NO. 07-03-0078-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JUNE 6, 2003
______________________________
IN THE MATTER OF THE MARRIAGE OF
ARACELIA RODRIQUEZ AND DAVID GONZALES MARTINEZ
AND IN THE INTEREST OF A.M.M. AND A.A.M., CHILDREN
_________________________________
FROM THE 154TH DISTRICT COURT OF LAMB COUNTY;
NO. 15834; HONORABLE FELIX KLEIN, JUDGE
_______________________________
Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.
MEMORANDUM OPINION
Appellant David Gonzalez Martinez appeals from a judgment of divorce which
awards child support to appellee Aracelia Rodriquez and changes the last names of their
two children. We abate the appeal and remand with directions to the trial court to file
findings of fact and conclusions of law.
Aracelia filed suit for divorce from David on August 5, 2002. She sought orders for
conservatorship and support of the two children of the marriage if an agreement was not
reached as to such matters. She also sought to have the last names of the children
changed from Martinez to Rodriquez.
On October 28, 2002, a bench trial was held and a Final Decree of Divorce was
signed. On November 12, 2002, the clerk filed David’s Request for Findings of Fact and
Conclusions of Law. On December 20, 2002, the clerk filed David’s Notice of Past Due
Findings of Fact and Conclusions of Law. The Notice and certificate of service signed by
David, who was then and is now appearing pro se, claimed that the document was placed
in the internal mail system of the Texas Department of Criminal Justice, where he was
incarcerated, on December 11, 2002. See TEX . R. CIV. P. 5.1 No findings and conclusions
appear of record.
David’s appellate brief was filed on March 17, 2003. He references the trial court’s
failure to file findings of fact and conclusions of law; one of his issues asserts error by the
trial court in failing to do so. Aracelia has not filed a brief.
Unless the appellate record affirmatively shows no harm to David, the failure of the
trial court to file properly-requested findings and conclusions on contested issues is
presumed harmful. See Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex.
1989). We conclude that the record does not affirmatively show that David has not been
harmed by the absence of findings and conclusions and the trial court’s error is not
harmless. See TRCP 298, 299; Magallanes, 763 S.W.2d at 772.
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Further references to a Rule of Civil Procedure will be by reference to “TRCP
____.”
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We abate the appeal and remand the cause to the trial court. On remand, the trial
court is directed to file findings of fact and conclusions of law. Absent a request for
extension of time by the trial court, the findings of fact and conclusions of law are to be filed
on or before July 18, 2003, which date shall be deemed to be the twentieth day after a
timely request for findings and conclusions for purposes of TRCP 297, 298 and 299a,
which rules shall apply to further proceedings in the trial court pursuant to this order. The
trial court is further directed to cause the trial court clerk to prepare and file with the
appellate clerk a supplemental appellate record which includes the trial court’s findings of
fact and conclusions of law.
Appellant and appellee are directed to re-brief the appeal. The provisions of TEX .
R. APP. P. 38 shall apply to such re-briefing.
Except as specifically set out otherwise in this opinion, provisions of the TRCP and
TRAP apply to further proceedings.
Per Curiam
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