IN THE MATTER OF THE MARRIAGE OF CAROLYN CLARK KENNEDY AND DONALD RAY CLARK, SR. AND IN THE INTEREST OF DONLD RAY CLARK, JR.
Appeal from the 311th District Court Harris County, Texas
Trial Court Cause No. 2012-30642
consists of Justices Christopher, Jamison and Donovan.
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.
and Procedural Background
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.
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.
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.
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
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.
of Fact and Conclusions of Law
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.
on the MSA
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, ...