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In re Marriage of Kennedy

Court of Appeals of Texas, Fourteenth District

July 6, 2017

IN THE MATTER OF THE MARRIAGE OF CAROLYN CLARK KENNEDY AND DONALD RAY CLARK, SR. AND IN THE INTEREST OF DONLD RAY CLARK, JR.

         On Appeal from the 311th District Court Harris County, Texas Trial Court Cause No. 2012-30642

          Panel consists of Justices Christopher, Jamison and Donovan.

          MEMORANDUM OPINION

          John Donovan Justice.

         This appeal is brought by appellants Donald Ray Clark, Sr., and his son, Donald Ray Clark, Jr., complaining of a judgment entered in favor of appellee Carolyn Clark Kennedy. We affirm in part and reverse and remand in part.

         Factual and Procedural Background

         Donald Sr. had four children, including Donald Jr., and they resided at 2511 7th Street, Galena Park, Texas. In May 1992, the Galena Park property was leased from Gideon L. Sanders, as lessor, to Donald Sr., as lessee, for a period of seven years, ending May 16, 1999. Following completion of the lease agreement, Sanders executed a quitclaim deed in favor of Donald Jr. on January 12, 2000. The record reflects Donald Jr. was sixteen at that time.

         Carolyn and Donald Sr. were married in 1996. Carolyn and her three children moved into the Galena Park home. The underlying petition for divorce was filed by Carolyn on May 14, 2012. In the divorce, Carolyn claimed the Galena Park property as community property. Donald Sr. denied that characterization.

         A bench trial was held on December 12, 2013. The trial court awarded title to the Galena Park property to Donald Sr. and set a lien against it for $15, 000 to be paid to Carolyn. Donald Sr. and Carolyn were unable to obtain a loan on the Galena Park property. The trial court then granted Carolyn's motion for new trial.

         Trial was set for May 18, 2015. Carolyn filed a Fourth Amended Petition and Donald Jr. then filed special exceptions and a counter-claim for trespass to try title. On the day of trial, the trial court ordered mediation. The next day, Carolyn and Donald Sr. reached a mediated settlement agreement ("MSA"). A hearing was held to enter judgment but Donald Jr. had not signed the MSA. The trial court declined to enter judgment on the MSA and trial was again set for June 22, 2015.

         On June 10, 2015, Donald Sr. and Donald Jr. filed a motion for judgment on the MSA. A hearing was held on June 22, 2015, and judgment was entered after Donald Jr. signed the MSA. A bench trial immediately ensued on the ownership/character of the Galena Park property. On July 24, 2015, the trial court ruled the Galena Park property was owned by the community estate and Donald Jr. take nothing. The trial court ordered the property sold and the proceeds divided as community property. A final decree of divorce was signed September 11, 2015. From that judgment, Donald Sr. and Donald Jr. (collectively "appellants") appeal raising eight issues.

         Findings of Fact and Conclusions of Law

         Appellants' first issue claims the trial court erred in failing to file written findings of fact and conclusions of law. Appellants timely filed a Request for Findings of Fact and Conclusions of Law on September 28, 2015. See Tex. R. Civ. P. 296. Appellants do not assert, and the record does not reflect, a notice of past due findings of fact and conclusions of law was filed. See Tex. R. Civ. P. 297. Accordingly, appellants' complaint is waived and issue one is overruled. See Curtis v. Comm'n for Lawyer Discipline, 20 S.W.3d 227, 232 (Tex. App.-Houston [14th Dist.] 2000, no pet.) (citing Las Vegas Pecan & Cattle Co. v. Zavala Cty., 682 S.W.2d 254, 255-56 (Tex. 1984)).

         Judgment on the MSA

         In his second issue, appellants contend the trial court erred in failing to enter judgment on the MSA. The MSA does not address the Galena Park property. Incorporated into the MSA is the December 12, 2013, ...


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