in the Interest of V.K.H.H., a Child ( 2022 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-21-00072-CV
IN THE INTEREST OF V.K.H.H., A CHILD
On Appeal from the County Court at Law
Bowie County, Texas
Trial Court No. 19D0442-CCL
Before Morriss, C.J., Stevens and Carter,* JJ.
__________________
*Jack Carter, Justice, Retired, Sitting by Assignment
ORDER
Mother1 appeals from the trial court’s order in this suit affecting the parent-child
relationship modifying the previous conservatorship order.2 The new conservatorship order
grants Father the exclusive right to designate the primary residence of the child. Possession of
the child was awarded in accordance with the standard possession order. See TEX. FAM. CODE
ANN. §§ 153.311, 153.313–.316, § 153.312 (Supp.). Mother contends that the trial court abused
its discretion by failing to award her primary custody of the child and further erred by failing to
file requested findings of fact and conclusions of law.
Following a bench trial, any party may, within twenty days after the judgment is signed,
file a request for findings of fact and conclusions of law. See TEX. R. CIV. P. 296; Ad Villarai,
LLC v. Chan Il Pak, 519 S.W.3d 132, 135 (Tex. 2017) (per curiam). “The court shall file its
findings of fact and conclusions of law within twenty days after a timely request is filed.” TEX.
R. CIV. P. 297. Should the trial court fail to file findings of fact and conclusions of law within
that time frame,
the party making the request shall, within thirty days after filing the original
request, file with the clerk and serve on all other parties in accordance with Rule
21a a “Notice of Past Due Findings of Fact and Conclusions of Law” which shall
be immediately called to the attention of the court by the clerk.
1
To protect the child’s identity, we refer to the child’s parents as Mother and Father. See TEX. R. APP. P. 9.9.
2
The original conservatorship order appointed both parents as joint managing conservators, with Father having the
exclusive right to designate the primary residence of the child within Bowie County, Texas. The original order
granted Father possession of the child (in the absence of mutual agreement), beginning at 8:00 a.m. Monday and
ending at 6:00 p.m. Friday. Mother was awarded possession of the child every weekend, beginning at 6:00 p.m.
Friday and ending the following Monday at 8:00 a.m.
2
Id. When timely requested, the trial court must file written findings of fact and conclusions of
law. Isaac v. Burnside, 616 S.W.3d 609, 614 (Tex. App.—Houston [14th Dist.] 2020, pet.
denied).
“If the court fails to file findings in response to a proper and timely request, the court of
appeals must presume the trial court made all the findings necessary to support the judgment.”
Ad Villarai, 519 S.W.3d at 135 (citing BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789,
795 (Tex. 2002)). “[I]f a court fails to file findings when the facts are disputed, the burden of
rebutting every presumed finding can be so burdensome that it effectively ‘prevent[s the
appellant] from properly presenting its case to the court of appeals or this Court.’” Id. (second
alteration in original) (quoting Graham Cent. Station, Inc. v. Peña, 442 S.W.3d 261, 263 (Tex.
2014) (per curiam) (citing Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996) (per curiam))). “A
trial court’s failure to file findings in response to a timely and proper request is thus ‘presumed
harmful, unless “the record before the appellate court affirmatively shows that the complaining
party has suffered no injury.”’” Id. (quoting Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768,
772 (Tex. 1989) (quoting Wagner v. Riske, 178 S.W.2d 117, 120 (1944))).
In this case, Mother timely filed a written request for findings of fact and conclusions of
law. Mother likewise timely filed her notice of past due findings of fact and conclusions of law.
Despite Mother’s timely filed request and notice, the trial court failed to file findings of fact and
conclusions of law. Mother contends that this failure negatively impacts appellate review due to
the heightened burden of rebutting every presumed finding that could conceivably support the
3
judgment. Mother therefore asks that we abate this appeal to the trial court for entry of findings
of fact and conclusions of law.
“When deciding issues of conservatorship and possession of and access to a child, [a
court’s] primary consideration is the best interest of the child.” Pore v. Ellis, No. 03-20-00550-
CV, 2021 WL 2964261, at *1 (Tex. App.—Austin July 15, 2021, no pet.) (per curiam) (order
and mem. op.) (citing TEX. FAM. CODE ANN.§ 153.002). “Courts have developed best-interest
tests that consider and balance many factors.” Id. (citing Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex.
2002); Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976) (“listing several non-exclusive factors
for assessing child’s best interest”); Harris v. Tex. Dep’t of Fam. & Protective Servs., 228
S.W.3d 819, 828 (Tex. App.—Austin 2007, no pet.)). “Accordingly, suits affecting the parent-
child relationship are intensely fact-driven.” Id. (citing Lenz, 79 S.W.3d at 19).
As in Pore, this case presents “disputed facts regarding some events and the parties’
behavior during those events, and the trial court’s order does not reveal how it resolved those
disputes and assessed and balanced the Holley factors that guide the ultimate decisions
underlying the trial court’s order.” Id. at *2. In such a case, “the preferred remedy is for the
appellate court to direct the trial court to file the missing findings.” Ad Villarai, 519 S.W.3d at
136.
We, therefore, abate this appeal to the trial court for the sole purpose of issuing findings
of fact and conclusions of law supporting its final order in this suit to modify the parent-child
relationship. The trial court’s findings of fact and conclusions of law shall be entered into the
4
record of the case and filed with this Court as a supplemental clerk’s record within twenty-one
days of the date of this order.
All appellate timetables are stayed and will resume on our receipt of the supplemental
record. On receipt of the trial court’s findings of fact and conclusions of law, the Appellant may
request permission to file an amended brief in order to address the trial court’s findings and
conclusions.
IT IS SO ORDERED.
BY THE COURT
Date: February 15, 2022
5