in the Matter of the Marriage of Thomas Eugene Vick and Diana Lynn Vick and in the Interest of M.A v. and L.L v. Children ( 2015 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-15-00019-CV
IN THE MATTER OF THE MARRIAGE OF THOMAS EUGENE VICK
AND DIANA LYNN VICK AND IN THE INTEREST OF
M.A.V. AND L.L.V., CHILDREN
On Appeal from the 12th District Court
Walker County, Texas
Trial Court No. 14800, Honorable Donald Kraemer, Presiding
April 23, 2015
ON MOTION TO ABATE AND REMAND
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Before the court is the motion of appellant Diana Lynn Vick (wife) seeking an
order abating and remanding this family law case to the trial court for preparation of
findings of fact and conclusions of law. An attached certificate stated that appellee
Thomas Eugene Vick (husband) opposed the motion.
According to the motion, wife timely requested findings of fact and conclusions of
law from the trial court on February 13, 2015. They were due by March 5, but were not
filed. On March 6, she filed a notice of past due findings which were due by March 25.
By notice filed in this court on March 30, wife indicated findings were not filed by the
March 25 deadline.
Because wife’s motion was opposed, by letter we directed a response from
husband. But no response was filed. When the Court’s clerk attempted to learn the
reason by telephone inquiry, she learned that husband no longer opposes the motion.
When properly requested, the trial court has a mandatory duty to file findings of
fact. TEX. R. CIV. P. 296, 297; Nevada Gold & Silver, Inc. v. Andrews Indep. Sch. Dist.,
225 S.W.3d 68, 77 (Tex. App.—El Paso 2005, no pet). The purpose of civil rule 296 is
to give a party the right to findings of fact and conclusions of law following a
conventional bench trial on the merits. Willms v. Ams. Tire Co., 190 S.W.3d 796, 801
(Tex. App.—Dallas 2006, pet. denied). If a trial court does not file findings, it is
presumed harmful unless the record affirmatively shows the appellant suffered no harm.
See, e.g., Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996); Cherne Indus., Inc. v.
Magallanes, 763 S.W.2d 768, 772 (Tex. 1989).
Accordingly, the appeal is abated and the cause is remanded to the trial court. If
the trial court believes, because of a factual or legal reason, it is not required to file
findings of fact and conclusions of law, it shall so state, and shall support its conclusion
by findings. Otherwise, it shall file its findings of fact and conclusions of law relevant to
the case on appeal.
The findings and conclusions shall be included in a supplemental clerk’s record
to be filed with the clerk of this Court on or before June 5, 2015. The length of this
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period is intended to accommodate, if necessary, additional or amended findings and
conclusions under civil rule 298. TEX. R. CIV. P. 298.
Appellant’s brief shall be due within thirty days of the date the supplemental
clerk’s record is filed.
It is so ordered.
Per Curiam
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