Guillory v. Boykins

EVELYN V. KEYES

Affirmed in part, reversed in part, and remanded.

G. Troy Pickett, Houston, TX, for Appellant. Stephanie Jean Proffitt, Proffitt Family Law, P.C., Houston, TX, for Appellee.

EVELYN V. KEYES, Justice.

Appellant, Latisha Guillory, challenges the trial court's order modifying the parent-child relationship. In four issues, she argues that (1) the trial court erred in denying her motion for new trial based on an alleged conflict of interest of the amicus attorney appointed on behalf of the child, J.T.B.; (2) the trial court exceeded its authority in appointing appellee, J.T.B.'s father, Christopher Boykins, the sole managing conservator because Boykins did not properly plead for such relief; (3) the trial court erred in ordering Boykins' attorney's fees be withheld from Guillory's earnings in this modification case; and (4) the trial court committed reversible error in failing to file findings of fact and conclusions of law.

We reverse in part and remand for proceedings consistent with this opinion.

We sustain Guillory's third issue.

In her fourth issue, Guillory argues that the trial court committed reversible error in failing to file findings of fact and conclusions of law.

In a case tried without a jury, any party may request, within twenty days after the judgment is signed, that the trial court prepare findings of fact and conclusions of law. Tex.R. Civ. P. 296. The final judgment was signed on March 6, 2013; thus, Guillory's initial request, filed on March 13, 2013 was timely. A trial court's findings of fact and conclusions of law are due within twenty days after a timely request is filed. Tex.R. Civ. P. 297. Here, the findings of fact and conclusions of law were due by April 2, 2013, but none were filed.

The rules provide that if the trial court fails to issue timely findings of fact and conclusions of law as requested, “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.’ ” Tex.R. Civ. P. 297. Because Guillory's original request for findings of fact and conclusions of law was filed on March 13, 2013, her notice of past-due findings of fact and conclusions of law was due by April 12, 2013. However, she did not file the notice until June 4, 2013, eighty-three days after her original request. Because the record does not reveal that Guillory timely filed a reminder of past-due findings of fact and conclusions of law as required by Rule 297, this appellate complaint is waived. See Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 255–56 (Tex.1984) (holding that appellate complaint regarding trial court's failure to file findings of fact and conclusions of law was waived where past-due notice was filed four days late).

Guillory argues that her filing of a motion for new trial extended her deadline for filing the notice of past-due findings and conclusions. However, she cites no authority to support this proposition, nor could we find any. We decline to alter the requirements of the Rules of Civil Procedure and the precedent of the Texas Supreme Court for the timely filing of a request for findings and conclusions and a past-due notice.

Even if we were to presume that Guillory had not waived error, we would conclude that she was not harmed. When a trial court fails to file findings of fact and conclusion of law, error is harmful if it prevents an appellant from properly presenting a case to the appellate court. Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex.1996) (per curiam); Watts v. Oliver, 396 S.W.3d 124, 131 (Tex.App.-Houston [14th Dist.] 2013, no pet.). Here, the lack of findings of fact and conclusions of law has not prevented Guillory from presenting her complaints regarding the alleged conflict of interest, the failure of the judgment to conform to the pleadings, or the award of attorney's fees as additional child support to this Court. Guillory does not identify any issue that she was unable to brief as a result of the trial court's failure to make findings of fact and conclusions of law. See Tenery, 932 S.W.2d at 30; Watts, 396 S.W.3d at 131.

Guillory also argues that we should reverse the trial court's final order for its failure to provide findings of fact required by Family Code section 154.130(a)(3) when the amount of child support ordered by the trial court varies from the amount computed by applying the percentage guidelines set out in the Family Code. See Tex. Fam.Code Ann. § 154.130(a)(3) (Vernon 2008). Guillory argues that because the trial court ordered attorney's fees as additional child support and ordered those amounts withheld from her earnings, “this would logically raise the child support ordered to be paid by [Guillory] above the guideline amount.” We have already held that the trial court erred in awarding those amounts as additional child support, and we have reversed that portion of the trial court's final order. Guillory does not argue that the remaining support ordered by the trial court exceeds the statutory guidelines. Thus, we conclude that we need not reverse the trial court's judgment on the basis that it failed to file findings required by section 154.130.

We overrule Guillory's fourth issue.

We reverse the portion of the trial court's final order deeming Boykins' attorney's fees as “additional child support” and ordering the withholding of such fees from Guillory's earnings. We affirm the remainder of the trial court's final order, including its determination of the amount of attorney's fees to be awarded. We remand the case to the trial court for proceedings consistent with this opinion.