Court of Appeals of Texas, Twelfth District, Tyler
FROM THE COUNTY COURT AT LAW NACOGDOCHES COUNTY, TEXAS
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
Cotton appeals the trial court's final decree of divorce.
On appeal, he presents five issues. We affirm.
Cotton and Elizabeth Cotton were married on December 5, 1992.
On November 15, 2013, Elizabeth filed an original petition
for divorce, alleging that Noel committed adultery. She also
requested that she be awarded a disproportionate share of the
parties' estate because of, among other reasons, fault in
the breakup of the marriage, and the disparity of earning
power between the spouses and their ability to support
themselves. Noel filed a general denial and a counter-claim,
requesting that he be awarded a disproportionate share of the
bench trial, the trial court granted the parties a divorce on
the grounds of adultery. Noel was awarded as his sole and
separate property an undivided interest in the business known
as Sid Roberts Funeral Home (the "Funeral Home"),
the tract of land on which the Funeral Home was situated (the
"Land"), and two tracts of land adjacent to the
Funeral Home. Likewise, Elizabeth was awarded as her sole and
separate property an undivided interest in the Funeral Home,
the Land, and two tracts of land adjacent to the Funeral
Home. The trial court also awarded the marital home and an
insurance check in the amount of $5, 872.77 to Elizabeth.
Following the decree of divorce, Noel 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 Noel failed to file a notice of past due
findings. This appeal followed.
decree of divorce, a court shall order a division of the
estate of the parties in a manner that the court deems just
and right, having due regard for the rights of each party.
Tex. Fam. Code Ann. § 7.001(West 2006). We review a
trial court's division of property under an abuse of
discretion standard. Moroch v. Collins, 174 S.W.3d
849, 857 (Tex. App.-Dallas 2005, pet. denied); see also
Garza v. Garza, 217 S.W.3d 538, 548 (Tex. App.-San
Antonio 2006, no pet.). A trial court does not abuse its
discretion if there is some evidence of a substantive and
probative character to support the decision. Garza,
217 S.W.3d at 549; Moroch, 174 S.W.3d at 857. 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 v. Murff, 615 S.W.2d
696, 698 (Tex. 1981)). Moreover, we should reverse a
court's division of property only if the error materially
affects the court's just and right division of the
property. Henry v. Henry, 48 S.W.3d 468, 475 (Tex.
App.-Houston [14th Dist.] 2001, no pet.). However, once
reversible error affecting the "just and right"
division of the community estate is found, an appellate court
must remand the entire community estate for a new division.
Sheshtawy v. Sheshtawy, 150 S.W.3d 772, 780 (Tex.
App.-San Antonio 2004, pet. denied) (quoting Jacobs v.
Jacobs, 687 S.W.2d 731, 733 (Tex. 1985)).
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."
Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990)
(quoting Renfro Drug Co. v. Lewis, 149 Tex. 507,
513, 235 S.W.2d 609, 613 (1950)). In other words, we imply
all necessary findings to support the trial court's
order. See id.
of Fact and Conclusions of Law
fifth issue, Noel argues that the trial court abused its
discretion by refusing to prepare and file findings of fact
and conclusions of law. In any case tried in the district or
county court without a jury, any party may request the court
to state in writing its findings of fact and conclusions of
law. Tex.R.Civ.P. 296. Such request shall be filed within
twenty days after judgment is signed with the clerk of the
court. See id. If the court fails to file timely
findings of fact and conclusions of law, the party making the
request shall, within thirty days after filing the original
request, file a "Notice of Past Due Findings of Fact and
Conclusions of Law." Tex.R.Civ.P. 297.
case, Noel requested the trial court file findings of fact
and conclusions of law on June 14, 2016, within twenty days
after the judgment was signed. When the trial court failed to
file its findings and conclusions, Noel did not file a notice
of past due findings within thirty days of his original
request. See id. As a result of this failure, we
hold that Noel waived his right to complain of the trial
court's failure to file findings of fact and conclusions