Court of Appeals of Texas, Twelfth District, Tyler
IN THE MATTER OF THE MARRIAGE OF KEITH D. JANUARY AND EVELYN DIANE JANUARY
FROM THE 369TH JUDICIAL DISTRICT COURT ANDERSON COUNTY, TEXAS
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
T. Worthen, Chief Justice.
Diane January appeals the trial court's divorce decree.
In one issue, Evelyn contends the trial court abused its
discretion in failing to award her a portion of Keith D.
January's retirement account. We affirm.
and Keith were married on April 10, 2010. Keith filed for
divorce on February 12, 2013. At the final hearing, the
evidence showed that both Evelyn and Keith worked for the
Texas Department of Criminal Justice-Institutional Division
(TDCJ). Evelyn retired in January 2013 after twenty-two years
of service and received a pension of approximately $2, 500
per month. Additionally, she received approximately $400 per
month from another pension and an unspecified amount in oil
royalties. Evelyn had $42, 000 in a 401(k) account and
separate property including a house and fifteen acres.
testified that he worked for TDCJ during their marriage, and
his net monthly pay was $2, 434.48. He had $20, 000 in a
401(k) account, and lived in state housing at the Pack Unit
in Navasota. At the conclusion of the hearing, the trial
court awarded each of the parties the community property in
their possession or under their control, including cash and
funds on deposit. Keith was awarded two vehicles and three
firearms, and Evelyn was awarded two vehicles, and a
television and rifle in Keith's possession. Each of the
parties assumed the debts in their name, and was awarded his
or her retirement account and pension. Further, Keith was
ordered to pay $6, 000 to Evelyn.
the decree of divorce, Evelyn made a timely request for
findings of fact and conclusions of law. However, the trial
court did not file any findings of fact and conclusions of
law, and Evelyn failed to file a notice of past due findings.
This appeal followed.
of Community Property
sole issue, Evelyn contends that the trial court abused its
discretion by failing to award her a portion of Keith's
retirement account. She argues that the trial court's
decision to divest her of any and all interests she may have
had in Keith's retirement account was unsupported by the
record and was arbitrary.
review a trial court's division of property under an
abuse of discretion standard. Murff v. Murff, 615
S.W.2d 696, 698 (Tex 1981). It is this court's duty to
consider every reasonable presumption in favor of the proper
exercise of discretion by the trial court in dividing the
community estate. Loaiza v. Loaiza, 130 S.W.3d 894,
899 (Tex. App.-Fort Worth 2004, no pet.) (citing
Murff, 615 S.W.2d at 698). To determine whether a
trial court abused its discretion, we must decide whether the
trial court acted without reference to any guiding rules or
principles; in other words, whether the act was arbitrary or
unreasonable. Loaiza, 130 S.W.3d at 899 (citing
Downer v. Aquamarine Operators, Inc., 701 S.W.2d
238, 241-42 (Tex. 1985)).
must file a notice of past due findings when the court does
not file findings within twenty days. Tex.R.Civ.P. 297;
Ad Villarai, LLC v. Chan Il Pak, 519 S.W.3d 132, 137
(Tex. 2017). A party waives its right to challenge a failure
to file findings if it does not file a notice of past due
findings as rule 297 of the Texas Rules of Civil Procedure
requires. Id. "Without [the] timely reminder
[that Rule 297 requires], [the requesting party] waive[s] its
complaint of the failure on appeal." Id.
(quoting Las Vegas Pecan & Cattle Co., Inc. v. Zavala
Cty., 682 S.W.2d 254, 255 (Tex. 1984)).
findings of fact and conclusions of law are not properly
requested and none are filed, the judgment of the trial court
must be affirmed if it can be upheld on any legal theory that
finds support in the evidence. In re W.E.R., 669
S.W.2d 716, 717 (Tex. 1984). In determining whether some
evidence supports the judgment and the implied findings of
fact, "it is proper to consider only that evidence most
favorable to the issue and to disregard entirely that which
is opposed to it or contradictory in its nature."