TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-04-00749-CV
Tina Marie Fox, Appellant
v.
Troy Ben Fox, Appellee
FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
NO. 21,584, HONORABLE V. MURRAY JORDAN, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Tina Marie Fox appeals two issues pertaining to the final decree of divorce
from her marriage to appellee Troy Fox. (1) After issuing the divorce decree, (2) the district court ordered
that Tina and Troy's daughter M.F. attend St. Peter's Lutheran School in Marble Falls for the 2004-05 school year, and that her primary residence be restricted to Burnet County. The district court also
ordered that the portions of the initial decree addressing the couple's tax liabilities for prior years
and child support obligations be corrected and modified. After the district court issued these orders,
Tina requested findings of fact and conclusions of law. The district court denied her request, finding
that it was not timely filed.
In her first and second issues on appeal, Tina contends that the district court erred by
(1) failing to issue findings of fact and conclusions of law and (2) finding her request for findings
of fact and conclusions of law untimely. In her third, fourth, and fifth issues, Tina insists that the
district court abused its discretion by ordering that: (3) M.F.'s residence be restricted to Burnet
County; (4) M.F. attend St. Peter's Lutheran School for the 2004-05 school year; and (5) certain
portions of the initial decree be corrected and modified. Because we hold that Tina was not harmed
by the district court's failure to issue findings of fact and conclusions of law and that the district
court did not abuse its discretion by issuing the post-initial decree orders, we affirm in part.
However, we also reverse and remand in part because we hold that no substantive or probative
evidence exists that would support the court's restriction of the child's residence to Burnet County
beyond the school year 2004-05.
BACKGROUND
Tina and Troy were married in August 1995. Tina worked in automotive sales and
also ran a nail salon. Troy owned and operated pawn shops in Marble Falls, Taylor, and Belton.
Tina had a ten-year-old son, Anthony, from a prior relationship; Troy had no children. Tina, Troy
and Anthony lived together in Burnet County throughout the marriage. Tina has no family in Burnet
County. Her two sisters live in Belton and Killeen; her mother lives in West Virginia. Troy grew
up in Burnet County; his parents, two siblings, and several nieces and nephews, still reside there.
After M.F. was born in 1998, the couple agreed that Tina would stop working to stay home with the
children.
Troy filed for divorce in April 2002. In June 2004, the district court issued its "final
order" concerning conservatorship of M.F. Tina and Troy were appointed joint managing
conservators, with Tina having the exclusive right to establish M.F.'s primary residence. The court
stated that a possible geographic restriction would be addressed at a later date. Trial on all
unresolved issues was set for July. On the day before trial, Tina and Troy entered into a Rule 11
agreement that addressed community property issues, as well as child support. The agreement
specifically stated that any issues pertaining to a geographical restriction or choice of schools for
M.F. in 2004-05 would either be addressed in a separate agreement or be decided by the court. At
the hearing, Tina insisted that it would be in M.F.'s best interest to allow her to move to nearby
Lakeway (3) and attend public school there. Troy wanted to restrict her residence to Burnet County.
When the couple could not agree, a hearing was held on July 22, 2004. At the close of the hearing
the district judge announced that it was in M.F.'s best interest to remain in Burnet County and return
to her same school for the first grade in Fall 2004. A written order imposing this geographic
restriction was filed on August 28.
The district court signed the initial decree of divorce on July 26, 2004. It addressed
the couple's federal income tax liability for prior years and the year of divorce. The initial decree
stated, "In the event that there is a refund for prior years, the parties shall split the refund." This
decree also included this statement addressing income tax liability in the year of divorce: "Troy Fox
shall be entitled to any taxes prepaid on behalf of Troy Fox individually or on behalf of the Pawn
Shops, Tina Fox is ordered to sign any documents necessary to implement this agreement."
Although the Rule 11 agreement indicated that Troy would pay $1,200 a month in child support, the
initial decree failed to impose this child support obligation.
On August 17, Troy filed a motion seeking to reform, clarify, and correct certain
property issues in the initial decree. In the alternative, Troy requested a new trial. Troy insisted that
the provision entitling him to any prepaid income taxes in excess of the parties' tax liability was
incorrectly placed in the section addressing taxes for the year of divorce, rather than taxes for prior
years, as the parties had agreed. Likewise, he argued that the clause purporting to divide any tax
refund from prior years was contrary to their agreement and was erroneously inserted in the decree
by Tina's attorney. Troy argued that these mistakes rendered the decree in conflict with the parties'
Rule 11 agreement, which was incorporated into the initial decree.
After a hearing on October 7, the district court modified the income tax provisions
as Troy requested and added the child support obligations that had inadvertently been omitted from
the initial decree. On October 13, Tina filed a request for findings of fact and conclusions of law
concerning the geographic restriction and the correction and modification of the income tax
provisions. On October 29, the district court denied Tina's request, finding it untimely. This appeal
followed.
DISCUSSION
Findings of fact and conclusions of law
In her first two issues, Tina suggests that the district court erred by finding untimely
her request for findings of fact and conclusions of law. Rule 296 provides a party with the
procedural right to request from the trial court written findings of fact and conclusions of law. See
Tex. R. Civ. P. 296. The trial court's duty to make such findings and conclusions is mandatory when
the request is timely. See Tex. R. Civ. P. 297; see also Cherne Indus., Inc. v. Magallanes, 763
S.W.2d 768, 772 (Tex. 1989); Glass v. Williamson, 137 S.W.3d 114, 117-18 (Tex. App.--Houston
[1st Dist.] 2004, no pet.). If a trial court does not file findings, it is presumed harmful unless the
record affirmatively shows that the appellant suffered no harm. See, e.g., Tenery v. Tenery, 932
S.W.2d 29, 30 (Tex. 1996); Cherne Indus., Inc., 763 S.W.2d at 772; Glass, 137 S.W.3d at 118.
Generally, in complicated cases with disputed facts, or with two or more grounds for
recovery or defense, the inference of harm cannot be defeated. Elliott v. Kraft Foods N. Am., Inc.,
118 S.W.3d 50, 54 (Tex. App.--Houston [14th Dist.] 2003, no pet.). If, however, the lack of
findings is harmless, we can affirm. See Tex. R. App. P. 44.1(a). Error is harmful if it prevents a
party from properly presenting a case to the appellate court. See Tex. R. App. P. 44.1(a)(2); Tenery,
932 S.W.2d at 30; Brazoria County v. Texas Comm'n on Envtl. Quality, 128 S.W.3d 728, 744 n.10
(Tex. App.--Austin 2004, no pet.). A trial court's failure to issue findings of fact and conclusions
of law will be considered harmful if, under the circumstances of the particular case, an appellant
would be required to guess the reason or reasons for the trial court's decision. Brazoria County, 128
S.W.3d at 744 n.10; Elliott, 118 S.W.3d at 54.
A judgment that actually disposes of all parties and all claims is final. In re
Burlington Coat Factory Warehouse, 167 S.W.3d 827, 830 (Tex. 2005). In this case, the district
court retained plenary jurisdiction to modify its initial decree, and there was not a final judgment
until the district court issued its October 7, 2004 order modifying the initial decree. At that time, the
district court resolved the parties' dispute regarding the income tax provisions and imposed the
previously agreed upon child support obligation that had not been included in the initial decree.
Therefore, the district court erred by finding Tina's October 13 request for findings of fact and
conclusions of law untimely. See Tex. R. Civ. P. 296 (providing that requests for findings of fact
and conclusions of law be filed within twenty days after judgment is signed).
Because Tina's request was timely, we must determine whether she was harmed by
the lack of findings and conclusions. Troy argues that Tina does not have to guess the reasons
behind the district court's orders pertaining to either its imposition of the geographic limitation or
its decision to correct and modify the initial decree because the district judge, Murray Jordan,
announced his rulings and stated his reasons at the hearings. We agree.
At the hearing on the residency restriction, Judge Jordan clearly stated that his main
concern was to secure a stable environment for M.F. He acknowledged that for two years the
divorce proceedings had been extremely stressful for a child her age. He explained that M.F. had
attended St. Peter's Lutheran School in Burnet County for the prior two school years and had made
friends there. He insisted that, if M.F. were older and better equipped to deal with the stress of a
move and a new school, his decision might have been different. He then stated that restricting her
residence to Burnet County would make it easier for M.F. to continue in this same school.
Therefore, he ordered M.F. to attend St. Peter's for the first grade (2004-05) and reside in Burnet
County. He added, "It may be that a move to outside this area after a year would be appropriate."
At the hearing on Troy's motion to reform, clarify, and correct the judgment, Judge
Jordan stated that there clearly were two mistakes made in drafting the decree, the income tax
provisions and the omission of any child support obligation, both at odds with the parties' agreement.
He suggested the mistakes were probably due to the fact that there was a hurried push to enter the
initial decree the day after the Rule 11 agreement was signed. Because he found the provisions of
the initial decree and the incorporated Rule 11 agreement ambiguous, he heard evidence pertaining
to the parties' intentions. Subsequently, he asserted that the decree entered on July 26 did not
accurately represent the parties' intentions.
The record clearly establishes the reasons underlying Judge Jordan's decisions in this
case. Therefore, Tina was not harmed by the lack of written findings and conclusions of law. (4)
Consequently, we overrule Tina's first two issues regarding the district court's failure to file written
findings of fact and conclusions of law.
Residence restriction
In her third and fourth issues, Tina suggests that the district court abused its discretion
when it ordered that M.F.'s primary residence be established solely within Burnet County and that
M.F. attend St. Peter's Lutheran School for the 2004-05 school year. Tina maintains that the orders
are not in the best interest of M.F., who should be allowed to move to Lakeway and enroll in its
exemplary public schools. Tina claims that the move would improve both her and M.F.'s quality
of life without diminishing Troy's relationship with M.F. In addition, Tina asserts that nearby
Lakeway is closer to Troy and his family than other cities actually located within Burnet County.
The legislature has explicitly stated, "The best interest of the child shall always be
the primary consideration of the court in determining the issues of conservatorship and possession
of and access to the child." Tex. Fam. Code Ann. § 153.002 (West 2002); Lenz v. Lenz, 79 S.W.3d
10, 14 (Tex. 2002). The trial court is given wide latitude in determining the best interests of the
child and will be reversed only for an abuse of discretion. Gillespie v. Gillespie, 644 S.W.2d 449,
451 (Tex. 1982); Coleman v. Coleman, 109 S.W.3d 108, 110 (Tex. App.--Austin 2003, no pet.).
A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount
to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law. In
re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005). As long as some evidence of a substantive
and probative character exists to support the order, we will not substitute our judgment for that of
the trial court. Echols v. Olivarez, 85 S.W.3d 475, 477 (Tex. App.--Austin 2002, no pet.).
Family code section 153.001 states that the public policy of this state is to provide
a safe, stable, and nonviolent environment for the child. Tex. Fam. Code Ann. § 153.001(a)(2)
(West 2002). The code is silent as to the specific factors that the trial court should consider when
determining whether a residency restriction is in the best interest of the child. In Lenz, the supreme
court provided some guidance in applying our state's best-interest standard when divorced parents
seek to relocate. See 79 S.W.3d at 13-16. The court highlighted various relevant factors to be
considered: the reasons for and against the move; the effect on extended family relationships; the
effect on visitation and communication with the non-custodial parent to maintain a full and
continuous relationship with the child; the possibility of a visitation schedule allowing the
continuation of a meaningful relationship between the non-custodial parent and child; the nature of
the child's existing contact with both parents, and the child's age, community ties, and health and
educational needs. See id. at 15-17. However, the supreme court clearly stated that suits affecting
the parent-child relationship are intensely fact-driven and consequently involve careful balancing of
these numerous factors. Id. at 18-19.
As we have noted, the district court's primary concern was to provide a secure and
stable environment for M.F. The court heard testimony that M.F. had attended St. Peter's Lutheran
School for two years and was excited about returning for the first grade. The record also indicates
that many of M.F.'s extracurricular activities take place in Burnet County. In addition, there is
evidence establishing that most of M.F.'s paternal extended family lives in Burnet County. Judge
Jordan recognized that it was difficult for Tina to get along with Troy and his family and that it may
not be in her best interest to remain in Burnet County. However, the record indicated that M.F. had
been insulated from much of the familial acrimony.
Judge Jordan concluded that it would promote stability for M.F. to attend the first
grade at St. Peter's:
The child has attended St. Peter's Lutheran School for two years and made friends,
and that the stability for the child will be for her to stay in St. Peter's Lutheran School
at least for another year.
The problem with establishing a home for the child in Lakeway would be if the child
continues in St. Peter's School, she would have to be transported 35 miles to school
each day. If she is closer to St. Peter's School, then it would be better for the child
to be able to go to school in St. Peter's Lutheran School.
So the Court feels that the best interest of the child is that she attend St. Peter's
Lutheran School one more year, but that the home of the child be established in
Burnet County. . . . And certainly as the circumstances change, the-we can change
the order. But at this time, I'll rule that the residence of the child be established in
Burnet County, and that she be placed in St. Peter's Lutheran School for the first
grade.
The record before us includes evidence supporting Judge Jordan's conclusion that the stability of the
child would be served by continuing to attend St. Peter's Lutheran School for the school year 2004-05, that changing the child's residence to Lakeway would impede school attendance at St. Peter's
by adding 35 miles of transportation twice a day, and that restricting the child's residence to Burnet
County would facilitate the goal of keeping her in the same school for another year. Therefore, we
hold that the district court did not abuse its discretion by restricting M.F.'s primary residence to
Burnet County to enable her to attend the first grade at St. Peter's. However, we find no substantive
or probative evidence that would support the court's restriction of the child's residence to Burnet
County and its denial of the mother's request to move to Lakeway after that school year ended. (5) We
hold that the court abused its discretion in continuing the restriction and denying the mother's
request to allow the child to reside in the Lakeway community after the end of the 2004-05 school
year. We sustain in part Tina's third and fourth issues.
Modification and correction of the initial decree
In her final issue, Tina argues that the district court abused its discretion by ordering
that the initial decree be modified and corrected. Tina claims that the district court (1) erroneously
admitted evidence of the couple's settlement negotiations; (2) improperly allowed Troy to
renegotiate the corrected and modified initial decree; and (3) failed to divide income tax refunds
from prior years in a just and right manner.
The district court signed and filed the initial decree on July 26, 2004. On August 17,
Troy filed a motion seeking to reform, clarify, and correct certain portions of the initial decree. He
argued that the portions of the initial decree pertaining to the couple's income tax liabilities were
ambiguous because the Rule 11 agreement was not properly incorporated into the initial decree. On
September 24, the district court held a hearing on Troy's motion. At the hearing, the district court
heard testimony from Troy's attorney, Robert Gradel, and Gradel's secretary, Jennifer Bunting, that
during the settlement negotiations Troy agreed to pay a portion of Tina's credit card debt in exchange
for receiving any tax prepayments or overpayments. Gradel also offered into evidence copies of
faxes that he sent to Tina's attorney, Glynn Turquand, pointing out this drafting error in the initial
decree. In one fax, Gradel made three suggestions for language that he felt should be included in the
decree. Gradel stated that two of the suggestions were adopted, but his request that the decree
section entitled "Liability for Federal Income Taxes for Prior Year" include a sentence awarding
Troy any refunds was not incorporated as requested. (6) Instead, substantially similar language was
placed in the section entitled Treatment/Allocation of Community Income for Year of Divorce.
Finally, Gradel testified that the sentence, "In the event that there is a refund for prior years, the
parties shall split the refund," was contrary to the parties' agreement as reflected in the Rule 11
agreement. Turquand objected to the admission of Gradel's and Bunting's testimony, as well as the
faxes. He claimed Texas Rule of Evidence 408 barred the admission of evidence of conduct or
statements made during settlement negotiations. See Tex. R. Evid. 408. Turquand also argued that
both the Rule 11 agreement and the initial decree were clear and unambiguous.
The district court found the initial decree and the Rule 11 agreement ambiguous and
on October 7 it ordered that three sections of the initial decree be corrected or modified. First, the
district court deleted the sentence splitting tax refunds for prior years between the parties. Second,
it transferred the sentence granting Troy all prepayments of tax to the section concerning tax liability
for prior years. Finally, the district court ordered that the initial decree be modified to include the
previously agreed upon child support provision. (7)
Ambiguity
Whether a divorce decree or an agreement is ambiguous is a question of law subject
to de novo review. See Shanks v. Treadway, 110 S.W.3d 444, 447 (Tex. 2003); Guerrero v. Guerra,
165 S.W.3d 778, 782 (Tex. App.--San Antonio 2004, no pet.). We interpret a divorce decree like
any other judgment, reading the decree as a whole and "effectuating the order in light of the literal
language used" if that language is unambiguous. Reiss v. Reiss, 118 S.W.3d 439, 441 (Tex. 2003)
(quoting Wilde v. Murchie, 949 S.W.2d 331, 332 (Tex. 1997)). A judgment is ambiguous if it is
susceptible to more than one reasonable interpretation. Shanks, 110 S.W.3d at 447. If the decree
is ambiguous, a court should review the record along with the decree to aid in interpreting the
judgment. Id.
After extensive negotiation, Tina and Troy entered into a Rule 11 agreement outlining
how the marital property would be divided. The substance of the agreement was to be included in
the initial decree. Specifically, the initial decree states, "The Court finds that the parties have entered
into an Agreement Incident to Divorce, in a document separate from this Final Decree of Divorce.
The Court approves the agreement and incorporates it by reference as part of this decree as if it were
recited herein verbatim and orders the parties to do all things necessary to effectuate the agreement."
The only reference to the couple's income tax liabilities in the Rule 11 agreement is found in
paragraph 8 which states, "For 2004, parties [Tina and Troy] will partition income, taxes will be as
if divorced on January 1, 2004. Any tax prepayment or deficit will belong to Troy for pawn shops,
his income."
In her response to Troy's motion, Tina contends that paragraph 8 addresses only the
couple's tax liability for 2004. However, it is unclear whether the reference to 2004 in the first
sentence also modifies the second sentence governing the treatment of tax prepayments and deficits.
The second sentence could be read to mean any tax prepayment or deficit in 2004, or it could be read
to mean any tax prepayment or deficit from any year. This distinction is critical because Troy insists
that the word "prepayment" includes overpayments from prior years. Troy maintains that he should
be allowed to apply all overpaid income taxes in 2003 to offset his 2004 tax liability. Tina would
confine the second sentence in paragraph 8 to the year 2004 and rely on the unexplained insertion
dividing tax refunds between the parties to claim one-half of the tax refund from 2003.
We conclude that the second sentence of paragraph 8 is ambiguous because it is
susceptible to more than one reasonable interpretation. Therefore, if the parties intended to award
any income tax prepayments or deficits to Troy, this is in direct conflict with the provision in the
initial decree that any tax refund from a prior year be divided between the parties. Because the
decree specifically incorporated the Rule 11 agreement, we conclude that the provisions of the decree
that address federal income tax liabilities and refunds are ambiguous. See Shanks, 110 S.W.3d at
447. Therefore, the district court did not abuse its discretion by admitting evidence for the purpose
of ascertaining the parties' intentions. See National Union Fire Ins. Co. v. CBI Indus., Inc., 907
S.W.2d 517, 520 (Tex. 1995); EMC Mortgage Corp. v. Davis, 167 S.W.3d 406, 413 (Tex.
App.--Austin 2005, pet. filed).
Modification
A trial court retains plenary power to vacate, modify, correct, or reform its judgment
at any time until the judgment becomes final thirty days after it is signed. See Tex. R. Civ. P. 306a
(time periods run from date judgment is signed), 329b (motions for new trial and motions to modify,
correct, or reform judgment extend duration of trial court's plenary power); Fruehauf Corp. v.
Carrillo, 848 S.W.2d 83, 84 (Tex. 1993); In re Garza, 153 S.W.3d 97, 102 (Tex. App.--San
Antonio 2004, no pet.). Within this time period, the trial court's power to modify its judgment has
been described as "practically unlimited" or "virtually absolute." Rogers v. Clinton, 794 S.W.2d 9,
12 (Tex. 1990) (Cook, J., dissenting); Cook v. Cook, 888 S.W.2d 130, 131 (Tex. App.--Corpus
Christi 1994, no writ).
However, once a divorce decree becomes final it is beyond the power of the trial court
to issue an order that modifies the division of property. Tex. Fam. Code Ann. § 9.007(b) (West
1998). Property adjudications in a divorce decree become final the same as other judgments relating
to title and possession of property. Harleaux v. Harleaux, 154 S.W.3d 925, 928 (Tex. App.--Dallas
2005, no pet.). Here, the district court's plenary power had not expired at the time it signed the
October 7 order modifying the initial decree. See Tex. R. Civ. P. 329b(a) (motion to modify shall
be filed within thirty days after judgment is signed), 329b(c) (if motion to modify is not determined
within seventy-five days after judgment was signed, it shall be considered overruled). Therefore,
the district court was authorized to modify the initial decree in accordance with the evidence of the
parties' agreement. See Cook, 888 S.W.2d at 131.
The record includes testimony and evidence supporting the district court's
modification of the initial decree. The modification is also supported by other non-disputed
provisions of the initial decree. First, the parties agree that Troy is liable for any income tax deficit
in all prior years. If Troy is liable for any prior income tax liability, it follows that he also be entitled
to any tax refund or overpayment. Second, both the initial decree and the Rule 11 agreement
explicitly state that community income generated in 2004, the year of divorce, shall be partitioned
as if the couple were divorced on January 1, 2004. Under the partition agreement, Tina and Troy
would file separate income tax returns for 2004 reflecting "all income earned by gains and losses
generated by, and deductible expenses referable to assets awarded" to either Tina or Troy under the
initial decree. Thus, the provision in paragraph 8 of the Rule 11 agreement that, "Any tax
prepayment or deficit will belong to Troy for pawn shops, his income," would be redundant if it only
applied to the year 2004.
Accordingly, we hold that the district court's modification of the income tax
provisions in the decree of divorce did not constitute an abuse of discretion.
CONCLUSION
We hold that (1) Tina was not harmed by the district court's failure to issue findings
of fact and conclusions of law; (2) the district court did not abuse its discretion by ordering that M.F.
attend St. Peter's Lutheran School in Marble Falls for the 2004-05 school year and that she reside
in Burnet County in order to facilitate her attendance at St. Peter's; and (3) the district court did not
abuse its discretion by modifying and correcting the income tax provisions of the initial decree.
However, we hold that the district court abused its discretion in extending the geographic restriction
on the child's residence beyond the 2004-05 school year. We reverse and remand that portion of the
divorce decree for further proceedings consistent with this opinion.
__________________________________________
Bea Ann Smith, Justice
Before Justices B. A. Smith, Patterson and Pemberton
Affirmed in Part; Reversed and Remanded in Part
Filed: January 13, 2006
1. For ease of reference, we will refer to the parties by their first names.
2. The divorce decree was issued in July 2004 and was entitled "Final Decree of Divorce on
Property Issues." We will refer to the decree as the "initial decree." Earlier the district court had
issued an order concerning conservatorship and support of the child. In that order, the district court
specifically stated that any geographic restriction on the residence of the child would be addressed
at a later time. The initial decree explicitly incorporated the order concerning conservatorship of the
child.
3. Lakeway, Texas, is a small community approximately thirty-five miles from the Marble
Falls area, which is where Tina and M.F. lived at the time of the divorce.
4. We emphasize that oral comments from the bench are not substitutes for written findings
of fact and conclusions of law. See In re Jane Doe 10, 78 S.W.3d 338, 340 n.2 (Tex. 2002); Narvaez
v. Maldonado, 127 S.W.3d 313, 316 n.1 (Tex. App.--Austin 2004, no pet.). We rely on Judge
Jordan's oral pronouncements solely for the purpose of conducting our harm analysis.
5. The record reflects that St. Peter's Lutheran School enrolls students from pre-kindergarten
through second grade. M.F. would not be able to attend St. Peter's beyond the end of the school year
2005-06. The record does not reflect if M.F. is presently enrolled in the second grade at St. Peter's.
6. The requested insertion read: "Troy Fox shall be entitled to any taxes prepaid on behalf of
Troy Fox individually or on behalf of the Pawn Shops, and Tina Fox is ordered to sign any
documents necessary to implement this agreement."
7. Neither party raises a complaint about the modification adding the child support obligation
to the decree of divorce.