Kirk v. Kirk

805 S.W.2d 929, 1991 Tex. App. LEXIS 508, 1991 WL 50638
CourtCourt of Appeals of Texas
DecidedMarch 6, 1991
DocketNo. 2-89-300-CV
StatusPublished
Cited by3 cases

This text of 805 S.W.2d 929 (Kirk v. Kirk) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kirk v. Kirk, 805 S.W.2d 929, 1991 Tex. App. LEXIS 508, 1991 WL 50638 (Tex. Ct. App. 1991).

Opinion

OPINION

HILL, Justice.

Joe Allen Kirk appeals from the judgment of the trial court granting a divorce and dividing the property between him and Sherry Stoner Hackler Kirk, the appellee. In seven points of error, Joe Allen contends that the trial court erred by: (1) failing to make findings to support its conclusion that the division of the property was proper; (2) using an improper standard to divide the estate of the parties; (3) awarding an injunction against him as part of the final decree since there were no pleadings or evidence to support “the findings” and since he was not given notice and an opportunity to be heard in accordance with the constitutions of the United States and the State of Texas; (4) awarding judgment for attorney’s fees against him and in favor of Sherry’s attorney; (5) failing to make findings and conclusions to support the award of attorney’s fees; and (6) entering findings of fact and conclusions of law when the judge making the findings was not the same judge that heard the evidence.

We affirm because we hold that: (1) the record does not reflect that Joe Allen presented a request for additional findings of fact and conclusions of law to the trial judge as was then required by Rule 298 of the Texas Rules of Civil Procedure; (2) the trial court used the appropriate standard in dividing the marital estate; (3) the trial court was merely temporarily extending a temporary injunction that had been entered into by agreement and not entering a permanent injunction; (4) the trial court was authorized by the pleadings to award Sherry’s attorney a judgment for attorney’s fees, and that award is supported by findings of fact and conclusions of law; and (5) Joe Allen waived any error caused by a judge who had not heard the evidence signing the findings of fact and conclusions of law.

Joe Allen contends in point of error number one that the trial court erred by failing to make findings to support its conclusion that the division of property was proper. The trial court found that the parties accumulated various items of community property during the course of their marriage, and that they incurred numerous community debts during the course of their marriage. The trial court further found that the division of property as contained in the divorce decree was fair, just, and equitable, and that the division and allocation of the debts as accomplished by the decree of divorce was fair, just, and equitable, with due regard to the rights of the parties.

Joe Allen complains of the trial court’s failure to make findings as to the total amount or percentage of property awarded to each party and the factors supporting any disparity in the award between the parties. These were among thirty-seven additional findings requested by him. At the time in question, it was not sufficient to merely file a request for additional findings of fact and conclusions of law. Mosolowski v. Mosolowski, 562 S.W.2d 24, 25 (Tex.Civ.App.—Tyler 1978, no writ). The request had to be presented to the trial judge. Id. Because Joe Allen failed to perfect a bill of exception showing that the request for additional findings of fact and conclusions of law was actually presented to the trial court or called to its attention, there is nothing to show that he properly complied with Rule 298. Id. He therefore did not properly preserve this point for appellate review. Id.

The Supreme Court of Texas eliminated the time-honored requirement for presentment of the original request for findings of fact and conclusions of law to the trial judge in the case of Cherne Industries, Inc. v. Juan Magallanes, Guardian Ad Litem, 763 S.W.2d 768 (Tex.1989). One reason for the elimination of the necessity of presentment of the initial request to the trial judge was the fact that a second request was required before appellate com[931]*931plaint could be made. Id. at 771; also see TEX.R.CIV.P. 297. Because of the short time frame given to the trial court to respond to requests for additional or amended findings under Rule 298 of the Texas Rules of Civil Procedure, and because there was no requirement for a second request of the court in the event the court failed to respond, we hold that prior to the amendment of Rule 298, effective September 1, 1990, there was still a necessity of showing presentment of a request for additional or amended findings of fact and conclusions of law to the trial court in order to preserve such an issue for appellate review. This case was tried and appealed prior to the September 1, 1990 effective date of the amendment of Rule 298. Accordingly, we overrule point of error number one.

Joe Allen urges in point of error number two that the trial court used an erroneous standard for dividing the property. The trial court found in its findings of fact and conclusions of law that “The division of the property as contained in the Decree of Divorce signed on September 14, 1989, is fair, just, and equitable” and that “The division and allocation of the debts of the parties as accomplished by the Decree of Divorce signed on the 14th day of September, 1989, were fair, just, and equitable with due regard to the rights of the parties.” Joe Allen asserts that there is a difference between a division that is fair, just, and equitable, and a division that is “just and right, having due regard for the rights of each party ... of the marriage” as is required by section 3.63 of the Texas Family Code. We note that in the Final Decree of Divorce the trial court stated, “The Court finds that the following is a just and right division of the parties’ marital estate, having due regard for the rights of each party.” We do not find the court’s conclusions of law to be inconsistent with that statement in the decree. Accordingly, we do not find that the trial court used an inappropriate standard in dividing the marital estate. We overrule point of error number two.

Allen contends in point of error number three that the trial court erred in awarding an injunction against him as a part of the Final Decree of Divorce because there were no pleadings or evidence to support the findings. He contends that there was no pleading for a permanent injunction and that there was not any evidence to show its necessity or that his wife had no adequate remedy at law. He also urges in point of error number four that the trial court erred in awarding an injunction against him as part of the final decree because he was not given notice and an opportunity to be heard in accordance with the constitutions of the United States and the State of Texas. We construe the in-junctive language of the decree as being only a continuation of the temporary orders already in effect, with minor modifications, pending the division of property and payment of debts in accordance with the decree. Consequently, there is no merit to Joe Allen’s contention that there was error because there was no pleading for a permanent injunction. Joe Allen provides us with no authority for his contention that such a continuation of the temporary orders pending the property division is a permanent injunction, nor for his contention that the trial court’s action in doing so violated his right to notice under the constitutions of Texas or the United States.

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805 S.W.2d 929, 1991 Tex. App. LEXIS 508, 1991 WL 50638, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirk-v-kirk-texapp-1991.