief Justice Radack and Justices Goodman and Farris.