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Cotton v. Cotton

Court of Appeals of Texas, Twelfth District, Tyler

December 21, 2017

NOEL COTTON, APPELLANT
v.
ELIZABETH COTTON, APPELLEE

         APPEAL FROM THE COUNTY COURT AT LAW NACOGDOCHES COUNTY, TEXAS

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

          MEMORANDUM OPINION

          GREG NEELEY JUSTICE

         Noel Cotton appeals the trial court's final decree of divorce. On appeal, he presents five issues. We affirm.

         Background

         Noel 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 parties' estate.

         After a 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.

         Standard of Review

         In a 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)).

         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." 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.

         Findings of Fact and Conclusions of Law

         In his 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.

         In this 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 ...


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