Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Marriage of January

Court of Appeals of Texas, Twelfth District, Tyler

September 6, 2017

IN THE MATTER OF THE MARRIAGE OF KEITH D. JANUARY AND EVELYN DIANE JANUARY

         APPEAL FROM THE 369TH JUDICIAL DISTRICT COURT ANDERSON COUNTY, TEXAS (Tr.Ct.No. 369-13-4887)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          James T. Worthen, Chief Justice.

         Evelyn 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.

         Background

         Evelyn 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.

         Keith 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.

         Following 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.

         Division of Community Property

         In her 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.

         Standard of Review

         We 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)).

         Litigants 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)).

         Where 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." W ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.