Andrew C. Pore v. Cheyenne Ellis ( 2021 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-20-00550-CV
Andrew C. Pore, Appellant
v.
Cheyenne Ellis, Appellee
FROM THE 119TH DISTRICT COURT OF RUNNELS COUNTY
NO. 15,985, THE HONORABLE BEN WOODWARD, JUDGE PRESIDING
ORDER AND MEMORANDUM OPINION
PER CURIAM
Andrew C. Pore appeals from the trial court’s Order in Suit Affecting the
Parent-Child Relationship establishing a joint managing conservatorship between him and
Cheyenne Ellis regarding their child, M.E. The order grants Ellis the exclusive right to designate
the primary residence of the child and to receive and spend child support. Pore contends that the
trial court abused its discretion by awarding Ellis primary custody and erred by failing to file
requested findings of fact and conclusions of law. We abate this appeal and remand to the trial
court to make findings of fact and conclusions of law.
A party may request findings of fact and conclusions of law after a bench trial
within twenty days after the judgment is signed. Tex. R. Civ. P. 296; Ad Villarai, LLC v. Chan Il
Pak, 519 S.W.3d 132, 135 (Tex. 2017). The trial court shall file its findings and conclusions
within twenty days after a timely request; if it does not, 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. A trial court must file written findings of fact and
conclusions of law when timely requested by a party. Isaac v. Burnside, 616 S.W.3d 609, 614
(Tex. App.—Houston [14th Dist.] 2020, pet. denied).
If, after a party timely files its request for findings and conclusions and timely
notifies the trial court of past-due findings and conclusions and the trial court fails to file findings
and conclusions, “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. A party may rebut the
presumption by establishing that the evidence does not support the presumed findings that are
necessary to support the judgment. See id. However, when the facts are disputed, the burden of
rebutting all presumed findings may be so heavy that it effectively prevents the appellant from
properly presenting its case to the court of appeals. Id. In such cases, harm is presumed, unless
the record affirmatively shows that the complaining party has suffered no injury, and a reviewing
court must abate the appeal and remand the case to the trial court with instructions to file the
findings and conclusions. Id. at 135-36; Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996).
In this case, the trial court did not file the requested findings and conclusions.
The order appealed was signed on September 21, 2020. Pore filed his request for findings of fact
and conclusions of law on October 7, 2020—fewer than twenty days after the order. After no
findings and conclusions were filed, Pore filed his notice of late findings and conclusions
on October 29, 2020—fewer than thirty days after he filed his original request for findings
and conclusions.
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Pore contends that the trial court’s failure to file findings and conclusions
hindered and prejudiced his ability to prepare his appeal on the merits. When deciding issues of
conservatorship and possession of and access to a child, courts’ primary consideration is the best
interest of the child. Tex. Fam. Code § 153.002. Courts have developed best-interest tests that
consider and balance many factors. Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex. 2002); See Holley
v. Adams, 544 S.W.2d 367, 372 (Tex. 1976) (listing several non-exclusive factors for assessing
child’s best interest); Harris v. Texas 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. Lenz, 79 S.W.3d at 19.
In this case, there are 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. On this record, we must presume that the trial court’s failure
to file the timely requested findings of fact and conclusions of law on these intensely fact-driven
inquiries hampered Pore from effectively presenting his appeal to this Court and hinders this
Court in reviewing the trial court’s decision. See Ad Villarai, 519 S.W.3d at 135-36.
As Ellis notes, the proper remedy for this error is abatement of the appeal, not
reversal. Tex. R. App. P. 44.4; Ad Villarai, 519 S.W.3d at 136. We abate this appeal and
remand to the trial court for the sole purpose of supplying the findings of fact and conclusions of
law underlying its Order Affecting the Parent-Child Relationship. The trial court shall issue its
written findings of fact and conclusions of law and ensure that the trial court clerk’s office files
with this Court’s clerk a supplemental clerk’s record containing those findings and conclusions
on or before August 5, 2021.
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This appeal will be reinstated upon the filing of the supplemental clerk’s record
containing the findings and conclusions. Pore shall have twenty-one days from the filing of the
supplemental record to file and serve his supplemental appellant’s brief, and Ellis shall have
twenty-one days from the filing of Pore’s supplemental appellant’s brief to file and serve her
supplemental appellee’s brief.
It is so ordered July 15, 2021.
Before Chief Justice Byrne, Justices Baker and Smith
Abated and Remanded
Filed: July 15, 2021
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