Opinion issued May 27, 2021
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00465-CV
———————————
JOAQUIN OSPINA, A/K/A JOAQUIN OSPINA RETAVISCA, Appellant
V.
NICOLE STEFANY GARCIA FLOREZ, Appellee
On Appeal from the 309th District Court
Harris County, Texas
Trial Court Case No. 2017-76410
MEMORANDUM OPINION
In this divorce case between appellant Joaquin Ospina and appellee Nicole
Stefany Garcia Florez, trial began in September 2018 in the 309th District Court of
Harris County. Following the 2018 general election, a new presiding judge took
office on January 1, 2019. The new trial judge started the trial over in May 2019,
and after hearing testimony, rendered a divorce decree dissolving the marriage on
grounds of cruelty.
In three issues on appeal, Ospina argues that (1) the trial court deprived him
of due process of law when it treated the May 2019 proceeding as a new trial without
advance notice to the parties; (2) if the May 2019 proceeding was not a new trial,
then the court improperly made a substantive legal determination based on facts and
evidence heard by the former presiding judge at the September 2018 proceeding;
and (3) the court erred by failing to file findings of fact and conclusions of law,
which prevented Ospina from properly presenting his case to this Court. We affirm.
Background
Ospina and Garcia Florez married in April 2017. They have no children
together. In November 2017, Ospina filed for divorce and alleged that the marriage
had become insupportable. In February 2018, Garcia Florez filed a counter-petition
for divorce, alleging that the marriage had become insupportable and that Ospina
had engaged in cruel treatment.
A. September 2018 Proceeding
On September 17, 2018, trial began before the Honorable Sheri Dean, then
the presiding judge of the 309th District Court of Harris County. Two witnesses
testified on this date: Ospina and Garcia Florez.
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The parties generally testified about when they started dating and the
beginning of their marriage. At the time the parties married in April 2017, Ospina
already had a roommate, and Garcia Florez could not be added to his lease. The
parties therefore did not live together. Aside from each party’s personal effects, the
only property they had was a computer. The parties disputed the ownership of this
computer and who had paid for it.
Ospina testified about two incidents that occurred in October 2017. During
the first incident, the parties got into an argument while at Ospina’s apartment, and
Garcia Florez stated that she was going to take the computer. She started to pack the
computer with her belongings. Ospina told her that she could not take the computer
because it was his and he was making payments on it, and he “pulled her out of the
room.” Garcia Florez called the police, and Ospina was arrested on assault charges.
Ospina denied hitting Garcia Florez at that point or at any other point. A few days
later, Garcia Florez went to Ospina’s apartment while he was still in custody and
took the computer. Ospina filed a police report concerning the computer. After
Ospina testified, he rested his case-in-chief.
Garcia Florez testified that Ospina had engaged in domestic violence against
her on multiple occasions, not just during the October 2017 incident involving the
computer. After the October incident, Garcia Florez called the police and obtained a
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protective order. Garcia Florez testified that when she picked up the computer from
Ospina’s apartment, the police were with her and she had authorization to be there.
During Garcia Florez’s testimony, her counsel mentioned that “a recording”
existed, but neither party’s counsel had heard the recording. Garcia Florez’s counsel
requested a break to listen to the recording “[a]t the appropriate time before [she]
close[s].” Garcia Florez did not rest her case in chief, and no cross-examination of
Garcia Florez occurred at this proceeding. The trial court went off the record and
then adjourned the proceedings.
In early November 2018, Harris County voters elected a new presiding judge
for the 309th District Court. On January 1, 2019, the Honorable Linda Marie Dunson
took office.
B. May 2019 Proceeding
On May 13, 2019, Judge Dunson called the case for trial. Ospina started to
testify concerning ownership of the computer and payments made on the computer.
The trial court stated its understanding that the parties had reached an agreement
concerning the computer. Ospina’s counsel stated on the record that the parties had
agreed that Garcia Florez would pay Ospina nearly $1,000 for the computer; Ospina
would not seek recovery of the computer from Garcia Florez; and Ospina would
assume the outstanding debt on the computer. The following exchange then
occurred:
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The Court: Okay. So—and the only outstanding issue in
this case is grounds for divorce?
[Ospina’s counsel]: Yes, your Honor.
The Court: Okay. The parties are excused. Just sit for a
minute and we’ll proceed on the trial on the
grounds of the divorce. Okay. You’re
excused.
The trial court and counsel for both parties held a discussion off the record. The
parties agree that, during this off-the-record discussion, Judge Dunson stated that
she had not read the transcript from the September 2018 proceeding and the parties
were essentially starting over. Neither party raised any objection on the record to
starting the trial over.
Ospina called his roommate, Juan Camilo Lopez, as a witness. Lopez testified
that he arrived home one day in October 2017 to find Garcia Florez, a member of
her family, and police officers present. Officers prevented Lopez from going inside
the apartment while Garcia Florez removed belongings from Ospina’s room. Lopez,
who had lived with Ospina for around three years, never saw Ospina and Garcia
Florez have a physical altercation. Nevertheless, he did see them have arguments
and yell at each other.
Ospina testified that he and Garcia Florez married in April 2017, and that it is
not possible for them to remain married. He testified that he and Garcia Florez would
have verbal arguments, but they were never involved in a physical altercation or
anything “aggressive.” Ospina testified concerning the incident that occurred in
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October 2017 involving the computer and his arrest. Ospina stated that, during this
incident, he grabbed Garcia Florez’s arm and “took her out of the room,” but he
denied hitting her. Ospina asked the trial court to make a finding that he had not
engaged in cruel treatment of Garcia Florez.
Garcia Florez testified that Ospina became violent towards her two to three
weeks after they got married, and she gave examples of his conduct. Garcia Florez
testified about three instances of domestic violence, including the October 2017
incident with the computer. Her testimony, although more detailed at this
proceeding, was largely consistent with her testimony from the September 2018
proceeding. The trial court admitted three exhibits purporting to be photographs
taken after instances of domestic violence by Ospina against Garcia Florez. Garcia
Florez had not offered these exhibits at the September 2018 proceeding. The trial
court also admitted a copy of the information charging Ospina with assault arising
out of the October 2017 incident. Garcia Florez also testified that Ospina
emotionally abused her and had “conversations with other women.”
Garcia Florez’s aunt, Sandra Florez, also testified. She never personally saw
Ospina behave violently toward Garcia Florez, but she did see bruises and marks on
Garcia Florez’s arms. Florez was present at Ospina’s apartment while Garcia Florez
was talking to the police following the October 2017 incident. She also testified that
Ospina would not provide for Garcia Florez, and that she and other family members
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sometimes needed to take Garcia Florez to the store because Ospina would not let
her go.
At the close of trial, the trial court granted the parties a divorce on the ground
of cruelty, and the court later signed a written divorce decree memorializing that
finding. Ospina requested that the trial court file findings of fact and conclusions of
law. When the trial court did not do so, Ospina filed a notice of past-due findings
and conclusions.
Ospina also moved for a new trial. In this motion, Ospina argued that the trial
court erred by “holding all testimony and evidence adduced at the September 17,
2018 partial trial for naught without any advanced notice to” Ospina. He argued that
the court’s decision at the May 2019 proceeding to start over “constituted a sua
sponte motion for new trial,” and he had no opportunity to prepare for a new trial.
Ospina argued that this decision by the trial court violated his due process rights.
This motion was overruled by operation of law. This appeal followed.
Restarting the Trial
Ospina argues that the trial court effectively granted a new trial at the May
2019 proceeding without stating reasons for doing so on the record, running afoul of
the Texas Supreme Court’s decision in In re Columbia Medical Center and its
progeny. See In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d
204 (Tex. 2009) (orig. proceeding); see also In re Toyota Motor Sales, U.S.A., Inc.,
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407 S.W.3d 746 (Tex. 2013) (orig. proceeding); In re United Scaffolding, Inc., 377
S.W.3d 685 (Tex. 2012) (orig. proceeding). That line of cases holds that a trial court
must give clear, specific, and valid reasons whenever it grants a new trial following
a jury verdict. See, e.g., In re Toyota Motor Sales, 407 S.W.3d at 759. Ospina urges
this Court to extend In re Columbia Medical Center to situations like this, where the
trial court restarts a bench trial prior to judgment.
By contrast, Garcia Florez argues that the trial court did not grant a new trial,
noting that the Rules of Civil Procedure applicable to motions for new trial reference
setting aside a judgment and ordering a new trial. See, e.g., TEX. R. CIV. P. 320. In
this case, Judge Dean did not render judgment at the September 2018 proceeding or
at any time thereafter. According to Garcia Florez, Judge Dean adjourned the case
prior to judgment, and Judge Dunson restarted the case upon being elected to the
bench.
We agree with Garcia Florez that the In re Columbia Medical Center line of
cases does not control here. In re Columbia Medical Center addressed a scenario
where the trial court had set aside a jury verdict and granted a new trial after the jury
had already reached a verdict following a four-week trial. See In re Columbia Med.
Ctr., 290 S.W.3d at 206. The trial court gave no reason for its decision, except that
the decision was “in the interests of justice and fairness.” Id.
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The Texas Supreme Court held that this was an insufficient explanation for
setting aside a jury verdict. In so holding, the court reasoned that “[j]ury trials are
essential to our constitutionally provided method for resolving disputes when parties
themselves are unable to do so.” Id. at 211. The court further acknowledged that,
historically, trial courts have had the discretion to grant new trials “in the interest of
justice.” Id. at 213. Nevertheless, the court ultimately concluded that
such a vague explanation in setting aside a jury verdict does not
enhance respect for the judiciary or the rule of law, detracts from
transparency we strive to achieve in our legal system, and does not
sufficiently respect the reasonable expectations of parties and the public
when a lawsuit is tried to a jury. Parties and the public generally expect
that a trial followed by a jury verdict will close the trial process. Those
expectations may be overly optimistic, practically speaking, but the
parties and public are entitled to an understandable, reasonably specific
explanation why their expectations are frustrated by a jury verdict being
disregarded or set aside, the trial process being nullified, and the case
having to be retried.
Id. Finding that the “protection of the right to jury trial” had created exceptional
circumstances, id. at 209, the court granted conditional mandamus relief requiring
the trial court to give a more detailed explanation for its order. Id. at 215.
This case does not involve the same concerns that In re Columbia Medical
Center presented. This is not a situation in which the trial court granted a motion for
new trial and set aside a jury verdict without stating its reasons beyond “in the
interests of justice and fairness.” Rather, the divorce case was tried to the bench, not
a jury. Furthermore, whereas a motion for new trial is a “direct attack” on an existing
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judgment, see PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 271 (Tex. 2012), no
judgment was in place at the time that Judge Dunson restarted the trial. The restart
appears to have been designed to allow Judge Dunson to hear all the evidence
firsthand, and for good reason. As we recently held, a “judge who did not preside
over some or all the trial may make substantive legal decisions, but only if the
decision does not require the judge to find facts based on evidence that [s]he has not
heard.” Lyon v. Bldg. Galveston, Inc., No. 01-19-00571-CV, 2020 WL 7391705, at
*4 (Tex. App.—Houston [1st Dist.] Dec. 17, 2020, no pet. h.) (citations omitted).
Given these distinctions, we conclude that In re Columbia Medical Center
does not govern this case. See In re J.C., No. 14-18-00904-CV, 2018 WL 5797366,
at *2 (Tex. App.—Houston [14th Dist.] Nov. 6, 2018, orig. proceeding) (mem. op.)
(per curiam) (“Relators offer no argument to explain why standards developed
specifically for the grant of a new trial after a jury verdict apply to a trial court’s
grant of a new trial following a bench trial in a parental-termination proceeding.”);
see also In re Toyota Motor Sales, 407 S.W.3d at 762–63 (Lehrmann, J., concurring)
(“Both Columbia and our subsequent opinion in In re United Scaffolding focused on
transparency in the context of setting aside jury verdicts, noting the importance of
ensuring that trial courts do not impermissibly substitute their judgment for that of
the jury. This concern, however, is not present with respect to new-trial orders that
10
do not set aside a jury verdict, such as orders issued after a bench trial or setting
aside a default judgment.” (internal citations omitted)).
Ospina further argues that the trial court’s decision to restart the trial deprived
him of due process because he did not have notice that the court intended to try the
entire case again, and he did not have time to prepare for the new trial. Garcia Florez
responds that Ospina’s allegations of harm and lack of notice are not supported by
the record. She points out that the record contains multiple notices re-setting the trial
date; Ospina filed a motion in limine—a motion that is typically filed pre-trial—in
March 2019; Ospina’s motion in limine requested that the court order Garcia Florez
not to mention any arrests or convictions of Ospina and order Garcia Florez to
provide a witness and exhibit list; and Ospina filed a witness and exhibit list days
before the May 2019 proceeding began. She further argues that Ospina did not
preserve his due process argument for appellate review because Ospina did not
object to the trial court’s proposed procedure, and he did not raise a due process
argument until his motion for new trial after the trial court rendered the divorce
decree.
We agree with Garcia Florez that Ospina did not preserve his notice-based
and due process arguments for appellate review. To preserve a complaint for
appellate review, the record must demonstrate that the complaining party made his
complaint to the trial court by timely request, objection, or motion that stated the
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grounds for the ruling sought with sufficient specificity to make the trial court aware
of the complaint. TEX. R. APP. P. 33.1(a). The record must also demonstrate that the
court either ruled on the request or refused to rule and the complaining party objected
to the refusal. Id.; First Nat’l Collection Bureau, Inc. v. Walker, 348 S.W.3d 329,
337 (Tex. App.—Dallas 2011, pet. denied) (“An objection is timely urged when
asserted at either the earliest opportunity or when the potential error becomes
apparent.”). Even constitutional arguments may be waived by failure to raise the
complaint at trial. See In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003).
Ospina waived any due process argument by failing to object in the trial court.
The parties agree that at the May 2019 proceeding, the trial court stated its intention
to restart the trial off the record. When the proceeding resumed on the record, Ospina
made no objection to restarting trial. He did not object on the bases that he had not
received sufficient notice that the trial court intended to restart the trial, that this
procedure constituted an improper granting of a motion for new trial, or that this
procedure violated his due process rights. The record contains no indication that this
procedure caused any surprise or prejudice to Ospina. Ospina did not request a
continuance to prepare for giving his testimony again or for cross-examining Garcia
Florez.
Raising these objections prior to the trial restarting would have alerted the trial
court to any potential problems with the proposed procedure and would have allowed
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the trial court to grant relief—namely, a continuance—to ameliorate those concerns.
But Ospina did not raise these objections until after the trial court rendered the
divorce decree. Consequently, we conclude that Ospina did not preserve these
complaints for appellate review. See TEX. R. APP. P. 33.1(a); In re B.L.D., 113
S.W.3d at 350 (“Requiring parties to raise complaints at trial conserves judicial
resources by giving trial courts an opportunity to correct an error before an appeal
proceeds.”).
We overrule Ospina’s first issue.
Decision Based on Evidence Heard by Prior Judge
In his second issue, Ospina argues in the alternative that the trial court erred
in rendering the divorce decree because the court made a legal determination based
on facts and evidence heard by the prior presiding judge.
“The rules of practice and procedure in civil district court allow judges to
exchange courts and transfer cases from one court to another.” Malone v. PLH Grp.,
Inc., 570 S.W.3d 292, 294–95 (Tex. App.—Houston [1st Dist.] 2018, no pet.)
(quoting Masa Custom Homes, LLC v. Shahin, 547 S.W.3d 332, 335 (Tex. App.—
Dallas 2018, no pet.)); TEX. R. CIV. P. 330(e). The rules also permit a practice in
which one trial judge hears part of a case and determines some issues while another
trial judge completes the case. Malone, 570 S.W.3d at 295; Masa Custom Homes,
547 S.W.3d at 335; TEX. R. CIV. P. 330(g) (“When in such counties there are two or
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more district courts having civil jurisdiction, any judge may hear any part of any
case or proceeding pending in any of said courts and determine the same, or may
hear and determine any question in any case, and any other judge may complete the
hearing and render judgment in the case.”); see also TEX. R. CIV. P. 18 (addressing
continuation of court business after trial judge dies, resigns, or becomes disabled
during court’s term).
A trial judge may sign a judgment in accordance with a jury verdict even
though the judge did not preside over the trial. Masa Custom Homes, 547 S.W.3d at
336; Hot-Hed, Inc. v. Safehouse Habitats (Scotland), Ltd., 333 S.W.3d 719, 734
(Tex. App.—Houston [1st Dist.] 2010, pet. denied). A trial judge who did not preside
over a bench trial may sign the final judgment “so long as the written judgment
merely memorializes an earlier final judgment rendered by the judge who heard the
evidence.” Masa Custom Homes, 547 S.W.3d at 336. Additionally, a trial judge may
make substantive legal determinations in a case in which he did not preside over
some or all of the trial “so long as the decision does not require the judge to find
facts based on evidence he has not heard.” Id. The Rules of Civil Procedure do not,
however, “authorize a judge to render judgment following a bench trial unless he
personally heard the evidence on which the judgment is based.” Id.; see Malone, 570
S.W.3d at 295 (“[N]either the rules nor case law permit one judge to preside over
14
the entire bench trial and a visiting judge, who heard no evidence, to render a
judgment based on disputed facts.”).
In a bench trial, the trial judge observes the demeanor of the witnesses and
weighs the evidence. Malone, 570 S.W.3d at 295; Masa Custom Homes, 547 S.W.3d
at 337 (“Only the judge who presides over the bench trial can see and observe the
witnesses’ mannerisms, reactions, and demeanor.”). “Drawing on these
observations, the presiding judge, acting as factfinder, determines the facts from the
disputed evidence.” Malone, 570 S.W.3d at 295; Masa Custom Homes, 547 S.W.3d
at 337 (“[The presiding judge] alone can determine the impact of the evidence and
weigh the success and force of impeachment by cross-examination through careful
observation.”).
Because of the differences in reading the record and presiding over the trial,
“courts have recognized the narrow, but essential exception to the otherwise
relatively free exchange of benches provided for by the rules and the constitution: a
judge who did not hear the evidence in a bench trial cannot thereafter read the trial
record and then render judgment in the case.” Masa Custom Homes, 547 S.W.3d at
337; see Malone, 570 S.W.3d at 295 (“Another judge exercising a judicial role in
the same court is not authorized to render judgment without hearing any of the
evidence on which the judgment is based.”); see also Lyon, 2020 WL 7391705, at
*4, 7 (holding that trial court’s judgment was void because trial court rendered
15
judgment on attorney fees based on transcript of previously admitted evidence, when
judge had not personally heard any evidence regarding amount of reasonable and
necessary attorney fees and evidence from prior proceeding raised disputed fact
questions).
In this case, Judge Dean heard approximately forty pages of testimony from
Ospina and Garcia Florez at the September 2018 proceeding. The parties testified
concerning the start of their relationship and marriage, ownership of the computer,
the October 2017 incident, Garcia Florez’s taking of the computer after the October
2017 incident, and two other instances of alleged domestic violence.
At the May 2019 proceeding before Judge Dunson, the parties stipulated that
they had reached an agreement concerning the computer and this agreement was
stated on the record. Ospina and Garcia Florez testified at this proceeding, as did
Lopez and Florez. The witnesses testified concerning the dating relationship
between the parties, the October 2017 incident, Garcia Florez’s return to Ospina’s
apartment after that incident, and other instances of alleged domestic violence.
Ospina’s and Garcia Florez’s testimony in the September 2018 and May 2019
proceedings was not identical, but they testified to the same topics before Judge
Dunson.
Although Judge Dunson did not preside over all the proceedings in this case,
she heard evidence concerning the parties’ marriage, their testimony that the
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marriage was insupportable, and evidence of domestic violence before rendering a
divorce decree that dissolved the marriage on the basis of cruelty. Evidence of
domestic violence can support a divorce based on cruelty. See Newberry v.
Newberry, 351 S.W.3d 552, 557 (Tex. App.—El Paso 2011, no pet.). Judge Dunson
therefore “personally heard the evidence on which the judgment [was] based.” See
Masa Custom Homes, 547 S.W.3d at 336. Judge Dunson observed the witnesses and
their demeanor while testifying, heard disputed testimony concerning domestic
violence allegations, and weighed the evidence to “determine[] the facts from the
disputed evidence.” See Malone, 570 S.W.3d at 295.
We conclude that Judge Dunson did not impermissibly render judgment based
on evidence that she did not personally hear. See id.; Masa Custom Homes, 547
S.W.3d at 336–37.
We overrule Ospina’s second issue.
Failure to File Findings of Fact and Conclusions of Law
Finally, in his third issue, Ospina contends that the trial court erred by failing
to file findings of fact and conclusions of law. He argues that the trial court’s failure
harmed him because, without the findings and conclusions, “it is impossible to know
what testimony the trial court believed and what acts or omissions the trial court
found were cruel.” As a result, he cannot attack the sufficiency of the evidence to
support the trial court’s findings and properly present his case to this Court.
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In a bench trial, “any party may request the court to state in writing its findings
of fact and conclusions of law.” TEX. R. CIV. P. 296; Ad Villarai, LLC v. Chan Il
Pak, 519 S.W.3d 132, 135 (Tex. 2017) (per curiam). The party must make this
request within twenty days after the trial court signs the judgment. TEX. R. CIV. P.
296. The trial court shall file its findings and conclusions within twenty days after a
timely request is filed. TEX. R. CIV. P. 297. If the trial court fails to file timely
findings and conclusions, the party making the original request shall, within thirty
days of his original request, file a notice of past due findings of fact and conclusions
of law. Id.; Ad Villarai, 519 S.W.3d at 137 (stating that party waives right to
challenge court’s failure to file findings if it does not file notice of past due findings
as required by Rule 297).
If the trial court fails to file findings and conclusions in response to a proper
and timely request, we must presume the trial court made all the findings necessary
to support the judgment. Ad Villarai, 519 S.W.3d at 135 (citing BMC Software Belg.,
N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002)). A party may rebut this
presumption by demonstrating that the evidence in the record does not support a
presumed finding. Id.; Harris Cty. v. Ramirez, 581 S.W.3d 423, 427 (Tex. App.—
Houston [14th Dist.] 2019, no pet.). Fact findings are not necessary when the matters
in question are not disputed. Ad Villarai, 519 S.W.3d at 135 (quoting Barker v.
Eckman, 213 S.W.3d 306, 310 (Tex. 2006)).
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If a trial court fails to file findings when the facts are disputed, “the burden of
rebutting every presumed finding can be so burdensome that it effectively ‘prevent[s
the appellant] from properly presenting its case’” to the appellate court. Id. (quoting
Graham Cent. Station, Inc. v. Peña, 442 S.W.3d 261, 263 (Tex. 2014) (per curiam)).
A trial court’s failure to file findings and conclusions in response to a proper request
“is thus ‘presumed harmful, unless the record before the appellate court affirmatively
shows that the complaining party has suffered no injury.’” Id. (quoting Cherne
Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989)); Ramirez, 581 S.W.3d
at 427 (“When a party is not prevented from properly presenting its case to the court
of appeals, the failure to file findings and conclusions is harmless.”).
The general rule is that a trial court’s failure to file findings and conclusions
harms an appellant if, under the circumstances of the case, he is forced to guess the
reason why the trial court ruled against him. Liberty Mut. Fire Ins. v. Laca, 243
S.W.3d 791, 794 (Tex. App.—El Paso 2007, no pet.); Larry F. Smith, Inc. v. The
Weber Co., Inc., 110 S.W.3d 611, 614 (Tex. App.—Dallas 2003, pet. denied). If
there is only a single ground of recovery or a single defense in the case, the record
demonstrates that the appellant has suffered no harm from the failure to file findings
because he is not forced to guess the reasons for the trial court’s judgment. Pham v.
Harris Cty. Rentals, L.L.C., 455 S.W.3d 702, 706 (Tex. App.—Houston [1st Dist.]
2014, no pet.); Liberty Mut. Fire Ins., 243 S.W.3d at 794; Larry F. Smith, Inc., 110
19
S.W.3d at 614. However, in a case in which there are multiple grounds for recovery
or multiple defenses, an appellant is forced to guess what the trial court’s findings
were, unless the findings are provided to him. Pham, 455 S.W.3d at 706; Liberty
Mut. Fire Ins., 243 S.W.3d at 794; Larry F. Smith, Inc., 110 S.W.3d at 614; see
Fraser v. Goldberg, 552 S.W.2d 592, 594 (Tex. App.—Beaumont 1977, writ ref’d
n.r.e.) (“Undoubtedly, there are situations in which findings and conclusions are
necessary in order for the appellant to present his case. In factually complicated
situations in which there are two or more possible grounds for recovery or defense,
an undue burden would be placed upon an appellant.”).
Putting an appellant in the position of having to guess the reasons for the
judgment rendered against him defeats the purpose of Rules 296 and 297, which
allow a request for findings and conclusions to “narrow the bases of the judgment to
only a portion of [the multiple] claims and defenses, thereby reducing the number of
contentions that the appellant must raise on appeal.” Pham, 455 S.W.3d at 706
(quoting Larry F. Smith, Inc., 110 S.W.3d at 614). Without findings that narrow the
bases for the judgment, an appellant must “broaden his appeal to attack all possible
findings the trial court conceivably could have made.” Larry F. Smith, Inc., 110
S.W.3d at 614.
The Family Code provides that a trial court “may grant a divorce in favor of
one spouse if the other spouse is guilty of cruel treatment toward the complaining
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spouse of a nature that renders further living together insupportable.” TEX. FAM.
CODE ANN. § 6.002. A spouse’s conduct rises to the level of cruel treatment when
their conduct renders the couple’s living together insupportable. Ayala v. Ayala, 387
S.W.3d 721, 733 (Tex. App.—Houston [1st Dist.] 2011, no pet.); Newberry, 351
S.W.3d at 557. “‘Insupportable’ for purposes of ‘cruel treatment,’ means incapable
of being borne, unendurable, insufferable, or intolerable.” Ayala, 387 S.W.3d at 733
(citing Henry v. Henry, 48 S.W.3d 468, 473–74 (Tex. App.—Houston [14th Dist.]
2001, no pet.)); Newberry, 351 S.W.3d at 557. “Abuse need not be limited to bodily
injury; nonetheless, physical abuse will support granting a divorce on cruelty
grounds.” Newberry, 351 S.W.3d at 557; In re Marriage of Rice, 96 S.W.3d 642,
649–50 (Tex. App.—Texarkana 2003, no pet.) (holding that wife’s testimony that
husband had physically abused her on several occasions in past was sufficient
evidence to support trial court’s findings of cruel treatment).
The record of the May 2019 proceeding reflects that the parties entered into a
stipulation concerning the disputed ownership of the computer. Garcia Florez agreed
to pay Ospina nearly $1,000 for the computer, and Ospina agreed that he would not
seek recovery of the computer from Garcia Florez. After this agreement was stated
on the record, Ospina’s counsel agreed with the trial court that the only outstanding
issue remaining was “grounds for divorce.” Both Ospina and Garcia Florez testified
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that the marriage was insupportable and there was no chance of reconciliation;
insupportability was therefore undisputed at trial.
Garcia Florez had also alleged cruelty as a fault-based ground for divorce.
This was the only disputed ground for divorce presented to the trial court, and the
court, in the written divorce decree, dissolved the marriage on cruelty grounds.
Garcia Florez presented testimony that Ospina had engaged in domestic violence,
and she testified to three specific instances in which he had physically abused her.
Florez testified that she never saw Ospina abuse Garcia Florez, but she did witness
marks and bruises on Garcia Florez. Ospina disputed her characterization of these
incidents and denied ever hitting Garcia Florez. The evidence consisted of less than
100 pages of testimony, the information charging Ospina with assault arising out of
the October 2017 incident, and four pictures purporting to show injuries Ospina
caused to Garcia Florez.
This is not a case with a voluminous factual record, multiple grounds for
recovery, or multiple defenses. Although the facts are disputed, this case involved
only one disputed ground for divorce: cruelty. The only question before the trial
court at the May 2019 proceeding was whether Ospina had engaged in cruel
treatment towards Garcia Florez that “render[ed] further living together
insupportable.” See TEX. FAM. CODE ANN. § 6.002. Garcia Florez presented
evidence that Ospina had engaged in domestic violence towards her, which supports
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granting a divorce on the basis of cruelty. See Newberry, 351 S.W.3d at 557
(“[P]hysical abuse will support granting a divorce on cruelty grounds.”); Marriage
of Rice, 96 S.W.3d at 649–50 (concluding that sufficient evidence existed to support
finding of cruelty when wife testified husband had physically abused her on four
occasions).
On appeal, Ospina does challenge the sufficiency of the trial court’s implied
findings on cruelty, but that does not compel a conclusion that he was prevented
from doing so by the trial court’s failure to file findings of fact. This is not a situation
in which Ospina was required to guess at the reasons for the trial court’s judgment.
Even without the benefit of specific fact findings concerning which acts the trial
court found constituted cruel treatment, this is not a factually complicated case, and
challenging the trial court’s implied factual findings on cruelty in this case does not
place an undue burden on Ospina. Assuming that the trial court found that all three
incidents of domestic violence testified to by Garcia Florez occurred, challenging
the sufficiency of the evidence of these implied findings is not “so burdensome” that
it effectively prevented Ospina from properly presenting his case to this Court. See
Ad Villarai, 519 S.W.3d at 135.; see also Reisler v. Reisler, 439 S.W.3d 615, 620
(Tex. App.—Dallas 2014, no pet.) (stating that trial court’s obligation “is to make
findings of fact and conclusions of law on the ultimate or controlling issues, but not
on evidentiary issues”).
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We therefore conclude that the trial court’s failure to file findings and
conclusions, while erroneous, did not harm Ospina. See Ad Villarai, 519 S.W.3d at
135; Pham, 455 S.W.3d at 706 (“[W]hen there is only a single ground of recovery
or a single defense, the appellant suffers no harm [from the failure to file findings of
fact] because the reason for the trial court’s judgment is clear, and the appellate court
does not have to guess the reason for the trial court’s decision.”).
We overrule Ospina’s third issue.
Conclusion
We affirm the judgment of the trial court.
April L. Farris
Justice
Panel consists of Chief Justice Radack and Justices Goodman and Farris.
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