Cornelis P. Willig v. Marcela Gutierrez Diaz

ACCEPTED
01-15-00073-CV
! FIRST COURT OF APPEALS
HOUSTON, TEXAS
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3/31/2015 10:18:39 AM
I CHRISTOPHER PRINE
CLERK
NO.OI-15-00073-CV i
FILED IN
1st COURT OF APPEALS
IN THE MATTER OF § HOUSTON,
IN THE FIRST COURTTEXAS
THE MARRIAGE OF § 3/31/2015 10:18:39 AM
§ CHRISTOPHER A. PRINE
CORNELIS P_ WILLIG § OF APPEALS Clerk
Al"D §
MARCELA GUTIERREZ DIAZ § HOUSTON, TEXAS
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APPELLANT CORNELIS P. 'o/fLLlG'S
MOTION TO ABATE APPEAL
Appellant Comelis P. Willig hereby asks the Court tojabate the appeal ofthis case so that the
Trial Court may prepare and file its Findings of Fact and C~nclusions of Law in this matter.
A. Introduction
I. Appellant is Comelis P. Willig, Petitioner in the underlying divorce action. Appellee is
Marcela Gutierrez Diaz, Respondent in the underiyirig divorce action in which Respondent
filed a Special Appearance and a Plea in Abatement in response to Petitioner's Original
Petition for Divorce. After a hearing was held n Respondent's Special Appearance and Plea
in Abatement, the trial Court granted Respondent's Special Appearance.
2. Appellant timely filed and requested Findings of Fact and Conclusions of Law; timely
presented to the trial Court specifically requested, and proposed to the trial Court, Findings
of Fact and Conclusions of Law; and timely filed his Notice of Past Due Findings of Fact
and Conclusions of Law with the Court. Because there werc two or more grounds on which
the Court could have ruled in Appellant's favor, the OJurt should grant this Motion and abate
the appeal so that the trial Court may prepare and file its findings of fact and conclusions of
law.
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B. Arguments and Authorities
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3. The Court has authority to grant this motion becauseiif findings of face and conclusions of
law are properly requested, the trial court has a Landatory duty to file findings and
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conclusions. Cherne Jndus; Inc. v: Magallanes, 763 .SW2d 768,772 (Tex.l989). Thetrial
court's failure to comply with a proper request to prepare and file findings of fact and
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conclusions of law is presumed harmful, unless th~ record affirmatively shows that the
complaining party suffered no injury. Id. An appellant is harmed ifthere are two or more
possible gromlds on which the Court could have rule~ and the Appellant is left to guess the
basis for the trial Court's ruling. Zieba v. Martin, 928 S.W.2d 782, 786 (Tex.App.-Houston
[14ti' Dist.11993, no writ), citing Groggins v. Leo, 849 S.W.2d 373, 379 (Tex.App.-Houston
[14th Dist] 1993, no writ); Electric Power Design, Inc., v. R. A. Hanson Co., 821 SW2d
170,171 (Tex.App.-Houston [14th Distll991, no writ).
4. In this case, the Trial Court ruled in favor of Appellee when it granted the Appellee's Special
Appearanee on the basis that a Court in the Netherlands had acquired jurisdiction over the
matter pending before the Trial Court in Harris County Texas. The Appellant intends to
argue to this Court that the uncontradicted testimony and a subsequent ruling by the Court
in the Netherlands clearly established that the filing in the Netherlands was established and
accomplished after and subsequent to the filing by Petitioner ofhis divoree petition in Harris
County, so it was later in time at its time of filing in the Netherlands than the Harris county
action. Accordingly the proper remedy in this situation is to abate the appeal and direct the
Trial Court to enter Findings of Fact and Conclusions of Law as properly requested by
Appellant in order to correct its error pursuant to Rule 44.4 of the Rules of Appellate
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Procedure.
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5. Granting the motion and abating the appcal at this time will allow the Appellant to address
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all issues in one brief rather than two.
C. Prayer
6. For these reasons, Appellant asks the Court to grant thls motion and abate the appeal in this
case to allow the Court to direct the trial court to, correct the error pursuant to TRAP
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44.4(2)(b).
Respectfully Submitted,
{l-!,- f· c..Q. ?
AndresiP. Chaumont
State Bar No.: 15779400
806 Daria
Houston, Texas 77079
Tel: (281) 493-3999
Fax: (281) 493-3993
Email: anch88@trip.net
Attorn'lY for Appellant
CERTIFICATE OF CONFERENCE
I hereby certifY that on this day I conferred with Mr. Michael Busby, counsel for the
Appellee. Mr. Busby stated that he is opposed to the granting of this Motion.
Date: March 31, 2015 ``_.F~·~c~a:::::=~-'7_
Andres:P. Chaumont
Attorney for Appellant
CERTIFICATE OF SERVICE
I certifY that a copy of Appellant's Motion to Abate was served on Appellee's counsel of
record, Mr. Michael Busby, 2909 Hillcroft, Suite 350, Houston, Texas 77057; Fax: 713-974-1181
by telephonic document transfer to said fax number on March 31,2015.
fl--'- .p-~
AndresP. Chaumont
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