Graves v. Graves

694 S.W.3d 814

William Lavan GRAVES, III, Appellant

v.Amy Katherine GRAVES, Appellee

NO. 14-22-00762-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed April 16, 2024

On Appeal from the 261st District Court, Travis County, Texas, Trial Court Cause No. D-1-FM-17-004519 Eric M. Willie, for Appellant.

Christopher M. Grandinetti, for Appellee.

Panel consists of Justices Wise, Zimmerer, and Poissant.

OPINION

Margaret "Meg" Poissant, Justice

Appellant William Lavan Graves, III ("William") appeals the trial court’s final divorce decree terminating his marital union to appellee Amy Katherine Graves ("Amy"). In three issues, William argues the trial court abused its discretion when it (1) deviated from the standard possession order; (2) deviated from the child support guidelines; and (3) confirmed $61,625.00 in child-support arrearages. We reverse in part the trial court’s determination of William’s child-support arrearage totaling $61,625.00 for the period between July 20, 2017, and January 1, 2020, and we render judgment in part that the arrearage is $52,625.00. We affirm the remainder of the judgment.

I. Background¹

William and Amy married in 2001 and have two children. On July 20, 2017, Amy filed for divorce against William, and William filed a counter-petition for divorce.

On June 22, 2022, trial began, and Amy and William testified. William requested the trial court to make findings of fact and conclusions of law. On July 18, 2022, the trial court signed a final decree of divorce and subsequently issued findings of facts and conclusions of law.

As to the parties’ possession of their two minor children, the trial court entered an order that deviated from the standard possession order by providing each parent with two uninterrupted weeks of possession during the summer months, instead of thirty days of possession to be taken in one period or in two periods of at least seven days each. See Tex. Fam. Code Ann. § 153.312(b)(2)(A). The trial court also found that William’s net resources were $9,200.00 per month and awarded Amy $2,125.00 in child support per month. Finally, the trial court confirmed William’s arrearage of retroactive child support at $61,625.00 from the date of the filing of Amy’s petition until January 1, 2020. This appeal followed.

II. Standard of Review

[1, 2] We review a trial court’s ruling on possession, child support, and confirmation of arrearages for an abuse of discretion. See Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011); In re Roisman, 651 S.W.3d 419, 440 (Tex. App.—Houston [1st Dist.] 2022, no pet.); Iliff v. Iliff, 339 S.W.3d 126, 133 (Tex. App.—Austin 2009), aff’d, 339 S.W.3d 74 (Tex. 2011). A trial court abuses its discretion when it rules without reference to guiding rules and principles or when its decision is unreasonable or arbitrary. Transcor Astra Grp. S.A. v. Petrobras Am., Inc., 650 S.W.3d 462, 482 (Tex. 2022).

[3, 4] In this context, the abuse-of-discretion standard overlaps with traditional standards for reviewing the sufficiency of the evidence. Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex. App.—Austin 2006, pet. denied). Consequently, the legal and factual sufficiency of the evidence are not independent grounds of error but are relevant factors in assessing whether the trial court abused its discretion. A.S. v. Texas Dep’t of Fam. & Protective Servs., 665 S.W.3d 786, 795 (Tex. App.—Austin 2023, no pet.). The reviewing court determines first "whether the trial court had sufficient information on which to exercise its discretion and, if so, whether the trial court erred in its application of discretion." Id.

[5–7] A no-evidence challenge is a challenge to the legal sufficiency of the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 809-11 (Tex. 2005). Evidence is legally sufficient if, viewing all the evidence in the light most favorable to the fact-finding and considering undisputed contrary evidence, a reasonable factfinder could form a firm belief or conviction that the finding was true. In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). In conducting a legal-sufficiency review, the reviewing court cannot ignore undisputed evidence contrary to the finding, but it must otherwise assume the factfinder resolved disputed facts in favor of the finding. Id. at 630-31.

III. Possession Order

In his first issue, William argues the trial court abused its discretion when it entered a possession order that deviated from the standard possession order in the Family Code. William advances two arguments in support of this assertion: (1) the evidence was insufficient to show that a deviation from the standard possession order was in the children’s best interest; and (2) the trial court’s findings of fact and conclusions of law do not include an affirmative finding that deviating from the standard possession order was in the children’s best interest.

A. Applicable Law

"The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child." Tex. Fam. Code Ann. § 153.002. In cases where parents are appointed as joint-managing conservators, the Family Code provides a standard possession order ("SPO") to allocate the child’s time between the parties. See id. §§ 153.312, 153.313, 153.316, 153.3171. There is a rebuttable presumption that the SPO in the Family Code is in the best interest of the child. Id. § 153.252(2).

In deviating from the SPO, the trial court may consider "(1) the age, developmental status, circumstances, needs, and best interest of the child; (2) the circumstances of the managing conservator and of the parent named as a possessory conservator; and (3) any other relevant factor." Id. § 153.256. "In all cases in which possession … is contested and the possession … varies from the standard possession order, … on request by a party, the court shall state in writing the specific reasons for the variance from the standard order." Id. 153.258(a).

B. Analysis

Here, William requested findings of fact and conclusions of law in relevant part under Texas Rule of Civil Procedure 296. See Tex. R. Civ. P. 296 (referencing cases tried "without a jury"); see, e.g., Filla v. Filla, No. 03-14-00502-CV, 2016 WL 4177236, at *2-3 (Tex. App.—Austin Aug. 5, 2016, pet. denied) (mem. op.) ("[W]e conclude that the trial court erred in failing to file findings and conclusions pursuant to rule 296 regarding its ruling on the parties’ possession of and access to M.F."). Pursuant to William’s request, the trial court did file findings of fact and conclusions of law, stating that William’s "periods of possession comply with the [SPO] with a deviation as authorized by discretion of the court …." The trial court, however, did not include in its findings the specific reasons for the deviation or specif- ically state that the deviation was in the children’s best interest. See Tex. Fam. Code Ann. § 153.258(a).

[8] On appeal, William argues that the trial court was required to make an affirmative finding that the deviation was in the children’s best interest. However, we conclude that William did not preserve this argument for our review because he did not file a request for additional findings of fact and conclusions of law. See Tex. R. App. P. 33.1(a); Tex. R. Civ. P. 298; see, e.g., Villalpando v. Villalpando, 480 S.W.3d 801, 810 (Tex. App.—Houston [14th Dist.] 2015, no pet.) ("The failure to request amended or additional findings or conclusions waives the right to complain on appeal about the trial court’s failure to make the omitted findings or conclusions."); Smith v. Abbott, 311 S.W.3d 62, 73 (Tex. App.—Austin 2010, pet. denied) ("The district court filed its original findings and conclusions [and the] appellants did not file a request for additional or amended findings and conclusions …. Consequently, they did not preserve their complaint."); see also, e.g., Travis Settlement Home-Owners’ Ass’n v. 71 Warehouse, LLC, No. 03-23-00108-CV, 2024 WL 726251, at *5 (Tex. App.—Austin Feb. 22, 2024, no pet. h.) (mem. op.) ("Failure to request additional findings waives the right to complain on appeal about a presumed finding."); Goodfellow v. Goodfellow, No. 03-01-00633-CV, 2002 WL 31769028, at *7 (Tex. App.—Austin Dec. 12, 2002, no pet.) (mem. op.) (concluding that appellant "cannot be heard to complain on appeal that the findings and conclusions are incomplete" because appellant did not make a timely request for additional findings and conclusions).

[9, 10] Nevertheless, even if the issue had been preserved, a failure to file findings does not require reversal if the record affirmatively demonstrates that the requesting party suffered no harm from the absence of the finding. Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996); Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989); Filla, 2016 WL 4177236, at *3. The general rule is that an appellant has been harmed if, under the circumstances of the case, he is forced to guess the reasons why the trial court ruled against him and therefore is prevented from properly presenting a case to the appellate court. Tenery, 932 S.W.2d at 30; Filla, 2016 WL 4177236, at *3.

[11] In this case, Amy requested a deviation from the SPO on the sole basis that the requested summer-possession schedule was the schedule the parties previously used and agreed to for the five years since the divorce was filed. Amy testified that this schedule is what the girls wanted, and William acknowledged this assertion by Amy. At the end of trial, the trial court informed the parties that it was aware of the request for a deviation from the SPO. On appeal, William states that Amy’s "only argument that such [deviation] is in the best interest of the children was that such deviation is what the parties had done since their separation." William then argues, without citation to authority, that this argument "does not meet the stringent best interest standard, nor does it even...